AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

This rule codifies in the regulations the prior approval of North Dakota's hazardous waste management program and incorporates by reference authorized provisions of the State's statutes and regulations. The Environmental Protection Agency (EPA) uses the regulations entitled, “Approved State Hazardous Waste Management Programs,” to provide notice of the authorization status of State programs, and to incorporate by reference those provisions of the State statutes and regulations that are authorized and that EPA will enforce under the Solid Waste Disposal Act, commonly referred to as the Resource Conservation and Recovery Act (RCRA). The EPA previously provided notices and opportunity for comments on the Agency's decisions to authorize the State of North Dakota program and the EPA is not now reopening the decisions, nor requesting comments, on the North Dakota authorization as previously published in the Federal Register documents specified in Section I.C. of this final rule document.

DATES:

This action is effective January 13, 2020. The Director of the Federal Register approves this incorporation by reference as of January 13, 2020.

ADDRESSES:

The documents that form the basis for this codification and associated publicly available materials are available electronically through https://www.regulations.gov (Docket ID No. EPA-EPA-RCRA-2019-0554). Although listed in the index, some of the information is not publicly available, e.g., Confidential Business Information or other information whose disclosure is restricted by statute. You can also view and copy the documents from 8:30 a.m. to 4 p.m. Monday through Friday at the following location: EPA Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129, phone number (303) 312-6667. Interested persons wanting to examine these documents should make an appointment with the office at least two days in advance.

FOR FURTHER INFORMATION CONTACT:

Moye Lin, RCRA State Liaison, Environmental Protection Specialist, Land, Chemicals, and Redevelopment Division, 8LCR-RC, EPA Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129; phone number (303) 312-6667; Email address: lin.moye@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Incorporation by Reference

A. What is codification?

Codification is the process of including the statutes and regulations that comprise the State's authorized hazardous waste management program into the Code of Federal Regulations (CFR). Section 3006(b) of RCRA, as amended, allows the EPA to authorize State hazardous waste management programs to operate in lieu of the Federal hazardous waste management regulatory program. The EPA codifies its authorization of State programs in 40 CFR part 272 and incorporates by reference State statutes and regulations that the EPA will enforce under sections 3007 and 3008 of RCRA, and any other applicable statutory provisions.

The incorporation by reference of State authorized programs in the CFR should substantially enhance the public's ability to discern the current status of the authorized State program and State requirements that can be federally enforced. This effort provides clear notice to the public of the scope of the authorized program in each State.

B. Why wasn't there a proposed rule before today's rule?

The EPA is publishing this rule to codify North Dakota's authorized hazardous waste management program without a prior proposal because we believe this action is not controversial. This rulemaking is in accordance with section 3006(b) of RCRA, the EPA has already evaluated the State's statutory and regulatory requirements and has determined that the State's program meets the statutory and regulatory requirements established by RCRA. The EPA previously provided notices and opportunity for comments on the Agency's decisions to authorize the North Dakota program. The EPA is not reopening the decisions, nor requesting new comments on the North Dakota authorizations, as previously published in the Federal Register documents specific in Section I.C of this final rule document. The previous authorizations form the basis for the codification addressed in this final rule.

C. What is the history of the authorization and codification of North Dakota's hazardous waste management program?

North Dakota initially received final authorization on October 5, 1984, effective October 19, 1984 (49 FR 39328), to implement its Base Hazardous Waste Management Program. We granted authorizations for changes to their programs on June 25, 1990 (55 FR 25836), effective August 24, 1990; May 5, 1992 (57 FR 19087), effective July 6, 1992; April 7, 1994 (59 FR 16566), effective June 6, 1994; January 19, 2000 (65 FR 2897), effective March 20, 2000; June 4, 2002 (67 FR 38418), effective April 22, 2002; September 26, 2005 (70 FR 56132), effective November 25, 2005; February 14, 2008 (73 FR 8610), effective April 14, 2008; October 30, 2018 (73 FR 54521), effective October 30, 2018; and December 19, 2018 (83 FR 65101), effective April 30, 2019.

