[Federal Register Volume 66, Number 187 (Wednesday, September 26, 2001)]
[Rules and Regulations]
[Pages 49118-49124]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-24066]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[FRL-7065-7]


California: Final Authorization of Revisions to State Hazardous 
Waste Management Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of final determination on application of California for 
Final Authorization of Revisions to State Hazardous Waste Management 
Program.

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SUMMARY: California has applied for final authorization of certain 
revisions to its hazardous waste program under the Resource 
Conservation and Recovery Act (RCRA). The Environmental Protection 
Agency (EPA) has reviewed California's application and has reached a 
final determination that the revisions to California's hazardous waste 
program satisfy all of the requirements necessary to qualify for final 
authorization. Thus, with respect to these revisions, EPA is granting 
final authorization to the State to operate its program subject to the 
limitations on its authority retained by EPA in accordance with the 
Hazardous and Solid Waste Amendments of 1984.

EFFECTIVE DATE: Final authorization for the revisions to California's 
hazardous waste management program shall be effective at 1 p.m. on 
September 26, 2001.

FOR FURTHER INFORMATION CONTACT: Rebecca Smith, WST-3, U.S. EPA Region 
9, 75 Hawthorne Street, San Francisco 94105-3901, (415) 744-2152.

SUPPLEMENTARY INFORMATION:

A. Why Are Revisions to State Programs Necessary?

    States which have received final authorization from EPA under RCRA 
Section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste 
program that is equivalent to, consistent with, and no less stringent 
than the Federal program. As the Federal program changes, states must 
change their programs and ask EPA to authorize the changes. Changes to 
state programs may be necessary when Federal or state statutory or 
regulatory authority is modified or when certain other changes occur. 
Most commonly, states must change their programs because of changes to 
EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 
260 through 266, 268, 270, 273 and 279.
    California initially received final authorization on July 23, 1992, 
effective August 1, 1992 (57 FR 32726), to implement the RCRA hazardous 
waste management program. This ``base program authorization'' 
authorized California's RCRA program based on California statutory and 
regulatory provisions enacted and adopted prior to December 20, 1991, 
the date of California's authorization application. On January 31, 
2000, California submitted a final complete program revision 
application, seeking authorization of their changes in accordance with 
40 CFR 271.21.

B. What Were the Comments and Responses to EPA's Proposal?

    On June 20, 2001, EPA published a tentative determination 
announcing its intent to grant California final authorization for the 
revisions to its base program. Further background on the tentative 
decision to grant authorization appears at Vol. 66, No. 119, June 20, 
2001 at pages 33037-33046.
    Along with the tentative determination, EPA announced the 
availability of the application for public comment. EPA received four 
sets of written comments during the public comment period. One of the 
four commenters submitted relatively lengthy comments regarding EPA's 
tentative determination (22 pages total). The other three commenters 
submitted relatively brief comments (1-2 pages total, each), which 
generally endorsed the comments submitted by the first commenter. The 
first commenter also submitted an 8 page supplement to its comments 
well after the close of the public comment period. These comments were 
received by EPA on September 4, 2001, although the public comment 
period closed on July 20, 2001. The significant issues raised by the 
commenters and EPA's responses are summarized below. EPA has included a 
response to the supplemental comments as well, (see Response to Comment 
#3, below).

[[Page 49119]]

