[Federal Register Volume 65, Number 91 (Wednesday, May 10, 2000)]
[Rules and Regulations]
[Pages 29973-29980]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-11426]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[FRL-6600-4]
West Virginia: Final Authorization of State Hazardous Waste
Management Program Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Immediate final rule.
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SUMMARY: West Virginia has applied to EPA for Final authorization of
the revision to its hazardous waste program under the Resource
Conservation and Recovery Act (RCRA). The revision covers statutory and
regulatory changes to the State's authorized hazardous waste program,
including the adoption of the Federal hazardous regulations, as amended
through June 30, 1997, and the Federal final rules published in the
Federal Register on December 8, 1997, May 26, 1998, June 8, 1998, and
on June 19, 1998 with certain exceptions described in section H in the
Supplementary Information section of this document. EPA has determined
that its hazardous waste program revisions satisfy all of the
requirements necessary to qualify for Final authorization, and is
authorizing the state program revision through this immediate final
action. EPA is publishing this rule without prior proposal because the
Agency views this as a noncontroversial action and does not anticipate
adverse comments. However, in the proposed rules section of this
Federal Register, EPA is publishing a separate document that will serve
as a proposal to authorize the revision should the Agency receive
adverse comment. If EPA receives comments that oppose this action or
portion(s) thereof, we will publish a document in the Federal Register
withdrawing this rule or portion(s) thereof before it takes effect and
a separate document in the proposed rules section of this Federal
Register will serve as a proposal to authorize the changes. Unless EPA
receives adverse written comments during the review and comment period,
the decision to authorize West Virginia's hazardous waste program
revision will take effect as provided below.
DATES: This Final authorization for West Virginia will become effective
without further notice on July 10, 2000, unless EPA receives adverse
comments by June 9, 2000. Once again if EPA should receive such
comments on its decision, the Agency will publish a timely withdrawal
informing the public that this rule will not take effect.
ADDRESSES: Send written comments to Sharon McCauley, Mailcode 3WC21,
RCRA State Programs Branch, U.S. EPA Region III, 1650 Arch Street,
Philadelphia, PA 19103, Phone number: (215) 814-3376. EPA must receive
your comments by June 9, 2000. Copies of the West Virginia program
revision application and the materials which EPA used in evaluating the
revision are available for inspection and copying from 8 a.m. to 4:30
p.m., Monday through Friday at the following addresses: West Virginia
Division of Environmental Protection, Office of Waste Management, 1356
Hansford Street, Charleston, WV 25301-1401, Phone number: 304-558-4253
and EPA Region III, Library, 2nd Floor, 1650 Arch Street, Philadelphia,
PA 19103, Phone number: (215) 814-5254.
FOR FURTHER INFORMATION CONTACT: Sharon McCauley, Mailcode 3WC21, RCRA
State Programs Branch, U.S. EPA Region III, 1650 Arch Street,
Philadelphia, PA 19103, Phone number: (215) 814-3376.
SUPPLEMENTARY INFORMATION:
A. Why Are Revisions to State Programs Necessary?
RCRA, as amended by the Hazardous and Solid Waste Amendments of
1984 (HSWA), provides for authorization of State hazardous waste
programs under Subtitle C. Under RCRA section 3006, EPA may authorize a
State to administer and enforce the RCRA hazardous waste
[[Page 29974]]
program. See also 40 CFR part 271. In fact, Congress designed RCRA so
that the entire Subtitle C program would eventually be administered by
the States in lieu of the Federal Government. This is because the
States are closer to, and more familiar with, the regulated community
and therefore are in a better position to administer the programs and
respond to local needs effectively.
After receiving authorization, the State administers the program in
lieu of the Federal government, although EPA retains enforcement
authority under RCRA sections 3008, 3013, and 7003. Authorized States
must revise their programs when EPA promulgates ``new'' Federal
Standards that are more stringent or broader in scope than existing
Federal Standards. States are not required to modify their programs
when ``new'' Federal changes are less stringent than the existing
Federal program or when changes reduce the scope of the existing
Federal program. These changes are optional and are noted as such in
the Federal Register (FR) documents in which the new Federal Standards
are promulgated.
States which have received Final authorization for EPA under
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 hazardous waste program. As the Federal hazardous
waste program changes, the States must revise their programs and apply
for authorization of the revisions. Revisions to State hazardous waste
programs may be necessary when Federal or State statutory or regulatory
authority is modified or when certain other changes occur. Most
commonly, States must revise 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.
B. What Decisions Have We Made In this Rule?
EPA concludes that West Virginia's application for authorization of
its program revisions meets all applicable statutory and regulatory
requirements established by RCRA. Accordingly, EPA grants West Virginia
Final authorization to operate its hazardous waste program as revised.
West Virginia now has responsibility for permitting treatment, storage,
and disposal facilities within its borders and for carrying out the
aspects of the RCRA program described in its revised program
application, subject to the limitations of HSWA. West Virginia also has
primary enforcement responsibilities, although EPA retains the right to
conduct inspections under section 3007 of RCRA, and to take enforcement
actions under sections 3008, 3013 and 7003 of RCRA.
C. What is the Effect of Today's Authorization Decision?
The effect of this decision is that a facility in West Virginia
subject to RCRA will now have to comply with the authorized State
requirements instead of the equivalent federal requirements in order to
comply with RCRA. West Virginia has enforcement responsibilities under
its state hazardous waste program for violations of such program, but
EPA retains its authority under RCRA sections 3007, 3008, 3013, and
7003, which include, among others, authority to:
Do inspections, and require monitoring, tests, analyses or
reports.
