[Federal Register: November 9, 2004 (Volume 69, Number 216)]
[Rules and Regulations]
[Page 64861-64865]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09no04-18]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[FRL-7835-9]
Maine: Final Authorization of State Hazardous Waste Management
Program Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Immediate final rule.
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SUMMARY: The State of Maine 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 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 adverse comments that oppose it. Unless
we get written comments which oppose this authorization during the
comment period, the decision to authorize Maine's changes to their
hazardous waste program will take effect. If we get comments that
oppose this action, we will publish a document in the Federal Register
withdrawing this rule before it takes effect and the separate document
in the proposed rules section of this Federal Register will serve as a
proposal to authorize the changes.
DATES: This Final authorization will become effective on January 10,
2005, unless EPA receives adverse written comment by December 9, 2004.
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: Dockets containing copies of the State of Maine's revision
application and the materials which the EPA used in evaluating the
revision have been established at the following two locations: (i) EPA
Region 1 Library, One Congress Street-11th Floor, Boston, MA 02114-
2023; business hours Monday through Thursday 10 a.m.-3 p.m., tel: (617)
918-1990; and (ii) Maine Department of Environmental Protection,
Hospital Street, Augusta, ME 04333; business hours Monday through
Thursday 8:30 a.m.-4:30 p.m., and Friday 8:30 a.m.-12:30 p.m., tel:
(207) 287-7843. Records in these dockets are available for inspection
during normal business hours.
FOR FURTHER INFORMATION CONTACT: Sharon Leitch, Hazardous Waste Unit,
EPA Region 1, One Congress Street, Suite 1100 (CHW), Boston, MA 02114-
2023; tel: (617) 918-1647, e-mail: leitch.sharon@epa.gov.
SUPPLEMENTARY INFORMATION:
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
[[Page 64862]]
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 have concluded that Maine's application to revise its authorized
program meets all of the statutory and regulatory requirements
established by RCRA. Therefore, we grant Maine Final authorization to
operate its hazardous waste program with the changes described in the
authorization application. Maine has responsibility for permitting
Treatment, Storage, and Disposal Facilities (TSDFs) 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 Maine, including issuing 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 Maine 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. Maine has enforcement responsibilities under its State hazardous
waste program for violations of such program, but EPA retains its full
authority under RCRA sections 3007, 3008, 3013, and 7003, which
includes, among others, authority to:
Perform inspections, and require monitoring, tests,
analyses or reports.
Enforce RCRA requirements and suspend or revoke permits.
Take enforcement actions.
This action does not impose additional requirements on the
regulated community because the regulations for which Maine is being
authorized by today's action are already effective under state law, 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 adverse 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 based upon this proposed rule that also
appears in today's Federal Register. You may not have another
opportunity to comment. If you want to comment on this authorization,
you should do so at this time.
If we receive adverse 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 Maine Previously Been Authorized for?
The State of Maine initially received Final authorization on May 6,
1988, effective May 20, 1988 (53 FR 16264) to implement the RCRA
hazardous waste management program. We granted authorization for
changes to their program on June 24, 1997, effective August 25, 1997
(62 FR 34007).
G. What Changes Are We Authorizing With Today's Action?
On September 27, 2004, Maine submitted a final complete program
revision application, seeking authorization for their changes in
accordance with 40 CFR 271.21. In particular, Maine is seeking
authorization for the Universal Waste Rule and for the metals portion
of the TCLP rule, the authorization of which is a prerequisite for
authorization of the Universal Waste Rule. Maine is including
batteries, mercury thermostats, lamps, CRTs, mercury devices, motor
vehicle mercury switches, and PCB ballasts on their list of universal
wastes. In general, the Universal Waste Rule establishes streamlined
hazardous waste management regulations which are intended to encourage
the recycling of certain widely generated wastes, such as batteries.