The EPA incorporated by reference North Dakota's then authorized hazardous waste program effective April 14, 2008 (73 FR 8610), and October 30, 2018 (83 FR 54521). In this document, the EPA is revising Subpart JJ of 40 CFR part 272 to include the authorization revision action effective April 30, 2019 (83 FR 65101) described in this preamble.

D. What codification decisions have we made in this rule?

In this rule, the EPA is finalizing the Federal regulatory text that includes incorporation by reference of the authorized hazardous waste management program of the State of North Dakota. In accordance with the requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the North Dakota statutory and regulatory provisions described in the amendments to 40 CFR 272.1751 set forth below. The EPA has made, and will continue to make, these documents generally available electronically through https://www.regulations.gov and at the EPA Region 8 office (see the ADDRESSES section of this preamble for more information).

This rule codifies the EPA's authorization of North Dakota's base hazardous waste management program and its revisions to that program. The codification reflects the State program that was in effect at the time the EPA authorized the North Dakota hazardous waste management program addressed in the final rule published on December 19, 2018 (83 FR 65101). Due to unforeseen delays resulting from the lapse in appropriations, the EPA's final authorization concerning North Dakota's hazardous waste management program originally proposed December 19, 2018, with an effective date of March 15, 2019 (83 FR 65104, December 19, 2018), was delayed. Thus, the EPA granted authorization for the North Dakota program effective April 30, 2019 (84 FR 8260, March 7, 2019). The EPA is not requesting comments on its decisions published in the Federal Register actions concerning revisions to the authorized program in North Dakota. By codifying the authorized North Dakota program and by amending the CFR, the public will more easily be able to discern the status of the federally -approved requirements of the North Dakota program.

The EPA is incorporating by reference the EPA's approval of North Dakota's hazardous waste management program by amending Subpart JJ to 40 CFR part 272. The rule amends section 272.1751 and incorporates by reference North Dakota's authorized hazardous waste statutes and regulations. Section 272.1751 also references the demonstration of adequate enforcement authority, including procedural and enforcement provisions, which provide the legal basis for the State's implementation of the hazardous waste management program. In addition, section 272.1751 references the Memorandum of Agreement, the Attorney General's Statement, and the Program Description, which are evaluated as part of the approval process of the hazardous waste management program in accordance with Subtitle C of RCRA.

E. What is the effect of North Dakota's codification on enforcement?

The EPA retains the authority under statutory provisions, including but not limited to, RCRA sections 3007, 3008, 3013, and 7003, and other applicable statutory and regulatory provisions to undertake inspections and enforcement actions and to issue orders in all authorized states. With respect to enforcement actions, the EPA will rely on Federal sanctions, Federal inspection authorities, and Federal procedures rather than the State analogs to these provisions. Therefore, the EPA is not incorporating by reference North Dakota's inspection and enforcement authorities, nor are those authorities part of North Dakota's approved State program which operates in lieu of the Federal program. 40 CFR 272.1751(c)(2) lists the statutory and regulatory provisions which provide the legal basis for the State's implementation of the hazardous waste management program, as well as those procedural and enforcement authorities that are part of the State's approved program, but these are not incorporated by reference.

F. What State provisions are not part of the codification?

The public is reminded that some provisions of North Dakota's hazardous waste management program are not part of the federally authorized State program. These non-authorized provisions include:

(1) Provisions that are not part of the RCRA subtitle C program because they are “broader in scope” than RCRA subtitle C (see 40 CFR 271.1(i));

(2) Federal rules for which North Dakota is not authorized, but which have been incorporated into the State regulations because of the way the State adopted Federal regulations by reference;

(3) State procedural and enforcement authorities that are necessary to establish the ability of the State's program to enforce compliance, but which do not supplant the Federal statutory enforcement and procedural authorities.

State provisions that are “broader in scope” than the Federal program are not incorporated by reference in 40 CFR part 272. For reference and clarity, the EPA lists in 40 CFR 272.1751(c)(3) the North Dakota statutory provisions that are “broader in scope” than the Federal program, and which are not part of the authorized program being incorporated by reference. While “broader in scope” provisions are not part of the authorized program and cannot be enforced by the EPA, the State may enforce such provisions under State law.

