[Federal Register Volume 78, Number 227 (Monday, November 25, 2013)]
[Rules and Regulations]
[Pages 70225-70231]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-28151]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[EPA-R03-RCRA-2013-0571; FRL-9903-08-Region 3]


West Virginia: Final Authorization of State Hazardous Waste 
Management Program Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

-----------------------------------------------------------------------

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

DATES: This final authorization will become effective on January 24, 
2014, unless EPA receives adverse written comments by December 26, 
2013. If EPA receives any 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 as 
scheduled.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R03-
RCRA-2013-0571, by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the on-line instructions for submitting comments.
    2. Email: [email protected].
    3. Mail: Stacie Pratt, Mailcode 3LC50, Office of State Programs, 
U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA 19103-2029.
    4. Hand Delivery: At the previously-listed EPA Region III address. 
Such deliveries are only accepted during normal hours of operation, and 
special arrangements should be made for deliveries of boxed 
information.
    You may inspect and copy West Virginia's application from 8:00 a.m. 
to 4:30 p.m., Monday through Friday at the following locations: West 
Virginia Department of Environmental Protection, (WVDEP), Division of 
Water and Waste Management, 601 57th Street SE., Charleston, WV 25304, 
Phone number: (304) 926-0499, attn: Yogesh Patel; and EPA Region III 
Library, 2nd Floor, 1650 Arch Street, Philadelphia, PA 19103-2029, 
Phone number: (215) 814-5254.
    Instructions: Direct your comments to Docket ID No. EPA-R03-RCRA-
2013-0571. EPA's policy is that all comments received will be included 
in the public file without change and may be made available on line at 
http://www.regulations.gov, including any personal information 
provided, unless the comment includes information claimed to be 
Confidential Business Information (CBI) or other information whose 
disclosure is restricted by statute. Do not submit information that you 
consider to be CBI or otherwise protected through http://www.regulations.gov or email. The Federal http://www.regulations.gov 
Web site is an ``anonymous access'' system, which means that EPA will 
not know your identity or contact information unless you provide it in 
the body of your comment. If you send an email comment directly to EPA 
without going through http://www.regulations.gov, your email address 
will be automatically captured and included as part of the comment that 
is placed in the public file 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 and any form of encryption, and be free 
of any defects or viruses.

FOR FURTHER INFORMATION CONTACT: Stacie Pratt, Mailcode 3LC50, Office 
of State Programs, U.S. EPA Region III, 1650 Arch Street, Philadelphia, 
PA 19103-2029, Phone number: (215) 814-5173; email address: 
[email protected]

SUPPLEMENTARY INFORMATION:

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 to become 
more stringent or broader in scope, States must revise their programs 
and apply to EPA to authorize the revisions. Authorization of revisions 
to State programs may be necessary when Federal or State statutory or 
regulatory authority is modified or when certain other revisions 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 268, 270, 273 and 279.

B. What decisions have we made in this rule?

    EPA concludes that West Virginia's application to revise its 
authorized program meets all of the statutory and regulatory 
requirements established by RCRA. Therefore, we grant West Virginia 
final authorization to operate its hazardous waste program with the 
revisions described in its application for program revisions, subject 
to the procedures described in section E,

[[Page 70226]]

below. West Virginia has 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 
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 HSWA 
requirements and prohibitions for which West Virginia has not been 
authorized, including issuing HSWA permits, until the State is granted 
authorization to do so.

C. What is the effect of this authorization decision?

    This decision serves to authorize revisions to West Virginia's 
authorized hazardous waste program. This action does not impose 
additional requirements on the regulated community because the 
regulations for which West Virginia is being authorized by this action 
are already effective and are not changed by this action. West Virginia 
has enforcement responsibilities under its state hazardous waste 
program for violations of its program, but EPA retains its authority 
under RCRA sections 3007, 3008, 3013, and 7003, which include, among 
others, authority to:
    [ssquf] Perform inspections, and require monitoring, tests, 
analyses or reports;
    [ssquf] Enforce RCRA requirements and suspend or revoke permits; 
and
    [ssquf] Take enforcement actions regardless of whether West 
Virginia has taken its own actions.