We are now making an immediate final decision, subject to receipt
of written comments that oppose this action, that Maine's hazardous
waste program revisions satisfy all of the requirements necessary to
qualify for Final authorization. Therefore, we grant Maine Final
authorization for the following program changes:
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Description of Federal requirement and Analogous State authority
checklist reference number \1\
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Consolidated Checklist for the Toxicity Characteristic Revisions as of
June 30, 2001
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(74) Toxicity Characteristic Revisions: 55 850.3A(2);
FR 11798, 3/29/90 as amended on 6/29/90, 850.3A(3)(a)(ii)(b);
55 FR 26986 (regarding metals other than 850.3A(3)(c); 850.3A(3)(d);
chrome); 850.3A(4)(a)(xiv);
850.3B(5); 850.3B(5)(a) &
(b); 850.3C Hazard Codes;
850, Appendix II; 852,
Appendix I; 855.9G.
(80) Hydrocarbon Recovery Operations: 55
FR 40834, 10/5/90 as amended on 2/1/91,
56 FR 3978, as amended on 4/2/91, 56 FR
13406, optional rule (ME is not seeking
authorization for this provision);
(84) Chlorofluoro Refrigerants: 56 FR
5910, 2/13/91, optional rule (ME is not
seeking authorization for this
provision);
(108) Toxicity Characteristics Revision;
57 FR 30657, 7/10/92 (ME is not seeking
authorization for this provision);
(117B) Toxicity Characteristic Revision:
57 FR 23062, 6/1/92 (regarding metals
other than chrome);
[[Page 64863]]
(119) Toxicity Characteristic Revision,
TCLP: 57 FR 55114, 11/24/92 optional
rule;
(126) Testing and Monitoring Activities:
58 FR 46040, 8/31/93 (only as it relates
to Appendix I of Part 268);
(157) Land Disposal Restrictions Phase IV:
62 FR 25998, 5/12/97 (to remove and
reserve Appendix I of Part 268);
(192A) Mixture and Derived-From Rules
Revisions: 66 FR 27266, 5/16/01 (ME is
not seeking authorization for the
exclusions in this provision);
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Consolidated Checklist for the Universal Waste Rule as of June 30, 2001
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(142A) Universal Waste Rule: General 850.3A(2); 850.3A(4)(vii);
Provisions; 60 FR 25492, 5/11/95; 850.3A(10); 850.3A(11);
850.3A(13);
850.3A(13)(a)(vi);
850.3A(13)(a)(ix);
850.3A(13)(a)(xiii);
850.3A(13)(b)(1) through
(b)(v); 850.3A(13)(c);
850.3A(13)(d);
(142B) Universal Waste Rule: Specific
Provisions for Batteries, 60 FR 25492, 5/
11/95;
(142C) Universal Waste Rule: Specific 850.3A(13(e);
Provisions for Pesticides, 60 FR 25492, 5/ 850.3A(13)(e)(i);
11/95 (ME is not seeking authorization 850.3A(13)(e)(ii) and
for this provision); (e)(iii); 850.3A(13)(e)(vi)
through (e)(ix);
850.3A(13)(e)(xii) and
(e)(xiii);
850.3A(13)(e)(xv);
850.3A(13)(e)(xvi) and
Notes;
850.3A(13)(e)(xix)c.;
850.3A(13)(e)(xxi)a. and
(xxi)c; 850.3A(13)(e)(xxii)
and (e)(xxiii);
850.3A(13)(e)(xxiii)a and
(e)(xxiii)e.;
(142D) Universal Waste Rule: Specific
Provisions for Thermostats, 60 FR 25492,
5/11/95;
(143E) Universal Waste Rule: Petition
Provisions to Add a New Universal Waste,
60 FR 25492, 5/11/95;
(152) Imports and Exports of Hazardous 850.3A(13)(e)(xxv)c.;
Waste: Implementation of OECD Council 850.3A(13)(e)(xxvi) and
Decision, 61 FR 16290, 7/11/96; (e)(xxvii);
850.3A(13)(f)(iv) through
(f)(vi); 850.3A(13)(g);
850.3A(g)(ii);
850.3A(13)(g)(v);
850.3A(14); 850.3D;
850.3D(1); 850.3D(3)
through (9);
(153) Conditionally Exempt Small Quantity
Generator Disposal Options under Subtitle
D, 61 FR 34252, 7/1/96 (ME is not seeking
authorization for this provision);
(157) Land Disposal Restrictions--Phase 851.3C; 851.3E; 853;
IV,62 FR 25998, 5/12/97 (ME is not 853.10B; 853.11O; 853.11Q,
seeking authorization for this 854; 856; 857.4; 857.7D;
provision); 857.7H 857.9A; 857.9A(1),
(2); 857.9A(3)(f); 857.9C;
(166) Recycled Used Oil Management
Standards; Technical Correction and
Clarification, 63 FR 24963, 5/6/98 and 63
FR 37780, 7/14/98 (ME is not seeking
authorization for this provision);
(169) Petroleum Refining Process Wastes,63
FR 42110, 8/6/98 (ME is not seeking
authorization for this provision);
(176) Universal Waste Rule--Technical
Amendments; 63 FR 71225, 12/24/98;
(181) Universal Waste Rule: Specific
Provisions for Hazardous Waste Lamps, 64
FR 36466, 7/6/99;
------------------------------------------------------------------------
\1\ State of Maine's Hazardous Waste Management Rules, effective January
23, 2001, November 3, 2002, and July 20, 2004.
