New Jersey: Authorization of State Hazardous Waste Program

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[FRL-6339-2]

New Jersey: Authorization of State Hazardous Waste Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: Pursuant to the Resource Conservation and Recovery Act, as

amended, 42 U.S.C. 6901 et seq. (``RCRA''), and the regulations

thereunder, the State of New Jersey (the ``State'') has applied for

final authorization of its hazardous waste program adopted in October

1996. The Environmental Protection Agency, Region 2 (``EPA'') has

reviewed the State's application and has made a decision, subject to

EPA's receipt and evaluation of public comment, that the State's

hazardous waste program satisfies all of the requirements necessary to

qualify for final authorization. Accordingly, EPA proposes to approve

and authorize the State's hazardous waste program.

DATES: Comments on this proposed rule must be received by the close of

business on June 10, 1999.

ADDRESSES: Written comments should be sent to Ms. Kathleen C. Callahan,

Director, Division of Environmental Planning and Protection, U.S. EPA,

Region II, 290 Broadway, New York, New York 10007-1866, (212) 637-3724.

Copies of the State's application for authorization are available

for inspection and copying as follows:

The New Jersey Department of Environmental Protection (``NJDEP'')

Address: Public Access Center, NJDEP, 401 East State Street, 1st

Floor, Trenton, NJ 08625

Hours: Monday through Friday (excluding holidays), 8:30AM-1:00PM,

2:00PM-4:30PM

Telephone: (609) 777-3373

EPA

Address: EPA's Library, 16th Floor, 290 Broadway, New York, NY

10007-1866

Hours: Monday through Thursday (excluding holidays), 9:00AM-4:30PM,

Friday (excluding holidays), 9:00AM-1:00PM

Telephone: (212) 637-3185

FOR FURTHER INFORMATION CONTACT: Call Elizabeth Butler at (212) 637-

4163.

Summary

I. State Authorization Under RCRA

), 8:30AM-1:00PM,

2:00PM-4:30PM

Telephone: (609) 777-3373

EPA

Address: EPA's Library, 16th Floor, 290 Broadway, New York, NY

10007-1866

Hours: Monday through Thursday (excluding holidays), 9:00AM-4:30PM,

Friday (excluding holidays), 9:00AM-1:00PM

Telephone: (212) 637-3185

FOR FURTHER INFORMATION CONTACT: Call Elizabeth Butler at (212) 637-

4163.

Summary

I. State Authorization Under RCRA

Pursuant to section 3006 of RCRA, 42 U.S.C. 6926, EPA may, upon

application by a state, authorize the applicant state's hazardous waste

program to operate in the state in lieu of the federal hazardous waste

program. The federal hazardous waste program (the ``Federal Program'')

is comprised of the regulations published in Title 40 of the Code of

Federal Regulations under the authority of RCRA. To qualify for final

authorization, a state's hazardous waste program must: (1) be

equivalent with the Federal Program; (2) be consistent with the Federal

Program; and (3) provide for adequate enforcement. RCRA section

3006(b), 42 U.S.C. 6926(b).

II. Background--History of RCRA Authorization Within the State

In 1985, the State was granted final authorization by EPA for the

RCRA base program, effective February 21, 1985 (50 FR 5260, 2/7/85). At

that time the base program covered the essential core of the Federal

Program as reflected in the initial enactment of RCRA prior to its

amendment by the Hazardous and Solid Waste Amendments of 1984. In 1988

and 1993 EPA authorized the State for a small number of additional

regulations (53 FR 30054, 8/10/88, and 58 FR 59370, 11/9/93).

On October 21, 1996, the State repealed its then existing hazardous

waste program, including the authorized provisions, and adopted a new

program (N.J.A.C. 7:26G-1.1 et seq., 28 New Jersey Register 4606, 10/

21/96)

zardous and Solid Waste Amendments of 1984. In 1988

and 1993 EPA authorized the State for a small number of additional

regulations (53 FR 30054, 8/10/88, and 58 FR 59370, 11/9/93).

