[Federal Register Volume 80, Number 75 (Monday, April 20, 2015)]
[Rules and Regulations]
[Pages 21650-21654]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-08997]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[EPA-R01-RCRA-2015-0195; FRL-9926-54-Region 1]


Vermont: Final Authorization of State Hazardous Waste Management 
Program Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The State of Vermont has applied to EPA for Final 
authorization of changes to its hazardous waste program under the 
Resource Conservation and Recovery Act (RCRA). EPA has determined that 
these changes satisfy all requirements needed to qualify for Final 
authorization, and is authorizing the State's changes through this 
direct final action.

DATES: This rule is effective on June 19, 2015 without further notice, 
unless EPA receives adverse written comment by May 20, 2015. If EPA 
receives adverse comment, we will publish a timely withdrawal in the 
Federal Register informing the public that the rule will not take 
effect, unless and until the public comment is considered and another 
final rulemaking document is issued.

ADDRESSES: Submit any comments, identified by Docket ID No. EPA-R01-
RCRA-2015-0195, by one of the following methods:
     www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     Email: [email protected].
     Fax: (617) 918-0647, to the attention of Sharon Leitch.
     Mail: Sharon Leitch, RCRA Waste Management and UST 
Section, Office of Site Remediation and Restoration (OSRR07-1), US EPA 
Region 1, 5 Post Office Square, Suite 100, Boston, MA 02109-3912.
     Hand Delivery: Sharon Leitch, RCRA Waste Management and 
UST Section, Office of Site Remediation and Restoration (OSRR07-1), US 
EPA Region 1, 5 Post Office Square, 7th floor, Boston, MA 02109-3912. 
Such deliveries are only accepted during normal hours of operation, and 
special arrangements should be made for

[[Page 21651]]

deliveries of boxed information. Please contact Sharon Leitch at (617) 
918-1647.
    Instructions: Direct your comments to Docket ID No. EPA-R01-RCRA-
2015-0195. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
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 www.regulations.gov or email. The 
www.regulations.gov Web site is an ``anonymous access'' system, which 
means EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an email comment 
directly to EPA without going through www.regulations.gov your email 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters, any form of 
encryption, and be free of any defects or viruses.
    Docket: All documents in the docket are listed in the 
www.regulations.gov index. Although 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, might be publicly available 
only in hard copy form. Publicly available docket materials are 
available either electronically through www.regulations.gov or in hard 
copy at the EPA Region 1 Library, 5 Post Office Square, 1st floor, 
Boston, MA 02109-3912; by appointment only; tel: (617) 918-1990.

FOR FURTHER INFORMATION CONTACT: Sharon Leitch, RCRA Waste Management 
and UST Section, Office of Site Remediation and Restoration, (Mail 
Code: OSRR07-1), EPA Region 1, 5 Post Office Square, Suite 100, Boston, 
MA 02109-3912; telephone number: (617) 918-1647; fax number (617) 918-
0647; email address: [email protected].

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 changes to 
EPA's regulations in Title 40 of the Code of Federal Regulations (CFR) 
parts 124, 260 through 266, 268, 270, 273, and 279. When states make 
other changes to their regulations, it also often is appropriate for 
the states to seek authorization of the changes.

 B. What decisions have we made in this rule?

    We have concluded that Vermont's application to revise its 
authorized program meets all of the statutory and regulatory 
requirements established by RCRA. Therefore, we grant Vermont Final 
authorization to operate its hazardous waste program with the changes 
described in the authorization application. Vermont has responsibility 
for permitting treatment, storage, and disposal facilities (TSDFs) 
within its borders and 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 Vermont, including 
issuing permits, until the State is granted authorization to do so.

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

    The effect of this decision is that a facility in Vermont subject 
to RCRA will now have to comply with the authorized State requirements 
instead of the Federal requirements governing the operation of the 
wastewater evaporation units subject to the state regulations, in order 
to comply with RCRA. Vermont 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 regulations for which Vermont is being 
authorized by this action are already effective under state law, and 
are not changed by this action.

D. Why is EPA using a direct final rule?

    EPA is publishing this rule without a prior proposed rule because 
we view this as a noncontroversial action and anticipate no adverse 
comment. However, in the ``Proposed Rules'' section of this Federal 
Register, we are publishing a separate document that will serve as the 
proposed rule to authorize the State program changes if adverse 
comments are received on this direct final rule. We will not institute 
a second comment period on this action. Any parties interested in 
commenting must do so at this time. Further information about 
commenting on this rule, see the ADDRESSES section of this document.
    If EPA receives adverse comment, we will publish a timely 
withdrawal in the Federal Register informing the public that this 
direct final rule will not take effect. We would address all public 
comments in any subsequent final rule based on the proposed rule.

