[Federal Register Volume 76, Number 195 (Friday, October 7, 2011)]
[Rules and Regulations]
[Pages 62303-62306]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-25899]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[FRL-9476-2]


California: Final Authorization of State Hazardous Waste 
Management Program Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final determination.

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SUMMARY: California has applied for final authorization of certain 
revisions to its hazardous waste program under the Resource 
Conservation and Recovery Act (RCRA). The Environmental Protection 
Agency (EPA) has reviewed California's application and has reached a 
final determination that the revisions to California's hazardous waste 
program satisfy all of the requirements necessary to qualify for final 
authorization. Thus, with respect to these revisions, EPA is granting 
final authorization to the State to operate its program subject to the 
limitations on its authority retained by EPA in accordance with the 
Hazardous and Solid Waste Amendments of 1984.

DATES: Effective Date: Final authorization for the revisions to 
California's hazardous waste management program shall be effective at 1 
p.m. on October 7, 2011.

FOR FURTHER INFORMATION CONTACT: Zac Appleton, WST-3, U.S. EPA Region 
9, 75 Hawthorne Street, San Francisco 94105-3901, (415) 972-3321.

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 modified or when certain other changes occur. 
Most commonly, states must change their programs because of

[[Page 62304]]

changes to EPA's regulations in 40 Code of Federal Regulations (CFR) 
parts 124, 260 through 266, 268, 270, 273 and 279.
    California initially received final authorization on July 23, 1992, 
effective August 1, 1992 (57 FR 32726), to implement the RCRA hazardous 
waste management program. EPA granted authorization for changes to 
California's program on September 26, 2001, effective September 26, 
2001 (66 FR 49118). EPA made the tentative determination to approve 
subsequent changes to California's program when it invited public 
comment in a Federal Register Notice on September 30, 2010 (75 FR 
60398).

B. What were the comments and responses to EPA's proposal?

    On September 30, 2010, EPA published a tentative determination 
announcing its intent to grant California final authorization for the 
revisions to its base program. Further background on the tentative 
decision to grant authorization appears at Vol. 75, No. 189, September 
30, 2010 at pages 60398-60403.
    Along with the tentative determination, EPA announced the 
availability of the application for public comment. EPA received no 
comments.

C. What decisions have we made in this rule?

    EPA has made the final determination that California's application 
for authorization of the subject revisions meets all of the statutory 
and regulatory requirements established by RCRA. Therefore, with 
respect to the revisions, we are granting California final 
authorization to operate its hazardous waste program as described in 
the revisions authorization application. California will continue to 
have responsibility for permitting Treatment, Storage, and Disposal 
Facilities (TSDFs) within its borders 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 such states are authorized for 
the requirements. Thus, for revisions to the Federal program for which 
California has not yet sought authorization, EPA will continue to 
implement those HSWA requirements and prohibitions in California, 
including issuing permits, until the State is granted authorization to 
do so.

D. What is the effect of today's action?

    A facility in California subject to RCRA must comply with the 
authorized State requirements in lieu of the corresponding Federal 
requirements in order to comply with RCRA. Additionally, such persons 
must comply with any applicable Federally-issued requirements, such as, 
for example, HSWA regulations issued by EPA for which the State has not 
received authorization, and RCRA requirements that are not supplanted 
by authorized state-issued requirements. California continues to have 
enforcement responsibilities under its State law to pursue violations 
of its hazardous waste management program. EPA continues to have 
independent authority under RCRA Sections 3007, 3008, 3013, and 7003, 
which include, among others, the authority to:
     Do inspections, and require monitoring, tests, analyses or 
reports,
     Enforce RCRA requirements (including State-issued statutes 
and regulations that are authorized by EPA and any applicable 
Federally-issued statutes and regulations) and suspend or revoke 
permits, and
     Take enforcement actions regardless of whether the State 
has taken its own actions.
    This action approving the subject revisions does not impose 
additional requirements on the regulated community because the 
regulations for which California is being authorized are already 
effective under State law and are not changed by the act of 
authorization.
    EPA cannot delegate the Federal requirements at 40 CFR part 262, 
subparts E and H. Although California has adopted these requirements 
verbatim from the Federal regulations in Title 22 of the California 
Code of Regulations, Sections 66260-66262, EPA will continue to 
implement those requirements.