Enforce RCRA requirements and suspend or revoke permits.
Take enforcement actions regardless of whether the State
has taken its own actions.
This action does not impose additional requirements on the
regulated community because the regulations for which West Virginia is
being authorized by today's action are already effective, and are not
changed by today's action.
D. Why Wasn't There a Proposed Rule Before Today's Rule?
EPA is authorizing the State's changes through this immediate final
action and is publishing this rule without a prior proposal to
authorize the changes because EPA believes it is not controversial and
expects no comments that oppose this action. EPA is providing an
opportunity for public comment now. In the proposed rules section of
today's Federal Register EPA is publishing a separate document that
proposes to authorize the State changes. If EPA receives comments which
oppose this authorization or portion(s) thereof, that document will
serve as a proposal to authorize such changes.
E. What Happens if EPA Receives Comments That Oppose This Action?
If EPA receives comments that oppose this authorization decision or
portion(s) thereof, we will withdraw this authorization decision, or
those portion(s) for which EPA received comments opposing its decision,
by publishing a document in the Federal Register. We will address all
public comments in a subsequent final action based on the proposed
rule.
If EPA receives comments that oppose only the authorization of a
particular change to the State hazardous waste program, we may withdraw
only that part of today's authorization rule. The authorization of the
program changes that are not opposed by any comments may become
effective on July 10, 2000. The Federal Register withdrawal document
will specify which part of the authorization will become effective, and
which part is being withdrawn.
You should send written comments to Sharon McCauley, Mailcode
3WC21, RCRA State Programs Branch, U.S. EPA Region III, 1650 Arch
Street, Philadelphia, PA 19103, Phone number: (215) 814-3376. We must
receive your comments by June 8, 2000. You may not have an opportunity
to comment again. If you want to comment on this action you must do so
at this time.
F. What Has West Virginia Previously Been Authorized For?
West Virginia initially received Interim authorization, Phase I and
Phase II, Components A and B on March 28, 1984. Effective May 29, 1986
(51 FR 17739), West Virginia received Final authorization to implement
its base hazardous waste management program. Since receiving Final
authorization, West Virginia has restructured its hazardous waste
management program and revised its statutes and regulations. West
Virginia's Attorney General's Statement, dated April 18, 1986, which
was a component of the State's original Final authorization, cited the
West Virginia Code, Chapter 20, Article 5E, as the State Hazardous
Waste Management Act (HWMA). The West Virginia HWMA, Chapter 20 Article
5E, was originally written to give the primary implementation authority
for the State's hazardous waste program (HWP) to the West Virginia
Department of Natural Resources (WVDNR). Therefore, from 1981 until
1992, the WVDNR was the lead agency assigned HWP responsibilities. The
State government, however, underwent a major reorganization in 1992 and
the West Virginia Division of Environmental Protection (WVDEP) was
formed. On July 1, 1992, Executive Order No. 8-92 signed by Governor
Gaston Caperton transferred all sections of the Office of Waste
Management from the WVDNR to the WVDEP. Subsequently, during the 1994
State Legislative Session, the Environmental Protection Reorganization
Bill was passed, officially transferring all environmental statutes
formerly enforced by the WVDNR to the WVDEP. In July 1994, the West
Virginia Legislature enacted into law Article 18 of Chapter 22 of the
West Virginia Code (W. Va. Code) which replaced Article 5E of Chapter
20 of the West Virginia as the State Hazardous
[[Page 29975]]
Waste Management Act (HWMA). The WVDEP was originally under the
Department of Labor, Commerce and Environmental Resources. This
Department was abolished by the Legislature in 1994, and the agencies
were reorganized, with the WVDEP being placed under the Bureau of
Environment. The Director of WVDEP also is the Commissioner of the
Bureau of Environment and answers directly to the Governor.
The Office of Waste Management (OWM) is the office within WVDEP
that is primarily responsible for regulation of hazardous waste
management within the State. In 1997, OWM was restructured and an
additional agency, the Office of Environmental Remediation, was created
to regulate brownfields and voluntary clean-up sites. Additionally,
within the WVDEP, the Office of Air Quality (OAQ) regulates hazardous
waste air emissions; and outside of the WVDEP, two additional agencies,
the Division of Highways (DOH) and the Public Service Commission (PSC),
regulate aspects of hazardous waste transportation. Within the OWM,
regulatory authority over hazardous waste is assigned to Compliance
Assurance and Emergency Response (CAER) and the Hazardous Waste
Management Section (HWMS). All aspects of hazardous waste management
including compliance monitoring, enforcement and permitting are handled
by these two sections, with the exception of air permits, which are
handled by the OAQ. The OWM's Compliance Assurance and Emergency
Response is the lead agency for communication between the State and the
EPA, although HWMS and OAQ communicate with EPA on specific matters.
CAER works with the Office of Legal Services (OLS) within DEP on
matters such as the review of proposed rules and regulations and civil
enforcement actions. West Virginia Code section 22-1-6(d)(7) (1996
Cumulative Supplement) authorized the Director of WVDEP to ``employ in-
house counsel to perform all legal services for the director and
division, including, but not limited to, representing the director, any
chief, the division or any office thereof in any administrative
proceedings or in any proceeding in state or federal court.''