E. What has Vermont previously been authorized for?

    The State of Vermont initially received Final authorization on 
January 7, 1985, with an effective date of January 21, 1985 (50 FR 775) 
to implement the RCRA hazardous waste management program. The Region 
published an immediate final rule for certain revisions to Vermont's 
program on May 3, 1993 (58 FR 26242) and reopened the comment period 
for these revisions on June 7, 1993 (58 FR 31911). This authorization 
became effective August 6, 1993 (see 58 FR 31911). The Region granted 
authorization for further revisions to Vermont's program on September 
24, 1999 (64 FR 51702), effective November 23, 1999. On October 18, 
1999 (64 FR 46174) the Region published a correction to the immediate 
final rule that was published on September 24, 1999. The Region granted 
authorization for further revisions to Vermont's program on

[[Page 21652]]

October 26, 2000, effective December 26, 2000 (65 FR 64164). That 
Federal Register also made a technical correction. On June 23, 2005 (70 
FR 36350) the Region published an immediate final rule for additional 
revisions to Vermont's program. This authorization became effective on 
August 22, 2005. The Region granted authorization for further revisions 
to Vermont's program on March 16, 2007 (72 FR 12568), which became 
effective on May 15, 2007. The Region granted authorization for further 
revisions to Vermont's program on December 31, 2013 (78 FR 79615), 
which became effective on March 3, 2014.

F. What changes are we authorizing with today's action?

    On January 16, 2015, Vermont submitted a final complete program 
revision application, seeking authorization for their changes in 
accordance with 40 CFR 271.21. Vermont is seeking authorization for 
regulations that the state has adopted governing the operation of 
wastewater evaporation units.
    We are now making an immediate final decision that, subject to 
reconsideration only if we receive written comments that oppose this 
action, Vermont's hazardous waste program revisions satisfy all of the 
requirements necessary to qualify for Final authorization. We have 
determined that the Vermont requirements governing wastewater 
evaporation units are ``more stringent'' than federal requirements. 
Therefore, we grant Vermont Final authorization for the following 
program changes: Vermont Hazardous Waste Management Regulation (VHWMR) 
section 7-502(o)(8), along with the revision to the note following 
VHWMR section 7-502(o)(10) and the definition of wastewater evaporator 
unit in VHWMR section 7-103. Since Vermont regulates wastewater 
evaporator units under various conditions set forth in its generator 
treatment in tanks provisions, the analogous federal requirements are 
in 40 CFR 262.34.
    The Final authorization of these state regulations is in addition 
to the previous authorization of state regulations, which remain part 
of the authorized program.

G. How are the revised state rules different from the federal rules and 
why have they been determined to be more stringent?

    Wastewater evaporation units (evaporators) (as further defined by 
Vermont) evaporate water using heat to reduce the volume of wastewater 
and to concentrate hazardous wastes. Vermont regulates these units 
using its permit exemption for generator treatment in tanks and 
additional conditions designed to effectively regulate evaporators. EPA 
has analyzed whether the Vermont regulations are equally or more 
protective of human health and the environment than the federal 
regulations, rather than being less stringent. The Agency has 
determined that Vermont's regulations are more protective/stricter, 
thus being within the State's authority to maintain under RCRA section 
3009. A Memorandum entitled ``Further Explanation of Decision'' dated 
February 2015, containing a more detailed analysis of this issue, has 
been included in the Administrative Record. Additionally, the EPA 
analyzed whether the stricter state regulations are ``more stringent'' 
or ``broader in scope''. EPA has determined that they are ``more 
stringent'' thus being regulations that should be federally authorized 
and enforced. An explanation of EPA's determinations is set forth 
below.