North Dakota has adopted, but is not authorized for, the Federal rules published in the Federal Register on April 12, 1996 (61 FR 16290); October 22, 1998 (63 FR 56710), and January 8, 2010 (75 FR 1235). Therefore, these Federal amendments included in North Dakota's adoption by reference at section 33.1-24-06-16.5 of the North Dakota Administrative Code are not part of the State's authorized program and are not part of the incorporation by reference addressed by this Federal Register document.

G. What will be the effect of codification on Federal HSWA requirements?

With respect to any requirement(s) pursuant to HSWA for which the State has not yet been authorized, and which the EPA has identified as taking effect immediately in states with authorized hazardous waste management programs, the EPA will enforce those Federal HSWA standards until the State is authorized for those provisions.

The codification does not affect Federal HSWA requirements for which the State is not authorized. The EPA has authority to implement HSWA requirements in all states, including states with authorized hazardous waste management programs, until the states become authorized for such requirements or prohibitions, unless the EPA has identified the HSWA requirement(s) as an optional or as a less stringent requirement of the Federal program. A HSWA requirement or prohibition, unless identified by the EPA as optional or as less stringent, supersedes any less stringent or inconsistent State provision which may have been previously authorized by the EPA (50 FR 28702, July 15, 1985).

Some existing State requirements may be similar to the HSWA requirements implemented by the EPA. However, until the EPA authorizes those State requirements, the EPA enforces the HSWA requirements and not the State analogs.

II. Administrative Requirements

The Office of Management and Budget (OMB) has exempted this action from the requirements of Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). This action authorizes State requirements for the purpose of RCRA section 3006 and imposes no additional requirements beyond those imposed by State law. Therefore, this action is not subject to review by OMB. This action is not an Executive Order 13771 (82 FR 9339, February 3, 2017) regulatory action because actions such as today's final authorization of North Dakota's revised hazardous waste program under RCRA are exempted under Executive Order 12866. Accordingly, I certify that 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 authorizes pre-existing 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 (2 U.S.C. 1531-1538). For the same reason, this 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 authorizes 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 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 action 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 action, 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 action 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 action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). “Burden” is defined at 5 CFR 1320.3(b).

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. Because this rule authorizes 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 rule is not subject to Executive Order 12898.

The Congressional Review Act, 5 U.S.C. 801-808, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this document and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 272

• Environmental protection
• Hazardous materials transportation
• Hazardous waste
• Incorporation by reference
• Intergovernmental relations
• Water pollution control
• Water supply

For the reasons set forth in the preamble, under the authority at 42 U.S.C. 6912(a), 6926, and 6974(b), the EPA is amending 40 CFR part 272 as follows:

PART 272—APPROVED STATE HAZARDOUS WASTE MANAGEMENT PROGRAMS

1. The authority citation for part 272 continues to read as follows:

Authority: Secs. 2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).

2. Revise § 272.1751 to read as follows:

3. Appendix A to part 272 is amended by revising the listing for “North Dakota” to read as follows:

Appendix A to Part 272—State Requirements

North Dakota

(a) The statutory provisions include: North Dakota Century Code (NDCC), Volume 4A, 2017 Cumulative Supplement. Chapter 23.1-04 “Hazardous Waste Management,” Sections 23.1-04-08(1), (2), (5), and (7). Copies of the North Dakota statutes that are incorporated by reference are available from Matthew Bender & Company Inc., 701 E Water Street, Charlottesville, VA 22902-5389, phone number: (800) 833-9844.

(b) The regulatory provisions include: North Dakota Administrative Code (NDAC), Article 33.1-24, as revised January 1, 2019, except reserved provisions.

Chapter 33.1-24-01—General provisions: Sections 33.1-24-01-01 through 33.1-24-01-04, 33.1-24-01-05, except .2.k and .7.a; 33.1-24-01-06 through 33.1-24-01-09, 33.1-24-01-10, except .4.f; 33.1-24-01-11 through 33.1-24-01-14; 33.1-24-01-17 and 33.1-24-01-18; and 33.1-24-01-19, except .1.d.

