[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

[[Page 66144]]

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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