The State Legislature has made numerous amendments to the
regulations promulgated under the State's Hazardous Waste Management
Act in order to remain consistent with, and equivalent to, the Federal
regulations promulgated under RCRA Subtitle C. Specifically, West
Virginia has revised the format of its hazardous waste regulations to
one of adoption and incorporation of the full text of the Federal
regulatory language, with modifications made as necessary, to
incorporation of the Federal regulations by reference. Incorporation by
reference is authorized by W. Va. Code section 22-1-3(c) which states
``if the director determines that the rule should be the same in
substance as a counterpart regulation, then to the greatest degree
practical, such proposed rule shall incorporate by reference the
counterpart federal regulation.''
West Virginia submitted, on an annual basis, several draft
regulations to EPA. The Agency reviewed each set of draft regulations
and submitted comments to West Virginia. On January 13, 2000, West
Virginia submitted a final complete program revision application,
seeking authorization for the restructuring of its hazardous waste
program, as well as authorization of its additional program revisions,
in accordance with 40 CFR 271.21. EPA Region III worked closely with
West Virginia to develop the authorization package; therefore, EPA's
comments relative to West Virginia's legal authority to carry out the
Federally-delegated programs, the scope of and coverage of activities
regulated, State procedures, including the criteria for permit reviews,
public participation and enforcement capabilities, were addressed
before the submission of the final application by the State. The State
also solicited public comments on its draft regulations. The EPA
reviewed West Virginia's application, and now makes an immediate final
decision, subject to receipt of adverse written comments, that West
Virginia's hazardous waste program revision satisfies all of the
requirements necessary to qualify for Final authorization.
Consequently, EPA intends to grant West Virginia Final authorization
for the program modifications contained in the program revision
application.
G. What Revisions Are We Authorizing With Today's Action?
West Virginia's program revision application includes State
regulatory changes that are equivalent to the Federal regulations
published in the July 1, 1997 version of Title 40 of the Code of
Federal Regulations, parts 124, 260 through 266, 268, 270, 273 and 279,
plus the Federal requirements for ``Availability of Information,'' as
addressed in RCRA section 3006(f), and the final rules published in the
Federal Register on December 8, 1997 (62 FR 64636), May 26, 1998 (63 FR
28556), June 8, 1998 (63 FR 31266) and June 19, 1998 (63 FR 33782).
West Virginia is today seeking authority to administer the Federal
requirements that are listed in the chart below. This chart also lists
the State analogs that are being recognized as no less stringent than
to the appropriate Federal requirements. Unless otherwise stated, the
State's statutory references are to the West Virginia Code (W. Va.
Code), 1994 Cumulative Supplement, Chapter 22--Environmental Resources,
Article 1 (Division of Environmental Protection), Article 5 (Air
Pollution Control), and Article 18 (Hazardous Waste Management Act).
The regulatory references are to the following Legislative Rules: Title
33, Series 20, Code of State Regulations (33CSR20), ``Hazardous Waste
Management Rule'', effective July 1, 1999; 45CSR25, ``To Prevent and
Control Air Pollution From Hazardous Waste Treatment, Storage, or
Disposal Facilities,'' effective June 1, 1999; 157CSR7, ``Emergency
Rulemaking for the Transportation of Hazardous Wastes Upon Roads and
Highways,'' effective April 28, 1999; as well as the proposed rules for
``Transportation of Hazardous Waste Upon Roads and Highways'' submitted
to the State Legislative Review Committee on October 5, 1999; 150CSR11,
``Rules and Regulations Governing the Transportation of Hazardous Waste
By Rail,'' effective November 8, 1999; 46CSR12, ``Requirements
Governing Groundwater Standards,'' effective July 1, 1998; and 46CSR8,
``Rules on Requests for Information,'' effective February 18, 1996.
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Federal requirement 1 Analogous West Virginia authority
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Part 260--Hazardous Waste Management System: West Virginia Code (W. Va. Code) Secs. 22-18-3, 22-18-5(a), 22-
General, as of July 1, 1997. 18-6(a), 22-18-6(a)(12)(D), 22-18-23; Hazardous Waste Management
Regulations (HWMR) Secs. 33-20-1.1, 33-20-1.6, 33-20-2.1
(except 2.1.a.2 and a.3), 33-20-2.2, 33-20-2.3, 33-20-2.4, 33-20-
2.5, 45-25-1.5.a/Table 25-A (Item 22), 45-25-2, 45-25-3.1, 150-
11-1.5, 150-11-6, 150-11-7, 157-7-2.
[[Page 29976]]
Part 261--Identification and Listing of W. Va. Code Secs. 22-18-6(a)(2), 22-18-6(a)(12), 22-18-
Hazardous Waste, as of July 1, 1997. 6(a)(13)(C), 22-18-5(a), 22-18-6(a), 22-18-23; HWMR Secs. 33-20-
1.6, 33-20-2.3, 33-20-3.1, 33-20-3.2, 33-20-3.4, 33-20-4.2.b, 45-
25-1.5.a-Table 25-A (Item 20), 45-25-4.15, 45-25-6.1, 45-25-6.2,
150-11-1.5, 157-7-2.1.
Part 262--Standards Applicable to the W. Va. Code Secs. 22-18-6(a), 22-18-6(a)(3), 22-18-6(a)(12)(D),
Generators of Hazardous Wastes, as of July 22-18-6(a)(15), 22-18-6(a)(9), 22-18-7(a)-(c), 22-18-5(a), 22-18-
1, 1997. 23; HWMR Secs. 33-20-1.6, 33-20-4, 33-20-5.1, 33-20-5.2, 33-20-
5.3, 33-20-5.4, 45-25-1.5.a-Table 25-A (Item 21), 157-7-3.1.1.