Chapter 33.1-24-02—Identification and Listing of Hazardous Waste: Sections 33.1-24-02-01 through 33.1-24-02-03; 33.1-24-02-04, except .1.y; 33.1-24-02-05; 33.1-24-02-06, except .1.e; 33.1-24-02-07 through 33.1-24-02-10; 33.1-24-02-11, except the phrase “or a miniflash continuously closed cup tester, using the test method specified in American Society for Testing and Material D6450-99 (incorporated by reference in section 33.1-24-01-05)” in paragraph .1.a; 33.1-24-02-12 through 33.1-24-02-19; 33.1-24-02-25 through 33.1-24-02-27; 33.1-24-02-33 through 33.1-24-02-42; 33.1-24-02-50 through 33.1-24-02-70; 33.1-24-02-120 through 33.1-24-02-129; 33.1-24-02-170 through 33.1-24-02-175; 33.1-24-02-180 through 33.1-24-02-194; 33.1-24-02-200 through 33.1-24-02-209; and Appendices I, IV, and V.

Chapter 33.1-24-03—Standards for Generators: Sections 33.1-24-03-01, except .4; 33.1-24-03-02; 33.1-24-03-03.1 and .2; 33.1-24-03-03.3 except the phrase “and a transporter permit”; 33.1-24-03-04 through 33.1-24-03-24; 33.1-24-03-30; 33.1-24-03-40; 33.1-24-03-60 through 33.1-24-03-77; and Appendix I.

Chapter 33.1-24-04—Standards for Transporters: Sections 33.1-24-04-01, except .4 and Note following paragraph .3.b; 33.1-24-04-02.1, except the phrase “, a transporter permit, and a registration certificate”; 33.1-24-04-02.2, except the phrases “and a registration certificate, or a transporter permit,” in the first sentence, and “and issue a registration certificate” in the second sentence; and 33.1-24-04-03 through 33.1-24-04-08.