E. What rules are we authorizing with today's action?

    On August 2, 2004 and August 17, 2004 California submitted final 
complete program revision applications, seeking authorization of 
changes in accordance with 40 CFR 271.21. California applied for only 
the Federal changes relating to the corrective action management units, 
the Bevill exclusion and the land disposal restrictions.
    What follows is a summary, for each category identified by 
California in its submittals, of the specific subjects of changes to 
the Federal program for that category. Although the changes to the 
Federal program are identified in the summary, California did not 
necessarily make revisions to its program as a result of each Federal 
revision noted. For example, certain revisions to the Federal program 
may have resulted in less stringent regulation than that which 
previously existed. Since states may maintain programs which are more 
stringent than the Federal program, states have the option whether or 
not to adopt such revisions.

1. Changes California Identified as Relating to Corrective Action 
Management Units

    We are granting California final authorization for revisions to its 
program due to certain changes to the Federal Corrective Action 
Management Unit program.

2. Changes California Identified as Relating to Land Disposal 
Restrictions Phases 3 and 4

    We are granting California final authorization for revisions to its 
program due to certain changes to the Federal program in the following 
areas: (1) Land Disposal Restrictions Phase III--Decharacterized 
Wastewaters; (2) Emergency Extension of the K088 Capacity Variance; (3) 
Land Disposal Restrictions Phase IV--Treatment Standards for Wood 
Preserving Wastes, Paperwork Reduction and Streamlining, Exemptions 
From RCRA for Certain Processed Materials; (4) Emergency Revision of 
the Carbamate Land Disposal Restrictions; (5) Clarification of 
Standards for Hazardous Waste LDR Treatment Variances; (6) Treatment 
Standards for Metal Wastes and Mineral Processing Wastes; (7) Hazardous 
Soils Treatment Standards and Exclusions; (8) Administrative Stay for 
Zinc Micronutrient Fertilizers; (9) Emergency Revision of the Land 
Disposal Restrictions (LDR) Treatment Standards for Listed Hazardous 
Wastes from Carbamate Production; (10) Extension of Compliance Date for 
Characteristic Slags; (11) Treatment Standards for Spent Potliners from 
Primary Aluminum Reduction (K088); (12) Chlorinated Aliphatics Listing 
and LDRs for Newly Identified Wastes; (13) Deferral for PCBs in Soil; 
and (14) Certain Land Disposal Restrictions Technical Corrections and 
Clarifications. Note that California has not yet adopted the provisions 
addressed by the following Federal final rules which are also part of 
Phase IV of the land disposal restrictions requirements: LDR Revision 
Checklist 195 (66 FR 58258, November 20, 2001, as amended by 67 FR 
17119, April 9, 2002); non-LDR Revision Checklist 200 (67 FR 28393, 
July 24, 2002); and LDR

[[Page 62305]]

Revision Checklist 201 (67 FR 62618, October 7, 2002).

3. Changes California Identified as Relating to the Bevill Exclusion

    We are granting California final authorization for all revisions to 
its program due to certain changes to the Federal program in the Bevill 
Exclusion requirements.
    EPA published a table in its notice of its tentative decision to 
authorize the foregoing revisions to California's hazardous waste 
management program, which shows the Federal and analogous State 
provisions involved in this decision and the relevant corresponding 
checklists (75 FR 60398, 60400-6040, September 30, 2010).

