[Federal Register Volume 68, Number 203 (Tuesday, October 21, 2003)]
[Proposed Rules]
[Pages 60060-60073]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-26321]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 262 and 271

[FRL-7575-8]


Massachusetts: Proposed Final Authorization of State Hazardous 
Waste Management Program Revisions; Proposed State-Specific 
Modification to Federal Hazardous Waste Regulations; Proposed Extension 
of Site-Specific Regulations for New England Universities' Laboratories 
XL Project

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Today's action consists of three distinct but related 
proposals briefly characterized here and discussed in detail below in 
the supplementary information section of this action. First, the EPA 
proposes to grant final authorization to the Commonwealth of 
Massachusetts for revisions to its hazardous waste program under the 
Resource Conservation and Recovery Act (RCRA). The revisions consist of 
updated State regulations covering hazardous waste definitions and 
miscellaneous provisions, provisions for the identification and listing 
of hazardous wastes, and standards for hazardous waste generators, 
which correspond to RCRA Consolidated Checklists C1, C2 and C3, 
respectively. These State regulations are being updated to address most 
Federal RCRA requirements listed in Checklists C1, C2 and C3 through at 
least July 1, 1990. These State regulations have been determined by the 
EPA to meet the requirements for authorization (including equivalency) 
as set forth in the EPA's current regulations.
    Second, the State regulations submitted for authorization also 
include comprehensive regulations governing hazardous wastes being 
recycled on-site by generators. Although these State regulations differ 
in several respects

[[Page 60061]]

from the Federal regulations and do not meet particular requirements 
for State authorization currently set forth in the EPA's regulations, 
the EPA has determined that the State regulations meet the RCRA 
statutory test of protecting human health and the environment. These 
Massachusetts regulations are at least as environmentally protective 
overall as the Federal program. Accordingly, the EPA is proposing to 
make a State-specific modification to the Federal hazardous waste 
regulations to enable the EPA to authorize these Massachusetts 
regulations, pursuant to a proposal for flexibility submitted by the 
Massachusetts Department of Environmental Protection (MADEP) under the 
program established by the Joint EPA/State Agreement to Pursue 
Regulatory Innovation between the EPA and the Environmental Council of 
States (ECOS program). The EPA is also proposing (as part of this same 
rulemaking) to then authorize these Massachusetts hazardous waste 
recyclable materials regulations.
    Third, the EPA is proposing to extend the expiration date of site-
specific regulations previously adopted by the EPA under the eXcellence 
and Leadership program (Project XL) allowing alternative RCRA generator 
requirements to be followed for laboratories at certain universities in 
Massachusetts (and Vermont). The EPA is also proposing (as part of this 
same rulemaking) to then authorize the Massachusetts regulations which 
track these EPA regulations. The EPA already has authorized the Vermont 
regulations which track these EPA regulations and expects to extend the 
authorization of the Vermont regulations through a separate rulemaking.

DATES: Comments on the proposed rule must be received on or before 
November 20, 2003. Comments submitted electronically will be considered 
timely submitted if they are received by 11:59 p.m. (Eastern time) on 
the deadline date. Commenters may request a public hearing by November 
4, 2003. See Supplementary Information below for additional details.

ADDRESSES: Written comments (including requests for hearings) should be 
mailed to Robin Biscaia, Hazardous Waste Unit, EPA Region I, One 
Congress St., Suite 1100 (CHW), Boston, MA 02114-2023, or e-mailed to: 
[email protected].
    Dockets containing copies of the Commonwealth of Massachusetts' 
revision application, the materials which the EPA used in evaluating 
the revision, and materials relating to the proposed State-specific and 
site-specific Federal regulation changes, have been established at the 
following two locations: (i) Massachusetts Department of Environmental 
Protection Library, One Winter Street--2nd Floor, Boston, MA 02108, 
business hours Monday through Friday 9 a.m. to 5 p.m., tel: (617) 292-
5802; and (ii) EPA Region I Library, One Congress Street--11th Floor, 
Boston, MA 02114-2023, business hours Monday through Thursday 10 a.m.--
3 p.m., tel: (617) 918-1990. Records in these dockets are available for 
inspection and copying during normal business hours.

FOR FURTHER INFORMATION CONTACT: Robin Biscaia, Hazardous Waste Unit, 
EPA Region I, One Congress St., Suite 1100 (CHW), Boston, MA 02114-
2023, tel: (617) 918-1642, e-mail: [email protected].

SUPPLEMENTARY INFORMATION:
    Additional comment and hearing information. Unless a hearing is 
scheduled, all comments must be submitted in writing, and must be 
received by the deadline set above. Commenters requesting a public 
hearing should specify the basis for their request. If the EPA 
determines pursuant to 40 CFR 25.4(d) that there is a sufficient reason 
to hold a public hearing, it will hold such a hearing prior to the 
close of the public comment period. The public comment period may then 
be extended to allow sufficient time to schedule and hold a hearing. If 
a public hearing is scheduled, the date, time and location will be 
available through a Federal Register notice, by contacting Ms. Robin 
Biscaia at the Region I office, and by individual notice to those 
persons on the mailing list of those interested in this matter. Persons 
wishing to be added to this mailing list should contact Ms. Robin 
Biscaia.
    Introduction. In part I, below, this document will discuss the 
updated State RCRA regulations which are proposed to be authorized as a 
standard authorization under the current EPA regulations. In part II, 
below, this document will discuss the ECOS program proposal to make a 
State-specific change to the Federal regulations to allow authorization 
of the Massachusetts hazardous waste recyclable materials regulations, 
and the proposed resulting authorization of the recyclable materials 
regulations. In part III, below, this document will discuss the 
proposal to extend the expiration date of the New England Universities' 
Laboratories project XL regulations, and the proposed authorization of 
the Massachusetts project XL regulations. In part IV, below, this 
document will assess the effects of the proposed decisions, in 
accordance with various statutes and executive orders.

I. Proposed Final Authorization of State Hazardous Waste Management 
Program Revisions; Standard Authorization

A. Why Are Revisions to State Programs Necessary?

    States with final authorization under section 3006(b) of RCRA, 42 
U.S.C. 6926(b), have a continuing obligation to maintain a hazardous 
waste program that is equivalent to, consistent with, and no less 
stringent than the Federal hazardous waste program. As the Federal 
hazardous waste program changes, the States must revise their programs 
and apply for authorization of the revisions. Revisions to State 
hazardous waste programs may be necessary when Federal or State 
statutory or regulatory authority is modified or when certain other 
changes occur. Most commonly, States must revise their programs because 
of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) 
parts 124, 260 through 266, 268, 270, 273 and 279.

B. What Has Massachusetts Previously Been Authorized for Under RCRA?

    The Commonwealth of Massachusetts initially received Final 
Authorization on January 24, 1985, effective February 7, 1985 (50 FR 
3344), to implement its base hazardous waste management program. The 
authorized base program State regulations currently remain in effect 
and generally track Federal hazardous waste requirements through at 
least July 1, 1984. In addition, the EPA previously has authorized 
particular Massachusetts regulations which address several of the EPA 
requirements adopted after July 1, 1984. Specifically, on September 30, 
1998, the EPA authorized Massachusetts to administer the Satellite 
Accumulation rule, effective November 30, 1998 (63 FR 52180). Also, on 
October 12, 1999, the EPA authorized Massachusetts to administer the 
Toxicity Characteristics rule (except with respect to Cathode Ray 
Tubes), and the Universal Waste rule, effective immediately (64 FR 
55153). Finally, on November 15, 2000, the EPA granted interim 
authorization for Massachusetts to regulate Cathode Ray Tubes under the 
Toxicity Characteristics rule through January 1, 2003, effective 
immediately (65 FR 68915). This interim authorization subsequently was 
extended to run through January 1, 2006 (67 FR 66338, October 31, 
2002).