D. Why wasn't there a proposed rule before this rule?

    EPA did not publish a proposal before this 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 West Virginia's program revisions. If EPA receives comments 
that oppose this authorization, that document will serve as a proposal 
to authorize the revisions to West Virginia's program that were the 
subject of adverse comment.

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 would become effective. EPA will base any further 
decision on the authorization of West Virginia's program revisions on 
the proposal mentioned in the previous section. 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. If we receive comments that oppose the 
authorization of a particular revision to West Virginia's hazardous 
waste program, we will withdraw that part of this rule, but the 
authorization of the program revisions 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 West Virginia previously been authorized for?

    Initially, West Virginia received final authorization to implement 
its hazardous waste management program effective May 29, 1986 (51 FR 
17739). EPA granted authorization for revisions to West Virginia's 
regulatory program on May 10, 2000, effective July 10, 2000 (65 FR 
29973) and October 16, 2003, effective December 15, 2003 (68 FR 59542).

G. What revisions are we authorizing with this action?

    On May 1, 2013, West Virginia submitted a final complete program 
revision application, seeking authorization of additional revisions to 
its program in accordance with 40 CFR 271.21. West Virginia's revision 
application includes: (1) Various regulations that are equivalent to, 
and no less stringent than, revisions to the Federal hazardous waste 
program, as published in the Code of Federal Regulations as of June 16, 
2010, and (2) a request for EPA's approval of the State's use of the 
cleanup standards in its Voluntary Remediation Program (VRP) at RCRA 
corrective action sites.
    We now make an immediate final decision, subject to receipt of 
written comments that oppose this action, that West Virginia's 
hazardous waste program revision satisfies all of the requirements 
necessary to qualify for final authorization. Therefore, EPA grants 
West Virginia's final authorization for the following program 
revisions:

1. Program Revision Changes for Federal Rules

    West Virginia seeks authority to administer the Federal 
requirements that are listed in Table 1. This Table lists the West 
Virginia analogs that are being recognized as no less stringent than 
the analogous Federal requirements. West Virginia's regulatory 
references are to the West Virginia Code of State Regulations, Title 
33, Series 20 ``Hazardous Waste Management System'' (33 CSR 20), 
effective June 16, 2011; and Title 45, Series 25 ``Control of Air 
Pollution from Hazardous Waste Treatment, Storage and Disposal 
Facilities'' (45 CSR 25), effective June 16, 2011. West Virginia's 
application also includes a revised Program Description and Memorandum 
of Agreement, which explain the reorganization of the State agencies 
responsible for implementing the hazardous waste program, as well as 
the procedures that will be followed when the VRP cleanup standards are 
used at RCRA corrective action sites.
    West Virginia is also seeking authorization for certain State-
initiated changes that are not directly related to any of the Revision 
Checklists listed in Table 1. These State-initiated changes are related 
to the adoption and renumbering of provisions intended to improve the 
clarity of the State's regulations and to provide for necessary 
conforming changes as a result of changes in State agencies or in 
Federal amendments that do not apply to West Virginia. State regulatory 
provisions that have been renumbered since the 2003 authorization are 
listed in Table 2.
    The State's statutory authority for the hazardous waste program for 
which it is seeking authorization is based on the following provisions 
from the West Virginia Code, as amended through 2010: Chapter 22, 
Article 18, Hazardous Waste Management Act; Chapter 22, Article 1, 
Department of Environmental Protection, Sections 22-1-3a, 22-1-3(c), 
22-1-6(c), and 22-1-6(d)(8); Chapter 22, Article 5, Air Pollution 
Control, Section 22-5-1 and Chapter 22, Article 12, Groundwater 
Protection Act, Section 22-12-4. West Virginia's authority to 
incorporate the Federal program is found at W. Va. Code, Section 22-1-
3(c).

