[Federal Register Volume 65, Number 147 (Monday, July 31, 2000)]
[Rules and Regulations]
[Pages 46606-46612]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-19114]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[FRL-6840-9]


Commonwealth of Virginia: Final Authorization of State Hazardous 
Waste Management Program Revision

AGENCY: Environmental Protection Agency (EPA).

[[Page 46607]]


ACTION: Immediate final rule.

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SUMMARY: The Commonwealth of Virginia 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 Commonwealth's changes through 
this immediate final action.
    EPA is publishing this rule to authorize the changes without a 
prior proposal because we view this as a routine program change and do 
not expect comments that oppose this approval. Unless we get written 
comments which oppose this authorization during the comment period, the 
decision to authorize Virginia's changes to its hazardous waste program 
will take effect as provided below. If we get comments that oppose this 
action, or portions thereof, we will publish a document in the Federal 
Register withdrawing this rule, or portions thereof, 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 changes.

DATES: This Final authorization will become effective on September 29, 
2000, unless EPA receives adverse written comment by August 30, 2000. 
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 Joanne Cassidy, Mailcode 3WC21, 
RCRA State Programs Branch, U.S. EPA Region III, 1650 Arch Street, 
Philadelphia, PA 19103; phone number: (215) 814-3381.
    You can view and copy Virginia's application from 8:15 a.m. to 4:30 
p.m., Monday through Friday, at the following addresses:

Virginia Department of Environmental Quality, 629 East Main Street, 
Richmond, Virginia 23219; phone number: (804) 698-4213;
Virginia Department of Environmental Quality, West Central Regional 
Office, 3019 Peters Creek Road, Roanoke, Virginia 24019; phone number: 
(540) 562-6700; and
EPA Region III, Library, 2nd Floor, 1650 Arch Street, Philadelphia, PA 
19103; phone number: (215) 814-5254.

FOR FURTHER INFORMATION CONTACT: Joanne Cassidy, Mailcode 3WC21, RCRA 
State Programs Branch, U.S. EPA Region III, 1650 Arch Street, 
Philadelphia, PA 19103; phone number: (215) 814-3381.

SUPPLEMENTARY INFORMATION:

A. Why Are Revisions to State Programs Necessary?

    States which have received Final authorization from EPA under 
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?

    EPA concludes that Virginia's application to revise its authorized 
program meets all of the statutory and regulatory requirements 
established by RCRA. Therefore, EPA grants Virginia Final authorization 
to operate its hazardous waste program with the changes described in 
the authorization application. Virginia 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 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 Virginia, 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 Virginia subject 
to RCRA will have to comply with the authorized Commonwealth 
requirements instead of the equivalent Federal requirements in order to 
comply with RCRA. Virginia has enforcement responsibilities for 
violations of its program, but EPA retains authority under RCRA 
sections 3007, 3008, 3013, and 7003, which include, among others, 
authority to:
     Perform inspections, and require monitoring, tests, 
analyses or reports;
     Enforce RCRA requirements and suspend or revoke permits; 
and
     Take enforcement actions regardless of whether the 
Commonwealth has taken its own actions.
    This action does not impose additional requirements on the 
regulated community because the regulations for which Virginia 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 the Commonwealth 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 decision, 
or portion(s) thereof, we will withdraw this authorization decision, or 
portion(s) thereof, by publishing a document in the Federal Register 
before the rule becomes effective. EPA will base any further decision 
on the authorization of the Commonwealth 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 EPA receives comments that oppose only the authorization of a 
particular change to the Commonwealth 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.

F. What Has Virginia Previously Been Authorized for?

    The Commonwealth of Virginia initially received Final authorization 
on December 4, 1984, effective December 18, 1984 (49 FR 47391) to 
implement the RCRA hazardous waste management

