[Federal Register Volume 73, Number 147 (Wednesday, July 30, 2008)]
[Rules and Regulations]
[Pages 44168-44170]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-17456]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[EPA-RO3-RCRA-2008-0256: FRl-8698-9]


Virginia: Final Authorization of State Hazardous Waste Management 
Program Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Virginia applied to EPA for final authorization of revisions 
to its hazardous waste program under Resource Conservation and Recovery 
Act (RCRA). EPA has reached a final determination that these changes to 
the Virginia hazardous waste program satisfy all requirements necessary 
for final authorization. Thus, with respect to these revisions, EPA is 
granting final authorization to the Commonwealth to operate its program 
subject to the limitations on its authority retained by EPA in 
accordance with RCRA.

DATES: Final authorization for the revisions to Virginia's hazardous 
waste management program shall be effective on July 30, 2008.

FOR FURTHER INFORMATION CONTACT:  E-mail: Thomas UyBarreta, 
[email protected]; Mail: Thomas UyBarreta, Mailcode 3WC21, RCRA 
State Programs Branch, U.S. EPA Region III, 1650 Arch Street, 
Philadelphia, PA 19103-2029; Phone: 215-814-2953.

A. Why Are Revisions to State Programs Necessary?

    States that 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 is revised, States 
must revise their programs and ask EPA to authorize the revisions. 
Revisions 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 revisions to EPA's regulations in 40 Code of Federal Regulations 
(CFR) parts 124, 260 through 266, 268, 270, 273 and 279.
    On October 10, 2007, Virginia submitted to EPA a complete program 
revision application, in accordance with 40 CFR 271.21, seeking 
authorization of additional changes to its program. On April 3, 2008, 
EPA published both an immediate final rule (73 FR 18172-18176) granting 
Virginia final authorization for these revisions to its federally-
authorized hazardous waste program, along with a companion proposed 
rule announcing EPA's proposal to grant such final authorization (73 FR 
18229-18230). EPA announced in both notices that the immediate final 
rule and the proposed rule were subject to a thirty-day public comment 
period. The public comment period ended on May 5, 2008. Further, EPA 
stated in both notices that if it received adverse comments on its 
intent to authorize Virginia's program revisions that it would (1) 
withdraw the immediate final rule; (2) proceed with the proposed rule 
as the basis for the receipt and evaluation of such comments, and (3) 
subsequently publish a final determination responding to such comments 
and announce its final decision whether or not to authorize Virginia's 
program revisions. EPA did receive a written comment during the public 
comment period and on June 3, 2008, published a notice withdrawing the 
immediate final rule (73 FR 31634). Today's action responds to the 
comments EPA received and publishes EPA's final determination granting 
Virginia final authorization of its program revisions. Further 
background on EPA's immediate final rule and its tentative 
determination to grant authorization to Virginia for its program 
revisions appears in the aforementioned Federal Register notices. The 
issues raised by the commenter are summarized and responded to as 
follows.

