[Federal Register Volume 67, Number 70 (Thursday, April 11, 2002)]
[Rules and Regulations]
[Pages 17636-17643]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-8533]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[FRL-7168-8]
Washington: Final Authorization of State Hazardous Waste
Management Program Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Washington applied to the United States Environmental
Protection Agency (EPA) for final authorization of changes to its
hazardous waste program under the Resource Conservation and Recovery
Act (RCRA). The EPA has reached a final determination that these
changes to the Washington hazardous waste program satisfy all
requirements needed 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 RCRA, including the
Hazardous and Solid Waste Amendments of 1984.
EFFECTIVE DATE: Final authorization for the revisions to Washington's
hazardous waste management program shall be effective at 1 p.m. on
April 11, 2002.
FOR FURTHER INFORMATION CONTACT: Nina Kocourek, U.S. EPA, Region 10,
Office of Waste and Chemicals Management, 1200 Sixth Avenue, Mail Stop
WCM-122, Seattle, Washington 98101, phone (206) 553-6502.
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 and consistent with the Federal program.
States are required to have enforcement authority which is adequate to
enforce compliance with the requirements of the hazardous waste
program. Under RCRA section 3009, States are not allowed to impose any
requirements which are 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 Title 40 of
the Code of Federal Regulations (CFR) parts 124, 260 through 266, 268,
270, 273 and 279.
Washington initially received final authorization on January 30,
1986, effective January 31, 1986 (51 FR 3782), to implement the State's
dangerous waste management program. EPA also granted authorization for
changes to Washington's program on September 22, 1987, effective on
November 23, 1987 (52 FR 35556); August 17, 1990, effective October 16,
1990 (55 FR 33695); November 4, 1994, effective November 4, 1994 (59 FR
55322); February 29, 1996, effective April 29, 1996 (61 FR 7736);
September 22, 1998, effective October 22, 1998 (63 FR 50531); and on
October 12, 1999, effective January 11, 2000 (64 FR 55142). On August
2, 2001, Washington submitted a final program revision application to
EPA in accordance with 40 CFR 271.21 seeking authorization of changes
to the State program. On January 15, 2002, EPA published its
preliminary decision announcing its intent to grant Washington final
authorization for revisions to its federally authorized hazardous waste
program. Further background on the tentative determination to grant
authorization appears at 67 FR 1931-1937 (January 15, 2002).
B. What Were the Comments and Responses to EPA's Proposal?
Along with the tentative determination in EPA's proposal, EPA also
announced the availability of the authorization revision application
for public comment. The public comment period ended on February 14,
2002. EPA received one written comment during the public comment
period. The significant issues raised by the commenter are summarized
and responded to below.
The commenter asserts that the Washington Commercial Fertilizer
Act, Chapter 15.54 RCW, acts to circumvent and knowingly violate the
Washington Dangerous Waste Regulations, WAC 173-303. EPA reviewed the
Washington Commercial Fertilizer Act, also known as the fertilizer
registration act, to determine the validity of the commenter's
assertion. Although implemented by the Washington Department of
Agriculture, the legislative intent of the fertilizer registration act,
as stated in RCW 15.54.265, is to ensure that all fertilizers in
Washington meet standards for allowable metals, that fertilizer
purchasers and users know about the contents of fertilizer products in
Washington, that the oversight authority of the Washington Department
of Ecology (Ecology) over waste-derived fertilizers be clarified, and
that better information be provided to the Washington public on
fertilizers, soils, and potential health effects. EPA found nothing in
the fertilizer registration act, per se, to circumvent or knowingly
violate the Washington Dangerous Waste regulations.
The fertilizer registration act, at RCW 15.54.270(34), defines
waste-derived fertilizers as commercial fertilizers derived in whole or
in part from solid waste as defined in chapter 70.95 or 70.105 RCW, or
rules adopted thereunder, excluding biosolids regulated under chapter
70.95J RCW or wastewaters regulated under chapter 90.48 RCW. Before the
Washington Department of Agriculture can register a waste-derived
fertilizer or micronutrient fertilizer, it must obtain written approval
from Ecology as provided by RCW 15.54.820. For waste-derived
fertilizers, Ecology must evaluate
[[Page 17637]]
whether the use of a proposed waste-derived fertilizer or micronutrient
fertilizer in Washington is consistent with the state solid waste
management act, chapter 70.95 RCW, the hazardous waste management act,
chapter 70.105 RCW, and RCRA. In performing this evaluation, Ecology
must apply the standards adopted by the Washington Department of
Agriculture at RCW 15.54.800, which are based on specific standards for
metals adapted from Canadian standards. If more stringent standards
apply under chapter 173-303 WAC for the same constituents, Ecology is
required to use the more stringent standards from the hazardous waste
regulations. RCW 15.54.820. This assessment for purposes of fertilizer
registration in the State of Washington does not preempt the
independently applicable regulations for hazardous waste management in
the State.