[[Page 60062]]

C. What Decisions Is the EPA Proposing To Make in This Standard 
Authorization?

    The EPA is proposing to authorize Massachusetts regulations which 
will update the State's hazardous waste program. The proposed State 
regulations cover hazardous waste definitions and miscellaneous 
provisions, provisions for the identification and listing of hazardous 
wastes, and standards for hazardous waste generators, which correspond 
to RCRA Consolidated Checklists C1, C2 and C3, respectively. The State 
regulations are being updated to address most Federal RCRA requirements 
listed in Checklists C1, C2 and C3 through at least July 1, 1990. The 
EPA is proposing to authorize these changes. In addition to addressing 
requirements in Checklists C1, C2 and C3 not previously covered by 
authorized State regulations, the proposed State regulations make some 
changes to the previously authorized Satellite Accumulation, Universal 
Waste rule and Toxicity Characteristics rule regulations. The EPA also 
is proposing to authorize these changes. In addition, the proposed 
State regulations include some State initiated changes to previously 
authorized Base Program regulations (i.e., changes made for reasons 
other than addressing new EPA requirements). The EPA also is proposing 
to authorize these changes insofar as they address hazardous waste 
definitions and miscellaneous provisions, provisions for the 
identification and listing of hazardous wastes, and standards for 
hazardous waste generators, and except as specified below. Finally, the 
proposed State regulations include provisions which track the 180 Day 
Accumulation Time rule for metal finishing industry waste water 
treatment sludges (F006) being recycled, adopted by the EPA on March 6, 
2000 (65 FR 12397). The EPA also is proposing to authorize these 
provisions.
    The specific RCRA program revisions for which the EPA proposes to 
authorize the Commonwealth of Massachusetts are listed in the table 
below. The Federal requirements in the table are identified by their 
checklist numbers and rule descriptions. The following abbreviation is 
used in defining analogous state authority: CMR = Code of Massachusetts 
Regulations. The citations in the table are to the CMR provisions as 
recently proposed to be adopted/amended by the MADEP in Massachusetts 
Register No. 983 (September 26, 2003). The EPA expects to authorize 
these provisions through a final Federal rule once they are adopted in 
final form by the MADEP through a final State rule, if the final State 
regulations are the same as the proposed State regulations. If the 
final State regulations are different from the proposed State 
regulations, the EPA expects to authorize them (without an additional 
round of public comment) if but only if the final regulations continue 
to meet standard authorization requirements and are a logical outgrowth 
of the proposed regulations.

------------------------------------------------------------------------
  Description of Federal requirements and
        checklist reference numbers           Analogous State authority
------------------------------------------------------------------------
Consolidated Checklist 1 through July 1,    310 CMR 30.001-30.009;
 1990, covering base program requirements    30.010 (definitions),
 in 40 CFR part 260, and requirements in     except for definitions
 the following rule checklists included in   relating to program
 part 260:                                   elements not being
                                             authorized, namely ``mixed
                                             waste,'' ``municipal or
                                             industrial wastewater
                                             treatment facility
                                             permitted under M.G.L. c.
                                             21, sec. 43'' and
                                             definitions relating to
                                             used oil program; 30.011-
                                             30.030.
(5) National Uniform Manifest
 (definitions), 49 FR 10490, 3/20/84;
(11) Corrections to Test Methods Manual,
 49 FR 47390, 12/4/84;
(13) Definition of Solid Waste, 50 FR
 14216, 4/11/85 as amended on 8/20/85 at
 50 FR 33541 (except for variance
 authorities, 40 CFR 260.30 through 40 CFR
 260.33);
(23) Generators of 100 to 1000 kg
 Hazardous Waste (definitions), 51 FR
 10146, 3/24/86;
(24) Financial Responsibility; Settlement
 Agreement (definitions), 51 FR 16422, 5/2/
 86;
(28) Standards for Hazardous Waste Storage
 and Treatment Tank Systems (definitions),
 51 FR 25422, July 14, 1986 as amended on
 August 15, 1986 at 51 FR 29430;
(35) Revised Manual SW-846, Amended
 Incorporation by Reference (definitions),
 52 FR 8072-8073, March 16, 1987;
(49) Identification and Listing of
 Hazardous Waste, Treatability Studies
 Sample Exemption (definition), 53 FR
 27290, 7/19/88;
(67) Testing and Monitoring Activities, 54
 FR 40260, 9/29/89;
(71) Mining Waste Exclusion II
 (definition), 55 FR 2322, 1/23/90.

[[Page 60063]]

 
Consolidated Checklist 2 through July 1,    310 CMR 30.101-30.103;
 1990, covering base program requirements    30.104 (exemptions), except
 in 40 CFR part 261 and requirements in      for 30.104(3)(d) (research
 the following rule checklists included in   study samples); 30.105-
 part 261:                                   30.162; 30.353 (rules for
(4) Chlorinated Aliphatic Hydrocarbon        very small quantity
 Listing (F024), 49 FR 5308, 2/10/84;        generators, being
(7) Warfarin and Zinc Phosphide Listing,     authorized in place of EPA
 49 FR 19922, 5/10/84;                       conditional exemption in 40
(8) Lime Stabilized Pickle Liquor Sludge,    CFR 261.5).
 49 FR 23284, 6/5/84;
(9) Household Waste, 49 FR 44978, 11/13/
 84;
(13) Definition of Solid Waste, 50 FR
 614,1/4/85 as amended 4/11/85 at 50 FR
 14216 and 8/20/85 at 50 FR 33541;
(14) Dioxin Waste Listing and Management
 Standards, 50 FR 1978, 1/14/85;
(17C) HSWA Codification Rule--Household
 Waste, 50 FR 28702, 7/15/85;
(17J) HSWA Codification Rule--Cement
 Kilns, 50 FR 28702, 7/15/85;
(18) Listing of TDI, TDA, DNT, 50 FR
 42936, 10/23/85;
(20) Listing of Spent Solvents, 50 FR
 53315, 12/31/85 as amended on 1/21/86 at
 51 FR 2702;
(21) Listing of EDB Waste, 51 FR 5327, 2/
 13/86;
(22) Listing of Four Spent Solvents, 51 FR
 6537, 2/25/86;
(23) Generators of 100 to 1000 kg
 hazardous waste, 51 FR 10146, 3/24/86;
(26) Listing of Spent Pickle Liquor, 51 FR
 19320, 5/28/86 amended on 9/22/86 by 51
 FR 33612 and on 8/3/87 by 52 FR 28697;
(28) Standards for Hazardous Waste Storage
 and Treatment Tank Systems, 51 FR 25422,
 7/14/86 as amended on 8/15/86 at 51 FR
 29430;
(29) Correction to Listing of Commercial
 Chemical Products and Appendix VIII, 51
 FR 28296, 8/6/86 (superseded by Checklist
 46, see below);
(31) Exports of Hazardous Waste, 51 FR
 28664, 8/8/86;
(33) Listing of EBDC, 51 FR 37725, 10/24/
 86;
(37) Definition of Solid Waste, Technical
 Correction, 52 FR 21306, 6/5/87;
(41) Identification and Listing of
 Hazardous Waste, 52 FR 26012, 7/10/87;
(46) Technical Correction, Identification
 and Listing of Hazardous Waste, 53 FR
 13382, 4/22/88;
(47) Identification and Listing of
 Hazardous Waste, Technical Correction
 (corrects CL 23);
(49) Identification and Listing of
 Hazardous Waste, Treatability Studies
 Sample Exemption, 53 FR 27290, 7/19/88;
(53) Identification and Listing of
 Hazardous Waste, and Designation,
 Reportable Quantities, and Notification,
 53 FR 35412, 9/13/88;
(56) Identification and Listing of
 Hazardous Waste, Removal of Iron Dextran
 from the List of Hazardous Wastes, 53 FR
 43878, 10/31/88;
(57) Identification and Listing of
 Hazardous Waste, Removal of Strontium
 Sulfide from the List of Hazardous
 Wastes, 53 FR 43881, 10/31/88;
(65) Mining Waste Exclusion I, 54 FR
 36592,9/1/89;
(67) Testing and Monitoring Activities, 54
 FR 40260, 9/29/89;
(68) Reportable Quantity Adjustment Methyl
 Bromide Production Wastes, 54 FR 41402,
 10/6/89;
(69) Reportable Quantity Adjustment, 54 FR
 50968, 12/11/89;
(71) Mining Waste Exclusion II, 55 FR
 2322, 1/23/90;
(72) Modifications of F019 Listing, 55 FR
 5340, 2/14/90;
(73) Testing and Monitoring Activities,
 Technical Corrections, 55 FR 8948, 3/9/
 90;
(75) Listing of 1,1-Dimethylhydrazine
 Production Wastes, 55 FR 18496, 5/2/90;
(76) Criteria for Listing Toxic Wastes,
 technical amendment, 55 FR 18726, 5/4/90.

