AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

This rule codifies in the regulations the prior approval of Oklahoma'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 notifications and opportunity for comments on the Agency's decisions to authorize the State of Oklahoma program and the EPA is not now reopening the decisions, nor requesting comments, on the Oklahoma authorizations as previously published in the Federal Register documents specified in Section I.C of this final rule document.

DATES:

This regulation is effective March 9, 2020. The Director of the Federal Register approves this incorporation by reference as of March 9, 2020 in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA-R06-RCRA-2019-0343. All documents in the docket are listed in www.regulations.gov index. 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. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available electronically through www.regulations.gov.

You can view and copy the documents that form the basis for this codification and associated publicly available materials from 8:30 a.m. to 4:00 p.m. Monday through Friday at the following location: EPA Region 6, 1201 Elm Street, Suite 500, Dallas, Texas, 75270, phone number (214) 665-8533. Interested persons wanting to examine these documents should make an appointment with the office.

FOR FURTHER INFORMATION CONTACT:

Alima Patterson, Region 6 Regional Authorization/Codification Coordinator, RCRA Permit Section (LCR-RP), Land, Chemicals and Redevelopment Division, EPA Region 6, 1201 Elm Street, Suite 500, Dallas, Texas 75270, phone number: (214) 665-8533, email address: patterson.alima@epa.gov.

SUPPLEMENTARY INFORMATION:

I. Incorporation by Reference

A. What is codification?

Codification is the process of placing a State's 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 this rule?

The EPA is publishing this rule to codify Oklahoma's authorized hazardous waste management program without a prior proposal because we believe this action is not controversial. The reason being that, in accordance with section 3006(b) of RCRA, EPA has already evaluated the State's regulatory and statutory requirements and has determined that the State's program meets the statutory and regulatory requirements established by RCRA. The EPA previously provided notifications and opportunity for comments on the Agency's decisions to authorize the Oklahoma program. The EPA is not now reopening the decisions, nor requesting new comments, on the Oklahoma authorizations as previously published in the Federal Register documents specified 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 Oklahoma's hazardous waste management program?

Oklahoma initially received final authorization on December 27, 1984, effective January 10, 1985, (49 FR 50362) to implement its Base Hazardous Waste Management program. We granted authorization for changes to their program on April 17, 1990 (55 FR 14280), effective June 18, 1990; September 26, 1990 (55 FR 39274), effective November 27, 1990; April 2, 1991 (56 FR 13411), effective June 3, 1991; September 20, 1991 (56 FR 47675), effective November 19, 1991; September 29, 1993 (58 FR 50854), effective November 29, 1993; October 7, 1994 (59 FR 51116), effective December 21, 1994; January 11, 1995 (60 FR 2699), effective April 27, 1995; October 9, 1996 (61 FR 52884), effective December 23, 1996, as corrected on March 14, 1997 (62 FR 12100), effective March 14, 1997; April 30, 1998 63 FR 23673), effective July 14, 1998; September 22, 1998 (63 FR 50528), effective November 23, 1998; December 9, 1998 (63 FR 67800), effective February 8, 1999; March 29, 2000 (65 FR 16528), effective May 30, 2000; May 10, 2000 (65 FR 29981), effective July 10, 2000; January 2, 2001 (66 FR 28), effective March 5, 2001; April 9, 2003 (68 FR 17308), effective June 9, 2003; February 4, 2009 (74 FR 5994), effective April 6, 2009; April 6, 2011 (76 FR 18927), effective June 6, 2011; March 15, 2012 (77 FR 15273), effective May 14, 2012; May 29, 2013 (78 FR 32161), effective July 29, 2013; August 29, 2014 (79 FR 51497), effective October 28, 2014; July 13, 2017 (82 FR 32249), effective September 11, 2017, and March 13, 2019 (84 FR 8988), effective March 13, 2019.

The EPA incorporated by reference Oklahoma's then authorized hazardous waste program effective December 13, 1993 (58 FR 52679), July 14, 1998 (63 FR 23673), October 25, 1999 (64 FR 46567), October 27, 2003 (68 FR 51488), August 27, 2010 (75 FR 36546), July 16, 2012 (77 FR 29231), October 9, 2012 (77 FR 46964), September 2, 2014 (79 FR 37226), and December 27, 2016 (81 FR 73347). In this document, the EPA is revising subpart LL of 40 CFR part 272 to include the recent authorization revision actions effective September 11, 2017 (82 FR 32249) and March 13, 2019 (84 FR 8988).