[[Page 70227]]



      Table 1--West Virginia's Analogs to the Federal Requirements
------------------------------------------------------------------------
    Description of Federal
     requirement (revision       Federal Register      Analogous West
        checklists \1\)                              Virginia authority
------------------------------------------------------------------------
                            RCRA Cluster VIII
------------------------------------------------------------------------
Clarification of Standards for  62 FR 64504, 12/5/ 33 CSR 20, section 33-
 Hazardous Waste LDR Treatment   97.                20-10.2. (At 33-20-
 Variances, Revision Checklist                      10.2, West Virginia
 162.                                               excludes 40 CFR
                                                    268.44 from the
                                                    incorporation by
                                                    reference of its
                                                    Federal regulations.
                                                    See Section H.1.a
                                                    for discussion about
                                                    Federal non-
                                                    delegable
                                                    provisions.)
------------------------------------------------------------------------
                             RCRA Cluster X
------------------------------------------------------------------------
Universal Waste Rule: Specific  64 FR 36466, July  33 CSR 20, sections
 Provisions for Hazardous        6, 1999.           33-20-2.1, 33-20-
 Waste Lamps, Revision                              2.5.d, 33-20-3.1, 33-
 Checklist 181.                                     20-7.2, 33-20-8.1,
                                                    33-20-10.1, 33-20-
                                                    11.1, 33-20-13.1, 33-
                                                    20-13.4.
Land Disposal Restrictions      64 FR 56469, 10/   33 CSR 20, sections
 Phase IV--Technical             20/99.             33-20-3.1, 33-20-
 Corrections, Revision                              5.1, 33-20-10.1.
 Checklist 183.
Organobromine Production        65 FR 14472, 3/17/ 33 CSR 20, sections
 Wastes Vacatur, Revision        00.                33-20-3.1, 33-20-
 Checklist 185.                                     10.1.
Petroleum Refining Process      65 FR 36365, 6/8/  33 CSR 20, sections
 Wastes--Clarification,          00.                33-20-3.1, 33-20-
 Revision Checklist 187.                            10.1.
------------------------------------------------------------------------
                             RCRA Cluster XI
------------------------------------------------------------------------
NESHAPS: Final Standards for    65 FR 42292, 07/   33 CSR 20, sections
 Hazardous Air Pollutants for    10/00; as          33-20-3.1, 33-20-
 Hazardous Waste Combustors,     amended 66 FR      7.2, 33-20-11.1;
 Revision Checklist 188.         24270, 5/14/01;
                                 and 66 FR 35087,
                                 7/03/01.
                                                   45 CSR 25, sections
                                                    45-25-1.1.a, 45-25-
                                                    1.5.a/Table 25-A,
                                                    Item 1, 2, 22.
Chlorinated Aliphatics Listing  65 FR 67068, 11/8/ 33 CSR 20, sections
 and LDRs for Newly Identified   00.                33-20-3.1, 33-20-
 Wastes, Revision Checklist                         10.1.
 189.
Land Disposal Restrictions      65 FR 81373, 12/   33 CSR 20, section 33-
 Phase IV--Deferral for PCBs     26/00.             20-10.1.
 in Soil, Revision Checklist
 190.
Storage, Treatment,             66 FR 27218, 5/16/ 33 CSR 20, section 33-
