[Federal Register Volume 78, Number 140 (Monday, July 22, 2013)]
[Rules and Regulations]
[Pages 43810-43817]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-17566]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[EPA-R07-RCRA-2013-0447; FRL-9833-7]
State of Kansas; Authorization of State Hazardous Waste
Management Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Immediate final rule.
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SUMMARY: Kansas has applied to EPA for Final authorization of the
changes to its hazardous waste program under the Resource Conservation
and Recovery Act (RCRA). EPA has determined that these changes satisfy
all requirements needed to qualify for Final authorization, and is
authorizing the State's changes through this immediate final action.
EPA is publishing this rule to authorize the changes without a prior
proposal because EPA believes this action is not controversial and does
not expect comments that oppose it. Unless EPA receives written
comments that oppose this authorization during the comment period, the
decision to authorize Kansas' changes to its hazardous waste program
will take effect.
DATES: This regulation is effective September 20, 2013, unless EPA
receives adverse written comment by the close of business August 21,
2013. If EPA receives such comments, it will publish a timely
withdrawal of this immediate final rule in the Federal Register
informing the public that this rule will not take effect.
ADDRESSES: Submit your comments by one of the following methods:
1. Federal eRulemaking Portal: http://www.regulations.gov. Follow
the on-line instructions for submitting comments.
2. Email: [email protected].
3. Mail: Lisa Haugen, Environmental Protection Agency, Region 7,
Enforcement Coordination Office, 11201 Renner Boulevard, Lenexa, Kansas
66219.
4. Hand Delivery or Courier: Deliver your comments to Lisa Haugen,
Environmental Protection Agency, Region 7, Enforcement Coordination
Office, 11201 Renner Boulevard, Lenexa, Kansas 66219. Such deliveries
are only accepted during the Regional Office's normal hours of
operation of Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding
legal holidays.
Instructions: Direct your comments to Docket ID No. EPA-R07-RCRA-
2013-0447. EPA's policy is that all comments received will be included
in the public docket without change, including personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov, or email. The Federal http://www.regulations.gov
Web site is an ``anonymous access'' system, which means the EPA will
not know your identity or contact information unless you provide it in
the body of your comment. If you send an email comment directly to EPA
without going through http://www.regulations.gov, your email address
will be automatically captured and included as part of the comment that
is placed in the public docket and made available on the Internet. If
you submit an electronic comment, the EPA recommends that you include
your name and other contact information in the body of your comment and
with any disk or CD-ROM you submit. If EPA cannot read your comment due
to technical difficulties and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters, any form of encryption, and be free of
any defects or viruses. (For additional information about the EPA's
public docket, visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm).
You can view and copy the documents that form the basis for this
authorization and codification and associated publicly available
materials from 8:00 a.m. to 4:00 p.m. Monday through Friday at the
following location: EPA, Region 7, 11201 Renner Boulevard, Lenexa,
Kansas 66219, phone number: (913) 551-7877. Interested persons wanting
to examine these documents should make an appointment with the office
at least 24 hours in advance.
FOR FURTHER INFORMATION CONTACT: Lisa Haugen, Region 7, Enforcement
Coordination Office, 11201 Renner Boulevard, Lenexa, Kansas 66219,
Phone number: (913) 551-7877, and Email address: [email protected].
SUPPLEMENTARY INFORMATION:
Authorization of State-Initiated Changes
A. Why are revisions to State programs necessary?
States which have received Final authorization from the EPA under
RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous
waste program that is equivalent to, consistent with, and no less
stringent than the Federal hazardous waste program. As the Federal
program changes, the States must change their programs and ask the EPA
to authorize the changes. Changes to State hazardous waste programs may
be necessary when Federal or State statutory or regulatory authority is
modified or when certain other changes occur. Most commonly, States
must change their programs because of changes to EPA's regulations in
40 Code of Federal Regulations (CFR) parts 124, 260 through 268, 270,
273 and 279. States can also initiate their own changes to their
hazardous waste program and these changes must then be authorized.
[[Page 43811]]
B. What decisions have we made in this rule?
EPA concludes that Kansas' application to revise its authorized
program meets all of the statutory and regulatory requirements
established by RCRA. Therefore, EPA grants Kansas final authorization
to operate its hazardous waste program with the changes described in
the authorization application. Kansas has responsibility for permitting
Treatment, Storage, and Disposal Facilities (TSDFs) within its borders,
except in Indian Country, and for carrying out the aspects of the RCRA
program described in its revised program application, subject to the
limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA).
New Federal requirements and prohibitions imposed by Federal
regulations that EPA promulgates under the authority of HSWA take
effect in authorized States before they are authorized for the
requirements. Thus, EPA will implement those requirements and
prohibitions in Kansas, including issuing permits, until Kansas is
granted authorization to do so.
C. What is the effect of this authorization decision?
The effect of this decision is that a facility in Kansas subject to
RCRA will now have to comply with the authorized State requirements
instead of the equivalent Federal requirements in order to comply with
RCRA. Kansas has enforcement responsibilities under its State hazardous
waste program for violations of such program, but EPA retains its
authority under RCRA sections 3007, 3008, 3013, and 7003, which
include, among others, authority to: (1) Do inspections, and require
monitoring, tests, analyses, or reports; and (2) Enforce RCRA
requirements and suspend or revoke permits. This action does not impose
additional requirements on the regulated community because the statutes
and regulations for which Kansas is being authorized by this direct
action are already effective and are not changed by this action.
