[Federal Register Volume 70, Number 222 (Friday, November 18, 2005)]
[Rules and Regulations]
[Pages 69900-69903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-22891]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[FRL-7998-8]


Massachusetts: Extension of Interim Authorization of State 
Hazardous Waste Management Program Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

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SUMMARY: The EPA is extending the expiration date from January 1, 2006 
to January 1, 2011 for the interim authorization under the Resource 
Conservation and Recovery Act, of the Massachusetts program for 
regulating Cathode Ray Tubes (``CRTs''). Massachusetts was granted 
interim authorization to assume the responsibility under the Toxicity 
Characteristics Rule (``TC Rule'') for regulating CRTs, on November 15, 
2000 with an expiration date of January 1, 2003. This expiration date 
was subsequently extended until January 1, 2006. As this interim 
authorization is soon due to expire, an extension is needed for the 
reasons explained below. EPA is publishing this rule to authorize the 
extension without a prior proposal because we believe this action is 
not controversial and do not expect comments that oppose it. Unless we 
get written comments which oppose this extension during the comment 
period, the decision to extend the interim authorization 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 the proposal to authorize the changes.

DATES: This extension of the interim authorization will become 
effective on January 17, 2006 and remain in effect until January 1, 
2011 unless EPA receives adverse written comment by December 19, 2005. 
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 extended authorization will not take immediate effect.

ADDRESSES: Submit your comments by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    2. E-mail: Robin Biscaia, [email protected].
    3. Mail: Robin Biscaia, Hazardous Waste Unit (CHW), EPA New 
England, One Congress Street, Suite 1100 (CHW), Boston, MA 02114-2023;
    4. Hand Delivery or Courier. Deliver your comments to Robin 
Biscaia, Hazardous Waste Unit, EPA New England, One Congress Street, 
Suite 1100 (CHW), Boston, MA 02114-2023;
    Instructions: We must receive your comments by December 19, 2005. 
Do not submit information that you consider to be CBI or otherwise 
protected through regulations.gov, or e-mail. The Federal 
regulations.gov Web site is an ``anonymous access'' system, which means 
EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an e-mail comment 
directly to EPA without going through regulations.gov, your e-mail 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    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 State-specific and site-
specific Federal regulation changes, have been established at the 
following two locations: (i) Massachusetts Department of Environmental 
Protection, Business Compliance Division, One Winter Street--8th Floor, 
Boston, MA 02108, business hours Monday through Friday 9 a.m. to 5 
p.m., tel: (617) 556-1096; and (ii) EPA Region I Library, One

[[Page 69901]]

Congress Street--11th Floor, Boston, MA 02114-2023, business hours 
Monday through Thursday 10 a.m. to 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, 
Office of Ecosystems Protection, EPA New England, One Congress Street, 
Suite 1100 (CHW), Boston, MA 02114-2023, telephone: (617) 918-1642.

SUPPLEMENTARY INFORMATION:

A. Why Are Revisions to State Programs Necessary?

    Pursuant to the Resource Conservation and Recovery Act, 42 U.S.C. 
6901 et seq., states which have been authorized to administer the 
Federal hazardous waste program under RCRA section 3006(b), 42 U.S.C. 
6926(b), have a continuing obligation to update their programs to meet 
revised Federal requirements. As the Federal program changes, States 
must change their programs and ask EPA to authorize the changes. 
Changes to State programs may be necessary when Federal or State 
statutory or regulatory authority is modified or when certain other 
changes occur. Most commonly, States must 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. For example, States 
must revise their programs to regulate the additional wastes determined 
to be hazardous as a result of using the Toxicity Characteristics 
Leaching Procedure (``TCLP'') test adopted by the EPA on March 29, 
1990, in the TC Rule 55 FR 11798. The EPA may grant final authorization 
to a State revision if it is equivalent to, consistent with, and no 
less stringent than Federal RCRA requirements.
    In the alternative, as provided by RCRA section 3006(g), 42 U.S.C. 
6926(g), for updated Federal requirements promulgated pursuant to the 
Hazardous and Solid Waste Amendments of 1984 (HSWA), such as the TC 
Rule, the EPA may grant interim (i.e., temporary) authorization to a 
State revision so long as it is substantially equivalent to Federal 
RCRA requirements.

