[Federal Register Volume 67, Number 70 (Thursday, April 11, 2002)]
[Rules and Regulations]
[Pages 17636-17643]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-8533]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[FRL-7168-8]


Washington: Final Authorization of State Hazardous Waste 
Management Program Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: Washington applied to the United States Environmental 
Protection Agency (EPA) for final authorization of changes to its 
hazardous waste program under the Resource Conservation and Recovery 
Act (RCRA). The EPA has reached a final determination that these 
changes to the Washington hazardous waste program satisfy all 
requirements needed to qualify for final authorization. Thus, with 
respect to these revisions, EPA is granting final authorization to the 
State to operate its program subject to the limitations on its 
authority retained by EPA in accordance with RCRA, including the 
Hazardous and Solid Waste Amendments of 1984.

EFFECTIVE DATE: Final authorization for the revisions to Washington's 
hazardous waste management program shall be effective at 1 p.m. on 
April 11, 2002.

FOR FURTHER INFORMATION CONTACT: Nina Kocourek, U.S. EPA, Region 10, 
Office of Waste and Chemicals Management, 1200 Sixth Avenue, Mail Stop 
WCM-122, Seattle, Washington 98101, phone (206) 553-6502.

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 and consistent with the Federal program. 
States are required to have enforcement authority which is adequate to 
enforce compliance with the requirements of the hazardous waste 
program. Under RCRA section 3009, States are not allowed to impose any 
requirements which are 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 Title 40 of 
the Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 
270, 273 and 279.
    Washington initially received final authorization on January 30, 
1986, effective January 31, 1986 (51 FR 3782), to implement the State's 
dangerous waste management program. EPA also granted authorization for 
changes to Washington's program on September 22, 1987, effective on 
November 23, 1987 (52 FR 35556); August 17, 1990, effective October 16, 
1990 (55 FR 33695); November 4, 1994, effective November 4, 1994 (59 FR 
55322); February 29, 1996, effective April 29, 1996 (61 FR 7736); 
September 22, 1998, effective October 22, 1998 (63 FR 50531); and on 
October 12, 1999, effective January 11, 2000 (64 FR 55142). On August 
2, 2001, Washington submitted a final program revision application to 
EPA in accordance with 40 CFR 271.21 seeking authorization of changes 
to the State program. On January 15, 2002, EPA published its 
preliminary decision announcing its intent to grant Washington final 
authorization for revisions to its federally authorized hazardous waste 
program. Further background on the tentative determination to grant 
authorization appears at 67 FR 1931-1937 (January 15, 2002).

B. What Were the Comments and Responses to EPA's Proposal?

    Along with the tentative determination in EPA's proposal, EPA also 
announced the availability of the authorization revision application 
for public comment. The public comment period ended on February 14, 
2002. EPA received one written comment during the public comment 
period. The significant issues raised by the commenter are summarized 
and responded to below.
    The commenter asserts that the Washington Commercial Fertilizer 
Act, Chapter 15.54 RCW, acts to circumvent and knowingly violate the 
Washington Dangerous Waste Regulations, WAC 173-303. EPA reviewed the 
Washington Commercial Fertilizer Act, also known as the fertilizer 
registration act, to determine the validity of the commenter's 
assertion. Although implemented by the Washington Department of 
Agriculture, the legislative intent of the fertilizer registration act, 
as stated in RCW 15.54.265, is to ensure that all fertilizers in 
Washington meet standards for allowable metals, that fertilizer 
purchasers and users know about the contents of fertilizer products in 
Washington, that the oversight authority of the Washington Department 
of Ecology (Ecology) over waste-derived fertilizers be clarified, and 
that better information be provided to the Washington public on 
fertilizers, soils, and potential health effects. EPA found nothing in 
the fertilizer registration act, per se, to circumvent or knowingly 
violate the Washington Dangerous Waste regulations.
    The fertilizer registration act, at RCW 15.54.270(34), defines 
waste-derived fertilizers as commercial fertilizers derived in whole or 
in part from solid waste as defined in chapter 70.95 or 70.105 RCW, or 
rules adopted thereunder, excluding biosolids regulated under chapter 
70.95J RCW or wastewaters regulated under chapter 90.48 RCW. Before the 
Washington Department of Agriculture can register a waste-derived 
fertilizer or micronutrient fertilizer, it must obtain written approval 
from Ecology as provided by RCW 15.54.820. For waste-derived 
fertilizers, Ecology must evaluate

[[Page 17637]]

