[Federal Register Volume 61, Number 18 (Friday, January 26, 1996)]
[Rules and Regulations]
[Pages 2449-2451]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1208]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271

[FRL-5402-4]


New Mexico: Final Authorization of State Hazardous Waste 
Management Program Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Review of Immediate Final Rule; Response to Public Comments.

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SUMMARY: This notice responds to comments received on the immediate 
final rule published on October 17, 1995 (60 FR 53708), and affirms the 
agency's decision to authorize the State of New Mexico's revised 
program pursuant to 40 CFR 271.21(b)(3).

DATES: Final authorization for New Mexico's program revisions shall be 
effective January 2, 1996.

FOR FURTHER INFORMATION CONTACT: Alima Patterson, Region 6 
Authorization Coordinator, Grants and Authorization Section, (6PD-G), 
U.S. EPA Region 6, First Interstate Bank Tower at Fountain Place, 1445 
Ross Avenue, Dallas, Texas 75202, phone (214) 665-8533.

SUPPLEMENTARY INFORMATION: On October 17, 1995, EPA published an 
immediate final rule pursuant to 40 CFR 271.21(b)(3) which announced 
the agency's decision to authorize New Mexico's revisions to it's 
hazardous waste program. Comments were received during the public 
comment period from one responder. After considering the comments 
received, the Regional Administrator has decided to affirm her decision 
to authorize the State of New Mexico for the program revisions. The 
significant issues raised by the commentor and EPA's responses are 
summarized below. The comments have been summarized, to the extent 
possible, according to common areas for ease of response. All comments 
have been carefully considered in reaching the decision to approve the 
State's program revision.
    Comment: The EPA has not provided detailed or specific information 
regarding how the Regional Administrator arrived at her determination 
that New Mexico's hazardous waste program is (1) equivalent to the 
Federal program (2) is consistent with the Federal program, and (3) 
provides for adequate enforcement of compliance with the requirements 
of RCRA.
    Response: The EPA appreciates these comments and certainly has 
taken these factors into consideration in reaching a decision. The 
primary standard against which EPA measures the New Mexico Program 
revision are those set out in Section 3006(b) of RCRA; namely (1) the 
State program is equivalent to the federal program, (2) the State 
program is consistent with the Federal or state programs applicable in 
other states, and (3) the State provides adequate enforcement of 
compliance with program requirements.

1. Equivalent Program

    The State demonstrated equivalency through it's legal authorities 
in their statutes and regulations. The EPA also reviewed the State's 
Attorney General Statement, Memorandum of Agreement, Program 
Description and other documents included in the State's application. 
The State's regulatory authority for the Hazardous and Solid Waste 
amendments of 1984 (HSWA) is identical to the federal authority. The 
State adopts EPA hazardous waste regulations by reference. Therefore, 
the State will enforce equivalent standards for HSWA provisions within 
the State.

2. Consistent Program

    The EPA implemented the requirement to be consistent with the 
federal program at 40 CFR 271.4. This regulation defines an 
inconsistent State program as: (1) Any aspect of the State program 
which unreasonably restricts, impedes, or operates as a ban on the free 
movement across the State border of hazardous waste from or to other 
States for treatment, storage, or disposal at facilities authorized to 
operate under the Federal or an approved State program shall be deemed 
inconsistent. (2) Any aspect of State law or of the State program which 
has no basis in human health or environmental protection and which acts 
as a prohibition on the treatment, storage or disposal or hazardous 
waste in the State may be deemed inconsistent. (3) If the State 
manifest system does not meet the requirements of this part, the State 
program shall be deemed inconsistent. After review of the State's 
program revision application and 40 CFR part 271.4, EPA determined that 
the State complies with the consistency requirement.