D. Why wasn't there a proposed rule before this rule?
EPA did not publish a proposal before this rule because we view
this as a routine program change and do not expect comments that oppose
this approval. We are providing an opportunity for public comment now.
In addition to this rule, in the Proposed Rules section of this Federal
Register, we are publishing a separate document that proposes to
authorize the State program changes.
E. What happens if EPA receives comments that oppose this action?
If EPA receives comments that oppose this authorization, we will
withdraw this rule by publishing a document in the Federal Register
before the rule becomes effective. EPA will base any further decision
on the authorization of the State program changes on the proposal
mentioned in the previous paragraph. We will then address all public
comments in a later final rule. You may not have another opportunity to
comment. If you want to comment on this authorization, you must do so
at this time. If we receive comments that oppose only the authorization
of a particular change to the State hazardous waste program, we may
withdraw only that part of this rule, but the authorization of the
program changes that the comments do not oppose will become effective
on the date specified above. The Federal Register withdrawal document
will specify which part of the authorization will become effective and
which part is being withdrawn.
F. For what has Kansas previously been authorized?
Kansas initially received final authorization on October 17, 1985
(50 FR 40377), to implement its Base Hazardous Waste Management
program. Kansas received authorization for revisions to its program on
April 24, 1990 (55 FR 17273), effective June 25, 1990; June 14, 1994,
(59 FR 30528), effective August 15, 1994; July 29, 1996 (61 FR 39353),
effective September 27, 1996.
G. What changes are we authorizing with this action?
The State has made amendments to the provisions listed in the table
which follows. These State-initiated changes satisfy the requirements
of 40 CFR 271.21(a). These amendments clarify the State's regulations
and make the State's regulations more internally consistent. The
State's laws and regulations, amended by these provisions, provide
authority which remains equivalent to, no less stringent than, and not
broader in scope than the Federal laws and regulations. We are granting
Kansas final authorization to carry out the following provisions of the
State's program in lieu of the Federal program. These State-initiated
changes satisfy the requirements of 40 CFR 271.21(a). These provisions
are analogous to the indicated RCRA statutory provisions or RCRA
regulations found at 40 CFR as of July 1, 2006. The Kansas provisions
are from the Kansas Administrative Regulations, Article 31--Hazardous
Waste Management, effective May 10, 2013.
The State's authorization package includes an updated Program
Description, a General Memorandum of Agreement (MOA), and a Corrective
Action MOA, between the EPA and the Kansas Department of Health and
Environment (KDHE), a copy of the Kansas State Statutes Annotated,
Chapter 65--Public Health, Article 34--Hazardous Waste, a copy of the
KDHE Administrative Regulations, Article 31--Hazardous Waste Management
effective on May 10, 2013, and an Attorney General's Statement.
------------------------------------------------------------------------
Analogous Federal requirement
State requirement KAR 40 CFR
------------------------------------------------------------------------
28-31-124a(a) & (c)-(e)................ 124.3(a).
28-31-124b(a)-(d)...................... 124.5(a), (c)-(d).
28-31-124c(a).......................... 124.6(a).
28-31-124c(c)(1)....................... 124.6(d)(1)-(d)(4)(i).
28-31-124c(c)(2)-(5) and 28-31-124c(d)- 124.6(e).
(f)..
28-31-124d intro.-28-31-124d(b)........ 124.8(a).
28-31-124d(c)(1)-(2)................... 124.8(b) intro.-(b)(2).
28-31-124d(c)(3)-(5)................... 124.8(b)(5)-(b)(7).
28-31-124e intro.-28-31-124e(a)........ 124.10(a)(1)-(a)(1)(iii).
28-31-124e(b)-(c)...................... 124.10(a)(2)-(3).
28-124e(d)............................. 124.10(b), except last
sentence.
28-31-124e(e).......................... 124.10(c).
28-31-124e(f) intro.-28-31-124e(f)(9).. 124.10(d)(1)-(d)(1)(vi).
28-31-124e(f)(10)...................... 124.10(d)(1)(x).
28-31-124e(g).......................... 124.10(d)(2) intro.-
(d)(2)(iii).
[[Page 43812]]
28-31-124e(h).......................... 124.10(e).
28-31-124(a) and 28-31-124(c)(3)....... 124.11.
28-31-124(a), 28-31-124(c)(4), and 28- 124.12.
31-124(b)(1).
28-31-124(a) and 28-31-124(c)(5)....... 124.13.
28-31-124(a), and 28-31-124(c)(6)-(7).. 124.14.
28-31-124(a) and 28-31-124(c)(8)....... 124.15.
28-31-124(a), 28-31-124(c)(9)-(12), and 124.16.
28-31-124(b).
28-31-124(a), and 28-31-124(c)(13)-(14) 124.17.
28-31-124(a), 28-31-124(c)(15)......... 124.31-124.33.
28-31-124(a), 28-31-124(b)(4)-(5), 28- 124.200-124.214.
31-124(c)(16), 28-31-124(e)(18).
28-31-260(a), 28-31-260(b)(1), and 28- 260.1-260.3.