whether the use of a proposed waste-derived fertilizer or micronutrient 
fertilizer in Washington is consistent with the state solid waste 
management act, chapter 70.95 RCW, the hazardous waste management act, 
chapter 70.105 RCW, and RCRA. In performing this evaluation, Ecology 
must apply the standards adopted by the Washington Department of 
Agriculture at RCW 15.54.800, which are based on specific standards for 
metals adapted from Canadian standards. If more stringent standards 
apply under chapter 173-303 WAC for the same constituents, Ecology is 
required to use the more stringent standards from the hazardous waste 
regulations. RCW 15.54.820. This assessment for purposes of fertilizer 
registration in the State of Washington does not preempt the 
independently applicable regulations for hazardous waste management in 
the State.
    The commenter asserts that the fertilizer registration act defies 
the RCRA mandate to ban open dumping of solid wastes on the land. EPA 
regulations specifically consider the application of waste-derived 
products on the land and such placement is not prohibited. Rather than 
prohibiting its use, a waste-derived fertilizer, also known as a waste-
derived product, is required to meet the same treatment standards as if 
the product was to be disposed in a landfill. EPA's regulations at 40 
CFR part 266, subpart C, place controls on the management of hazardous 
wastes before such wastes are made into a fertilizer. This use of 
hazardous waste is a type of recycling which in EPA's regulations is 
referred to as ``use constituting disposal.'' A fertilizer produced 
from hazardous waste is an example of a use constituting disposal. 
Consistent with section 1003 of RCRA, EPA encourages materials recovery 
and properly conducted recycling and reuse as an integral component of 
the RCRA cradle-to-grave waste management system. Rather than 
prohibiting the use of waste-derived fertilizers, EPA promulgated 
regulations to require that hazardous wastes that are going to be made 
into fertilizers be managed in accordance with all applicable hazardous 
waste management requirements until the wastes are made into a 
fertilizer. Washington adopted these ``use constituting disposal'' 
rules, 40 CFR 266.20, 266.21 and 266.22, as WAC 173-303-505(1)(a) and 
(b). The hazardous waste program in Washington is authorized for these 
rules. Under the federal RCRA and state authorized rules, a generator 
of a hazardous waste that is going to be made into a fertilizer is 
required to comply with the RCRA generator requirements, including 
manifesting off-site shipments of the wastes. The owners and operators 
of facilities that store recyclable materials that are to be used in a 
manner that constitutes disposal, but who are not themselves the 
ultimate users of the materials, are regulated under all applicable 
provisions of 40 CFR parts 264 and 265, 268 and parts 270 and 124 and 
all corresponding federally authorized state analogs. A RCRA permit is 
generally required for storage of these wastes by fertilizer 
manufacturers.
    Because the use of waste-derived products on the land is also a 
type of land disposal, EPA requires that all waste-derived products 
(except for K061 derived fertilizers\1\) meet the applicable LDR 
treatment standards prior to the land disposal of such wastes. This 
includes meeting the ``Phase IV'' (May 26, 1998, 63 FR 28556) treatment 
standards. Under EPA's regulations, manufacturers of waste derived 
fertilizers must provide notice and certify compliance with LDR 
standards, 40 CFR 268.7, and notify the authorized agency (EPA or the 
authorized state agency implementing the authorized hazardous waste 
program) of each shipment of product made from recycled hazardous 
waste. 40 CFR 268.7(b)(6).
---------------------------------------------------------------------------

    \1\ EPA has proposed to remove the regulatory provision which 
currently exempts fertilizer made from K061 from having to meet 
applicable LDR standards in EPA's proposed rule ``Requirements for 
Zinc Fertilizers Made from Recycled Hazardous Secondary Materials,'' 
dated November 28, 2000. 65 FR 70958.
---------------------------------------------------------------------------

    The commenter asserts that the Washington authorized hazardous 
waste program is not implementing the requirements of the RCRA 
regulations at 40 CFR part 266, subpart C because Washington is not 
implementing the Phase IV LDR regulations. Washington's authorized 
hazardous waste program does not currently include the Phase IV LDR 
standards. Today's final rule will authorize the Phase IV LDR standards 
adopted by Washington in chapter 173-303 WAC. As a matter of state law, 
Washington has been implementing its State Phase IV LDR standards since 
the effective date of the State law. The Phase IV standards which EPA 
promulgated as HSWA regulations are implemented directly by EPA in 
States with authorized hazardous waste programs, such as Washington, 
until the State regulations are authorized by EPA. For purposes of 
federal RCRA, the LDR standards that must be complied with include the 
Phase IV standards and include LDR treatment standards for all 
constituents subject to treatment before disposal on the land.
    The commenter asserts that Ecology is reviewing the use of waste-
derived fertilizers against the Phase III LDR standards rather than the 
Phase IV standards. However, as was discussed earlier, in assessing 
waste-derived fertilizers for purposes of fertilizer registration in 
the State of Washington, Ecology is required to use the more stringent 
standards that apply under chapter 173-303 WAC for the constituents 
addressed by the standards adopted by the Washington Department of 
Agriculture in RCW 15.54.800. For purposes of hazardous waste 
management, the fertilizer registration act does not preempt the 
applicability of the LDR standards, including the more stringent Phase 
IV LDR standards.
    The commenter asserts that the fertilizer registration act limits 
Washington's review of waste-derived fertilizers to nine metals, 
enhances the probability of dilution of hazardous waste by registering 
the fertilizer as a whole product rather than looking at each 
recyclable material, and fails to test total chromium or address total 
metals. The fertilizer registration act requires that the Washington 
Department of Agriculture obtain written approval from Ecology before 
the Department of Agriculture can register a waste-derived fertilizer 
or micronutrient fertilizer in Washington. (RCW 15.54.800). Ecology 
assesses whether or not to provide written approval for registration to 
the Department of Agriculture based on the screening criteria in the 
fertilizer registration act and based on applicable hazardous waste 
regulations. The Washington legislature clearly intended that the 
regulation of waste-derived fertilizer be under the domain of Ecology 
rather than the Department of Agriculture. Notwithstanding the nine-
metal screening criteria found in the fertilizer registration act, the 
LDR regulations in the Washington Dangerous Waste regulations are 
applicable independently of the fertilizer registration act. Under 
current EPA regulations, manufacturers of fertilizers made from 
recycled hazardous wastes are required to comply with applicable LDR 
treatment standards for the hazardous wastes which they contain before 
the fertilizer may be used (40 CFR 268.40) and a notice of each 
shipment of each fertilizer product must be submitted to the authorized 
agency (EPA before the State is authorized and the authorized State 
afterwards) (40 CFR 268.7(b)(6)). These treatment standards must be met 
for characteristic hazardous wastes even if the product does not 
exhibit a

[[Page 17638]]

hazardous waste characteristic. The LDR standards set limits for 
certain metals in hazardous wastes before the waste or waste product 
can be applied to the land.

