[Federal Register Volume 67, Number 211 (Thursday, October 31, 2002)]
[Rules and Regulations]
[Pages 66338-66340]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-27341]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[FRL-7400-1]
Massachusetts: Extension of Interim Authorization of State
Hazardous Waste Management Program Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Immediate final rule.
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SUMMARY: The EPA is proposing to extend the expiration date from
January 1, 2003 to January 1, 2006 for the interim authorization under
the Resource Conservation and Recovery Act, of the Massachusetts
program for regulating Cathode Ray Tubes (``CRTs''). Massachusetts was
granted interim authorization to assume the responsibility under the
Toxicity Characteristics Rule (``TC Rule'') for regulating CRTs, on
November 15, 2000. That previously granted interim authorization is due
to expire on January 1, 2003 and needs be extended for the reasons
explained below. EPA is publishing this rule to authorize the extension
without a prior proposal because we believe this action is not
controversial and do not expect comments that oppose it. Unless we get
written comments which oppose this extension during the comment period,
the decision to extend the interim authorization will take effect. If
we get comments that oppose this action, we will publish a document in
the Federal Register withdrawing this rule before it takes effect and
the separate document in the proposed rules section of this Federal
Register will serve as the proposal to authorize the changes.
DATES: This extension of the interim authorization will become
effective on December 30, 2002 and remain in effect until January 1,
2006 unless EPA receives adverse written comment by December 2, 2002.
If EPA receives such comment, it will publish a timely withdrawal of
this immediate final rule in the Federal Register and inform the public
that this extended authorization will not take immediate effect.
ADDRESSES: Send any written comments to Robin Biscaia, EPA New England,
One Congress Street, Suite 1100 (CHW), Boston, MA 02114-2023;
telephone: (617) 918-1642. Documents related to EPA's previous decision
to grant interim authorization (regarding regulation of CRTs) and the
materials which EPA used in now considering the extension (the
``Administrative Record'') are available for inspection and copying
during normal business hours at the following locations: Massachusetts
Department of Environmental Protection Library, One Winter Street--2nd
Floor, Boston, MA 02108, business hours: 9 a.m. to 5 p.m., telephone:
(617) 292-5802; or EPA New England Library, One Congress Street--11th
Floor, Boston, MA 02114-2023, business hours: 10 a.m. to 3 p.m., Monday
through Thursday, telephone: (617) 918-1990.
FOR FURTHER INFORMATION CONTACT: Robin Biscaia, Hazardous Waste Unit,
Office of Ecosystems Protection, EPA New England, One Congress Street,
Suite 1100 (CHW), Boston, MA 02114-2023, telephone: (617) 918-1642.
SUPPLEMENTARY INFORMATION:
A. Why Are Revisions to State Programs Necessary?
Pursuant to the Resource Conservation and Recovery Act, 42 U.S.C.
6901 et seq., states which have been authorized to administer the
Federal hazardous waste program under RCRA section 3006(b), 42 U.S.C.
6926(b), have a continuing obligation to update their programs to meet
revised Federal requirements. 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 revise 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. For example, States
must revise their programs to regulate the additional wastes determined
to be hazardous as a result of using the Toxicity Characteristics
Leaching Procedure (``TCLP'') test adopted by the EPA on March 29,
1990, in the TC Rule. 55 FR 11798. The EPA may grant final
authorization to a State revision if it is equivalent to, consistent
with, and no less stringent than Federal RCRA requirements.
In the alternative, as provided by RCRA section 3006(g), 42 U.S.C.
6926(g), for updated Federal requirements promulgated pursuant to the
Hazardous and Solid Waste Amendments of 1984 (HSWA), such as the TC
Rule, the EPA may grant interim (i.e., temporary) authorization to a
State revision so long as it is substantially equivalent to Federal
RCRA requirements.
B. What Decisions Have We Made in This Rule?
1. Background
The TC Rule grants authority over wastes which first became
classified as hazardous as a result of using the ``TCLP'' test, such as
many CRTs. See 55 FR 11798, 11847-11849 (March 29, 1990). CRTs are the
glass picture tubes found inside television and computer monitors.
Because of their high lead content, CRTs generally fail the TCLP test.
