[Federal Register Volume 69, Number 216 (Tuesday, November 9, 2004)]
[Rules and Regulations]
[Pages 64861-64865]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-24920]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[FRL-7835-9]


Maine: Final Authorization of State Hazardous Waste Management 
Program Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

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SUMMARY: The State of Maine has applied to EPA for Final authorization 
of changes to its hazardous waste program under the Resource 
Conservation and Recovery Act (RCRA). EPA has determined that these 
changes satisfy all requirements needed to qualify for final 
authorization, and is authorizing the State's changes through this 
immediate final action. EPA is publishing this rule to authorize the 
changes without a prior proposal because we believe this action is not 
controversial and do not expect adverse comments that oppose it. Unless 
we get written comments which oppose this authorization during the 
comment period, the decision to authorize Maine's changes to their 
hazardous waste program will take effect. If we get comments that 
oppose this action, we will publish a document in the Federal Register 
withdrawing this rule before it takes effect and the separate document 
in the proposed rules section of this Federal Register will serve as a 
proposal to authorize the changes.

DATES: This Final authorization will become effective on January 10, 
2005, unless EPA receives adverse written comment by December 9, 2004. 
If EPA receives such comment, it will publish a timely withdrawal of 
this immediate final rule in the Federal Register and inform the public 
that this authorization will not take effect.

ADDRESSES: Dockets containing copies of the State of Maine's revision 
application and the materials which the EPA used in evaluating the 
revision have been established at the following two locations: (i) EPA 
Region 1 Library, One Congress Street-11th Floor, Boston, MA 02114-
2023; business hours Monday through Thursday 10 a.m.-3 p.m., tel: (617) 
918-1990; and (ii) Maine Department of Environmental Protection, 
Hospital Street, Augusta, ME 04333; business hours Monday through 
Thursday 8:30 a.m.-4:30 p.m., and Friday 8:30 a.m.-12:30 p.m., tel: 
(207) 287-7843. Records in these dockets are available for inspection 
during normal business hours.

FOR FURTHER INFORMATION CONTACT: Sharon Leitch, Hazardous Waste Unit, 
EPA Region 1, One Congress Street, Suite 1100 (CHW), Boston, MA 02114-
2023; tel: (617) 918-1647, e-mail: [email protected].

SUPPLEMENTARY INFORMATION:

A. Why Are Revisions to State Programs Necessary?

    States which have received final authorization from EPA under RCRA 
section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste 
program that is equivalent to, consistent with, and no less stringent 
than the Federal program. As the Federal program changes, States must 
change their programs and ask EPA to authorize the changes. Changes to 
State programs may be necessary when Federal or State statutory or 
regulatory authority is

[[Page 64862]]

modified or when certain other changes occur. Most commonly, States 
must change their programs because of changes to EPA's regulations in 
40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 
270, 273 and 279.

B. What Decisions Have We Made in This Rule?

    We have concluded that Maine's application to revise its authorized 
program meets all of the statutory and regulatory requirements 
established by RCRA. Therefore, we grant Maine Final authorization to 
operate its hazardous waste program with the changes described in the 
authorization application. Maine has responsibility for permitting 
Treatment, Storage, and Disposal Facilities (TSDFs) and for carrying 
out the aspects of the RCRA program described in its revised program 
application, subject to the limitations of the Hazardous and Solid 
Waste Amendments of 1984 (HSWA). New Federal requirements and 
prohibitions imposed by Federal regulations that EPA promulgates under 
the authority of HSWA take effect in authorized States before they are 
authorized for the requirements. Thus, EPA will implement those 
requirements and prohibitions in Maine, including issuing permits, 
until the State is granted authorization to do so.

C. What Is the Effect of Today's Authorization Decision?

    The effect of this decision is that a facility in Maine subject to 
RCRA will now have to comply with the authorized State requirements 
instead of the equivalent Federal requirements in order to comply with 
RCRA. Maine has enforcement responsibilities under its State hazardous 
waste program for violations of such program, but EPA retains its full 
authority under RCRA sections 3007, 3008, 3013, and 7003, which 
includes, among others, authority to:
     Perform inspections, and require monitoring, tests, 
analyses or reports.
     Enforce RCRA requirements and suspend or revoke permits.
     Take enforcement actions.
    This action does not impose additional requirements on the 
regulated community because the regulations for which Maine is being 
authorized by today's action are already effective under state law, and 
are not changed by today's action.