[[Page 46608]]

program. Since receiving final authorization, the Commonwealth has 
restructured its hazardous waste management program and revised its 
statutes and regulations. Virginia's Attorney General's Statement, 
dated June 26, 1984, amended by letter dated September 5, 1984, which 
was a component of the Commonwealth's original final authorization, 
cited the Virginia Waste Management Act (VWMA) contained in Title 32.1 
of the Code of Virginia (Va. Code) as the controlling statute for the 
Commonwealth's hazardous waste program. Since then, the statutes have 
undergone a number of revisions, and in 1988, the Virginia General 
Assembly recodified the VWMA in the Va. Code, Chapter 14, Title 10.1.
    The Virginia Waste Management Act was originally written to give 
the primary implementation of the hazardous waste program to the 
Virginia Department of Health. In 1986, the Virginia General Assembly 
created the Department of Waste Management under the new cabinet-level 
Secretary of Natural Resources. This action made the new department the 
successor in interest to the Department of Health in authority, duty 
and responsibility for solid, hazardous, and radioactive waste. The 
Assembly also retained in effect all the regulations that the Board of 
Health had issued in those areas. In 1992, the General Assembly 
established the new Department of Environmental Quality (DEQ) 
consisting of the Department of Air Pollution Control, the Department 
of Waste Management, the State Water Control Board, and the Council on 
the Environment. Based on legislative authority, the DEQ has the sole 
responsibility for the administration of laws and regulations 
concerning hazardous wastes. In 1993, the functions of the Hazardous 
Waste Program were vested in the DEQ Division of Waste Programs and six 
regional offices. This transfer of authority for the management of the 
Hazardous Waste Program was approved by EPA as an authorized program 
revision effective August 13, 1993 (58 FR 32855).
    The Virginia General Assembly has made numerous amendments to the 
regulations promulgated under the Commonwealth's Waste Management Act 
in order to remain consistent with, and equivalent to, the Federal 
regulations promulgated under RCRA Subtitle C. Specifically, Virginia 
has revised the format of its hazardous waste regulations from one of 
incorporation of the full text of the Federal regulatory language with 
modifications, to ``incorporation by reference'' with modifications.

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

    Over a period of years, Virginia submitted several sets of draft 
regulations and elements of a draft authorization application to EPA 
for review and comment. The Agency reviewed each submission and 
provided comments to Virginia. On June 23, 2000, Virginia submitted an 
official, complete program revision application, seeking authorization 
for the restructuring of its hazardous waste program, as well as 
authorization of its program revisions, in accordance with 40 CFR 
271.21. EPA Region III worked closely with Virginia in the development 
of the authorization package; therefore, EPA's comments relating to 
Virginia's legal authority to carry out the Federally delegated 
programs, the scope of and coverage of activities regulated, 
Commonwealth procedures, including the criteria for permit reviews, 
public participation and enforcement capabilities, were addressed 
before the submission of the final application by the Commonwealth. The 
Commonwealth solicited public comments on its draft regulations. EPA 
reviewed Virginia's application, and now makes an immediate final 
decision, subject to receipt of adverse written comment, that the 
Commonwealth's hazardous waste program revision satisfies all of the 
requirements necessary to qualify for final authorization. 
Consequently, EPA intends to grant Virginia final authorization for the 
program modifications contained in the program revision application.
    Virginia's program revision application includes Commonwealth 
regulatory changes that are equivalent to the Federal regulations 
published in the July 1, 1995 version of Title 40 of the Code of 
Federal Regulations, parts 124, 260 through 266, 268, 270, and 273, 
except for the final rules published in the Federal Register on 
September 10, 1992 (57 FR 41566); May 3, 1993 (58 FR 26420); June 17, 
1993 (58 FR 33341); March 4, 1994 (59 FR 10550); December 6, 1994 (59 
FR 62896); January 3, 1995 (60 FR 241); January 13, 1995 (60 FR 3089); 
February 9, 1995 (60 FR 7824); April 4, 1995 (60 FR 17001); April 17, 
1995 (60 FR 19165); May 12, 1995 (60 FR 25619); May 19, 1995 (60 FR 
26828); and on June 29, 1995 (60 FR 33911).
    Virginia is today seeking authority to administer the Federal 
requirements that are listed in the chart below. This chart also lists 
the Commonwealth analogs that are being recognized as no less stringent 
than the analogous Federal requirements. Unless otherwise stated, the 
Commonwealth's statutory references are to the Code of Virginia (Va. 
Code) Title 10.1, Chapter 14, Secs. 10.1-1400 through 1457 (1999 
Replacement Volume). The regulatory references are to Title 9, Virginia 
Administrative Code (9 VAC) effective February 17, 1999.

