[Federal Register Volume 67, Number 39 (Wednesday, February 27, 2002)]
[Rules and Regulations]
[Pages 8899-8902]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-4528]

[[Page 8900]]



40 CFR Part 271


Delaware: Final Authorization of State Hazardous Waste Management 
Program Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.


SUMMARY: Delaware has applied to EPA for Final authorization of 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 Delaware'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 
which oppose this authorization during the comment period, the decision 
to authorize Delaware'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 April 29, 
2002, unless EPA receives adverse written comment by March 29, 2002. 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: Send written comments to Lillie Ellerbe, Mailcode 3WC21, 
RCRA State Programs Branch, U.S. EPA Region III, 1650 Arch Street, 
Philadelphia, PA 19103-2029, Phone number: (215) 814-5454. We must 
receive your comments by March 29, 2002. You can view and copy 
Delaware's application from 8 a.m. to 4:30 p.m. at the following 
addresses: Department of Natural Resources & Environmental Control, 
Division of Air & Waste Management, 89 Kings Highway, Dover, DE 19901, 
Phone number 302-739-3689, attn: Karen J'Anthony, and EPA Region III, 
Library, 2nd Floor, 1650 Arch Street, Philadelphia, PA 19103-2029, 
Phone number: (215) 814-5254.

State Programs Branch, U.S. EPA Region III, 1650 Arch Street, 
Philadelphia, PA 19103-2029, Phone number: (215) 814-5454.


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 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 Delaware's application to revise its authorized 
program meets all of the statutory and regulatory requirements 
established by RCRA. Therefore, we grant Delaware Final authorization 
to operate its hazardous waste program with the changes described in 
its application for program revisions. Delaware has responsibility for 
permitting Treatment, Storage, and Disposal Facilities (TSDFs) within 
its borders and for carrying out the aspects of the RCRA program 
described in its 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 HSWA requirements and prohibitions in Delaware, 
including issuing HSWA permits, until the State is granted 
authorization to do so.

C. What Is the Effect of Today's Authorization Decision?

    The effect of this decision is that a facility in Delaware subject 
to RCRA will now have to comply with the authorized Delaware regulatory 
revisions instead of the equivalent revised Federal requirements in 
order to comply with RCRA. Delaware 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:
     Do inspections, and require monitoring, tests, analyses or 
     Enforce RCRA requirements and suspend or revoke permits, 
     Take enforcement actions regardless of whether Delaware 
has taken its own actions.
    This action does not impose additional requirements on the 
regulated community because the regulations for which Delaware 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 Today's 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 Delaware's program changes. If EPA receives comments which 
oppose this authorization, or portion(s) thereof, that document will 
serve as a proposal to authorize such 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 Delaware's 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 Delaware's hazardous waste program, we may 
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.

[[Page 8901]]

F. What Has Delaware Previously Been Authorized for?

    Delaware initially received Final authorization on June 8, 1984, 
effective June 22, 1984 (53 FR 23837), to implement the RCRA hazardous 
waste management program. We granted authorization for changes to its 
program on August 8, 1996, effective October 7, 1996 (61 FR 41345); 
August 18, 1998, effective October 19, 1998 (63 FR 44152); and July 12, 
2000, effective September 11, 2000 (65 FR 42871).
    Please note that in the aforementioned authorization action 
effective September 11, 2000, Checklist 152 was listed in the program 
revision summarization table. This checklist includes certain import/
export provisions for which States cannot receive authorization. While 
Delaware adopted the provisions listed in Checklist 152, the revisions 
listed in 40 CFR 262, subparts E and H will be administered by EPA.