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

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

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

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

F. What Has Maine Previously Been Authorized for?

    The State of Maine initially received Final authorization on May 6, 
1988, effective May 20, 1988 (53 FR 16264) to implement the RCRA 
hazardous waste management program. We granted authorization for 
changes to their program on June 24, 1997, effective August 25, 1997 
(62 FR 34007).

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

    On September 27, 2004, Maine submitted a final complete program 
revision application, seeking authorization for their changes in 
accordance with 40 CFR 271.21. In particular, Maine is seeking 
authorization for the Universal Waste Rule and for the metals portion 
of the TCLP rule, the authorization of which is a prerequisite for 
authorization of the Universal Waste Rule. Maine is including 
batteries, mercury thermostats, lamps, CRTs, mercury devices, motor 
vehicle mercury switches, and PCB ballasts on their list of universal 
wastes. In general, the Universal Waste Rule establishes streamlined 
hazardous waste management regulations which are intended to encourage 
the recycling of certain widely generated wastes, such as batteries.
    We are now making an immediate final decision, subject to receipt 
of written comments that oppose this action, that Maine's hazardous 
waste program revisions satisfy all of the requirements necessary to 
qualify for Final authorization. Therefore, we grant Maine Final 
authorization for the following program changes:

------------------------------------------------------------------------
  Description of Federal requirement and      Analogous State authority
        checklist reference number                       \1\
------------------------------------------------------------------------
 Consolidated Checklist for the Toxicity Characteristic Revisions as of
                              June 30, 2001
------------------------------------------------------------------------
(74) Toxicity Characteristic Revisions: 55  850.3A(2);
 FR 11798, 3/29/90 as amended on 6/29/90,    850.3A(3)(a)(ii)(b);
 55 FR 26986 (regarding metals other than    850.3A(3)(c); 850.3A(3)(d);
 chrome);                                    850.3A(4)(a)(xiv);
                                             850.3B(5); 850.3B(5)(a) &
                                             (b); 850.3C Hazard Codes;
                                             850, Appendix II; 852,
                                             Appendix I; 855.9G.
(80) Hydrocarbon Recovery Operations: 55
 FR 40834, 10/5/90 as amended on 2/1/91,
 56 FR 3978, as amended on 4/2/91, 56 FR
 13406, optional rule (ME is not seeking
 authorization for this provision);
(84) Chlorofluoro Refrigerants: 56 FR
 5910, 2/13/91, optional rule (ME is not
 seeking authorization for this
 provision);
(108) Toxicity Characteristics Revision;
 57 FR 30657, 7/10/92 (ME is not seeking
 authorization for this provision);
(117B) Toxicity Characteristic Revision:
 57 FR 23062, 6/1/92 (regarding metals
 other than chrome);

[[Page 64863]]