 Transportation and Disposal     01.                20-9.1.
 of Mixed Waste, Revision
 Checklist 191.
Mixture and Derived-From Rules  66 FR 27266, 5/16/ 33 CSR 20, sections
 Revisions, Revision Checklist   01.                33-20-3.1, 33-20-
 192A.                                              3.1.a.
Land Disposal Restrictions      66 FR 27266, 5/16/ 33 CSR 20, section 33-
 Correction, Revision            01.                20-10.1.
 Checklist 192B.
Change of Official EPA Mailing  66 FR 34374, 6/28/ 33 CSR 20, section 33-
 Address, Revision Checklist     01.                20-2.1.
 193.
------------------------------------------------------------------------
                            RCRA Cluster XII
------------------------------------------------------------------------
Mixture and Derived-From Rules  66 FR 50332, 10/3/ 33 CSR 20, sections
 Revision II, Revision           01; as amended     33-20-3.1, 33-20-
 Checklist 194.                  66 FR 60153, 12/   3.1.a.
                                 3/01.
Inorganic Chemical              66 FR 58258, 11/   33 CSR 20, sections
 Manufacturing, Revision         20/01; as          33-20-3.1, 33-20-
 Checklist 195.                  amended, 67 FR     10.1.
                                 17119, 04/09/02.
CAMU Amendments, Revision       67 FR 2962, 1/22/  33 CSR 20, sections
 Checklist 196.                  02;.               33-20-2.1, 33-20-
                                                    7.2.
Hazardous Air Pollutant         67 FR 6792, 2/13/  33 CSR 20, sections
 Standards for Combustors:       02.                33-20-7.2, 33-20-
 Interim Standards, Revision                        8.1, 33-20-9.1, 33-
 Checklist 197.                                     20-11.1;
                                                   45 CSR 25, sections
                                                    45-25-1.1.a 45-25-
                                                    1.5.a/Table 25-A,
                                                    Items 1, 2, 3, 15,
                                                    16, 17 and 27.
Hazardous Air Pollutant         67 FR 6968, 2/14/  33 CSR 20, sections
 Standards for Combustors:       02.                33-20-9.1, 33-20-
 Corrections, Revision                              11.1;
 Checklist 198.                                    45 CSR 25, sections
                                                    45-25-1.1.a, 45-25-
                                                    1.5.a/Table 25-A,
                                                    Items 2 and 15.
Vacatur of Mineral Processing   67 FR 11251, 3/13/ 33 CSR 20, section 33-
 Spent Materials Being           02.                20-3.1.
 Reclaimed as Solid Wastes and
 TCLP Use with MGP Waste,
 Revision Checklist 199.
------------------------------------------------------------------------
                            RCRA Cluster XIII
------------------------------------------------------------------------
Zinc Fertilizers Made from      67 FR 48393, 7/24/ 33 CSR 20, sections
 Recycled Hazardous Secondary    02.                33-20-3.1, 33-20-
 Materials, Revision Checklist                      9.1, 33-20-10.1
 200.
National Treatment Variance     67 FR 62618, 10/   33 CSR 20, section 33-
 for Radioactively               07/02.             20-10.1.
 Contaminated Batteries,
 Revision Checklist 201.
NESHAP: Standards for           67 FR 77687, 12/   33 CSR 20, sections
 Hazardous Air Pollutants for    19/02.             33-20-11.1;
 Hazardous Waste Combustors-                       45 CSR 25, sections
 Corrections, Revision                              45-25-1.1.a, 45-25-
 Checklist 202.                                     1.5.a/Table 25-A,
                                                    Items 2, 3, 16 and
                                                    17.
------------------------------------------------------------------------