Part 263--Standards Applicable to the W. Va. Code Secs. 22-18-5(a), 22-18-6(a)(9), 22-18-6(a)(12)(D),
Transporters of Hazardous Wastes, as of July 22-18-6(a)(15), 22-18-7(a)-(c), 22-18-23, 22-18-2(b)(2); HWMR
1, 1997. Secs. 33-20-1.6, 33-20-4, 33-20-6.1, 33-20-6.2, 150-11-1.1, 150-
11-1.6, 150-11-1.7, 150-11-1.8, 150-11-1.10, 150-11-1.11, 150-11-
1.13.1 & 1.13.2, 150-11-2.1.1, 150-11-2.1.2, 150-11-2.2 through
2.8, 150-11-3.1 through 3.4, 150-11-5.1 through 5.5, 157-7-1.1,
157-7-1.6, 157-7-2.7, 157-7-3.1 through 3.5, 157-7-4.1, 157-7-
4.2, 157-7-4.3, 157-7-5.1, 157-7-5.3, 157-7-5.4, 157-7-6.1
through 6.5.
Part 264--Standards for Owners and Operators W. Va. Code Secs. 22-18-5(a)&(c), 22-12-4, 22-18-6(a), 22-18-
of Hazardous Waste Treatment, Storage, and 6(a)(4), 22-18-6(a)(12)-(15), 22-18-7(e), 22-18-23, 22-18-25(1),
Disposal Facilities, as of July 1, 1997. 22-5-1, 22B-3-4; HWMR Secs. 33-20-1.6, 33-20-1.6/Table 25-A
(Item 10), 33-20-4, 33-20-7.1, 33-20-7.2, 33-20-7.4, 33-20-7.5,
33-20-7.6, 33-20-7.7, 33-20-7.8, 33-20-12, 45-25-1.1.a & b, 45-
25-3.2, 45-25-3.2/Table 25-A (Items 1, 4, 6, 8, 10), 45-25-4.1,
45-25-4.2, 45-25-4.3, 45-25-4.4, 45-25-4.5/Table 25-A (Item 10),
45-25-4.6/Table 25-A (Item 10), 45-25-4.7, 45-25-4.8, 45-25-4.9,
45-25-4.10, 45-25-4.11, 45-25-4.12, 45-25-4.15.
Part 265--Interim Status Standards for Owners W. Va. Code Secs. 22-18-11, 22-18-5(a), 22-18-23, 22-18-6(a)(4);
and Operators of Hazardous Waste Treatment, HWMR Secs. 33-20-1.6, 33-20-8.1 through 8.6, 45-25-1.1.a & b,
Storage, and Disposal Facilities, as of July 45-25-3.2.d, 45-25-3.2/Table 25-A (Items 1, 6, 8, 10, 12), 45-25-
1, 1997. 4.1, 45-25-4.2, 45-25-4.3, 45-25-4.4, 45-25-4.5, 45-25-4.6, 45-
25-4.7, 45-25-4.9, 45-25-4.10, 45-25-4.11, 45-25-4.15.
Part 266--Standards for the Management of W. Va. Code Secs. 22-18-5(a)&(c), 22-18-6(a), 22-18-6(a)(12),
Specific Hazardous Wastes and Specific Types (13) & (15), 22-18-23, 22-5-1; HWMR Secs. 33-20-1.6, 33-20-9,
of Hazardous Waste Management Facilities, as 45-25-1.1.a & b, 45-25-3.2/Table 25-A (Item 13), 150-11-1.1, 150-
of July 1, 1997. 11-1.5, 150-11-10.1, 150-11-10.2 through 10.4, 150-11-10.5, 157-
7-1.1, 157-7-1.6, 157-7-5.1.
Part 268--Land Disposal Restrictions, as of W. Va. Code Secs. 22-18-5(a), 22-18-6(a)(12)(A), 22-18-
July 1, 1997. 6(a)(12)(B); 22-18-6(a)(12)(D), 22-18-23, 22-18-6(a)(2); HWMR
Secs. 33-20-1.6, 33-20-10.1 through 10.4.
Part 270--The Hazardous Waste Permit Program, W. Va. Code Secs. 22-18-8, 22-18-6(a)(4)(G), 22-18-6(a)(5), 22-
as of July 1, 1997. 18-6(a)(8), 22-18-6(a)(11), 22-18-6(a)(13)(A),(B),&(C), 22-18-
10, 22-18-11, 22-18-5(a), 22-18-23, 22-18-12; HWMR Secs. 33-20-
1.6, 33-20-11.1, 33-20-11.2, 33-20-11.3, 33-20-11.19, 33-20-
11.20, 33-20-11.21, 33-20-11.22, 45-25-2, 45-25-3.2/Table 25-A
(Items 2, 3, 5, 7, 9, 11, 14, 15, 18, 19), 45-25-4.13, 45-25-
4.14, 45-25-5.15, 45-25-5.16.
Part 124--Permit Procedures, as of July 1, W. Va. Code Secs. 22-18-8, 22-18-6(a)(5), 22-18-6(a)(8), 22-18-
1997. 10, 22-18-23; HWMR Secs. 33-20-11.8.a-f, 33-20-11.5, 33-20-
11.6, 33-20-11.7, 33-20-11.9 (except 11.9.d), 33-20-11.10, 33-20-
11.11, 33-20-11.12, 33-20-11.13, 33-20-11.14, 33-20-11.15, 33-20-
11.16, 33-20-11.18.a, 33-20-11.18.b (except 11.18.b.7), 33-20-
11.18.d, 45-25-5.4.a-f, 45-25-5.1, 45-25-5.2, 45-25-5.3, 45-25-
5.5 (except 5.5.d), 45-25-5.6, 45-25-5.7, 45-25-5.8, 45-25-5.9,
45-25-5.10, 45-25-5.11, 45-25-5.12, 45-25-5.13, 45-25-5.14.a, 45-
25-5.14.b, 45-25-5.14.d.