    Comment #1: The commenters asserted that California's exclusion of 
secondary lead smelter furnaces from the boilers and industrial 
furnaces (BIFs) conditional exemption found in the Federal regulation 
at 40 CFR 266.100(d) (formerly 266.100(c)) is neither consistent with 
nor equivalent to the provisions of the Federal program. They further 
stated that excluding industrial furnaces from the conditional 
exemption afforded under the Federal BIF program and regulating such 
units as miscellaneous units under California's program is inconsistent 
with RCRA's goals. The commenters maintained that California failed to 
provide a rational basis for departing from the Federal-regulatory 
scheme in which air emissions from certain industrial furnaces are 
regulated under the Clean Air Act in lieu of RCRA and that California's 
exclusion of secondary lead smelters from the conditional exemption of 
Title 22 California Code of Regulations 66266.100(c) may lead to 
duplicative and inconsistent regulation of secondary lead smelters.
    Response to Comment #1: States may be authorized to administer a 
hazardous waste program unless EPA determines that: (1) The state 
program is not equivalent to the Federal RCRA program; (2) the state 
program is not consistent with the Federal or state programs applicable 
in other states; or (3) the state program does not provide adequate 
enforcement of compliance with RCRA. RCRA Section 3006(b), 42 U.S.C. 
6926(b).
    EPA's regulations provide specific factors to consider in 
determining whether a state program is consistent with the Federal 
program and other authorized state programs. 40 CFR 271.4. In general, 
a state program may be deemed inconsistent if it unreasonably restricts 
the free movement of hazardous waste across state borders, if it has no 
basis in human health or environmental protection and acts as a 
prohibition on the treatment, storage or disposal of hazardous waste, 
or if the state's manifest system does not meet the requirements of 40 
CFR Part 271. 40 CFR 271.4(a)-(c).
    Although state programs must be consistent with the Federal program 
and other authorized state programs, RCRA expressly allows state and 
local governments to adopt requirements that are more stringent than 
the Federal RCRA requirements. RCRA Section 3009, 42 U.S.C. 6929. EPA 
has also indicated that states are free to operate programs ``with a 
greater scope of coverage'' than the Federal program but that ``the 
additional coverage is not part of the Federally approved program.'' 40 
CFR 271.1(i)(2). In determining whether a state program that differs 
from the Federal program is broader in scope than the Federal program, 
as opposed to being more stringent, EPA will generally consider: (1) 
whether the imposition of the state requirement increases the size of 
the regulated community beyond that of the Federal program; and (2) 
whether the state's requirement has a direct counterpart in the Federal 
regulatory program. See, e.g., OSWER Directive No. 9541.1984(04), 
Determining Whether State Hazardous Waste Management Requirements are 
Broader in Scope or More Stringent than the Federal RCRA Program, May 
21, 1984.
    In June of 1997, California submitted its application for 
authorization of changes to its program relating to the burning of 
hazardous waste in BIFs. Title 22 of the California Code of Regulations 
(C.C.R.) at Sections 66266.100(c) and (f) tracked the Federal analogous 
provisions at 40 CFR 266.100(d) and (g), respectively. The Federal 
provisions conditionally exclude certain BIFs from regulation under 
RCRA. However, the State also added the following language to both 22 
C.C.R. Sections 66266.100(c) and (f): ``Additionally, industrial 
furnaces exempted by this subsection are subject to regulation as 
miscellaneous units.'' California also amended its definition of the 
term ``miscellaneous unit'' at 22 C.C.R. Section 66260.10 to conform 
that definition to the language it had added to 22 C.C.R. Sections 
66266.100(c) and (f).
    In June of 1997, the language in 22 C.C.R. Sections 66260.10, 
66266.100(c) and 66266.100(f) that differs from the Federal regulatory 
language was included in California's regulations on an emergency basis 
only. These provisions were not finally adopted on a permanent basis by 
the State until May of 1998. Neither the checklists nor the Attorney 
General's statement, which were submitted with California's application 
for authorization of revisions to its BIF program, identified the 
differences between the State and Federal regulatory language. EPA has 
now confirmed with the State that the inclusion of the different 
language in the regulations submitted with California's BIF revisions 
application was an unintentional oversight.
    However, even if California had sought authorization of the 
language in the provisions at 22 C.C.R. Sections 66260.10, 66266.100(c) 
and 66266.100(f) that differs from the Federal language, EPA has 
determined that the State's language increases the size of the universe 
of units which are required to have permits as miscellaneous units. 
Thus, these provisions make the State's permit program broader in scope 
than the Federal program in this respect. Since EPA does not authorize 
state requirements which are broader in scope than the Federal RCRA 
program, the language in these provisions that is different from the 
Federal program is not and will not be included in California's 
authorized hazardous waste program.
    For the purposes of today's rule, it is not necessary for EPA to 
opine on whether or not the subject State provisions are preempted by 
RCRA. Since EPA has determined that these provisions are broader in 
scope than the Federal program, EPA is not authorizing these 
provisions. Thus, the question of whether or not the State's regulation 
of the Federally conditionally exempt units is or is not consistent 
with RCRA or its policies is not relevant in the context of this 
decision to authorize certain other revisions to California's RCRA 
program. However, EPA does not regard California's statutory 
requirements that resource recovery facilities obtain hazardous waste 
facilities permits as fundamentally inconsistent with RCRA or its 
policies (see California Health and Safety Code Sections 25200 and 
25201). Regulation of emissions (or other releases) from hazardous 
waste recycling units is not inherently inconsistent with RCRA 
provisions or purposes. See, e.g., RCRA Section 3004 (q), commanding 
regulation of air emissions from some classes of hazardous waste 
recyclers. This lends further support to EPA's determination that the 
regulation by the State of conditionally exempt BIFs as miscellaneous 
units--albeit broader in scope than the Federal program--does not 
warrant a decision not to authorize the other California provisions 
which are being authorized today.
    Comment #2: The commenters asked EPA to ensure that it is reviewing 
the most recent version of the California BIF and miscellaneous unit 
regulations in assessing whether authorization should be granted to the 
State.
    Response to Comment #2: In reviewing California's application 
regarding revisions to its BIF program, EPA did not look to the most 
recent State provisions in effect at the time EPA promulgated its 
tentative decision to authorize those revisions. Rather, EPA looked to 
the requirements in effect on a non-emergency basis in the State as of 
the date that portion of California's application was submitted. In 
this case, EPA looked to the non-emergency regulations in effect as of 
June of 1997.
    In reviewing these requirements, EPA ensured that the State's 
requirements