G. What Changes Are We Authorizing With Today's Action?

    On January 11, 2002, Delaware submitted a final complete program 
revision application, seeking authorization of its changes in 
accordance with 40 CFR 271.21. We now make an immediate final decision, 
subject to receipt of written comments that oppose this action, that 
Delaware's hazardous waste program revision satisfies all of the 
requirements necessary to qualify for Final authorization. Therefore, 
we grant Delaware Final authorization for the program changes 
referenced in its program revision application, which include State 
regulatory changes that are analogous to various amendments to 40 CFR 
parts 124, 260 through 266, 268, 270, 273 and 279 that were published 
in the Federal Register between November 30, 1998 and June 8, 2000.
    Delaware is today seeking authority to administer the Federal 
requirements that are listed in the chart below. This chart also lists 
the State analogs that are being recognized as equivalent to the 
corresponding Federal requirements. Unless otherwise indicated, the 
listed Delaware regulatory references are to the Delaware Regulations 
Governing Hazardous Waste (DRGHW), as amended and effective as of 
October 1, 2000 (Checklists 175, 176, 178, 179, 180 and 181) or DRGHW, 
as amended and effective as of June 11, 2001, (Checklists 183, 184, 185 
and 187). The statutory references are to 7 Delaware Code Annotated 

          Federal requirement              Analogous Delaware Authority
                             RCRA Cluster IX
HWIR--Media, 63 FR 65874-65947, 11/30/   7 Delaware Code (7 Del. Code)
 98; Revision Checklist 175.              Chapter 63, Secs.  6305, 6307
                                          and 6310; Delaware Regulations
                                          Governing Hazardous Waste
                                          (DRGHW) 260.10, 261.4(g),
                                          264.1(j), 264.73(b)(17),
                                          264.101(d), 264.552(a),
                                          264.553(a), 264.554, 265.1(b),
                                          268.2(c), 268.50(g), 122.2,
                                          122.11(d), 122.42, Appendix I,
                                          122.68, 122.73(a), 122.79-
Universal Waste Rule--Technical          7 Del. Code, Secs.  6305, 6306,
 Amendments, 63 FR 71225-71230, 12/24/    6307, 6308, 6312 and 6313;
 98; Revision Checklist 176.              DRGHW 266.80, 273.6.
Petroleum Refining Process Wastes--      7 Del. Code, Secs.  6304(b) and
 Leachate Exemption, 64 FR 6806, 2/11/    6305; DRGHW 261.4(b)(15).
 99; Revision Checklist 178.
Land Disposal Restrictions Phase IV--    7 Del. Code, Secs.  6305,
 Technical Corrections and                6305(a) and 6307; DRGHW
 Clarifications to Treatment Standards,   261.2(c)(3)-(c)(4)/Table,
 64 FR 25408-25417, 5/11/99; Revision     261.2(e)(1)(iii),
 Checklist 179.                           261.4(a)(16), 261.4(a)(17)
                                          intro, 261.4(a)(17)(v),
                                          262.34(d)(4), 268.2(h),
                                          268.2(k), 268.7(a)(4)/Table,
                                          268.7(b)(4)(iv), 268.9(d)(2)
                                          intro, 268.9(d)(2)(i),
                                          268.40(i)-(j), 268.40/Table,
Test Procedures for the Analysis of Oil  7 Del. Code, Secs.  6305, 6306,
 and Grease and Non-Polar Material, 64    6307, 6308, 6310 and 6312;
 FR 26315-26327, 5/14/99; Revision        DRGHW 260.11(a)(11),
 Checklist 180.                           260.11(a)(16).
                             RCRA Cluster X
Universal Waste Rule: Specific           7 Del. Code, Secs.  6305, 6306,
 Provisions for Hazardous Waste Lamps,    6307, 6308, 6312 and 6313;
 64 FR 36466-36490, 7/6/99; Revision      DRGHW 260.10, 261.9(b)-(d),
 Checklist 181.                           264.1(g)(11)(ii)-(iv),
                                          273.1(a)(2)-(4), 273.2(a)(1),
                                          273.2(b)(2)-(3), 273.3(a),
                                          273.4(a), 273.5-273.10,
                                          273.13(d), 273.14(e), 273.30,
                                          273.32(b)(4)-(5), 273.33(d),
                                          273.34(e), 273.50, 273.60(a),
Land Disposal Restrictions Phase IV--    7 Del. Code, Secs.  6305,
 Technical Corrections, 64 FR 56469-      6305(a), 6306 and 6307; DRGHW
 56472, 10/20/99; Revision Checklist      261.32, 262.34(a)(4),
 183.                                     268.7(a)(3)(iii), 268.40(j),
                                          268.40/Table, 264.49(c)(1)(A)-
Accumulation Time for Waste Water        7 Del Code, Secs.  6305 and
 Treatment Sludges, 65 FR 12378-12398;    6306; DRGHW 262.34(a)(4),
 3/8/00; Revision Checklist 184.          262.34(g)-(i).
Organobromine Production Wastes          7 Del. Code, Secs.  6305 and
 Vacatur, 65 FR 14472-14475, 3/17/00;     6305(a); DRGHW 261.32/Table,
 Revision Checklist 185.                  261.33(f)/Table, 261
                                          Appendices VII and VIII,
                                          268.33, 268.40/Table,
Petroleum Refining Process Wastes--      7 Del Code, Sec.  6305(a),
 Clarification, 64 FR 36365-36367, 6/8/   DRGHW 261.31(a)/Table.
 00; Revision Checklist 187.

