North Dakota; Final Authorization of State Hazardous Waste Management Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[FRL-4860-2]

North Dakota; Final Authorization of State Hazardous Waste

Management Program

AGENCY: Environmental Protection Agency.

Action: Immediate final rule.

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SUMMARY: The State of North Dakota has applied for final authorization

of revisions to its hazardous waste program under the Resource

Conservation and Recovery Act (RCRA). The Environmental Protection

Agency (EPA) has reviewed North Dakota's application and has made a

decision, subject to public review and comment, that North Dakota's

hazardous waste program revision satisfies all of the requirements

necessary to qualify for final authorization. Thus, EPA intends to

approve North Dakota's hazardous waste program revisions. North

Dakota's application for program revision is available for public

review and comment.

DATES: Final authorization for North Dakota shall be effective on June

6, 1994 unless EPA publishes a prior Federal Register action

withdrawing this immediate final rule. All comments on North Dakota's

program revision application must be received by the close of business

by May 9, 1994.

ADDRESSES: Copies of North Dakota's program revision application are

available during regular business hours at the following addresses for

inspection and copying: Division of Waste Management, Department of

Health and Consolidated Laboratories, 1200 Missouri Avenue, Bismarck,

North Dakota 58502-5520 and US EPA Region VIII Library, 999 18th

Street, suite 144, Denver, Colorado 80204-2466. Written comments should

be sent to: Marcella DeVargas (HWM-WM), U.S. Environmental Protection

Agency, 999 18th Street, suite 500, Denver, Colorado 80202-2466, Phone

303/293-1670.

FOR FURTHER INFORMATION CONTACT: Marcella DeVargas, Waste Management

Branch, U.S. EPA, 999 18th Street, suite 500, Denver, Colorado 80202-

2466, Phone: 303/293-1670.

SUPPLEMENTARY INFORMATION:

A. Background

States with final authorization under section 3006(b) of the

Resource Conservation and Recovery Act (``RCRA'' or the ``the Act''),

42 U.S.C. 6929 (b), have a continuing obligation to maintain a

hazardous waste program that is equivalent to, consistent with, and no

less stringent than the Federal hazardous waste program.

Revisions to State hazardous waste programs are necessary when

Federal or State statutory or regulatory authority is modified or when

certain other changes occur. Most commonly, State program revisions are

necessitated by changes to EPA's regulations in 40 CFR parts 124, 260-

268 and 270. Modification to the Federal program, due to statutory and

regulatory changes, requires subsequent modifications to the State

authorized program. Until the State is authorized for such

modifications, EPA is responsible for implementing and enforcing the

modification in the State. Further, if the State law which forms the

basis of the federally authorized State program is amended, the State

must promptly seek revision authorization for those provisions. Until

the amendments to State law are authorized by EPA, the regulated

community must ensure compliance with both the federally authorized

State program and the non-authorized Federal program. The regulated

community may also need to comply with current State laws in the

situation where State law has been amended after Federal authorization

has been granted.

B. North Dakota

North Dakota initially received final authorization in October

1984. North Dakota received authorization for revisions to its program

on August 24, 1990. On February 23, 1994, North Dakota submitted a

final program revision application for additional program approvals.

Today, North Dakota is seeking approval of its program revision in

accordance with 40 CFR 271.21(b)(3).

In the previous revision authorization published on August 24,

1990, EPA included authorization of the direct action against insurers,

HSWA section 3004(t) provision to North Dakota. It was later determined

this provision is not delegable. Therefore, EPA is clarifying with this

notice that the direct action against insurers to North Dakota is

withdrawn. The Federal cause of action provided by RCRA 3004(t) remains

in effect in authorized states. The State law equivalent to 3004(t)

operates separately from the Federal law and, in this situation, the

North Dakota law which provides for a direct cause of action against

insurers operates as an additional authority to the Federal authority.

EPA has reviewed North Dakota's application, and has made an

immediate final decision that North Dakota's hazardous waste program

revision satisfies all of the requirements necessary to qualify for

final authorization. Consequently, EPA intends to grant final

authorization for the additional program modifications to North Dakota.

The public may submit written comments on EPA's immediate final

decision up until May 9, 1994. Copies of North Dakota's application for

program revision are available for inspection and copying at the

locations indicated in the Addresses section of this notice.

Approval of North Dakota's program revision shall become effective

in 60 days unless an adverse comment pertaining to the State's revision

discussed in this notice is received by the end of the comment period.