C. What Decisions Have We Made in This Rule?

    EPA has made a final determination that Washington's application 
for authorization of the revisions to the Washington authorized program 
meets all of the statutory and regulatory requirements established by 
RCRA. Therefore, with respect to the revisions, we are granting 
Washington final authorization to operate its hazardous waste program 
as described in the revision authorization application. Washington's 
authorized program will be responsible for carrying out the aspects of 
the RCRA program described in its revised program application, subject 
to the limitations of RCRA, including the Hazardous and Solid Waste 
Amendments of 1984 (HSWA). Regulatory revisions which are less 
stringent than Federal program requirements and those regulatory 
revisions which are broader in scope than Federal program requirements 
are not part of this final authorization decision. Washington's 
authorized program does not extend to Indian country, except that 
Washington does have jurisdiction over non-trust lands within the 1873 
Survey Area of the Puyallup Reservation as defined in the Settlement 
Agreement between the Puyallup Tribe, Federal, State and local 
governments dated August 27, 1988. Within the 1873 Survey Area of the 
Puyallup Reservation, EPA retains jurisdiction and authority to 
implement RCRA over Indian country and over trust lands, Indians and 
Indian activities.
    New Federal requirements and prohibitions imposed by Federal 
regulations that EPA promulgates under the authority of HSWA are 
implementable by EPA and take effect in States with authorized programs 
before such programs are authorized for the requirements. Thus, EPA 
will implement those HSWA requirements and prohibitions in Washington, 
including issuing permits, until the State is granted authorization to 
do so.

D. What Will Be the Effect of Today's Action?

    A facility in Washington subject to RCRA must comply with the 
authorized State program requirements and with any applicable 
Federally-issued requirements, such as, for example, the federal HSWA 
provisions for which the State is not authorized, and RCRA requirements 
that are not supplanted by authorized State-issued requirements, in 
order to comply with RCRA. Washington has enforcement responsibilities 
under its State hazardous waste program for violations of its currently 
authorized program and will have enforcement responsibilities for the 
revisions which are the subject of this final rule. EPA continues to 
have independent enforcement authority under RCRA sections 3007, 3008, 
3013, and 7003, which include, among others, authority to:
     Do inspections and require monitoring, tests, analyses, or 
reports;
     Enforce RCRA requirements, including State program 
requirements that are authorized by EPA and any applicable Federally-
issued statutes and regulations, and suspend or revoke permits; and
     Take enforcement actions regardless of whether the State 
has taken its own actions.
    This final action approving these revisions will not impose 
additional requirements on the regulated community because the 
regulations for which Washington's program are being authorized are 
already effective under State law.

E. What Rules Are We Authorizing With Today's Action?

    EPA is granting final authorization for the revisions to 
Washington's federally authorized program described in Washington's 
final complete program revision application, submitted to EPA on August 
2, 2001, and deemed complete by EPA on September 19, 2001. We have made 
a final determination that Washington's hazardous waste program 
revisions, as described in this rule, satisfy the requirements 
necessary for final authorization. Regulatory revisions which are less 
stringent than Federal program requirements and those regulatory 
revisions which are broader in scope than Federal program requirements 
are not authorized.
    The following table (Table 1) identifies equivalent and more 
stringent analogues to the Federal regulations for those regulatory 
revisions Washington requested authorization for. All of the referenced 
analogous state authorities were legally adopted and effective as of 
June 10, 2000.

                 Table 1.--Equivalent and More Stringent Analogues to the Federal Regulations 1
----------------------------------------------------------------------------------------------------------------
                                                                                      Analogous state authority
            Checklist 4               Federal requirements      Federal Register         (WAC 173-303- * * *)
----------------------------------------------------------------------------------------------------------------
17P \2\............................  Interim Status........  50 FR 28702, 7/15/85..  803(1), 803(2); 806(2)(a)
                                                                                      806(2)(b); 806(8);
                                                                                      803(2)(a), 803(2)(b);
                                                                                      810(11)(c), 810(11)(e);
                                                                                      805(1)(b), 805(1)(c),
                                                                                      805(8)(f)(i),
                                                                                      805(8)(f)(ii), 805(8)(g),
                                                                                      805(8)(h), 805(8)(i),
                                                                                      805(8)(j).
144................................  Removal of Legally      60 FR 33912, 06/29/95.  803(2)(b), 803(4)(b),
                                      Obsolete Rules.                                 803(5)(a)(i),
                                                                                      803(5)(a)(i)(A),
                                                                                      803(5)(a)(i)(B),
                                                                                      803(5)(a)(i)(C).
148 \2\............................  RCRA Expanded Public    60 FR 63417, 12/11/95.  281(4) and 281(4)(a),
                                      Participation.                                  281(4)(b), 281(4)(c),
                                                                                      281(4)(d), 281(4)(d)(i),
                                                                                      281(4)(d)(i)(A),
                                                                                      281(4)(d)(i)(B),
                                                                                      281(4)(d)(i)(C),
                                                                                      281(4)(d)(i)(D),
                                                                                      281(4)(d)(ii),
                                                                                      281(4)(d)(ii)(A),
                                                                                      281(4)(d)(ii)(B),
                                                                                      281(4)(d)(ii)(C),
                                                                                      281(4)(d)(ii)(D),
                                                                                      281(4)(d)(ii)(E); 281(5),
                                                                                      281(5)(a), 281(5)(b),
                                                                                      281(5)(b)(i),
                                                                                      281(5)(b)(ii),
                                                                                      281(5)(b)(ii)(A),
                                                                                      281(5)(b)(ii)(B),
                                                                                      281(5)(b)(ii)(C),
                                                                                      281(5)(b)(ii)(D),
                                                                                      281(5)(b)(ii)(E),
                                                                                      281(5)(b)(ii)(F),
                                                                                      281(5)(b)(iii), 281(6) and
                                                                                      281(6)(a), 281(6)(b),
                                                                                      281(6)(c), 281(6)(d),
                                                                                      281(6)(e), 281(6)(f); 040;
                                                                                      806(4)(a)(xxv); 810(16);
                                                                                      804(6)(a); 807(6),
                                                                                      807(6)(a), 807(6)(b),
                                                                                      807(6)(b)(i),
                                                                                      807(6)(b)(ii),
                                                                                      807(6)(b)(iii),
                                                                                      807(6)(b)(iv), 807(7),
                                                                                      807(8)-(11), 807(14).