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

    EPA received two comments from an individual opposing EPA's 
proposal to authorize revisions to Virginia's hazardous waste 
regulations. The commenter opposed authorization of the regulations 
that adopted the rules that were promulgated under non-HSWA authority, 
including the RCRA Burden Reduction Initiative (Revision Checklist 
213).\1\ The commenter argued that, through RCRA, Congress has barred 
EPA and authorized states from promulgating regulations that are less 
stringent than the regulations that were first promulgated under the 
authority of RCRA. Specifically, the commenter stated that 42 U.S.C. 
6929 would prevent EPA from amending 40 CFR 268.7(b)(6) to eliminate 
the requirement to submit notifications and certifications to EPA; this 
amendment, argued the commenter, prohibits states from requiring that 
the State be provided with copies of hazardous waste manifests, and 
such prohibition is not allowed by 42 U.S.C. 6929. For the reasons set 
forth below, we do not agree with the commenter.
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    \1\ The commenter incorrectly stated that the entire RCRA Burden 
Reduction Initiative was promulgated pursuant to non-HSWA authority. 
In fact, the RCRA Burden Reduction Initiative was promulgated 
pursuant to both HSWA and non-HSWA statutory authority.
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    EPA promulgated all of the rules included in Virginia's revision 
pursuant to the authority granted to EPA by Congress under RCRA. Those 
rules, including the RCRA Burden Reduction Initiative Rule, were 
finalized after full consideration of any and all comments submitted in 
a timely manner. By adopting the rules promulgated by EPA, Virginia 
revised its hazardous waste program to be equivalent to and consistent 
with the federal program. Pursuant to 42 U.S.C. 6926(b), EPA has the 
authority to authorize state programs that are equivalent to and 
consistent with the federal program. Additionally, as is explained in 
more detail in the RCRA Burden Reduction Initiative Final Rule (71 FR 
16862), EPA's amendment of 40 CFR 268.7(b)(6) does not prohibit any 
state from requiring that the state be provided with copies of 
hazardous waste manifests. States are not required to adopt and seek 
authorization for federal requirements that are equivalent to, or less 
stringent than, the state's currently authorized regulations (see 71 FR 
at 16899). Specifically, although several states had commented 
positively regarding the amendment to 40 CFR 268.7(b)(6), EPA explained 
that any state ``may choose to be more stringent than the federal 
program, and choose to retain these notifications.'' (71 FR at 16889)
    The commenter also stated that some of the Revision Checklists for 
the nine RCRA clusters for which Virginia is seeking authorization 
``erroneously suggest that the Attorney General may not need to conduct 
a detailed review of the proposed rules against state statute for 
authority prior to final authorization.'' As a result, the commenter 
expressed concern ``that there may not have been an in-depth Attorney 
General review as required'' by 40 CFR 271.7. EPA responds to this 
comment as follows.
    Pursuant to 40 CFR 271.21(b)(1), in order to revise its program, a 
state must submit ``such * * * documents as EPA determines to be 
necessary under the circumstances.'' These documents may include a 
modified Attorney General's

[[Page 44169]]

Statement. The purpose of the Attorney General's Statement, as 
described in 40 CFR 271.7, is to demonstrate to EPA that the state has 
the legal authority to carry out the program. In each of the revision 
checklist summaries for the revisions at issue in this authorization, 
EPA states that ``specific [Attorney General] certification of 
statutory authority may not be required for this checklist as long as 
the [Attorney General] has previously demonstrated authority for * * 
*'' the area that is being regulated in the rule at issue, such as 
generators, identification and listing of hazardous waste, or the 
hazardous waste manifest. This statement, as included in the checklist 
summaries, is appropriate because a state that has already certified 
that it has the authority to regulate a certain area may not need to 
make that certification once again if the authority has not changed. 
Nevertheless, in this case, Virginia did submit to EPA an Attorney 
General's Statement of Adequate Authority, in accordance with 40 CFR 
271.7, as part of its application for revision of its hazardous waste 
regulations.

C. What Decisions Have We Made in This Rule?

    Based on EPA's response to public comment, the Agency has 
determined that approval of Virginia's RCRA program revisions should 
proceed. EPA has made a final determination that Virginia's application 
to revise its authorized program meets all of the statutory and 
regulatory requirements established by RCRA. Therefore, we grant 
Virginia final authorization to operate its hazardous waste program 
with the changes described in its application for program revisions.
    The effect of this decision is that a facility in Virginia subject 
to RCRA will have to comply with the authorized revised State 
requirements instead of the equivalent Federal requirements in order to 
comply with RCRA. While Virginia has enforcement responsibilities under 
its State hazardous waste program for violations of such program, EPA 
nevertheless retains its authority under RCRA sections 3007, 3008, 
3013, and 7003, which include, among others, authority to:
     Take enforcement actions regardless of whether the State 
has taken its own actions;
     Enforce RCRA requirements and suspend or revoke permits; 
and
     Perform inspections, and require monitoring, tests, 
analyses or reports.
    This action does not impose additional requirements on the 
regulated community because the regulations for which Virginia is being 
authorized by today's action are already effective, and are not changed 
by today's action.

D. 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 would not significantly or uniquely affect the communities of 
Tribal governments, as specified by Executive Order 13175 (65 FR 67249, 
November 9, 2000). In any case, Executive Order 13175 does not apply to 
this rule since there are no Federally recognized tribes in the 
Commonwealth of Virginia.
    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 that may disproportionately affect 
children. 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 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); as a 
result, this action will be effective July 30, 2008.

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).


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    Dated: July 21, 2008.
Donald S. Welsh,
Regional Administrator, Region III.
[FR Doc. E8-17456 Filed 7-29-08; 8:45 am]
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