[Federal Register Volume 67, Number 154 (Friday, August 9, 2002)]
[Rules and Regulations]
[Pages 51765-51768]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-19979]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[FRL-7256-7]


Rhode Island: Authorization of State Hazardous West Management 
Program Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

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SUMMARY: The State of Rhode Island has applied to EPA for Final 
authorization of the changes to its hazardous waste program under the 
Resource Conservation and Recovery Act (RCRA). EPA has determined that 
these changes satisfy all requirements needed to qualify for Final 
authorization, and is authorizing the State's changes through this 
immediate final action. EPA is publishing this rule to authorize the 
changes without a prior proposal because we believe this action is not 
controversial and do not expect comments that oppose it. Unless we get 
written comments which oppose this authorization during the comment 
period, the decision to authorize Rhode Island's changes to their 
hazardous waste program will take effect. if we get comments that 
oppose this action, we will publish a document in the Federal Register 
withdrawing this rule before it takes effect and 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 October 8, 
2002 unless EPA receives adverse written comment by September 9, 2002. 
If EPA receives such comment, it will publish a timely withdrawal of 
this immediate final rule in the Federal Register and inform the public 
that this authorization will not take immediate effect.

ADDRESSES: Send any written comments to Robin Biscaia, EPA New England, 
One Congress Street, Suite 1100 (CHW), Boston, MA 02114-2023; 
telephone: (617) 918-1642. Copies of the State of Rhode Island's 
revision application and the materials which EPA used in evaluating the 
revision (the ``Administrative Record'') are available for inspection 
and copying during normal business hours at the following locations: 
Rhode Island Department of Environmental Management, Office of 
Technical and Customer Assistance, 235 Promenade Street, Providence, RI 
02908-5767, business hours: 8:30 a.m. to 4 p.m., telephone: (401) 222-
6822; or EPA New England Library, One Congress Street--11th Floor, 
Boston, MA 02114-2023, business hours: 10 a.m. to 3 p.m., Monday 
through Thursday, telephone: (617) 918-1990.

FOR FURTHER INFORMATION CONTACT: Robin Biscaia, Hazardous Waste Unit, 
Office of Ecosystems Protection, EPA New England, One Congress Street, 
Suite 1100 (CHW), Boston, MA 02114-2023, telephone: (617) 918-1642.

SUPPLEMENTARY INFORMATION:   

A. Why are Revisions to State Programs Necessary?

    States which have been authorized to administer the Federal 
hazardous waste program under RCRA section 3006(b), 42 U.S.C. 6926(b), 
have a continuing obligation to update their programs to meet revised 
Federal requirements. 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 revised 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. The EPA may grant final 
authorization to a State version if it is equivalent to, consistent 
with, and no less stringent than Federal RCRA requirements.

B. What Decisions Have We Made in This Rule?

    We conclude that the State of Rhode Island's application to revise 
its authorized program meets all of the statutory and regulatory 
requirements established by RCRA. Therefore, we grant the State of 
Rhode Island Final authorization to operate its hazardous waste program 
with the changes described in the authorization application. Rhode 
Island has responsibility for permitting Treatment, Storage, and 
Disposal Facilities (TSDFs) within its borders (except in Indian 
Country) 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

[[Page 51766]]

implement those requirements and prohibitions in the State of Rhode 
Island, 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 Rhode Island 
subject to RCRA will have to comply with the newly authorized State 
requirements instead of the Federal requirements in order to comply 
with RCRA. The State of Rhode Island has enforcement responsibilities 
under its State hazardous waste program for violations of such 
programs, but EPA also retains its full authority under RCRA sections 
3007, 3008, 3013, and 7003.
    This action does not impose additional requirements on the 
regulated community because the state regulations for which 
authorization to the State of Rhode Island is being granted by today's 
action are already in effect under state law, and are not changed by 
today's action.