[[Page 17639]]

 
151................................  Land Disposal           61 FR 15566, 04/08/96;  140 (2)(a).
                                      Restrictions Phase      61 FR 15660, 04/08/
                                      III--Decharacterized    96; 61 FR 19117, 04/
                                      Wastewaters,            30/96; 61 FR 33680,
                                      Carbamate Wastes, and   06/28/96; 61 FR
                                      Spent Potliners.        36421, 07/10/96; 61
                                                              FR 43924, 08/26/96;
                                                              62 FR 7502, 02/19/97.
153................................  Conditionally Exempt    61 FR 34252, 07/01/96.  070(8)(b), 070(8)(b)(iii),
                                      Small Quantity                                  070(8)(b)(iii)(A),
                                      Generator Disposal                              070(8)(b)(iii)(B),
                                      Options Under                                   070(8)(b)(iii)(E),
                                      Subtitle D.                                     070(8)(b)(iii)(F),
                                                                                      070(8)(b)(iii)(D),
                                                                                      070(8)(b)(iii)(H).
154 \2\............................  Consolidated Organic    59 FR 62896, 12/06/94;  692(3); 110(3)(g)(ix),
                                      Air Emission            60 FR 26828, 05/19/     110(3)(g)(x); 120(4)(d),
                                      Standards for Tanks,    95; 60 FR 50426; 09/    120(4)(e); 200(1)(b)(i),
                                      Surface Impoundments,   29/95; 60 FR 56952;     200(1)(b)(ii); 201(e);
                                      and Containers:         11/13/95; 61 FR 4903,   300(5)(f), 300(5)(i),
                                      (Includes CC and the    02/09/96; 61 FR         300(5)(i)(A),
                                      300 hour BB             28508; 06/05/96; 61     300(5)(i)(B); 320(2)(c);
                                      exemption).             FR 59932; 11/25/96.     380(1)(c), 380(1)(f),
                                                                                      390(3)(d); 630(11);
                                                                                      640(11); 650(12); 680(2);
                                                                                      690(1)(b), 690(1)(b)(i),
                                                                                      690(1)(b)(ii),
                                                                                      690(1)(b)(iii), 690(1)(c),
                                                                                      690(2); 691(1)(b),
                                                                                      691(1)(b)(i),
                                                                                      691(1)(b)(ii),
                                                                                      691(1)(b)(iii), 691(1)(f),
                                                                                      691/note at end of (1),
                                                                                      691(2); 692(1)(a),
                                                                                      692(1)(b), 692(1)(b)(i),
                                                                                      692(1)(b)(ii),
                                                                                      692(1)(b)(iii),
                                                                                      692(1)(b)(iv),
                                                                                      692(1)(b)(v),
                                                                                      692(1)(b)(vi),
                                                                                      692(1)(b)(vii),
                                                                                      692(1)(b)(viii),
                                                                                      692(1)(c), 692(1)(d),
                                                                                      692(1)(d)(i),
                                                                                      692(1)(d)(ii),
                                                                                      692(1)(d)(iii); 692(2);
                                                                                      400(2)(a); 300(5)(f),
                                                                                      300(5)(i), 300(5)(i)A),
                                                                                      300(5)(i)(B); 320(2)(c);
                                                                                      380(1)(c), 380(1)(f);
                                                                                      390(3)(d); 400(3)(a);
                                                                                      810(8)(a)(ii),
                                                                                      810(8)(a)(iii),
                                                                                      810(8)(a)(iv);
                                                                                      806(4)(a)(v),
                                                                                      806(4)(b)(vi),
                                                                                      806(4)(c)(xiii),
                                                                                      806(4)(d)(xi), 806(4)(m).
156 \2\............................  Military Munitions      62 FR 6622, 02/12/97..  040; 016(3)(b)(iii),
                                      Rule Hazardous Waste                            016(3)(b)(iv); 170(5);
                                      Identification and                              180(6); 240(10);
                                      Management;                                     600(3)(p),
                                      Explosives                                      600(3)(p)(i)(D),
                                      Emergencies; Manifest                           600(3)(p)(iv), 600(3)(q);
                                      Exemption for                                   693(l), 693(2)(a),
                                      Transport of                                    693(2)(a)(i),
                                      Hazardous Waste on                              693(2)(a)(ii),
                                      Right-of-Ways on                                693(2)(a)(iii),
                                      Contiguous Properties.                          693(2)(a)(iv),
                                                                                      693(2)(a)(v), 693(2)(b),
                                                                                      693(2)(b)(i),
                                                                                      693(2)(b)(i)(A),
                                                                                      693(2)(b)(i)(B),
                                                                                      693(2)(b)(i)(B)(I)-(III),
                                                                                      693(2)(b)(i)(C),
                                                                                      693(2)(b)(ii),