[[Page 49120]]

continued to be in effect, but EPA is not authorizing any revisions or 
amendments to California's BIF requirements which may have gone into 
effect after the date of the submittal of the BIF portion of the 
application for authorization. Nor is EPA authorizing any BIF 
requirements which existed on an emergency basis only in June of 1997, 
even if such requirements were adopted at a later date on a permanent 
basis.
    Comment #3: One of the commenters asserted that California's 
regulations at 22 C.C.R. Sections 66261.24(a)(2)(A)(i) and (B)(i), 
which regulate as characteristic, toxic wastes certain inorganic and 
organic substances as persistent, bioaccumulative and toxic, are 
neither consistent with nor equivalent to the Federal program. The 
commenter argued that these provisions should not be authorized.
    Response to Comment #3: The regulations to which these comments are 
aimed were submitted as part of California's base program authorization 
application in December of 1991. As explained above, states are free to 
operate programs ``with a greater scope of coverage'' than the Federal 
program but ``the additional coverage is not part of the Federally 
approved program.'' 40 CFR 271.1(i)(2). Additionally, in determining 
whether a state program that differs from the Federal program is 
broader in scope than the Federal program, EPA will consider: (1) 
Whether the imposition of the state requirement increases the size of 
the regulated community beyond that of the Federal program; and (2) 
whether the state's requirement has a direct counterpart in the Federal 
regulatory program. See, e.g., OSWER Directive No. 9541.1984(04), 
Determining Whether State Hazardous Waste Management Requirements are 
Broader in Scope or More Stringent than the Federal RCRA Program, May 
21, 1984.
    Since 22 C.C.R. Sections 66261.24(a)(2)(A)(i) and (B)(i) do not 
have any direct Federal counterparts, and increase the size of the 
universe of regulated hazardous wastes, EPA, in making its base program 
authorization decision for the State of California's hazardous waste 
program, determined that these provisions were broader in scope than 
the Federal program. Thus, these provisions were not included in the 
scope of the authorized base program. The revisions to the base 
program, which are the subject of today's rule, do not affect that 
determination.
    Since EPA has not authorized the provisions which are the subject 
of this comment, the question of whether or not the State's regulation 
of such wastes is or is not consistent with RCRA or its policies is not 
relevant in the context of this decision to authorize certain other 
revisions to California's RCRA program. Even so, EPA does not regard 
California's regulation of these wastes as non-RCRA hazardous waste as 
fundamentally inconsistent with RCRA or its policies.

C. What Decisions Have We Made in This Rule?

    EPA has made the final determination that California's application 
for authorization of the subject revisions meets all of the statutory 
and regulatory requirements established by RCRA. Therefore, with 
respect to the revisions, we are granting California final 
authorization to operate its hazardous waste program as described in 
the revisions authorization application. California will continue to 
have responsibility for permitting Treatment, Storage, and Disposal 
Facilities (TSDFs) within its borders and for carrying out the aspects 
of the RCRA program described in its revised program application, 
subject to the limitations of the Hazardous and Solid Waste Amendments 
of 1984 (HSWA). New Federal requirements and prohibitions imposed by 
Federal regulations that EPA promulgates under the authority of HSWA 
take effect in authorized states before such states are authorized for 
the requirements. Thus, for revisions to the Federal program for which 
California has not yet sought authorization, EPA will continue to 
implement those HSWA requirements and prohibitions in California, 
including issuing permits, until the State is granted authorization to 
do so.