D. Why Wasn't There a Proposed Rule Before Today's Rule?

    EPA did not publish a proposal before today's rule because we view 
this as a routine program change and do not expect comments that oppose 
this approval. We are providing an opportunity for public comment now. 
In addition to this rule, in the proposed rules section of today's 
Federal Register we are publishing a separate document that proposes to 
authorize the State program changes.

E. What Happens if EPA Receives Comments That Oppose This Action?

    If EPA receives comments that oppose this authorization, we will 
withdraw this rule by publishing a document in the Federal Register 
before the rule becomes effective. EPA will base any further decision 
on the authorization of the State program changes on the proposal 
mentioned in the previous paragraph. We will then address all public 
comments in a later final rule. You may not have another opportunity to 
comment. If you want to comment on this authorization, you must do so 
at this time.
    If we receive comments that oppose only the authorization of a 
particular change to the State hazardous waste program, we will 
withdraw that part of this rule but the authorization of the program 
changes that the comments do not oppose will become effective on the 
date specified above. The Federal Register withdrawal document will 
specify which part of the authorization will become effective, and 
which part is being withdrawn.

F. What has Rhode Island Previously Been Authorized for?

    Rhode Island initially received Final Authorization on January 30, 
1986, effective January 31, 1986 (51 FR 3780) to implement its base 
hazardous waste management program. We granted authorization for 
changes to their program on March 12, 1990, effective March 26, 1990 
(55 FR 9128), March 6, 1992 effective May 5, 1992 (57 FR 8089) and 
October 2, 1992 effective December 1, 1992 (57 FR 45574).

G. What Changes are We Authorizing in Today's Action

    On December 12, 2001 Rhode Island submitted a program revision 
application seeking authorization of their changes in accordance with 
40 CFR 271.24. This application was supplemented by an Attorney 
General's Statement dated April 3, 2002 and by a letter dated May 15, 
2002 relating to the Rhode Island Environmental Compliance Incentive 
Act. Thus, the application was complete as of May 15, 2002. We now make 
an immediate final decision, subject to receipt of written comments 
that oppose this action, that Rhode Island's hazardous waste program 
revision satisfies all of the requirements necessary to qualify for 
final authorization.
    The specific RCRA program revisions for which the EPA grants final 
authorization to Rhode Island are listed in the table below. The 
Federal requirements in the table are identified by their checklist 
numbers and rule descriptions. The following abbreviations are used in 
defining equivalent state authority: RIGL means Rhode Island General 
Laws; Rules means ``Rules and Regulations for Hazardous Waste 
Management.''

------------------------------------------------------------------------
 Description of Federal Requirement and
       Checklist Reference Number         Analogous State Authority \1\
------------------------------------------------------------------------
Non-HSWA Cluster IV:
    (40) List (Phase 1) of Hazardous     Rule 9.03, 8.04(G), 8.01(G).
     Constituents for Ground Water
     Monitoring: 52 FR 25942; 7/9/87.
    (41) Identification and Listing of   Rule 3.32.
     Hazardous Waste: 52 FR 26012; 7/10/
     87.
    (43) Liability Requirements for      Rule 9.17, 8.04(T) 7.01(E).
     Hazardous Waste Facilities;
     Corporate Guarantee; 52 FR 44314;
     11/18/87.
    (45) Hazardous Waste Miscellaneous   Rule 3.48, 3.100, 12.00, 8.05,
     Units; 52 FR 46946; 12/10/87.        9.20, 8.04(K), 9.05, 9.12,
                                          9.03, 8.04(G), 9.16, 8.04(R),
                                          9.17, 8.04(T), 12.02, 12.01.
Non-HSWA Cluster V:
    (59) Hazardous Waste Miscellaneous   Rule 8.04(K), 8.04(R), 12.01.
     Units; Standards Applicable to
     Owners and Operators: 54 FR 615; 1/
     9/89.
HSWA Cluster I:
    (17A) Small Quantity Generators: 50  See Checklist 23 entry.
     FR 28702; 7/15/85.
    (23) Generators of 100 to 1000 kg    Rule 2.02(B), 3.100, 5.02(D),
     Hazardous Waste: 51 FR 10146; 3/24/  5.05, 3.32, 5.0,
     86.                                  13.06(B)(1)(c), 2.02(E),
                                          5.02(A), 6.04(K), 8.01(J).
    (32) Standards for Generators;       Rule 2.02(B), 5.03(G), Rhode
     Waste Minimization Certifications;   Island Uniform Hazardous Waste
     51 FR 35190, 10/1/86.                Manifest.
HSWA Cluster II:
    (42) Exception Reporting for Small   Rule 2.02(B), 5.0, 5.03(I).
     Quantity Generators of Hazardous
     Waste: 52 FR 35894; 9/23/87.
    (47) Identification and Listing of   Rule 3.32, 5.0.
     Hazardous Waste; Technical
     Correction: 53 FR 27162; 7/19/88.
    (74) Toxicity Characteristic         Rule 3.32, 3.67(M)(7), 3.67(L),
     Revisions: 55 FR 11798, 3/29/90 as   5.08, 3.79, 10.01(E),
     amended on 6/29/90 55 FR 26989.      10.01(B), 10.01(D), 2.02(B),
                                          3.98.
RCRA Cluster I:
    (80) Toxicity Characteristic;        Rule 3.32.
     Hydrocarbon Recovery Operations:
     55 FR 40834, 10/5/90 as amended on
     2/1/91, 56 FR 3978 as amended on 4/
     2/91, 56 FR 13406, optional rule.