3. Adequate Enforcement

    The EPA has thoroughly and carefully evaluated the State's 
hazardous waste management program and is confident that the State 
does, in fact, have the resources to administer the HSWA program. The 
State maintains a competent permitting staff who are already actively 
involved in HSWA permitting.
    The EPA and the State are committed to carrying out a quality 
Resource Conservation and Recovery Act (RCRA) program in New Mexico. 
EPA does not require a State to have a specific amount of resources in 
order to be authorized. A State, though, must have sufficient resources 
to carry out it's responsibilities. EPA is concerned that New Mexico, 
and all States, have the resources and capabilities to implement the 
program.
    Based on a review of the State's application for program revisions 
of its hazardous waste program, EPA determined that the State operates 
a RCRA enforcement program which satisfactorily meets the requirements 
for compliance evaluation and enforcement authority of 40 CFR 271.15 
and 271.16.
    The State's compliance and monitoring enforcement strategy contains 
enforcement timeframes which are at least equivalent to EPA's 
enforcement timeframes. EPA has evaluated the State's performance with 
respect to meeting those enforcement timeframes and has found that the 
State performance has been satisfactory. The EPA, through oversight 
responsibility, must monitor the State's enforcement program. The 
Memorandum of Agreement (MOA), Program Description (PD), and the RCRA 
section 3011 Multiyear grant entered into by the State and EPA, 
establish the procedures for oversight and the terms of the State's 
accountability for compliance monitoring and enforcement. These 
agreements enable EPA to track the State's enforcement process and 
determine if the State is meeting specific commitments which it agreed 
to accomplish.
    The RCRA section 3011 Multiyear grant awarded to the State will 
function like a contract between the State and EPA. The EPA agrees to 
pay the State if the State performs certain program activities. If, 
through EPA's oversight and grant review, it determines that the State 
is not meeting its commitments, limited funding and authorization may 
be withdrawn. Although, the State has primary enforcement 
responsibility, EPA retains the right to conduct inspections under 
section 3007 of RCRA and to take enforcement actions under sections 
3008, 3013, and 7003 of RCRA.
    The EPA believes that the State has demonstrated in its application 
that it will have adequate funds and staffing. It is EPA's 
responsibility in the exercise of its oversight role, to insure after 
the State is authorized, that it maintains adequate funding and staff 
to operate the program according to the commitments set out in the 
application. The EPA has conducted extensive training for the staff of 
the State on the corrective action program. 

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    Also, the commentor expressed a concern regarding the Federal 
Register notice not listing detailed or specific information on how the 
Administrator reached a decision. There is no requirement to provide in 
the public notice detailed or specific information regarding how the 
Regional Administrator reached her decision. As required by 40 CFR Part 
271.21(b), the Federal Register notice did include a summary of New 
Mexico's program revisions and indicated that EPA intended to approve 
the State's program revision (See 60 FR 53708 and 53709). The notice 
also provided that ``Copies of the New Mexico program revision 
application and the materials which EPA used in evaluating the revision 
are available for inspection and copying from 8:30 a.m. to 4 p.m., 
Monday through Friday at the New Mexico Environment Department and 
EPA'' (See 60 FR 53709).
    Comment: The Work Share Agreement between EPA and the State 
materially impacts the State's ability to meet the statutory 
requirements necessary to qualify for authorization.
    Response: In the spirit of authorization, the State and EPA have 
agreed to a Work Share Plan to enhance the State's hazardous waste 
program to ensure that it will be consistent with, equivalent to, and 
as stringent as the federal requirements. The EPA headquarters 
encourages the use of Work Share Plan to assist the States. The Work 
Share Plan is a agreement between EPA Region 6 and the State providing 
for EPA to give technical assistance to the New Mexico Environment 
Department's (NMED) hazardous waste management program revision in the 
review of certain corrective action documents. The Work Share Plan 
specifically acknowledges that the State is the regulatory authority 
for the correction action program and EPA will not be making final 
determinations, thus there is no sharing of regulatory responsibilities 
in the authorized program. There should be no ambiguity in how EPA and 
the State function as regulators because the State will make all 
regulator determinations for those areas that they are authorized for. 
The continued involvement of EPA at selected facilities should ensure 
consistency between the State and EPA programs.

Decision

    The EPA has reevaluated its decision to approve this final 
authorization for the State's hazardous waste program and all 
documentation, including the authorization application and several EPA 
mid-year and end of year evaluation reports on New Mexico. 
Additionally, EPA also considered the New Mexico HSWA capability 
assessment. The EPA hereby affirms its decision to approve this final 
authorization.

Compliance With Executive Order 12866

    The Office of Management and Budget has exempted this rule from the 
requirements of Section 3 of Executive Order 12866.

Certification Under the Regulatory Flexibility Act

    Pursuant to the provisions of 4 U.S.C. 605(b), I hereby certify 
that this authorization will not have a significant economic impact on 
a substantial number of small entities. This authorization effectively 
suspends the applicability of certain Federal regulations in favor of 
New Mexico's program, thereby eliminating duplicative requirements for 
handlers of hazardous waste in the State. This authorization does not 
impose any new burdens on small entities. This rule, therefore, does 
not require a regulatory flexibility analysis.

List of Subjects in 40 CFR Part 271

    Administrative practice and procedure, Confidential business 
information, Hazardous materials transportation, Hazardous waste, 
Indian lands, Intergovernmental relations, Penalties, Reporting and 
recordkeeping requirements, Water pollution control, Water supply.

    Authority: This Final Determination is issued under the 
authority of sections 2002(a), 3006 and 7004(b) of the Solid Waste 
Disposal Act amended 42 U.S.C. 6912(a), 6926, 6974(b).

    Dated: December 14, 1995.
Linda Carroll,
Acting Regional Administrator.
[FR Doc. 96-1208 Filed 1-25-96; 8:45 am]
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