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

In this rule, the EPA is finalizing regulatory text that includes incorporation by reference of the authorized hazardous waste management program of the State of Oklahoma. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the Oklahoma rules described in the amendments to 40 CFR part 272 set forth in § 272.1851. The EPA has made, and will continue to make, these documents available electronically through http://www.regulations.gov and in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

The purpose of this Federal Register document is to codify Oklahoma's base hazardous waste management program and its revisions to that program. The EPA provided notifications and opportunity for comments on the Agency's decisions to authorize the Oklahoma program, and the EPA is not now reopening the decisions, nor requesting comments, on the Oklahoma authorizations as published in the Federal Register documents specified in Section I.C of this document.

This document incorporates by reference Oklahoma's hazardous waste statutes and regulations and clarifies which of these provisions are included in the authorized and federally enforceable program. By codifying Oklahoma's authorized program and by amending the CFR, the public will be more easily able to discern the status of federally approved requirements of the Oklahoma hazardous waste management program.

The EPA is incorporating by reference the Oklahoma authorized hazardous waste program in subpart LL of 40 CFR part 272. Section 272.1851 incorporates by reference Oklahoma's authorized hazardous waste statutes and regulations. Section 272.1851 also references the statutory and regulatory provisions (including procedural and enforcement provisions) which provide the legal basis for the State's implementation of the hazardous waste management program, the Memorandum of Agreement, the Attorney General's Statements and the Program Description, which are approved as part of the hazardous waste management program under Subtitle C of RCRA.

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

The EPA retains its 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 authorized States. With respect to these actions, the EPA will rely on Federal sanctions, Federal inspection authorities, and Federal procedures rather than any authorized State analogs to these provisions. Therefore, the EPA is not incorporating by reference such particular, approved Oklahoma procedural and enforcement authorities. Section 272.1851(c)(2) of 40 CFR 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 needs to be aware that some provisions of Oklahoma's hazardous waste management program are not part of the federally authorized State program. These 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 Oklahoma is not authorized, but which have been incorporated into the State regulations because of the way the State adopted Federal regulations by reference; and

(3) A Federal program which has since been terminated by the U.S. EPA.

State provisions that are “broader in scope” than the Federal program are not part of the RCRA authorized program and the EPA will not enforce them. Therefore, they are not incorporated by reference in 40 CFR part 272. For reference and clarity, 40 CFR 272.1851(c)(3) lists the Oklahoma regulatory provisions which are “broader in scope” than the Federal program and which are not part of the authorized program being incorporated by reference. “Broader in scope” provisions cannot be enforced by the EPA; the State, however, may enforce such provisions under State law.

Oklahoma has adopted but is not authorized for the Federal rules published in the Federal Register on August 3, 1987 (52 FR 28697); June 1, 1990 (55 FR 22520, 261.33(c) only); October 5, 1990 (55 FR 40834); February 1, 1991 (56 FR 3978); February 13, 1991 (56 FR 5910); April 2, 1991 (56 FR 13406); May 1, 1991 (56 FR 19951); December 23, 1991 (56 FR 66365); September 19, 1994 (59 FR 47980); May 12, 1995 (60 FR 25619); June 29, 1995 (60 FR 33912), April 9, 2002 (67 FR 17119); June 14, 2005 (70 FR 34538), August 1, 2005 (70 FR 44150); and January 13, 2015 (80 FR 1694). Therefore, these Federal amendments included in Oklahoma's adoption by reference at 252:205-3-2(b) through 252:205-3-2(m) of the Oklahoma 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. After review and analysis of the State's regulations, the EPA has notified the State to seek authorization for the unauthorized rules that the State has adopted and are documented in this Federal Register document. The EPA expects the State to include these rules as part of their next Program Revision Application package.

Oklahoma adopted and was authorized for (1) the Federal Performance Track program, as published in the Federal Register on April 22, 2004 (69 FR 21737), and amended on October 25, 2004 (69 FR 62217), and (2) the following provisions regarding Performance Track in the April 4, 2006 (71 FR 16862) Burden Reduction Initiative amendments: 40 CFR 260.10, 264.15, 264.174, 264.195, 264.1101, 265.15, 265.174, 265.195, 265.201, 265.1101, 270.42(l) and Item O.1 of Appendix I to 270.42. The Performance Track program has since been terminated by the U.S. EPA. Oklahoma is in the process of revising their regulations to adopt the removal of the Performance Track provisions from the Federal regulations, as addressed in the Generator Improvement rule (81 FR 85732; May 30, 2017).

With respect to any requirement pursuant to the Hazardous and Solid Waste Amendments of 1984 (HSWA) for which the State has not yet been authorized, the EPA will continue to enforce the Federal HSWA standards until the State is authorized for these provisions.

