(a) Pursuant to section 3006(b) of RCRA, 42 U.S.C. 6926(b), North Dakota has final authorization for the following elements as submitted to the EPA in North Dakota's base program application for final authorization which was approved by the EPA effective on October 19, 1984. Subsequent program revision applications were approved effective on August 24, 1990, July 6, 1992, June 6, 1994, March 20, 2000, November 25, 2005, April 14, 2008, and April 30, 2019.

(b) The State of North Dakota has primary responsibility for enforcing its hazardous waste management program. However, the EPA retains the authority to exercise its inspection and enforcement authorities in accordance with sections 3007, 3008, 3013, 7003 of RCRA, 42 U.S.C. 6927, 6928, 6934, 6973, and any other applicable statutory and regulatory provisions, regardless of whether the State has taken its own actions, as well as in accordance with other statutory and regulatory provisions.

(c) State Statutes and Regulations:

(1) The North Dakota statutes and regulations cited in paragraph (c)(1)(i) of this section are incorporated by reference as part of the hazardous waste management program under Subtitle C of RCRA, 42 U.S.C. 6921 et seq. This incorporation by reference is approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain copies of the North Dakota provisions that are incorporated by reference in this paragraph from North Dakota Legislative Council, Second Floor, State Capitol, 600 E Boulevard Ave., Bismarck, North Dakota 58505, phone (701) 328-2916. You may inspect a copy at EPA Region 8, 1595 Wynkoop Street, Denver, Colorado, phone number (303) 312-6231, or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, email [email protected], or go to: www.archives.gov/federal-register/cfr/ibr-locations.

(i) “EPA-Approved North Dakota Statutory and Regulatory Requirements Applicable to the Hazardous Waste Management Program,” dated April 2019.

(ii) [Reserved]

(2) The EPA considered the following statutes and regulations in evaluating the State program but is not incorporating them herein for enforcement purposes:

(i) North Dakota Century Code (NDCC), Volume 13A, 2012 Replacement. North Dakota Constitution, Article XI: Sections 5 and 6.

(ii) NDCC, Volume 4A, 2017 Cumulative Supplement. Chapter 23.1-01 “Department of Environmental Quality,” Sections 23.1-01-04 and 23.1-01-11; Chapter 23.1-04 “Hazardous Waste Management,” Sections 23.1-04-01(1) through (4), 23.1-04-02 introductory paragraph, (2), (3) through (8), (12) through (15), and (17); 23.1-04-03; 23.1-04-05; 23.1-04-08(3), (4), and (6); 23.1-04-12 through 23.1-04-16; and Chapter 23.1-08 “Solid Waste Management and Land Protection,” Section 23.1-08-03.

(iii) NDCC, Volume 5, 2012 Replacement. Chapter 28-32 “Administrative Agencies Practice Act,” Sections 28-32-16 and 28-32-21.1.

(v) NDCC, Volume 6, 2012 Replacement. Chapter 32-40 “Environmental Law Enforcement,” Sections 32-40-03 through 32-40-11.

(vi) NDCC, Volume 9A, 2012 Replacement, as amended by the 2017 Pocket Supplement. Chapter 44-04 “Duties, records and meetings,” Sections 44-04-18 through 19.1.

(vii) North Dakota Administrative Code (NDAC), Article 33.1-24, Hazardous Waste Management, as amended effective January 1, 2019. Sections 33.1-24-01-15; 33.1-24-01-16; 33.1-24-06-05, except .2.c; 33.1-24-06-06.2; 33.1-24-06-09; 33.1-24-06-15.1.6 through .3.b; 33.1-24-07-03.4; 33.1-24-07-04 through 33.1-24-07-14; 33.1-24-07-25 through 33.1-24-07-27; and 33.1-24-07-40 through 33.1-24-07-54.

(3) The following statutory and regulatory provisions are broader in scope than the Federal program, are not part of the authorized program, are not incorporated by reference, and are not federally enforceable:

(i) NDCC, 2017 Cumulative Supplement, Volume 4A, Chapter 23.1-01 “Department of Environmental Quality,” Section 23.1-01-05.

(ii) North Dakota Century Code, Volume 4A, 2017 Cumulative Supplement. Chapter 23.1-04 “Hazardous Waste Management,” Sections 23.1-04-02(1); and 23.1-04-09 through 23.1-04-11.

(iii) North Dakota Administrative Code, Article 33.1-24, “Hazardous Waste Management,” as amended effective January 1, 2019, Sections 33.1-24-03-03.4; 33.1-24-04-02.3; 33.1-24-05-02 second sentence; 33.1-24-06-14.3.a(4); and 33.1-24-06-21.

(iv) North Dakota's hazardous waste regulations set forth additional transporter requirements including permit requirements at 33.1-24-04-02. The transporter permit requirements are broader in scope than the Federal program.

(4) Unauthorized State amendments and provisions:

(i) North Dakota has partially or fully adopted, but is not authorized to implement, the Federal rule published in the Federal Register on October 22, 1998, Standards Applicable to Owners and Operators of Closed and Closing Hazardous Waste Management Facilities: Post-Closure Permit Requirement and Closure Process; Final Rule (HSWA/non-HSWA). The EPA will continue to implement the Federal HSWA requirements for which North Dakota is not authorized until the State receives specific authorization for those requirements.

(ii) The Federal rules listed in the following table are not delegable to states. North Dakota has adopted these provisions and left the authority to the EPA for implementation and enforcement.

(iii) North Dakota has adopted the following Federal provisions from the Revisions to the Definition of Solid Waste Rule, published January 13, 2015, which have since been vacated by the U.S. Court of Appeals for the District of Columbia Circuit in Am. Petroleum Inst. v. EPA, 862 F.3d 50 (D.C. Cir. 2017) and Am. Petroleum Inst. v. EPA, No. 09-1038 (D.C. Cir. Mar. 6, 2018) (vacating both the Factor 4 Legitimacy Test and the Verified Recycler Exclusion aspects of the 2015 DSW Rule): One criterion in the determination of whether recycling is legitimate at 40 CFR 260.43(a)(4); the verified recycler exclusion, which allowed generators to send their hazardous secondary materials to certain reclaimers at 40 CFR 261.4(1)(24); and the associated provisions at 40 CFR 260.30(d) and 260.31(d), which address the criteria in the variance determination for exceptions to the classification of hazardous secondary materials as a solid waste.

(5) Memorandum of Agreement: The Memorandum of Agreement between the EPA Region 8 and the State of North Dakota, signed by the EPA Region 8 Regional Administrator on December 5, 2018 and the Director of the North Dakota Department of Environmental Quality on December 4, 2018, although not incorporated by reference, is referenced as part of the authorized hazardous waste management program under subtitle C of RCRA, 42 U.S.C. 6921 et seq.

(6) Statement of Legal Authority: “Attorney General's Statement: Hazardous Waste Management Program” signed by the Attorney General of North Dakota on June 8, 1984, and revisions, supplements, and addenda to that Statement dated February 22, 1989, February 11, 1984, October 13, 1999, April 23, 2004, August 19, 2004, December 5, 2016, and September 29, 2018, although not incorporated by reference, are referenced as part of the authorized hazardous waste management program under subtitle C of RCRA, 42 U.S.C. 6921 et seq.

(7) Program Description: The Program Description and any other materials submitted as supplements thereto, although not incorporated by reference, are referenced as part of the authorized hazardous waste management program under subtitle C of RCRA, 42 U.S.C. 6921 et seq.

[84 FR 67877, Dec. 12, 2019]