Part 273--Standards for Universal Waste W. Va. Code Secs. 22-18-5(a) and Sec. 22-18-23; HWMR Secs. 33-
Management, as of July 1, 1997. 20-1.6, 33-20-2.5.d, 33-20-13.1, 33-20-13.4 through 13.8, 150-11-
1.1, 150-11-8.1 through 8.7, 157-7-1.1, 157-7-1.6, 157-7-5.1.
Part 279--Standards for the Management of W. Va. Code Secs. 22-18-6(a)(14), 22-18-6(a)(15), 22-18-23; HWMR
Used Oil, as of July 1, 1997. Secs. 33-20-1.6, 33-20-14.1, 33-20-14.2, 33-20-14.3, 45-25-3.2/
Table 25-A (Item 16 &17), 150-11-1.1, 150-11-1.12, 150-11-9.1,
150-11-9.2, 150-11-9.3 through 9.9, 157-7-1.1, 157-7-1.6, 157-7-
5.1.
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Non-HSWA Cluster I
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Availability of Information (AI) (RCRA W. Va. Code Sec. 22-18-12; The West Virginia Freedom of
3006(f) Checklist). Information Act, W. Va. Code (1994 Supplement) Chapter 29B, Sec.
29B-1-1 et seq.; HWMR Secs. 33-20-11.19, 46-8-1 through 46-8-
11.
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HSWA Cluster I
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Sharing of Information With the Agency for W. Va. Code Secs. 22-1-6(c), 22-18-12; HWMR Sec. 33-20-11.19.
Toxic Substances and Disease Registry (SI)
(RCRA Sec. 3019(b)).
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RCRA Cluster VIII
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Organic Air Emission Standards for Tanks, W. Va. Code Secs. 22-1-3(c), Sec. 22-5-1, 22-18-6(a), 22-18-
Surface Impoundments, and Containers, 6(a)(13)(A)&(B); 22-18-23; HWMR Secs. 33-20-1.6, 33-20-7.2, 33-
December 8, 1997 (62 FR 64636). (Revision 20-7.8, 33-20-8.1, 33-20-8.6, 33-20-11.1, 45-25-1.1.a, & b, 45-
Checklist 163). 25-1.5.a, 45-25-1.5.c, 45-25-3.2/Table 25-A (Items 6, 8, 10,
11).
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[[Page 29977]]
Land Disposal Restrictions Phase IV-- W. Va. Code Secs. 22-18-6(a), 22-18-6(a)(12)(A), 22-18-
Treatment Standards for Metal Wastes and 6(a)(12)(B), 22-18-6(a)(12)(D), 22-18-23; HWMR Secs. 33-20-1.6,
Mineral Processing Wastes; Mineral 33-20-3.1, 33-20-3.5, 33-20-10.1, 33-20-10.6.
Processing Secondary Metals and Bevill
Exclusion Issues; Treatment Standards for
Hazardous Soils, and Exclusion of Recycled
Wood Preserving Wastewaters, May 26, 1998
(63 FR 28556), as amended on June 8, 1998
(63 FR 31266). (Revision Checklists 167A-F).
Hazardous Waste Combustors Revised Standards, W. Va. Code Secs. 22-18-6(a), 22-18-6(a)(5), 22-18-23; HWMR
June 19, 1998 (63 FR 33782). (Revision Secs. 33-20-3.6, 33-20-11.9.d, 45-25-5.5.d, 45-25-6.3.
Checklist 168).
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1 Federal Regulations as Published in the 40 CFR, as of July 1, 1997 (Base Program through RCRA Cluster VIII).
In today's action, EPA is authorizing West Virginia's program
revisions based in part on emergency rules adopted by the West Virginia
Division of Highways. Also in today's action, EPA is authorizing rules
that are expected to be adopted by the West Virginia Legislature by
March 30, 2000 which will replace the above-referenced emergency rules.
These legislatively-adopted rules will be identical to the emergency
rules, with the exception that the current incorporation by reference
date of the Federal regulations will be updated from July 1, 1997 to
July 1, 1998, and the current incorporation by reference date of the
West Virginia Office of Waste Management's rules will be updated from
July 1, 1998 to July 1, 1999, which is only a ministerial change
without any legal implication for the purpose of these rules. EPA's
authorization of these legislative rules will take effect on the date
West Virginia's legislative rules take effect, which is likely to be on
or before July 1, 2000--before the expiration of the emergency rules.
Due to an administrative oversight, the West Virginia Division of
Highways did not submit final regulatory changes to the 1999 session of
the West Virginia Legislature for approval, after the initial
legislative review of draft regulations. In an effort to rectify this
situation, the West Virginia Division of Highways adopted emergency
rules on April 28, 1999 to address necessary regulatory revisions.