The commenter asserts that the fertilizer registration act defies
the RCRA mandate to ban open dumping of solid wastes on the land. EPA
regulations specifically consider the application of waste-derived
products on the land and such placement is not prohibited. Rather than
prohibiting its use, a waste-derived fertilizer, also known as a waste-
derived product, is required to meet the same treatment standards as if
the product was to be disposed in a landfill. EPA's regulations at 40
CFR part 266, subpart C, place controls on the management of hazardous
wastes before such wastes are made into a fertilizer. This use of
hazardous waste is a type of recycling which in EPA's regulations is
referred to as ``use constituting disposal.'' A fertilizer produced
from hazardous waste is an example of a use constituting disposal.
Consistent with section 1003 of RCRA, EPA encourages materials recovery
and properly conducted recycling and reuse as an integral component of
the RCRA cradle-to-grave waste management system. Rather than
prohibiting the use of waste-derived fertilizers, EPA promulgated
regulations to require that hazardous wastes that are going to be made
into fertilizers be managed in accordance with all applicable hazardous
waste management requirements until the wastes are made into a
fertilizer. Washington adopted these ``use constituting disposal''
rules, 40 CFR 266.20, 266.21 and 266.22, as WAC 173-303-505(1)(a) and
(b). The hazardous waste program in Washington is authorized for these
rules. Under the federal RCRA and state authorized rules, a generator
of a hazardous waste that is going to be made into a fertilizer is
required to comply with the RCRA generator requirements, including
manifesting off-site shipments of the wastes. The owners and operators
of facilities that store recyclable materials that are to be used in a
manner that constitutes disposal, but who are not themselves the
ultimate users of the materials, are regulated under all applicable
provisions of 40 CFR parts 264 and 265, 268 and parts 270 and 124 and
all corresponding federally authorized state analogs. A RCRA permit is
generally required for storage of these wastes by fertilizer
manufacturers.
Because the use of waste-derived products on the land is also a
type of land disposal, EPA requires that all waste-derived products
(except for K061 derived fertilizers\1\) meet the applicable LDR
treatment standards prior to the land disposal of such wastes. This
includes meeting the ``Phase IV'' (May 26, 1998, 63 FR 28556) treatment
standards. Under EPA's regulations, manufacturers of waste derived
fertilizers must provide notice and certify compliance with LDR
standards, 40 CFR 268.7, and notify the authorized agency (EPA or the
authorized state agency implementing the authorized hazardous waste
program) of each shipment of product made from recycled hazardous
waste. 40 CFR 268.7(b)(6).
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\1\ EPA has proposed to remove the regulatory provision which
currently exempts fertilizer made from K061 from having to meet
applicable LDR standards in EPA's proposed rule ``Requirements for
Zinc Fertilizers Made from Recycled Hazardous Secondary Materials,''
dated November 28, 2000. 65 FR 70958.
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The commenter asserts that the Washington authorized hazardous
waste program is not implementing the requirements of the RCRA
regulations at 40 CFR part 266, subpart C because Washington is not
implementing the Phase IV LDR regulations. Washington's authorized
hazardous waste program does not currently include the Phase IV LDR
standards. Today's final rule will authorize the Phase IV LDR standards
adopted by Washington in chapter 173-303 WAC. As a matter of state law,
Washington has been implementing its State Phase IV LDR standards since
the effective date of the State law. The Phase IV standards which EPA
promulgated as HSWA regulations are implemented directly by EPA in
States with authorized hazardous waste programs, such as Washington,
until the State regulations are authorized by EPA. For purposes of
federal RCRA, the LDR standards that must be complied with include the
Phase IV standards and include LDR treatment standards for all
constituents subject to treatment before disposal on the land.
The commenter asserts that Ecology is reviewing the use of waste-
derived fertilizers against the Phase III LDR standards rather than the
Phase IV standards. However, as was discussed earlier, in assessing
waste-derived fertilizers for purposes of fertilizer registration in
the State of Washington, Ecology is required to use the more stringent
standards that apply under chapter 173-303 WAC for the constituents
addressed by the standards adopted by the Washington Department of
Agriculture in RCW 15.54.800. For purposes of hazardous waste
management, the fertilizer registration act does not preempt the
applicability of the LDR standards, including the more stringent Phase
IV LDR standards.
The commenter asserts that the fertilizer registration act limits
Washington's review of waste-derived fertilizers to nine metals,
enhances the probability of dilution of hazardous waste by registering
the fertilizer as a whole product rather than looking at each
recyclable material, and fails to test total chromium or address total
metals. The fertilizer registration act requires that the Washington
Department of Agriculture obtain written approval from Ecology before
the Department of Agriculture can register a waste-derived fertilizer
or micronutrient fertilizer in Washington. (RCW 15.54.800). Ecology
assesses whether or not to provide written approval for registration to
the Department of Agriculture based on the screening criteria in the
fertilizer registration act and based on applicable hazardous waste
regulations. The Washington legislature clearly intended that the
regulation of waste-derived fertilizer be under the domain of Ecology
rather than the Department of Agriculture. Notwithstanding the nine-
metal screening criteria found in the fertilizer registration act, the
LDR regulations in the Washington Dangerous Waste regulations are
applicable independently of the fertilizer registration act. Under
current EPA regulations, manufacturers of fertilizers made from
recycled hazardous wastes are required to comply with applicable LDR
treatment standards for the hazardous wastes which they contain before
the fertilizer may be used (40 CFR 268.40) and a notice of each
shipment of each fertilizer product must be submitted to the authorized
agency (EPA before the State is authorized and the authorized State
afterwards) (40 CFR 268.7(b)(6)). These treatment standards must be met
for characteristic hazardous wastes even if the product does not
exhibit a
[[Page 17638]]
hazardous waste characteristic. The LDR standards set limits for
certain metals in hazardous wastes before the waste or waste product
can be applied to the land.