[[Page 70228]]

 
                            RCRA Cluster XIV
------------------------------------------------------------------------
Hazardous Waste Management      68 FR 44659, 7/30/ 33 CSR 20, sections
 System; Identification and      03.                33-20-3.1, 33-20-
 Listing of Hazardous Waste;                        14.1.
 Recycled Used Oil Management
 Standards, Revision Checklist
 203.
NESHAP: Surface Coating of      69 FR 22601, 4/26/ 45 CSR 25, sections
 Automobiles and Light-Duty      04.                45-25-1.1.a, 45-25-
 Trucks, Revision Checklist                         1.5.a/Table 25-A,
 205.                                               Item 9.
------------------------------------------------------------------------
                             RCRA Cluster XV
------------------------------------------------------------------------
Nonwastewaters from             70 FR 9138, 2/24/  33 CSR 20, sections
 Productions of Dyes,            05; as amended     33-20-3.1, 33-20-
 Pigments, and Food, Drug, and   70 FR 35032, 6/    10.1.
 Cosmetic Colorants, Revision    16/05.
 Checklist 206.
Testing and Monitoring          70 FR 34538, 6/14/ 33 CSR 20, sections
 Activities: Methods             05; as amended     33-20-2.1, 33-20-
 Innovation Rule and SW-846      70 FR 44150, 8/    2.3, 33-20-3.1, 33-
 Update IIIB, Revision           01/05.             20-7.2, 33-20-8.1,
 Checklist 208.                                     33-20-9.1, 33-20-
                                                    10.1, 33-20-11.1, 33-
                                                    20-14.1;
                                                   45 CSR 25, sections
                                                    45-25-1.1.a, 45-25-
                                                    1.5.a/Table 25-A,
                                                    Items 2, 3, 7, 9,
                                                    11, 15, 16, 17 and
                                                    19.
------------------------------------------------------------------------
                            RCRA Cluster XVI
------------------------------------------------------------------------
Mercury-Containing Equipment,   70 FR 45508, 8/05/ 33 CSR 20, sections
 Revision Checklist 209.         05.                33-20-2.1, 33-20-
                                                    3.1, 33-20-7.2, 33-
                                                    20-8.1, 33-20-10.1,
                                                    33-20-11.1, 33-20-
                                                    13.1.
Revision of Wastewater          70 FR 57769, 10/   33 CSR 20, sections
 Treatment Exemptions for        04/05.             33-20-3.1, 33-20-
 Hazardous Waste Mixtures,                          3.1.a.
 Revision Checklist 211.
National Emission Standards     70 FR 59401, 10/   33 CSR 20, sections
 for Hazardous Air Pollutants:   12/05.             33-20-2.1, 33-20-
 Final Standards for Hazardous                      7.2, 33-20-8.1, 33-
 Air Pollutants for Hazardous                       20-9.1, 33-20-11.1;
 Waste Combustors, Revision
 Checklist 212.
                                                   45 CSR 25, sections
                                                    45-25-1.1.a, 45-25-
                                                    1.5.a/Table 25-A,
                                                    Items 1, 2, 3, 8,
                                                    10, 15, 16, 17, 24
                                                    and 27.
Burden Reduction Initiative,    71 FR 16862, 4/04/ 33 CSR 20, sections
 Revision Checklist 213.         06.                33-20-2.1*, 33-20-
                                                    3.1, 33-20-7.2, 33-
                                                    20-7.4.c , 33-20-
                                                    8.1, 33-20-9.1, 33-
                                                    20-10.1, 33-20-11.1;
                                                   45 CSR 25, sections
                                                    45-25-1.1.a, 45-25-
                                                    1.5.a/Table 25-A,
                                                    Items 1, 9 and 15.
                                                   * West Virginia
                                                    incorporates by
                                                    reference 40 CFR
                                                    part 260 at 33-20-
                                                    2.1, however, the
                                                    state is not being
                                                    authorized for the
                                                    definition of
                                                    ``Performance Track
                                                    member facility'',
                                                    see section H.1.d
                                                    for discussion.
------------------------------------------------------------------------
                            RCRA Cluster XVII
------------------------------------------------------------------------
Corrections to Errors in the    71 FR 40254, 7/14/ 33 CSR 20, sections
 Code of Federal Regulations,    06.                33-20-2.1, 33-20-
 Revision Checklist 214.                            3.1, 33-20-5.1, 33-
                                                    20-5.4, 33-20-5.5,
                                                    33-20-7.2, 33-20-
                                                    7.4, 33-20-7.5, 33-
                                                    20-7.6, 33-20-7.7,
                                                    33-20-8.1, 33-20-
                                                    8.2, 33-20-8.5, 33-
                                                    20-9.1, 33-20-10.1,
                                                    33-20-10.2, 33-20-
                                                    11.1, 33-20-13.1, 33-
                                                    20-14.1;
                                                   45 CSR 25, sections
                                                    45-25-1.1.a, 45-25-
                                                    1.5.a/Table 25-A,
                                                    Items 1, 5, 7, 9,
                                                    11, 15 and 19.
Cathode Ray Tubes Rule,         71 FR 42928, 7/28/ 33 CSR 20, sections
 Revision Checklist 215.         06.                33-20-1.5.a, 33-20-
                                                    2.1, 33-20-3.1;
                                                   45 CSR 25, sections
                                                    45-25-1.1.a, 45-25-
                                                    1.5.a/Table 25-A,
                                                    Item 22.
------------------------------------------------------------------------
                           RCRA Cluster XVIII
------------------------------------------------------------------------
Exclusion of Oil-Bearing        73 FR 57, 1/02/08  33 CSR 20, sections
 Secondary Materials Processed                      33-20-2.1, 33-20-
 in a Gasification System to                        3.1.
 Produce Synthesis Gas,
 Revision Checklist 216.
NESHAP: Final Standards for     73 FR 18970, 4/08/ 33 CSR 20, sections
 Hazardous Waste Combustors      08.                33-20-7.2, 33-20-
 (Phase I Final Replacement                         9.1;
 Standards and Phase II)
 Amendments, Revision
 Checklist 217.
                                                   45 CSR 25, sections
                                                    45-25-1.1.a, 45-25-
                                                    1.5.a/Table 25-A,
                                                    Items 1 and 15.
F019 Exemption for Wastewater   73 FR 31756, 6/04/ 33 CSR 20, sections
 Treatment Sludges from Auto     08.                33-20-3.1.
 Manufacturing Zinc
 Phosphating Processes,
 Revision Checklist 218.
------------------------------------------------------------------------