31-260(c)(1).
28-31-260(a), and 28-31-260(c)(2)(A)- 260.10.
(E).
28-31-260b............................. 260.11.
28-31-260(a) and 28-31-260(b)(6)-(7)... 260.30-260.33, 260.40-260.41,
and Appendix I.
28-31-260(d) required in the event of a No analog in Part 260.
conflict between federal and state
definitions.
28-31-261(a), 28-31-261(c)(2), 28-31- 261.1-261.4(e)(3(iii).
261(c)(3)(A)-(C), 28-31-261(c)(4), and
28-31-261(b)(2).
28-31-261(a)........................... 261.5 except 261.5(a),
261.5(e)(1), 261.5(f)(3),
261.5(g), and 261.5(g)(2)-(3).
28-31-261(a) and 28-31-261(b)(3)....... 261.6-261.11.
28-31-261(a), 28-31-261(c)(10)-(12).... 261.20-261.24.
28-31-261(a) and 28-31-261(c)(15)...... 261.30-261.33 and (e) 261.35,
and 261.38 except 261.33(e)-
(f).
28-31-261(a) and 28-31-261(c)(16)...... Appendices I and VII-VIII.
28-31-262(a), 28-31-262(c)(1), and 28- 262.10-12 except 262.11(c)(1).
31-262(b)(1).
28-31-262(a)........................... 262.20, 262.22-262.23 and
262.27 except 262.27(b).
28-31-262(a), 28-31-262(c)(5)-(6) and 262.30-262.34 except
(8), 28-31-262(b)(3). 262.34(c)(1)(ii) and 262.34(g)-
(i).
28-31-262(a)........................... 262.40-43 except 262.42(b).
28-31-262(a)........................... 262.70.
28-31-262(b)(5)........................ 262.90 and 262-100-262-108.
28-31-262(a)........................... Appendix to Part 262.
28-31-263(a) and 28-31-263(c)(1)....... 263.10.
28-31-263(a)........................... 263.20-22 except 263.20(h).
28-31-263(a)........................... 263.30-263.31.
28-31-264(a), 28-31-264(b)(2) and 28-31- 264.1-264.4.
264(c)(2).
28-31-264(a), 28-31-264(b)(3) and 28-31- 264.10-264.19.
264(c)(3).
28-31-264(a)........................... 264.30-264.37, 264.50-264.56
and 264.70-264.77.
28-31-264(a)........................... 264.90-264.101 except
264.90(b)(4).
28-31-264(a), and 28-31-264(c)(4)-(5).. 264.110-264.120.
28-31-264(a), 28-31-264(c)(6)(A)-(D), 264.140-264.151 except
28-31-264(c)(8)-(9), 28-31-264(c)(11)- 264.143(e)(1), 264.144(b),
(17), 28-31-264(b)(4). 264.144(c), 264.145(e)(1),
264.147(a)(1)(ii),
264.147(b)(1)(ii), and
264.151(i)-(j).
28-31-264(a) and 28-31-264(c)(18)...... 264.170-264.179.
28-31-264(a), 28-31-264(c)(19)-(20), 264.190-200.
and 28-31-264(b)(5).
28-31-264(a), 28-31-264(b)(10), 28-31- 264.220-264.232, 264.50-264.59,
264(c)(21(A)-(B), 28-31-264(c)(22)- 264.270-264.283, 264.300-
(23), 28-31-264(c)(24)(A)-(B) and 28- 264.304, 264.309-264.351,
31-264(c)(25). 264.550-264.555, 264.570-
264.575 except 264.226(c),
264.227(d)(2)(ii), 264.280(b).
28-31-264(a), 28-31-264(c)(26)-(28), 28- 264.1030-264.1036, 264.1050
31-264(b)(8)-(9). 264.264.1065, 264.1080-
264.1090, 264.1100-1102,
264.1200-264.1202.
28-31-264(c)(26)....................... 264.1060(b)(3).
28-31-264(a)........................... Appendices I, IV-VI, and IX.
28-31-265(a), 28-31-265(c)(2)-(3) and 265.1 and 265.4.
28-31-265(b)(2).
28-31-265(a), 28-31-265(c)(4), 28-31- 265.10-265.19, 265.30-265.37,
265(b)(3). 265.50-265.56, and 265.70-
265.77.
28-31-265(a)........................... 265.90-265.94 except 265.90(c),
265.90(d)(1), 265.90(e), and
265.93(d)(2).
28-31-265(a), 28-31-265(c)(6)-(10), 28- 265.110-265.121, 265.140-
31-265(c)(13), 28-31-265(b)(5)-(9), 28- 265.150, 265.170-265.178
31-265(c), 28-31-265(c)(18)-(22). 265.190-265.202, 265.220-
265.231, 265.250-265.260,
265.270-265.282, 265.300-
265.316, 265.340-265.352,
265.370-265.383, 265.400-
265.406, 265.430, 265.440-
265.445, 265.1030-265.1035,
265.1050-265.1064, 265.1080-
265.1090, 265.1100-265.1101,
265.1200-265.1202 except
265.144(b), 265.144(c),
265.201, 265.201(a)-(d) and
(f)-(h), 265.221(g),
265.280(e).
