Proposed Rule2021-12238
Arkansas: Authorization of State Hazardous Waste Management Program Revision
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
June 11, 2021
Issuing agencies
Environmental Protection Agency
Abstract
The State of Arkansas Division of Environmental Quality (DEQ) has applied to the Environmental Protection Agency (EPA) for final authorization of the changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). The EPA has reviewed Arkansas' application and has determined that these changes appear to satisfy all requirements needed to qualify for final authorization and is proposing to authorize the State's changes. The EPA is seeking public comment prior to taking final action.
Full Text
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<title>Federal Register, Volume 86 Issue 111 (Friday, June 11, 2021)</title>
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[Federal Register Volume 86, Number 111 (Friday, June 11, 2021)]
[Proposed Rules]
[Pages 31233-31239]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-12238]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[EPA-R06-RCRA-2021-0073; FRL-10021-64-Region 6]
Arkansas: Authorization of State Hazardous Waste Management
Program Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: The State of Arkansas Division of Environmental Quality (DEQ)
has applied to the Environmental Protection Agency (EPA) for final
authorization of the changes to its hazardous waste program under the
Resource Conservation and Recovery Act (RCRA). The EPA has reviewed
Arkansas' application and has determined that these changes appear to
satisfy all requirements needed to qualify for final authorization and
is proposing to authorize the State's changes. The EPA is seeking
public comment prior to taking final action.
DATES: Comments on this proposed rule must be received by July 12,
2021.
ADDRESSES: Submit your comments by one of the following methods:
<bullet> Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the on-line instructions for submitting comments.
<bullet> Email: <a href="/cdn-cgi/l/email-protection#a4d4c5d0d0c1d6d7cbca8ac5c8cdc9c5e4c1d4c58ac3cbd2"><span class="__cf_email__" data-cfemail="b4c4d5c0c0d1c6c7dbda9ad5d8ddd9d5f4d1c4d59ad3dbc2">[email protected]</span></a>.
Instructions: EPA must receive your comments by July 12, 2021.
Direct your comments to Docket ID Number EPA-R06-RCRA-2021-0073. The
EPA's policy is that all comments received will be included in the
public docket without change and may be made available online at
<a href="https://www.regulations.gov">https://www.regulations.gov</a>, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI), or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through <a href="https://www.regulations.gov">https://www.regulations.gov</a>, or email. The Federal <a href="http://regulations.gov">regulations.gov</a> website is
an ``anonymous access'' system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment. If you send an email comment directly to EPA without
going through <a href="http://regulations.gov">regulations.gov</a>, your email address will be automatically
captured and included as part of the comment that is placed in the
public docket and made available on the internet. If you submit an
electronic comment, EPA recommends that you include your name and other
contact information in the body of your comment with any CD you submit.
If EPA cannot read your comment due to technical difficulties and
cannot contact you for clarification, EPA may not be able to consider
your comment. Electronic files should avoid the use of special
characters, any form of encryption and be free of any defects or
viruses.
Docket: The index to the docket for this action is available
electronically at <a href="http://www.regulations.gov">www.regulations.gov</a>. Although listed in the index,
some information is not publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, will be publicly available only
in hard copy.
You can view and copy Arkansas's application and associated
publicly available docket materials either through <a href="http://www.regulations.gov">www.regulations.gov</a>
at the following locations: Division of Environmental Quality, 5301
Northshore Drive, North Little Rock, Arkansas, 72118 telephone: (501)
682-0744 and EPA, Region 6, 1201 Elm Street, Suite 500, Dallas, Texas
75270. The EPA facility is open from 8:30 a.m. to 4:30 p.m., Monday
through Friday, excluding Federal holidays and facility closures due to
COVID-19. We recommend that you telephone Alima Patterson, Regional
Authorization/Codification Coordinator at (214) 665-8533, before
visiting the Region 6 office. Interested persons wanting to examine
these documents should make an appointment with the office.
FOR FURTHER INFORMATION CONTACT: Alima Patterson, (214) 665-8533,
<a href="/cdn-cgi/l/email-protection#a2d2c3d6d6c7d0d1cdcc8cc3cecbcfc3e2c7d2c38cc5cdd4"><span class="__cf_email__" data-cfemail="8cfcedf8f8e9feffe3e2a2ede0e5e1edcce9fceda2ebe3fa">[email protected]</span></a>. Out of an abundance of caution for members of
the public and our staff, the EPA Region 6 office will be closed to the
public to reduce the risk of transmitting COVID-19. We encourage the
public to submit comments via <a href="https://www.regulations.gov">https://www.regulations.gov</a>, as there
will be a delay in processing mail and no courier or hand deliveries
will be accepted. Please call or email the contact listed above if you
need alternative access to material indexed but not provided in the
docket.
SUPPLEMENTARY INFORMATION:
A. Why are revisions to State programs necessary?
States which have received final authorization from the EPA under
RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous
waste program that is equivalent to, consistent with, and no less
stringent than the Federal program. As the Federal program changes,
States must change their programs and ask the EPA to authorize the
changes. Changes to State programs may be necessary when Federal or
State statutory or regulatory authority is modified or when certain
other changes occur. Most commonly, States must change their programs
because of changes to the EPA's regulations in 40 Code of Federal
Regulations (CFR) parts 124, 260 through 268, 270, 273, and 279.