                                                                                      693(2)(b)(iii), 693(2)(c),
                                                                                      693(2)(d), 693(2)(e),
                                                                                      693(2)(f); 693(3)(a),
                                                                                      693(3)(b);
                                                                                      400(2)(c)(xiii)(A)(IV),
                                                                                      400(2)(c)(xiii)(D),
                                                                                      400(2)(c))(xii),
                                                                                      400(3)(b); 400(3)(c)(xii);
                                                                                      578(1)(a), 578(1)(b),
                                                                                      578(2)(a), 578(2)(a)(i),
                                                                                      578(2)(a)(i)(A),
                                                                                      578(2)(a)(i)(B),
                                                                                      578(2)(a)(i)(C),
                                                                                      578(2)(a)(ii), 578(2)(b),
                                                                                      578(2)(b)(i),
                                                                                      578(2)(b)(ii),
                                                                                      578(2)(b)(iii),
                                                                                      578(2)(b)(iv), 578(2)(c),
                                                                                      578(2)(c)(i),
                                                                                      578(2)(c)(ii), 578(2)(d),
                                                                                      578(3), 578(4)(a),
                                                                                      578(4)(a)(i),
                                                                                      578(4)(a)(i)(A),
                                                                                      578(4)(a)(i)(B),
                                                                                      578(4)(a)(i)(C),
                                                                                      578(4)(a)(i)(D),
                                                                                      578(4)(a)(i)(E),
                                                                                      578(4)(a)(i)(F),
                                                                                      578(4)(a)(i)(G),
                                                                                      578(4)(a)(ii),
                                                                                      578(4)(a)(iii), 578(4)(b),
                                                                                      578(4)(c); 578(5);
                                                                                      800(7)(c)(i)(D),
                                                                                      800(7)(c)(i)(E);
                                                                                      830(4)(h), 830(4)(h)(i),
                                                                                      830(4)(h)(ii),
                                                                                      830(4)(h)(iii), 830(4)(i).
157................................  Land Disposal           62 FR 25998, 05/12/97.  040; 016(2)(l), 016(2)(m),
                                      Restrictions Phase                              016(2)(n), 016(2)(o);
                                      IV--Treatment                                   016(5) Table 1;
                                      Standards for Wood                              071(3)(ff), 071(3)(gg),
                                      Preserving Wastes,                              071(3)(gg)(i),
                                      Paperwork Reduction                             071(3)(gg)(ii);
                                      and Streamlining,                               120(2)(a)(iv); 140(2)(a).
                                      Exemptions From RCRA
                                      for Certain Processed
                                      Materials; and
                                      Miscellaneous
                                      Hazardous Waste
                                      Provisions.
158................................  Testing Monitoring      62 FR 32452, 06/13/97.  110(1); 110(3)(h)(v),
                                      Activities Amendment                            110(3)(h)(vi),
                                      III.                                            110(3)(g)(i), 110(3)(g)
                                                                                      (ii), 110(3)(g)(iii),
                                                                                      110(3)(g)(iv),
                                                                                      110(3)(g)(v),
                                                                                      110(3)(g)(vi),
                                                                                      110(3)(g)(viii),
                                                                                      110(3)(h)(i), 110(3)(a),
                                                                                      110(3)(h)(ii),
                                                                                      110(3)(h)(iii),
                                                                                      110(3)(h)(vii),
                                                                                      110(3)(g)(x); 690(2);
                                                                                      691(2); 645(4)(a);
                                                                                      400(3)(a).
162................................  Clarification of        62 FR 64504, 12/05/97.  140 (2)(a).
                                      Standards for
                                      Hazardous Waste LDR
                                      Treatment Variances.
163................................  Organic Air Emission    62 FR 64636, 12/08/97.  320(2)(c); 380(1)(f);
                                      Standards for Tanks,                            690(1)(b)(iii), 690(1)(c),
                                      Surface Impoundments,                           690(1)(d); 690(2);
                                      and Containers;                                 691(1)(b)(iii), 691(1)(c),
                                      Clarification and                               691(1)(f), 691(2);
                                      Technical Amendment:                            692(1)(b)(i), 692(1)(c),
                                      (AA, BB, CC).                                   692(2); 320(2)(c);
                                                                                      400(3)(a); 806(4)(a)(v).
164................................  Kraft Mill Steam        62 FR 18504, 04/15/98.  071(3)(mm).
                                      Stripper Condensate
                                      Exclusion.