[[Page 70229]]

 
                            RCRA Cluster XIX
------------------------------------------------------------------------
Academic Laboratories           73 FR 72912, 12/1/ 33 CSR 20, sections
 Generator Standards, Revision   08.                33-20-3.1, 33-20-
 Checklist 220.                                     5.1.
Expansion of RCRA Comparable    73 FR 77954, 12/   33 CSR 20, sections
 Fuel Exclusion, Revision        19/08.             33-20-3.1;
 Checklist 221.
                                                   45 CSR 25, sections
                                                    45-25-1.1.a, 45-25-
                                                    1.5.a/Table 25-A,
                                                    Items 21 and 22.
------------------------------------------------------------------------
                             RCRA Cluster XX
------------------------------------------------------------------------
OECD Requirements; Export       75 FR 1236, 1/08/  33 CSR 20, sections
 Shipments of Spent Lead-Acid    10.                33-20-1.5.a, 33-20-
 Batteries, Revision Checklist                      5.1, 33-20-5.4, 33-
 222.                                               20-5.5, 33-20-6.1,
                                                    33-20-6.2, 33-20-
                                                    7.2, 33-20-7.3, 33-
                                                    20-8.1, 33-20-8.2,
                                                    33-20-9.1.
Hazardous Waste Technical       75 FR 12989, 3/18/ 33 CSR 20, sections
 Corrections and                 10.                33-20-2.1, 33-20-
 Clarifications, Revision                           3.1, 33-20-5.1, 33-
 Checklist 223.                                     20-5.3, 33-20-6.1,
                                                    33-20-6.2, 33-20-
                                                    7.2, 33-20-8.1, 33-
                                                    20-9.1, 33-20-10.1,
                                                    33-20-11.1;
                                                   45 CSR 25, sections
                                                    45-25-1.1.a, 45-25-
                                                    1.5.a/Table 25-A,
                                                    Items 15, 20, 21 and
                                                    23.
Withdrawal of the Emission      75 FR 33712, 6/15/ 33 CSR 20, sections
 Comparable Fuel Exclusion       10.                33-20-3.1;
 under RCRA, Revision                              45 CSR 25, sections
 Checklist 224.                                     45-25-1.1.a, 45-25-
                                                    1.5.a/Table 25-A,
                                                    Items 20 and 22.
------------------------------------------------------------------------
\1\ A Revision Checklist is a document that addresses the specific
  revisions made to the Federal regulations by one or more related final
  rules published in the Federal Register. EPA develops these checklists
  as tools to assist States in developing their authorization
  applications and in documenting specific State analogs to the Federal
  Regulations. For more information see EPA's RCRA State Authorization
  Web page at http://www.epa.gov/osw/laws-regs/state/index.htm.

2. State-Initiated Changes

    West Virginia has amended its regulations by adopting and 
renumbering provisions intended to improve the clarity of the State's 
regulations and to provide for necessary conforming changes as a result 
of changes in State terms and agencies, or Federal amendments that do 
not apply to West Virginia. In addition, 33-20-5.5 as found in the July 
1, 2001 regulations was removed. This provision specifically 
incorporated by reference the March 8, 2000 federal final rule 
addressed by Revision Checklist 184 and was necessary because at the 
time, West Virginia incorporated by reference 40 CFR as of July 1, 
1999. The provision is no longer necessary because West Virginia now 
incorporates by reference 40 CFR as of June 16, 2010. EPA has evaluated 
the changes and has determined that the State's regulations remain 
consistent with, and are no less stringent than, the corresponding 
Federal regulations. Table 2 lists those State regulatory provisions 
that have been renumbered since the 2003 authorization.