Thus, under the EPA's current regulations, CRTs generally become
hazardous wastes when they are discarded (e.g., when sent for disposal
or reclamation rather than being reused). However, the EPA has
recognized that certain widely generated wastes may pose lower risks
during accumulation and transport than other hazardous wastes. Thus the
EPA has listed certain wastes as Universal Wastes which are subject to
reduced regulation and has allowed authorized States to add other
appropriate wastes as Universal Wastes. See 40 CFR part 273.
On August 4, 2000, Massachusetts adopted regulations which revised
its regulatory program as it relates to CRTs. The State adopted a
three-part approach: (1) Intact CRTs being disposed are subject to full
hazardous waste requirements (along with crushed or ground up CRTs);
(2) intact CRTs that may still be reused (without reclamation)
generally are considered commodities exempt from hazardous waste
requirements; and, finally, (3) intact CRTs which will not be reused,
but which instead will be crushed and recycled (i.e., as spent
materials being reclaimed), are subject to reduced
[[Page 66339]]
requirements which track some but not all of the EPA's Universal Waste
Rule requirements. As explained in the Federal Register on November 15,
2000, 65 FR 68915, and further explained in a legal memorandum
contained in the Administrative Record, dated January 21, 2000 entitled
``Massachusetts' Regulation of CRTs,'' the EPA determined that the
State program was ``substantially equivalent'' to Federal RCRA
requirements. Therefore, the EPA granted Massachusetts interim
authorization to regulate CRTs under the TC Rule. The State program was
determined to be only ``substantially'' rather than fully equivalent to
the federal RCRA program because the maximum flexibility allowed under
the federal program was to regulate hazardous CRTs being reclaimed as a
Universal Waste, whereas Massachusetts regulates intact CRTs heading to
reclamation less stringently in certain respects than does the
Universal Waste Rule.
2. Today's Decision
There have been no changes in either the Federal or Massachusetts
regulations applicable to CRTs since November 15, 2000. Therefore, the
State program remains substantially equivalent (but not fully
equivalent) to current Federal RCRA requirements, for the reasons
previously stated. However, in line with the general deadline for the
expiration of interim authorizations set in 40 CFR 271.24, the interim
authorization of the Massachusetts CRT program is set to expire on
January 1, 2003. Absent further EPA action, the authority to regulate
the CRTs would revert to the EPA as of January 1, 2003, and full
hazardous waste regulations would become applicable to many CRTs in
Massachusetts.
Like Massachusetts, the EPA has recognized that regulating intact
CRTs as a fully regulated hazardous waste can discourage recycling of
the CRTs and, thus, be counter-productive. Therefore, it is
environmentally important not to allow the interim authorization of the
Massachusetts regulations to expire.
On June 12, 2002, the EPA proposed to adopt regulations to reduce
RCRA regulatory requirements for CRTs. See 67 FR 40508. If the proposed
rule is adopted, intact CRTs heading for reclamation will no longer be
classified as solid or hazardous wastes. Thus, they will no longer need
to be handled in accordance with either full hazardous waste or
Universal Waste Rule requirements. Therefore, if and when the proposed
rule is adopted, the Massachusetts CRT program will no longer be less
stringent than the Federal program. It will be equivalent to the
Federal program in exempting commodity CRTs from regulations while
fully regulating CRTs being disposed, and will be more stringent than
the Federal program in partially regulating intact CRTs being reclaimed
and in fully regulating crushed or ground up CRTs even when they are
recycled. However, the final EPA CRT rule is not expected to be issued
until after January 1, 2003.
The EPA believes that extension of the interim authorization of the
Massachusetts CRT program beyond the generally applicable deadline of
January 1, 2003 is appropriate in the unusual circumstances presented.
An extension to January 1, 2006 will enable the Massachusetts program
to continue to operate pending the EPA's final decision on its own CRT
Rule. This should give the EPA sufficient time to finalize its own CRT
Rule. If the final EPA CRT Rule is the same as the proposed rule or
otherwise remains at least as flexible as the Massachusetts CRT Rule,
then the EPA should be able to later grant final authorization to the
Massachusetts CRT Rule, as soon as the EPA CRT Rule is adopted. If the
final EPA CRT Rule is more stringent than the Massachusetts CRT Rule,
the EPA and State can address the resulting situation at that time. If
the final EPA CRT Rule has not been issued by January 1, 2006, the EPA
may consider a further extension of the interim authorization of the
Massachusetts CRT Rule, but is making no decision on such a further
extension at this time.