Note: The final authorization of new state regulations and
regulation changes is in addition to the previous authorization of
state regulations, which have not changed and remain part of the
authorized program.
H. Where Are the Revised State Rules Different From the Federal Rules?
The most significant differences between the proposed State rules
and the Federal rules are summarized below. It should be noted that
this summary does not describe every difference, or every detail
regarding the differences that are described. Members of the regulated
community are advised to read the complete regulations to ensure that
they understand all of the requirements with which they will need to
comply.
In this program change, EPA is only authorizing the State for the
metals portion of the Toxicity Characteristic (TC) rule, for metals
other than the chrome wastes at 850.3A(4)(xiv). EPA is not authorizing
the Maine analog for 40 CFR 261.4(b)(6)(ii) regarding chrome wastes
because the Maine regulations continue to reference the EP toxicity
test instead of the TCLP test for the specific exemptions for the
leather tanning wastes listed at 850.3A(4)(xiv). This will be corrected
in the next program change for Maine. EPA also is not authorizing Maine
for the organics and pesticide wastes (waste codes D012 through D043),
because Maine has not yet adopted the TC regulations for these wastes.
EPA will continue to directly enforce the TC Rules in Maine for the
remaining Toxicity Characteristics of DO12 through DO43 and the chrome
wastes since both of these rules were promulgated under the Hazardous
Solid Waste Amendments (HSWA) and EPA can enforce this regulation when
necessary. Regulated entities will need to comply with the entire TC
rule, but some parts of the rule will be enforced directly by EPA and
some parts by the State.
1. More Stringent Provisions
There are aspects of the Maine program which are more stringent
than the Federal program. All of these more stringent requirements are,
or will, become part of the federally enforceable RCRA program when
authorized by the EPA, and must be complied with in addition to the
State requirements which track the minimum Federal requirements.
The more stringent requirements relating to the Universal Waste
Rule are as follows: Maine has not added pesticides to its list of
Universal Wastes. Thus, pesticides in Maine remain fully regulated
hazardous wastes. Also, all universal waste, except for ballasts and
[[Page 64864]]
mercury spill residue, must be sent for recycling under state rules
whereas federal rules allow universal waste to be sent to treatment,
storage or disposal facilities (TSDFs) or to a recycler. However,
mercury spill residue and ballasts may be sent to a treatment, storage
or disposal facility under the Maine rules. Also, in the Maine
regulations generators can send universal wastes to their own central
facility but not to another generator's facility and may also ship to a
consolidation facility or directly to a recycler, whereas the federal
rules allow universal waste generators to send their universal waste to
another universal waste handler, a destination facility, or a foreign
destination. Additionally, the State definition of small universal
waste generator, which is an equivalent term for the federal small
quantity handler of universal waste, is more stringent in that to meet
this definition this category of generator can only generate or
accumulate on site no more than 200 universal waste items, including
batteries as described in 850.3A(14), or 4,000 motor vehicle mercury
switches at a time or in any given month, and the total weight must be
no more than 40 tons of cathode ray tubes or 5,000 kg of all other
universal wastes. A one time generation of lamps under a Green Lights
or similar program that is completed within 6 months or a mercury
thermometer collection event, is exempt from the 200 item count
provided that no more than 5,000 kg of universal waste are generated.