[[Page 17640]]

 
167A...............................  Land Disposal           63 FR 28556, 05/26/98.  140(2)(a).
                                      Restriction Phase IV
                                      --Treatment Standards
                                      for Metal Wastes and
                                      Mineral Processing
                                      Wastes.
167B...............................  Land Disposal           63 FR 28556, 05/28/98.  140(2)(a).
                                      Restriction Phase IV
                                      --Hazardous Soils
                                      Treatment Standards
                                      and Exclusions.
167C...............................  Land Disposal           63 FR 28556, 05/26/98.  140(2)(a).
                                      Restrictions Phase
                                      IV--Corrections.
167F...............................  Exclusion of Recycled   63 FR 28556, 05/26/98.  071(3)(w)(iii),
                                      Wood Preserving                                 071(3)(w)(iii)(A),
                                      Wastewater.                                     071(3)(w)(iii)(B),
                                                                                      071(3)(w)(iii)(C),
                                                                                      071(3)(w)(iii)(D),
                                                                                      071(3)(w)(iii)(E).
169 \2\............................  Petroleum Refining      63 FR 42110, 08/06/98.  071(3)(p), 071(3)(jj);
                                      Process Wastes.                                 071(3)(cc)(i),
                                                                                      071(3)(cc)(ii),
                                                                                      071(3)(hh), 071(3)(hh)(i),
                                                                                      071(3)(hh)(ii),
                                                                                      071(3)(ii); 016(5)(d)(ii);
                                                                                      120 (2)(a)(viii)(c); 9904;
                                                                                      082(4); 140(2)(a).
170................................  Land Disposal           63 FR 46332, 08/31/98.  140(2)(a).
                                      Restrictions Phase
                                      IV--Zinc Micro
                                      nutrient Fertilizers,
                                      Amendment.
171................................  Emergency Revision of   63 FR 47410, 09/04/98.  140(2)(a).
                                      the Land Disposal
                                      Restrictions (LDR)
                                      Treatment Standards
                                      for Listed Hazardous
                                      Wastes from carbamate
                                      Production.
172................................  Land Disposal           63 FR 48124, 09/09/98.  140(2)(a).
                                      Restriction Phase IV
                                      --Extension of
                                      Compliance Date for
                                      Characteristic Slags.
173................................  Land Disposal           63 FR 51254, 09/24/98.  140(2)(a).
                                      Restrictions;
                                      Treatment Standards
                                      for Spent Potliners
                                      from Primary Aluminum
                                      Reduction Rule
                                      (K088); Final Rule.
174 \3\............................  Post Closure Permit     63 FR 56710, 10/22/98.  645(1)(e), 645(1)(e)(i),
                                      Requirement and                                 645(1)(e)(ii); 610(1)(d),
                                      Closure Process:                                610(1)(d)(i),
                                      Requirements for                                610(1)(d)(ii);
                                      alternative                                     610(3)(a)(ix),
                                      groundwater                                     610(3)(b)(ii)(D);
                                      monitoring                                      610(8)(b)(iv),
                                      requirements for                                610(8)(d)(ii)(D);
                                      regulated units                                 620(1)(d), 620(1)(d)(i),
                                      colocated with SWMU's                           620(1)(d)(ii); 400(3)(a).
                                      where both types of
                                      units have released
                                      to the environment..
175 \2\............................  HWIR-Media............  63 FR 65874, 11/30/98.  040; 071(3)(11) first line,
                                                                                      071(3)(11)(i) through
                                                                                      (iii); 280(5); 280(6),
                                                                                      280(6)(a), 280(6)(b),
                                                                                      280(6)(c), 280(6)(d),
                                                                                      280(6)(e), 280(6)(f),
                                                                                      280(6)(g), 280(6)(h),
                                                                                      280(6)(i), 280(6)(j),
                                                                                      280(6)(k); 646(1)(c);
                                                                                      646(4)(a), 646(7)(a),
                                                                                      646(8); 400(2)(a);
                                                                                      140(2)(a); 810(13)(a); 830
                                                                                      Appendix 1, D.3.g.; 830,
                                                                                      Appendix 1, N.3.
176................................  Universal Waste Rule--  63 FR 71225, 12/24/98.  520(1), 520(2), 520(2)(a),
                                      Technical Amendments.                           520(2)(b), 520(2)(c); 040.
177................................  Organic Air Emission    64 FR 3382, 01/21/99..  200(1)(b)(i),
                                      Standards                                       200(1)(b)(ii); 690(2);
                                      Clarification and                               692(1)(v), 692(2); 400(3),
                                      Technical Amendments:                           400(3)(a).
                                      (AA, BB, CC).
178................................  Petroleum Refining      64 FR 6806, 02/11/99..  071(3)(kk), 071(3)(kk)(i),
                                      Process Wastes--                                071(3)(kk)(ii),
                                      Leachate Exemption.                             071(3)(kk)(iii),
                                                                                      071(3)(kk)(vi),
                                                                                      071(3)(kk)(v).
179 \2\............................  Land Disposal Phase     64 FR 25408, 05/11/99.  016(5)(c); 016 Table 1;
                                      IV--Technical                                   017(2)(a)(iii); 201(2);
                                      Corrections and                                 140(2)(a).
                                      Clarifications to
                                      Treatment Standards.
180................................  Test Procedures for     64 FR 26315, 05/14/99.  110(3)(a), 110(3)(h)(iv).
                                      Analysis of Oil and
                                      Grease and Non--Polar
                                      Material.

[[Page 17641]]

 
181 \2\............................  Universal Waste Rule    64 FR 36466, 07/09/99.  040; 077(2), 077(3);
                                      Specific Provisions                             600(3)(o)(ii),
                                      for Hazardous Waste                             600(3)(o)(iii);
                                      Lamps.                                          400(2)(c)(xi)(B),
                                                                                      400(2)(c)(xi)(C);
                                                                                      140(2)(a);
                                                                                      800(7)(c)(iii)(B),
                                                                                      800(7)(c)(iii)(C);
                                                                                      573(1)(a)(ii),
                                                                                      573(1)(a)(iii),
                                                                                      573(2)(a)(i),
                                                                                      573(2)(b)(ii),
                                                                                      573(2)(b)(iii), 573(3)(a);
                                                                                      573(5)(a), 573(5)(b),
                                                                                      573(5)(b)(i),
                                                                                      573(5)(b)(ii), 573(5)(c),
                                                                                      573(5)(c)(i),
                                                                                      573(5)(c)(ii), 573(4)(a),
                                                                                      573(4)(a)(i),
                                                                                      573(4)(a)(ii), 573(4)(b),
                                                                                      573(6), 573(9)(c),
                                                                                      573(9)(c)(i),
                                                                                      573(9)(c)(ii),
                                                                                      573(9)(c)(iii),
                                                                                      573(10)(c), 573(17),
                                                                                      573(19)(b)(iv),
                                                                                      573(19)(b)(v), 573(20)(c),
                                                                                      573(20)(c)(i),
                                                                                      573(20)(c)(ii),
                                                                                      573(20)(c)(iii),
                                                                                      573(21)c), 573(28),
                                                                                      573(35)(a), 573(40)(a).
112, 122, 130, 166 (Special          Recycled Used Oil       57 FR 41566, 09/10/92;  040; 515(4); 071(3)(z),
 Consolidated Checklist \2\).         Management Standards    58 FR 26420, 05/03/     071(3)(kk); 120(3);
                                      as of June 30, 1999.    93; 58 FR 33341, 06/    120(3)(g), 120(3)(f);
                                                              17/93; 59 FR 10550,     120(2)(v),
                                                              03/04/94; 63 FR         120(2)(a)(viii)(A),
                                                              24963, 05/06/98; 63     120(2)(a)(viii)(B),
                                                              FR 37780, 07/14/98.     120(2)(a)(viii)(C),
                                                                                      120(5); 600(5);
                                                                                      510(1)(b)(i); 515(2),
                                                                                      515(3), 515(4), 515(5),
                                                                                      515(6), 515(6)(c), 515(7),
                                                                                      515(8), 515(9), 515(9)(a),
                                                                                      515(9)(b), 515(10),
                                                                                      515(11), 515(12).
----------------------------------------------------------------------------------------------------------------
\1\ For further discussion on where the revised state rules differ from the Federal rules refer to section G.
  below, the authorization revision application, and the administrative record for this decision.
\2\ State rule contains some more stringent provisions. For identification of more stringent state provisions
  refer to the authorization revision application and the administrative record for this decision.
\3\ State does not seek authorization for enforceable documents in lieu of post-closure permits.
\4\ Checklist generally reflect changes made to the Federal regulations pursuant to a particular Federal
  Register notice and EPA publishes these checklists as aids for states to use for the development of their
  authorization application. (See EPA's RCRA State Authorization web page at http://www.epa.gov/epaoswer/hazwaste/state/rcra hazwaste/state/rcra.)