B. What decisions have EPA made in this rule?
On March 2, 2021, the State of Arkansas submitted a final complete
program revision application seeking authorization of changes to its
hazardous waste program that correspond to certain Federal rules
promulgated between July 1, 2014 and June 30, 2018, which includes RCRA
Clusters XXIV through and RCRA Cluster XXVI (Checklists 233A, 233B,
233C, 233D2, 233E, 234, 235, 236, 237, 238 and 239). The EPA has
reviewed Arkansas' application to revise its authorized program and is
proposing to find that it meets all of the statutory and regulatory
requirements established by RCRA. Therefore, we propose to grant the
State of Arkansas final authorization to operate its hazardous waste
program with the changes described in the authorization application.
The State Arkansas will continue to have responsibility for
permitting
[[Page 31234]]
treatment, storage and disposal facilities (TSDFs) within its borders
(except in Indian Country), and for carrying out the aspects of the
RCRA program described in its revised program application, subject to
the limitations of the Hazardous and Solid Waste Amendments of 1984
(HSWA). New Federal requirements and prohibitions imposed by Federal
regulations that EPA promulgates under the authority of HSWA take
effect in authorized States before they are authorized for the
requirements. Thus, the EPA will implement those requirements and
prohibitions in the State of Arkansas, including issuing permits, until
the State is granted authorization to do so.
C. What is the effect of this proposed authorization decision?
If the State of Arkansas is authorized for these changes, a
facility in Arkansas subject to RCRA will now have to comply with the
authorized State requirements instead of the equivalent Federal
requirements in order to comply with RCRA. Additionally, such
facilities will have to comply with any applicable Federal requirements
such as, for example, HSWA regulations issued by the EPA for which the
State has not received authorization. The State of Arkansas will
continue to have enforcement responsibilities under its State hazardous
waste program for violations of such program, but the EPA retains its
authority under RCRA sections 3007, 3008, 3013 and 7003, which include,
among others, authority to:
<bullet> Conduct inspections and require monitoring, tests,
analyses, or reports;
<bullet> enforce RCRA requirements and suspend or revoke permits,
and
<bullet> take enforcement actions after notice to and consultation
with the State.
The action to approve these provisions would not impose additional
requirements on the regulated community because the regulations for
which the State of Arkansas is requesting authorization are already
effective under State law and are not changed by the act of
authorization.
D. What happens if the EPA receives comments on this action?
If the EPA receives comments on this proposed action, we will
address those comments in our final action. You may not have another
opportunity to comment. If you wish to comment on this proposed
authorization, you must do so at this time.
E. What has Arkansas previously been authorized?
Arkansas initially received final authorization on January 11,
1985, effective January 25, 1985 (50 FR 1513), to implement its Base
Hazardous Waste Management program. We granted authorization for
changes to their program on August 23, 1985, via EPA letter, effective
August 23, 1985; March 27, 1990 (55 FR 11192), effective May 29, 1990;
September 18, 1991 (56 FR 47153), effective November 18, 1991; October
5, 1992 (57 FR 45721), effective December 4, 1992; October 12, 1993 (58
FR 52674), effective December 13, 1993; October 7, 1994 (59 FR 51115),
effective December 21, 1994; June 20, 1995 (60 FR 32112), effective
August 21, 1995; April 24, 2002 (67 FR 20038), effective June 24, 2002,
as amended June 28, 2010 (75 FR 36538); August 15, 2007 (72 FR 45663),
effective October 15, 2007, as amended June 28, 2010 (75 FR 36538);
June 28, 2010 (75 FR 36538), effective August 27, 2010; August 10, 2012
(77 FR 47779), effective October 9, 2012; October 2, 2014 (79 FR
59438), effective December 1, 2014; October 31, 2014 (79 FR 64678),
effective December 30, 2014; January 29, 2016 (81 FR 4961), effective
March 29, 2016; August 11, 2016 (81 FR 53025), effective October 11,
2016; and September 14, 2017 (82 FR 43185), effective November 13,
2017.
The authorized Arkansas RCRA program was incorporated by reference
into the Code of Federal Regulations October 12, 1993 (58 FR 52674)
effective December 13, 1993; June 20, 1995 (60 FR 32112) effective
August 21, 1995; June 28, 2010 (75 FR 36538) effective August 27, 2010;
October 2, 2014 (79 FR 59438) effective December 1, 2014; January 29,
2016 (81 FR 4961) effective March 29, 2016; August 11, 2016 (81 FR
53025) effective October 11, 2016; and September 14, 2017 (82 FR
43185), effective November 13, 2017.