In comparison, the federal definition of small quantity handler of
universal waste means a universal waste handler who does not accumulate
more than 5000 kilograms total of universal waste at any time.
2. Broader-in-Scope Provisions
There also are aspects of the Maine program which are broader in
scope than the Federal program. The State requirements which are
broader in scope are not considered to be part of the Federally
enforceable RCRA program. However, they are fully enforceable under
State law and must be complied with by sources within Maine. These
broader-in-scope requirements include the following: Maine has added
PCB ballasts to the State's universal waste rule. PCB ballasts are not
considered a federal hazardous waste however, the federal rule allows a
state to include state-only hazardous wastes in their universal waste
rules. Also, in addition to including lamps that fail the TCLP test in
the State's universal wastes rule, which is equivalent to the Federal
requirements, the State includes lamps that contain mercury but pass
the TCLP test in their universal waste rules, which is a partially
broader in scope provision.
3. Different but Equivalent Provisions
There also are some Maine regulations which differ from, but have
been determined to be equivalent to, the Federal regulations. These
State regulations will become part of the Federally enforceable RCRA
program when authorized by the EPA. These different but equivalent
requirements include the following: (1) In addition to batteries,
thermostats and mercury-containing lamps which are included in the
federal universal waste rule, Maine has added CRTs, mercury devices and
motor vehicle mercury switches to the State's universal waste rule. We
deem this equivalent because the federal Universal Waste Rule allows
states the flexibility to add additional hazardous wastes to their
state list of universal wastes without requiring the waste to be added
at the federal level; (2) In the federal universal waste rule, a
universal waste handler may accumulate universal waste for more than
one year from the date the universal waste is generated, or received
from another handler, if the handler can show that this additional time
is necessary to facilitate proper recovery, treatment or disposal. The
state rule automatically assumes that a full container is necessary to
facilitate proper recovery, treatment or disposal and no further proof
is required to justify a longer storage period provided the generator
complies with certain standards. These standards specify the container
sizes for each type of universal waste and specifies that the storage
must be for no more than 90 days from the date the container becomes
full. We feel that the state's generic determination that a full
container is necessary to facilitate proper recovery, treatment or
disposal and that specific container size requirements apply is
environmentally ``equivalent'' to the federal regulations which require
sources to make case by case demonstrations when accumulating universal
waste for more than one year.
I. Who Handles Permits After the Authorization Takes Effect?
Maine 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 Maine 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. 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 HSWA requirements for which Maine is
not yet authorized.
J. How Does Today's Action Affect Indian Country (18 U.S.C. 115) in
Maine?
Maine has not applied for and is not authorized to carry out its
federal hazardous waste program in Indian country within the State,
which includes the land of the Houlton Band of Maliseet Indians, the
Aroostook Band of Micmacs, the Passamaquoddy Tribe at Pleasant Point
and Indian Township, and the Penobscot Nation. Therefore, this action
has no effect on Indian country. EPA will continue to implement and
administer the federal RCRA program in these lands.
K. What Is Codification and Is EPA Codifying Maine'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 part 272. We reserve the amendment
of 40 CFR part 272, subpart U for this authorization of Maine's program
changes until a later date.
L. 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 section
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 also does not significantly or uniquely affect the
communities or Tribal governments, as
[[Page 64865]]
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 section 3006(b), EPA grants a State's application for
authorization as long as the State meets the criteria required by RCRA.
It would thus be inconsistent with applicable law for EPA, when it
reviews a State authorization application, to require the use of any
particular voluntary consensus standard in place of another standard
that otherwise satisfies the requirements of RCRA. 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 nevertheless will be effective January 10, 2005, because it is
an immediate final rule.
List of Subjects in 40 CFR Part 271
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous waste, Hazardous waste
transportation, Indians--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: October 28, 2004.
Ira Leighton,
Acting Regional Administrator, EPA New England.
[FR Doc. 04-24920 Filed 11-8-04; 8:45 am]
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