C. What Is the Effect of Today's Authorization Decision?
The effect of this decision is that for CRTs regulated under the TC
Rule, a facility in Massachusetts subject to RCRA will have to continue
to comply with the authorized State requirements instead of the Federal
requirements in order to comply with RCRA. The Commonwealth of
Massachusetts has enforcement responsibilities under its State
hazardous and solid waste programs for violations of such programs, but
EPA also retains its full authority under RCRA sections 3007, 3008,
3013, and 7003.
This action does not impose additional requirements on the
regulated community because the State regulations for which interim
authorization to Massachusetts is being extended by today's action are
already in effect under State law, and are not changed by today's
action.
D. Why Wasn't There a Proposed Rule Before Today's Rule?
EPA did not publish a proposal before today's rule because we view
this as a routine program change and do not expect comments that oppose
this approval. We are providing an opportunity for public comment now.
In addition to this rule, in the proposed rules section of today's
Federal Register we are publishing a separate document that proposes to
authorize the State program changes.
E. What Happens if EPA Receives Comments That Oppose This Action?
If EPA receives comments that oppose this authorization, we will
withdraw this rule by publishing a document in the Federal Register
before the rule becomes effective. EPA will base any further decision
on the authorization of the State program changes on the proposal
mentioned in the previous paragraph. We will then address all public
comments in a later final rule. You may not have another opportunity to
comment. If you want to comment on this authorization, you must do so
at this time.
F. What Has Massachusetts Previously Been Authorized for?
Massachusetts initially received Final Authorization on January 24,
1985, effective February 7, 1985 (50 FR 3344) to implement its base
hazardous waste management program. EPA granted authorization for
changes to their program on September 30, 1998, effective November 30,
1998 (63 FR 52180) and October 12, 1999, effective that date (64 FR
55153), in addition to the previously discussed November 15, 2000
authorization of the Massachusetts CRT Rule (65 FR 68915).
G. What Changes Are We Authorizing in Today's Action?
The Massachusetts regulations authorized by today's action are the
same as those listed in the chart set forth in the Federal Register
document dated November 15, 2000 (65 FR 68915, 68918). Today's action
simply extends the interim authorization previously granted from
January 1, 2003 to January 1, 2006.
H. Where Are the Revised State Rules Different From the Federal Rules?
The differences between the State and Federal regulations with
respect to CRTs are discussed in the November 15, 2000 Federal Register
document. Notwithstanding these differences, the EPA believes that the
State regulations are substantially equivalent to the Federal
regulations and, thus, the State
[[Page 66340]]
continues to qualify to have interim authorization. During the interim
authorization period, for CRTs regulated under the TC Rule, these State
regulations will operate in lieu of the Federal hazardous waste
regulations.
I. Who Handles Permits After This Authorization Takes Effect?
Massachusetts will issue permits for all the provisions for which
it is authorized and will administer the permits it issues. EPA will
continue to administer any RCRA hazardous waste permits or portions of
permits which we issued prior to the effective date of this
authorization. EPA will continue to implement and issue permits for
HSWA requirements for which Massachusetts is not yet authorized.
J. How Does Today's Action Affect Indian Country (18 U.S.C. 115) in
Massachusetts?
Massachusetts is not authorized to carry out its hazardous waste
program in Indian country within the State. Therefore, this action has
no effect on Indian country. EPA will continue to implement and
administer the RCRA program in these lands.
K. What Is Codification and Is EPA Codifying Massachusetts' 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. We do this by referencing
the authorized State rules in 40 CFR part 272. We are today
authorizing, but not codifying the enumerated revisions to the
Massachusetts program. We reserve the amendment of 40 CFR part 272,
subpart W for the codification of Massachusetts' program until a later
date.
L. 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. 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 (Public Law 104-4). For the same reason,
this action also does not significantly or uniquely affect the
communities of tribal governments, as specified by Executive Order
13084 (63 FR 27655, May 10, 1998). 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.
Under RCRA section 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 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 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.).
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, nevertheless, will be effective 60 (sixty) days after
publication pursuant to the procedures governing immediate final rules.
List of Subjects in 40 CFR Part 271
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous waste, Hazardous waste
transportation, Indians-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: October 17, 2002.
Robert W. Varney,
Regional Administrator, EPA New England.
[FR Doc. 02-27341 Filed 10-30-02; 8:45 am]
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