On March 2, 2021, Arkansas submitted a final complete program
revision application seeking authorization of its program revision in
accordance with 40 CFR 271.21. The State of Arkansas has undergone a
state agency reorganization that has placed the Arkansas Department of
Environmental Quality in the Arkansas Department of Energy and
Environment and is now the Arkansas Division of Environmental Quality
(DEQ). The Arkansas Division of Environmental Quality is now the agency
responsible for administering all solid and hazardous waste regulations
for the State of Arkansas. The Arkansas Pollution Control and Ecology
Commission (APC&EC) is vested with general authority to make and amend
rules in Ark. Code Ann. Sec. 8-01-203(b)(l)(A), and is vested with
specific authority to make and amend rules with regard to hazardous
waste management in Ark. Code Ann. Sec. 8-7-209(b)(l).
On May 28, 2020, the APC&EC passed Minute Order No. 20-14 to
initiate Rulemaking for amendments to Regulation 23, Hazardous Waste
Management in order to adopt Federal regulations promulgated between
through May 30, 2018. On June 6 and 7, 2020, the notice of the proposed
regulation changes, public hearing, and public comment period was
published in the Arkansas Democrat-Gazette. On July 20, 2020, at 2:00
p.m., the APC&EC held a public hearing regarding the proposed changes
at 5301 Northshore Drive, North Little Rock, AR 72118. No public
comments were received during the public hearing. The public comment
period expired on August 3, 2020, and no public comments were received
during the public comment period. The amendments to Regulation 23
further incorporated changes mandated by Act of March 5, 2019, No. 315
to change all references of ``Regulation'' to ``Rule,'' and changes in
terminology to conform to the Transformation and Efficiencies Act of
2019, No. 910, as well as a variety of non-substantive and minor
stylistic changes in the interest of clarity and consistency. The
Arkansas Hazardous Waste Management Act of 1979, Ark. Code Ann. Sec.
8-7-201 et seq., and the Arkansas Resource Reclamation Act of 1979,
Ark. Code Ann. Sec. 8-7-301 et seq. establish the statutory authority
to administer the Hazardous waste management program under RCRA
Subtitle C. The official State regulations may be found in Arkansas
Pollution Control and Ecology Commission Rule No. 23 (Hazardous Waste
Management), approved on August 27, 2020. The DEQ has the rules
necessary to implement EPA's portion of RCRA Clusters XXIV through RCRA
Cluster XXVI. The provisions for which the State is seeking
authorization are documented on Revision Checklists 233A, 233B, 233C,
233D2, 233E, 234, 235, 236, 237 238 and 239, which are portions of RCRA
Clusters XXIV through RCRA Cluster XXVI. Any differences between the
State's provisions and the Federal provisions are noted on the
individual Revision Checklists and the Program Description submitted by
the State to EPA as part of its program revision application package.
F. What changes is EPA proposing to authorize with this action?
On March 2, 2021, the State of Arkansas submitted a final complete
[[Page 31235]]
program revision application, seeking authorization of their changes in
accordance with 40 CFR 271.21. We have determined that the DEQ's
hazardous waste program revision satisfies all of the requirements
necessary to qualify for final authorization. We are now proposing to
authorize, subject to receipt of written comments that oppose this
action that the State of Arkansas hazardous waste program revisions are
equivalent to, consistent with, and no less stringent than the Federal
program, and therefore satisfy all of the requirements necessary to
qualify for final authorization. The DEQ revisions consist of
regulations which specifically govern Federal hazardous waste revisions
promulgated between July 1, 2014 and June 30, 2018 (RCRA Clusters XXIV
through RCRA Cluster XXVI). The Arkansas provisions are from the
Arkansas Pollution Control and Ecology Commission (APC&EC) Rule No. 23,
Hazardous Waste Management, as approved on August 27, 2020. In the
State's adoption of the Federal provisions addressed by Checklist 233B,
Arkansas incorrectly removed and reserved Rule 23 section
261.2(a)(2)(ii) (analogous to 40 CFR 261.2(a)(2)(i)(B)). EPA has
notified Arkansas and the State will correct the error in their next
rulemaking. We propose to grant Arkansas final authorization for the
program changes in the Table within this document.
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Federal Register date and
Description of Federal requirement page (and/or RCRA statutory Analogous state authority
(include Checklist No., if relevant) authority)
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RCRA Cluster XXIV
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1. Revisions to the Definition of Solid 80 FR 1694, January 13, APC&EC Rule No. 23, Sections 260.31(c)
Waste Changes affecting non-waste 2015, as amended on May introductory paragraph, 260.31(c)(1)-
determinations and variances (Checklist 30, 2018, 83 FR 24664. (5), 260.33(c)-(e), 260.42 introductory
233A). paragraph, 260.42(a)(1)-(10), 260.42(b).
2. Revisions to the Definition of Solid 80 FR 1694, January 13, APC&EC Rule No. 23, Sections 260.10
Waste--Legitimacy-related provisions. 2015, as amended on May ``contained'', 260.10 ``Hazardous
(Checklist 233B). 30, 2018, 83 FR 24664. secondary material'', 260.43(a)
introductory paragraph, 260.43(a)(1)-
(4), 260.43(b) introductory paragraph,
260.43(b)(1)-(2), 260.43(c), 261.2(b)(3)-
(4), 261.2(g).