D. What Is the Effect of Today's Action?

    A facility in California subject to RCRA must comply with the 
authorized State requirements in lieu of the corresponding Federal 
requirements in order to comply with RCRA. Additionally, such persons 
must comply with any applicable Federally-issued requirements, such as, 
for example, HSWA regulations issued by EPA for which the State has not 
received authorization, and RCRA requirements that are not supplanted 
by authorized state-issued requirements. California continues to have 
enforcement responsibilities under its State law to pursue violations 
of its hazardous waste management program. EPA continues to have 
independent authority under RCRA Sections 3007, 3008, 3013, and 7003, 
which include, among others, the authority to:
     Do inspections, and require monitoring, tests, analyses or 
reports,
     Enforce RCRA requirements (including State-issued statutes 
and regulations that are authorized by EPA and any applicable 
Federally-issued statutes and regulations) and suspend or revoke 
permits, and
     Take enforcement actions regardless of whether the State 
has taken its own actions.
    This action approving the subject revisions does not impose 
additional requirements on the regulated community because the 
regulations for which California is being authorized are already 
effective under State law and are not changed by the act of 
authorization.
    EPA cannot delegate the Federal requirements at 40 CFR part 262, 
subparts E and H. Although California has adopted these requirements 
verbatim from the Federal regulations in Title 22 of the California 
Code of Regulations, Sections 66260-66262, EPA will continue to 
implement those requirements.

E. What Rules Are We Authorizing With Today's Action?

    California initially received final authorization on July 23, 1992, 
effective August 1, 1992 (57 FR 32726), to implement the RCRA hazardous 
waste management program. This ``base program authorization'' 
authorized California's RCRA program based on California statutory and 
regulatory provisions in effect as of December of 1990. On January 31, 
2000, California submitted a final complete program revision 
application, seeking authorization of their changes in accordance with 
40 CFR 271.21.
    California has applied for many of the Federal changes to the RCRA 
program since it was authorized for the base program. The earliest of 
these Federal changes goes back to 1989. However, there are several 
changes to the Federal program which have been made since California's 
base program was authorized for which California has not yet applied 
for authorization. The major areas of changes for which California has 
not yet applied for authorization are: the used oil regulations; 
consolidated liability requirements; military munitions; phases three 
and four of the land disposal restrictions; and universal waste.
    Since authorization of California's base program in 1992, 
California has submitted numerous packages to EPA relating to its 
efforts to seek authorization for updates to its program based on 
revisions to the Federal program. EPA has published a series of

[[Page 49121]]

checklists to aid California and the other states in such efforts, (see 
EPA's RCRA State Authorization web page at www.epa.gov/epaoswer/hazwaste/state/index.htm). Each checklist generally reflects changes 
made to the Federal regulations pursuant to a particular Federal 
Register notice. California's submittals have been grouped into general 
categories (e.g., Air Emissions Standards, Boilers and Industrial 
Furnaces, etc.). Each submittal may have reflected changes based on one 
or more Federal Register notices and would have thus referenced one or 
more corresponding checklists.
    What follows is a summary, for each general category identified by 
California in its submittals, of the specific subjects of changes to 
the Federal program for that category. Although the changes to the 
Federal program are identified in the summary, California did not 
necessarily make revisions to its program as a result of each Federal 
revision noted. For example, certain revisions to the Federal program 
may have resulted in less stringent regulation than that which 
previously existed. Since states may maintain programs which are more 
stringent than the Federal program, states have the option whether or 
not to adopt such revisions.

1. Changes California Identified as Relating to Air Emissions Standards

    We are granting California final authorization for all revisions 
that it has made to its program due to certain changes to the Federal 
program in the following areas: Organic air emission standards for 
process vents and equipment leaks; and organic air emissions standards 
for tanks, surface impoundments and containers.