On October 21, 1996, the State repealed its then existing hazardous

waste program, including the authorized provisions, and adopted a new

program (N.J.A.C. 7:26G-1.1 et seq., 28 New Jersey Register 4606, 10/

21/96). As part of this October 21, 1996 adoption, the State adopted,

with certain exceptions and modifications, 40 CFR parts 124, 260-266,

268 and 270 as set forth in the July 1, 1993 CFR, by incorporation by

reference, and designated these provisions N.J.A.C. 7:26G-4 through

N.J.A.C. 7:26G-13, inclusive. (28 New Jersey Register 4652-4668, 10/21/

96. N.J.A.C. 7:26G-4 through N.J.A.C. 7:26G-13 are referred to below as

the ``State Program''). Under cover of a letter dated January 13, 1999,

the State submitted an application meeting the requirements of 40 CFR

part 271, requesting authorization of the State Program.1

---------------------------------------------------------------------------

\1\ The State's redesignation of the Parts of the Federal

Program adopted by incorporation by reference on October 21, 1996,

and comprising the State Program, is as follows: N.J.A.C. 7:26G-4

(40 CFR part 260); N.J.A.C. 7:26G-5 (40 CFR part 261); N.J.A.C.

7:26G-6 (40 CFR part 262); N.J.A.C. 7:26G-7 (40 CFR part 263);

N.J.A.C. 7:26G-8 (40 CFR part 264); N.J.A.C. 7:26G-9 (40 CFR part

265); N.J.A.C. 7:26G-10 (40 CFR part 266); N.J.A.C. 7:26G-11 (40 CFR

part 268); N.J.A.C. 7:26G-12 (40 CFR part 270); and N.J.A.C. 7:26G-

13 (40 CFR part 124).

---------------------------------------------------------------------------

III. Decision

t 261); N.J.A.C.

7:26G-6 (40 CFR part 262); N.J.A.C. 7:26G-7 (40 CFR part 263);

N.J.A.C. 7:26G-8 (40 CFR part 264); N.J.A.C. 7:26G-9 (40 CFR part

265); N.J.A.C. 7:26G-10 (40 CFR part 266); N.J.A.C. 7:26G-11 (40 CFR

part 268); N.J.A.C. 7:26G-12 (40 CFR part 270); and N.J.A.C. 7:26G-

13 (40 CFR part 124).

---------------------------------------------------------------------------

III. Decision

A. Proposed Authorization

EPA has reviewed the State's application and has determined that

the State Program, with limited exceptions, possesses the requisite

equivalence and consistency with the Federal Program. Furthermore, the

State's application indicates that the State possesses the necessary

enforcement resources and is prepared to utilize those resources to

provide adequate enforcement of the State Program. Accordingly, EPA has

determined that the State Program qualifies for authorization and is

proposing today, subject to public comment, to authorize the State

Program, with the exceptions noted below.

In several instances the State has not incorporated a federal

regulation by reference and has not adopted a substitute regulation.

These instances are all clearly indicated in the State's October 21,

1996 adoption. None of these omitted federal regulations, however, are

required to be adopted for authorization, for various reasons

including, for example, that they are not applicable or delegable to

states. Thus, the State's failure to either adopt these particular

federal regulations, or to adopt substitute regulations, in no way

impairs the equivalence or consistency of the State Program.

EPA notes that its determination to authorize the State Program is

based on the information submitted to EPA by the State

reasons

including, for example, that they are not applicable or delegable to

states. Thus, the State's failure to either adopt these particular

federal regulations, or to adopt substitute regulations, in no way

impairs the equivalence or consistency of the State Program.

EPA notes that its determination to authorize the State Program is

based on the information submitted to EPA by the State. If, after

public comment, EPA authorizes the State Program, should the criteria

upon which EPA bases its approval subsequently change for any reason,

including without limitation changes in State laws, regulations or

administrative procedures which negate the equivalency or consistency

of one or more provisions of the State Program, or in any way limit the

State's ability to enforce or properly administer the State Program,

EPA may revisit its approval. In such event, EPA may exercise its

authority, provided in 40 CFR 271.22, to afford the State an

opportunity to correct any program deficiencies, or EPA may withdraw

authorization of the State Program, in whole or in part. Furthermore,

ultimate authorization of the State Program by EPA shall not be deemed

in any way as a waiver by EPA of any of its statutory rights under RCRA

including but not limited to sections 3004(v), 3005(c)(3), 3007, 3008,

3013, 3020(c) and 7003 (42 U.S.C. 6924(v), 6925(c)(3), 6927, 6928,

6934, 6939b(c) and 6973 ).