If an adverse comment is received EPA will publish either: (1) A

withdrawal of the immediate final decision; or (2) a notice containing

a response to comments which either affirms that the immediate final

decision takes effect or reverses the decision.

EPA's comments on the draft application were addressed in the final

application. Thus, the North Dakota program is only granted final

authorization for those provisions specifically listed in Table 1.

North Dakota has not requested authorization to operate its

hazardous waste program, as revised, in ``Indian Country'' as defined

in 18 U.S.C. 1151. Accordingly, EPA's decision to grant North Dakota

final hazardous waste authorization, as revised, does not extend to

``Indian Country''. The Environmental Protection Agency retains all

hazardous waste authority under RCRA which applies to Indian Country in

North Dakota.

Today, North Dakota is seeking approval of its program revision in

accordance with 40 CFR 271.21(b)(3). Specific provisions which are

included in the North Dakota program authorization revision sought

today are listed in Table 1 below.

Table 1

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HSWA or FR reference State equivalent\1\

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1. Availability of Information, 3006(f), 11/8/84....... 33-24-02-16, NDCC 28-32-21.1, MOA.

2. Burning of Waste Rule and Used Oil Fuel in Boilers 33-24-02-03, 33-24-02-05, 33-24-02-06, 33-24-05-144, 33-

and Industrial Furnaces, 50 FR 49164, 11/29/85, 24-05-210, 33-24-05-211, 33-24-05-212, 33-24-05-213,

amended on 4/13/87, 52 FR 1/18/19. 33-24-05-214, 33-24-05-215, 33-24-05-220, 33-24-05-

221, 33-24-05-222, 33-24-05-223, 33-24-05-224.

3. HSWA Codification Rule 2, 52 FR 45788, 12/1/87...... 33-24-06-17, 33-24-05-57, 33-24-05-58, 33-25-01-06, 33-

25-01-11, 33-24-06-16, 33-24-06-18, 33-24-06-01.

4. Hazardous Waste Miscellaneous Units, 52 FR 46946, 12/ 33-24-01-04, 33-24-05-01, 33-24-05-06, 33-24-05-09, 33-

10/87. 24-05-40, 33-24-05-47, 33-24-05-60, 33-24-05-61, 33-24-

05-63, 33-24-05-66, 33-24-05-67, 33-24-05-76, 33-24-05-

79, 33-24-05-300, 33-24-05-301, 33-24-05-302, 33-24-05-

303, 33-24-06-17.

5. Technical Corrections; Identification and Listing of 33-24302-18, 33-24-02.

Hazardous Waste, 53 FR 13382, 4/22/88.

6. Identification and Listing of Hazardous Waste; 33-24-02-05.

Technical Corrections, 53 FR 27162, 7/19/88.

7. Farmer Exemptions; Technical Corrections, 53 FR 33-24-03-01, 33-24-05-01, 33-24-06-16, 33-24-05-250, 33-

27164, 7/19/88. 24-06-01.

8. Identification and Listing of Hazardous Waste; 3-24-01-04.

Treatability Studies Sample Exemption, 53 FR 27290, 7/

19/88.

9. Land Disposal Restrictions for First Third Scheduled 33-24-05-04, 33-24-05-40, 33-24-06-16, 33-24-05-201, 33-

Wastes, 53 FR 31138, 8/17/89; Amended 2/27/89, 54 FR 24-05-250, 33-24-05-253, 33-24-05-254, 33-24-05-255,

8264. 33-24-05-256, 33-24-05-257, 33-24-05-270, 33-24-05-

271, 33-24-05-272, 33-24-05-273, 33-24-05-280, 33-24-

05-281, 33-24-05-282, 33-24-05-283, 33-24-05-284, 33-

24-05-290.

10. Hazardous Waste Management System; Standards for 33-24-01-04, 33-24-05-63, 33-24-05-103, 33-24-05-106,

Hazardous Waste Storage and Treatment Tank Systems, 53 33-24-06-16, 33-24-01-04.

FR 34079, 9/2/88.

11. Identification and Listing of Hazardous Waste; and 33-24-02-04, 33-24-02-17, 33-24-02 Appendix IV.

Designation, Reportable Quantities, and Notification,

53 FR 35412, 9/13/88.

12. Statistical Methods for Evaluating Ground-Water 33-24-05-48, 33-24-05-49, 33-24-05-54, 33-24-05-55, 33-

Monitoring Data from Hazardous Waste Facilities, 53 FR 24-05-56.