2. Changes California Identified as Relating to the Toxicity 
Characteristic

    We are granting California final authorization for all revisions 
that it has made to its program due to certain changes to the Federal 
program in the following areas: Interim status standards for down-
gradient ground-water monitoring well locations; hydrocarbon recovery 
operations; chlorofluorocarbon refrigerants; the mining waste 
exclusion; the recycled coke by-product exclusion; the toxicity 
characteristic leaching procedure; the mixture and derived-from rules; 
the removal of strontium sulfide from the list of hazardous wastes; the 
adoption of an administrative stay for K069 listing (emission control 
dust/sludge from secondary lead smelting); the adoption of certain 
technical corrections to the 1990 toxicity characteristic rule; the 
listing of chlorinated toluene production waste (K149, K150, K151); the 
standards for treating liquids in landfills; the references which 
specify testing requirements and monitoring activities; the listing of 
hazardous constituents from the use of chlorophenolic formulations in 
wood surface protection; the reference relating to wood surface 
protection; the listing of beryllium powder (P015); and provisions to 
be met for excluding as a hazardous waste certain wastewaters from the 
production of carbamates and carbamoyl oximes (K157).

3. Changes California Identified as Relating to Corrective Action 
Management

    We are granting California final authorization for all revisions 
that it has made to its program due to certain changes to the Federal 
program in the following areas: Corrective action management units and 
temporary units.
    These changes include final authorization of California for the 
February 16, 1993 Corrective Action Management Unit (CAMU) rule. Since 
California is now authorized for the rule, the State will be eligible 
for interim authorization-by-rule for the proposed amendments to the 
CAMU rule, which also proposed the interim authorization-by-rule 
process (see August 22, 2000, 65 FR 51080, 51115). California will also 
be eligible for conditional authorization if that alternative is chosen 
by EPA in the final CAMU amendments rule.

4. Changes California Identified as Relating to Boilers and Industrial 
Furnaces

    We are granting California final authorization for all revisions 
that it has made to its program due to certain changes to the Federal 
program in the following areas: Burning of hazardous waste in boilers 
and industrial furnaces; an administrative stay for coke ovens; the 
recycled coke by-products exclusion; certain coke by-products listings; 
guidelines for air quality modeling and screening for boilers and 
industrial furnaces burning hazardous waste; the adoption of an 
administrative stay and interim standards for Bevill residues; and 
certain technical amendments to record keeping instructions.

5. Changes California Identified as Relating to Wood and Sludge

    We are granting California final authorization for all revisions 
that it has made to its program due to certain changes to the Federal 
program in the following areas: Wood preserving listings; and petroleum 
refinery primary and secondary oil/water/solids separation sludge 
listings.
    We also find that California did not need to adopt a Federal 
administrative stay for the requirement that existing drip pads be 
impermeable because the stay expired on October 30, 1992.

6. Changes California Identified as Relating to Liners and Leak 
Detection

    We are granting California final authorization for all revisions 
that it has made to its program due to certain changes to the Federal 
program in the following area: Liners and leak detection systems for 
hazardous waste land disposal units.

7. Changes California Identified as Relating to Recyclable Materials 
Used in a Manner Constituting Disposal

    We are granting California final authorization for all revisions 
that it has made to its program due to certain changes to the Federal 
program in the following area: The removal of the conditional exemption 
for certain slag residues.

8. Changes California Identified as Relating to Recovered Oil

    We are granting California final authorization for all revisions 
that it has made to its program due to certain changes to the Federal 
program in the following area: The recovered oil exclusion.

9. Changes California Identified as Relating to Delay of Closure

    We are granting California final authorization for all revisions 
that it has made to its program due to certain changes to the Federal 
program in the following area: The delay of closure period for 
hazardous waste management facilities.

10. Changes California Identified as Relating to Public Participation

    We are granting California final authorization for all revisions 
that it has made to its program due to certain changes to the Federal 
program in the following area: Expanded public participation.

11. Changes California Identified as Relating to Used Oil Filters

    We are granting California final authorization for all revisions 
that it has made to its program due to certain changes to the Federal 
program in the following area: The used oil filter exclusion.

[[Page 49122]]

12. Changes California Identified as Relating to Land Disposal 
Restrictions (LDR)

    We are granting California final authorization for all revisions 
that it has made to its program due to certain changes to the Federal 
program in the following areas: LDR third scheduled wastes; electric 
arc furnace dust (K061); LDRs for newly listed wastes and hazardous 
debris; LDRs for ignitable and corrosive characteristic wastes whose 
treatment standards were vacated; case-by-case capacity variances for 
hazardous debris; case-by-case capacity variances for lead-bearing 
hazardous materials; case-by-case capacity variances for hazardous 
soil; and universal treatment standards and treatment standards for 
organic characteristic wastes and newly listed wastes.

