[Federal Register Volume 75, Number 181 (Monday, September 20, 2010)]
[Rules and Regulations]
[Pages 57188-57191]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-23401]



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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[EPA-R01-RCRA-2010-0561; FRL-9203-3]


Rhode Island: Final Authorization of State Hazardous Waste 
Management Program Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The State of Rhode Island has applied to EPA for final 
authorization of certain changes to its hazardous waste program under 
the Resource Conservation and Recovery Act (RCRA). EPA determined that 
these changes satisfy all requirements needed to qualify for final 
authorization and recently authorized all but one of the State's 
changes through an immediate final rule. However, EPA also stated in 
that rule that it would address the authorization of the state's 
requirements regarding EPA's Zinc Fertilizer Rule in a separate final 
rule (following the proposed rule) as it anticipated possible adverse 
comments that would oppose the Federal authorization of Rhode Island 
for this particular rule. There was, in fact, an adverse comment filed 
objecting to EPA authorizing Rhode Island for the Zinc Fertilizer Rule. 
Today's action responds to that comment but does not agree with it and, 
thus, finalizes the Agency's decision to authorize Rhode Island for 
EPA's Zinc Fertilizer Rule. In addition, the comment also objected to 
EPA authorizing Rhode Island for the Burden Reduction Initiative. 
Accordingly, EPA is partially withdrawing the immediate final rule 
insofar as it authorized Rhode Island for the Burden Reduction 
Initiative. However, EPA is now responding to the comment and again not 
agreeing with it and, thus, today's action also authorizes Rhode Island 
for the Burden Reduction Initiative. No objections were filed to EPA 
regarding authorizing the other revisions submitted by Rhode Island. 
Accordingly, the immediate final rule is not being withdrawn as to 
these other revisions, which will continue to be authorized pursuant to 
the immediate final rule.

DATES: Today's decision approving the authorization of Rhode Island's 
hazardous waste revisions as they relate to the Zinc Fertilizer Rule 
and Burden Reduction Initiative will be effective September 24, 2010 
(as are other aspects of Rhode Island's hazardous waste program 
revisions approved in the aforementioned immediate final rule).

ADDRESSES: Docket: EPA has established a docket for this action under 
Docket ID No. EPA-R01-RCRA-2010-0561. All documents in the docket are 
listed on the http://www.regulations.gov Web site. Although it may be 
listed in the index, some information might not be publicly available, 
e.g., CBI or other information whose disclosure is restricted by 
statute. Certain other material, such as copyrighted material, is not 
placed on the Internet and will be publicly available only in hard copy 
form. Publicly available docket materials are available either 
electronically through http://www.regulations.gov or in hard copy at 
the following two locations: (i) Rhode Island Department of 
Environmental Management, 235 Promenade St., Providence, RI 02908-5767, 
by appointment only through the Office of Technical and Customer 
Assistance, tel: (401) 222-6822 and (ii) EPA Region I Library, 5 Post 
Office Square, 1st Floor, Boston, MA 02109-3912, by appointment only, 
(617) 918-1990.

FOR FURTHER INFORMATION CONTACT: Robin Biscaia, RCRA Waste Management 
Section, Office of Site Remediation and Restoration (OSRR 07-1), EPA 
New England--Region 1, 5 Post Office Square, Suite 100, Boston, MA 
02109-3912; telephone number: (617) 918-1642; fax number: (617) 918-
0642, e-mail address: [email protected].

SUPPLEMENTARY INFORMATION: As stated in EPA's recent immediate final 
rule, 75 FR 43409 (July 26, 2010), because of anticipated adverse 
public comment on the authorization of Rhode Island's Hazardous Waste 
Program revisions for EPA's Zinc Fertilizer Rule, the authorization of 
that rule never was included in the immediate final rule. Instead, we 
are in today's action making a separate determination (following an 
opportunity for public comment) regarding the authorization of Rhode 
Island for the Zinc Fertilizer Rule. As noted above, in response to the 
adverse public comment, we also are partially withdrawing the immediate 
final rule insofar as it authorized Rhode Island for the Burden 
Reduction Initiative. However, we are not agreeing with the comment 
and, thus, are authorizing Rhode Island for the Burden Reductive 
Initiative.
    For general information regarding why revisions to state programs 
are necessary and what aspects of Rhode Island's hazardous waste 
program have been previously authorized as well those provisions which 
were authorized by the immediate final rule referenced above, please 
see 75 FR 43409 (July 26, 2010).
    The following information relates only to the authorization of 
Rhode Island for hazardous waste revisions as they relate to EPA's Zinc 
Fertilizer Rule and Burden Reduction Initiative.