1--Determination That State Regulations Are Stricter Than the Federal 
Regulations

    To determine whether the state regulations are stricter and not 
less stringent than the federal regulations, EPA has compared the state 
regulations to the federal regulations, including examining 
interpretations that have been made of the federal regulations 
(available in the administrative record and in RCRA Online). However, 
in line with the national policy: Determining Equivalency of State RCRA 
Hazardous Waste Programs, September 7, 2005 (Equivalency Policy), EPA 
has not required that the state follow the same identical approach as 
the federal regulations. Rather, EPA has focused, ``on whether the 
state requirements provide [at least] equal environmental results as 
the federal counterparts.'' Id.
    At the federal level, the wastewater treatment unit (WWTU) 
exemption has been interpreted to cover many hazardous waste 
evaporators. Vermont is stricter than this federal approach in that it 
excludes wastewater evaporation units from being covered under its WWTU 
exemption. Rather, it regulates them under its more protective 
generator treatment in tanks exemption. Furthermore, Vermont's 
generator treatment in tanks exemption is more stringent than the 
federal exemption in that it imposes additional requirements designed 
to effectively regulate evaporators.
    However, there may be some evaporators that do not qualify for the 
WWTU exemption at the federal level. EPA has assumed for purposes of 
today's decision that the current EPA interpretation of the federal 
regulations is that, at the federal level, evaporation treatment is 
considered to be thermal treatment and is not allowed to be conducted 
by generators without permits under the generator treatment in tanks 
exemption. Nevertheless, for the reasons explained below, EPA has 
determined that the Vermont regulations are stricter, not less 
stringent than, the federal regulations.
    EPA has concluded that we should look at the overall RCRA program 
and assess the effect of the Vermont program across the board. In doing 
that, EPA has concluded that the Vermont program is stricter than any 
of the federal requirements with respect to wastewater evaporators. 
RCRA section 3009. Vermont consistently and strictly regulates all 
generator evaporators by imposing hazardous waste management 
requirements and comprehensive air emissions regulations. This approach 
is stricter across the board than the federal approach, and thus should 
be allowed consistent with the national Equivalency Policy, which 
emphasizes that states may take different but equally or more 
protective approaches.
    Vermont has requirements that are comparable to permits because the 
Vermont regulations require the same type of tank management standards 
and air emission control requirements as would be included in permits. 
Vermont also requires every generator operating an evaporator to submit 
a notice and obtain review of its operation.
    EPA emphasizes that this decision allows non-permitted evaporation 
treatment (outside of the WWTU exemption) only in Vermont. Such 
treatment will be allowed only because it has been federally authorized 
as ``functionally equivalent,'' and this federal authorization is being 
granted based on the strict requirements adopted by Vermont. EPA 
further emphasizes that this regional rulemaking has no implications 
for how other kinds of ``thermal treatment'' will be regulated. 
Generally ``thermal treatment'' is not allowed without permits under 
either the generator treatment in tanks (and containers) exemption or 
under the WWTU exemption. Here, EPA is only allowing, subject to 
stricter Vermont standards, the same kind of evaporation treatment that 
already has been allowed without permits under the WWTU exemption at 
the federal level and in the many states that follow the federal 
approach.
    Finally, EPA notes that Vermont is stricter than the federal 
approach with

[[Page 21653]]

respect to any evaporators located at Treatment, Storage and Disposal 
Facilities (TSDFs). These evaporators must always obtain RCRA permits 
in Vermont, since Vermont does not allow the use of the WWTU exemption 
for evaporators and Vermont's treatment in tanks permit exemption for 
evaporators is limited to generators.

2--Determination That State Regulations Are More Stringent Rather Than 
Broader in Scope