 
(119) Toxicity Characteristic Revision,
 TCLP: 57 FR 55114, 11/24/92 optional
 rule;
(126) Testing and Monitoring Activities:
 58 FR 46040, 8/31/93 (only as it relates
 to Appendix I of Part 268);
(157) Land Disposal Restrictions Phase IV:
 62 FR 25998, 5/12/97 (to remove and
 reserve Appendix I of Part 268);
(192A) Mixture and Derived-From Rules
 Revisions: 66 FR 27266, 5/16/01 (ME is
 not seeking authorization for the
 exclusions in this provision);
-------------------------------------------
 Consolidated Checklist for the Universal Waste Rule as of June 30, 2001
------------------------------------------------------------------------
(142A) Universal Waste Rule: General        850.3A(2); 850.3A(4)(vii);
 Provisions; 60 FR 25492, 5/11/95;           850.3A(10); 850.3A(11);
                                             850.3A(13);
                                             850.3A(13)(a)(vi);
                                             850.3A(13)(a)(ix);
                                             850.3A(13)(a)(xiii);
                                             850.3A(13)(b)(1) through
                                             (b)(v); 850.3A(13)(c);
                                             850.3A(13)(d);
(142B) Universal Waste Rule: Specific
 Provisions for Batteries, 60 FR 25492, 5/
 11/95;
(142C) Universal Waste Rule: Specific       850.3A(13(e);
 Provisions for Pesticides, 60 FR 25492, 5/  850.3A(13)(e)(i);
 11/95 (ME is not seeking authorization      850.3A(13)(e)(ii) and
 for this provision);                        (e)(iii); 850.3A(13)(e)(vi)
                                             through (e)(ix);
                                             850.3A(13)(e)(xii) and
                                             (e)(xiii);
                                             850.3A(13)(e)(xv);
                                             850.3A(13)(e)(xvi) and
                                             Notes;
                                             850.3A(13)(e)(xix)c.;
                                             850.3A(13)(e)(xxi)a. and
                                             (xxi)c; 850.3A(13)(e)(xxii)
                                             and (e)(xxiii);
                                             850.3A(13)(e)(xxiii)a and
                                             (e)(xxiii)e.;
(142D) Universal Waste Rule: Specific
 Provisions for Thermostats, 60 FR 25492,
 5/11/95;
(143E) Universal Waste Rule: Petition
 Provisions to Add a New Universal Waste,
 60 FR 25492, 5/11/95;
(152) Imports and Exports of Hazardous      850.3A(13)(e)(xxv)c.;
 Waste: Implementation of OECD Council       850.3A(13)(e)(xxvi) and
 Decision, 61 FR 16290, 7/11/96;             (e)(xxvii);
                                             850.3A(13)(f)(iv) through
                                             (f)(vi); 850.3A(13)(g);
                                             850.3A(g)(ii);
                                             850.3A(13)(g)(v);
                                             850.3A(14); 850.3D;
                                             850.3D(1); 850.3D(3)
                                             through (9);
(153) Conditionally Exempt Small Quantity
 Generator Disposal Options under Subtitle
 D, 61 FR 34252, 7/1/96 (ME is not seeking
 authorization for this provision);
(157) Land Disposal Restrictions--Phase     851.3C; 851.3E; 853;
 IV,62 FR 25998, 5/12/97 (ME is not          853.10B; 853.11O; 853.11Q,
 seeking authorization for this              854; 856; 857.4; 857.7D;
 provision);                                 857.7H 857.9A; 857.9A(1),
                                             (2); 857.9A(3)(f); 857.9C;
(166) Recycled Used Oil Management
 Standards; Technical Correction and
 Clarification, 63 FR 24963, 5/6/98 and 63
 FR 37780, 7/14/98 (ME is not seeking
 authorization for this provision);
(169) Petroleum Refining Process Wastes,63
 FR 42110, 8/6/98 (ME is not seeking
 authorization for this provision);
(176) Universal Waste Rule--Technical
 Amendments; 63 FR 71225, 12/24/98;
(181) Universal Waste Rule: Specific
 Provisions for Hazardous Waste Lamps, 64
 FR 36466, 7/6/99;
------------------------------------------------------------------------
\1\ State of Maine's Hazardous Waste Management Rules, effective January
  23, 2001, November 3, 2002, and July 20, 2004.


    Note: The final authorization of new state regulations and 
regulation changes is in addition to the previous authorization of 
state regulations, which have not changed and remain part of the 
authorized program.

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

    The most significant differences between the proposed State rules 
and the Federal rules are summarized below. It should be noted that 
this summary does not describe every difference, or every detail 
regarding the differences that are described. Members of the regulated 
community are advised to read the complete regulations to ensure that 
they understand all of the requirements with which they will need to 
comply.
    In this program change, EPA is only authorizing the State for the 
metals portion of the Toxicity Characteristic (TC) rule, for metals 
other than the chrome wastes at 850.3A(4)(xiv). EPA is not authorizing 
the Maine analog for 40 CFR 261.4(b)(6)(ii) regarding chrome wastes 
because the Maine regulations continue to reference the EP toxicity 
test instead of the TCLP test for the specific exemptions for the 
leather tanning wastes listed at 850.3A(4)(xiv). This will be corrected 
in the next program change for Maine. EPA also is not authorizing Maine 
for the organics and pesticide wastes (waste codes D012 through D043), 
because Maine has not yet adopted the TC regulations for these wastes. 
EPA will continue to directly enforce the TC Rules in Maine for the 
remaining Toxicity Characteristics of DO12 through DO43 and the chrome 
wastes since both of these rules were promulgated under the Hazardous 
Solid Waste Amendments (HSWA) and EPA can enforce this regulation when 
necessary. Regulated entities will need to comply with the entire TC 
rule, but some parts of the rule will be enforced directly by EPA and 
some parts by the State.