C. What Decisions Have We Made in This Rule?
EPA has made a final determination that Washington's application
for authorization of the revisions to the Washington authorized program
meets all of the statutory and regulatory requirements established by
RCRA. Therefore, with respect to the revisions, we are granting
Washington final authorization to operate its hazardous waste program
as described in the revision authorization application. Washington's
authorized program will be responsible for carrying out the aspects of
the RCRA program described in its revised program application, subject
to the limitations of RCRA, including the Hazardous and Solid Waste
Amendments of 1984 (HSWA). Regulatory revisions which are less
stringent than Federal program requirements and those regulatory
revisions which are broader in scope than Federal program requirements
are not part of this final authorization decision. Washington's
authorized program does not extend to Indian country, except that
Washington does have jurisdiction over non-trust lands within the 1873
Survey Area of the Puyallup Reservation as defined in the Settlement
Agreement between the Puyallup Tribe, Federal, State and local
governments dated August 27, 1988. Within the 1873 Survey Area of the
Puyallup Reservation, EPA retains jurisdiction and authority to
implement RCRA over Indian country and over trust lands, Indians and
Indian activities.
New Federal requirements and prohibitions imposed by Federal
regulations that EPA promulgates under the authority of HSWA are
implementable by EPA and take effect in States with authorized programs
before such programs are authorized for the requirements. Thus, EPA
will implement those HSWA requirements and prohibitions in Washington,
including issuing permits, until the State is granted authorization to
do so.
D. What Will Be the Effect of Today's Action?
A facility in Washington subject to RCRA must comply with the
authorized State program requirements and with any applicable
Federally-issued requirements, such as, for example, the federal HSWA
provisions for which the State is not authorized, and RCRA requirements
that are not supplanted by authorized State-issued requirements, in
order to comply with RCRA. Washington has enforcement responsibilities
under its State hazardous waste program for violations of its currently
authorized program and will have enforcement responsibilities for the
revisions which are the subject of this final rule. EPA continues to
have independent enforcement 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, including State program
requirements 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 final action approving these revisions will not impose
additional requirements on the regulated community because the
regulations for which Washington's program are being authorized are
already effective under State law.
E. What Rules Are We Authorizing With Today's Action?
EPA is granting final authorization for the revisions to
Washington's federally authorized program described in Washington's
final complete program revision application, submitted to EPA on August
2, 2001, and deemed complete by EPA on September 19, 2001. We have made
a final determination that Washington's hazardous waste program
revisions, as described in this rule, satisfy the requirements
necessary for final authorization. Regulatory revisions which are less
stringent than Federal program requirements and those regulatory
revisions which are broader in scope than Federal program requirements
are not authorized.
The following table (Table 1) identifies equivalent and more
stringent analogues to the Federal regulations for those regulatory
revisions Washington requested authorization for. All of the referenced
analogous state authorities were legally adopted and effective as of
June 10, 2000.
Table 1.--Equivalent and More Stringent Analogues to the Federal Regulations 1
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Analogous state authority
Checklist 4 Federal requirements Federal Register (WAC 173-303- * * *)
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17P \2\............................ Interim Status........ 50 FR 28702, 7/15/85.. 803(1), 803(2); 806(2)(a)
806(2)(b); 806(8);
803(2)(a), 803(2)(b);
810(11)(c), 810(11)(e);
805(1)(b), 805(1)(c),
805(8)(f)(i),
805(8)(f)(ii), 805(8)(g),
805(8)(h), 805(8)(i),
805(8)(j).
144................................ Removal of Legally 60 FR 33912, 06/29/95. 803(2)(b), 803(4)(b),
Obsolete Rules. 803(5)(a)(i),
803(5)(a)(i)(A),
803(5)(a)(i)(B),
803(5)(a)(i)(C).
148 \2\............................ RCRA Expanded Public 60 FR 63417, 12/11/95. 281(4) and 281(4)(a),
Participation. 281(4)(b), 281(4)(c),
281(4)(d), 281(4)(d)(i),
281(4)(d)(i)(A),
281(4)(d)(i)(B),
281(4)(d)(i)(C),
281(4)(d)(i)(D),
281(4)(d)(ii),
281(4)(d)(ii)(A),
281(4)(d)(ii)(B),
281(4)(d)(ii)(C),
281(4)(d)(ii)(D),
281(4)(d)(ii)(E); 281(5),
281(5)(a), 281(5)(b),
281(5)(b)(i),
281(5)(b)(ii),
281(5)(b)(ii)(A),
281(5)(b)(ii)(B),
281(5)(b)(ii)(C),
281(5)(b)(ii)(D),
281(5)(b)(ii)(E),
281(5)(b)(ii)(F),
281(5)(b)(iii), 281(6) and
281(6)(a), 281(6)(b),
281(6)(c), 281(6)(d),
281(6)(e), 281(6)(f); 040;
806(4)(a)(xxv); 810(16);
804(6)(a); 807(6),
807(6)(a), 807(6)(b),
807(6)(b)(i),
807(6)(b)(ii),
807(6)(b)(iii),
807(6)(b)(iv), 807(7),
807(8)-(11), 807(14).