B. Exceptions

In N.J.A.C. 7:26G-8.1(a), the State incorporates by reference 40

CFR part 264 , the part of the Federal Program fixing the standards for

the owners and operators of hazardous waste treatment, storage and

disposal facilities. In the remaining subparagraphs of 7:26G-8.1 [(b)

through (h)] the State neither omits 40 CFR 264.101, 264.552 and

264.553, nor adopts these federal regulations with modifications. Thus,

the State has adopted 40 CFR 264.101, 264.552 and 264.553 by means of

incorporation by reference through 7:26G-8.1(a)

graphs of 40 CFR 270.73 with 7:26G-12.1(c)(16). Title 40 CFR

270.73 is the regulation in the Federal Program governing the loss of

interim status (RCRA section 3005(c)(2)(C) and (e)(2)(3), 42 U.S.C.

6925(c)(2)(C) and (e)(2)(3)). N.J.A.C. 7:26G-12.1(c)(16) provides that

the State may terminate interim status at its discretion, under a

variety of circumstances subject to a hearing, if requested. By

contrast, the federal loss of interim status regulations, excluded by

the State and replaced by 7:26G-12.1(c)(16), are non-discretionary and

operate automatically, without the opportunity for a hearing, if the

requirements cited in these federal provisions are not met. Since

7:26G-12.1(c)(16) is discretionary and lacks automatic application, it

is not equivalent to 40 CFR 270.73(c)-(g), is less stringent than 40

CFR 270.73(c)-(g), and therefore, cannot be authorized. Consequently,

EPA is not proposing to authorize the State for N.J.A.C. 7:26G-

12.1(c)(16), and 40 CFR 270.73(c)-(g) shall remain in full force and

effect.

IV. Regulatory Requirements

A. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (``UMRA''),

Public Law 104-4, establishes requirements for federal agencies to

assess the effects of certain regulatory actions on state, local, and

tribal governments, and upon the private sector. Under section 202 of

UMRA, EPA must prepare a budgetary impact statement to accompany any

proposed or final rule that includes a federal mandate that may result

in estimated costs to state or local governments in the aggregate, or

to the private sector, of $100 million or more. EPA has determined that

today's proposed rule does not include a federal mandate that may

result in estimated costs of $100 million or more to either state or

local governments in the aggregate, or to the private sector. This

federal action approves preexisting requirements of State law, and

imposes no new requirements

ents in the aggregate, or

to the private sector, of $100 million or more. EPA has determined that

today's proposed rule does not include a federal mandate that may

result in estimated costs of $100 million or more to either state or

local governments in the aggregate, or to the private sector. This

federal action approves preexisting requirements of State law, and

imposes no new requirements. Accordingly, no additional costs to State

or local governments, or to the private sector, result from this

action.

UMRA, section 203, further provides that before EPA establishes any

regulatory requirements that may significantly or uniquely affect small

governments it must develop a small government agency plan. The plan

must provide for notifying potentially affected small governments,

enabling officials of such governments to have meaningful and timely

input in the development of EPA regulatory proposals with significant

federal intergovernmental mandates, and informing, educating, and

advising small governments on compliance with the regulatory

requirements. Like section 202, the requirements of section 203 of UMRA

do not apply to today's proposed rule, since this rule contains no

regulatory requirements that might significantly or uniquely affect

small governments. Although small governments may be hazardous waste

generators, transporters, or own and/or operate treatment, storage or

disposal facilities, they are already subject to the regulatory

requirements under existing State law which are proposed to be

authorized by EPA, and thus, are not subject to any additional

significant or unique requirements by virtue of today's proposed

authorization of the State Program.

overnments may be hazardous waste

generators, transporters, or own and/or operate treatment, storage or

disposal facilities, they are already subject to the regulatory

requirements under existing State law which are proposed to be

authorized by EPA, and thus, are not subject to any additional

significant or unique requirements by virtue of today's proposed

authorization of the State Program.

B. Certification Under the Regulatory Flexibility Act

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.,

as amended by the Small Business Regulatory Enforcement Fairness Act of

1996), whenever an agency is required to publish a notice of rulemaking

for any proposed or final rule, it must prepare and make available for

public comment a regulatory flexibility analysis that describes the

effect of the rule on small entities (i.e., small businesses, small

organizations, and small governmental jurisdictions). This analysis is

unnecessary, however, if the agency's administrator certifies that the

rule will not have a significant economic impact on a substantial

number of small entities.

EPA has determined that today's proposed rule will not have a

significant economic impact on a substantial number of small entities.