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   Federal requirement \1\            Analogous Virginia authority
------------------------------------------------------------------------
Part 260--Hazardous Waste      Code of Virginia (Va. Code) Secs.  10.1-
 Management System: General,    1400, 10.1-1402(1), 10.1-1402(11); Title
 as of July 1, 1995.            9, Virginia Administrative Code (9 VAC)
                                Secs.  20-60-12, 20-60-14, 20-60-17A, 20-
                                60-18, 20-60-260, 20-60-1370, 20-60-
                                1380, 20-60-1390, 20-60-1400, 20-60-1410
                                A, 20-60-1420 A&B, 20-60-1420 C1, 20-60-
                                1430 A1-4.
                               (More stringent provisions are: 20-60-
                                1370 B, 20-60-1420 B2, 20-60-1420 C1a).
Part 261--Identification and   Va. Code Secs.  10.1-1402(8), 10.1-
 Listing of Hazardous Waste,    1402(11), 10.1-1402(22); 9 VAC Secs.  20-
 as of July 1, 1995.            60-18, 20-60-261, 20-60-1430 A5.
                               (More stringent provisions are: 20-60-261
                                B1 and 20-60-261 B5).
Part 262--Standards            Va. Code Secs.  10.1-1402(1), 10.1-
 Applicable to the Generators   1402(7), 10.1-1402(11), 10.1-1426(B) and
 of Hazardous Wastes, as of     10.1-1450; 9 VAC Secs.  20-60-18, 20-60-
 July 1, 1995.                  262, 20-60-305, 20-60-315, 20-60-325.
                               (More stringent provisions are: 260-60-
                                262 B4 and 20-60-262 B6).
Part 263--Standards            Va. Code Secs.  10.1-1402(1), 10.1-
 Applicable to the              1402(7), 10.1-1402(11), 10.1-1402(18),
 Transporters of Hazardous      10.1-1426(A) & (B) and 10.1-1450; 9 VAC
 Wastes, as of July 1, 1995.    Secs.  20-60-263, 20-60-305, 20-60-315,
                                20-60-325, 20-60-420A-D, 20-60-430, 20-
                                60-440, 20-60-450H, 20-60-460, 20-60-
                                470, 20-60-480, 20-60-490, 20-60-500.
                               (More stringent provisions are: 20-60-440
                                C, 20-60-480 G2, 20-60-490 C & D).
Part 264--Standards for        Va. Code Secs.  10.1-1402(1), 10.1-
 Owners and Operators of        1402(7), 10.1-1402(11), 10.1-1402(18),
 Hazardous Waste Treatment,     10.1-1426(A), (B) & (C) 10.1-1427(B) and
 Storage, and Disposal          10.1-1428; 9 VAC Secs.  20-60-17B, 20-60-
 Facilities, as of July 1,      18, 20-60-264, 20-60-305, 20-60-315, 20-
 1995.                          60-325, 20-60-1410B, 20-60-1420 C2.

[[Page 46609]]