These regulatory revisions were necessary to conform to updated EPA
regulations and regulations of companion state agencies involved in the
regulation of hazardous waste. These emergency rules (1) update
obsolete regulatory and statutory references, along with new agency
names, addresses and telephone numbers, (2) add provisions to require
transporters to give a copy of the manifest to a U.S. Customs official
at the point where waste departs from the United States, and (3) in
accordance with EPA regulations, relax manifesting requirements for
military munitions, universal wastes and used oil to be consistent with
federal Department of Transportation rules. The Division of Highways'
emergency rules are in effect only for 15 months (i.e., until July 28,
2000) or until rules adopted by the Legislature replace them, whichever
occurs first.
EPA does not typically authorize states based in part on emergency
rules because of their temporary nature. However, EPA is confident that
the West Virginia Legislature will approve the conforming legislative
rules that the Division of Highways will submit for approval in the
upcoming legislative session because: (1) in preparation for the prior
session of the Legislature, a legislative review committee already
reviewed and commented on an initial draft of the regulations; (2) the
Legislature has already approved substantively similar regulations for
three other co-regulating authorities in West Virginia; and (3) the
legislative review committee has already concurred on the regulations
to be submitted for legislative approval in the spring of 2000.
EPA intends to authorize, at this time, both the Division of
Highways' emergency rules and the legislative rules that will replace
them. This eliminates the need for West Virginia to apply for, and for
EPA to approve, a formal program revision for a perfunctory procedure
which makes the Division of Highways' emergency rules permanent. Also,
by authorizing the emergency and the legislative rules in one action
rather than in two separate actions, it will be clearer to the public
that both these aspects of the West Virginia hazardous waste program
are now Federally authorized.
H. Where Are the Revised State Rules Different From the Federal
Rules?
The West Virginia hazardous waste program contains several
provisions which are more stringent than is required by the RCRA
program. The more stringent provisions are being recognized as a part
of the Federally-authorized program and include the following:
1. At HWMR section 33-20-2.5, West Virginia is more stringent
because the State has additional requirements for persons who have
petitioned and received approval from EPA to include additional wastes
as universal wastes.
2. West Virginia's provision at HWMR section 33-20-3.1.a is more
stringent in that there are additional requirements to satisfy in order
to qualify for an exemption as an operator of a wastewater treatment
facility receiving mixtures of wastes.
3. At HWMR section 33-20-3.2, West Virginia excepts 40 CFR
261.5(f)(3)(iv)&(v) and 261.5(g)(3)(iv) and (v) from incorporation by
reference and subjects conditionally exempt small quantity generators
(CESQGs) to the notification requirements at HWMR section 33-20-4. West
Virginia is more stringent because unlike the Federal provisions at 40
CFR 261.5(f)(3)(iv)&(v) and 261.5(g)(3)(iv)&(v), the State does not
allow CESQGs to deliver hazardous wastes to facilities that are
permitted, licensed or registered to manage municipal solid waste or
non-municipal non-hazardous waste. The State is also more stringent by
subjecting CESQGs to the notification requirements located in HWMR
section 33-20-4.
4. At HWMR section 33-20-4.2.b, West Virginia subjects persons
exempted from the Federal notification requirements as specified at 40
CFR 261.6(b) to the State's notification requirements.
5. At HWMR section 33-20-5.3 and 5.4, West Virginia has adopted the
requirements addressed by 40 CFR part 262, subparts E and H, and has
correctly left the implementation authority with EPA for the non-
delegable hazardous waste import and export requirements. West Virginia
is more stringent in that at sections 33-20-5.3 and 5.4, the State
requires that copies of all documentation, manifests, exception
reports, annual reports or records, inter alia, submitted to EPA must
also be submitted to the Chief of the Office of
[[Page 29978]]
Waste Management within the same timeframes as specified in 40 CFR part
262, subparts E and H.
6. At HWMR section 33-20-7.4, West Virginia makes it clear that the
notification requirements at 40 CFR 264.12(a)(1)&(2) are retained by
EPA; however, the State requires that identical notice be sent to the
Chief of the Office of Waste Management. This makes the State more
stringent.
7. At HWMR section 33-20-8.3, West Virginia excepts the provisions
of 40 CFR 265.12(a) from its incorporation by reference; thus, the
provisions are retained by EPA. The State requires that identical
notice be sent to the Chief of the Office of Waste Management, thus
making the State more stringent.
8. At HWMR sections 150-11-5.3.1 & .2 and 157-7-6.3.1 & .2, West
Virginia has more stringent notification requirements than 40 CFR
263.30(c)(1). Also, West Virginia has more stringent reporting
requirements at sections 157-7-6.4.1 & .2 than found at 40 CFR
263.30(c)(2).
9. At HWMR section 33-20-13.6, West Virginia excepts 40 CFR 273.20,
273.40, and 273.56 from the substitution of terms in Subdivision 1.6.a.
By doing so, EPA remains the regulatory agency for exports. The State
is more stringent in that persons subject to the provisions of 40 CFR
273.20, 273.40, and 273.56 must file copies of all records submitted to
EPA with West Virginia's Chief of the Office of Waste Management.
The State's regulations include a number of provisions that are not
part of the State's program being authorized by today's action. Such
provisions include the following:
1. West Virginia is not seeking authorization for the Federal
delisting requirements at 40 CFR 260.22 [Revision Checklist 17B (50 FR
28702-28755, July 15, 1985), as amended (54 FR 27114, June 27, 1989)].
However, at section 33-20-2.4, the State requires that persons desiring
to exclude a waste at a particular facility from the lists set forth at
40 CFR part 261 may petition the Chief of the Office of Waste
Management for such an exclusion after having received approval from
the Administrator of the Environmental Protection Agency. At section
33-20-2.4.a through 33-20-2.4.c, the State has additional requirements
for persons who have petitioned and received approval from EPA to
exclude a waste at a particular facility. At section 33-20-2.5, the
State also has additional requirements for persons who have petitioned
and received approval from EPA to include additional wastes as
universal wastes. The State is planning to apply for this provision in
subsequent authorization revision applications to be submitted on an
annual basis, as necessary.