[[Page 17639]]
151................................ Land Disposal 61 FR 15566, 04/08/96; 140 (2)(a).
Restrictions Phase 61 FR 15660, 04/08/
III--Decharacterized 96; 61 FR 19117, 04/
Wastewaters, 30/96; 61 FR 33680,
Carbamate Wastes, and 06/28/96; 61 FR
Spent Potliners. 36421, 07/10/96; 61
FR 43924, 08/26/96;
62 FR 7502, 02/19/97.
153................................ Conditionally Exempt 61 FR 34252, 07/01/96. 070(8)(b), 070(8)(b)(iii),
Small Quantity 070(8)(b)(iii)(A),
Generator Disposal 070(8)(b)(iii)(B),
Options Under 070(8)(b)(iii)(E),
Subtitle D. 070(8)(b)(iii)(F),
070(8)(b)(iii)(D),
070(8)(b)(iii)(H).
154 \2\............................ Consolidated Organic 59 FR 62896, 12/06/94; 692(3); 110(3)(g)(ix),
Air Emission 60 FR 26828, 05/19/ 110(3)(g)(x); 120(4)(d),
Standards for Tanks, 95; 60 FR 50426; 09/ 120(4)(e); 200(1)(b)(i),
Surface Impoundments, 29/95; 60 FR 56952; 200(1)(b)(ii); 201(e);
and Containers: 11/13/95; 61 FR 4903, 300(5)(f), 300(5)(i),
(Includes CC and the 02/09/96; 61 FR 300(5)(i)(A),
300 hour BB 28508; 06/05/96; 61 300(5)(i)(B); 320(2)(c);
exemption). FR 59932; 11/25/96. 380(1)(c), 380(1)(f),
390(3)(d); 630(11);
640(11); 650(12); 680(2);
690(1)(b), 690(1)(b)(i),
690(1)(b)(ii),
690(1)(b)(iii), 690(1)(c),
690(2); 691(1)(b),
691(1)(b)(i),
691(1)(b)(ii),
691(1)(b)(iii), 691(1)(f),
691/note at end of (1),
691(2); 692(1)(a),
692(1)(b), 692(1)(b)(i),
692(1)(b)(ii),
692(1)(b)(iii),
692(1)(b)(iv),
692(1)(b)(v),
692(1)(b)(vi),
692(1)(b)(vii),
692(1)(b)(viii),
692(1)(c), 692(1)(d),
692(1)(d)(i),
692(1)(d)(ii),
692(1)(d)(iii); 692(2);
400(2)(a); 300(5)(f),
300(5)(i), 300(5)(i)A),
300(5)(i)(B); 320(2)(c);
380(1)(c), 380(1)(f);
390(3)(d); 400(3)(a);
810(8)(a)(ii),
810(8)(a)(iii),
810(8)(a)(iv);
806(4)(a)(v),
806(4)(b)(vi),
806(4)(c)(xiii),
806(4)(d)(xi), 806(4)(m).
156 \2\............................ Military Munitions 62 FR 6622, 02/12/97.. 040; 016(3)(b)(iii),
Rule Hazardous Waste 016(3)(b)(iv); 170(5);
Identification and 180(6); 240(10);
Management; 600(3)(p),
Explosives 600(3)(p)(i)(D),
Emergencies; Manifest 600(3)(p)(iv), 600(3)(q);
Exemption for 693(l), 693(2)(a),
Transport of 693(2)(a)(i),
Hazardous Waste on 693(2)(a)(ii),
Right-of-Ways on 693(2)(a)(iii),
Contiguous Properties. 693(2)(a)(iv),
693(2)(a)(v), 693(2)(b),
693(2)(b)(i),
693(2)(b)(i)(A),
693(2)(b)(i)(B),
693(2)(b)(i)(B)(I)-(III),
693(2)(b)(i)(C),
693(2)(b)(ii),
693(2)(b)(iii), 693(2)(c),
693(2)(d), 693(2)(e),
693(2)(f); 693(3)(a),
693(3)(b);
400(2)(c)(xiii)(A)(IV),
400(2)(c)(xiii)(D),
400(2)(c))(xii),
400(3)(b); 400(3)(c)(xii);
578(1)(a), 578(1)(b),
578(2)(a), 578(2)(a)(i),
578(2)(a)(i)(A),
578(2)(a)(i)(B),
578(2)(a)(i)(C),
578(2)(a)(ii), 578(2)(b),
578(2)(b)(i),
578(2)(b)(ii),
578(2)(b)(iii),
578(2)(b)(iv), 578(2)(c),
578(2)(c)(i),
578(2)(c)(ii), 578(2)(d),
578(3), 578(4)(a),
578(4)(a)(i),
578(4)(a)(i)(A),
578(4)(a)(i)(B),
578(4)(a)(i)(C),
578(4)(a)(i)(D),
578(4)(a)(i)(E),
578(4)(a)(i)(F),
578(4)(a)(i)(G),
578(4)(a)(ii),
578(4)(a)(iii), 578(4)(b),
578(4)(c); 578(5);
800(7)(c)(i)(D),
800(7)(c)(i)(E);
830(4)(h), 830(4)(h)(i),
830(4)(h)(ii),
830(4)(h)(iii), 830(4)(i).