3. Revisions to the Definition of Solid 80 FR 1694-1814, January APC&EC Rule No. 23, Sections 261.1(c)(8).
Waste--Speculative Accumulation 13, 2015.
(Checklist 233C).
4. Revisions to the Definition of Solid 80 FR 1694, January 13, APC&EC Rule No. 23, Sections 260.10
Waste--Exclusions and non-waste 2015, as amended on May ``Facility'', 260.10 ``Hazardous
determinations. (Checklist 233D2). 30, 2018, 83 FR 24664. secondary material generator'', 260.10
``Intermediate facility'', 260.10 ``Land-
based unit'', 260.10 ``Transfer
facility'', 260.30 introductory
paragraph, 260.30(b)-(e), 260.30(f)
removed, 260.34(a)-(c), 261.1(c)(4),
261.2(c)(3), 261.2(c)(4) Table 1,
261.4(a)(23) introductory paragraph,
261.4(a)(23)(a)(i)(A)-(C),
261.4(a)(23)(ii)(A)-(F), 261.4(a)(24)
introductory paragraph, 261.4(a)(24)(i)-
(v)(C)(2), 261.4(a)(24)(v)(C)(3),
261.4(a)(24)(v)(D)-(vii), 261.4(a)(25)
introductory paragraph, 261.4(a)(25)(i)-
(xii), 261 Subsection H, 261 Subsections
K-L [Reserved], 261 Subsection M, 270.42
Appendix I, Items A(9) and A(10).
Note: Section 261.4(a)(24)(v)(C)(3) is
more stringent.
5. Revisions to the Definition of Solid 80 FR 1694, January 13, APC&EC Rule No. 23, Sections 260.10
Waste--Remanufacturing exclusion 2015. ``Remanufacturing'', 261.2(c)(3),
(Checklist 233E). 261.2(c)(4) Table 1, 261.4(a)(27)
introductory paragraph, 261.4(a)(27)(i)-
(vi)(F), 261 Subsections I, J, AA, BB,
CC.
6. Response to Vacaturs of the 80 FR 18777, April 8, 2015. APC&EC Rule No. 23, Sections 260.10
Comparable Fuels Rule and the ``Gasification'' [Removed],
Gasification Rule (Checklist 234). 261.4(a)(12)(i), 261.4(a)(16)
[Reserved], 261.38 [Reserved].
7. Disposal of Coal Combustion Residuals 80 FR 21302, April 17, 2015 APC&EC Rule No. 23, Sections
from Electric Utilities (Checklist 235). 261.4(b)(4)(i)-(ii)(H).
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RCRA Cluster XXV
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8. Import and Exports of Hazardous Waste 81 FR 85696, November 28, APC&EC Rule No. 23, Sections 260.10 ``AES
(Checklist 236). 2016. filing compliance date'', 260.10
82 FR 41015, August 29, ``Electronic import-export reporting
2017. compliance date'', 260.10 ``Recognized
trader'', 260.11(g) introductory
paragraph, 260.11(g)(1), 260.11(g)(2)
[Reserved], 261.4(d)(1), 261.4(d)(4),
261.4(e)(1), 261.4(e)(4), 261.6(a)(3)(i)
and 261.6(a)(5), 261.39(a)(5)(ii),
261.39(a)(5)(v) introductory paragraph,
261.39(a)(5)(v)(A)-(B)(2)(vii),
261.39(a)(5)(vi), 261.39(a)(5)(ix),
261.39(a)(5)(xi) \1\, 262.10(d),
262.12(d), 262.41(j), 262 Subsections E
and F [Reserved], 262 Subsection H \1\,
Appendix to Section 262 (removed by the
final rule addressed by Checklist 237),
263.10(d), 263.20(a)(2), 263.20(c),
263.20(e)(2), 263.20(f)(2) and Note;
263.20(g) introductory paragraph,
263.20(g)(1)-(4)(ii), 264.12(a)
introductory paragraph, 264.12(a)(1)-
(a)(4)(ii), 264.71(a)(3) introductory
paragraph, 264.71(a)(3)(i)-(ii),
264.71(d), 265.12(a) introductory
paragraph, 265.12(a)(1)-(a)(4)(ii),
265.71(a)(3) introductory paragraph,
265.71(a)(3)(i)-(ii), 265.71(d),
266.70(b) introductory paragraph,
266.70(b)(1)-(3), 266.80(a) Table,
267.71(a)(4)-(a)(6)(ii), 267.71(d),
273.20, 273.39(a)-(b), 273.40, 273.56,
273.62(a), 273.70 introductory
paragraph, 273.70(a)-(c).