F. Where are the State rules different from the Federal rules?

    State requirements that go beyond the scope of the Federal program 
are not part of the authorized program and EPA cannot enforce them. 
Although persons must comply with these requirements in accordance with 
California law, they are not RCRA requirements. EPA considers that the 
following State requirements, which pertain to the revisions involved 
in this decision, go beyond the scope of the Federal program.
    The following analysis differs in some ways from the areas which 
California identified as being broader in scope than the Federal 
program in its application.
    1. The definition of ``remediation waste'' at 22 C.C.R. Sec.  
66260.10 is broader in scope than the Federal definition at 40 CFR 
260.10 only to the extent California's definition includes hazardous 
substances which are neither ``hazardous wastes'' nor '''solid 
wastes.''
    2. California regulation subjects CAMUs for non-RCRA hazardous 
waste to state-specific requirements under 22 CCR 66264.552.5. The 
state requirement at 22 CCR 66264.552.5 is broader in scope because the 
federal program does not consider these wastes to be hazardous. In 
addition, 22 CCR 66264.550(a) is also considered broader in scope to 
the extent that it subjects non-RCRA wastes to the state-only CAMU 
requirements.
    3. California did not adopt the Federal definitions at 40 CFR 
261.1(c)(9)-(12), 261.4(a)(13)-(14), and 261.6(a)(3)(ii) addressing 
scrap metals or the related Federal changes to 40 CFR 261.2(c)(4)/
Table. California's program is broader in scope to the extent that the 
statutory provisions at HS&C Sec.  25143.2(a) and (e), do not exclude 
these scrap metals from regulation.
    4. The California provisions at 22 CCR 66268.7(a)-(c) are broader 
in scope than the Federal land disposal treatment provisions at 40 CFR 
268.7(a)-(c) to the extent that the State's provisions also apply to 
non-RCRA wastes. Similarly, California's variance petition provisions 
at 22 CCR 66268.44(c) and 66268.44(h) are also broader in scope to the 
extent that they apply to non-RCRA wastes.

G. What is EPA's position on California's regulation of conditionally 
exempt small quantity generators?

    When California initially received final authorization for the base 
RCRA program on July 23, 1992, effective August 1, 1992 (57 FR 32726), 
EPA Pacific Southwest Region (Region IX) identified California's 
failure to adopt the federal exclusion for conditionally exempt small 
quantity generators (CESQGs) (found, generally, at 40 CFR 261.5) as 
``broader in scope'' than the federal program. (See also 40 CFR 
270.1(c)(2)(iii).) However, EPA's position regarding the absence of the 
conditional exclusion for CESQGs in a state program has changed and EPA 
now clearly regards the absence of any such exclusion as more stringent 
than the federal program, making state regulation of CESQGs federally 
enforceable when authorized. See United States v. Southern Union Co., 
643 F. Supp. 2d 201 (D.R.I. 2009). In order to harmonize our 
authorization of California's program with EPA's position with respect 
to CESQGs, EPA is hereby redesignating California's regulation of 
CESQGs as more stringent than the federal program. Therefore, the 
State's regulation of such federally exempt CESQGs will be part of the 
authorized state program and will be federally enforceable within the 
State of California. Specifically, this change will allow federal 
enforcement of State requirements applicable to CESQGs who are 
conditionally exempt under the federal provisions found at 40 CFR 
261.5, 266.100(b)(3) and 270.1(c)(2)(iii). This change will not result 
in any new requirements on CESQGs, but will only mean that the more 
stringent State requirements for CESQGs will be federally enforceable.

H. Who handles permits after this authorization takes effect?

    California will issue permits for all the provisions for which it 
is authorized and will administer the permits it issues. All permits 
issued by EPA prior to California being authorized for these revisions 
will continue in force until the effective date of the State's issuance 
or denial of a State RCRA permit, or the permit otherwise expires or is 
revoked. California will administer any RCRA hazardous waste permits or 
portions of permits which EPA issued prior to the effective date of 
this authorization until such time as California has issued a 
corresponding State permit. EPA will not issue any more new permits or 
new portions of permits for provisions for which California is 
authorized after the effective date of this authorization. EPA will 
retain responsibility to issue permits for HSWA requirements for which 
California is not yet authorized.