 
                               (More stringent provisions are: 20-60-264
                                B4, 20-60-264 B5, 20-60-264 B11, 20-60-
                                264 B14, 20-60-264 B15a).
Part 265--Interim Status       Va. Code Secs.  10.1-1402(1), 10.1-
 Standards for Owners and       1402(11), 10.1-1426(A). 9 VAC Secs.  20-
 Operators of Hazardous Waste   60-17B, 20-60-18, 20-60-265, 20-60-305,
 Treatment, Storage, and        20-60-315, 20-60-325, 20-60-1410B, 20-60-
 Disposal Facilities, as of     1420 C2.
 July 1, 1995.
                               (More stringent provisions are: 20-60-265
                                B3, 20-60-265 B4, 20-60-265 B5, 20-60-
                                265 B6, 20-60-265 B7, 20-60-265 B15, 20-
                                60-265 B16, 20-60-265 B17).
Part 266--Standards for the    Va. Code Secs.  10.1-1402(1), 10.1-
 Management of Specific         1402(7), 10.1-1402(11), 10.1-1402(18),
 Hazardous Wastes and           10.1-1426(A), (B) & (C) 10.1-1427(B) and
 Specific Types of Hazardous    10.1-1428; 9 VAC Secs.  20-60-18, 20-60-
 Waste Management Facilities,   266, 20-60-420F.
 as of July 1, 1995.
                               (More stringent provisions are: 20-60-266
                                B1-3).
Part 268--Land Disposal        Va. Code Secs.  10.1-1402(1), 10.1-
 Restrictions, as of July 1,    1402(11); 9VAC Secs.  20-60-18, 20-60-
 1995.                          268, 20-60-1410C.
Part 270--The Hazardous Waste  Va. Code Secs.  10.1-1402, 10.1-1426,
 Permit Program and Part 124--  10.1-1427, 2.1-342(A); 9 VAC Secs.  20-
 Permit Procedures, as of       60-14 B2 & B4, 20-60-17A, 20-60-18, 20-
 July 1, 1995.                  60-70 E & F, 20-60-124, 20-60-270, 20-60-
                                970 through 20-60-1250, Appendix 11.2.
                               (More stringent provisions are: 20-60-270
                                B4, 20-60-970 C, 20-60-1010 B5, 20-60-
                                1010 B10, 20-60-1010 K3d, 20-60-1010
                                K4b, 20-60-1060 L1&2a, 20-60-1170 B4, 20-
                                60-1170 C4, 20-60-1170 C7, 20-60-1200
                                C1b, 20-60-1200 E, Appendix 11.2 entries
                                A(4)(b), B(1)(d), B(2)(b), B(5)(a)&(b),
                                C(1)(a), C(3), I(3)&(4), and L(8)).
Part 273--Standards for        Va. Code Secs.  10.1-1402(1), 10.1-
 Universal Waste Management,    1402(7), 10.1-1402(8), 10.1-1402(11),
 as of July 1, 1995.            10.1-1450, 10.1-1426(A) & (C); 9 VAC
                                Secs.  20-60-273, 20-60-305, 20-60-315,
                                20-60-325.
                               (More stringent provision is: 20-60-273
                                B3).
------------------------------------------------------------------------
                           Non-HSWA Cluster II
------------------------------------------------------------------------
Radioactive Mixed Waste (MW)   Va. Code Secs.  10.1-1400 ``Solid
 (RCRA Secs.  1004(27) and      waste'', 10.1-1402(22); 9VAC 20-60-261
 3001(b)).                      B8.
------------------------------------------------------------------------
                             HSWA Cluster I
------------------------------------------------------------------------
Sharing of Information With    Va. Code Secs.  10.1-1402(1), 10.1-
 the Agency for Toxic           1402(2) and 10.1-1402(9).
 Substances and Disease
 Registry (SI) (RCRA Sec.
 3019(b)).
------------------------------------------------------------------------
\1\ Federal Regulations as published in the 40 CFR, as of July 1, 1995
  (Base Program through RCRA Cluster V), except rules published in the
  Federal Register as noted above.

H. Where Are the Revised Commonwealth Rules Different From the 
Federal Rules?

    The Virginia hazardous waste program contains several provisions 
which are more stringent than is required by the RCRA program as 
codified in the July 1, 1995 edition of Title 40 of the Code of Federal 
Regulations (CFR). These more stringent provisions are part of the 
Federally authorized program and are Federally enforceable. The 
specific more stringent provisions are noted in the table above and the 
Commonwealth's authorization application, and include, but are not 
limited to, the following:
    1. At 9 VAC 20-60-1420 C 1 a, (analog to 40 CFR 260.41(a)), 
Virginia requires compliance with all of 40 CFR part 262, including 
subpart B, the manifest requirements. Under the Federal code, the 
Administrator may only require compliance with subparts A, C, D and E 
of 40 CFR part 262.
    2. In 9 VAC 20-60-261 B 5 (partial analog to 40 CFR 261.5(g)(3)(iv) 
& (v)), a conditionally exempt small quantity generator cannot send 
exempt hazardous waste to a solid waste facility unless that facility 
has written permission from the Department to receive such wastes.
    3. In 9 VAC 20-60-262 B 4, prior to March 1, 1988, generators 
accumulating hazardous waste in accordance with 40 CFR 262.34 were 
required to notify the Department of that activity. Generators 
intending to open an accumulation area after March 1, 1988 are required 
to notify the Department of that intent 15 days before establishing the 
accumulation area. New generators are required to identify the location 
of accumulation areas when filing a Notification of Hazardous Waste 
Activity.
    4. In 9 VAC 20-60-263 B 1, transporters of hazardous waste must 
comply with Part VII of the Virginia regulations. Part VII contains 
some provisions that are more stringent than the Federal requirements 
of 40 CFR part 263. Specifically, 9 VAC 20-60-440 C requires that 
identification numbers be placed on correspondence and spill documents; 
9 VAC 20-60-480 G2 requires that any manifest be revised instead of 
allowing the designation by generators of an alternate facility on the 
manifest; and 9 VAC 20-60-490 C and D require that additional parties 
be notified in the case of a discharge.
    5. In 9 VAC 20-60-264 B14, 9 VAC 20-60-265 B17, and 9 VAC 20-60-270 
B4, underground injection of hazardous waste is prohibited. From the 
initiation of the hazardous waste program in Virginia, the Commonwealth 
determined that suitable geological conditions for underground 
injection facilities do not exist.
    6. In addition to the requirements of 40 CFR 265.91, at 9 VAC 20-
60-265 B7, Virginia requires that a log must be made of each 
groundwater monitoring well describing the soils and rock encountered, 
the permeability of formations, and the cation exchange capacity of 
soils encountered, and a copy of the log with appropriate maps must be 
sent to the Department.
    7. In Part XI, nine types of permit modifications (e.g., waste pile 
management practices and substitution of non-hazardous waste fuel) are 
considered to be more extensive modifications than the Federal program 
requires at 40 CFR 270.42. That is, EPA has three ``classes'' of permit