[[Page 31236]]
9. Hazardous Waste Generator 81 FR 86732, November 28, APC&EC Rule No. 23, Sections 260.10
Improvements Rule (Checklist 237). 2016. ``Acute hazardous waste'', 260.10
``Central accumulation area'', 260.10
``Large quantity generator'', 260.10
``Non-acute hazardous waste'', 260.10
``Performance Track member facility''
[Removed], 260.10 ``Small quantity
generator'', 260.10 ``Very small
quantity generator'', 260.11(d)(1),
261.1(a)(1), 261.1(c)(6), 261.4(a)(7),
261.5 [Reserved], 261.6(c)(2)(iv),
261.33(e) introductory paragraph,
261.33(f) introductory paragraph,
261.420(g), 262.1 introductory
paragraph, 262.1 ``Condition for
exemption'', 262.1 ``Independent
requirement'', 262.10(a) introductory
paragraph, 262.10(a)(1)-(3), 262.10(b),
262.10(d), 262.10(g)(1)-(2), 262.10(j)
[Reserved], 262.10(l) introductory
paragraph, 262.10(l)(1)-(2), 262.11
introductory paragraph, 262.11(a)-(g),
262.12 [Reserved], 262.13 through
262.18(b), 262.18(c), 262.18(d)-(e),
262.19(b)-(d), 262.32(b) introductory
paragraph, 262.32(b)(1)-(5), 262.32(c)-
(d), 262.34 [Reserved], 262.35,
262.40(c), 262.41 introductory
paragraph, 262.41(j), 262.43, 262.44
[Reserved], Subsections I and J
[Reserved], 262.200 ``Central
accumulation area'' [Removed], 262.200
``Trained professional'', 262.201(a)-
(b), 262.202(a)-(b), 262.203(a)-(b)(2),
262.204(a), 262.206(b)(3)(iii),
262.207(d)(2), 262.208(a)(1)-(2),
262.208(d)(2) introductory paragraph,
262.208(d)(2)(i)-(ii), 262.209(b),
262.210(a), 262.210(b)(3),
262.210(d)(2), 262.211(c), 262.211(d),
262.211(e)(3), 262.212(d), 262.213(a)(1)-
(3), 262.213(b)(2), 262.214(b)(5),
262.216(a)-(b), 262 Subsection L, 262
Subsection M, 263.12(a)-(b)(2),
264.1(g)(1), 264.1(g)(3), 264.15(b)(4),
264.15(b)(4) Comment [Removed],
264.71(c), 264.71(c) Comment [Removed],
264.75, 264.170, 264.170 Comment,
264.174, 264.191(a), 264.195(e)
[Reserved], 264.1030(b)(2),
264.1050(b)(3), 264.1101(c)(4),
265.1(c)(5), 265.1(c)(7), 265.15(b)(4),
265.15(b)(5) [Removed], 265.71(c),
265.71(c) Comment [Removed], 265.75,
265.174, 265.174 Comment [Removed],
265.195(d) [Reserved], 265.201
[Reserved], 265.1030(b)(2),
265.1030(b)(3), 265.1050,
265.1101(c)(4), 266.80(a), 266.255(a),
267.71(c), 268.1(e)(1), 268.7(a)(5),
268.50(a)(1), 268.50(a)(i) introductory
paragraph, 268.50(a)(2)(i)(A)-(D),
270.1(a)(3), 270.1(c)(2) introductory
paragraph, 270.1(c)(2)(i)-(ii),
270.42(l) [Reserved], Item O.1 of 270.42
Appendix I [Reserved], 273.8(a)(2),
273.81(b), 279.10(b)(3).
Note: The following provisions are more
stringent: 261.6(c)(2)(iv), 262.18(c),
262.19(b)-(d), 262.41 introductory
paragraph, 264.75, 264.191(a) and
265.75.
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RCRA Cluster XXVI
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10. Confidentiality Determinations for 83 FR 60894, December 26, APC&EC Rule No. 23, Sections 260.2(b),
Hazardous Waste Export and Import 2017. 260.2(d)(1)-(2), 261.39(a)(5)(iv),
Document. (Checklist 238). 262.83(b)(5), 262.83(f)(9),
262.84(b)(4), 262.84(f)(8).
11. Hazardous Waste Electronic Manifest 83 FR 420, January 3, 2018. APC&EC Rule No. 23, Sections 260.4,
User Fee Rule. (Checklist 239). 260.5, 262.20(a)(1)-(2), 262.21(f)(5)-
(8), 262.24(c) introductory paragraph,
262.24(c)(1)-(2), 262.24(e), 262.24(g)
[Reserved], 262.24(h), 262 Appendix
[Removed], 263.20(a)(9), 263.21(a)
introductory paragraph, 263.21(a)(1)-
(4), 263.21(b)(1)-(4), 263.21(c)
introductory paragraph, 263.21(c)(1)-
(2), 264.71(a)(2) introductory
paragraph, 264.71(a)(2)(i)-(vi),
264.71(k) introductory paragraph,
264.71(k)(1)-(2), 264.71(m) introductory
paragraph, 264.71(m)(1), 264.71(m)(2)
introductory paragraph, 264.71(m)(2)(i)-
(iii), 264.71(m)(3), 264.71(m)(3)(i)-
(ii), 264.71(m)(4)-(5),
264.1086(c)(4)(i), 264.1086(d)(4)(i),
265.71(a)(2) introductory paragraph,
265.71(a)(2)(i)-(vi), 265.71(k)
introductory paragraph, 265.71(k)(1)-
(2), 265.71(m) introductory paragraph,
265.71(m)(1), 265.71(m)(2) introductory
paragraph, 265.71(m)(2)(i)-(iii),
265.71(m)(3), 265.71(m)(3)(i)-(ii),
265.71(m)(4)-(5), 265.1087(c)(4)(i),
265.1087(d)(4)(i).