1. More Stringent Provisions

    There are aspects of the Maine program which are more stringent 
than the Federal program. All of these more stringent requirements are, 
or will, become part of the federally enforceable RCRA program when 
authorized by the EPA, and must be complied with in addition to the 
State requirements which track the minimum Federal requirements.
    The more stringent requirements relating to the Universal Waste 
Rule are as follows: Maine has not added pesticides to its list of 
Universal Wastes. Thus, pesticides in Maine remain fully regulated 
hazardous wastes. Also, all universal waste, except for ballasts and

[[Page 64864]]

mercury spill residue, must be sent for recycling under state rules 
whereas federal rules allow universal waste to be sent to treatment, 
storage or disposal facilities (TSDFs) or to a recycler. However, 
mercury spill residue and ballasts may be sent to a treatment, storage 
or disposal facility under the Maine rules. Also, in the Maine 
regulations generators can send universal wastes to their own central 
facility but not to another generator's facility and may also ship to a 
consolidation facility or directly to a recycler, whereas the federal 
rules allow universal waste generators to send their universal waste to 
another universal waste handler, a destination facility, or a foreign 
destination. Additionally, the State definition of small universal 
waste generator, which is an equivalent term for the federal small 
quantity handler of universal waste, is more stringent in that to meet 
this definition this category of generator can only generate or 
accumulate on site no more than 200 universal waste items, including 
batteries as described in 850.3A(14), or 4,000 motor vehicle mercury 
switches at a time or in any given month, and the total weight must be 
no more than 40 tons of cathode ray tubes or 5,000 kg of all other 
universal wastes. A one time generation of lamps under a Green Lights 
or similar program that is completed within 6 months or a mercury 
thermometer collection event, is exempt from the 200 item count 
provided that no more than 5,000 kg of universal waste are generated. 
In comparison, the federal definition of small quantity handler of 
universal waste means a universal waste handler who does not accumulate 
more than 5000 kilograms total of universal waste at any time.

2. Broader-in-Scope Provisions

    There also are aspects of the Maine program which are broader in 
scope than the Federal program. The State requirements which are 
broader in scope are not considered to be part of the Federally 
enforceable RCRA program. However, they are fully enforceable under 
State law and must be complied with by sources within Maine. These 
broader-in-scope requirements include the following: Maine has added 
PCB ballasts to the State's universal waste rule. PCB ballasts are not 
considered a federal hazardous waste however, the federal rule allows a 
state to include state-only hazardous wastes in their universal waste 
rules. Also, in addition to including lamps that fail the TCLP test in 
the State's universal wastes rule, which is equivalent to the Federal 
requirements, the State includes lamps that contain mercury but pass 
the TCLP test in their universal waste rules, which is a partially 
broader in scope provision.

3. Different but Equivalent Provisions

    There also are some Maine regulations which differ from, but have 
been determined to be equivalent to, the Federal regulations. These 
State regulations will become part of the Federally enforceable RCRA 
program when authorized by the EPA. These different but equivalent 
requirements include the following: (1) In addition to batteries, 
thermostats and mercury-containing lamps which are included in the 
federal universal waste rule, Maine has added CRTs, mercury devices and 
motor vehicle mercury switches to the State's universal waste rule. We 
deem this equivalent because the federal Universal Waste Rule allows 
states the flexibility to add additional hazardous wastes to their 
state list of universal wastes without requiring the waste to be added 
at the federal level; (2) In the federal universal waste rule, a 
universal waste handler may accumulate universal waste for more than 
one year from the date the universal waste is generated, or received 
from another handler, if the handler can show that this additional time 
is necessary to facilitate proper recovery, treatment or disposal. The 
state rule automatically assumes that a full container is necessary to 
facilitate proper recovery, treatment or disposal and no further proof 
is required to justify a longer storage period provided the generator 
complies with certain standards. These standards specify the container 
sizes for each type of universal waste and specifies that the storage 
must be for no more than 90 days from the date the container becomes 
full. We feel that the state's generic determination that a full 
container is necessary to facilitate proper recovery, treatment or 
disposal and that specific container size requirements apply is 
environmentally ``equivalent'' to the federal regulations which require 
sources to make case by case demonstrations when accumulating universal 
waste for more than one year.