39720, 10/11/88.

13. Hazardous Waste Miscellaneous Units; Standards 33-24-06-17

Applicable to Owners and Operators, 54 FR 615, 1/9/89.

14. Amendment to Requirements for Hazardous Waste 33-24-06-19.

Incinerator Permits, 54 FR 4286, 1/30/89.

15. Land Disposal Restrictions for Second Third 33-24-05-274, 33-24-05-281, 33-24-05-282, 33-24-05-283.

Scheduled Wastes, 54 FR 26594, 6/23/89.

16. Mining Waste Exclusion 1, 54 FR 36592, 9/1/89...... 33-24-02-03, 33-24-02-04.

17. Testing and Monitoring Activities, 54 FR 40260, 9/ 33-24-01-05, 33-24-02 Appendix III.

29/89.

18. Reportable Quantity Adjustment Methyl Bromide 33-24-02-17, 33-24-02 Appendices III and IV.

Production Wastes, 54 FR 41402, 10/6/89.

19. Reportable Quantity Adjustment, 54 FR 50968, 12/11/ 33-24-02-16, 33-24-02 Appendices IV and V.

89.

20. Changes to Part 124, 48 FR 14146, 1/1/83; 48 FR 33-24-07-02, 33-24-07-03, 33-24-07-04, 33-24-07-06, 33-

30113, 6/30/83; 53 FR 28118, 7/26/88; 53 FR 37396, 9/ 24-07-08.

26/88; 54 FR 246, 1/4/89.

21. Mining Waste Exclusion II, 55 FR 2322, 1/23/90..... 33-24-01-04, 33-24-03-07.

22. Testing and Monitoring Activities; Technical 33-24-01-05, 33-24-02 Appendix III--Tables 2 and 3.

Corrections, 55 FR 8948, 3/9/90.

23. Toxicity Characteristic Revisions, 55 FR 11798, 3/ 33-24-02-04, 33-24-02-14, 33-24-02-15, 33-24-02

29/90, Amended 6/29/90 at 55 FR 26986. Appendix II, 33-24-05-177, 33-24-06-16.

24. Criteria for Listing Toxic Wastes; Technical 33-24-02-09.

Amendment, 55 FR 18726, 5/4/90.

25. HSWA Codification Rule, Double Liners; Correction, 33-24-05-116, 33-24-05-177.

55 FR 19262, 5/9/90.

26. Organic Air Emission Standards for Process Vents 33-24-01-05, 33-24-02-06, 33-24-05-04, 33-24-05-06, 33-

and Equipment Leaks, 55 FR 25454, 6/21/90. 24-05-40, 33-24-05-44, 33-24-05-400, 33-24-05-401, 33-

24-05-402, 33-24-05-403, 33-24-05-404, 33-24-05-405,

33-24-05-406, 33-24-02-407 to 419, 33-24-05-420, 33-24-

05-421, 33-24-05-422, 33-24-05-423, 33-24-05-424, 33-

24-05-425, 33-24-05-426, 33-24-05-427, 33-24-05-428,

33-24-05-429, 33-24-05-430, 33-24-05-431, 33-24-05-

432, 33-24-05-433, 33-24-05-434, 33-24-05-435, 33-24-

05-436 to 474, 33-24-06-16, 33-24-05-17.

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\1\References are to North Dakota Century Code, Hazardous Waste Management, Section 6 North Dakota Constitution,

NDAC Practice and Procedure.

C. Decision

I conclude that North Dakota's application for program revision

meets all of the statutory and regulatory requirements established by

RCRA. Accordingly, North Dakota is granted final authorization to

operate its hazardous waste program as revised.

North Dakota now has responsibility for permitting treatment,

storage, and disposal facilities within its borders and carrying out

other aspects of the RCRA program, subject to the limitation of its

revised program application and previously approved authorities. North

Dakota also has primary enforcement responsibilities, although 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 State of North Dakota will submit a draft application for

Non-HSWA cluster 6 and HSWA cluster 2 by June 30, 1994.

Compliance With Executive Order 12866

The Office of Management and Budget has exempted this rule from the

requirements of section 6 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

North Dakota's program, thereby eliminating duplicative requirements

for handlers of hazardous waste in the State. It 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 notice 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: March 29, 1994.

William P. Yellowtail,

Regional Administrator.

[FR Doc. 94-8357 Filed 4-6-94; 8:45 am]

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