A. What decisions have we made in this rule?

    We have concluded that Rhode Island's application to revise its 
authorized program with regard to EPA's Zinc Fertilizer Rule and Burden 
Reduction Initiative meets all of the statutory and regulatory 
requirements established by RCRA. Therefore, we grant Rhode Island 
final authorization to operate its hazardous waste program with the 
changes relating to the Zinc Fertilizer Rule and Burden Reduction 
Initiative as described in the authorization application. Rhode 
Island's Department of Environmental Management (RIDEM) has 
responsibility for carrying out the aspects of the RCRA program covered 
by 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 any such requirements and prohibitions in Rhode Island, 
including implementation of the Land Disposal Restrictions (LDR) 
requirements in 40 CFR part 268 because Rhode Island has not yet sought 
and obtained authorization for those requirements. Regulated entities 
in Rhode Island must comply with these directly administered EPA 
requirements, in addition to the State hazardous waste requirements.

B. What is the effect of today's authorization decision?

    The effect of this decision is that a facility in Rhode Island 
subject to RCRA will now have to comply with the authorized State 
requirements instead of the equivalent Federal requirements in order to 
comply with RCRA. Rhode Island has enforcement responsibilities under 
its State hazardous waste program for violations of such program, but 
EPA also 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

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regulations for which Rhode Island is being authorized by today's 
action are already effective under State law, and are not changed by 
today's action.

C. Proposed Rule

    On July 26, 2010, EPA published a proposed rule (75 FR 43478) in 
which we proposed granting authorization of changes to Rhode Island's 
Hazardous Waste program. This was included as a companion document to 
the immediate final rule in order to ensure the opportunity for public 
comment. In this proposed rule, EPA noted that because of anticipated 
adverse comments related to the authorization of Rhode Island for 
revisions relating to EPA's Zinc Fertilizer Rule, the agency would make 
a separate determination (following the opportunity for public comment) 
regarding the authorization of Rhode Island for the Zinc Fertilizer 
Rule. Thus, today's action makes a separate determination relating to 
the authorization of Rhode Island for revisions which pertain to EPA's 
Zinc Fertilizer Rule. As noted above, today's action also authorizes 
Rhode Island for the Burden Reduction Initiative.

D. What changes are we authorizing with this action?

    On June 17, 2010 EPA received Rhode Island's complete program 
revision application dated June 15, 2010 seeking authorization for 
their changes in accordance with 40 CFR 271.21. The RCRA program 
revisions for which Rhode Island is seeking authorization addressed by 
this action relate only to EPA's Zinc Fertilizer Rule and the Burden 
Reduction Initiative. (Although the application sought authorization 
for many other program revisions as well, those provisions were 
addressed in the aforementioned immediate final rule published on July 
26, 2010.) The State has adopted the Federal requirements relating to 
the Zinc Fertilizer Rule, 67 FR 48393 (July 24, 2002) and the Burden 
Reduction Initiative, 71 FR 1686 (April 24, 2006) at Rule 2.00 in its 
general incorporation by reference of Federal requirements through July 
1, 2008 (except as otherwise noted in the following paragraph). The 
State's authorization application consists of a cover letter requesting 
authorization, a copy of RIDEM's Rules and Regulations for Hazardous 
Waste Management dated June 2010, regulatory checklists (specifically 
related to this action, CL 200--Zinc Fertilizer Rule and CL 213--Burden 
Reduction Initiative) comparing the State and Federal requirements and 
a Supplement to the Attorney General's Statement.
    We are now making a final decision that Rhode Island's hazardous 
waste program revisions which relate to EPA's Zinc Fertilizer Rule and 
the Burden Reduction Initiative satisfy all of the requirements 
necessary to qualify for final authorization. Therefore, we grant Rhode 
Island final authorization for the specific program changes which 
relate to these rules as identified below. Note, the Federal 
requirements are identified by their checklist (CL) number and rule 
description followed by the corresponding state regulatory analog(s) 
(``Rule(s)'') from Rhode Island's Rules and Regulations for Hazardous 
Waste Management as in effect on June 7, 2010: CL 200--Zinc Fertilizer 
Rule, 67 FR 48393, July 24, 2002: Rules 2.2C and 2.2H; CL 213--Burden 
Reduction Initiative, 71 FR 16862, April 24, 2006 (other than LDR 
requirements): Rules 2.2 C, 2.2 C.4, 2.2 F, 2.2 G, 2.2 I, 2.2 J, 7.0 
B.82, 8.1 A.17, 8.1 A.41, 8.1 A.45 and 8.1 A.64.