[[Page 60064]]

 
Consolidated Checklist 3 through July 1,    310 CMR 30.301-30.352 (rules
 1990, covering base program requirements    for large and small
 in 40 CFR part 262 and requirements in      quantitygenerators);
 the following rule checklists included in   revisions to 30.685(1)
 part 262:                                   (referenced by generator
(1) Biennial Report, 48 FR 3977, 1/28/83;    regulations); 30.361
(5) National Uniform Manifest, 49 FR         (international shipments);
 10490, 3/20/84;                             30.061-30.064 (generator
(17D) HSWA Codification Rule, Waste          notifications/i.d.
 Minimization, 50 FR 28702, 7/15/85;         numbers).
(23) Generators of 100 to 1000 kg           Note: The Massachusetts
 Hazardous Waste, 51 FR 10146, 3/24/86;      ``Class A'' recycling
(28) Standards for Hazardous Waste Storage   regulations regarding
 and Treatment Tank Systems, 51 FR 25422,    generators doing on-site
 7/14/86 as amended on 8/15/86 at 51 FR      recycling also will be
 29430;                                      authorized, as described in
(31) Exports of Hazardous Waste, 51 FR       Part II of this document.
 28664, 8/8/86;                              Special rules for certain
(32) Standards for Generators, Waste         university laboratories
 Minimization Certifications, 51 FR 35190,   covered by the New England
 10/1/86;                                    Universities' Laboratories
(42) Exception Reporting for Small           XL project also will be
 Quantity Generators of Hazardous Waste,     authorized, as described in
 52 FR 35894, 9/23/87;                       Part III of this document.
(48) Farmer Exemptions, Technical
 Corrections, 53 FR 27164, 7/19/88;
(58) Standards for Generators of Hazardous
 Waste, Manifest Renewal, 53 FR 45089, 11/
 8/88;
(71) Mining Waste Exclusion II, 55 FR
 2322, as described in Part III 1/23/90
RCRA Cluster X:
(184) Accumulation Time for Waste Water     310 CMR 30.340(5).
 Treatment Sludges, 65 FR 12378, 3/8/00.
Revisions to Previously Authorized Rules:
(12) Satellite Accumulation Rule, 49 FR     310 CMR 30.340(6),
 49568, 12/20/84;                            30.351(5), 30.351(2)(b)(6.)
                                             and 30.353(2)(b)(6.).310
                                             CMR 30.155 and 30.012
                                             (updated incorporation by
                                             reference).
(119) Toxicity Characteristics Revision,
 TCLP Correction, 57 FR 55114, 11/24/92 as
 amended on 2/2/93 at 58 FR 6854.
(142) Universal Waste Rule, 60 FR 25492, 5/ 310 CMR
 11/95.                                      30.1034(5)(c)(1.)(c.)
                                             (revised cross-reference).
------------------------------------------------------------------------

    Following review of the proposed Massachusetts regulations, the EPA 
has determined that they are equivalent to, no less stringent than and 
consistent with the Federal program. The reasons for these 
determinations are set forth in the Administrative Docket, which is 
available for public review. Many of the proposed State regulations 
track Federal requirements virtually identically. Others differ from 
the Federal regulations in particular details, but have been determined 
by the EPA to be equivalent to the Federal regulations in providing the 
same (or greater) overall level of environmental protection with 
respect to each Federal requirement. The resolution of various issues 
relating to the proposed State regulations is recorded in an EPA 
Memorandum dated February 14, 2003 entitled ``Comments on Proposed 
Massachusetts RCRA Regulations'' and an EPA Memorandum dated March 31, 
2003 entitled ``Resolution of Issues Regarding Proposed Massachusetts 
RCRA Regulations.''
    Future updates of the State's regulations will need to address 
requirements covered by Checklists C1 through C3 adopted after July 1, 
1990 and requirements covered by Checklists C4 through C10 adopted 
since July 1, 1984. The EPA has not reviewed and is not currently 
proposing to authorize changes the State may have made to Base Program 
regulations relating to Checklists C4--C10. (Note, Checklists C4 
through C10 address EPA provisions found in 40 CFR parts 263, 264, 265, 
266, 268, 270, 124 and 279). Also not covered in the current proposed 
authorization are some rules issued by the EPA before July 1, 1990 
which apply in part to generators, namely the 1986 Radioactive Mixed 
Waste rule/interpretation, the various rules relating to Land Disposal 
Restrictions (``LDRs''), and the 1990 Organics Air Emissions rule 
(``AA'' and ``BB'' rule). Also not covered in the current proposed 
authorization are sector-specific rules that the MADEP has adopted for 
printers, photo processors and dry cleaners under its Environmental 
Results Program (``ERP''). Although many sources in these sectors are 
subject to RCRA requirements, the MADEP has advised the EPA that the 
ERP regulations have not made any changes to the hazardous waste 
management requirements applicable to these sectors, and has not 
submitted the ERP regulations for authorization at this time. Also not 
covered in the current proposed authorization is the proposed State 
regulation at 310 CMR 30.104(3)(d) relating to research facilities. 
That proposed regulation relates to an exemption from full Treatment, 
Storage, Disposal Facility (``TSDF'') requirements found at 310 CMR 
30.864. The EPA will review that research facility provision (and the 
related exemption) when the MADEP submits updated regulations for TSDFs 
(Consolidated Checklists C5, C6 and C9). Also not covered in the 
current proposed authorization is the proposed State definition of 
``municipal or industrial wastewater treatment facility permitted under 
M.G.L. c. 21, sec. 43'' in 310 CMR 30.010. That proposed definition 
relates to an exemption from full TSDF requirements found at 310 CMR 
30.801(4). The EPA will review this definition (and the related 
exemption) when the MADEP submits updated regulations for TSDFs.

D. Where Are the Proposed State Rules Different From the Federal Rules?

    The most significant differences between the proposed State rules 
and the Federal rules are summarized below. It should be noted that 
this summary does not describe every difference, or every detail 
regarding the differences that are described. Members of the regulated 
community are advised to read the complete regulations to ensure that 
they understand all of the requirements with which they will need to 
comply.

[[Page 60065]]

1. More Stringent Provisions
    There are aspects of the Massachusetts program which are more 
stringent than the Federal program. All of these more stringent 
requirements are or will become part of the federally enforceable RCRA 
program when authorized by the EPA, and must be complied with in 
addition to the State requirements which track the minimum Federal 
requirements. These more stringent requirements include the following:
    [sbull] Massachusetts does not follow the EPA interpretation 
allowing Large Quantity Generators and Small Quantity Generators to 
conduct treatment without permits in accumulation tanks and containers.
    [sbull] Massachusetts imposes various requirements regarding 
storage of hazardous wastes by generators which are more stringent than 
Federal requirements. For example, Massachusetts requires that labels 
on tanks and containers include identification of the hazardous wastes 
and the type of hazards associated with the wastes, as well as tracking 
the Federal requirement that the labels include the words ``hazardous 
waste.''
    [sbull] In addition, Massachusetts specifies recordkeeping 
requirements to document compliance with requirements in some 
circumstances where the recordkeeping is not expressly required under 
the Federal regulations, e.g., the keeping of an inspection log for 
container area inspections.
    [sbull] Massachusetts imposes spill containment requirements for 
container areas (not just for tanks as in the Federal regulations), 
including a requirement that indoor containers be located on an 
impervious base and a requirement that outdoor containers have full 
secondary containment.
    [sbull] Massachusetts requires security measures and posting of 
signs at hazardous waste storage areas, in addition to the labeling of 
individual tanks and containers as required by the Federal regulations.
    [sbull] Massachusetts does not allow any storage of hazardous 
wastes in open tanks, whereas the Federal regulations allow such 
storage except when otherwise required by the 40 CFR parts 264 and 265, 
subpart CC hazardous air emission rules.
    [sbull] Massachusetts specifies requirements for Very Small 
Quantity Generators (``VSQGs'') (Federal Conditionally Exempt Small 
Quantity Generators) which go beyond the Federal requirements for 
conditional exemption. For example, Massachusetts specifies safe 
storage practices for VSQGs whereas the Federal regulations regarding 
tank and container storage apply only to Large Quantity Generators 
(``LQGs'') and Small Quantity Generators (``SQGs'').
    [sbull] In addition, Massachusetts prohibits VSQGs from generating 
or accumulating any acutely hazardous wastes, whereas the Federal 
regulations allow such generators to accumulate up to one kilogram of 
such wastes.
    [sbull] Finally, VSQG hazardous wastes may be sent to municipal 
solid waste landfills under the Federal program but not under the 
Massachusetts program.
2. Broader in Scope Provisions
    There also are aspects of the Massachusetts program which are 
broader in scope than the Federal program. The State requirements which 
are broader in scope are not considered to be part of the Federally 
enforceable RCRA program. However, they are fully enforceable under 
State law and must be complied with by sources within Massachusetts. 
These broader in scope requirements include the following:
    [sbull] As further discussed in part II, below, Massachusetts 
designates and regulates as hazardous many recyclable materials not 
regulated as hazardous wastes under the Federal RCRA program, in 
addition to regulating those hazardous recyclable materials that are 
regulated as hazardous wastes in the Federal program.
    [sbull] Massachusetts regulates both Centers and Events which 
collect household hazardous wastes and VSQG hazardous wastes. In 
contrast, household hazardous wastes are not regulated as hazardous 
wastes under the Federal program even when collected at centers and 
events. In addition, under the Federal regulations, VSQG hazardous 
wastes may be sent to facilities authorized by the State to manage such 
wastes, but there are no Federal regulations specifying the standards 
to be followed at facilities which are centers and events.
3. Different but Equivalent Provisions
    As noted in part I.C. above, there also are various Massachusetts 
regulations which differ from but have been determined to be equivalent 
to the Federal regulations. These State regulations which are different 
from but equivalent to the Federal regulations are or will become part 
of the Federally enforceable RCRA program when authorized by the EPA. 
These different but equivalent requirements include the following:
    [sbull] The Massachusetts regulations regarding satellite storage 
allow more than one container in a satellite area (so long as there is 
only one container per waste stream) whereas the Federal regulations 
contemplate that there will be only one 55 gallon container in each 
satellite area. Unlike the Federal regulations, however, the State 
regulations impose requirements to ensure that multiple containers will 
be stored safely, including aisle spacing requirements, requirements 
for separation of containers with incompatible wastes and formal 
inspection requirements.
    [sbull] The Massachusetts satellite storage regulations require 
containers to be moved from satellite areas to central storage areas 
within three days of a container being filled (whereas this three-day 
period begins to run under the Federal regulations only when more than 
55 gallons has been accumulated in the satellite area), but the 
Massachusetts regulations also provide that the time allowed for 
storage in the central storage areas begins to run only when the 
container is moved to the central storage area or no later than three 
days after the container is filled. In contrast, under the Federal 
regulations, the time allowed for storage in central storage areas 
begins to run as soon as the container is required to be moved (i.e., 
at the beginning of the three-day period).
    [sbull] The Massachusetts regulations specify that while hazardous 
wastes placed into satellite storage must be counted when determining a 
generator's rate of generation, they need not be counted when 
determining the amount of hazardous waste stored on site (for purposes 
of determining whether a generator is a LQG, SQG or VSQG). In contrast, 
under the Federal regulations, wastes in satellite storage are counted 
both when determining a generator's rate of generation and when 
determining the amount of hazardous waste stored on site.
    [sbull] The Massachusetts regulations contain the same exemption 
from hazardous waste requirements for certain chromium wastes as is 
found in the Federal regulations at 40 CFR 261.4(b)(6). However, under 
the EPA regulation, a generator seeking to claim the exemption for 
other than specifically listed waste streams must petition the EPA and 
obtain a determination that its particular wastes are exempt. In 
contrast, Massachusetts is proposing to allow a generator to make this 
determination for itself provided that the generator documents 
compliance with the criteria listed in the State (and Federal) 
regulations. Of course, a generator is responsible for making the 
correct determination, and the EPA encourages generators who

