[Federal Register Volume 86, Number 42 (Friday, March 5, 2021)]
[Proposed Rules]
[Pages 12895-12898]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-04586]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[EPA-R09-RCRA-2019-0491; FRL-10019-33-Region 9]


California: Authorization of State Hazardous Waste Management 
Program Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule; correction.

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SUMMARY: The Environmental Protection Agency (EPA) approved revisions 
to California's federally authorized hazardous waste program by 
publishing proposed and final rules in the Federal Register on October 
18, 2019 and January 14, 2020, respectively. The notice for the 
proposed rule inadvertently and unintentionally left out citations for 
approving the State's authority to adopt additional waste streams as 
universal wastes in the State Analogues to the Federal Program table. 
In addition, the scope of the State program that is considered 
``broader in scope'' than the federal program was mis-designated. We 
are proposing to correct these and related errors. EPA seeks public 
comment prior to taking final action.

DATES: Comments on this proposed correction must be received by April 
5, 2021.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R09-
RCRA-2019-0491, at https://www.regulations.gov. Follow the online 
instructions for submitting comments. Once submitted, comments cannot 
be edited or removed from Regulations.gov. EPA may publish any comment 
received to its public docket. Do not submit electronically any 
information you consider to be Confidential Business Information (CBI) 
or other information whose disclosure is restricted by statute. 
Multimedia submissions (audio, video, etc.) must be accompanied by a 
written comment. The written comment is considered the official comment 
and should include discussion of all points you wish to make. EPA will 
generally not consider comments or comment contents located outside of 
the primary submission (i.e., on the web, cloud, or other file sharing 
system). For additional submission methods, the full EPA public comment 
policy, information about CBI or multimedia submissions, and general 
guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT: Laurie Amaro, EPA Region 9, 75 
Hawthorne St., San Francisco, CA 94105. By phone: (415) 972-3364 or by 
email at [email protected].

SUPPLEMENTARY INFORMATION:

A. Why are corrections to the revised state program authorization 
necessary?

    States that have received final authorization from EPA under the 
Resource Conservation and Recovery Act (RCRA) Sec.  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. EPA's Federal Register notices regarding 
proposed and final authorization of revisions to state hazardous waste 
management programs provide the public with an opportunity to comment 
and also offer details with respect to the scope of the revised program 
authorizations on which both the general public and the regulated 
community may rely. Where these notices omit critical information or 
fail to clearly delineate the scope of authorized program revisions, 
corrections may be necessary and/or appropriate.

B. What corrections is EPA making to this rule?

    After proposing updates to California's authorized hazardous waste 
program on October 18, 2019 (80 FR 55871), EPA authorized changes to 
California's hazardous waste program on January 14, 2020 (85 FR 2038). 
EPA is now proposing to correct the updated authorization by clarifying 
that: (1) California is authorized to add federally-regulated hazardous 
waste streams to its universal waste program and the requirements that 
California establishes to manage such added waste streams are federally 
enforceable, whether they are added to California's universal waste 
program prior to or after EPA's authorization of the State's universal 
waste program; (2) State universal waste requirements that apply to 
non-RCRA wastes designated by California as ``hazardous waste,'' also 
known as ``non-RCRA hazardous waste,'' are beyond the scope of the 
federal program and are not being authorized; and, similarly, (3) other 
wastes that are sometimes federally-regulated hazardous waste and 
sometimes non-RCRA hazardous waste under California law, are part of 
the federally authorized program, but only insofar as these materials 
constitute federally-regulated hazardous waste. If these corrections 
are

[[Page 12896]]

finalized, these changes to the scope of California's authorized 
universal hazardous waste program would become effective.

C. What happens if EPA receives comments that oppose this proposed 
action?

    EPA will consider all comments received during the comment period 
and address them in a final rule. You may not have another opportunity 
to comment. If you want to comment on the corrections proposed here, 
you must do so at this time.

D. What has California previously been authorized for?

    California initially received final authorization for the state 
hazardous waste management program on July 23, 1992 (57 FR 32726), 
effective August 1, 1992. EPA granted final authorization for changes 
to California's program on the following dates: September 26, 2001 (66 
FR 49118), effective September 26, 2001 and October 7, 2011 (76 FR 
62303), effective October 7, 2011 and January 14, 2020 (85 FR 2038), 
effective January 14, 2020.

E. What changes is EPA proposing to authorize with this action?

    EPA proposes to correct and clarify the terms of the January 14, 
2020 authorization of California's hazardous waste program with respect 
to universal waste.

