[Federal Register Volume 77, Number 194 (Friday, October 5, 2012)]
[Rules and Regulations]
[Pages 60919-60921]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-24098]



40 CFR Part 271

[EPA-R04-RCRA-2012-0124; FRL-9735-2]

Tennessee: Final Authorization of State Hazardous Waste 
Management Program Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.


SUMMARY: Tennessee 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 we believe this action is not controversial and do not 
expect comments that oppose it. Unless we receive written comments that 
oppose this authorization during the comment period, the decision to 
authorize Tennessee's changes to its hazardous waste program will take 
effect. If we receive comments that oppose this action, we will publish 
a document in the Federal Register withdrawing this rule before it 
takes effect and a separate document in the proposed rules section of 
this Federal Register will serve as a proposal to authorize the 

DATES: This final authorization will become effective on December 4, 
2012 unless EPA receives adverse written comment by November 5, 2012. 
If EPA receives such comment, it will publish a timely withdrawal of 
this immediate final rule in the Federal Register and inform the public 
that this authorization will not take effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R04-
RCRA-2012-0124 by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov: 
Follow the on-line instructions for submitting comments.
     Email: johnson.otis@epa.gov
     Fax: (404) 562-9964 (prior to faxing, please notify the 
EPA contact listed below).
     Mail: Send written comments to Otis Johnson, Permits and 
State Programs Section, RCRA Programs and Materials Management Branch, 
RCRA Division, U.S. Environmental Protection Agency, Atlanta Federal 
Center, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960.
     Hand Delivery or Courier. Deliver your comments to Otis 
Johnson, Permits and State Programs Section, RCRA Programs and 
Materials Management Branch, RCRA Division, U.S. Environmental 
Protection Agency, Atlanta Federal Center, 61 Forsyth Street SW., 
Atlanta, Georgia 30303-8960.
    Instructions: We must receive your comments by November 5, 2012. 
Please refer to Docket Number EPA-R04-RCRA-2012-0124. Do not submit 
information that you consider to be CBI or otherwise protected through 
www.regulations.gov or email. The Web site is an ``anonymous access'' 
system, which means 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 
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, 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 
    You may view and copy Tennessee's application and associated 
publicly available materials from 8 a.m. to 4 p.m. at the following 
locations: EPA, Region 4, RCRA Division, Atlanta Federal Center, 61 
Forsyth Street SW., Atlanta, Georgia 30303-8960, telephone number: 
(404) 562-8483; and from 8 a.m. to 4:30 p.m. at the Tennessee 
Department of Environment and Conservation, Division of Solid Waste 
Management, 5th Floor, L & C Tower, 401 Church Street, Nashville, 
Tennessee 37243-1535; telephone number: (615) 562-0780. Interested 
persons wanting to examine these documents should make an appointment 
with the office at least a week in advance.

FOR FURTHER INFORMATION CONTACT: Otis Johnson, Permits and State 
Programs Section, RCRA Programs and Materials Management Branch, RCRA 
Division, U.S. Environmental Protection Agency, Atlanta Federal Center, 
61 Forsyth Street SW., Atlanta, Georgia 30303-8960; telephone number: 
(404) 562-8481; fax number: (404) 562-9964; email address: 


A. Why are revisions to State programs necessary?

    States which have received final authorization from 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 program. As the Federal program changes, States must 
change their programs and ask EPA to authorize the changes. Changes to 
State programs may be necessary when Federal or State statutory or 
regulatory authority is modified or when certain other changes occur. 
Most commonly, States must

[[Page 60920]]

change their programs because of changes to EPA's regulations in 40 
Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 
273 and 279.

B. What decisions have we made in this rule?

    We conclude that Tennessee's application to revise its authorized 
program meets all of the statutory and regulatory requirements 
established by RCRA. Therefore, we grant Tennessee final authorization 
to operate its hazardous waste program with the changes described in 
the authorization application. Tennessee has responsibility for 
permitting treatment, storage, and disposal facilities within its 
borders 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 Tennessee, including 
issuing permits, until the State 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 Tennessee 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. Tennessee 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 
includes, among others, authority to:
     Do inspections, and require monitoring, tests, analyses or 
     Enforce RCRA requirements and suspend or revoke permits; 
     Take enforcement actions regardless of whether the State 
has taken its own actions.
    This action does not impose additional requirements on the 
regulated community because the regulations for which Tennessee is 
being authorized by today's action are already effective, and are not 
changed by today's action.

D. Why wasn't there a proposed rule before this rule?

    EPA did not publish a proposal before today's 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 today's 
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 will 
withdraw 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. What has Tennessee previously been authorized for?