2. West Virginia is not seeking authority over the Federal
corrective action program under HSWA as addressed by Revision Checklist
17L (50 FR 28702-28755, July 15, 1985), Revision Checklist 44A (52 FR
45788-45799, December 1, 1987), Revision Checklist 44B (52 FR 45788-
45799, December 1, 1987), Revision Checklist 44C (52 FR 45788-45799,
December 1, 1987), and Revision Checklist 121 (58 FR 8658-8685,
February 16, 1993). EPA will continue to administer this part of the
program. The State is planning to apply for this provision in
subsequent authorization revision applications to be submitted on an
annual basis, as necessary.
3. The provisions in 40 CFR part 262, subpart H were added by the
final rule addressed by Revision Checklist 152 (61 FR 16920-16316,
April 12, 1996). West Virginia has incorporated the 40 CFR part 262,
subpart H provisions into its regulations; however, the State has
excepted these requirements from the substitution of terms at section
33-20-1.6.a; because, those provisions that are not delegable to States
remain the purview of EPA. West Virginia is not seeking authorization
for the items in this checklist.
4. The West Virginia provisions at W. Va. Code section 22-18-
6(a)(11), HWMR sections 33-20-11.4 and 45-25-7, addressing permit fees,
are broader in scope than the Federal program.
5. In addition to pesticides, lead acid batteries, and thermostats
included, at HWMR sections 33-20-2.1.a.2, 33-20-2.1.a.3, 33-20-3.3, 33-
20-7.3, 33-20-8.2, 33-20-10.2, 33-20-11.2, 33-20-13.2 , 33-20-13.4 and
33-20-13.5, West Virginia also regulates mercury containing lamps as a
universal waste, subject to the requirements of 40 CFR part 273, which
the State incorporates by reference. The final rule of May 11, 1995 (60
FR 25492) permits States to add other hazardous wastes to their
universal waste program. However, West Virginia is being authorized for
only the three wastes streams included in the Federal program. The
State is not being authorized for its requirements for mercury
containing lamps. The State is planning to apply for this provision in
subsequent authorization revision applications to be submitted on an
annual basis, as necessary.
6. At W. Va. Code sections 22-18-25(2) and 22-18-25(3), West
Virginia has authority that is analogous to RCRA section 3004(t)
addressing direct cause of action against insurers. The Federal
requirement is not applicable to States. West Virginia's law equivalent
to RCRA section 3004(t) operates separately from the Federal law. In
this situation, the West Virginia law which provides for a direct cause
of action against insurers creates a parallel cause of action viable in
State courts, but the cause of action does not limit the availability
of the Federal action.
7. West Virginia is not seeking authorization for the Office of Air
Quality provision at HWMR section 45-25-4.12 which requires owners and
operators of hazardous waste treatment, storage and disposal facilities
to use best available control technology (BACT) to limit the discharge
of hazardous waste constituents to the atmosphere.
8. West Virginia's definition of solid waste at W. Va. Code section
22-18-3(16) is the same as the Federal definition at RCRA section
1004(27). W. Va. Code section 22-18-6(a)(2) provides the State with the
authority to establish criteria for identifying the characteristics of
hazardous waste and listing particular hazardous wastes which are
subject to the provisions of the State's Hazardous Waste Management
Act. However, West Virginia is not seeking authorization for the
regulation of radioactive mixed wastes. The State is planning to apply
for this provision in subsequent authorization revision applications to
be submitted on an annual basis, as necessary.
Unless EPA receives comments opposing this action by June 9, 2000
and publishes a Federal Register document withdrawing the immediate
final rule or portions thereof, this Final authorization approval will
become effective without further notice on July 10, 2000.
I. Who Handles Permits After This Authorization Takes Effect?
EPA shall administer any RCRA hazardous waste permits, or portions
of permits, that contain conditions based on the Federal provisions for
which the State is applying for authorization and which were issued by
EPA prior to the effective date of this authorization. EPA will suspend
issuance of any further permits under the provisions for which the
State is being authorized on the effective date of this authorization.
EPA will also transfer any pending permit applications and pertinent
file information to the State within thirty (30) days of the effective
date of this authorization.
Upon authorization of the State program for any additional portions
of HSWA, EPA will suspend issuance of Federal permits for hazardous
waste treatment, storage, and disposal
[[Page 29979]]
facilities mandated by HSWA in the State, in those areas for which the
State is receiving authorization. If EPA promulgates standards for
additional processes or regulations mandated by HSWA not covered by the
State's authorized program, EPA will process and enforce RCRA permits
in the State in those new areas until the State receives final
authorization of equivalent State standards. At such time that the
State program is approved in the new areas, EPA will suspend issuance
of Federal permits issued at the request of the permittee pursuant to
40 CFR 124.5 and 271.8.
EPA will be responsible for enforcing the terms and conditions of
the Federal portion of the permits until they expire or are terminated
in accordance with 40 CFR 124.5 and 271.8.
The State and EPA will jointly administer implementation of those
HSWA provisions for which the State has not received authorization
until such time as it receives authorization from EPA to implement the
remaining HSWA provisions in lieu of EPA.
J. How Does Today's Action Affect Indian Country (18 U.S.C. 115) in
West Virginia?