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G. Where are the revised State rules different from the Federal rules?
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\1\ Arkansas has not adopted the revisions to 40 CFR
261.39(a)(5)(xi) and 262.82(e)(1) and 262.82(e)(2) which were
published on August 6, 2018 (83 FR 38262). EPA made conforming
changes to the EPA office and address to which paper documents
concerning imports and exports of hazardous waste and conditionally
excluded cathode ray tubes must be sent. The change in address was
needed to reflect the reorganization of hazardous waste import-
export functions on April 29, 2018, from the Office of Federal
Activities' International Compliance Assurance Division, in EPA's
Office of Enforcement and Compliance Assurance, to the International
Branch within the Office of Resource Conservation and Recovery's
Materials Recovery and Waste Management Division, in EPA's Office of
Land and Emergency Management. Because of the Federal government's
special role in matters of foreign policy, EPA cannot authorize
States for import/export functions. However, EPA encourages States
to incorporate these requirements into their regulations for the
convenience of the regulated community and for completeness.
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1. Evaluation and Analysis on When State Regulations Are More Stringent
or Broader in Scope Than the Federal Regulations
Under 40 CFR 271.1(i), EPA allows states to (1) adopt and enforce
requirements which are more stringent or more extensive than those
required by the federal RCRA program, and (2) operate a program with a
greater scope of coverage than that required by the federal program. To
determine whether particular state provisions are more stringent or
broader in scope, EPA uses the December 23, 2014, guidance document:
``Determining Whether State Hazardous Waste Requirements are More
Stringent (MS) or Broader in Scope (BIS) than the Federal RCRA
Program.'' \2\ In the guidance document, EPA uses a two-part test to
determine if state regulations are MS or BIS. The two-part test
requires that the following questions be answered sequentially:
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\2\ A copy of this guidance is included in the docket of this
proposed rule.
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a. Does imposition of the particular state requirement increase the
size of the regulated community or universe of wastes beyond what is
covered by the federal program through either directly enforceable
requirements or certain conditions for exclusion?
b. Does the particular requirement under review have a counterpart
in the federal regulatory program?
If the answer to the first part of the test is yes, then the state
requirement is generally considered broader in scope. If the answer is
no, then EPA uses the second part of the test to determine whether the
state requirement is more stringent or broader in scope. If the state
requirement has a counterpart in the federal program, the state
requirement is classified as more stringent. However, if the state
requirement does not have a
[[Page 31237]]
counterpart, it is classified as broader in scope.
State provisions that are broader in scope are not part of the
federally authorized program and thus, are not federally enforceable.
2. Arkansas Requirements That Are Broader in Scope Than the Federal
Program
DEQ has adopted the Revisions to the Definition of Solid Waste
(DSW) Rule published on January 13, 2015 (80 FR 1694), as amended by
the DSW final rule published on May 30, 2018 (83 FR 24664) (2018 DSW
rule). However, Arkansas has retained certain provisions from the
federal 2015 DSW provisions that were vacated by the Court of Appeals
for the District of Columbia Circuit, Am. Petroleum Inst. v. EPA, 862
F.3d 50 (D.C. Cir. 2017) and Am. Petroleum Inst. v. EPA, 883F.3d 918
(D.C. Cir. 2018), and which have been removed from the federal
regulations by the 2018 DSW Rule. The Court vacated certain aspects of
the 2015 federal DSW rule and replaced them with provisions from the
2008 DSW rule, see 73 FR 64668 (October 30, 2008). Specifically, the
Court (1) vacated the federal 2015 verified recycler exclusion for
hazardous waste that is recycled off-site (except for certain
provisions) (40 CFR 261.4(a)(24)) and the associated provisions at 40
CFR 260.30(f) and 260.31(d); (2) reinstated the transfer-based
exclusion at 261.4(a)(24) and (25) from the 2008 rule to replace the
now vacated 2015 verified recycler exclusion; (3) vacated Factor 4 of
the 2015 definition of legitimate recycling in its entirety (40 CFR
260.43(a)(4)); and (4) at 40 CFR 260.43(b), reinstated the 2008 version
of Factor 4 at 40 CFR 260.43(c)(2) to replace the now-vacated 2015
version of Factor 4.
In the State's adoption of the 2018 DSW rule, Arkansas has (1)
retained the 2015 verified recycler exclusion by adopting an analog to
40 CFR 260.31(d), which addresses a variance from classifying as a
solid waste those secondary materials that are transferred for
reclamation under 40 CFR 261.4(a)(24); (2) replaced the federal
reference to ``any person'' in the introductory paragraph of 40 CFR
261.4(a)(24) with ``verified reclamation facility''; and (3) adopted
the vacated Factor 4 of the 2015 definition of legitimate recycling
(260.43(a)(4)), as well as the 2015 DSW provision at
261.4(a)(23)(ii)(E)) which requires that documentation of the
legitimacy determination must be a written description of how the
recycling meets all four factors in Sec. 260.43(a).