Chapter 33.1-24-05—Standards for Treatment, Storage, and Disposal Facilities and for the Management of Specific Hazardous Waste and Specific Types of Hazardous Waste Management Facilities: Sections 33.1-24-05-01; 33.1-24-05-02, except the second sentence; 33.1-24-05-03, except 33.1-24-05-03.1; 33.1-24-05-04 through 33.1-24-05-10; 33.1-24-05-15 through 33.1-24-05-20; 33.1-24-05-26 through 33.1-24-05-31; 33.1-24-05-37; 33.1-24-05-38, except .1.c and .4; 33.1-24-05-39 through 33.1-24-05-44; 33.1-24-05-47 through 33.1-24-05-69; 33.1-24-05-74 through 33.1-24-05-81; 33.1-24-05-89 through 33.1-24-05-98; 33.1-24-05-103 through 33.1-24-05-115; 33.1-24-05-118 through 33.1-24-05-128; 33.1-24-05-130 through 33.1-24-05-138; 33.1-24-05-144 through 33.1-24-05-151; 33.1-24-05-160 through 33.1-24-05-170; 33.1-24-05-176 through 33.1-24-05-188; 33.1-24-05-201 through 33.1-24-05-204; 33.1-24-05-230, except .2.c; 33.1-24-05-235, except .1/Table entries (6) and (7); 33.1-24-05-250 through 33.1-24-05-253; 33.1-24-05-256; 33.1-24-05-258; 33.1-24-05-265; 33.1-24-05-266; 33.1-24-05-270 through 33.1-24-05-281; 33.1-24-05-282, except .2; 33.1-24-05-283; 33.1-24-05-284.8 through .13; 33.1-24-05-285; 33.1-24-05-286; 33.1-24-05-288 through 33.1-24-05-290; 33.1-24-05-300 through 33.1-24-05-303; 33.1-24-05-400 through 33.1-24-05-406; 33.1-24-05-420 through 33.1-24-05-435; 33.1-24-05-450 through 33.1-24-05-460; 33.1-24-05-475 through 33.1-24-05-477; 33.1-24-05-501 through 33.1-24-05-506; 33.1-24-05-525 through 33.1-24-05-537; 33.1-24-05-550 through 33.1-24-05-555; 33.1-24-05-600; 33.1-24-05-610 through 33.1-24-05-612; 33.1-24-05-620 through 33.1-24-05-624; 33.1-24-05-630 through 33.1-24-05-632; 33.1-24-05-640 through 33.1-24-05-647; 33.1-24-05-650 through 33.1-24-05-667; 33.1-24-05-670 through 33.1-24-05-675; 33.1-24-05-680; 33.1-24-05-681; 33.1-24-05-701 through 33.1-24-05-705; 33.1-24-05-708 through 33.1-24-05-720; 33.1-24-05-730 through 33.1-24-05-740; 33.1-24-05-750 through 33.1-24-05-756; 33.1-24-05-760 through 33.1-24-05-762; 33.1-24-05-770, except .4; 33.1-24-05-780; 33.1-24-05-781; 33.1-24-05-800 through 33.1-24-05-802; 33.1-24-05-820 through 33.1-24-05-826; 33.1-24-05-850; 33.1-24-05-855 through 33.1-24-05-857; 33.1-24-05-860; 33.1-24-05-865; 33.1-24-05-866; 33.1-24-05-870; 33.1-24-05-875; 33.1-24-05-880; 33.1-24-05-885; 33.1-24-05-890; 33.1-24-05-895 through 33.1-24-05-900; 33.1-24-05-905; 33.1-24-05-910; 33.1-24-05-915; 33.1-24-05-916; 33.1-24-05-950; 33.1-24-05-951; 33.1-24-05-960; 33.1-24-05-961; 33.1-24-05-963 through 33.1-24-05-968; 33.1-24-05-980 through 33.1-24-05-986; 33.1-24-05-990 through 33.1-24-05-998; 33.1-24-05-1010 through 33.1-24-05-1016; 33.1-24-05-1020; 33.1-24-05-1031; 33.1-24-05-1040 through 33.1-24-05-1043; 33.1-24-05-1045 through 33.1-24-05-1047; 33.1-24-05-1060 through 33.1-24-05-1063; 33.1-24-05-1067; 33.1-24-05-1068; 33.1-24-05-1071; 33.1-24-05-1080 through 33.1-24-05-1087; 33.1-24-05-1100 through 33.1-24-05-1114; 33.1-24-05-1130 through 33.1-24-05-1138; and Appendices I through VIII, X through XIII, XV through XXIV, and XXVI through XXIX.

Chapter 33.1-24-06—Permits: Sections 33.1-24-06-01; 33.1-24-06-02, 33.1-24-06-03, except Note following paragraph .1.a.(2); 33.1-24-06-04; 33.1-24-06-05.2.c; 33.1-24-06-06.1; 33-24-06-07; 33.1-24-06-08; 33.1-24-06-10 through 33.1-24-06-13; 33.1-24-06-14, except .3.a.(4); 33.1-24-06-15 introductory paragraph through .1.a; 33.1-24-06-16.5 through .7; 33.1-24-06-17 through 33.1-24-06-20; 33.1-24-06-30 through 33.1-24-06-35; 33.1-24-06-45; 33.1-24-06-48; 33.1-24-06-52; 33.1-24-06-56; 33.1-24-06-57; 33.1-24-06-62; 33.1-24-06-65; 33.1-24-06-70; 33.1-24-06-73; 33.1-24-06-76; 33.1-24-06-80; 33.1-24-06-85; 33.1-24-06-100; and Appendix I to Section 33.1-24-06-14.

Chapter 33.1-24-07—Permitting Procedures: Sections 33.1-24-07-01; 33.1-24-07-02; and 33.1-24-07-03, except .4.

Copies of the North Dakota regulations that are incorporated by reference are available from North Dakota Legislative Counsel, Second Floor, State Capitol, 600 E Boulevard, Bismarck, North Dakota 58505, phone number: (701) 328-2916.