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

The EPA is not amending 40 CFR part 272 to include HSWA requirements and prohibitions that are implemented by the EPA. Section 3006(g) of RCRA provides that any HSWA requirement or prohibition (including implementing regulations) takes effect in authorized and non-authorized States at the same time. A HSWA requirement or prohibition supersedes any less stringent or inconsistent State provision which may have been previously authorized by the EPA (50 FR 28702, July 15, 1985). The EPA has the authority to implement HSWA requirements in all States, including authorized States, until the States become authorized for such requirement or prohibition. Authorized States are required to revise their programs to adopt the HSWA requirements and prohibitions, and then to seek authorization for those revisions pursuant to 40 CFR part 271.

Instead of amending the 40 CFR part 272 every time a new HSWA provision takes effect under the authority of RCRA section 3006(g), the EPA will wait until the State receives authorization for its analog to the new HSWA provision before amending the State's 40 CFR part 272 incorporation by reference. Until then, persons wanting to know whether a HSWA requirement or prohibition is in effect should refer to 40 CFR 271.1(j), as amended, which lists each such provision.

Some existing State requirements may be similar to the HSWA requirement implemented by the EPA. However, until the EPA authorizes those State requirements, the EPA can only enforce the HSWA requirements and not the State analogs. The EPA will not codify those State requirements until the State receives authorization for those requirements.

II. Statutory and Executive Order Reviews

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 incorporates by reference Oklahoma's authorized hazardous waste management regulations 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 this codification of Oklahoma'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 incorporates by reference 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 incorporates by reference existing authorized requirements as part of the State RCRA hazardous waste management 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 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 section 3006(b), 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 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. The requirements being codified are the result of Oklahoma's voluntary participation in the EPA's State program authorization process under RCRA Subtitle C. 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 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 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.). “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. Because this rule codifies 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 waste
• Hazardous waste transportation
• Incorporation by reference
• Intergovernmental relations
• Water pollution control
• Water supply

For the reasons set forth in the preamble, 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: Sections 2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act, as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).

2. Revise § 272.1851 to read as follows:

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

Appendix A to Part 272—State Requirements

Oklahoma

The statutory provisions include:

Oklahoma Hazardous Waste Management Act, as amended, 27A Oklahoma Statutes (O.S.) 2011 Main Volume and where indicated, amendments through August 26, 2016 as published in the 2017 Cumulative Annual Pocket Part, Sections 2-7-103, 2-7-108(A), 2-7-108(B)(1), 2-7-108(B)(3), 2-7-108(C), 2-7-110(B), 2-7-110(C), 2-7-111(A), 2-7-111(B), 2-7-111(C)(1), 2-7-111(C)(2)(a), 2-7-111(D), 2-7-111(E), 2-7-112, 2-7-116(B) through 2-7-116(F) (2017 Pocket Part), 2-7-116(I)(2) (2017 Pocket Part), 2-7-118 (2017 Pocket Part), 2-7-124, 2-7-125, 2-7-127, and 2-10-301(G), as published by Thomson Reuters, 610 Opperman Drive, Eagan, Minnesota 55123; Phone: 1-888-728-7677; website: http://legalsolutions.thomsonreuters.com.

The regulatory provisions include:

The Oklahoma Administrative Code (OAC), Title 252, Chapter 205, effective September 15, 2017 (2016 Edition, as amended by the 2017 Supplement): Subchapter 1, Sections 252:205-1-1(a), 252:205-1-1(c) introductory paragraph, 252:205-1-1(c)(1), 252:205-1-2 introductory paragraph, 252:205-1-2 “OHWMA”, 252:205-1-2 “Post-closure permit”, 252:205-1-3(c); Subchapter 3, Sections 252:205-3-1 introductory paragraph, 252:205-3-1(1), 252:205-3-2(a)(2), 252:205-3-2(b), 252:205-3-2(c) (2017 Supplement), 252:205-3-2(d) through (n), 252:205-3-4 through 252:205-3-6; Subchapter 5, Sections 252:205-5-1 (except 252:205-5-1(4)), 252:205-5-2 through 252:205-5-5; Subchapter 7, Sections 252:205-7-2, 252:205-7-4 (except the phrase “or in accordance with 252:205-15-1(d)”); Subchapter 9, Sections 252:205-9-1 through 252:205-9-4; Subchapter 11, Sections 252:205-11-1(a) (except the word “recycling”), 252:205-11-1(b) through (e), 252:205-11-2; and Subchapter 13, Sections 252:205-13-1(a) through (e), as published by the State's Office of Administrative Rules, Secretary of State, P.O. Box 53390, Oklahoma City, OK 73152-3390; Phone number: 405-521-4911; website: https://www.sos.ok.gov/​oar/​Default.aspx.