In order to determine whether the State of Arkansas regulations are
more stringent or broader in scope than the federal RCRA program, EPA
used the two-part test described in Section G.1. With respect to the
first test, Arkansas regulates the same size of the regulated community
and the same universe of hazardous secondary materials as the federal
RCRA program. With respect to the second test, EPA has determined that
the following State of Arkansas provisions from the 2015 federal DSW
rule are broader in scope: (1) APC&CE Rule No. 23 sections 260.31(d)
and the introductory paragraph of 261.4(a)(24) with respect to the
verified recycler exclusion and (2) APC&CE Rule No. 23 section
260.43(a)(4) and the reference to the four factors at section
261.4(a)(23)(ii)(E) with respect to Factor 4 definition of legitimate
recycling.
Due to the vacatur of certain 2015 federal DSW provisions and the
reinstatement of 2008 federal DSW provisions, EPA's regulations do not
include the provisions that were vacated by the Court \3\ Arkansas has
adopted selected vacated provisions, including the vacated 2015 DSW
Factor 4 in the definition of legitimate recycling of hazardous
secondary material and the verified recycler exclusion.\4\ As a result
of the federal vacatur, the Arkansas provisions at Rule No. 23 sections
260.31(d), 260.43(a)(4), the reference to ``four factors'' in
261.4(a)(23)(ii)(E) and the reference to ``verified reclamation
facility'' in the introductory paragraph of 261.4(a)(24) have no direct
analogs in the federal regulations. EPA's December 23, 2014, guidance
supports this conclusion. On page 6 of our December guidance, EPA
provides that, ``. . . if a state adopts a federal solid or hazardous
waste exclusion, but adds additional conditions that must be met for
the state exclusion to apply, those additional conditions would be
considered outside the scope of the federal program and would not be
part of the federally authorized program, although the entity would
still be subject to federal enforcement regarding the part of the state
regulations which track the federal conditions.'' Arkansas' program
effectively contains additional conditions that must be met for the
exclusion to apply. This makes the State's additional provisions
broader in scope and not part of the federally authorized program, see
40 CFR part 271.1(i)(2).
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\3\ EPA issued a final rule referred to as the Transfer Base
Exclusion reflecting the Court's ruling, see 83 FR 24664 (May 30,
2018).
\4\ The Federal Register citation for the ``2015 DSW rule'' is
80 FR 1694, January 13, 2015, and for the ``2008 DSW rule'' is 73 FR
64668, October 30, 2008.
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The DEQ provisions that are broader in scope than the federal
regulations are not part of the program being proposed to be authorized
by this proposed action. EPA cannot enforce requirements that are
broader in scope, although compliance with such provisions is required
by DEQ law. For the purposes of RCRA section 3009, the Agency has
determined that the broader in scope provisions are more protective/
stricter, thus being within the State's authority to maintain them as
part of the State's RCRA program. We make this determination due to the
fact that the broader in scope provisions in DEQ's verified recycler
exclusion require additional conditions to be met in order to qualify
for the exclusion when compared to the reinstated transfer-based
exclusion found in 83 FR 24664 (May 30, 2018).
3. Arkansas Requirements That Are More Stringent Than the Federal
Program
The Arkansas hazardous waste program that is proposed for
authorization contains several provisions which are more stringent than
the Federal RCRA program. The more stringent provisions will be
recognized as a part of the Federally-authorized program and will be
Federally enforceable. The specific more stringent provisions are noted
in the chart above and in the State's authorization application, and
include the following:
1. Arkansas' Rule No. 23 section 261.4(a)(24)(v)(C)(3) requires the
generator's certification statement to include the type and quantity of
hazardous secondary material in a shipment. The Federal rules do not
require this information to be included in the generator's
certification statement.
2. Arkansas is more stringent because the State requires annual
reporting rather than Federal biennial reporting at the following
citations:
a. Rule No. 23 section 261.6(c)(2)(iv) requires owners and
operators of facilities that recycle materials without storing them
before they are recycled to meet the annual reporting requirements at
Rule No. 23 section 265.75, rather than the federal biennial reporting
requirement at 40 CFR 265.75.
b. The introductory paragraph of Rule No. 23 section 262.41
requires that generators submit annual rather than biennial reports.
c. Rule No. 23 sections 264.75 and 265.75 require that an owner or
operator of treatment, storage or disposal facility
[[Page 31238]]
must submit annual rather than biennial reports.
3. Rule No. 23 section 264.191(a) restricts those engineers who can
inspect or certify a tank system's integrity to those registered in
Arkansas, and independent from the facility owner/operator. The Federal
requirements allow registration in any State.
4. Rule No. 23 section 262.19(b)-(d) subject very small quantity
generators to additional requirements not found in the Federal
regulations. The additional requirements include the following:
a. Very small quantity generators must manifest hazardous waste in
accordance with Rule 23, Section 262 Subsection B (Manifest
Requirements Applicable to Small and Large Quantity Generators).
(b) Very small quantity generators must keep hazardous waste
containers closed except when adding or removing waste.