   Table 2--Redesignated Provisions in West Virginia's Hazardous Waste
                               Regulations
------------------------------------------------------------------------
                                            State citation as found in
  State citation as found in 33CSR20,      33CSR20, effective June 16,
         effective July 1, 2001                        2011
------------------------------------------------------------------------
33-20-5.3..............................  33-20-5.4.
33-20-5.4..............................  33-20-5.5.
33-20-7.4 through 33-20.7.8............  33-20-7.3 through 33-20.7.7.
33-20-8.3 through 33-20.8.6............  33-20-8.2 through 33-20.8.5.
33-20-10.3.............................  33-20-10.2.
33-20-10.5.............................  33-20-10.3.
33-20-11.3 through 11.22...............  33-20-11.2 through 11.21.
33-20-13.4 through 13.6................  33-20-13.2 through 13.4.
------------------------------------------------------------------------

3. The West Virginia Voluntary Remediation Program as It Relates to the 
State's RCRA Corrective Action Program

    On December 15, 2003, EPA approved the State's application for 
revision of the State authorized Hazardous Waste Program. The 2003 
approval included, among other things, the authority for the State to 
implement corrective action at hazardous waste sites. EPA's 
authorization of the State's Corrective Action Program related to 
corrective action permitting responsibilities under RCRA sections 
3004(u) and (v). West Virginia is now seeking approval to utilize, at 
RCRA corrective action sites, the cleanup standards in its Voluntary 
Remediation Program (VRP), as set forth in its Voluntary Remediation 
and Redevelopment Act (Chapter 22, Article 22 of the West Virginia 
Code) and its implementing regulations in Title 60, Series 3 of the 
Code of State Regulations (60 CSR 3), ``Voluntary Remediation And 
Redevelopment Rule,'' effective May 1, 2012.
    EPA has reviewed the Voluntary Remediation Program that was in 
effect in 2008, and in a letter to WVDEP dated August 21, 2008, EPA 
identified areas where the VRP standards are potentially inconsistent 
with EPA corrective action requirements and guidance documents. 
However, EPA agrees to allow the use of the VRP standards to the extent 
that the requirements of the VRP are consistent with and no less 
stringent than the federal corrective action requirements, and that 
completed cleanups are consistent with EPA goals. For those

[[Page 70230]]

sites where EPA has determined that the application of VRP standards 
will not result in cleanups that are protective of the environment, 
West Virginia will use the appropriate EPA requirement to assure that 
the cleanup will protect the environment.
    This approval to allow the use of the cleanup standards of the VRP 
at RCRA corrective action sites and the Memorandum of Agreement (MOA) 
between the State and EPA do not alter the corrective action 
authorities granted to the State in 2003. The MOA sets forth more 
specific detail regarding how the State will implement corrective 
action at hazardous waste sites and clarifies the role of the VRP 
cleanup standards within the Corrective Action Program. However, no 
provision of the Voluntary Remediation and Redevelopment Act or 
regulations promulgated pursuant thereto relieves any person of the 
responsibility to comply with any otherwise applicable portion of the 
authorized hazardous waste program or prevents the State from 
exercising the full extent of its authority corresponding to the state 
program approval requirements found in 40 CFR 271.16 (``Requirements 
for enforcement authority''), in any matter.