28-31-265(a)........................... Appendices I, III-VI.
28-31-266(a), 28-31-266(c)(2)-(5), 28- 266.20-266.23, 266.70, 266.80,
31-266(b). 266.100-266.102, 266.104-
266.112, 266.200-266.206,
266.210, 266.220-266.360,
266.400-266.422.
28-31-266(a)........................... Appendices I-IX and XI-XIII.
28-31-267(a), 28-31-267(c)(2)-(4), 28- 267.1-267.3, 267.10-267.18,
31-267(b)(2). 267.30-267.36, 267.50-267.58,
267.70-267.76, 267.90-267.101,
267.110-267.117, 267.140-
267.148, 267.150-267.151,
267.170-267.177, 267.190-
267.204 and 267.1100-267.1108.
28-31-268(a), 28-31-268(c)(4).......... 268.1-268.7 and 268.9 except
268.1(e)(1), 268.5-6,
268.7(a)(5), 268.7(a)(9)(iii).
268.7(a)(10).
28-31-268(a), 28-31-268(c)(8)-(11), 28- 268.14, 268.20-268.50 except
31-268(b)(3). 268.42(b) and 268.44.
[[Page 43813]]
28-31-268(a)........................... Appendices III-IV, VI-VIII, XI.
28-31-270(a), 28-31-270(b)(1), 28-31- 270.1.
270(c)(1).
28-31-270(a), 28-31-270(c)(2)(A)(i)- 270.2 except ``Corrective
(ii), 28-31-270(c)(2)(B)-(E). action management unit,''
Emergency Permit,''
``Permit,'' ``Remedial action
plan,'' ``Standardized
permit''.
28-31-270(b)(4)........................ 270.3.
28-31-270(a)........................... 270.4-270.5.
28-31-260b(b)(1)....................... 270.6.
28-31-270(a), 28-31-270(c)(4)-(17), 28- 270.10-270.33, 270.40-270.43,
31-270(c)(19)-(24), 28-31-270(b)(4)- 270.50-270.5, 270.60-270.68,
(8). 270.70-270.73, 270.79-270.110,
270.115, 270.120-270.150,
270.155-270.190, 270.195,
270.200-270.230, 270.235,
270.250, 270.255, 270.260-
270.305, 270.310, 270.315-
270.320 except 270.10(a) and
270.17(d).
28-31-273(a)........................... 273.1-273.9, 273.10-273.20,
273.30-273.40, 273.50-273.56,
273.60-273.62 and 273.70
except 273.8(a)(2).
28-31-273(b)(4)........................ 273.80-273.81.
28-31-279(a), 28-31-279(c)(1)-(2), 28- 279.1, 279.10-279.12, 279.20-
31-279(c)(3)(A)-(D), 28-31- 279.24, 279.30-279.32, 279.40-
279(c)(4)(A)-(C), 28-31-279(c)(5). 279.47, 279.50-279.67, 279.70-
279.75 279.80-279.81 except
279.10(b)(3).
28-31-279(a)........................... 279.60-279.67 except
279.62(b)(1)-(2) and
279.64(g).
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H. Where are the revised State rules different from the Federal rules?
1. Rules for Which Kansas Is Not Seeking Authorization
(a) Kansas is not seeking authorization for, and has appropriately
left authority with EPA, for the majority of the non-delegable Federal
rules that address specific functions for which EPA must retain
authority, including the Federal requirements at 40 CFR 261.39(a)(5),
262.21, 262 Subparts E, F and H, 268.5, 268.6, 268.42(b), 268.44(a)-(g)
and 270.3. However, Kansas has adopted the provisions at 40 CFR
263.20(g)(4), 264.71(a)(3), 265.71(a)(3), 268.5, 268.6 and 268.42(b).
EPA will continue to implement all of the above mentioned requirements
directly through the RCRA regulations.
(b) Kansas is not seeking authorization for the National
Environmental Performance Track Program (April 22, 2004, 69 FR 21737);
as amended October 25, 2004, 69 FR 62217; Revision Checklist 204). On
May 14, 2009, EPA terminated the National Environmental Performance
Track Program.
(c) Kansas has not adopted the optional provisions at 40 CFR
260.20-22, which are applicable to the delisting of a waste, and the
provision at 40 CFR 260.23 which addresses petitions to add a universal
waste. These optional provisions were not promulgated under HSWA.
Therefore, the provisions for delisting a waste, or to petition to add
a universal waste, are not applicable in Kansas.
(d) Kansas has not adopted the provisions at 266.103 which are
applicable to interim status burners. There are currently no such
facilities in the State, nor does the State expect there will be in the
future. If at any time a facility in the State of Kansas becomes
subject to 40 CFR 266.103, the Federal government will administer the
applicable regulations.
(e) Kansas did not adopt the provision at 270.42(l) which requires
a list of all approved permits and permit modifications be maintained
and a notification, published annually, announcing an updated list is
available for review. The State and EPA have agreed to place this
requirement in the Memorandum of Agreement.
2. More Stringent Kansas Rules
The Kansas hazardous waste program contains some provisions that
are more stringent than is required by the RCRA program as codified in
the July 1, 2006, edition of the title 40 of the Code of Federal
Regulations. These more stringent provisions are being recognized as a
part of the Federally-authorized program.