(c) Very small quantity generators must keep hazardous waste
containers in good condition. If a hazardous waste container is not in
good condition, or if it begins to leak, the very small quantity
generator must immediately transfer the hazardous waste from this
container to a container that is in good condition, or immediately
manage the waste in some other way that complies with this requirement.
4. Arkansas Requirements That Are Broader in Scope Than the Federal
Program
In Rule 23, section 262.19(a) of the hazardous waste program that
is proposed for authorization, Arkansas requires all generators to use
a transporter that is permitted by the Arkansas Department of
Transportation for the transportation of hazardous waste. The Arkansas
provision is broader in scope because the Federal program does include
transporter permits. EPA cannot enforce State requirements that are
broader in scope, although compliance with such provisions is required
by DEQ law.
H. Who handles permits after the authorization takes effect?
The State of Arkansas will issue permits for all the provisions for
which it is authorized and will administer the permits it issues. The
EPA will continue to administer any RCRA hazardous waste permits or
portions of permits which we issued prior to the effective date of this
authorization. EPA will not issue any more new permits or new portions
of permits for the provisions listed in Table 1 in this document after
the effective date of this authorization. The EPA will continue to
implement and issue permits for HSWA requirements for which Arkansas is
not yet authorized.
I. How does this action affect Indian Country (18 U.S.C. 1151) in
Arkansas?
Arkansas is not authorized to carry out its Hazardous Waste Program
in Indian Country within the State. This authority remains with EPA.
Therefore, this action has no effect in Indian Country.
J. What is codification and is the EPA codifying Arkansas' hazardous
waste program as authorized in this rule?
Codification is the process of placing the State's statutes and
regulations that comprise the State's authorized hazardous waste
program into the CFR. We do this by referencing the authorized State
rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272,
subpart E for this authorization of Arkansas' program changes until a
later date. In this authorization application the EPA is not codifying
the rules documented in this Federal Register notice.
K. Administrative Requirements
The Office of Management and Budget (OMB) has exempted this action
(RCRA State Authorization) from the requirements of Executive Orders
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21,
2011). Therefore, this action is not subject to review by OMB. This
action proposes to authorize State requirements for the purpose of RCRA
3006, and imposes no additional requirements beyond those imposed by
State law. Accordingly, this action will not have a significant
economic impact on a substantial number of small entities under the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action
proposed to authorize preexisting requirements under State law and does
not impose any additional enforceable duty beyond that required by
State law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4). For the same reason, this
proposed action also does not significantly or uniquely affect the
communities of Tribal governments, as specified by Executive Order
13175 (65 FR 67249, November 9, 2000). This action will not have
substantial direct effects on the States, on the relationship between
the national government and the States, or on the distribution of power
and responsibilities among the various levels of government, as
specified in Executive Order 13132 (64 FR 43255, August 10, 1999),
because it merely proposes to authorize State requirements as part of
the State RCRA hazardous waste program without altering the
relationship or the distribution of power and responsibilities
established by RCRA.
This proposed action also is not subject to Executive Order 13045
(62 FR 19885, April 23, 1997), because it is not economically
significant and it does not make decisions based on environmental
health or safety risks. This proposed rule is not subject to Executive
Order 13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001))
because it is not a significant regulatory action under Executive Order
12866.
Under RCRA 3006(b), the EPA grants a State's application for
authorization as long as the State meets the criteria required by RCRA.
It would thus be inconsistent with applicable law for the EPA, when it
reviews a State authorization application; to require the use of any
particular voluntary consensus standard in place of another standard
that otherwise satisfies the requirements of RCRA. Thus, the
requirements of section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required
by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996),
in issuing this proposed rule, the EPA has taken the necessary steps to
eliminate drafting errors and ambiguity, minimize potential litigation,
and provide a clear legal standard for affected conduct. The EPA has
complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by
examining the takings implications of the rule in accordance with the
``Attorney General's Supplemental Guidelines for the Evaluation of Risk
and Avoidance of Unanticipated Takings'' issued under the Executive
Order. This proposed rule does not impose an information collection
burden under the provisions of the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.).
Executive Order 12898 (59 FR 7629, February 16, 1994) establishes
federal executive policy on environmental justice. Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission
by identifying and addressing, as appropriate, disproportionately high
and adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.
[[Page 31239]]
Because this rule proposed to authorize pre-existing State rules which
are at least equivalent to, and no less stringent than existing federal
requirements, and imposes no additional requirements beyond those
imposed by State law, and there are no anticipated significant adverse
human health or environmental effects, the proposed rule is not subject
to Executive Order 12898.
List of Subjects in 40 CFR Parts 271
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous waste, Hazardous waste
transportation, Indian lands, Intergovernmental relations, Penalties,
Reporting and recordkeeping requirements.
Authority: This action is issued under the authority of
sections 2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act
as amended 42 U.S.C. 6912(a), 6926, 6974(b).
Dated: June 4, 2021.
David Gray,
Acting Regional Administrator, Region 6.
[FR Doc. 2021-12238 Filed 6-10-21; 8:45 am]
BILLING CODE 6560-50-P
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</html>Indexed from Federal Register on June 11, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.