[[Page 60066]]

have any questions to seek guidance from the MADEP or EPA. Also, an 
exemption determination made by a generator under the Massachusetts 
regulations will apply only within Massachusetts. Petitions will need 
to be filed with any other authorized State to which shipments are 
made, or with the EPA if shipments are made to a non-authorized State.
    [sbull] The Massachusetts regulations contain conditional 
exemptions for bulk scrap metal items as well as smaller particle scrap 
metal items being recycled, for whole used circuit boards as well as 
shredded circuit boards being recycled and for certain mixtures of 
water and unused gasoline being recycled. The Federal regulations 
similarly exempt these materials, but under sometimes different 
categories (e.g., whole used circuit boards under the scrap metal 
category, certain mixtures of water and unused gasoline under the 
commercial chemical products category).
    [sbull] Massachusetts allows VSQGs to conduct certain kinds of 
treatment on site without a permit. The exemption is limited to non-
thermal treatment (typically neutralization) of wastes generated on 
site and is subject to a requirement that the treatment be conducted 
safely. The Massachusetts program operates somewhat similarly to the 
EPA interpretation allowing certain kinds of treatment in accumulation 
tanks and containers without permits, by LQGs and SQGs. However, 
Massachusetts allows treatment without permits only by VSQGs, whereas 
the EPA interpretation instead allows it by LQGs and SQGs. Also, the 
EPA interpretation allows treatment only within accumulation tanks and 
containers, whereas the Massachusetts regulation allows treatment in 
non-accumulation containers (e.g., laboratory containers) at the site 
where the waste was generated, provided of course that this can be done 
safely.
    [sbull] The Massachusetts regulations require that secondary 
containment systems for outdoor above-ground tanks must have a capacity 
at least equal to 110% of the volume of the largest tank. This 
requirement is designed to take the place of the Federal requirement 
(in 40 CFR 265.193(e)) that such containment systems must have a 
capacity at least equal to 100% of the volume of the largest tank plus 
sufficient capacity to contain precipitation from a 25 year, 24 hour 
storm. The Massachusetts regulations generally track the Federal 
requirements regarding secondary containment requirements for 
underground tanks. The Massachusetts regulations are being amended to 
require secondary containment for indoor above-ground tanks with a 
capacity at least equal to 100% of the volume of the largest tank (the 
Federal standard).
    [sbull] The Massachusetts regulations specify standards for when 
tanks will be considered ``empty.'' The EPA regulations specify such 
standards only for containers, while specifying that tanks must be 
decontaminated before being disposed or reused. It should be noted that 
the State's empty tank standard for non-acute wastes is more stringent 
than the State (and Federal) empty container standard, i.e., it does 
not allow waste residues to be left in tanks. The State standards will 
operate similarly to the tank decontamination requirement in the 
Federal regulations, but the State regulations clarify that generators 
may be able to determine that tanks are ``empty'' based on knowledge of 
the waste (e.g., knowledge that there has been appropriate thorough 
cleaning of the tanks), without needing to do TCLP testing in every 
case.

E. What Will Be the Effect of the Proposed Authorization Decision?

    The effect of the proposed authorization decision will be that 
entities in Massachusetts subject to RCRA will need to comply with the 
authorized State requirements instead of the Federal requirements, with 
respect to the matters covered by the authorized State requirements, in 
order to comply with RCRA. However, until the authorized Massachusetts 
program is brought fully up to date, there will continue to be a dual 
state/Federal RCRA program in Massachusetts. RCRA was amended by the 
Hazardous and Solid Waste Amendments (``HSWA'') in 1984. Section 
3006(g) of RCRA, 42 U.S.C. 6906(g), provides that when the EPA 
promulgates new regulatory requirements pursuant to HSWA, the EPA shall 
directly carry out these requirements in states authorized to 
administer the underlying hazardous waste program, until the states are 
authorized to administer these new requirements. The EPA has 
established various new regulatory requirements pursuant to HSWA which 
have not yet been authorized to be administered by Massachusetts. There 
also are various self-implementing requirements directly established by 
the HSWA statutory amendments themselves. Regulated entities must 
comply with these HSWA requirements as set out in the Federal 
regulations and statute in addition to authorized State program 
requirements. The HSWA requirements that will continue to be 
administered by the EPA in Massachusetts include all of the Land 
Disposal Restriction (``LDR'') requirements set out in 40 CFR part 268 
(including requirements adopted prior to July 1, 1990), the Corrective 
Action requirements referenced in 40 CFR 264.101, and the hazardous air 
emission standards set out in 40 CFR parts 264 and 265, subparts AA, BB 
and CC. A complete list of HSWA requirements is set out in 40 CFR 
271.1, Tables 1 and 2.
    With respect to TSDF permitting, Massachusetts will continue to 
issue permits for all the provisions for which it is authorized and 
will administer the permits it issues. The EPA will continue to 
administer any RCRA hazardous waste permits or portions of permits it 
has issued. The EPA also will continue to issue permits or portions of 
permits covering HSWA requirements for which Massachusetts is not 
authorized. In addition, the EPA will continue to implement the 
provisions of 40 CFR 264.1(f)(2) within Massachusetts. That provision 
specifies that TSDFs must comply with any standards promulgated by the 
EPA (HSWA or non-HSWA) after a State is authorized, until the State 
obtains authorization to issue permits covering such newly promulgated 
standards. The major effect of this provision in Massachusetts is that 
the EPA will remain responsible for issuing permits for Miscellaneous 
Units, since the EPA promulgated the Miscellaneous Unit standards in 40 
CFR part 264, subpart X after the initial authorization of the 
Massachusetts base program, and since Massachusetts has not yet applied 
for and is not now being authorized to carry out these requirements.
    Massachusetts is not authorized to carry out its hazardous waste 
program in Indian country within the State (land of the Wampanoag 
tribe). The proposed action will have no effect on Indian country. The 
EPA will continue to implement and administer the RCRA program in these 
lands.
    The EPA is proposing to authorize but not codify the enumerated 
revisions to the Massachusetts program. 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. The EPA does this by referencing the authorized State 
rules in 40 CFR part 272. The EPA reserves the amendment of 40 CFR part 
272, subpart W for the codification of the Massachusetts' program until 
a later date.