E. Response to Comments

    The adverse comment filed was from Ms. Patricia Anne Martin on 
behalf of the organization Safe Food and Fertilizer. The comment 
objects first to the EPA's decision in the Zinc Fertilizer Rule to 
allow the application to the land of zinc fertilizers made from 
hazardous wastes or hazardous secondary materials. Such application to 
the land is allowed under the Zinc Fertilizer Rule only when 
contaminants are below levels determined by the EPA in that Rule to be 
protective of human health and the environment (see 40 CFR 
261.4(a)(21)), but Safe Food and Fertilizer disagrees with the EPA 
determinations and states that the ``use of hazardous waste in 
fertilizer has not been proven safe.'' The comment also objects to the 
EPA's decisions in the Burden Reduction Initiative rulemaking to allow 
one time notices of shipments of zinc fertilizer and to allow such 
notices to be kept on file (see 40 CFR 268.7(b)(6) (July 1, 2008)) as 
opposed to the prior requirements that there be notices regarding each 
shipment and that such notices be sent to the relevant EPA office or 
authorized State (see 40 CFR 268.7(b)(6) (July 1, 2005). Based on these 
concerns, Safe Food and Fertilizer asks that EPA Region I not authorize 
Rhode Island for the Zinc Fertilizer Rule or the Burden Reduction 
Initiative.
    In the proposed rule regarding this matter, the Region had 
suggested that if any commenter objected to the Zinc Fertilizer Rule, 
it should have addressed its comments to the EPA prior to the adoption 
of that Rule. In response, Safe Food and Fertilizer asserts that it did 
object to the Zinc Fertilizer Rule but that the EPA ``ignored'' the 
comments.
    In the proposed rule regarding this matter, the Region had further 
suggested that if any commenter objected to Rhode Island adopting the 
Zinc Fertilizer Rule, it should have filed comments with Rhode Island 
during its comment period on its rules, rather than waiting and asking 
EPA to not authorize the State rules. The Region pointed out that while 
under RCRA, a State has the right to be more stringent than a Federal 
rule, it also has the right not to be more stringent and thus a State 
may simply track the Federal RCRA rules. Thus, if a commenter wants a 
State not to adopt a Federal rule such as the Zinc Fertilizer Rule but 
rather to be more stringent, it should file timely comments with the 
State. In response, Safe Food and Fertilizer asserts that Rhode Island 
does not have the right ``not to be more stringent'' than the Zinc 
Fertilizer Rule, since by adopting the Zinc Fertilizer Rule, Rhode 
Island is being less protective than what Safe Food and Fertilizer 
believes the correct minimum Federal standards should be as mandated by 
the Congress. However, Safe Food and Fertilizer does not explain why it 
did not file comments to Rhode Island.
    Under the RCRA statute, the EPA must promulgate Federal RCRA 
regulations that are protective of human health and the environment. 42 
U.S.C. 6922-6924. Then the EPA is further directed to authorize State 
RCRA programs if they are ``equivalent'' to the Federal programs and 
meet other requirements. 42 U.S.C. 6926. This involves comparing the 
State regulations to the Federal regulations. State regulations may be 
``more stringent'' than the Federal requirements or may simply be 
``equivalent,'' but may not be less stringent. 42 U.S.C. 6929. The 
statute clearly contemplates a two step process. First, the EPA issues 
its regulations and any person disagreeing with the EPA's 
determinations generally must challenge them in court within 90 days. 
42 U.S.C. 6976. Second, when the EPA later authorizes State 
regulations, it simply compares them to the federal regulations. The 
statute does not contemplate that whether the Federal regulations are 
adequately protective should be revisited in the course of determining 
whether to authorize State regulations.
    Here, Safe Food and Fertilizer did object to the EPA adopting the 
Zinc Fertilizer Rule and indeed challenged the Rule in court. However, 
their petition was denied by the court and the regulations generally 
were upheld. Safe Food and Fertilizer v. Environmental