[[Page 46610]]

modifications triggering three types of procedures to affect their 
approval. These procedures consist of simple notification, agency 
approval, or public involvement. In some instances, Virginia re-
designates EPA classes of permit modifications, requiring a more 
rigorous procedure for approval.
    The Commonwealth's regulations do not include a number of 
provisions analogous to the Federal rules listed below. The following 
provisions are not part of the Commonwealth's program being authorized 
by today's action:

Virginia is not seeking authorization at this time for the final rules 
published in the Federal Register on December 6, 1994 (59 FR 62896); 
January 3, 1995 (60 FR 241); January 13, 1995 (60 FR 3089); February 9, 
1995 (60 FR 7824); April 4, 1995 (60 FR 17001); April 17, 1995 (60 FR 
19165); May 12, 1995 (60 FR 25619); May 19, 1995 (60 FR 26828), and on 
June 29, 1995 (60 FR 33911).

    The Commonwealth's regulations include a number of provisions that 
are not part of the Commonwealth's program being authorized by today's 
action. Such provisions include, but are not limited to, the following:
    1. Virginia is not seeking authorization for hazardous waste 
procedures or the review of petitions regarding equivalent testing, or 
for excluding certain recycled wastes from being classified as solid 
waste.
    2. Virginia has regulations defining how program information is to 
be shared with the public, but is not seeking authorization at this 
time for the Availability of Information requirements relative to RCRA 
Sec. 3006(f).
    3. At 9 VAC 20-60-279, Virginia has adopted provisions addressing 
the used oil management standards, as published in the Federal Register 
on September 10, 1992 (57 FR 41566); May 3, 1993 (58 FR 26420); June 
17, 1993 (58 FR 33341); and March 4, 1994 (59 FR 10550) (40 CFR part 
279). However, the Commonwealth is not seeking authorization for this 
portion of the program at this time.
    4. Section 38.2-2200 of the Code of Virginia allows the 
Commonwealth to act directly against the insurer or guarantor of an 
owner's or operator's financial responsibility. This provision is 
similar to the ability of the Federal government to act under section 
3004(t) of RCRA. EPA does not delegate its authority to act under the 
Federal statute; therefore, in this situation, the Virginia law creates 
a parallel cause of action viable in State courts, but the cause of 
action does not limit the availability of the Federal action. The 
Commonwealth's cause of action is separate and in addition to any 
Federal action.
    5. At 9 VAC 20-60-262 A, 20-60-262 B2 and 20-60-262 B3, Virginia 
has adopted the requirements addressed by 40 CFR 262.12, 262.53, 
262.54, 262.55, 262.56 and 262.57, and has correctly left the 
implementation authority with EPA for the non-delegable hazardous waste 
import and export requirements. Similarly, at 9 VAC 20-60-268 A and 20-
60-268 B3, the Commonwealth has correctly left the implementation 
authority with EPA for the non-delegable provisions at 40 CFR 268.5, 
268.6, 268.10, 268.11, 268.12, 268.40(b), 268.42(b) and 268.44(a) 
through (g).
    The Commonwealth's regulations contain several requirements that 
are broader in scope than the Federal program, and are not part of the 
program being authorized by today's action. EPA cannot enforce these 
broader-in-scope requirements. Although compliance with these 
requirements is appropriate in accordance with Commonwealth law, they 
are not RCRA requirements. Such provisions include but are not limited 
to the following:
    1. At 9 VAC 20-60-420 E, 20-60-450, 20-60-490 B 3 and Appendix 7.1, 
Virginia requires all transporters, including universal waste 
transporters, to obtain a transporter permit and pay a permit 
application fee if they handle shipments that originate or terminate in 
the Commonwealth.
    2. At 9 VAC 20-60-266 B 3, to the degree Virginia places 
requirements beyond Federal requirements on transporters for shipments 
of spent lead-acid batteries destined for recovery, Virginia is broader 
in scope.
    3. In Part XII, Virginia requires permit application fees from 
hazardous waste storage, treatment and disposal facilities.