157................................ Land Disposal 62 FR 25998, 05/12/97. 040; 016(2)(l), 016(2)(m),
Restrictions Phase 016(2)(n), 016(2)(o);
IV--Treatment 016(5) Table 1;
Standards for Wood 071(3)(ff), 071(3)(gg),
Preserving Wastes, 071(3)(gg)(i),
Paperwork Reduction 071(3)(gg)(ii);
and Streamlining, 120(2)(a)(iv); 140(2)(a).
Exemptions From RCRA
for Certain Processed
Materials; and
Miscellaneous
Hazardous Waste
Provisions.
158................................ Testing Monitoring 62 FR 32452, 06/13/97. 110(1); 110(3)(h)(v),
Activities Amendment 110(3)(h)(vi),
III. 110(3)(g)(i), 110(3)(g)
(ii), 110(3)(g)(iii),
110(3)(g)(iv),
110(3)(g)(v),
110(3)(g)(vi),
110(3)(g)(viii),
110(3)(h)(i), 110(3)(a),
110(3)(h)(ii),
110(3)(h)(iii),
110(3)(h)(vii),
110(3)(g)(x); 690(2);
691(2); 645(4)(a);
400(3)(a).
162................................ Clarification of 62 FR 64504, 12/05/97. 140 (2)(a).
Standards for
Hazardous Waste LDR
Treatment Variances.
163................................ Organic Air Emission 62 FR 64636, 12/08/97. 320(2)(c); 380(1)(f);
Standards for Tanks, 690(1)(b)(iii), 690(1)(c),
Surface Impoundments, 690(1)(d); 690(2);
and Containers; 691(1)(b)(iii), 691(1)(c),
Clarification and 691(1)(f), 691(2);
Technical Amendment: 692(1)(b)(i), 692(1)(c),
(AA, BB, CC). 692(2); 320(2)(c);
400(3)(a); 806(4)(a)(v).
164................................ Kraft Mill Steam 62 FR 18504, 04/15/98. 071(3)(mm).
Stripper Condensate
Exclusion.
[[Page 17640]]
167A............................... Land Disposal 63 FR 28556, 05/26/98. 140(2)(a).
Restriction Phase IV
--Treatment Standards
for Metal Wastes and
Mineral Processing
Wastes.
167B............................... Land Disposal 63 FR 28556, 05/28/98. 140(2)(a).
Restriction Phase IV
--Hazardous Soils
Treatment Standards
and Exclusions.
167C............................... Land Disposal 63 FR 28556, 05/26/98. 140(2)(a).
Restrictions Phase
IV--Corrections.
167F............................... Exclusion of Recycled 63 FR 28556, 05/26/98. 071(3)(w)(iii),
Wood Preserving 071(3)(w)(iii)(A),
Wastewater. 071(3)(w)(iii)(B),
071(3)(w)(iii)(C),
071(3)(w)(iii)(D),
071(3)(w)(iii)(E).
169 \2\............................ Petroleum Refining 63 FR 42110, 08/06/98. 071(3)(p), 071(3)(jj);
Process Wastes. 071(3)(cc)(i),
071(3)(cc)(ii),
071(3)(hh), 071(3)(hh)(i),
071(3)(hh)(ii),
071(3)(ii); 016(5)(d)(ii);
120 (2)(a)(viii)(c); 9904;
082(4); 140(2)(a).
170................................ Land Disposal 63 FR 46332, 08/31/98. 140(2)(a).
Restrictions Phase
IV--Zinc Micro
nutrient Fertilizers,
Amendment.
171................................ Emergency Revision of 63 FR 47410, 09/04/98. 140(2)(a).
the Land Disposal
Restrictions (LDR)
Treatment Standards
for Listed Hazardous
Wastes from carbamate
Production.
172................................ Land Disposal 63 FR 48124, 09/09/98. 140(2)(a).
Restriction Phase IV
--Extension of
Compliance Date for
Characteristic Slags.
173................................ Land Disposal 63 FR 51254, 09/24/98. 140(2)(a).
Restrictions;
Treatment Standards
for Spent Potliners
from Primary Aluminum
Reduction Rule
(K088); Final Rule.
