[Federal Register Volume 83, Number 246 (Wednesday, December 26, 2018)]
[Rules and Regulations]
[Pages 66143-66145]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-27794]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[EPA-R06-RCRA-2018-0395; FRL-9987-30-Region 6]
Louisiana: Final Authorization of State Hazardous Waste
Management Program Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: On September 5, 2018, the Environmental Protection Agency
(EPA) published a notice of proposed rulemaking to approve a revision
to the State of Louisiana hazardous waste program under the Resource
Conservation and Recovery Act (RCRA) and provided for a thirty-day
public comment period. The public comment period closed on October 5,
2018, and EPA received fifteen comments. The EPA has reviewed and
analyzed all submitted comments, and now issues this final rule. After
consideration of all comments, EPA confirms that the program revisions
to the State of Louisiana hazardous waste program satisfy all
requirements needed to qualify for final authorization.
DATES: This final authorization is effective December 26, 2018.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R06-RCRA-2018-0395. All documents in the docket are listed in
www.regulation.gov index. Although listed in the index, some of the
information is not publicly available. e.g., Confidential Business
Information or other information whose disclosure is restricted by
statute. Certain other material, such as copyrighted material, will be
publicly available only in hard copy. Publicly available docket
materials are available either electronically through
www.regulation.gov or in hard copy. You can view and copy Louisiana's
application and associated publicly available materials from 8:30 a.m.
to 4:00 p.m., Monday through Friday, at the following locations:
Louisiana Department of Environmental Quality, 602 N Fifth Street,
Baton Rouge, Louisiana 70884-2178, phone number (225) 219-3559 and EPA,
Region 6, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733, phone
number (214) 665-8533.
FOR FURTHER INFORMATION CONTACT: Alima Patterson, Region 6, Regional
Authorization/Codification Coordinator, Permit Section (6MM-RP),
Multimedia Division, (214) 665-8533, EPA Region 6, 1445 Ross Avenue,
Suite 1200, Dallas, Texas 75202-2733, and Email address
[email protected].
SUPPLEMENTARY INFORMATION:
A. What revisions is EPA authorizing with this action?
On March 13, 2018, LDEQ submitted a final complete program revision
application seeking authorization of its program revision in accordance
with 40 CFR 271.21. EPA now makes a final decision that LDEQ's
hazardous waste program revisions satisfy all the requirements
necessary to qualify for final authorization. EPA will continue to
implement and enforce Hazardous and Solid Waste Amendments of 1984
(HSWA) provisions for which the State is not authorized. For a list of
rules that become effective with this Final Rule, please see the
Proposed Rulemaking published in the September 5, 2018, Federal
Register at 83 FR 45061.
B. What were the comments and responses to EPA's proposal?
EPA received fifteen comments. Twelve comments were supportive of
EPA to grant the State of Louisiana portions of the Subtitle C
Hazardous Waste Management Program and two were irrelevant to the
proposed rulemaking. EPA received a written adverse comment from TD*X
Associates LP, Beaumont Texas, (TD*X) requesting that EPA not authorize
the State of Louisiana to implement the regulatory provisions commonly
known as the ``Verified Recycler Exemption,'' or ``VRE.'' EPA received
only one adverse comment, from TD*X, opposing EPA's proposal to
authorize revisions to Louisiana's hazardous waste regulations. The
full set of comments can be found in the docket for this action. The
commenter asserts that the
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Louisiana program that employs both the VRE and the associated Verified
Reclamation Facility (VRF) variance is not protective of human health
and the environment, and does not implement the State's legally
mandated requirement to enforce regulations for the management of
designated hazardous waste materials that are at least as stringent as
the RCRA regulations. TD*X's extensive comments address two issues
related to (1) EPA's proposed authorization of the Louisiana Department
of Environmental Quality (LDEQ) revised hazardous waste management
program as published in the Federal Register on September 5, 2018, at
83 FR 45061, and (2) Louisiana's April 19, 2018, proposal to issue a
site-specific feedstock variance from the classification as a solid