    Tennessee initially received final authorization on January 22, 
1985, effective February 5, 1985 (50 FR 2820), to implement the RCRA 
hazardous waste management program. We granted authorization for 
changes to Tennessee's program on the following dates: June 12, 1987, 
effective August 11, 1987 (52 FR 22443); June 1, 1992, effective July 
31, 1992 (57 FR 23063); May 8, 1995, effective July 7, 1995 (60 FR 
22524); August 24, 1995, effective October 23, 1995 (60 FR 43979); May 
23, 1996, effective July 22, 1996 (61 FR 25796); January 30, 1998, 
effective March 31, 1998 (63 FR 4587); September 15, 1999, effective 
November 15, 1999 (64 FR 49998); October 26, 2000, effective December 
26, 2000 (65 FR 64161); December 26, 2001, effective February 25, 2002 
(66 FR 66342); April 11, 2003, effective June 10, 2003 (68 FR 17748); 
March 14, 2005, effective May 13, 2005 (70 FR 12416); and May 11, 2006, 
effective July 10, 2006 (71 FR 27405).

G. What changes are we authorizing with this action?

    On December 15, 2008, and June 1, 2011, Tennessee submitted final 
complete program revision applications, seeking authorization of its 
changes in accordance with 40 CFR 271.21. EPA now makes an immediate 
final decision, subject to receipt of written comments that oppose this 
action, that Tennessee's hazardous waste program revisions satisfy all 
of the requirements necessary to qualify for final authorization. 
Therefore, we grant Tennessee final authorization for the following 
program changes:

    Description of Federal requirement        Federal Register date and page      Analogous State authority \1\
215--Cathode Ray Tube (CRT) Exclusion....  71 FR 42928                          1200-01-11-.01(2)(a); 1200-01-11-
                                           07/28/06                              .02(1)(d)1(xxiv)(I)-(IV); 1200-
216--Exclusion of Oil-Bearing Secondary    73 FR 57                             1200-01-11-.01(2)(a); 1200-01-11-
 Materials Processed in a Gasification     01/02/08                              .02(1)(d)1(xii)(I).
 System to Produce Synthesis Gas.
217--NESHAP: Final Standards for           73 FR 18970                          1200-01-11-.06(15)(a); 1200-01-
 Hazardous Waste Combustors (Phase I       04/08/08                              11-.06(15)(a)2(i) and
 Final Replacement Standards and Phase                                           (iii);1200-01-11-.09(8)(a)2(iii
 II) Amendments.                                                                 )(III).
218--F019 Exemption for Wastewater         73 FR 31756                          1200-01-11-.02(4)(b)1; 1200-01-
 Treatment Sludges from Auto               06/04/08                              11-.02(4)(b)2(iv)(I) and (II).
 Manufacturing Zinc Phosphating Processes.
\1\ The Tennessee provisions are from the Tennessee Hazardous Waste Management Regulations effective September
  12, 2009.

[[Page 60921]]

H. Where are the revised State rules different from the Federal rules?

    We consider Tennessee Hazardous Waste Management Regulation 1200-
01-11-.02(4)(b)2(iv)(II) to be more stringent than the Federal 
counterpart at 40 CFR 261.31(b)(4)(ii) because the State requires 
generators to maintain records on site for no less than five (5) years 
to prove that exempted sludges meet the conditions of the F019 listing. 
The Federal requirement at 40 CFR 261.31(b)(4)(ii) requires generators 
to maintain such records for no less than three (3) years. This five-
year document retention requirement is part of the Tennessee authorized 
program and is federally enforceable.
    EPA cannot delegate or authorize the Federal requirements at 40 CFR 
261.39(a)(5), 261.40, and 261.41. Although Tennessee has adopted these 
requirements at 1200-01-11-.02(6)(b)1(v), 1200-01-11-.02(6)(c) and 
1200-01-11-.02(6)(d), the State correctly notes that EPA will continue 
to implement these requirements.

I. Who handles permits after the authorization takes effect?

    Tennessee will issue permits for all the provisions for which it is 
authorized and will administer the permits it issues. EPA will continue 
to administer any RCRA hazardous waste permits or portions of permits 
which we issued prior to the effective date of this authorization until 
they expire or are terminated. EPA will not issue any more 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 HSWA requirements for which Tennessee 
is not authorized.

J. What is codification and is EPA codifying Tennessee's 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. EPA does this by 
referencing the authorized State rules in 40 CFR part 272. EPA reserves 
the amendment of 40 CFR part 272, subpart RR for this authorization of 
Tennessee's program changes until a later date.

K. Administrative Requirements

    The Office of Management and Budget has exempted this action from 
the requirements of Executive Order 12866 (58 FR 51735, October 4, 
1993), and therefore this action is not subject to review by OMB. This 
action authorizes State requirements for the purpose of RCRA 3006 and 
imposes no additional requirements beyond those imposed by State law. 
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 (Pub. L. 104-4). 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 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 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. 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, EPA has taken the necessary steps to eliminate 
drafting errors and ambiguity, minimize potential litigation, and 
provide a clear legal standard for affected conduct. 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.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, 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. 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). This 
action will be effective December 4, 2012, unless objections to this 
authorization are received.

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 action 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, and 6974(b).

    Dated: September 12, 2012.
A. Stanley Meiburg,
Acting Regional Administrator, Region 4.
[FR Doc. 2012-24098 Filed 10-4-12; 8:45 am]