13. Changes California Identified as Relating to Exports

    We are granting California final authorization for all revisions 
that it has made to its program due to certain changes to the Federal 
program in the following area: The identification of the U.S. EPA 
office to which the notification of export activities and annual export 
reports must be sent. California has also adopted the Federal 
regulations implementing a graduated system of procedural and 
substantive controls for hazardous wastes as they move across national 
borders within the Organization for Economic Cooperation and 
Development (OECD) for recovery. The requirements for regulating 
exports, Subparts E and H of 40 CFR Part 262, will be administered by 
the U.S. EPA instead of California because the exercise of foreign 
relations and international commerce powers is delegated to the Federal 
government under the Constitution. California has adopted these export 
rules into Title 22 California Code of Regulations for the convenience 
of the regulated community.

14. Miscellaneous Changes

    We are granting California final authorization for all revisions 
that it has made to its program due to certain changes to the Federal 
program which removed certain legally obsolete rules.
    EPA published a table in its notice of its tentative decision to 
authorize the foregoing revisions to California's hazardous waste 
management program, which shows the Federal and analogous State 
provisions involved in this decision and the relevant corresponding 
checklists. See 66 FR 33037, at pages 33039-33044 (June 20, 2001).

F. Where Are the State Rules Different From the Federal Rules?

    State requirements that go beyond the scope of the Federal program 
are not part of the authorized program and EPA cannot enforce them. 
Although persons must comply with these requirements in accordance with 
California law, they are not RCRA requirements. EPA considers that the 
following State requirements, which pertain to the revisions involved 
in this decision, go beyond the scope of the Federal program.
    The following analysis differs in some ways from the areas which 
California identified as being broader in scope than the Federal 
program in its application.
    1. The definition of ``remediation waste'' at 22 C.C.R. Section 
66260.10 is broader in scope than the Federal definition at 40 CFR 
260.10 only to the extent California's definition includes hazardous 
substances which are neither ``hazardous wastes'' nor ``solid wastes.''
    2. 22 C.C.R. Section 66264.552(e)(4)(A)(2) is broader in scope than 
40 CFR 264.552(e)(4)(i)(B) only to the extent the California provision 
controls the escape of ``hazardous substances'' which are not 
``hazardous waste,'' ``hazardous constituents,'' ``leachate,'' 
``contaminated runoff'' or ``hazardous waste decomposition products.''
    3. California's program is broader in scope than the Federal 
program to the extent it regulates spent wood preserving solutions that 
have been used and are reclaimed and reused for their original intended 
purpose and wastewaters from the wood preserving process that have been 
reclaimed and are reused to treat wood. These materials are excluded 
from the Federal definition of solid waste by virtue of 40 CFR 
261.4(a)(9)(i) and (ii), respectively.
    4. HSC Section 25144(c) is broader in scope than 40 CFR 
261.4(a)(12) since the California provision exempts oil recovery 
process units and associated storage units from regulation, rather than 
exempting recovered oil from the definition of solid waste, which is 
what the Federal provision does. Thus, the State program is broader in 
scope than the Federal program to the extent California regulates 
recovered oil not contained in such recovery process units or 
associated storage units.
    5. HSC Section 25143.2(c)(1) was broader in scope than was former 
section 40 CFR 261.6(a)(3)(vi) (renumbered as 261.6(a)(3)(v) in 1995 
[60 FR 25492] \1\), which exempted from regulation petroleum coke 
produced from petroleum refinery hazardous waste containing oil 
produced by the same person who generated the waste unless the 
resulting coke product was characteristically hazardous. HSC Section 
25143.2(c)(1), which was part of the authorized program, was not 
amended to conform to the changes made to 40 CFR 261.6(a)(3)(vi) in 
1994. At that time, the Federal exemption was expanded to include 
petroleum coke produced by the same person who generated the petroleum 
hazardous waste containing oil, rather than being limited to petroleum 
coke produced at the same facility at which such wastes were generated. 
The State's exemption retains the ``at the same facility'' language 
and, to this extent, is broader than the Federal requirement.\2\
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    \1\ 40 CFR 261.6(a)(3)(v) was superceded by 261.4(a)(12) in 1998 
(63 FR 42110).
    \2\ The 1998 revision to 261.4(a)(12) changed the Federal 
requirement again to limit the exemption to materials which are 
inserted into the same petroleum refinery where they are generated 
or sent directly to another petroleum refinery. Thus the State's 
exemption remains narrower than the Federal exemption in this 
respect.
---------------------------------------------------------------------------