The specific more stringent provisions are also noted in Kansas'
authorization application. They include, but are not limited to, the
following:
Kansas Generator Regulations--Generally Applicable to All Generator
Classifications
(a) At 28-31-261(c)(6) generators who generate 1 kg or more of
acutely hazardous waste in a calendar month are considered large
quantity generators (LQGs) for that waste and the waste becomes subject
to the LQG requirements. Kansas is more stringent because under the
federal regulations, generators that generate exactly 1 kg of acute
hazardous waste are not subject to the LQG requirements. This more
stringent requirement is also applicable to the accumulation of acutely
hazardous waste.
(b) In addition, at 28-31-261(c)(6) Kansas replaces the phrases
``that acute hazardous waste'' and ``those accumulated wastes'' with
``the generator's hazardous waste and acute hazardous waste.'' This
requires all generator's waste to become subject to full regulation if
a generator exceeds the limits of 40 CFR 261.5(e), (f)(2) or (g)(2),
not just the specific waste that exceeded the limits.
(c) The federal regulations at 40 CFR 265.201(a)-(d) and (f)-(h)
are only applicable to generators of between 100 and 1,000 kg/mo.
Kansas modifies these provisions at 28-31-265(c)(17)(A)-(D) making
these provisions applicable to generators who accumulate more than 25
kg, which makes the State more stringent.
(d) At 28-31-4 Kansas requires the information on the originally
submitted RCRA notification form be changed if there is a change in the
information.
(e) At 28-31-262(c)(7) Kansas requires labels to read ``Hazardous
Waste.'' The federal regulations allow other words which identify the
contents.
(f) At 28-31-262(b)(3) Kansas does not adopt the special
requirements applicable to F006 waste at 40 CFR 262.34(g)-(i) and is
therefore more stringent.
Kansas Generator Classifications
Kansas establishes four (4) generator categories as opposed to the
three (3) established by the Federal regulations. The table below
illustrates the differences between the State's generator categories
and those in the Federal provisions.
[[Page 43814]]
------------------------------------------------------------------------
Generator size (kg of HW/ Kansas generator EPA Generator
month) classification classification
------------------------------------------------------------------------
<25......................... Conditionally exempt Conditionally exempt
small quantity small quantity
generator. generator
>=25 but <100............... Kansas small
quantity generator..
>100 but <1,000............. Small quantity Small quantity
generator. generator.
>=1,000..................... Large quantity Large quantity
generator. generator.
------------------------------------------------------------------------
Some Federal rules which, when applied to the State specific
generator classifications, make the State rules more stringent. Kansas
has also promulgated rules which are specific to the State's generator
classifications, which EPA has determined are also more stringent than
the RCRA program. These include, but are not limited to the following:
Kansas Generator Classification--Conditionally Exempt Small Quantity
Generator (CESQG)
The following table lists regulations where there is a state
requirement and with a direct analogous Federal requirement.
------------------------------------------------------------------------
Analogous Federal requirement
State requirement KAR 40 CFR
------------------------------------------------------------------------
28-31-261(c)(5)........................ 261.5(a).
28-31-261(c)(7)........................ 261.5(g).
28-31-261(c)(9)........................ 261.5(g)(3).
28-31-261(c)(13) and (14).............. 261.33(e) and (f).
28-31-261a............................. No analog in federal
regulations.
28-31-262a(f)(2)(C)(i)................. 262 Subpart C.
28-31-262a(f)(2)(C)(ii)................ 262.34.
28-31-262a(f)(2)(C)(iii)............... 265.15(d).
28-31-262a(f)(2)(C)(iv)................ 265 Subpart I.
28-31-262a(f)(2)(C)(v)................. 265.201.
28-31-273(a)........................... 273.8(a)(2) related.
28-31-279(a)........................... 279.10(b)(3) related.
------------------------------------------------------------------------
Additional Rules Applicable to Kansas Generator Status--CESQG
(a) At 28-31-262a(f)(1) Kansas prohibits conditionally exempt small
quantity generators from disposing of their hazardous waste in a
construction and demolition landfill in Kansas. Construction and
demolition landfills in Kansas are not subject to the provisions of 40
CFR 257.5 thru 257.30 and therefore cannot accept CESQG waste.
(b) At 28-31-262a(f)(2)(A) Kansas requires CESQGs that accumulate
25k (55 lbs) or more of hazardous waste to inspect areas where one or
more hazardous waste containers are stored, on a monthly basis.
(c) At 28-31-262a(f)(2)(B)(i) and (ii) Kansas limits a CESQG that
sends 25k or more of hazardous waste at any one time to disposal at
state permitted Kansas household hazardous waste sites, or a disposal
facility meeting certain requirements in 40 CFR 261.5(g).
Kansas Generator Classification--Kansas Small Quantity Generator (KSQG)
The following table lists regulations where there is a state
requirement and with a direct analogous Federal requirement.
------------------------------------------------------------------------
Analogous Federal requirement
State requirement KAR 40 CFR
------------------------------------------------------------------------
28-31-262(c)(4)........................ 262.27(b).
28-31-262(c)(9)........................ 262.42(b).
28-31-262(c)(11)(A) and (B)............ 262.44.
28-31-262a(e)(3)(A), (B) and (C)....... 262 Subparts A, B, and C.