[[Page 51767]]

 
    (84) Toxicity Characteristic;        Rule 3.32.
     Chlorofluoro Refrigerants: 56 FR
     5910, 2/13/91, optional rule.
RCRA Cluster III:
    (108) Toxicity Characteristic        Rule 3.32, 10.01(E).
     Revision; Technical Correction: 57
     FR 30657, 7/10/92.
    (117B) Toxicity Characteristic       Rule 3.32.
     Amendment: 57 FR 23062, 6/1/92.
    (119) Toxicity Characteristic        Rule 3.79.
     Revision, TCLP Correction: 57 FR
     55114, 11/24/92, as amended on
     February 2, 1993 at 58 FR 6854,
     optional rule.
RCRA Cluster V:
    142(A) Universal Waste Rule:         Rule 2.02(B), 3.98, 3.19, 3.86,
     General Provisions; 60 FR 25492 5/   3.87, 3.89, 3.32, 5.00, 13.01,
     11/95, optional rule.                2.02(E), 13.05(A)-(D), 13.06,
                                          13.06(A)-(D), 13.06(F)-(J),
                                          13.06(L)-(S), 3.31, 3.50,
                                          3.58, 3.71, 3.88.
    142(B) Universal Waste Rule:         3.06, 3.86, 2.02(B), 3.98,
     Specific Provisions for Batteries;   13.01(A), 13.05, 13.05(A)-(D),
     60 FR 25492, 5/11/95, optional       13.06, 13.06(A), (E), (F),
     rule.                                (K), and (L).
    (142C) Universal Waste Rule:         Rule 3.63, 3.86, 13.01(B),
     Specific Provisions for              13.05, 13.05(A)-(D), 13.06,
     Pesticides; 60 FR 25492, 5/11/95,    13.06(A), (E), (F), (J), (K),
     optional rule.                       and (L), 3.29.
    (142D) Universal Waste Rule:         Rule 3.78, 3.86, 13.01(C),
     Specific Provisions for              13.05, 13.05(A)-(D), 13.06,
     Thermostats; 60 FR 25492, 5/11/92,   13.06(A), (E), (F), (K), and
     optional rule.                       (L).
    (142E) Universal Waste Rule:         Rule 2.02(B), 3.98, 13.06,
     Petition Provisions to Add a New     13.06(T).
     Universal Waste; 60 FR 25492, 5/11/
     95, optional rule.
RCRA Cluster VII:
    (153) Conditionally Exempt Small     Rule 3.32, 5.0, 13.06(B)(1)(c).
     Quantity Generator Disposal
     Options under Subtitle D, 61, FR
     34252, 7/1/96.
RCRA Cluster X:
    (181) Universal Waste Rule:          Rule 3.57, 3.86, 3.86(f),
     Specific Provisions for Hazardous    13.04, 13.04(A)-(C), 13.01(F),
     Waste Lamps; 64 FR 36466, 7/6/99,    13.05, 13.05(A)-(D), 13.04(A)-
     optional rule.                       (C), 3.50, 3.71, 13.06(E)(3),
                                          13.06(F)(3), 13.06(J)(1),
                                          13.06(K)(3), 13.06(L)(3).
    (184) Accumulation Time for Waste    Rule 5.02(A), 5.02(D),
     Water Treatment Sludges: 65 FR       5.02(D)(1)-(4).
     12378, 3/8/00, optional rule.
------------------------------------------------------------------------
\1\ The State of Rhode Island's provisions are from Rhode Island General
  Law 23-19:1-6 (1996 Re-enactment) and ``Rules and Regulations for
  Hazardous Waste Management,'' Rules 1.00-14.00, as amended through
  September 17, 2001.