I. Who Handles Permits After the Authorization Takes Effect?

    After authorization, Virginia 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 the timing and process for effective 
transfer to the Commonwealth are mutually agreed upon. Until such time 
as formal transfer of EPA permit responsibility to the Commonwealth 
occurs and EPA terminates its permit, EPA and the Commonwealth agree to 
the joint administration (e.g. modifications) of the EPA and 
Commonwealth permits so they remain consistent over time. 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 Virginia is not yet authorized.

J. How Does Today's Action Affect Indian Country (18 U.S.C. 115) in 
Virginia?

    Virginia is not seeking authority to operate the program on Indian 
lands, since there are no Federally-recognized Indian Lands in the 
Commonwealth.

K. What Is Codification and Is EPA Codifying Virginia's Hazardous 
Waste Program as Authorized in This Rule?

    Codification is the process of placing the Commonwealth's statutes 
and regulations that comprise the Commonwealth's authorized hazardous 
waste program into the Code of Federal Regulations. We do this by 
referencing the authorized Commonwealth rules in 40 CFR part 272. We 
reserve the amendment of 40 CFR part 272, subpart VV, for such future 
use.

L. Regulatory Analysis and Notices

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 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. Before promulgating an EPA rule for which a written statement 
is needed, 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

[[Page 46611]]

have developed under section 203 of the UMRA a small government agency 
plan. The plan must provide for notifying potentially affected small 
governments, enabling officials of affected small governments to have 
meaningful and timely input in the development of EPA regulatory 
proposals with significant Federal intergovernmental mandates, and 
informing, educating, and advising small governments on compliance with 
the regulatory requirements.
    EPA has determined that section 202 and 205 requirements do not 
apply to today's action because this rule does not contain a Federal 
mandate that may result in annual expenditures of $100 million or more 
for State, local, and/or tribal governments in the aggregate, or the 
private sector. Costs to Commonwealth, local and/or tribal governments 
already exist under the Virginia program, and today's action does not 
impose any additional obligations on regulated entities. In fact, EPA's 
approval of Commonwealth programs generally may reduce, not increase, 
compliance costs for the private sector. Further, as it applies to the 
Commonwealth, this action does not impose a Federal intergovernmental 
mandate because UMRA does not apply to duties arising from 
participation in a voluntary Federal program.
    The requirements of section 203 of UMRA also do not apply to 
today's action because this rule contains no regulatory requirements 
that might significantly or uniquely affect small governments. Although 
small governments may be hazardous waste generators, transporters, or 
own and/or operate TSDFs, they are already subject to the regulatory 
requirements under the existing Commonwealth laws that are being 
authorized by EPA, and, thus, are not subject to any additional 
significant or unique requirements by virtue of this program approval.

Certification Under the Regulatory Flexibility Act (RFA), as Amended by 
the Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA), 5 U.S.C. 601 et seq.