28-31-262a(e)(3)(D).................... 262.34.
28-31-262a(e)(3)(E).................... 262.44.
28-31-262a(e)(3)(G).................... 265.15(d).
28-31-262a(e)(3)(H).................... 265 Subpart C.
28-31-262a(e)(3)(I).................... 265 Subpart I.
28-31-262a(e)(3)(J).................... 265.201.
28-31-262a(e)(3)(K).................... 268.7(a)(5).
28-31-268(c)(2) and (5)................ 268.1(e)(1); 268.7(a)(5);
268.7(a)(10).
------------------------------------------------------------------------
Additional Rules Applicable to Kansas Generator Status--KSQG
(a) At 28-31-262a(e)(1) Kansas requires KSQGs to submit a waste
minimization certification.
(b) At 28-31-262a(e)(2) Kansas requires KSQGs to inspect areas
where one or more hazardous waste containers are stored, on a monthly
basis.
(c) At 28-31-262a(e)(4) Kansas requires KSQGs to provide training
no more than six months after an employee is hired or transferred to a
new position, repeat the training annually, record the employee name,
date of training, and topics covered and keep records for at least
three years from the date of the training. Personnel training records
may accompany personnel transferred within the same company.
[[Page 43815]]
(d) At 28-31-262a(e)(5) Kansas requires any KSQG that accumulates
more than 1,000k (2,200 lbs) of hazardous waste to comply with all
requirements for small quantity generators.
Kansas Generator Status--Small Quantity Generator (SQG)
(a) At 28-31-261(c)(8) Kansas replaces ``generators of between 100
kg and 1000 kg of hazardous waste'' with ``small quantity generators.''
Kansas is more stringent because the generation limit for CESQGs is
lower <25 kg rather than <= 100 kg. Also, generators of >=25 kg but
<=100 kg per calendar month are subject to requirements more stringent
than the 40 CFR 261.5 requirements. See also 28-31-262a(f).
(b) At 28-31-262a(d)(1) Kansas requires small quantity generators
to provide training no more than six months after an employee is hired
or transferred to a new position, repeat the training annually, record
the employee name, date of training, and topics covered and keep
records for at least three years from the date of the training.
Personnel training records may accompany personnel transferred within
the same company.
(c) At 28-31-262a(d)(2)(A) Kansas subjects small quantity
generators to the inspection documentation and record keeping
requirements of 40 CFR 265.15(d) for both containers and tanks.
(d) At 28-31-262a(d)(2)(B) and (C) Kansas subjects small quantity
generators to the closure requirements of 40 CFR 265.11(a) and (B) and
265.114.
Kansas Generator Status--Large Quantity Generator (LQG)
At 28-31-262a(c) Kansas requires large quantity generators to
document and keep records of weekly inspections of containers and
hazardous waste storage areas as well as daily inspections of tanks in
accordance with 40 CFR 265.15(d).
Additional Kansas Regulations Deemed To Be More Stringent by EPA
(a) At 28-31-263(c)(2) Kansas requires transporters of KSQG waste
to comply with 263.20(1)-(4), which under the Federal program are only
applicable to SQGs.
(b) At 28-31-264(c)(9)-(10) and 28-31-265(c)(11)-(12) Kansas
requires owners/operators to update the post-closure cost estimate
during the post-closure period as well as the active life of the
facility.
(c) At 28-31-264a(a)(1) establishes the definitions for state-
specific terms applicable to the state's additional requirements for
financial assurance required under 40 CFR 264.143, 264.145 and 264.147.
(d) At 28-31-264a(a)(2)(B) Kansas requires an insurer to have a
current minimum rating in the secure or investment grade category by
the A.M. Best insurance rating agency and not be a ``captive insurance
company.'' The term ``captive insurance company'' is defined at 28-31-
264a(a)(1)(A).
(e) At 28-31-264a(a)(2)(C) Kansas requires a surety company to have
a current minimum rating in the secure or investment grade category by
the A.M. Best insurance rating agency and must be licensed in Kansas.
(f) At 28-31-264a(b) Kansas applies the requirements found at 40
CFR 264.119(b) to active facilities.
(g) At 28-31-264a(c)(1) Kansas outlines the specific requirements
to be included in the restrictive covenant.
(h) At 28-31-264a(c)(2) Kansas outlines the specific requirements
for easements.
(i) At 28-31-264a(c)(3) Kansas requires that each offer or contract
for the conveyance of easement, title, or other interest to the
property shall disclose all terms and conditions and provisions for
care and subsequent land use. Provisions for maintaining waste
containment and monitoring systems are required.
(j) At 28-31-264a(c)(4) Kansas requires that all covenants,
easements, and other documents be permanent unless there is an
agreement between the property owner and the Secretary of State to
remove it.
(k) At 28-31-264a(d) Kansas requires that operators of hazardous
waste container or tank storage facilities mark all containers and
tanks in accordance with the requirements of 40 CFR 262.34(a)(2) and
(3).
(l) At 28-31-264a(g) Kansas requires all hazardous waste injection
wells to comply with the Kansas Underground Injection Well regulations.
(m) At 28-31-265a Kansas makes these additional requirements for
TSDs applicable to interim status facilities.