[[Page 60067]]

II. Proposed State-Specific Modification to Federal Hazardous Waste 
Regulations, Pursuant to ECOS Program Proposal, To Enable EPA To 
Authorize Certain Portions of the Massachusetts Revisions; Proposed 
Resulting Authorization of Massachusetts Recyclable Materials 
Regulations

A. What Massachusetts Regulations Are Proposed To Be Authorized?

    In 1986, the MADEP adopted regulations to comprehensively regulate 
hazardous recyclable materials, under provisions separate from those 
governing hazardous wastes planned to be disposed. These regulations 
are found in 310 CMR 30.200. In the Federal RCRA program, some 
hazardous recyclable materials are not considered to be hazardous 
wastes and thus are exempt from hazardous waste regulation (e.g., 
sludges and byproducts exhibiting a characteristic of hazardous waste 
and being reclaimed) whereas other hazardous recyclable materials are 
considered to be hazardous wastes and are subject to regulation 
including all of the usually applicable hazardous waste generator 
regulations (e.g., spent materials, listed sludges and listed 
byproducts being reclaimed). In contrast, the State regulations cover 
virtually all hazardous recyclable materials under some level of 
regulation. However, based on the perceived level of risk, different 
recyclable materials are subject to different levels of regulation, 
from the least regulated Class A to the most regulated Class C.
    Initially, the State's Class A regulations applied only to 
recyclable materials that are exempt from Federal regulation. Thus the 
State was not required to seek Federal authorization for these 
regulations. In 1995, however, the MADEP expanded the Class A category 
to include many recyclable materials that are recycled at the site of 
generation. Under the State regulations, these Class A recyclable 
materials must be recycled in a recycling system that is completely 
enclosed, but may be stored in tanks or containers prior to being 
recycled, without the entire storage to recycling process being 
completely enclosed. Thus the Class A regulations now apply to certain 
federally regulated hazardous wastes that are recycled on site by 
generators, namely those hazardous recyclable materials that are spent 
materials, listed sludges and listed byproducts, that are accumulated 
or stored on site before being recycled, and that are recycled through 
a process that does not meet all of the conditions for Federal 
exemption as a completely enclosed recycling process set out in 40 CFR 
261.4(a)(8). In particular, the Class A regulations apply to Federally 
regulated recyclable materials currently being stored by about 136 
generators with stand alone solvent stills/distillation units and to 
Federally regulated recyclable materials currently being stored by 
about 40 generators with stand alone silver recovery units.
    The EPA is proposing to authorize the State's Class A regulations 
insofar as they apply to the storage of recyclable materials by 
generators with stand alone solvent stills/distillation units, 
generators with stand alone silver recovery units, and any other 
generators who may store Federally regulated recyclable materials 
subject to the Class A regulations in the future (i.e., generators 
referenced by 310 CMR 30.212(10)). Once authorized, the Class A 
regulations will become part of the federally approved and enforceable 
State base program generator requirements.
    It should be noted that the State is in the process of revising its 
Class A regulations (as part of its current update), and it is the 
proposed revised Class A regulations which the EPA is proposing to 
authorize. The EPA expects to authorize the final State regulations, 
once they are adopted, if they are the same as the proposed State 
regulations. If the final State regulations are different from the 
proposed State regulations, the EPA expects to authorize them (without 
an additional round of public comment) if but only if the final 
regulations continue to meet the RCRA statutory requirements and are a 
logical outgrowth of the proposed regulations.
    The proposed authorization does not cover the Class A regulations 
insofar as they apply to the Federally exempt recyclable materials 
referenced by 310 CMR 30.212(1) through (7), as the regulation of these 
recyclable materials is beyond the scope of the Federal RCRA program. 
The authorization also will not cover the Class A regulations insofar 
as they apply to waste oil and specification used fuel oil as 
referenced by 310 CMR 30.212(8)-(9), since the MADEP has not yet 
applied to be authorized for the Federal RCRA Used Oil program 
(established in 40 CFR part 279). Finally, the authorization will not 
cover the State's Class B and Class C regulations, since the MADEP has 
not yet applied to be authorized for these regulations (which generally 
relate to off-site non-generator recycling).

B. Why Is the EPA Proposing To Make a Federal Regulation Change?

    The EPA has reviewed the Massachusetts Class A regulations and 
determined that they do not meet particular requirements for State 
authorization set out in the current EPA regulations. However, the EPA 
also has determined that the Massachusetts Class A regulations meet the 
RCRA statutory test of protecting human health and the environment and 
are at least as environmentally protective overall as the Federal 
program. Thus the EPA is proposing to make a State-specific Federal 
regulation change to allow authorization of the Massachusetts Class A 
regulations.
1. Differences in the State Class A Regulations Which Preclude a 
Standard Authorization
    In comparison with the EPA regulations applicable to storage of 
hazardous wastes by generators, the Class A regulations regarding 
storage of hazardous recyclable materials by generators differ with 
respect to various details. For example, under the Federal regulations, 
storage of hazardous wastes without TSDF permits by LQGs and SQGs 
generally is limited to 90 and 180 days, respectively. In contrast, the 
Class A regulations allow recyclable materials to be stored pending 
recycling so long as there is no ``speculative accumulation.'' This 
typically allows storage times without TSDF permits of a year or 
longer. The EPA regulations on State authorization specify that, 
``[s]tate law must require [TSDF] permits for owners and operators of 
all hazardous waste management facilities required to obtain permits 
under 40 CFR part 270 * * * '' 40 CFR 271.13(a). By allowing generator 
storage times without TSDF permits longer than the Federal regulations, 
the Class A regulations do not comply with this current EPA requirement 
for State authorization.
    In addition, the Class A regulations impose requirements regarding 
storage of recyclable materials by generators which are quite different 
from the Federal regulations in 40 CFR part 262 regarding generator 
storage. In place of the Federal categories of LQG, SQG and CESQG 
(Massachusetts VSQG), the Class A regulations establish a dual status 
system. Generators are classified as LQGs or SQGs or VSQGs with respect 
to wastes to be shipped off-site based on the amount of such wastes to 
be shipped off-site. Generators are separately classified and regulated 
with respect to Class A recyclable materials based on the amounts of 
such materials (and are placed in either a merged LQG/SQG category or a 
VSQG category for that purpose). The resulting differences between the 
State and Federal regulations are fully described in a EPA memorandum 
dated July 8, 2002,

[[Page 60068]]