174 \3\............................ Post Closure Permit 63 FR 56710, 10/22/98. 645(1)(e), 645(1)(e)(i),
Requirement and 645(1)(e)(ii); 610(1)(d),
Closure Process: 610(1)(d)(i),
Requirements for 610(1)(d)(ii);
alternative 610(3)(a)(ix),
groundwater 610(3)(b)(ii)(D);
monitoring 610(8)(b)(iv),
requirements for 610(8)(d)(ii)(D);
regulated units 620(1)(d), 620(1)(d)(i),
colocated with SWMU's 620(1)(d)(ii); 400(3)(a).
where both types of
units have released
to the environment..
175 \2\............................ HWIR-Media............ 63 FR 65874, 11/30/98. 040; 071(3)(11) first line,
071(3)(11)(i) through
(iii); 280(5); 280(6),
280(6)(a), 280(6)(b),
280(6)(c), 280(6)(d),
280(6)(e), 280(6)(f),
280(6)(g), 280(6)(h),
280(6)(i), 280(6)(j),
280(6)(k); 646(1)(c);
646(4)(a), 646(7)(a),
646(8); 400(2)(a);
140(2)(a); 810(13)(a); 830
Appendix 1, D.3.g.; 830,
Appendix 1, N.3.
176................................ Universal Waste Rule-- 63 FR 71225, 12/24/98. 520(1), 520(2), 520(2)(a),
Technical Amendments. 520(2)(b), 520(2)(c); 040.
177................................ Organic Air Emission 64 FR 3382, 01/21/99.. 200(1)(b)(i),
Standards 200(1)(b)(ii); 690(2);
Clarification and 692(1)(v), 692(2); 400(3),
Technical Amendments: 400(3)(a).
(AA, BB, CC).
178................................ Petroleum Refining 64 FR 6806, 02/11/99.. 071(3)(kk), 071(3)(kk)(i),
Process Wastes-- 071(3)(kk)(ii),
Leachate Exemption. 071(3)(kk)(iii),
071(3)(kk)(vi),
071(3)(kk)(v).
179 \2\............................ Land Disposal Phase 64 FR 25408, 05/11/99. 016(5)(c); 016 Table 1;
IV--Technical 017(2)(a)(iii); 201(2);
Corrections and 140(2)(a).
Clarifications to
Treatment Standards.
180................................ Test Procedures for 64 FR 26315, 05/14/99. 110(3)(a), 110(3)(h)(iv).
Analysis of Oil and
Grease and Non--Polar
Material.
[[Page 17641]]
181 \2\............................ Universal Waste Rule 64 FR 36466, 07/09/99. 040; 077(2), 077(3);
Specific Provisions 600(3)(o)(ii),
for Hazardous Waste 600(3)(o)(iii);
Lamps. 400(2)(c)(xi)(B),
400(2)(c)(xi)(C);
140(2)(a);
800(7)(c)(iii)(B),
800(7)(c)(iii)(C);
573(1)(a)(ii),
573(1)(a)(iii),
573(2)(a)(i),
573(2)(b)(ii),
573(2)(b)(iii), 573(3)(a);
573(5)(a), 573(5)(b),
573(5)(b)(i),
573(5)(b)(ii), 573(5)(c),
573(5)(c)(i),
573(5)(c)(ii), 573(4)(a),
573(4)(a)(i),
573(4)(a)(ii), 573(4)(b),
573(6), 573(9)(c),
573(9)(c)(i),
573(9)(c)(ii),
573(9)(c)(iii),
573(10)(c), 573(17),
573(19)(b)(iv),
573(19)(b)(v), 573(20)(c),
573(20)(c)(i),
573(20)(c)(ii),
573(20)(c)(iii),
573(21)c), 573(28),
573(35)(a), 573(40)(a).
112, 122, 130, 166 (Special Recycled Used Oil 57 FR 41566, 09/10/92; 040; 515(4); 071(3)(z),
Consolidated Checklist \2\). Management Standards 58 FR 26420, 05/03/ 071(3)(kk); 120(3);
as of June 30, 1999. 93; 58 FR 33341, 06/ 120(3)(g), 120(3)(f);
17/93; 59 FR 10550, 120(2)(v),
03/04/94; 63 FR 120(2)(a)(viii)(A),
24963, 05/06/98; 63 120(2)(a)(viii)(B),
FR 37780, 07/14/98. 120(2)(a)(viii)(C),
120(5); 600(5);
510(1)(b)(i); 515(2),
515(3), 515(4), 515(5),
515(6), 515(6)(c), 515(7),
515(8), 515(9), 515(9)(a),
515(9)(b), 515(10),
515(11), 515(12).
----------------------------------------------------------------------------------------------------------------
\1\ For further discussion on where the revised state rules differ from the Federal rules refer to section G.
below, the authorization revision application, and the administrative record for this decision.
\2\ State rule contains some more stringent provisions. For identification of more stringent state provisions
refer to the authorization revision application and the administrative record for this decision.
\3\ State does not seek authorization for enforceable documents in lieu of post-closure permits.
\4\ Checklist generally reflect changes made to the Federal regulations pursuant to a particular Federal
Register notice and EPA publishes these checklists as aids for states to use for the development of their
authorization application. (See EPA's RCRA State Authorization web page at http://www.epa.gov/epaoswer/hazwaste/state/rcra hazwaste/state/rcra.)