(n) At 28-31-267a Kansas makes these additional requirements for
TSDs applicable to facilities operating under a standardized permit.
(o) At 28-31-270(c)(3) Kansas requires persons applying for a
permit to dispose of hazardous waste to first petition the secretary
for an exception to the State's prohibition against underground land
burial.
(p) At 28-31-279(b)(2) Kansas specifically prohibits the use of
used oil as a dust suppressant.
(q) At 28-31-279(a)(1) Kansas specifically prohibits the disposal
of used oil on or into sewers; storm drainage systems; surface water;
groundwater; or the ground.
(r) At 28-31-279a(a)(2) Kansas specifically prohibits the
application of used oil as a coating; a sealant; a dust suppressant;
pesticide carrier; or any other similar application.
3. Broader in Scope
EPA considers the following State requirements to be beyond the
scope of the Federal program, and therefore EPA is not authorizing
these requirements and cannot enforce them. Entities must comply with
these requirements in accordance with State law, but they are not RCRA
requirements. The specific broader in scope provisions include, but are
not limited to, the following:
(a) The statute at KSA 65-3433(b)(1) requires the State to provide
notice of application in a major newspaper in the county for which a
new off-site facility application has been received. This notice must
be published for three consecutive weeks and a copy of the notice sent
to the city clerk of any city located within three miles of the
proposed facility.
(b) At KSA 65-3433(c) and KSA 65-3438 Kansas requires the Secretary
to make a final decision on the permit application within 240 days.
There is not a permit decision deadline in the Federal program, making
this provision broader in scope. KSA 65-3433(c) also states that, once
a permit has been issued by the Secretary, ``no local ordinance, permit
or other requirements may prohibit the construction or modification of
such a facility or restrict transportation to the facility.'' Because
the Federal program does not include language concerning local
prohibitions, this provision is broader in scope.
(c) At KSA 65-3435 Kansas prohibits the Secretary from approving an
application ``unless applicant has fee simple title to the property
where the facility will be located, free of any liens, easements,
covenants, or any other encumbrances to the title.'' Because the
Federal program does not have any requirements concerning ownership of
the land, this provision is broader in scope.
(d) At KSA 65-3437(d) Kansas requires the Department to inspect the
location of the proposed facility. An inspection report must be filed
with the Secretary before issuing the permit and made available for
public review. Because the Federal program does not have an inspection
requirement, this provision is broader in scope.
(e) At 28-31-124a(b) Kansas requires a disclosure statement from a
permit applicant to obtain the information
[[Page 43816]]
necessary to conduct a background investigation.
(f) At 28-31-124c(b) the state has chosen to include a regulation
which outlines the basis of a permit application denial by the
secretary. The federal regulations speak to issuing a tentative
decision to deny. The Kansas regulation states only that if the permit
application does not meet the regulatory requirements, it will be
denied.
(g) At 28-31-260(c)(2)(D) Kansas has modified the definition of
``qualified ground-water scientist'' to require such to be a licensed
geologist or a professional engineer. Kansas also requires training in
corrective action.
(h) At 28-31-260a(a)(6) and (7) Kansas defines the terms ``Kansas
licensed geologist'' and ``Kansas professional engineer'' and
substitutes these terms for the Federal terms ``qualified geologist or
geotechnical engineer;'' ``qualified engineer;'' and/or ``qualified
soil scientist.''
(i) At 28-31-262(c)(2) Kansas requires that the sample be sent to a
laboratory certified by the department for the hazardous waste
analysis.
(j) At 28-31-262a(a)(2) Kansas requires SQGs and LQGs shipping
waste to use only transporters who are properly registered with the
department. The federal program does not require transporter
registration so the State is broader in scope.
(k) At 28-31-262a(b) Kansas requires SQGs and KSQGs to submit a
report to the secretary by March 1 each year that details the total
quantities of waste produced during the previous calendar year. The
State also requires that LQGs, SQGs and KSQGs submit their annual
monitoring fee with the report, adhere to a schedule for submission,
and keep the report for three years. These provisions are broader in
scope as there are no analogous requirements in the Federal program.
(l) Kansas requires entities to pay annual fees. The regulations
regarding these fees can be found at 28-31-262a(b)(2); 28-31-10(a)-(f);
and 28-31-10a.
(m) At 28-31-263a(a) Kansas exempts KSQGs and CESQGs that meet
certain conditions from the transporter requirements.
(n) At 28-31-263a(c) Kansas requires transporters to ensure that
the generators and facilities from whom they pick up or to whom they
deliver hazardous waste, have provided proper notification to the
department.
(o) At 28-31-263(g) Kansas requires transporter use routes that
minimize risk to public health and that are preferred routes.
(p) At 28-31-264(c)(7)(A) and (B), and 28-31-264(c)(7) Kansas
requires that the insurer must be licensed to or eligible to provide
insurance in Kansas.
(q) At 28-31-264a(c)(4) Kansas requires the owner of the property
to pay all recording fees. There is no analogous counterpart in the
Federal program, so the State is broader in scope.
(r) At 28-31-264a(a)(2)(A) Kansas requires the bank or trust
company have authority to issue letters of credit in Kansas or to act
as trustee for the facility in Kansas.
