[Federal Register Volume 60, Number 137 (Tuesday, July 18, 1995)]
[Rules and Regulations]
[Pages 36731-36733]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-17479]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271

[FRL-5258-8]


Arizona: Final Authorization of State Hazardous Waste Management 
Program Revisions

AGENCY: Environmental Protection Agency.

ACTION: Affirmation of immediate final rule.

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SUMMARY: This document responds to the comment received on the 
immediate final rule published April 11, 1995 (60 FR 18356), and 
affirms the Agency's decision to authorize Arizona's revised program.

EFFECTIVE DATE: June 12, 1995.

FOR FURTHER INFORMATION CONTACT: April Katsura, U.S. EPA Region IX (H-
4), 75 Hawthorne Street, San Francisco, CA 94105, Phone: 415/744-2030.

SUPPLEMENTARY INFORMATION: On April 11, 1995, EPA published an 
immediate final rule (60 FR 18356) which announced the Agency's 
decision to authorize Arizona's revisions to its hazardous waste 
program. Those revisions primarily include the Federal amendments made 
between July 1, 1990 and June 30, 1992. Major revisions include new 
rules relating to wood preserving and boilers and industrial furnaces.
    One comment was received during the comment period. After 
considering the comment, the Regional Administrator has decided to 
affirm her decision to authorize the State of Arizona for the program 
revisions. The following is a summary of the comment and the Regional 
Administrator's response.
    Comment: EPA should not approve the program revision because the 
Arizona Department of Environmental Quality (ADEQ) has shown in the 
specific examples given by the 

[[Page 36732]]
commenter that ADEQ is not capable of implementing Arizona's existing 
hazardous waste program. The permitting and enforcement programs are 
inconsistent and favor violators. Permitting is also slow and 
unresponsive to the public.
    The comment contained examples about three facilities. As to the 
first facility, the commenter alleged that there have been various 
explosions and that waste was sent off-site from the facility to a non-
permitted site. Also, there was no penalty assessed despite an alleged 
failure to submit the facility's permit application on time. The 
commenter further questioned the validity of a partial facility closure 
that was approved after a public hearing was denied. Finally, the 
commenter stated that ADEQ has yet to issue a permit for this facility.
    In the second case, a facility is operating on the site of a 
previous facility. The commenter alleged that both facilities were able 
to operate under interim status for over 10 years. The commenter stated 
that this allowed increases in storage and treatment capacity at the 
facilities without the public participation which would have been 
required under the permitting process. The commenter further alleged 
that the current facility has documented groundwater and soil 
contamination that ADEQ has not addressed.
    Lastly, the commenter alleged that in conducting public 
participation on a permit for a facility in Phoenix, ADEQ denied a 
request for a public hearing on the grounds that there was not 
sufficient public interest despite the fact that it was the City of 
Phoenix that had requested the hearing.
    Response: This comment does not specifically pertain to the State's 
program revision discussed in EPA's notice but comments more generally 
on the State's overall program capabilities. EPA cannot find that the 
examples cited demonstrate an overall lack of permitting and 
enforcement capability, though the comment warrants further action as 
detailed below.
    Based on a review of Arizona's application for final authorization 
as well as continuing periodic comprehensive assessments of Arizona's 
hazardous waste program, EPA has determined that Arizona meets the RCRA 
requirements including those set out in 40 CFR 271.13 through 271.16. 
EPA has further determined that Arizona has the capability to implement 
these requirements. Also, EPA's oversight of the Arizona program 
includes monitoring of the implementation of the approved program, 
including permitting and enforcement, through quarterly progress 
reports which culminate in an annual on-site review. Arizona most 
recently successfully completed the program review process in November 
1994, although the review did identify permits and enforcement as some 
areas for on-going program improvements.
    Information such as that provided by this commenter is continually 
evaluated by EPA in these assessments of State capabilities. EPA now is 
following up on the commenter's examples as part of EPA's on-going 
evaluation of the Arizona program. Problem areas which are identified 
through this process will be addressed through program implementation 
improvement.
    Finally, though the intermittent enforcement complained of does not 
represent a lack of program capability, it may, after further 
investigation, suggest the need for supplementary Federal enforcement 
action in some cases. Although authorized states have primary 
enforcement responsibility, EPA retains enforcement authority to carry 
out RCRA requirements. The commenter's examples will be fully evaluated 
and enforcement action taken, as appropriate.
    In sum, EPA has evaluated the state's capability and has determined 
that the state has adequate capability to warrant authorization. Any 
member of the public, however, is at any time encouraged to raise such 
concerns for EPA to take into account in EPA's ongoing assessment and 
improvement of program capabilities.

Compliance With Executive Order 12866

    The Office of Management and Budget has exempted this rule from the 
requirements of Section 3 of Executive Order 12866.

Certification Under the Regulatory Flexibility Act

    Pursuant to the provisions of 4 U.S.C. 605(b), I hereby certify 
that this authorization will not have a significant economic impact on 
a substantial number of small entities. This authorization effectively 
suspends the applicability of certain Federal regulations in favor of 
Arizona's program, thereby eliminating duplicative requirements for 
handlers of hazardous waste in the State. It does not impose any new 
burdens on small entities. This rule, therefore, does not require a 
regulatory flexibility analysis.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L. 
104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. When a written statement is needed for an EPA rule, section 
205 of the UMRA generally requires EPA to identify and consider a 
reasonable number of regulatory alternatives and adopt the least 
costly, most cost-effective or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, giving 
them meaningful and timely input in the development of EPA regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising them on compliance with the 
regulatory requirements.
    EPA has determined that this rule does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and tribal governments, in the aggregate, or the private 
sector in any one year. Under the authority of RCRA section 3006(b), 
EPA has already approved Arizona's hazardous waste program. EPA does 
not anticipate that the approval of the revisons to Arizona's hazardous 
waste program referenced in today's notice will result in annual costs 
of $100 million or more. EPA estimates that it costs a state 
approximately $7,323 to develop and submit to EPA a revision 
application for approval.
    EPA's approval of state programs generally have a deregulatory 
effect on the private sector because once it is determined that a state 
hazardous waste program meets the requirements of RCRA section 3006(b) 
and the regulations promulgated thereunder at 40 CFR Part 271, owners 
and operators 

[[Page 36733]]
of hazardous waste treatment, storage, or disposal facilities (TSDFs) 
may take advantage of the flexibility that an approved state may 
exercise. Such flexibility will reduce, not increase, compliance costs 
for the private sector. Thus, today's rule is not subject to the 
requirements of sections 202 and 205 of the UMRA.
    EPA has determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. The Agency recognizes that small governments may own and/
or operate TSDFs that will become subject to the requirements of an 
approved state hazardous waste program. However, such small governments 
which own and/or operate TSDFs are already subject to the requirements 
in 40 CFR parts 264, 265 and 270. Once EPA authorizes a state to 
administer its own hazardous waste program and any revisions to that 
program, these same small governments will be able to own and operate 
their TSDFs with increased levels of flexibility provided under the 
approved State program.

    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: July 6, 1995.
Felicia Marcus,
Regional Administrator.
[FR Doc. 95-17479 Filed 7-17-95; 8:45 am]
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