    State regulations that are stricter may be determined to be more 
stringent or broader in scope. While states are allowed to maintain 
both types of requirements, this determination is important because 
state regulations that EPA determines to be more stringent are made 
part of the federally authorized program and are federally enforceable. 
State regulations that the EPA determines to be broader in scope are 
not made part of the federally authorized program and thus, are not 
federally enforceable.
    To determine whether the Vermont regulations are more stringent or 
broader in scope, EPA has consulted the national policy: Determining 
Whether State Hazardous Waste Requirements are More Stringent or 
Broader in Scope than the Federal RCRA Program, December 23, 2014. 
Included in that policy is a two-part test that Regions generally use 
to determine whether state provisions are more stringent or broader in 
scope. EPA has determined that the Vermont regulations are more 
stringent.
    As noted in that policy, when EPA regulates hazardous waste through 
conditional exclusions, the federal conditions amount to a form of 
regulation. When a state imposes additional conditions for materials 
still considered to be hazardous wastes at the federal level even when 
the federal conditions are met, the additional state conditions do not 
increase the size of the regulated community. Therefore, these are 
considered to be a more stringent not broader in scope conditions under 
the first test. As noted in the Appendix to the policy, an example of 
this is the WWTU exemption. While EPA regulates evaporators under the 
WWTU exemption less strictly than Vermont, both are regulating them and 
the additional Vermont regulations pass the first test set forth in the 
policy for being considered more stringent. Evaporators that do not 
qualify for the WWTU exemption at the federal level are regulated at 
the federal level, and thus the state regulation of them is also within 
the scope of the federal program under the first test.
    The Vermont regulations pass the second test in the policy for 
being considered more stringent. The federal WWTU exemption requires 
treatment to occur within a tank or tank system in order to prevent 
releases of hazardous wastes. Similarly, the state requirements for 
evaporators are counterparts to the federal requirement in that they 
seek to prevent releases. In addition, the state imposes its large 
quantity generator (LQG) and small quantity generator (SQG) 
requirements on those generators operating evaporators, counterparts to 
these requirements exist in the federal LQG and SQG regulations. The 
state regulation of evaporators is similar to when additional state 
regulation of CESQGs exist, which is cited in the national policy as 
meeting both tests for being more stringent rather than broader in 
scope. For those evaporators not subject to the federal WWTU exemption, 
the state regulations have counterparts in the federal permit 
regulations.
    The regulations listed in Section F. above are being federally 
authorized and will be federally enforceable. The other previously 
authorized Vermont generator requirements will also be federally 
enforceable with respect to generator evaporators. In addition, the 
previously authorized full state permit requirements with respect to 
any evaporators at TSDFs will also be federally enforceable. Also, as 
previously authorized, the WWTU exemption will not apply to any 
evaporators in Vermont since they are excluded under the definition of 
WWTU adopted by Vermont.

H. Who handles permits after the authorization takes effect?

    Vermont will issue permits for all the provisions for which it is 
authorized and will administer the permits it issues. EPA will 
implement and issue permits for any HSWA requirements for which Vermont 
is not yet authorized.

I. What is codification and is EPA codifying Vermont'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 UU for this authorization of Vermont's 
program until a later date.

J. Administrative Requirements

    The Office of Management and Budget (OMB) has exempted this action 
(RCRA State Authorization) from the requirements of Executive Orders 
12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 
2011). 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, this action will not have a significant economic impact on 
a substantial number of small entities under the Regulatory Flexibility 
Act (5 U.S.C. 601 et seq.). Because this action authorizes pre-existing 
requirements under State law and does not impose any additional 
enforceable duty beyond that required by State law, it does not contain 
any unfunded mandate or significantly or uniquely affect small 
governments, as described in the Unfunded Mandates Reform Act of 1995 
(Pub. L. 104-4). For the same reason, this action also does not 
significantly or uniquely affect the communities of Tribal governments, 
as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). 
This action will not have substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government, as specified in Executive Order 13132 (64 FR 43255, 
August 10, 1999), because it merely authorizes State requirements as 
part of the State RCRA hazardous waste program without altering the 
relationship or the distribution of power and responsibilities 
established by RCRA. This action also is not subject to Executive Order 
13045 (62 FR 19885, April 23, 1997), because it is not economically 
significant and it does not make decisions based on environmental 
health or safety risks. This rule is not subject to Executive Order 
13211, ``Actions Concerning Regulations That Significantly Affect 
Energy Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001) 
because it is not a ``significant regulatory action'' as defined 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.

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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.). Executive Order 12898 (59 FR 7629, 
Feb. 16, 1994) establishes federal executive policy on environmental 
justice. Its main provision directs federal agencies, to the greatest 
extent practicable and permitted by law, to make environmental justice 
part of their mission by identifying and addressing, as appropriate, 
disproportionately high and adverse human health or environmental 
effects of their programs, policies, and activities on minority 
populations and low-income populations in the United States. Because 
this rule authorizes pre-existing State rules which are at least 
equivalent to, and no less stringent than existing federal 
requirements, 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.
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this document and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication in the Federal Register. A major rule cannot take effect 
until 60 days after it is published in the Federal Register. This 
action is not a ``major rule'' as defined by 5 U.S.C. 804(2). This 
action nevertheless will be effective 60 days after it is published, 
because it is a direct final rule.

List of Subjects in 40 CFR Part 271

    Environmental protection, Hazardous waste.

    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: March 24, 2015.
H. Curtis Spalding,
Regional Administrator, EPA Region 1.
[FR Doc. 2015-08997 Filed 4-17-15; 8:45 am]
 BILLING CODE 6560-50-P