F. Where Are the Revised State Rules Different From the Federal 
Rules?

    This section discusses some of the differences between the 
revisions Washington requested authorization for and those which are 
part of this final authorization decision. Not all program differences 
are discussed in this section because Washington writes its own version 
of the federal hazardous waste rules. This section discusses certain 
rules where EPA has made the finding that the State program is more 
stringent and will be authorized; it discusses rules where the State 
program is broader in scope and can not be authorized; and rules where 
the State program is less stringent than the federal requirements and 
will not be authorized. The State program will not be authorized for 
the less stringent or broader in scope rules. Less stringent State 
rules do not supplant federal regulations. Persons must consult the 
Table 1 for the specific State regulations which EPA is authorizing in 
today's final rule.
    Certain portions of the federal program are not delegable to the 
states because of the Federal government's special role in foreign 
policy matters and because of national concerns that arise with certain 
decisions. EPA does not delegate import/export functions. Under the 
RCRA regulations found in 40 CFR part 262 EPA will continue to 
implement requirements for import/export functions. EPA does not 
delegate sections of 40 CFR part 268 because of the national concerns 
that must be examined when decisions are made under the following 
Federal Land Disposal Restriction requirements: 40 CFR 268.5--
Procedures for case-by-case effective date extensions; 40 CFR 268.6--
``No migration'' petitions; 40 CFR 268.42(b)--applications for 
alternate treatment methods; and 40 CFR 268.44(a)-(g)--general 
treatment standard variances. Washington's program has excluded these 
requirements from its state regulations and EPA will continue to 
implement these requirements under EPA's HSWA authority. The State 
requested authorization for 40 CFR 268.44(h) through (m), which are 
provisions for which states may receive authorization and are part of 
this authorization decision.
    States are allowed to seek authorization for state requirements 
that are more stringent than federal requirements. EPA has authority to 
authorize and enforce those parts of a state's program EPA finds to be 
more stringent than the federal program. This section does not discuss 
each more stringent finding made by EPA, but persons can locate such 
sections by consulting Table 1, referenced above, as well as by 
reviewing the docket for this rule. The State program is authorized for 
each more stringent requirement as a part of this rulemaking.
    The State program does not provide generators with an exemption 
from the manifest requirements as found in the federal regulations at 
40 CFR 262.20(f) or transporters as found at 40 CFR 263.10(f). 
Generators and transporters in Washington will have to comply with the 
more stringent state paperwork requirements. The State program is more 
stringent than the federal program because the State regulations do not 
allow Remedial Action Plans as found in the federal requirements at 40 
CFR part 270, subpart H. The State's program is more stringent than the 
federal program at 40 CFR 261.5(j) because the State has not adopted 
this provision. Conditionally exempt small quantity generator hazardous 
waste mixed with used oil is subject to full regulation as a hazardous 
waste mixture. The State program is also more stringent than the 
federal requirements at 40 CFR 273.9 because the State's definition of 
universal waste does not allow pesticides to be managed as universal 
waste.
    The State program is more stringent in certain places than the 
federal military munitions rule. The State did not adopt the 
alternative requirements for transportation of waste military munitions 
between military installations as is found in the federal program at 40 
CFR 266.203(a)-(c) and is therefore more stringent than the federal 
program. With respect to chemical agents and chemical munitions slated 
for destruction pursuant to international treaties or agreements, the 
State identifies such chemical agents and chemical munitions as 
characteristic and/or listed hazardous waste. In the Military Munitions 
Rule, at 62 FR 6633, EPA said that states could be more stringent than 
the federal program for

[[Page 17642]]