H. Where are the revised West Virginia rules different from the Federal 
rules?

1. Rules for Which West Virginia Is Not Seeking Authorization

    West Virginia is not seeking authorization for the following RCRA 
revisions that are found in 40 CFR as of June 16, 2010:
    (a) West Virginia is not seeking authorization for, and has 
appropriately left authority with EPA, for non-delegable federal rules. 
Non-delegable federal rules address certain functions for which EPA 
must retain authority, including treatment standards variances at 40 
CFR 268.44(a)-(g). At section 33-20-1.5.a, West Virginia excludes from 
its substitution of state terms, federal rules that cannot be delegated 
to the state. In some cases, West Virginia also excludes non-delegable 
rules from its incorporation by reference. For example, at section 33-
20-10.2, West Virginia excludes 40 CFR 268.44 from its incorporation by 
reference of 40 CFR part 268. EPA will continue to implement these 
requirements as appropriate.
    (b) In its hazardous waste management rules at 33 CSR 20 effective 
June 16, 2011, West Virginia has incorporated by reference the Uniform 
Hazardous Waste Manifest final rules (70 FR 10776; 3/04/05 as amended 
June 16, 2005 at 70 FR 35034; Revision Checklist 207). However, the 
West Virginia Public Service Commission rules at 150 CSR 11, effective 
December 24, 2002, and the WV Department of Transportation regulations 
at 157 CSR 7, effective April 17, 2012, do not contain analogs to some 
of the 40 CFR part 263 requirements for transporters that were revised 
by the March 4, 2005 and June 16, 2005 final rules.
    (c) At Sec.  33-20-11.1, West Virginia has incorporated by 
reference 40 CFR part 267, as introduced by the September 8, 2005 final 
rule addressing Standardized Permits for RCRA Hazardous Waste 
Management Facilities (70 FR 53420-53478, Revision Checklist 210). 
However, West Virginia is not being authorized for this final rule 
because after reviewing the state's regulations, EPA found that West 
Virginia has not correctly adopted all of the revisions introduced by 
the Standardized Permit rule.
    (d) West Virginia is not seeking authorization for the National 
Environmental Performance Track Program (4/22/04, 69 FR21737; as 
amended 10/25/04, 69 FR 62217; Revision Checklist 204). On March 16, 
2009, EPA announced its intention to halt and review the National 
Performance Track Program.

2. More Stringent West Virginia Rules

    The West Virginia hazardous waste program contains some provisions 
that are more stringent than is required by the RCRA program as 
codified in the June 16, 2010 edition of title 40 of the Code of 
Federal Regulations (CFR). These more stringent provisions are being 
recognized as a part of the Federally-authorized program. The specific 
more stringent provisions are also noted in West Virginia's 
authorization application. They include, but are not limited to, the 
following:
    (a) At Sec.  33-20-3.1.a, West Virginia requires the owner and 
operator to comply with additional requirements beyond the Federal 
requirements in order for a mixture of waste and one or more hazardous 
wastes identified in 40 CFR 261.3(a)(2)(iv) to be exempt from the 
definition of hazardous waste. This makes the State more stringent.
    (b) At Sec.  33-20-5.4 and 33-20-5.5, West Virginia is more 
stringent because the state requires copies of all documents sent to 
EPA in compliance with 40 CFR parts 262 Subparts E and H, to also be 
sent to the state.
    (c) At Sec.  33-20-7.3 and 33-20-8.2, West Virginia is more 
stringent in that the State requires that the notification sent to EPA 
in compliance with 40 CFR 264.12(a) and 265.12(a), also be sent to the 
state.

I. Who handles permits after this authorization takes effect?

    After this authorization revision, West Virginia 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 that we issued prior to 
the effective date of this authorization. Until such time as formal 
transfer of EPA permit responsibility to West Virginia occurs and EPA 
terminates its permit, EPA and West Virginia agree to coordinate the 
administration of permits in order to maintain consistency. We will not 
issue any more new permits or new portions of permits for the 
provisions listed in Section G after the effective date of this 
authorization. EPA will continue to implement and issue permits for 
HSWA requirements for which West Virginia is not yet authorized.

J. How does this action affect Indian Country (18 U.S.C. 115) in West 
Virginia?

    West Virginia is not seeking authorization to operate the program 
on Indian lands, since there are no Federally-recognized Indian lands 
in West Virginia.

K. What is codification and is EPA codifying West Virginia'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 XX, for this authorization of West 
Virginia's program revisions 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

[[Page 70231]]

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 State 
of West 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. 3701, et seq.) 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 18, 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 will be effective January 24, 2014.

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 1, 2013.
Shawn M. Garvin,
Regional Administrator, EPA Region III.
[FR Doc. 2013-28151 Filed 11-22-13; 8:45 am]
BILLING CODE 6560-50-P