(s) At 28-31-264a(a)(3) Kansas requires that, if the financial
assurance is a ``purchased'' financial instrument, the financial
institution which provides the ``purchased'' financial instrument must
be unrelated to both the owner and the operator of the facility.
(t) At 28-31-264a(a)(4) Kansas requires that each person required
to submit information under one or more of the following requirements
must also submit a copy of the most recent corporate annual report: 40
CFR 264.143(f)(3); 264.145(f)(3); 265.143(e)(3); 265.145(e)(3); or
267.143(f)(2).
(u) At 28-31-264a(a)(5) Kansas requires corporate reports be
submitted for both publicly and privately owned facilities and contain
financial statements, notes to the financial statements, and a copy of
the independent CPA's report, including an unqualified opinion.
(v) At 28-31-264a(e) Kansas promulgates additional laboratory
certification and analysis requirements.
(w) At 28-31-264a(f) Kansas applies additional laboratory
certification requirements regarding the analysis of hazardous waste to
be burned for destruction or energy recovery.
(x) At 28-31-6 and 28-31-279a(b) Kansas subjects transporters of
hazardous waste and used oil to registration and insurance
requirements. There is not an analogous provision in the Federal
program therefore the Kansas provision is broader in scope.
(y) At 28-31-13 Kansas addresses variances from the State
requirements that EPA deems to be more stringent or broader in scope
than the Federal program. Because there is no analogous provision in
the Federal program, the State is broader in scope.
(z) At KS-31-6(a)-(d) Kansas establishes state specific
requirements for person(s) transporting hazardous waste or used oil.
These requirements include registration with the Secretary, and the
securing and maintenance of liability insurance on all vehicles
transporting hazardous waste or used oil in Kansas. There is no
analogous counterpart in the Federal program, so the State is broader
in scope.
I. Who handles permits after the authorization takes effect?
Kansas will issue permits for all the provisions for which it is
authorized and will administer the permits it issues. EPA will continue
to administer and enforce any RCRA and HSWA (Hazardous and Solid Waste
Act) permits or portions of permits which it has issued in Kansas prior
to the effective date of this authorization until the State
incorporates the terms and conditions of the Federal permits into the
State RCRA permits. Kansas will immediately assume oversight
responsibility on two sites with EPA-issued permits, the Former
Lawrence Nitrogen Plant (KSD007128507) and the Former Sunflower Army
Ammunition Plant (KS3213820878), through the authority of State-issued
orders. EPA will not issue any more new permits, or new portions of
permits, for the provisions listed in the table above after the
effective date of this authorization. EPA will continue to implement
and issue permits for any HSWA requirements for which Kansas is not yet
authorized.
J. How does this action affect Indian Country (18 U.S.C. 1151) in
Kansas?
Kansas is not authorized to carry out its Hazardous Waste Program
in Indian Country within the State. This authority remains with EPA.
Therefore, this action has no effect in Indian Country.
K. What is codification and is EPA codifying Kansas' Hazardous Waste
Program as authorized in this rule?
Codification is the process of placing the State's statutes and
regulations that comprise the State's authorized hazardous waste
program into the Code of Federal Regulations. We do this by referencing
the authorized State rules in 40 CFR part 272. We reserve the amendment
of 40 CFR part 272, subpart R for this authorization of Kansas' program
until a later date.
Statutory and Executive Order Reviews
The Office of Management and Budget (OMB) has exempted this rule
(RCRA State Authorization) from the requirements of Executive Orders
12866 (58 FR 51735, October 4, 1993) and Executive Order 13563 (76 FR
3821, January 21, 2011). This rule authorizes state requirements for
the purpose of RCRA 3006 and imposes no additional requirements beyond
those required by state law. This final rule does not impose an
information collection
[[Page 43817]]
burden under the provisions of the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). Incorporation by reference will not impose any
new burdens on small entities. 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 rule approves 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 (Pub. L. 104-4).
Executive Order 13132 (64 FR 43255, August 10, 1999), does not
apply to this rule because it will not have federalism implications
(i.e., substantial direct effects on the States, on the relationship
between national government and the states, or on the distribution of
power and responsibilities among the various levels of government).
This action also does not have Tribal implications within the meaning
of Executive Order 13175 (65 FR 67249, November 6, 2000).
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 28344, May 22, 2001) because it is not a
significant regulatory action under Executive Order 12866.
EPA approves state programs as long as they meet criteria required
by RCRA, so it would be inconsistent with applicable law for EPA, in
its review of a state program, to require the use of any particular
voluntary consensus standard in place of another standard that meets
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 to this rule.
As required by section 3 of Executive Order 12988 (61 FR 4729,
February 7, 1996), in issuing this rule, 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 final rule does not include environmental justice issues that
require consideration under Executive Order 12898 (59 FR 7629, February
16, 1994). 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.
The Congressional Review Act (5 U.S.C. 801 et seq), 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 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). This action will be effective September 20, 2013.
List of Subjects in 40 CFR Part 271
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous waste, Hazardous waste
transportation, Indian lands, Intergovernmental relations, Penalties,
Reporting and recordkeeping requirements.
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: June 27, 2013.
Mark Hague,
Acting Regional Administrator, Region 7.
[FR Doc. 2013-17566 Filed 7-19-13; 8:45 am]
BILLING CODE 6560-50-P