    The RFA generally requires an agency to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute unless the agency certifies that the rule will not have a 
significant economic impact on a substantial number of small entities. 
Small entities include small businesses, small organizations, and small 
governmental jurisdictions.
    For purposes of assessing the impacts of today's action on small 
entities, a small entity is defined as: (1) A small business as 
specified in the Small Business Administration regulations; (2) a small 
governmental jurisdiction that is a government of a city, county, town, 
school district or special district with a population of less than 
50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of this authorization on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. This action 
does not impose any new requirements on small entities because small 
entities that are hazardous waste generators, transporters, or owners 
and/or operators of TSDFs are already subject to the regulatory 
requirements under the Commonwealth laws which EPA is now authorizing. 
This action merely authorizes for the purpose of RCRA section 3006 
those existing Commonwealth requirements.

Submission to Congress and the Comptroller General

    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. The EPA will submit a report containing this rule 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 of the rule in today's Federal Register. This rule is 
not a ``major rule'' as defined by 5 U.S.C. 804(2).

Compliance With Executive Order 12866

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

Compliance With Executive Order 13132 (Federalism)

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have Federalism implications.'' 
``Policies that have Federalism implications'' is defined in the 
Executive Order to include regulations that 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.''
    Under section 6 of Executive Order 13132, EPA may not issue a 
regulation that has Federalism implications, that imposes substantial 
direct compliance costs, and that is not required by statute, unless 
the Federal government provides the funds necessary to pay the direct 
compliance costs incurred by State and local governments, or EPA 
consults with State and local officials early in the process of 
developing the proposed regulation. EPA also may not issue a regulation 
that has Federalism implications and that preempts State law unless the 
Agency consults with State and local officials early in the process of 
developing the proposed regulation.
    This authorization does not have Federalism implications. It will 
not have a substantial direct effect on 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, because this rule affects only 
one State. This action simply approves Virginia's proposal to be 
authorized for updated requirements of the hazardous waste program that 
the Commonwealth has voluntarily chosen to operate.
    Further, as a result of this action, newly authorized provisions of 
the Commonwealth's program apply in Virginia in lieu of the equivalent 
Federal program provisions implemented by EPA under HSWA. Affected 
parties are subject only to those authorized Commonwealth program 
provisions, as opposed to being subject to both Federal and 
Commonwealth regulatory requirements. Thus the requirements of section 
6 of the Executive Order do not apply.

Compliance With Executive Order 13045

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks,'' applies to any rule that: (1) The 
Office of Management and Budget determines is ``economically 
significant'' as defined under Executive Order 12866; and (2) concerns 
an environmental health or safety risk that EPA has reason to believe 
may have a disproportionate effect on children. If the regulatory 
action meets both criteria, the Agency must evaluate the environmental 
health or safety effects of the planned rule on children and explain 
why the planned regulation is

[[Page 46612]]

preferable to other potentially effective and reasonably feasible 
alternatives considered by the Agency.
    EPA interprets Executive Order 13045 as applying only to those 
regulatory actions that are based on health or safety risks, such that 
the analysis required under section 5-501 of the Order has the 
potential to influence the regulation. This rule is not subject to 
Executive Order 13045 because it authorizes a State program.

Compliance With Executive Order 13084

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments, or EPA consults with those 
governments. If EPA complies with consulting, Executive Order 13084 
requires EPA to provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation.
    In addition, Executive Order 13084 requires EPA to develop an 
effective process permitting elected officials and other 
representatives of Indian tribal governments ``to provide meaningful 
and timely input in the development of regulatory policies on matters 
that significantly or uniquely affect their communities.''
    This rule is not subject to Executive Order 13084 because it does 
not significantly or uniquely affect communities of Indian tribal 
governments. Virginia is not authorized to implement the RCRA hazardous 
waste program in Indian country, since there are no Federally-
recognized Indian lands in the Commonwealth.

Paperwork Reduction Act

    Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., Federal 
agencies must consider the paperwork burden imposed by any information 
request contained in a proposed rule or a final rule. This rule will 
not impose any information requirements upon the regulated community.

National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 104-113, section 12(d) (15 
U.S.C. 272 note) directs EPA to use voluntary consensus standards in 
its regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs EPA 
to provide Congress, through OMB, explanations when the Agency decides 
not to use available and applicable voluntary consensus standards.
    This action does not involve such technical standards. Therefore, 
EPA did not consider the use of any voluntary consensus standards.

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: July 17, 2000.
Bradley M. Campbell,
Regional Administrator, EPA Region III.
[FR Doc. 00-19114 Filed 7-28-00; 8:45 am]
BILLING CODE 6560-50-P