entitled ``Massachusetts RCRA Program Update: Issues Regarding 
Regulation of Recyclable Materials Reclaimed by Generators on Site.'' 
The differences include that the State does not count Class A 
recyclable materials in determining generator status (for wastes to be 
shipped off-site), resulting in some sources which would be LQGs under 
the Federal program instead being regulated in a lesser-regulated 
generator category. In addition, for sources which remain LQGs 
(notwithstanding the difference regarding counting), the usual LQG 
requirements regarding contingency planning and training do not apply 
to the parts of the generator's site handling the Class A hazardous 
recyclable materials. Rather, with respect to these recyclable 
materials, such generators are instead subject to the less formal and 
detailed Class A requirements regarding emergency planning and 
training.
    The EPA is committed to reexamining the extent of flexibility that 
should be employed when reviewing State RCRA programs. In connection 
with another part of Massachusetts' ECOS program proposal, the EPA is 
creating a Work Group of EPA and State personnel to examine 
authorization issues. Without waiting for the results of this effort, 
the EPA nevertheless has employed some flexibility consistent with its 
current regulations in reviewing the Massachusetts RCRA program update, 
as indicated by its proposed approval of some Massachusetts provisions 
which differ from Federal provisions, discussed in part I.D. above. 
However, the differences between the Massachusetts Class A regulations 
and the EPA generator storage regulations are greater than those 
discussed in part I.D., and a standard authorization of the Class A 
regulations is precluded under the current EPA State authorization 
regulations by, for example, the difference regarding when TSDF permits 
are required. Thus the EPA is not proposing to approve the 
Massachusetts Class A regulations as a standard authorization.
2. Justification for Making a Change To the Federal Regulations To 
Allow the Authorization
    The EPA is persuaded that it should make a State-specific 
regulation change to its Federal regulations to enable the 
authorization of the Class A regulations. The Massachusetts program 
comprehensively regulates hazardous wastes that are recycled on site by 
generators, and has operated successfully for many years. The State 
regulations contain incentives that encourage recycling (e.g., lower 
fees for generators which recycle). In its ECOS project application, 
the MADEP reported that as of 1999, over 490,000 tons of wastes were 
recycled under its program, as opposed to 90,000 tons of hazardous 
wastes that were disposed. Basic requirements are in place in the 
State's recycling program, including the requirement to do waste 
determinations, the requirement to obtain hazardous waste i.d. numbers 
(except for VSQGs) and safe handling requirements. While less stringent 
with respect to certain details, the Massachusetts program is at least 
as stringent as the Federal program overall. In particular, the 
Massachusetts program regulates a broader universe of hazardous 
recyclable materials than are regulated in the Federal program. Even if 
the focus is limited to Federally regulated wastes, the Massachusetts 
program is as stringent as the Federal program overall. It regulates 
the recycling process itself as well as prior hazardous waste storage, 
unlike the Federal program which regulates only the storage. Finally, 
some of the State's more stringent storage requirements (described in 
Part I.D. above) have been applied to the storage of Class A materials, 
including additional labeling requirements and the prohibition of the 
use of open tanks.
    Thus the Massachusetts Class A regulations meet the RCRA statutory 
test of protecting human health and the environment, and constitute an 
acceptable alternative approach (to regulating hazardous recyclable 
materials) to the approach currently set forth in the Federal 
regulations. In addition, the EPA recently announced that it is 
planning to propose a change to its regulations to revise the Federal 
RCRA regulatory requirements with respect to recyclable materials that 
remain in use in a continuous industrial process. 49 FR 11251 (March 
13, 2002). This is a part of the EPA's response to the court's decision 
in Association of Battery Recyclers v. EPA, 208 F.3d 1047 (D.C.Cir. 
2000) (``ABR''), which set aside a portion of an EPA regulation 
regarding mineral processing industry recyclable materials. If the EPA 
ultimately adopts a regulation exempting recyclable materials used in a 
continuous industrial process from Federal RCRA regulation, this 
exemption is likely to cover at least most Class A recyclable 
materials.
    The EPA does not believe that in light of the ABR decision, it 
should determine now that all Class A materials are not subject to 
Federal regulation, and thus conclude that the Class A regulations 
create no authorization issues. Such a result is not compelled by the 
court's decision and would prejudge the EPA's anticipated general 
rulemaking process. However, the fact that the EPA is planning to move 
in the direction of reducing regulation regarding recyclable materials 
is an additional reason counseling in favor of authorizing the State's 
program regarding Class A recyclable materials under the authority of a 
special EPA regulation. As mentioned above, the State's Class A program 
has operated successfully for many years. Requiring the State to now 
change that program to track EPA requirements does not make sense in 
the particular circumstances, including the EPA's announced intention 
to soon change the requirements.
    The EPA is proposing to make the State-specific change to its 
Federal regulations pursuant to a proposal for flexibility submitted by 
the MADEP under the ECOS program. Under the Joint EPA/State Agreement 
to Pursue Regulatory Innovation, the EPA agreed to entertain State 
proposals for flexibility in an agreement entered into between the EPA 
and the Environmental Council of States. See 63 FR 24784 (May 5, 1998). 
As specified in that agreement, the EPA may accept State proposals to 
follow alternative regulatory requirements when (as here) the 
alternative requirements provide at least an equivalent overall level 
of environmental protection as the standard EPA mandated requirements.

C. What Is the Proposed Regulation Change?

    The proposed change to the Federal regulations which will enable 
the EPA to grant the requested flexibility is set out at the end of 
this document. The EPA proposes to amend 40 CFR 262.10 to add a 
paragraph (k), which will specify that generators within Massachusetts 
may comply with the Class A regulations, when authorized, with respect 
to the recyclable materials and matters covered by the authorization, 
instead of complying with certain standard EPA regulations. The EPA 
proposes to have this new regulation take effect immediately upon its 
final promulgation. The EPA Administrator has delegated one-time 
authority to the Regional Administrator, EPA New England, to make this 
regulation change.

D. What Will Be the Effect of the Proposed Federal Regulation Change?

    The proposed change to the Federal regulations will enable the EPA 
to authorize the Massachusetts regulations, since the Federal 
regulations will specify that the State regulations contain acceptable 
alternative standards

[[Page 60069]]

for Massachusetts. The State regulations will be equivalent to, 
consistent with and no less stringent than these acceptable alternative 
standards. Allowing the alternative standards is justified for the 
reasons discussed in part II.B, above. In particular, the EPA has 
determined that the alternative program is at least as stringent 
overall as the standard EPA RCRA program. The EPA believes that it has 
the authority to approve this alternative program under the RCRA 
statute.
    However, the change to the Federal regulations will not itself 
result in any change to the legal requirements applicable to generators 
in Massachusetts. Rather, generators will become subject to the 
proposed revised Class A requirements under State law when they are 
adopted in final form by the MADEP. These requirements will in turn 
become part of the Federally enforceable RCRA program when they are 
authorized by the EPA. For the sake of efficiency, the EPA is proposing 
to both make the Federal regulation change and to authorize the State 
regulations in the rulemaking proposed today. Thus in this particular 
case, the EPA expects that the State requirements will become 
authorized and federally enforceable at the same time as the Federal 
regulation change.
    Under section 3006 of RCRA, the EPA may authorize a qualified State 
to administer and enforce a hazardous waste program within the State. 
(See 40 CFR part 271 for the requirements for authorization). States 
with final authorization administer their own hazardous waste programs 
in lieu of the Federal program. Following authorization, the EPA 
continues to have independent enforcement authority under RCRA sections 
3007, 3008, 3013 and 7003.
    After authorization, Federal rules written under RCRA provisions 
which predate the Hazardous and Solid Waste Amendments of 1984 (HSWA) 
no longer apply in the authorized state. Rather, the authorized State 
regulations apply in lieu of such Federal requirements. In addition, 
new Federal requirements imposed by such rules do not take effect in an 
authorized state until the state adopts the requirements.
    In contrast, under section 3006(g) of RCRA, new requirements and 
prohibitions imposed by HSWA take effect in authorized states at the 
same time that they take effect in non-authorized states. The EPA is 
directed to carry out HSWA requirements and prohibitions in authorized 
states until the state is granted authorization to do so.
    This proposed rule, if finalized, would be promulgated pursuant to 
non-HSWA authority. Thus as explained above, the alternative standards 
contemplated by the rule will take effect in Massachusetts only when 
adopted by Massachusetts and will become Federally enforceable only 
when authorized by the EPA. Once they take effect, however, they will 
apply in lieu of the EPA program with respect to the recyclable 
materials and matters covered by the authorization. For example, 
generators storing solvents for recycling in stand alone stills/
distillation units will be able to store such solvents without permits 
for more than the 90 or 180 days set out in the Federal regulations, so 
long as they do not engage in ``speculative accumulation.''
    Of course, generators still will need to comply with any other 
applicable RCRA requirements in addition to the Class A requirements. 
For example, generators storing some wastes for recycling and other 
wastes for disposal will need to comply with the authorized State 
requirements regarding wastes being stored for disposal with respect to 
those other wastes. In addition, generators will need to comply with 
any applicable Federal requirements which are being directly 
implemented by the EPA within Massachusetts pursuant to HSWA, i.e., all 
HSWA requirements for which the State has not yet been authorized.
    In particular, the State has not yet been authorized for and the 
EPA is continuing to administer within Massachusetts the air emission 
standards for tanks and containers set out in 40 CFR part 265, subpart 
CC (``CC regulations''). These regulations are applicable to many large 
quantity generators storing solvents, among others. Following 
authorization of the Class A regulations, the EPA plans to administer 
and enforce these CC regulations within Massachusetts as follows. 
First, only generators which are classified as large quantity 
generators under the State regulations will be considered subject to 
the CC regulations. That is, the EPA will utilize the Massachusetts 
counting rules when administering the CC rule within Massachusetts. 
This will avoid generators needing to do two separate State and Federal 
status calculations. Second, however, any generators which are 
classified as large quantity generators under the State regulations 
with respect to any part of their site will be subject to the CC 
regulations throughout their sites. Large quantity generators storing 
solvents will need to comply with all applicable requirements imposed 
by the CC regulations, whether the solvents are being stored for 
disposal or recycling. That is, the EPA will not utilize the 
Massachusetts dual status concept when administering the CC rule within 
Massachusetts. The EPA expects that any generator which is a LQG will 
take the steps required under the CC rule to prevent hazardous air 
emissions, just as such generators are subject to all applicable Clean 
Air Act requirements whether they dispose of their wastes or recycle.

E. For How Long Will the Proposed Authorization Continue?

    Unlike the proposed authorization of the Labs XL project 
regulations discussed in Part III below, the proposed authorization of 
the Massachusetts ECOS project regulations will continue indefinitely. 
The EPA believes this is justified based on the long successful 
operation of the Massachusetts Class A program, i.e., no further 
assessment is necessary prior to the permanent authorization of this 
RCRA program element. Of course, like any other authorized program 
element, the Massachusetts Class A program will be subject to EPA 
oversight and possible future revision. But absent future EPA action to 
modify or rescind the action, the authorization will continue.
    If the EPA issues future final regulations changing the status of 
recyclable materials used in a continuous industrial process under 
Federal RCRA regulation, portions of the Massachusetts Class A program 
now proposed to be authorized could then become beyond the scope of 
Federal regulation. If and when any revised national regulations take 
effect, the EPA will then address, in connection with a later update of 
the Massachusetts RCRA program, the effect of the national regulations 
on the Massachusetts program.