F. Where Are the Revised State Rules Different From the Federal
Rules?
This section discusses some of the differences between the
revisions Washington requested authorization for and those which are
part of this final authorization decision. Not all program differences
are discussed in this section because Washington writes its own version
of the federal hazardous waste rules. This section discusses certain
rules where EPA has made the finding that the State program is more
stringent and will be authorized; it discusses rules where the State
program is broader in scope and can not be authorized; and rules where
the State program is less stringent than the federal requirements and
will not be authorized. The State program will not be authorized for
the less stringent or broader in scope rules. Less stringent State
rules do not supplant federal regulations. Persons must consult the
Table 1 for the specific State regulations which EPA is authorizing in
today's final rule.
Certain portions of the federal program are not delegable to the
states because of the Federal government's special role in foreign
policy matters and because of national concerns that arise with certain
decisions. EPA does not delegate import/export functions. Under the
RCRA regulations found in 40 CFR part 262 EPA will continue to
implement requirements for import/export functions. EPA does not
delegate sections of 40 CFR part 268 because of the national concerns
that must be examined when decisions are made under the following
Federal Land Disposal Restriction requirements: 40 CFR 268.5--
Procedures for case-by-case effective date extensions; 40 CFR 268.6--
``No migration'' petitions; 40 CFR 268.42(b)--applications for
alternate treatment methods; and 40 CFR 268.44(a)-(g)--general
treatment standard variances. Washington's program has excluded these
requirements from its state regulations and EPA will continue to
implement these requirements under EPA's HSWA authority. The State
requested authorization for 40 CFR 268.44(h) through (m), which are
provisions for which states may receive authorization and are part of
this authorization decision.
States are allowed to seek authorization for state requirements
that are more stringent than federal requirements. EPA has authority to
authorize and enforce those parts of a state's program EPA finds to be
more stringent than the federal program. This section does not discuss
each more stringent finding made by EPA, but persons can locate such
sections by consulting Table 1, referenced above, as well as by
reviewing the docket for this rule. The State program is authorized for
each more stringent requirement as a part of this rulemaking.
The State program does not provide generators with an exemption
from the manifest requirements as found in the federal regulations at
40 CFR 262.20(f) or transporters as found at 40 CFR 263.10(f).
Generators and transporters in Washington will have to comply with the
more stringent state paperwork requirements. The State program is more
stringent than the federal program because the State regulations do not
allow Remedial Action Plans as found in the federal requirements at 40
CFR part 270, subpart H. The State's program is more stringent than the
federal program at 40 CFR 261.5(j) because the State has not adopted
this provision. Conditionally exempt small quantity generator hazardous
waste mixed with used oil is subject to full regulation as a hazardous
waste mixture. The State program is also more stringent than the
federal requirements at 40 CFR 273.9 because the State's definition of
universal waste does not allow pesticides to be managed as universal
waste.
The State program is more stringent in certain places than the
federal military munitions rule. The State did not adopt the
alternative requirements for transportation of waste military munitions
between military installations as is found in the federal program at 40
CFR 266.203(a)-(c) and is therefore more stringent than the federal
program. With respect to chemical agents and chemical munitions slated
for destruction pursuant to international treaties or agreements, the
State identifies such chemical agents and chemical munitions as
characteristic and/or listed hazardous waste. In the Military Munitions
Rule, at 62 FR 6633, EPA said that states could be more stringent than
the federal program for
[[Page 17642]]
chemical munitions. EPA finds the State program to be more stringent
than the federal program in this area because the State rules do not
contain a provision that differentiates between wastes that must be
designated and waste chemical munitions or chemical munitions that are
not considered wastes because they are scheduled for destruction
pursuant to treaty or agreement. The State's regulations at WAC 173-
303-693(3)(a) are found to be more stringent than the federal
regulation at 40 CFR 264.1202(a) and WAC 173-303-400(3)(b), (c)(xii) is
found to be more stringent than the federal regulation at 40 CFR
265.1202(a). EPA also said, at 62 FR 6649 in the Military Munitions
Rule, that states did not have to include a conditional exemption for
waste munitions storage in their programs. EPA also finds that the
State's lack of a conditional exemption for waste munition storage,
which is found in the federal regulations at 40 CFR 266.205(d), (d)(2),
is more stringent than the federal program. Neither the federal
regulations, nor the State program conditionally exempt chemical
munitions and chemical agents from storage requirements.
The State did not seek authorization for the Standards for the
Management of Waste Fuel and Used Oil for the Burning of these
Materials in Boilers and Industrial Furnaces, 40 CFR 266.102 through 40
CFR 266.111. The State did not adopt these federal provisions as state
law. EPA is implementing these BIF requirements in Washington State
under EPA's HSWA authority. States are not allowed to seek
authorization for state requirements that are broader in scope than
federal requirements. EPA does not have authority to authorize and
enforce those parts of a state's program EPA finds to be broader in
scope than the federal program. Because the State has not adopted an
analog to 40 CFR 261.4(b)(7)--exclusions for solid waste from the
extraction, beneficiation, and processing of ores and minerals, the
State's lack of an analog for the federal exclusion of mixtures of
solid waste and hazardous waste which are hazardous based solely on a
hazardous characteristic imparted to the waste as a result of a Bevill
characteristic, 40 CFR 261.3(a)(2)(iii), is broader in scope than the
federal program. EPA also finds the State's regulation at WAC 173-303-
578(2)(e) to be broader in scope than the federal regulation at 40 CFR
266.202(a) because the State added a requirement for when munitions at
closed and transferred ranges are considered solid wastes. EPA's final
Military Munitions Rule did not include this requirement. This
requirement in the State program is found to be broader in scope than
the federal program.