B. What Decisions Have We Made in This Rule?

1. Background

    The TC Rule grants authority over wastes which first became 
classified as hazardous as a result of using the ``TCLP'' test, such as 
many CRTs. See 55 FR 11798, 11847-11849 (March 29, 1990). CRTs are the 
glass picture tubes found inside television and computer monitors. 
Because of their high lead content, CRTs generally fail the TCLP test. 
Thus, under the EPA's current regulations, CRTs generally become 
hazardous wastes when they are discarded (e.g., when sent for disposal 
or reclamation rather than being reused). However, the EPA has 
recognized that certain widely generated wastes may pose lower risks 
during accumulation and transport than other hazardous wastes. Thus the 
EPA has listed certain wastes as Universal Wastes which are subject to 
reduced regulation and has allowed authorized States to add other 
appropriate wastes as Universal Wastes. See 40 CFR part 273.
    On August 4, 2000, Massachusetts adopted regulations which revised 
its regulatory program as it relates to CRTs. The State adopted a 
three-part approach: (1) Intact CRTs being disposed are subject to full 
hazardous waste requirements (along with crushed or ground up CRTs); 
(2) intact CRTs that may still be reused (without reclamation) 
generally are considered commodities exempt from hazardous waste 
requirements; and, finally, (3) intact CRTs which will not be reused, 
but which instead will be crushed and recycled (i.e., as spent 
materials being reclaimed), are subject to reduced requirements which 
track some but not all of the EPA's Universal Waste Rule requirements. 
As explained in the Federal Register on November 15, 2000, 65 FR 68915, 
and further explained in a legal memorandum contained in the 
Administrative Record, dated January 21, 2000 entitled ``Massachusetts' 
Regulation of CRTs,'' the EPA determined that the State program was 
``substantially equivalent'' to Federal RCRA requirements. Therefore, 
the EPA granted Massachusetts interim authorization to regulate CRTs 
under the TC Rule. The State program was determined to be only 
``substantially'' rather than fully equivalent to the federal RCRA 
program because the maximum flexibility allowed under the federal 
program was to regulate hazardous CRTs being reclaimed as a Universal 
Waste, whereas Massachusetts regulates intact CRTs heading to 
reclamation less stringently in certain respects than does the 
Universal Waste Rule.

2. Today's Decision

    There have been no changes in either the Federal or Massachusetts 
regulations applicable to CRTs since November 15, 2000. Therefore, the 
State program remains substantially equivalent (but not fully 
equivalent) to current Federal RCRA requirements, for the reasons 
previously stated. Absent further EPA action, the authority to regulate 
the CRTs would revert to the EPA as of January 1, 2006, and full 
hazardous waste regulations would become applicable to many CRTs in 
Massachusetts.
    Like Massachusetts, the EPA has recognized that regulating intact 
CRTs as a fully regulated hazardous waste can discourage recycling of 
the CRTs and, thus, be counter-productive. Therefore, it is 
environmentally important not to allow the interim authorization of the 
Massachusetts regulations to expire.
    On June 12, 2002, the EPA proposed to adopt regulations to reduce 
RCRA regulatory requirements for CRTs. See 67 FR 40508. If the proposed 
rule is adopted, intact CRTs heading for reclamation will no longer be 
classified as solid or hazardous wastes. Thus, they will no longer need 
to be handled in accordance with either full hazardous waste or 
Universal Waste Rule requirements. Therefore, if and when the proposed 
rule is adopted, the Massachusetts CRT program will no longer be less 
stringent than the federal program. It will be equivalent to the 
federal program in exempting commodity CRTs from regulations while 
fully regulating CRTs being disposed, and will be more stringent than 
the federal program in partially regulating intact CRTs being reclaimed 
and in fully regulating crushed or ground up CRTs even when they are 
recycled. However, the final EPA CRT rule is not expected to be issued 
until after January 1, 2006.
    The general deadline for the expiration of interim authorization 
for HSWA regulations set in 40 CFR 271.24 is January 1, 2003. The EPA 
believes that extension of the interim authorization of the 
Massachusetts CRT program beyond the generally applicable deadline of 
January 1, 2003 is appropriate in the unusual circumstances presented. 
An extension to January 1, 2011 will enable the Massachusetts program 
to continue to operate pending the EPA's final decision on its own CRT 
Rule. This should give the EPA sufficient time to finalize its own CRT 
Rule. If the final EPA CRT Rule is the same as the proposed rule or 
otherwise remains at least as flexible as the Massachusetts CRT Rule, 
then the EPA should be able to later grant final authorization to the 
Massachusetts CRT Rule, as soon as the EPA CRT Rule is adopted. If the 
final EPA CRT Rule is more stringent than the Massachusetts CRT Rule, 
the EPA

[[Page 69902]]

and State can address the resulting situation at that time.