waste to Thermaldyne LLC--Thermaldyne Port Allen Facility, in
accordance with the Louisiana Administrative Code (LAC) 33:V.105.O.1.b
and 105.O.2.b [analogs to 40 CFR 260.30(b) and 260.31(b)] (Further
information about the LDEQ proposal to issue a site-specific variance
to Thermaldyne LLC can be found at http://www.deq.louisiana.gov/public-notices). In accordance with the approval process found at 40 CFR part
271, EPA provides the following responses to comments regarding
authorization of Louisiana's requested program revision:
1. The commenter stated that EPA Region 6 should either: Not
authorize the LDEQ State program if it includes any of the court
vacated VRE language and conditions; or issue a limited program
authorization that excludes any reference to either the VRE or VRF
variance process. Specifically, the commenter argued that if Louisiana
is authorized, including any of the VRE language, then all references
to LDEQ being allowed to issue a VRF variance should be struck and that
a specific reference or condition should be included in the EPA
authorization requiring that LDEQ not issue any VRF variance for a
``recycling'' facility that employs a treatment method that EPA has
designated as requiring a specific RCRA permit. The commenter also
requested EPA to eliminate the following statement in the Federal
Register at 83 FR 45061 (September 5, 2018), on page 45066, Section G:
``For the purposes of RCRA section 3009, the Agency has determined that
the broader in scope provisions are more protective/stricter, thus
being within the State's authority to maintain them as part of the
State's RCRA program.'' For the reasons set forth below, EPA does not
agree with the commenter.
EPA did not propose to authorize Louisiana for the VRE requirements
that were vacated by the Court of Appeals for the District of Columbia
Circuit, Am. Petroleum Inst. v. EPA, 862 F.3d 50 (D.C. Cir. 2017) and
Am. Petroleum Inst. v. EPA, 883F.3d 918 (D.C. Cir. 2018). On page 83 FR
45066, column 3 of the proposed rulemaking, EPA specified that the
Agency considers the Louisiana VRE requirements broader in scope than
EPA regulations. EPA further clarified that the LDEQ provisions that
are broader in scope than the federal regulations are not part of the
proposed program authorization because EPA cannot enforce requirements
that are broader in scope, even if compliance with such provisions is
required by Louisiana law. LDEQ may implement these state regulations
because they are at least as stringent as federal law, but because they
are broader in scope than federal law, they are not federally
enforceable. EPA addressed this question in the Final Rule, ``Response
to Vacatur of Certain Provisions of the Definition of Solid Waste
Rule'' in the Federal Register at 83 FR 24664, 24666, May 30, 2018:
``For states that have adopted rules similar to the verified recycler
exclusion and the 2015 definition of legitimate recycling, but have not
yet been authorized for them, the vacatur of the federal rules will not
change the authorization status of the state program. . . . The
vacaturs and subsequent reinstatement of various provisions of the
prior federal rules will result in state provisions that are broader in
scope than the federal program as it pertains to the specific vacated
provisions.''
With respect to the issuance of variances, if the material receives
an exclusion or variance from being a solid waste, it is by definition
not a hazardous waste and does not have to be treated as such, subject
to any conditions in the exclusion or variance. The State of Louisiana
has the authority to issue site-specific variances from classification
as a solid waste under 40 CFR 260.30(a) through (c) and 260.31(a)
through (c) in lieu of EPA since EPA first authorized the state for the
initial Definition of Solid Waste (DSW) final rule (50 FR 614, January
4, 1985; as amended by the final rules published at 50 FR 14216, April
11, 1985; and 50 FR 33541, August 20, 1985). In accordance with 40 CFR
260.30 and 260.31, the granting of variances for reclaimed materials is
site-specific and the variances are granted on a case-by-case basis. In
granting variances, an authorized state must evaluate the particular
waste material managed and types of processing operations conducted.
Authorized states that implement hazardous waste programs have
reasonable flexibility to evaluate case-by-case situations within their
state.
Finally, RCRA 3009 states that nothing prohibits a state from
imposing ANY requirements which are more stringent than our rules.