H. Where are the Revised State Rules Different from the Federal 
Rules?

    The major difference in Rhode Island's regulatory program as 
compared to the federal program is that it is more stringent with 
regard to the regulation of small quantity generators (SQGs), i.e., 
generators of less than 1,000 kg/month and conditionally exempt 
generators (CESQGs), i.e., generators of less than 100 kg/month. The 
State rules for hazardous waste generators apply to all generators 
regardless of size with some exceptions as identified below:
    Rule 5.0 [Generators] specifies that certain federal provisions 
which allow reduced requirements for SQGs and CESQGs (40 CFR 261.5, 40 
CFR 262.20(e), 40 CFR 262.42(b) and 40 CFR 262.44) do not apply in 
Rhode Island except as provided in Rule 5.02(B) and (C) and Rules 5.05, 
5.06 and 13.06B (described below):
     Rule 5.02(B) and (C) provides some reduced requirements 
for SQG/CESQGs accumulating waste on site. The generator may only 
accumulate up to 3,000 kg of waste on site at any time (v. the federal 
limit of 6,000 kg) with 90 days maximum storage (v. the federal storage 
limit of 180 days) and must comply with the acute waste limits set out 
in 40 CFR 261.5(e)(1) and (2). Rule 5.02(B) provides that when such 
generators accumulate waste in tanks, they shall not be subject to 40 
CFR part 265, subpart J [Tank Systems] except for 40 CFR 265.201 
[Special requirements for generators of between 100 and 1,000 kg/month 
that accumulate hazardous waste in tanks]. Rule 5.02(C) provides that 
when such generators accumulate waste on site, they shall not be 
subject to 40 CFR part 265, subpart CC [Air Emission Standards for 
Tanks, Surface Impoundments and Containers].
     Rule 5.05 [Biennial Reports] specifies that SQGs are not 
required to prepare and submit a biennial report.
     Rule 5.06 [Record Keeping] specifies that SQGs are not 
required to maintain copies of biennial reports unless specifically 
requested by the Director to prepare and submit one.
     Rule 13.06B [replacing 40 CFR 273.5--Applicability--
household and conditionally exempt small quantity generator waste] 
requires persons who are federal CESQGs and who generate universal 
waste to manage those wastes either in compliance with 40 CFR 261.5 or 
the universal waste management requirements of this part. Facilities 
which accept household hazardous waste only, for subsequent off-site 
management in accordance with these regulations, will be considered to 
be generators subject to the requirements of section 5.0 of Rhode 
Island's rules.
    Rhode Island's hazardous waste program revisions also include the 
State's Universal Wastes Rule [13.0 Universal Waste]. In addition to 
adopting regulations covering the federal universal wastes of 
pesticides, batteries, thermostats and mercury-containing lamps, Rhode 
Island has added two new wastes to its rule: cathode ray tubes and 
mercury-containing devices. A state may include such additional 
universal wastes, pursuant to the authority of 40 CFR part 273, subpart 
G (petition process for inclusion of additional universal wastes).
    The requirements referenced above are part of Rhode Island's 
authorized program and are federally enforceable.
    The following State requirement goes beyond the scope of the 
Federal program:
     Rhode Island does not provide an exemption for PCB waste 
that is regulated under the Toxic Substances Control Act (TSCA) as does 
the federal program at 40 CFR 261.8. (See Rule 3.67(L)(7)). Instead, 
Rhode Island regulates PCB wastes which contains polychlorinated 
biphenyls at a concentration of 50 parts per million or greater or 
shows ten micrograms per one hundred square centimeters as measured by 
standard wipe tests as