    In addition, Delaware will be authorized to carry out, in lieu of 
the Federal program, State-initiated changes to provisions of the 
State's Program. The following State-initiated changes are equivalent 
and analogous to the numerically-identical RCRA provisions found at 
Title 40 of the Code of Federal Regulations: DRGHW 260.10; 
261.3(c)(2)(ii)(D)(2); 261.3(d)(2); 261.4(b)(10); 261.5; 264.1(g)(2); 
264.13; 265.13; 265.56(j)(5); 265.194(b)(1); 268.4(a)(3)(ii)(B) and 
273.32(a)(1). Two other state-initiated changes being authorized by 
this notice are DRGHW 122.1(c)(2)(i) and 122.42, which are equivalent 
and ana1ogous to 40 CFR 270.1(c)(2)(i) and 270.42. Delaware added a 
``Statement of Authority'' prior to Part 260 which does not have an 
analogue in the Federal program.

[[Page 8902]]

H. Where Are the Revised State Rules Different From the Federal 

    Delaware's regulations now require that within 10 days of 
acceptance by a transporter, a copy of the manifest must be sent to the 
State in which the generator is located and to the State in which the 
facility is located. Only the 10-day deadline is a new requirement. The 
Federal program does not require routine transmission of manifests to 
States. Therefore, the State requirement remains broader in scope than 
the Federal program.

I. Who Handles Permits After This Authorization Takes Effect?

    After authorization, Delaware 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 such time as formal transfer of EPA 
permit responsibility to Delaware occurs and EPA terminates its 
permits. EPA and Delaware agree to coordinate the administration of 
permits in order to maintain consistency. EPA will not issue any new 
permits or new portions of permits for the provisions listed in the 
chart in section G after the effective date of this authorization. EPA 
will continue to implement and issue permits for HSWA requirements for 
which Delaware is not yet authorized.

J. What is Codification and is EPA Codifying Delaware'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. We do this by referencing 
the authorized State rules in 40 CFR 272. We reserve the amendment of 
40 CFR part 272, subpart I for this authorization of Delaware'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); 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 (Public Law 104-4). For the same reason, 
this action does not have tribal implications within meaning of 
Executive Order 13175 (65 FR 68249, November 6, 2000). This action does 
not have substantial direct effects on tribal governments, on the 
relationship between the Federal government and the Indian tribes, or 
on the distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
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 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, 1998) by examining 
the takings implications of the rule in accordance with the Attorney 
Generals' ``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 
    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 continuing this document and 
other required information to the U.S. Senate, the U.S. House 
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 April 29, 2002.

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, 6974(b).

    Dated: February 15, 2002.
Donald S. Welsh,
Regional Administrator, EPA Region III.
[FR Doc. 02-4528 Filed 2-26-02; 8:45 am]