chemical munitions. EPA finds the State program to be more stringent 
than the federal program in this area because the State rules do not 
contain a provision that differentiates between wastes that must be 
designated and waste chemical munitions or chemical munitions that are 
not considered wastes because they are scheduled for destruction 
pursuant to treaty or agreement. The State's regulations at WAC 173-
303-693(3)(a) are found to be more stringent than the federal 
regulation at 40 CFR 264.1202(a) and WAC 173-303-400(3)(b), (c)(xii) is 
found to be more stringent than the federal regulation at 40 CFR 
265.1202(a). EPA also said, at 62 FR 6649 in the Military Munitions 
Rule, that states did not have to include a conditional exemption for 
waste munitions storage in their programs. EPA also finds that the 
State's lack of a conditional exemption for waste munition storage, 
which is found in the federal regulations at 40 CFR 266.205(d), (d)(2), 
is more stringent than the federal program. Neither the federal 
regulations, nor the State program conditionally exempt chemical 
munitions and chemical agents from storage requirements.
    The State did not seek authorization for the Standards for the 
Management of Waste Fuel and Used Oil for the Burning of these 
Materials in Boilers and Industrial Furnaces, 40 CFR 266.102 through 40 
CFR 266.111. The State did not adopt these federal provisions as state 
law. EPA is implementing these BIF requirements in Washington State 
under EPA's HSWA authority. States are not allowed to seek 
authorization for state requirements that are broader in scope than 
federal requirements. EPA does not have authority to authorize and 
enforce those parts of a state's program EPA finds to be broader in 
scope than the federal program. Because the State has not adopted an 
analog to 40 CFR 261.4(b)(7)--exclusions for solid waste from the 
extraction, beneficiation, and processing of ores and minerals, the 
State's lack of an analog for the federal exclusion of mixtures of 
solid waste and hazardous waste which are hazardous based solely on a 
hazardous characteristic imparted to the waste as a result of a Bevill 
characteristic, 40 CFR 261.3(a)(2)(iii), is broader in scope than the 
federal program. EPA also finds the State's regulation at WAC 173-303-
578(2)(e) to be broader in scope than the federal regulation at 40 CFR 
266.202(a) because the State added a requirement for when munitions at 
closed and transferred ranges are considered solid wastes. EPA's final 
Military Munitions Rule did not include this requirement. This 
requirement in the State program is found to be broader in scope than 
the federal program.
    Although State programs can be authorized where they are more 
stringent than the federal program, state programs cannot be authorized 
where they are less stringent. EPA finds the State's additional 
regulation at WAC 173-303-515(6) for generators of used oil who self-
transport greater than 55 gallons per vehicle trip to a used oil 
collection center, without also designating as a used oil transporter, 
are less stringent than the federal provisions which limit generator 
self-transport of used oil to less than or equal to 55 gallons of used 
oil per vehicle trip. EPA also finds the State's additional regulation 
at WAC 171-303-515(7) for used oil collection centers to be less 
stringent because the regulation allows used oil collection centers to 
accept greater than 55 gallons of used oil from a generator who self-
transports used oil to a used oil collection center. The direct impact 
of EPA's finding to generators and used oil collection centers in 
Washington is that generators and used oil collection centers will not 
be exempted from the State's federally authorized requirements which 
limit self-transport by generators to less than or equal to 55 gallons 
and used oil collection from a self-transporting generator to less than 
or equal to 55 gallons.
    States sometimes make changes to their previously authorized 
programs for which they need to seek reauthorization. In Washington, 
the Permit by Rule provision at WAC 173-303-802(5) is broader in scope 
than the federal permit by rule regulations where it applies to state-
only wastes. However, the State program is more stringent where the 
rule applies to federally regulated hazardous wastes generated on-site. 
The federal regulations at 40 CFR 270.1(c)(2)(iv) and (v) exempt owners 
and operators of totally enclosed treatment facilities, elementary 
neutralization units or wastewater treatment units, as defined at 40 
CFR 260.10, from RCRA permitting requirements. The State requested 
reauthorization for these changes and EPA has determined that the more 
stringent portion of the rule is authorized and the broader in scope 
provision will not be authorized in this rulemaking.
    The State did not seek authorization for the entire Post-Closure 
rule. While the State will be authorized for the portions of the rule 
that concern alternative requirements for co-located regulated units 
and solid waste management units which have commingled releases, the 
State did not seek, nor will the State be authorized for the portions 
of the rule that allow for the use of enforceable documents in lieu of 
post closure permits. Although the State did incorporate 40 CFR 
265.118(c)(4) by reference into its regulations, the State did not seek 
authorization for this provision and will not be authorized for it.

G. Who Handles Permits After This Authorization Takes Effect?

    Washington will issue permits for all the provisions for which it 
is authorized and will administer the permits it issues. All permits 
issued by EPA Region 10 prior to final authorization of this revision 
will continue to be administered by EPA Region 10 until the issuance or 
re-issuance after modification of a State RCRA permit and until EPA 
takes action on its permit. HSWA provisions for which the State is not 
authorized will continue in effect under the EPA-issued permit. EPA 
will continue to issue permits for HSWA requirements for which 
Washington is not yet authorized.

H. What Is Codification and Is EPA Codifying Washington'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's authorized rules in 40 CFR part 272. 
EPA is reserving the amendment of 40 CFR part 272, subpart F for 
codification of Washington's program at a later date.

I. How Does Today's Action Affect Indian Country (18 U.S.C. 1151) 
in Washington?

    EPA's decision to authorize the Washington hazardous waste program 
does not include any land that is, or becomes after the date of this 
authorization, ``Indian Country,'' as defined in 18 U.S.C. 1151, with 
the exception of the non-trust lands within the exterior boundaries of 
the Puyallup Indian Reservation (also referred to as the ``1873 Survey 
Area'' or ``Survey Area'') located in Tacoma, Washington. EPA retains 
jurisdiction over ``Indian Country'' as defined in 18 U.S.C. 1151.

J. 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

[[Page 17643]]

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 have Tribal implications within the 
meaning of Executive Order 13175 (65 FR 67249, November 6, 2000). It 
does not have substantial direct effects on tribal governments, on the 
relationships 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 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 28344, May 22, 2001) because 
it is not a significant regulatory action under Executive Order 12866. 
This action does not include environmental justice issues that require 
consideration under Executive Order 12898 (59 FR 7629, February 16, 
1994).
    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) 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 final 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.).

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: April 2, 2002.
Ronald A. Kreizenbeck,
Deputy Regional Administrator, Region 10.
[FR Doc. 02-8533 Filed 4-10-02; 8:45 am]
BILLING CODE 6560-50-P