[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.
[[Page 21654]]
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]
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