Such small entities which are hazardous waste generators, transporters,

or which own and/or operate treatment, storage or disposal facilities

are already subject to the regulatory requirements of existing State

law which EPA proposes to authorize. EPA's proposed authorization

therefore, will not add any burdens, since authorization will result

only in an administrative change, rather than a change in the

substantive requirements imposed on these small entities.

Accordingly, pursuant to 5 U.S.C. 605(b), I hereby certify that

authorization of the State Program will not have a significant economic

impact on a substantial number of small entities. This authorization

approves regulatory requirements under existing State law to which

small entities are already subject

, rather than a change in the

substantive requirements imposed on these small entities.

Accordingly, pursuant to 5 U.S.C. 605(b), I hereby certify that

authorization of the State Program will not have a significant economic

impact on a substantial number of small entities. This authorization

approves regulatory requirements under existing State law to which

small entities are already subject. It does not impose any new burdens

on small entities. This rule, therefore, does not require a regulatory

flexibility analysis.

C. Paperwork Reduction Act

Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., federal

agencies must consider the paperwork burden imposed by any information

request contained in a proposed or final rule. Authorization of the

State Program will not impose any additional information requirements

upon the regulated community.

D. National Technology Transfer and Advancement Act

The National Technology Transfer and Advancement Act of 1995

(``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 272 note,

Utilization of Consensus Technical Standards by Federal Agencies)

directs all federal agencies to use voluntary consensus standards in

its regulatory activities unless to do so would be inconsistent with

applicable law or otherwise impractical. Voluntary consensus standards

are technical standards (e.g., materials specifications, test methods,

sampling procedures, and business practices) that are developed or

adopted by voluntary consensus standards bodies. The NTTAA directs

federal agencies to provide Congress, through the Office of Management

and Budget, with an explanation in any instance where they decide not

to use available and applicable voluntary consensus standards.

Authorization of the State Program does not involve technical

standards. Therefore, EPA did not consider the use of any voluntary

consensus standards.

E

s standards bodies. The NTTAA directs

federal agencies to provide Congress, through the Office of Management

and Budget, with an explanation in any instance where they decide not

to use available and applicable voluntary consensus standards.

Authorization of the State Program does not involve technical

standards. Therefore, EPA did not consider the use of any voluntary

consensus standards.

E. Compliance With Executive Order 12866

The Office of Management and Budget has exempted this proposed rule

from the requirements of section 6 of E.O. 12866.

F. Compliance With Executive Order 12875

E.O. 12875 is intended to develop an effective process to permit

elected officials and other representatives of state or local

governments to provide meaningful input in the development of

regulatory proposals containing significant unfunded mandates. Since

today's rule proposes authorization of preexisting requirements of

State law, no new unfunded mandates result from this action. (See also

the discussion under IV.A, above, Unfunded Mandates Reform Act).

G. Compliance With Executive Order 13045

E.O.13045, Protection of Children from Environmental Health Risks

and Safety Risks, applies only to federal rules that are ``economically

significant'' as defined under Executive Order 12866 (i.e., a rule

``that has an annual effect on the economy of $100 million or more or

would adversely affect in a material way the economy, a sector of the

economy, productivity, competition , jobs, the environment, public

health or safety, or State, local, or tribal governments or

communities'', E.O. 13045, 62 FR 19885, 4/23/97 ). EPA has determined

that the authorization of the State Program will not have a significant

effect on the economy within the meaning of E.O. 12866, since today's

rule proposes authorization of preexisting requirements of State law,

and imposes no new requirements. (See also IV.A and F above).

Accordingly, E.O. 13045 is inapplicable to today's proposed rule.

E.O. 13045, 62 FR 19885, 4/23/97 ). EPA has determined

that the authorization of the State Program will not have a significant

effect on the economy within the meaning of E.O. 12866, since today's

rule proposes authorization of preexisting requirements of State law,

and imposes no new requirements. (See also IV.A and F above).

Accordingly, E.O. 13045 is inapplicable to today's proposed rule.

Authority: This document is issued under the authority of

sections 2002(a), 3006 and 7004(b) of RCRA, 42 U.S.C. 6912(a), 6926,

6974(b).

Dated: April 19, 1999.

William J. Muszynski,

Acting Regional Administrator, Region 2.

[FR Doc. 99-11710 Filed 5-10-99; 8:45 am]

BILLING CODE 6560-50-P