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

    The effect of this decision is that for CRTs regulated under the TC 
Rule, a facility in Massachusetts subject to RCRA will have to continue 
to comply with the authorized State requirements instead of the Federal 
requirements in order to comply with RCRA. The Commonwealth of 
Massachusetts has enforcement responsibilities under its State 
hazardous and solid waste programs for violations of such programs, but 
EPA also retains its full authority under RCRA sections 3007, 3008, 
3013, and 7003.
    This action does not impose additional requirements on the 
regulated community because the state regulations for which interim 
authorization to Massachusetts is being extended by today's action are 
already in effect under state law, and are not changed by today's 
action.

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

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

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

    If EPA receives comments that oppose this authorization, we will 
withdraw this rule by publishing a document in the Federal Register 
before the rule becomes effective. EPA will base any further decision 
on the authorization of the State program changes on the proposal 
mentioned in the previous paragraph. We will then address all public 
comments in a later final rule. You may not have another opportunity to 
comment. If you want to comment on this authorization, you must do so 
at this time.

F. What Has Massachusetts Previously Been Authorized For?

    Massachusetts initially received Final Authorization on January 24, 
1985, effective February 7, 1985 (50 FR 3344) to implement its base 
hazardous waste management program. EPA granted authorization for 
changes to their program on September 30, 1998, effective November 30, 
1998 (63 FR 52180), October 12, 1999, effective that date (64 FR 55153) 
and March 12, 2004, effective that date (69 FR 11801), in addition to 
the previously discussed November 15, 2000 interim authorization of the 
Massachusetts CRT Rule (65 FR 68915) and the extension EPA granted to 
that rule on October 31, 2002, effective January 1, 2003 (67 FR 66338).

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

    The Massachusetts regulations authorized by today's action are the 
same as those listed in the chart set forth in the Federal Register 
document dated November 15, 2000 (65 FR 68915, 68918). Today's action 
simply extends the interim authorization previously granted from 
January 1, 2006 to January 1, 2011.

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

    The differences between the State and Federal regulations with 
respect to CRTs are discussed in the November 15, 2000 Federal Register 
document. Notwithstanding these differences, the EPA believes that the 
State regulations are substantially equivalent to the Federal 
regulations and, thus, the State continues to qualify to have interim 
authorization. During the interim authorization period, for CRTs 
regulated under the TC Rule, these state regulations will operate in 
lieu of the Federal hazardous waste regulations.

I. Who Handles Permits After This Authorization Takes Effect?

    Massachusetts will issue permits for all the provisions for which 
it is authorized and will administer the permits it issues. EPA will 
continue to administer any RCRA hazardous waste permits or portions of 
permits which we issued prior to the effective date of this 
authorization. EPA will continue to implement and issue permits for 
HSWA requirements for which Massachusetts is not yet authorized.

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

    Massachusetts is not authorized to carry out its hazardous waste 
program in Indian country within the State (land of the Wampanoag 
tribe). Therefore, this action has no effect on Indian country. EPA 
will continue to implement and administer the RCRA program in these 
lands.

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

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

L. Administrative Requirements

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

[[Page 69903]]

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 3006(b), EPA grants a State's application for 
authorization as long as the State meets the criteria required by RCRA. 
It would thus be inconsistent with applicable law for EPA, when it 
reviews a State authorization application, to require the use of any 
particular voluntary consensus standard in place of another standard 
that otherwise satisfies the requirements of RCRA. Thus, the 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required 
by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), 
in issuing this rule, EPA has taken the necessary steps to eliminate 
drafting errors and ambiguity, minimize potential litigation, and 
provide a clear legal standard for affected conduct. EPA has complied 
with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining 
the takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the Executive Order. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this document and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication in the Federal Register. A major rule cannot take effect 
until 60 days after it is published in the Federal Register. This 
action is not a ``major rule'' as defined by 5 U.S.C. 804(2). This 
action, nevertheless, will be effective 60 (sixty) days after 
publication pursuant to the procedures governing immediate final rules.

List of Subjects in 40 CFR Part 271

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

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

    Dated: November 9, 2005.
Robert W. Varney,
Regional Administrator, EPA New England.
[FR Doc. 05-22891 Filed 11-17-05; 8:45 am]
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