III. Proposed Extension of Site-Specific Regulations for New England 
Universities' Laboratories XL Project To Enable EPA To Authorize 
Certain Portions of the Massachusetts Revisions; Proposed Authorization 
of Massachusetts XL Project Regulations

A. What Is the New England Universities' Laboratories XL Project?

    Project XL--``eXcellence and Leadership'' was announced in May 1995 
as a part of the National Performance Review and the EPA's effort to 
reinvent environmental protection. See 60 FR 27282 (May 23, 1995). 
Project XL provides a limited number of private and public regulated 
entities an opportunity to develop pilot projects to provide regulatory 
flexibility

[[Page 60070]]

that will result in environmental protection that is superior to what 
would be achieved through compliance with current standard regulations 
and reasonably anticipated future regulations.
    One of the projects that has been approved under Project XL is the 
New England Universities' Laboratories project. A Project XL proposal 
that the EPA exercise flexibility under RCRA was developed for the 
University of Massachusetts--Boston, Boston, MA, Boston College, 
Chestnut Hill, MA, and the University of Vermont, Burlington, VT (the 
``participating universities''). A Final Project Agreement approving 
the proposal was signed by the EPA, the participating universities, the 
MADEP and the Vermont Department of Environmental Conservation, on 
September 28, 1999. Pursuant to that agreement, the participating 
universities have been allowed to comply with Environmental Management 
Plans (EMPs) covering their laboratories in place of certain standard 
requirements for hazardous waste generators, during a trial period. In 
order to allow this experiment, the EPA adopted special regulations 
during 1999 which are set forth in 40 CFR 262.10(j) and 40 CFR 262.100-
108. See 64 FR 52380 (September 28, 1999) (final rulemaking) and 64 FR 
40696 (July 27, 1999) (proposed rulemaking). The reasons for approving 
the special EPA regulations are fully set forth in those rulemaking 
notices and will not be repeated here. Like the special regulation 
discussed in part II above in connection with the proposed ECOS 
project, the special EPA regulations were designed to enable the EPA to 
authorize State regulations that are different from the standard EPA 
regulations. Also like the ECOS project, the actual implementation of 
the XL project requires the adoption, and Federal authorization, of 
State regulations.
    Following the adoption of EPA's special Project XL regulations, 
both Massachusetts and Vermont adopted regulations setting alternative 
standards for laboratories at the participating universities. The 
Vermont regulations were authorized by the EPA and became part of the 
Federally enforceable Vermont RCRA program on October 26, 2000. See 65 
FR 64164. The Massachusetts regulations are in effect under State law 
and now have been submitted to the EPA to be authorized as part of the 
current update of the Massachusetts RCRA program.

B. Why Is the EPA Proposing To Extend the Expiration Date of Its XL 
Project Regulations?

    The New England Universities' Laboratories XL project was initially 
planned to run for four years (September 1999 through September 2003). 
Thus the EPA project regulations currently have an expiration date of 
September 30, 2003. See 40 CFR 262.108.
    The EPA conducted a mid-term evaluation of the project between 
September 2001 and September 2002. As set out in the mid-term 
evaluation report, the project has shown great success in some 
important areas: developing EMPs, training staff, increasing awareness, 
shifting attitudes and behaviors, improving the range of activities 
that determine compliance and emergency preparedness, and demonstrating 
that the environmental management system approach to managing 
laboratory waste is gaining hold and making progress. See Project in 
Excellence and Leadership: New England Universities' Laboratories Mid-
Term Evaluation: Piloting Superior Environmental Performance in Labs, 
EPA 100-R-02-005 (September 2002), page 5. On the other hand, the 
project has not to date shown the expected successes in other areas 
such as chemical reuse and redistribution and pollution prevention. Id. 
The implementation of the EMPs proved to be complex, and took somewhat 
longer than anticipated, resulting in delays in aggressively focusing 
on reuse, redistribution and pollution prevention. However, efforts to 
encourage pollution prevention and ``Green Chemistry'' practices have 
begun to be more widely endorsed by faculty, and the EPA hopes and 
expects that they will bear fruit in the next several years.
    Taking account of both the progress that has been made and the 
remaining issues, the EPA (with the concurrence of the MADEP and VTDEC) 
believes that the appropriate course of action is to extend the 
project's expiration date by three years, i.e., to September 30, 2006. 
This will allow for a further period of evaluation, including a further 
test of whether the universities will succeed in their efforts to 
implement significant chemical reuse and redistribution and pollution 
prevention. In light of the success that has occurred in EMP 
development and implementation, the EPA believes that the continuation 
of this project should provide a superior level of environmental 
performance in comparison to an immediate return to standard RCRA 
regulation.
    In addition, the EPA Office of Solid Waste currently is analyzing 
issues regarding the management of hazardous waste in laboratories, 
using a discussion group of EPA Headquarters and Regional personnel, 
which is expected to be followed by stakeholder meetings. This process 
may result in changes to the EPA requirements or the way the EPA 
interprets its requirements regarding laboratories. The proposed three-
year extension of the New England Universities' Laboratories XL project 
will allow the three participating universities to continue to follow 
the alternative project requirements while the EPA considers whether to 
make changes in national policy. This will avoid those universities 
needing to terminate the project, prior to the EPA having a chance to 
consider whether standard RCRA requirements applicable to university 
laboratories should be changed. The continuation of the project also 
should provide information that is useful to the EPA as it analyzes the 
potential national impact of making changes regarding the management of 
hazardous waste in laboratories.

C. What Is the Proposed Federal Regulation Change?

    The proposed Federal regulation change will extend the expiration 
date in 40 CFR 262.108 from September 30, 2003 to September 30, 2006. 
The other special EPA regulations adopted to allow the implementation 
of the New England Universities' Laboratories XL project will stay the 
same. The proposed regulation change is set out at the end of this 
document. The EPA proposes to have this regulation change take effect 
immediately upon its promulgation. The EPA Administrator has delegated 
one-time authority to the Regional Administrator, EPA New England, to 
make this regulation change. Massachusetts and Vermont also are in the 
process of changing their State regulations to extend the expiration 
date of this XL project to September 30, 2006. The EPA and other 
signatories also are proposing to amend the Final Project Agreement for 
this XL project to extend the expiration date, with annual reporting 
obligations also being extended and all other provisions of the 
agreement remaining the same.

D. What Will Be the Effect of the Proposed Federal Regulation Change?

    The proposed change to the Federal regulations will enable the EPA 
to authorize the Massachusetts and Vermont regulations governing the 
New England Universities' Laboratories XL project through September 30, 
2006. In Vermont's case, the State regulations

[[Page 60071]]

already have been authorized through September 30, 2003, and the EPA 
expects to extend this authorization through September 30, 2006 in a 
separate rulemaking. In Massachusetts' case, the State regulations (310 
CMR 30.354) have been submitted to the EPA to be authorized as part of 
this current update of the Massachusetts RCRA program. The EPA proposes 
to grant this authorization through September 30, 2006, following 
public comment, as part of this rulemaking, once the currently proposed 
updated Massachusetts RCRA regulations have been adopted in final form.
    The different effects of authorization regarding HSWA and non-HSWA 
rules was discussed above in part II.D. The proposed extension to the 
Federal XL project regulation would be promulgated pursuant to non-HSWA 
authority. Thus the extension will take effect in Massachusetts only 
when adopted by Massachusetts and will become Federally enforceable 
only when the State regulations containing the extension are authorized 
by the EPA.

IV. Statutory and Executive Order Reviews

    The EPA has examined the cumulative effects of the proposed State 
authorization decisions discussed above, and the two proposals to make 
changes to the Federal regulations, and reached the conclusions set out 
below.

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether the regulatory action is ``significant'' 
and therefore subject to Office of Management and Budget (OMB) review 
and the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
adversely effect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) Materially alter the budgetary impact of entitlement, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof;
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    Because the annualized cost of these proposed actions will be 
significantly less than $100 million and because these proposed actions 
will not meet any of the other criteria specified in the Executive 
Order, it has been determined that this proposed rule is not a 
``significant regulatory action'' under the terms of the Executive 
Order and is therefore not subject to OMB review.