Although State programs can be authorized where they are more
stringent than the federal program, state programs cannot be authorized
where they are less stringent. EPA finds the State's additional
regulation at WAC 173-303-515(6) for generators of used oil who self-
transport greater than 55 gallons per vehicle trip to a used oil
collection center, without also designating as a used oil transporter,
are less stringent than the federal provisions which limit generator
self-transport of used oil to less than or equal to 55 gallons of used
oil per vehicle trip. EPA also finds the State's additional regulation
at WAC 171-303-515(7) for used oil collection centers to be less
stringent because the regulation allows used oil collection centers to
accept greater than 55 gallons of used oil from a generator who self-
transports used oil to a used oil collection center. The direct impact
of EPA's finding to generators and used oil collection centers in
Washington is that generators and used oil collection centers will not
be exempted from the State's federally authorized requirements which
limit self-transport by generators to less than or equal to 55 gallons
and used oil collection from a self-transporting generator to less than
or equal to 55 gallons.
States sometimes make changes to their previously authorized
programs for which they need to seek reauthorization. In Washington,
the Permit by Rule provision at WAC 173-303-802(5) is broader in scope
than the federal permit by rule regulations where it applies to state-
only wastes. However, the State program is more stringent where the
rule applies to federally regulated hazardous wastes generated on-site.
The federal regulations at 40 CFR 270.1(c)(2)(iv) and (v) exempt owners
and operators of totally enclosed treatment facilities, elementary
neutralization units or wastewater treatment units, as defined at 40
CFR 260.10, from RCRA permitting requirements. The State requested
reauthorization for these changes and EPA has determined that the more
stringent portion of the rule is authorized and the broader in scope
provision will not be authorized in this rulemaking.
The State did not seek authorization for the entire Post-Closure
rule. While the State will be authorized for the portions of the rule
that concern alternative requirements for co-located regulated units
and solid waste management units which have commingled releases, the
State did not seek, nor will the State be authorized for the portions
of the rule that allow for the use of enforceable documents in lieu of
post closure permits. Although the State did incorporate 40 CFR
265.118(c)(4) by reference into its regulations, the State did not seek
authorization for this provision and will not be authorized for it.
G. Who Handles Permits After This Authorization Takes Effect?
Washington will issue permits for all the provisions for which it
is authorized and will administer the permits it issues. All permits
issued by EPA Region 10 prior to final authorization of this revision
will continue to be administered by EPA Region 10 until the issuance or
re-issuance after modification of a State RCRA permit and until EPA
takes action on its permit. HSWA provisions for which the State is not
authorized will continue in effect under the EPA-issued permit. EPA
will continue to issue permits for HSWA requirements for which
Washington is not yet authorized.
H. What Is Codification and Is EPA Codifying Washington'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's authorized rules in 40 CFR part 272.
EPA is reserving the amendment of 40 CFR part 272, subpart F for
codification of Washington's program at a later date.
I. How Does Today's Action Affect Indian Country (18 U.S.C. 1151)
in Washington?
EPA's decision to authorize the Washington hazardous waste program
does not include any land that is, or becomes after the date of this
authorization, ``Indian Country,'' as defined in 18 U.S.C. 1151, with
the exception of the non-trust lands within the exterior boundaries of
the Puyallup Indian Reservation (also referred to as the ``1873 Survey
Area'' or ``Survey Area'') located in Tacoma, Washington. EPA retains
jurisdiction over ``Indian Country'' as defined in 18 U.S.C. 1151.
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
[[Page 17643]]
review by OMB. 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 also 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
relationships 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 rule is not subject to Executive Order
13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply Distribution or Use'' (66 FR 28344, May 22, 2001) because
it is not a significant regulatory action under Executive Order 12866.
This action does not include environmental justice issues that require
consideration under Executive Order 12898 (59 FR 7629, February 16,
1994).
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) 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 the rule in accordance with the ``Attorney
General's Supplemental Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings' issued under the executive order.
This final rule does not impose an information collection burden under
the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
et seq.).
List of Subjects in 40 CFR Part 271
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous waste, Hazardous waste
transportation, Indian lands, Intergovernmental relations, Penalties,
Reporting and recordkeeping requirements.
Authority: This action is issued under the authority of sections
2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended
42 U.S.C. 6912(a), 6926, 6974(b).
Dated: April 2, 2002.
Ronald A. Kreizenbeck,
Deputy Regional Administrator, Region 10.
[FR Doc. 02-8533 Filed 4-10-02; 8:45 am]
BILLING CODE 6560-50-P