1. Proposed Changes to the State Analogues to the Federal Program Table

    EPA is recreating in this proposal the State Analogues to the 
Federal Program table that was published in the proposed authorization 
update Federal Register notice at 84 FR 55872 (October 18, 2019). This 
table is a helpful tool in tracking the elements of the authorized 
State hazardous waste program.
    As an initial matter, EPA is adding citations in the table to 
reflect the Agency's proposed authorization of California's authority 
to add waste streams to the State's universal waste program at Title 22 
of the California Code of Regulations (CCR) 66260.22 and 66260.23, the 
federal analogues of which are 40 CFR 260.20(a) and 260.23(a) through 
(d), respectively. Authorization of these provisions--which were 
inadvertently omitted from the proposed and final rules authorizing 
California universal waste program--is critical to EPA's ability to 
enforce State universal waste program requirements for federally-
regulated hazardous wastes that have already been or are added to 
California's universal waste program in the future. If these proposed 
corrections to authorize 22 CCR 66260.22 and 66260.23 are finalized, 
EPA will be empowered to enforce California's universal waste 
requirements for federally regulated hazardous waste that California 
has already added or adds to its universal waste program pursuant to 
these requirements in the future.
    Similarly, EPA is adding a footnote to the updated State Analogues 
to the Federal Program table to clarify the implications of the 
authorization of the State's universal waste program on a waste stream 
that the State already identified as a universal waste before the 
universal waste authorization update was effective, i.e., aerosol cans. 
This footnote clarifies that, while EPA has more recently taken action 
to identify aerosol cans as universal waste (citing 84 FR 67202, 
December 9, 2019, effective February 7, 2020), California's previous 
reliance on 22 CCR 66260.22 and 66260.23 to add such wastes, which are 
proposed to be authorized in accordance with this correction, would be 
considered retroactive. Thus, if these corrections are approved, 
California's universal waste requirements for aerosol cans would be 
federally enforceable. The Agency believes that these State 
requirements would have been included in California's universal waste 
authorization update application, but for the fact that the federal 
aerosol can universal waste rule was not in effect at the time of the 
State's July 10, 2019 submittal of its application. Because the Agency 
is correcting the recent authorization update and is now proposing 
approval of California's analogous provisions for adding new universal 
waste streams under 40 CFR 260.20 and 260.23, and because aerosol cans 
were previously added to California's universal waste program in 
accordance with its analogues to these provisions, the Agency maintains 
that the clarifying footnote in this proposal is both helpful and 
appropriate.
    The corrections proposed in this rule, and described above, would 
require modifications to the State Analogues to the Federal Program 
table published on October 18, 2019 (80 FR 55871), as follows:

                 State Analogues to the Federal Program
------------------------------------------------------------------------
                                                        Analogous State
                                                           Authority
     Description of Federal                           California Code of
   requirement (checklist, if      Federal Register    Regulations (CCR)
           applicable)               date and page    Title 22, Division
                                                      4.5 and Health and
                                                          Safety Code
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40 Code of Federal Regulations    60 FR 25492, May    22 CCR 66260.22,
 (CFR) 260.20(a) and 260.23(a)     11, 1995.           adopted 2003,
 through (d) (Checklist 142 E).                        amended March 15,
                                                       2003.
                                                      22 CCR 66260.23,
                                                       adopted 2003,
                                                       amended February
                                                       4, 2009.
40 (CFR) part 273, subparts A     60 FR 25492, May    22 CCR 66273,
 through G--Standards for          11, 1995.           October 22, 2018.
 Universal Waste \a\.             63 FR 71225,        Health & Safety
Excluding 273.33(a)(3)(iii) and    December 24, 1998.  Code 25201.16,
 273.33 (b)(1) through (4)        64 FR 36466, July    October 3, 2001.
 (Checklists 142 A, B, D, E,       6, 1999.
 176, 181, 209, 215) \b\.         70 FR 45508, Aug.
                                   5, 2005.
                                  71 FR 40254, July
                                   14, 2006 \c\.
------------------------------------------------------------------------
\a\ Because several definitions in the state universal waste regulations
  do not have federal counterparts, the state cited additional federal
  regulations at 40 CFR 260.1, 260.10, 261.4, 262.81, 264.142 and 270.2
  in support of its application for authorization of the State's
  universal waste program.
\b\ Although Checklist 214 is mentioned in the State Attorney General's
  Statement, EPA is not including it here because the typographical and
  spelling corrections made in this checklist are not relevant to the
  State's regulatory language.
\c\ Adding Aerosol Cans to Universal Waste (84 FR 67202, December 9,
  2019, effective February 7, 2020) is not included here because it was
  not in effect at the time of the State's application. In addition, we
  are approving the State's analogous provisions for adding waste
  streams under 40 CFR 260.20 and 260.23, thus the state may add
  additional waste streams that meet the conditions outlined in 40 CFR
  273.81. As a result, California's inclusion of aerosol cans in its
  universal waste program is also proposed to be authorized. Unlike the
  authorization of most of RCRA hazardous waste management requirements,
  the authorization of 22 CCR 66260.22(a) and 66260.23(a) through (d)
  means that any federally regulated hazardous waste added to
  California's universal waste program pursuant to these requirements
  are automatically authorized, regardless of when California adds them.