    6. California does not have the Federal exclusion found at 40 CFR 
261.4(b)(13), which excludes from the definition of hazardous waste 
non-terne plated used oil filters that are not mixed with hazardous 
wastes if those filters are gravity hot drained in accordance with 
specified procedures. To the extent California regulates such oil 
filters, its program is broader in scope than the Federal program.
    7. California has not adopted the Federal exclusion found at 40 CFR 
261.4(a)(10). This provision excludes from the definition of solid 
waste K060, K070, K087, K141, K142, K143, K145, K147, K148, and those 
coke by-product residues that are hazardous only because they exhibit 
the toxicity characteristic when, subsequent to generation, these 
wastes are recycled by being returned to coke ovens, to the tar 
recovery process as a feedstock to produce coal tar or mixed with coal 
tar. The Federal exclusion is conditioned on there being no land 
disposal of the waste from the point of generation to the point of 
recycling. Thus, the absence of this exemption makes the California 
program broader than the Federal program in this respect.
    8. California has not adopted the Federal provision at 40 CFR 
266.100(b)(3), which exempts from regulation the burning of wastes 
produced by conditionally exempt small quantity generators (see also 40 
CFR 261.5). Thus, California's program is broader in scope than the 
Federal program in this respect.
    9. California has not adopted the Federal provision at 40 CFR

[[Page 49123]]

266.100(b)(4), which excludes from regulation coke ovens if the only 
hazardous waste burned is K087, decanter tank tar sludge from coking 
operations. The Federal provision was a necessary corollary to EPA's 
removal of the coke and coal tar exemption (formerly 40 CFR 
261.6(a)(3)(vii)) due to the reclassification of coke and coal tar as 
products under 40 CFR 261.4(a)(10) in 1991. California had not adopted 
the exemption as part of the base program, nor did it adopt the 1991 
exemption at 40 CFR 261.4(a)(10). Thus, the California program is 
broader in scope than the Federal program to the extent California 
regulates coke ovens that solely burn K087.
    10. The California provision at 22 C.C.R. Section 66266.100(b)(3) 
excludes from regulation in BIFs those materials which are exempted 
from regulation at 22 C.C.R. Section 66261.4. This provision tracks the 
Federal provision at 40 CFR 266.100(b)(3), which excludes from 
regulation in BIFs those materials which are exempted from regulation 
at 40 CFR 261.4. The Federal provision at 40 CFR 261.4 includes more 
exemptions than the State provision at 22 C.C.R. Section 66266.4 and, 
therefore, California's BIF program is broader in scope than the 
Federal program in this respect.
    11. 40 CFR 261.4(a)(11) excludes from the definition of solid 
waste, non-wastewater splash condenser dross residue from the treatment 
of K061 in high temperature metals recovery units provided it is 
shipped in drums (if shipped) and is not land disposed before recovery. 
California has not adopted this exclusion and its program is thus 
broader in scope than the Federal program in this respect.
    12. California's program is broader in scope than the Federal 
program with respect to the regulation of secondary materials that are 
recycled back into secondary production processes from which they were 
generated. 40 CFR 261.2(e)(1)(iii) exempts such materials, so long as 
the materials are managed such that there is no placement on the land. 
HSC 25143.2(b)(3), as restricted by HSC Sections 25143.2(e) and 
25143.9, which is the State's analogue to 40 CFR 261.2(e)(1)(iii), 
excludes only recyclable materials that are returned to a primary 
process.
    13. The language contained in the provisions of 22 C.C.R. Sections 
66260.10, 66266.100(c) and 66266.100(f), which is discussed in the 
response to comments in Section B of this preamble, above, make certain 
units that are conditionally exempt from the Federal and State BIF 
regulations regulated as miscellaneous units under California 
regulations. To this extent, 22 C.C.R. Sections 66260.10, 66266.100(c) 
and 66266.100(f) are broader in scope than the Federal program and the 
corresponding Federal regulations at 40 CFR Sections 260.10, 266.100(d) 
\3\ and 266.100(g).\4\
---------------------------------------------------------------------------

    \3\ Formerly, 40 CFR 266.100(c).
    \4\ Formerly, 40 CFR 266.100(f).
---------------------------------------------------------------------------

G. Who Handles Permits After This Authorization Takes Effect?

    California will issue permits for all the provisions for which it 
is authorized and will administer the permits it issues. All permits 
issued by EPA prior to California being authorized for these revisions 
will continue in force until the effective date of the State's issuance 
or denial of a State RCRA permit, or the permit otherwise expires or is 
revoked. California will administer any RCRA hazardous waste permits or 
portions of permits which EPA issued prior to the effective date of 
this authorization until such time as California has issued a 
corresponding State permit. EPA will not issue any more new permits or 
new portions of permits for provisions for which California is 
authorized after the effective date of this authorization. EPA will 
retain responsibility to issue permits for HSWA requirements for which 
California is not yet authorized.