[[Page 51768]]

extremely hazardous waste under its hazardous waste program.
    Broader-in-scope requirements are not part of the authorized RCRA 
program and EPA can not enforce them. Although you must comply with 
these requirements in accordance with state law, they are not federal 
RCRA requirements.

I. Who Handles Permits After This Authorization Takes Effect?

    Rhode Island 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. EPA will continue to implement and issue permits for 
HSWA requirements for which Rhode Island is not yet authorized.

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

    Rhode Island is not authorized to carry out its hazardous waste 
program in Indian country within the State which includes the land of 
the Narragansett Indian Tribe. Therefore, this action has no effect on 
Indian country. EPA will continue to implement and administer the RCRA 
program in these lands.

K. What is Codification and is EPA Codifying Rhode Island's 
Hazardous Waste Program as Authorized in This Rule?

    Codification is the process of placing the State's statutes and 
regulations that comprise the State's authorized hazardous waste 
program into the Code of Federal Regulations. We do this by referencing 
the authorized State rules in 40 CFR part 272. We are today 
authorizing, but not codifying, the enumerated revisions to the Rhode 
Island program. We reserve the amendment of 40 CFR part 272, subpart OO 
for the codification of Rhode Island's program until a later date.

L. Administrative Requirements

    The Office of Management and Budget has exempted this action from 
the requirements of Executive Order 12866 (58 FR 51735, October 4, 
1993) and, therefore, this action is not subject to review by OMB. This 
action authorizes state requirements for the purpose of RCRA 3006 and 
imposes no additional requirements beyond those imposed by state law. 
Accordingly, I certify that this action will not have a significant 
economic impact on a substantial number of small entities under the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action 
authorizes pre-existing requirements under state law and does not 
impose any additional enforceable duty beyond that required by state 
law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, 
this action also does not significantly or uniquely affect the 
communities of tribal governments, as specified by Executive Order 
13084 (63 FR 27655, May 10, 1998). 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.
    Under RCRA 3006(b), EPA grants a State's application for 
authorization as long as the State meets the criteria required by RCRA. 
It would thus be inconsistent with applicable law for EPA, when it 
reviews a State authorization application, to require the use of any 
particular voluntary consensus standard in place of another standard 
that otherwise satisfies the requirements of RCRA. Thus, the 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required 
by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), 
in issuing this rule, EPA has taken the necessary steps to eliminate 
drafting errors and ambiguity, minimize potential litigation, and 
provide a clear legal standard for affected conduct. EPA has complied 
with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining 
the takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this document and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication in the Federal Register. A major rule cannot take effect 
until 60 days after it is published in the Federal Register. This 
action is not a ``major rule'' as defined by 5 U.S.C. 804(2). This 
action, nevertheless, will be effective 60 (sixty) days after 
publication pursuant to the procedures governing immediate final rules.

List of Subjects in 40 CFR Part 271

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous materials transportation, 
Hazardous waste, Indians-lands, Intergovernmental relations, Penalties, 
Reporting and recordkeeping requirements.

    Authority: This action is issued under the authority of sections 
2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended 
42 U.S.C. 6912(a), 6926, 6974(b).

    Dated: July 6, 2002.
Robert W. Varney,
Regional Administrator, EPA New England.
[FR Doc. 02-19979 Filed 8-8-02; 8:45 am]
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