[[Page 12897]]

2. Proposed Changes to the List of State Provisions Deemed ``Broader in 
Scope''

    This notice also proposes to correct that part of EPA's California 
universal waste authorization update that mistakenly identified 
California's regulation of aerosol cans and other California-listed 
universal wastes as broader in scope than the federal program. EPA 
proposes to revise the list of California requirements beyond the scope 
of the federal program by deleting the following paragraph from the 
list of State requirements that are broader in scope than the federal 
program (section G from the October 18, 2019 proposal):

    California-only universal wastes. California has added the 
following non-RCRA waste streams to its universal waste program: 
Aerosol cans, cathode ray tubes (CRTs), CRT glass and electronic 
devices.

    The inclusion of this language in this section of the 2019 proposal 
was an inadvertent error. These materials were all previously 
identified by California as universal hazardous waste in accordance 
with 22 CCR 66260.22 and 66260.23 and, except for aerosol cans, were 
all included in California's authorization update application. As a 
result, similar to aerosol cans, California's regulation of CRTs, CRT 
glass and electronic devices should be considered within the scope of 
the authorized California universal waste program.
    The Agency is also proposing to correct the list of requirements 
that are beyond the scope of the federal program to clarify that non-
RCRA wastes included in the California universal waste program are 
broader in scope than the federal program. Thus, where wastes may 
sometimes be federally regulated (when, for example, they exhibit a 
characteristic for hazardous waste) but at other times are not 
federally regulated (where they do not exhibit a characteristic), 
California is authorized for that part of its universal waste program 
that covers the federally-regulated portion of the waste stream, but 
not for that portion of the State program that covers ``non-RCRA 
hazardous waste'' (i.e., non-federally regulated hazardous waste that 
California regulates as hazardous waste). For example, electronic waste 
(e-waste) may sometimes constitute a RCRA hazardous waste, but is 
always considered a ``non-RCRA hazardous waste'' under California law. 
EPA is proposing to correct its authorization of California's universal 
waste program by identifying the non-federally regulated portion of 
such a universal waste stream as broader in scope than the federal 
program.
    Thus, EPA proposes to add the following language to its analysis of 
the parts of the California universal waste program that are broader in 
scope than the federal program:

    Non-RCRA wastes. California regulates as hazardous waste some 
wastes not regulated by EPA under RCRA. These are referred to as 
``non-RCRA hazardous waste.'' Any non-RCRA hazardous wastes that a 
state regulates as a hazardous waste are generally considered beyond 
the scope of the federal program (broader-in-scope). To the extent 
that California has included non-RCRA hazardous wastes in the 
State's universal waste program, regulation of those non-RCRA 
hazardous wastes as universal waste would be broader in scope than 
the federal program.

I. How does this action affect Indian country (18 U.S.C. 1151) in 
California?

    California is not authorized to carry out its hazardous waste 
program in Indian country within the state. Therefore, this action has 
no effect on Indian country. EPA retains jurisdiction over Indian 
country and will continue to implement and administer the federal RCRA 
program on these lands.

K. Statutory and Executive Order Reviews

    The Office of Management and Budget (OMB) has exempted this action 
(RCRA state authorization) from the requirements of Executive Order 
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 proposes corrections to the authorization of 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 proposes correction of the authorization of 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). As explained above, this proposed 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 proposed 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 corrects the Federal Register notice in which EPA authorized 
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 proposed 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 concern 
environmental health or safety risks that EPA has reason to believe may 
disproportionally affect children. This proposed correction 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), the 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 the 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 do not apply. See 15 U.S.C. 272 note, sec. 
12(d)(3), Public Law 104-113, 110 Stat. 783 (Mar. 7, 1996) (exempting 
compliance with the NTTAA's requirement to use VCS if compliance is 
``inconsistent with applicable law''). As required by section 3 of 
Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this 
proposed correction to its rule, the EPA has taken the necessary steps 
to eliminate drafting errors and ambiguity, minimize potential 
litigation, and provide a clear legal standard for affected conduct. 
The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 
1988) by examining the takings implications of the proposed correction 
to 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 proposed correction to 
the rule authorizing California's universal waste program 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, February 16, 1994)

[[Page 12898]]

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 proposed correction to the California universal waste 
authorization rule authorizes pre-existing state rules which are at 
least equivalent to, and no less stringent than existing federal 
requirements, and impose 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. The 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 of the final rule correction 
in the Federal Register. A major rule cannot take effect until 60 days 
after it is published in the Federal Register. This proposed correction 
is not a ``major rule'' as defined by 5 U.S.C. 804(2).

    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, and 6974(b).

    Dated: February 26, 2021.
Deborah Jordan,
Acting Regional Administrator, Region IX.
[FR Doc. 2021-04586 Filed 3-4-21; 8:45 am]
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