I. Who Handles Permits After the Authorization Takes Effect?

    Maine will issue permits for all the provisions for which it is 
authorized and will administer the permits it issues. EPA will continue 
to administer and enforce any RCRA and HSWA (Hazardous and Solid Waste 
Act) permits or portions of permits which it has issued in Maine prior 
to the effective date of this authorization until the State 
incorporates the terms and conditions of the federal permits into the 
State RCRA permits. EPA will not issue any more new permits, or new 
portions of permits, for the provisions listed in the Table above after 
the effective date of this authorization. EPA will continue to 
implement and issue permits for HSWA requirements for which Maine is 
not yet authorized.

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

    Maine has not applied for and is not authorized to carry out its 
federal hazardous waste program in Indian country within the State, 
which includes the land of the Houlton Band of Maliseet Indians, the 
Aroostook Band of Micmacs, the Passamaquoddy Tribe at Pleasant Point 
and Indian Township, and the Penobscot Nation. Therefore, this action 
has no effect on Indian country. EPA will continue to implement and 
administer the federal RCRA program in these lands.

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

    Codification is the process of placing the State's statutes and 
regulations that comprise the State's authorized hazardous waste 
program into the Code of Federal Regulations. We do this by referencing 
the authorized State rules in 40 CFR part 272. We reserve the amendment 
of 40 CFR part 272, subpart U for this authorization of Maine's program 
changes until a later date.

L. Administrative Requirements

    The Office of Management and Budget has exempted this action from 
the requirements of Executive Order 12866 (58 FR 51735, October 4, 
1993); therefore, this action is not subject to review by OMB. This 
action authorizes State requirements for the purpose of RCRA section 
3006 and imposes no additional requirements beyond those imposed by 
State law. Accordingly, I certify that this action will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this action authorizes pre-existing requirements under State law and 
does not impose any additional enforceable duty beyond that required by 
State law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, 
this action also does not significantly or uniquely affect the 
communities or Tribal governments, as

[[Page 64865]]

specified by Executive Order 13175 (65 FR 67249, November 9, 2000). 
This action will not have substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government, as specified in Executive Order 13132 (64 FR 43255, 
August 10, 1999), because it merely authorizes State requirements as 
part of the State RCRA hazardous waste program without altering the 
relationship or the distribution of power and responsibilities 
established by RCRA. This action also is not subject to Executive Order 
13045 (62 FR 19885, April 23, 1997), because it is not economically 
significant and it does not make decisions based on environmental 
health or safety risks. This rule is not subject to Executive Order 
13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355 (May 22, 2001) ) 
because it is not a significant regulatory action under Executive Order 
12866.
    Under RCRA section 3006(b), EPA grants a State's application for 
authorization as long as the State meets the criteria required by RCRA. 
It would thus be inconsistent with applicable law for EPA, when it 
reviews a State authorization application, to require the use of any 
particular voluntary consensus standard in place of another standard 
that otherwise satisfies the requirements of RCRA. Thus, the 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required 
by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), 
in issuing this rule, EPA has taken the necessary steps to eliminate 
drafting errors and ambiguity, minimize potential litigation, and 
provide a clear legal standard for affected conduct. EPA has complied 
with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining 
the takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this document and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication in the Federal Register. A major rule cannot take effect 
until 60 days after it is published in the Federal Register. This 
action is not a ``major rule'' as defined by 5 U.S.C. 804(2). This 
action nevertheless will be effective January 10, 2005, because it is 
an immediate final rule.

List of Subjects in 40 CFR Part 271

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

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

    Dated: October 28, 2004.
Ira Leighton,
Acting Regional Administrator, EPA New England.
[FR Doc. 04-24920 Filed 11-8-04; 8:45 am]
BILLING CODE 6560-50-P