B. Paperwork Reduction Act

    Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., Federal 
agencies must consider the paperwork burden imposed by any information 
request contained in a proposed rule or final rule. These proposed 
actions will authorize or enable the authorization of state 
requirements for the purpose of RCRA 3006 and will impose no additional 
requirements beyond those imposed by State law. Therefore, they will 
require no information collection activities subject to the Paperwork 
Reduction Act. In addition, no Federal reporting obligations have been 
established under the ECOS project. Rather, the EPA will monitor this 
project through its regular oversight of the Massachusetts RCRA 
program. Finally, the New England Universities' Laboratories XL project 
applies to only three universities, and any reporting obligations for 
nine or fewer sources are not subject to the Paperwork Reduction Act. 
Therefore no information collection request (ICR) will be submitted to 
OMB for review under the Paperwork Reduction Act.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., generally 
requires an agency to prepare a regulatory flexibility analysis of any 
rule subject to notice and comment rulemaking under the Administrative 
Procedure Act or other statute, unless the agency certifies that the 
rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    These actions authorize or enable the authorization of state 
requirements for the purpose of RCRA 3006 and impose no additional 
requirements beyond those imposed by state law. In addition, the two 
proposed Federal regulatory changes will increase regulatory 
flexibility, which should have a positive economic effect on small 
entities. In determining whether a rule has a significant economic 
impact on a substantial number of small entities under the Regulatory 
Flexibility Act, the impact of concern is any significant adverse 
economic impact, since the primary purpose of any regulatory 
flexibility analysis would be to identify and address regulatory 
alternatives ``which minimize any significant economic impact of the 
proposed rule on small entities.'' 5 U.S.C. 603 and 604. Thus, an 
agency may certify that a rule will not have a significant economic 
impact on a substantial number of small entities if the rule relieves 
regulatory burden, or otherwise has a positive economic effect on all 
of the small entities subject to the rule. Accordingly, the EPA hereby 
certifies 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.). Thus a regulatory flexibility 
analysis is not required to be prepared under that Act.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, the 
EPA generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal 
mandates'' that may result in expenditures to State, local, and tribal 
governments, in the aggregate, or to the private sector, of $100 
million or more in any one year. Before promulgating an EPA rule for 
which a written statement is needed, section 205 of the UMRA generally 
requires the EPA to identify and consider a reasonable number of 
regulatory alternatives and adopt the least costly, most cost-effective 
or least burdensome alternative that achieves the objectives of the 
rule. The provisions of section 205 do not apply when they are 
inconsistent with applicable law. Moreover, section 205 allows the EPA 
to adopt an alternative other than the least costly, most cost-
effective or least burdensome alternative if the Administrator 
publishes with the final rule an explanation why that alternative was 
not adopted. In addition, before the EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments about the 
regulatory requirements, enabling officials of affected small 
governments to have meaningful and timely input in

[[Page 60072]]

the development of the EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    The EPA has determined that the section 202 and 205 requirements do 
not apply to this proposed action because the proposed rule does not 
contain a Federal mandate that may result in annual expenditures of 
$100 million or more for State, local, and/or tribal governments in the 
aggregate, or the private sector. Costs to State, local or tribal 
governments and the private sector already exist under the State 
program, and the proposed actions will not impose any additional 
obligations on regulated entities. In fact, the EPA's approval of State 
programs generally may reduce, not increase, compliance costs for the 
private sector, by reducing the need for companies to comply with 
Federal requirements in addition to State requirements. Further, as it 
applies to the State, this action does not impose a Federal 
intergovernmental mandate because UMRA does not cover duties arising 
from voluntary participation in a Federal program, such as 
Massachusett's voluntary decision to operate the RCRA program.
    Because this action will authorize pre-existing requirements under 
state law and will not impose any additional enforceable duties beyond 
those required by state law, it also will not uniquely affect small 
governments, as described in section 203 of UMRA. Thus the requirements 
of section 203 that the EPA develop a small government agency plan will 
not apply to this rule.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires the EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have Federalism implications.'' 
``Policies that have Federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    The proposed actions will not have Federalism implications, as 
defined in the Executive Order, because they merely authorize (or 
enable the authorization of) 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.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires the EPA to develop an accountable process to ensure 
``meaningful and timely input by tribal officials in the development of 
regulatory policies that have tribal implications.'' ``Policies that 
have tribal implications'' is defined in the Executive Order to include 
regulations that have ``substantial direct effects on one or more 
Indian tribes, on the relationship between the Federal government and 
the Indian tribes, or on the distribution of power and responsibilities 
between the Federal government and the Indian tribes.''
    The proposed actions will not have tribal implications, as defined 
by the Executive Order, because they will have no direct effect on 
Indian lands. As noted in part I.E. above, Massachusetts is not 
authorized to administer the RCRA program in Indian country. Rather, 
the EPA directly administers the Federal RCRA program in Indian country 
within Massachusetts.

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks,'' applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that the EPA has reason to believe may have a 
disproportionate effect on children. If the regulatory action meets 
both criteria, the Agency must evaluate the environmental health or 
safety effects of the planned rule on children and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it is not 
an economically significant rule as defined by Executive Order 12866. 
In addition, it does not concern environmental health or safety risks 
that the EPA has reason to believe may have a disproportionate effect 
on children.
    As discussed in parts II and III above, the EPA has determined that 
the regulatory flexibility to be allowed by the two proposed Federal 
regulatory changes will not create health and safety risks. In any 
event, the particular RCRA program elements affected do not pose any 
disproportionate risks to children. As discussed in part I above, the 
standard authorization portion of this rule simply authorizes 
Massachusetts regulations which are equivalent to previously 
established Federal RCRA requirements. Authorizing State regulations 
which equivalently protect the environment, in place of Federal 
regulations, does not create any disproportionate risks to children.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This proposed rule is not subject to Executive Order 13211 because 
that Executive Order applies only to rules that are ``significant'' 
under Executive Order 12866, and this rule is not a significant 
regulatory action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 
272 note) directs the EPA to use voluntary consensus standards in its 
regulatory activities unless to do so would be inconsistent with 
applicable law or otherwise impractical. Voluntary consensus standards 
are technical standards (e.g., materials specifications, test methods, 
sampling procedures, and business practices) that are developed or 
adopted by voluntary consensus standards bodies. The NTTAA directs the 
EPA to provide Congress, through OMB, explanations when the Agency 
decides not to use available and applicable voluntary consensus 
standards.
    This proposed rule does not involve technical standards covered by 
voluntary consensus standards. In addition, under RCRA section 3006(b), 
the EPA grants a State's application for authorization as long as the 
State meets the criteria required under RCRA. It would thus be 
inconsistent with applicable law for the EPA, when it reviews a State 
authorization application, to require the use of any particular 
voluntary consensus standard in place of another standard that 
satisfies the requirements of RCRA. Therefore, the EPA did not consider 
the use of any voluntary consensus standards in developing this rule.

[[Page 60073]]

List of Subjects

40 CFR Part 262

    Environmental protection, Hazardous waste, Reporting and 
recordkeeping requirements.

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: The proposed Federal regulation changes will be made 
under the authority of the Resource Conservation and Recovery Act 
(RCRA) sections 2002 and 3002, 42 U.S.C. 6912 and 6922. The proposed 
authorizations of the Massachusetts revisions will be made under the 
authority of RCRA sections 2002 and 3006, 42 U.S.C. 6912 and 6926.

    Dated: October 7, 2003.
Ira W. Leighton,
Acting Regional Administrator, EPA New England.

    For the reasons set forth in the preamble, chapter I of title 40 of 
the Code of Federal Regulations is proposed to be amended as follows:

PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE

    1. The authority citation for part 262 continues to read as 
follows:

    Authority: 42 U.S.C. 6906, 6912, 6922-6925, 6937, and 6938.

Subpart A--General

    2. Section 262.10 is amended by adding paragraph (k) to read as 
follows:


Sec.  262.10  Purpose, scope and applicability.

* * * * *
    (k) Generators in the Commonwealth of Massachusetts may comply with 
the State regulations regarding Class A recyclable materials in 310 
C.M.R. 30.200, when authorized by the EPA under 40 CFR part 271, with 
respect to those recyclable materials and matters covered by the 
authorization, instead of complying with the hazardous waste 
accumulation requirements of Sec.  262.34, the reporting requirements 
of Sec.  262.41, the storage facility operator requirements of 40 CFR 
parts 264 and 265 and the permitting requirements of 40 CFR part 270. 
Such generators must also comply with any other applicable 
requirements, including any applicable authorized State regulations 
governing hazardous wastes not being recycled and any applicable 
Federal requirements which are being directly implemented by the EPA 
within Massachusetts pursuant to the Hazardous and Solid Waste 
Amendments of 1984.

Subpart J--University Laboratories XL Project--Laboratory 
Environmental Management Standard

    3. Section 262.108 is revised to read as follows:


Sec.  262.108  When will this subpart expire?

    This subpart will expire on September 30, 2006.

PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE 
PROGRAMS

    EPA proposes to grant Final authorization under part 271 to the 
Commonwealth of Massachusetts for revisions to its hazardous waste 
program under the Resource Conservation and Recovery Act.

[FR Doc. 03-26321 Filed 10-20-03; 8:45 am]
BILLING CODE 6560-50-P