H. How Does Today's Action Affect Indian Country (18 U.S.C. 115) in 
California?

    California is not authorized to carry out its hazardous waste 
program in Indian country within the State. A map of Indian Country in 
California can be found on the world wide web at www.epa.gov/region09/cross_pr/indian/maps.html. A list of Indian Tribes in California can be 
found on the web at www.doi.gov/bureau-indian-affairs; it is complete 
except for two newly listed tribes, Graton and Lower Lake Rancherias. 
Therefore, this action has no effect on the Indian country so 
described, including Graton and Lower Lake Rancherias. EPA will 
continue to implement and administer the RCRA program in Indian country 
within the State.

I. What Is Codification and Is EPA Codifying California'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 does this by 
referencing the authorized State rules in 40 CFR part 272. EPA is 
reserving the amendment of 40 CFR part 272, subpart F for codification 
of California's program at a later date.

J. Administrative Requirements

    The Office of Management and Budget has exempted this action from 
the requirements of Executive Order 12866 (58 FR 51735, October 4, 
1993), and therefore this action is not subject to review by OMB. 
Furthermore, this rule is not subject to Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use'' (66 FR 28355, May 22, 2001) because it 
is not a significant regulatory action under Executive Order 12866. 
This action authorizes State requirements for the purpose of RCRA 3006 
and imposes no additional requirements beyond those imposed by State 
law. Accordingly, I certify that this action will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because 
this action authorizes pre-existing requirements under State law and 
does not impose any additional enforceable duty beyond that required by 
State law, it does not contain any unfunded mandate or significantly or 
uniquely affect small governments, as described in the Unfunded 
Mandates Reform Act of 1995 (Pub. L. 104-4). For the same reason, this 
action does not have tribal implications within the meaning of 
Executive Order 13175 (65 FR 67249, November 6, 2000). It does not have 
substantial direct effects on tribal governments, on the relationship 
between the Federal government and the Indian tribes, or on the 
distribution of power and responsibilities between the Federal 
government and Indian tribes, as specified in Executive Order 13175. 
This action will not have substantial direct effects on the States, on 
the relationship between the national government and the States, or on 
the distribution of power and responsibilities among the various levels 
of government, as specified in Executive Order 13132 (64 FR 43255, 
August 10, 1999), because it merely authorizes State requirements as 
part of the State RCRA hazardous waste program without altering the 
relationship or the distribution of power and responsibilities 
established by RCRA. This action also is not subject to Executive Order 
13045 (62 FR 19885, April 23, 1997), because it is not economically 
significant and it does not make decisions based on environmental 
health or safety risks. This action does not include environmental 
justice related issues that require consideration under Executive Order 
12898 (59 FR 7629, February 16, 1994).

[[Page 49124]]

    Under RCRA 3006(b), EPA grants a state's application for 
authorization as long as the state meets the criteria required by RCRA. 
It would thus be inconsistent with applicable law for EPA, when it 
reviews a state authorization application, to require the use of any 
particular voluntary consensus standard in place of another standard 
that otherwise satisfies the requirements of RCRA. Thus, the 
requirements of section 12(d) of the National Technology Transfer and 
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required 
by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), 
in issuing this rule, EPA has taken the necessary steps to eliminate 
drafting errors and ambiguity, minimize potential litigation, and 
provide a clear legal standard for affected conduct. EPA has complied 
with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining 
the takings implications of this action 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 action will not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this document and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication in the Federal Register. A major rule cannot take effect 
until 60 days after it is published in the Federal Register. This 
action is not a major rule as defined by 5 U.S.C. 804(2). This action 
will be effective September 26, 2001.

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 record keeping requirements.

    Authority: This proposed 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: September 12, 2001.
Mike Schulz,
Acting Deputy Regional Administrator, Region 9.
[FR Doc. 01-24066 Filed 9-25-01; 8:45 am]
BILLING CODE 6560-50-P