West Virginia is not seeking authorization to operate the program
on Indian lands, since there are no Federally-recognized Indian Lands
in the State.
K. What Is Codification and Is EPA Codifying West Virginia'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. EPA uses 40 CFR part 272
for codification of the decision to authorize West Virginia's program
and for incorporation by reference of those provisions of its statutes
and regulations that EPA will enforce under sections 3008, 3013 and
7003 of RCRA. EPA reserves amendment of 40 CFR part 272, subpart XX,
for such future use.
L. Regulatory Analysis and Notices
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
EPA has determined that section 202 and 205 requirements do not
apply to today's action because this rule does not contain a Federal
mandate that may result in annual expenditures of $100 million or more
for State, local, and/or tribal governments in the aggregate, or the
private sector. Costs to State, local and/or tribal governments already
exist under the West Virginia program, and today's action does not
impose any additional obligations on regulated entities. In fact, EPA's
approval of State programs generally may reduce, not increase,
compliance costs for the private sector. Further, as it applies to the
State, this action does not impose a Federal intergovernmental mandate
because UMRA does not apply to duties arising from participation in a
voluntary federal program.
The requirements of section 203 of UMRA also do not apply to
today's action because this rule contains no regulatory requirements
that might significantly or uniquely affect small governments. Although
small governments may be hazardous waste generators, transporters, or
own and/or operate TSDFs, they are already subject to the regulatory
requirements under the existing State laws that are being authorized by
EPA, and, thus, are not subject to any additional significant or unique
requirements by virtue of this program approval.
Certification Under the Regulatory Flexibility Act (RFA), as Amended by
the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA), 5 U.S.C. 601 et seq.
The RFA generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impacts of today's action on small
entities, small entity is defined as: (1) a small business as specified
in the Small Business Administration regulations; (2) a small
governmental jurisdiction that is a government of a city, county, town,
school district or special district with a population of less than
50,000; and (3) a small organization that is any not-for-profit
enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of this authorization on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This action
does not impose any new requirements on small entities because small
entities that are hazardous waste generators, transporters, or that own
and/or operate TSDF's are already subject to the regulatory
requirements under the State laws which EPA is now authorizing. This
action merely authorizes for the purpose of RCRA section 3006 those
existing State requirements.
Submission to Congress and the Comptroller General
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 rule and
other required information to the U.S. Senate, the U.S. House of
[[Page 29980]]
Representatives and the Comptroller General of the United States prior
to publication of the rule in today's Federal Register. This rule is
not a ``major rule'' as defined by 5 U.S.C. 804(2).
Compliance With Executive Order 12866
The Office of Management and Budget has exempted this rule from the
requirements of Executive Order 12866.
Compliance With Executive Order 13132 (Federalism)
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that 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.''
Under section 6 of Executive Order 13132, EPA may not issue a
regulation that has federalism implications, that imposes substantial
direct compliance costs, and that is not required by statute, unless
the Federal government provides the funds necessary to pay the direct
compliance costs incurred by State and local governments, or EPA
consults with State and local officials early in the process of
developing the proposed regulation. EPA also may not issue a regulation
that has federalism implications and that preempts State law unless the
Agency consults with State and local officials early in the process of
developing the proposed regulation.
This authorization does not have federalism implications. It will
not have a substantial direct effect on 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, because this rule affects only
one State. This action simply approves West Virginia's proposal to be
authorized for updated requirements of the hazardous waste program that
the State has voluntarily chosen to operate. Further, as a result of
this action, newly authorized provisions of the State's program now
apply in West Virginia in lieu of the equivalent Federal program
provisions implemented by EPA under HSWA. Affected parties are subject
only to those authorized State program provisions, as opposed to being
subject to both Federal and State regulatory requirements. Thus the
requirements of section 6 of the Executive Order do not apply.
Compliance With Executive Order 13045
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks,'' applies to any rule that: (1) the
Office of Management and Budget determines is ``economically
significant'' as defined under Executive Order 12866, and (2) concerns
an environmental health or safety risk that EPA has reason to believe
may have a disproportionate effect on children. If the regulatory
action meets both criteria, the Agency must evaluate the environmental
health or safety effects of the planned rule on children and explain
why the planned regulation is preferable to other potentially effective
and reasonably feasible alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it is not
an economically significant rule as defined by Executive Order 12866,
and because it does not concern an environmental health or safety risk
that may have a disproportionate effect on children.
Compliance With Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments, or EPA consults with those
governments. If EPA complies with the consulting option, Executive
Order 13084 requires EPA to provide to the Office of Management and
Budget, in a separately identified section of the preamble to the rule,
a description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected officials and other
representatives of Indian tribal governments ``to provide meaningful
and timely input in the development of regulatory policies on matters
that significantly or uniquely affect their communities.''
This rule is not subject to Executive Order 13084 because it does
not significantly or uniquely affect communities of Indian tribal
governments. West Virginia is not authorized to implement the RCRA
hazardous waste program in Indian country, since there are no
Federally-recognized Indian lands in the State.
Paperwork Reduction Act
Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., Federal
agencies must consider the paperwork burden imposed by any information
request contained in a proposed rule or a final rule. This rule will
not impose any information requirements upon the regulated community.
National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This action does not involve such technical standards. Therefore,
EPA did not consider the use of any voluntary consensus standards.
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).
Bradley M. Campbell,
Regional Administrator, Region III.
[FR Doc. 00-11426 Filed 5-9-00; 8:45 am]
BILLING CODE 6560-50-P