I. How does today's action affect Indian country (18 U.S.C. 1151) in 
California?

    California is not authorized to carry out its hazardous waste 
program in Indian country within the State. Indian country includes all 
lands within the exterior boundaries of an Indian reservation, any land 
held in trust by the United States for an Indian tribe whether or not 
formally designated as an Indian reservation, and any other land, 
whether within or outside of an Indian reservation, that qualifies as 
Indian country under 18 U.S.C. 1151. A list of Indian Tribes in 
California can be found on the Web at http://www.bia.gov, under the 
section ``Region Selector.''
    Therefore, this action has no effect on the Indian country within 
the States' borders. EPA will continue to implement and administer the 
RCRA program in Indian country within the State.

J. What is codification and is EPA codifying California'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. EPA does this by 
referencing the authorized State rules in 40 CFR part 272. EPA is 
reserving the amendment of 40 CFR part 272, subpart F for codification 
of California's program at a later date.

K. Statutory and Executive Order Reviews

1. Executive Order 12866: Regulatory Planning and Review and Executive 
Order 13563: Improving Regulation and Regulatory Review 13563

    This action approves the subject revisions and does not impose 
additional requirements on the regulated community because the 
regulations for which California is being authorized are already 
effective under State law and are not changed by the act of 
authorization. This type of action is exempt from review under 
Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 
3821, January 21, 2011).

[[Page 62306]]

2. Paperwork Reduction Act

    This rule does not impose an information collection burden under 
the Paperwork Reduction Act.

3. Regulatory Flexibility Act

    After considering the economic impacts of this rule on small 
entities under the Regulatory Flexibility Act, I certify that this rule 
will not have a significant economic impact on a substantial number of 
small entities.

4. Unfunded Mandates Reform Act

    Because this rule approves preexisting 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.

5. Executive Order 13132: Federalism

    Executive Order 13132 does not apply to this rule because it will 
not have federalism implications (i.e., substantial direct effects on 
the State, 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 described in Executive Order 13132.

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

    Executive Order 13175 does not apply to this rule because it will 
not have tribal implications (i.e., substantial direct effects on one 
or more Indian tribes, on the relationship between the Federal 
Government and Indian tribes, or on the distribution of power and 
responsibilities between the Federal Government and Indian tribes). As 
stated previously, this action would have no effect on the Indian 
country within the State's borders and EPA will continue to implement 
and administer the RCRA program in Indian country within the State.

7. Executive Order 13045: Protection of Children From Environmental 
Health & Safety Risks

    This rule is not subject to Executive Order 13045 because it is not 
economically significant and it is not based on health or safety risks.

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

    This rule is not subject to Executive Order 13211 because it is not 
a significant regulatory action as defined in Executive Order 12866.

9. National Technology Transfer Advancement Act

    EPA approves State programs as long as they meet criteria required 
by RCRA, so it would be inconsistent with applicable law for EPA, in 
its review of a State program, to require the use of any particular 
voluntary consensus standard in place of another standard that meets 
the requirements of RCRA. Thus, Section 12(d) of the National 
Technology Transfer and Advance Act does not apply to this rule.

10. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low Income Populations

    Because this rule addresses authorizing pre-existing State rules 
and imposes no additional requirements beyond those imposed by State 
law and there are no anticipated significant adverse human health or 
environmental effects, the rule is not subject to Executive Order 
12898.

11. Executive Order 12988

    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.

12. Executive Order 12630: Evaluation of Risk and Avoidance of 
Unanticipated Takings

    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.

List of Subjects in 40 CFR Part 271

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

    Authority: This notice 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 8, 2011.
Jared Blumenfeld,
Regional Administrator, Region 9.
[FR Doc. 2011-25899 Filed 10-6-11; 8:45 am]
BILLING CODE 6560-50-P