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Protection Agency, 350 F.3d 1263 (DC Cir. 2003). The Zinc Fertilizer 
Rule remains in effect at the federal level. The Burden Reduction 
Initiative Rule was not challenged by either Safe Food and Fertilizer 
or anyone else. As a result, it also remains in effect at the Federal 
level. Thus these are the Federal requirements that Rhode Island must 
meet in order to obtain authorization for these particular rules. While 
States need not adopt the Zinc Fertilizer Rule or the Burden Reduction 
Initiative, since not doing so would make them more stringent than the 
Federal rules, States are allowed to adopt these rules. Rhode Island 
decided to adopt and seek authorization for these Federal rules. In its 
regulations, Rhode Island has adopted the Zinc Fertilizer Rule 
requirements exactly, by incorporating them by reference in its Rules 
2.2C and 2.2H. Thus Rhode Island clearly is being equivalent to and as 
stringent as this Federal rule. While Safe Food and Fertilizer may 
disagree with the Federal rule in question, the Region is appropriately 
comparing the State rules to the Federal rules, rather than comparing 
the State rules to what Safe Food and Fertilizer thinks the Federal 
rules should be.
    Rhode Island also has adopted the Burden Reduction Initiative Rule 
requirements, with some more stringent revisions (not relevant to the 
Zinc Fertilizer Rule), by incorporating them by reference in its Rules 
2.2C, 2.2C.4, 2.2F, 2.2G, 2.2I, 2.2J, 7.0B82 and 8.1A.64. However, 
Rhode Island has not adopted any of the Federal Land Disposal 
Restriction (LDR) rules. See Rhode Island's Rule 2.2 B. Thus, as 
earlier explained in the immediate final rule, Rhode Island is not 
being authorized for any of the LDR Rules. The reduced reporting 
requirement that Safe Food and Fertilizer is objecting to is an LDR 
regulation-40 CFR 268.7(b)(6). Thus, Rhode Island is not being 
authorized for this particular regulation. That reduced reporting 
requirement actually is in effect in Rhode Island, but that is because 
the EPA is directly administering the Federal LDR program in Rhode 
Island and the reduced reporting requirement is part of the federal 
program. But this is a result of the EPA issuing the Burden Reduction 
Initiative Rule in 2006, not a result of today's authorization. Thus, 
insofar as Safe Food and Fertilizer is objecting to Rhode Island being 
authorized for 40 CFR 268.7(b)(6), its comment is in error, since Rhode 
Island is not being authorized for that regulation. Insofar as Safe 
Food and Fertilizer is otherwise objecting to Rhode Island being 
authorized for the Burden Reduction Initiative, its comment is in error 
for the same reasons why its objection to the authorization of Rhode 
Island for the Zinc Fertilizer Rule is in error. That is, a State has 
the right not to be more stringent than the Federal regulations and is 
being ``equivalent'' to the federal regulations when it tracks the 
Federal regulations.
    Thus, the Region does not agree with Safe Food and Fertilizer's 
comment that it should not authorize these Rhode Island regulations. 
Thus the regulations are being authorized. The Region continues to 
encourage Safe Food and Fertilizer to file timely comments with the 
States during future program updates, if it believes that the States 
should not adopt the Zinc Fertilizer Rule or should revisit past 
adoptions of the Zinc Fertilizer Rule. If, alternatively, Safe Food and 
Fertilizer believes that the EPA should reconsider and change the 
federal regulations, it needs to request this at the national level. A 
Region does not have the authority to change the national regulations.

F. Administrative Requirements

    The Office of Management and Budget has exempted this action (RCRA 
State Authorization) 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 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 
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 
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

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Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

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: September 9, 2010.
Ira W. Leighton,
Acting Regional Administrator, EPA New England.
[FR Doc. 2010-23401 Filed 9-17-10; 8:45 am]
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