Also, under 40 CFR 271.1(i), states are not precluded from having
requirements that are more stringent or more extensive; or operating a
program with a greater scope of coverage but the greater in scope
coverage is not part of federally approved program. For the purposes of
federal authorization and enforcement, the EPA RCRA hazardous waste
regulations distinguish between these two kinds of allowable state
requirements. While state requirements that are more stringent may be
authorized as part of the state's RCRA program, broader in scope state
provisions cannot be authorized. The preamble of the 2015 DSW rule (80
FR 1694; January 13, 2015) documented in detail the additional
requirements that must be met to qualify for the state's verified
recycler exclusion, compared to the transfer-based exclusion that was
reinstated by the court. EPA stated in the preamble that the changes to
the standards and criteria for variances from classification as a solid
waste discussed in section IX (Revisions to Solid Waste Variances and
Non-Waste Determinations) are more stringent than the existing federal
hazardous waste program, including the transfer-based exclusion (see 80
FR 1732--1735; January 13, 2015). Based on the EPA guidance document,
``Determining Whether State Hazardous Waste Requirements are More
Stringent or Broader in Scope than the Federal RCRA Program'' (December
23, 2014), as discussed in Section G.1 of the proposed rulemaking
preamble, EPA affirms that the LDEQ provisions that are broader in
scope than the federal regulations are not part of the program proposed
to be authorized by the September 5, 2018, Federal Register document
(83 FR 45061). EPA cannot enforce requirements that are broader in
scope, although compliance with such provisions is required by
Louisiana law.
2. The commenter presented an example involving LDEQ's proposal to
issue a VRF variance to the Thermaldyne facility in Port Allen,
Louisiana, as an example of why EPA should not authorize LDEQ for the
VRE requirements. The commenter stated that the Thermaldyne facility
uses a hazardous waste combustor to treat RCRA regulated listed and
characteristic hazardous waste materials, and that
[[Page 66145]]
``the facility embodies all of the aspects of sham recycling that the
1989 Lowrance Memo [RO 11426], and both the 2008 and 2015 DSW
rulemakings were intended to prohibit.'' EPA responds to this comment
as follows:
Issues regarding individual facilities are beyond the scope of this
rulemaking. The purpose of the proposed rulemaking published at 83 FR
45061, September 5, 2018, was not to evaluate recycling activities at
particular facilities or VRF variance applications. The Louisiana
proposed rulemaking addresses regulations that the state adopted and
EPA reviewed. EPA concluded that the state regulations, except for the
court vacated provisions, are equivalent and consistent with the
federal RCRA Subtitle C program, as amended through April 17, 2015. EPA
reiterates that the Agency determined the Louisiana VRE standard is
broader in scope than the federal regulations and, accordingly, did not
propose to authorize the State of Louisiana for the VRE standard.
C. Final Action
Based on the comments received in response to the proposed
authorization of the State of Louisiana hazardous waste program, EPA's
responses to the comments, and consideration of the administrative
record, EPA is granting final authorization of the state's program,
except for the VRE and other state provisions which are broader in
scope than federal rules and remain unaffected by the vacaturs ordered
by the United States Court of Appeals for the District of Columbia
Circuit, on July 7, 2017, as modified on March 6, 2018. EPA retains its
authority under RCRA sections 3007, 3008, 3013 and 7003 which include,
among others, authority to: (1) Take enforcement actions regardless of
whether the state has taken its own action, (2) enforce RCRA
requirements and suspend or revoke permits; and (3) perform
inspections, and require monitoring, tests, analyses or reports.
D. What is codification and is the EPA codifying Louisiana'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 CFR. We do this by referencing the authorized State
rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272
subpart T for this authorization of Louisiana's program changes until a
later date. In this authorization application, the EPA is not codifying
the rules documented in this Federal Register notice.
E. Administrative Requirements
This final authorization revises Louisiana's authorized hazardous
waste management program pursuant to RCRA section 3006 and imposes no
requirements other than those currently imposed by state law. For
further information on how this authorization complies with applicable
executive orders and statutory provisions, please see the proposed
rulemaking published in the Federal Register (83 FR 45061, September 5,
2018).
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: December 18, 2018.
Anne Idsal,
Regional Administrator, Region 6.
[FR Doc. 2018-27794 Filed 12-21-18; 8:45 am]
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