[Federal Register Volume 69, Number 49 (Friday, March 12, 2004)]
[Rules and Regulations]
[Pages 11801-11813]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-5644]
-----------------------------------------------------------------------
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 262 and 271
[FRL-7634-4]
Massachusetts: Final Authorization of State Hazardous Waste
Management Program Revisions; State-Specific Modification to Federal
Hazardous Waste Regulations, Pursuant to ECOS Program Proposal;
Extension of Site-Specific Regulations for New England Universities'
Laboratories XL Project
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: Today's action consists of three distinct but related final
rulemakings briefly characterized here and further discussed in the
supplementary information section of this rule. First, the EPA is
granting final authorization to the Commonwealth of Massachusetts,
under the Resource Conservation and Recovery Act (RCRA), for revisions
to the State's hazardous waste program which meet the standard EPA
regulatory requirements for authorization of State programs. The
revisions consist of updated State regulations covering hazardous waste
definitions and miscellaneous provisions, provisions for the
identification and listing of hazardous wastes, and standards for
hazardous waste generators, which correspond to RCRA Consolidated
Checklists C1, C2 and C3, respectively. These State regulations have
been updated to address most Federal RCRA requirements listed in
Checklists C1, C2 and C3 through at least July 1, 1990.
Second, the State regulations submitted for authorization also
include comprehensive regulations governing hazardous wastes being
recycled on-site by generators. These regulations do not meet the
standard EPA requirements for State authorization but have been
determined by the EPA to meet the RCRA statutory test of protecting
human health and the environment. The EPA also has determined that
these Massachusetts regulations are at least as environmentally
protective overall as the Federal program. Thus the EPA is today making
a State-specific modification to the Federal hazardous waste
regulations to enable the EPA to authorize these Massachusetts
regulations, pursuant to a proposal for flexibility submitted by the
Massachusetts Department of Environmental Protection (MADEP) under the
program established by the Joint EPA/State Agreement To Pursue
Regulatory Innovation between the EPA and the Environmental Council of
States (ECOS program). As part of this same rulemaking, the EPA is also
today authorizing these Massachusetts hazardous waste recyclable
materials regulations.
Third, the EPA is today extending the expiration date of site-
specific regulations previously adopted by the EPA under the eXcellence
and Leadership program (Project XL) allowing alternative RCRA generator
requirements to be followed for laboratories at certain universities in
Massachusetts (and Vermont). As part of this same rulemaking, the EPA
is also today authorizing the Massachusetts regulations which track
these EPA regulations. The EPA already has authorized the Vermont
regulations which track these EPA regulations and expects to extend the
authorization of the Vermont regulations through a separate rulemaking.
On October 21, 2003, the EPA proposed to take these three actions.
No negative public comments were received in response to the proposal.
DATES: This final rulemaking, covering both the revisions to the
federal regulations and the EPA's authorization of the State
regulations, is effective immediately without further notice as of
March 12, 2004.
ADDRESSES: Dockets containing copies of the Commonwealth of
Massachusetts' revision application, the materials which the EPA used
in evaluating the revision, and materials relating to the State-
specific and site-specific Federal regulation changes, have been
established at the following two locations: (i) Massachusetts
Department of Environmental Protection, Business Compliance Division,
One Winter Street--8th Floor, Boston, MA 02108, business hours Monday
through Friday 9 a.m. to 5 p.m., tel: (617) 556-1096; and (ii) EPA
Region I Library, One Congress Street--11th Floor, Boston, MA 02114-
2023, business hours Monday through Thursday 10 a.m.-3 p.m., tel: (617)
918-1990. Records in these dockets are available for inspection and
copying during normal business hours.
FOR FURTHER INFORMATION CONTACT: Robin Biscaia, Hazardous Waste Unit,
EPA Region I, One Congress St., Suite 1100 (CHW), Boston, MA 02114-
2023, tel: (617) 918-1642, e-mail: [email protected].
SUPPLEMENTARY INFORMATION: As indicated above, the EPA published a
Federal Register notice on October 21, 2003 (68 FR 60060) proposing to
take the three actions which are the subject of this notice. No
negative public comments were received by the EPA in response to the
proposal. Thus the EPA is today taking final actions in accordance with
its prior proposal. Note that the EPA proposed to approve the
[[Page 11802]]
State regulations when they were in proposed form, and conducted its
public comment process simultaneously with the State public comment
process. The State regulations recently were finalized and submitted
for authorization by the EPA.
Today's federal rulemaking includes granting final authorization
under 40 CFR part 271 to the Commonwealth of Massachusetts for
revisions to its hazardous waste program under the Resource
Conservation and Recovery Act. No changes to 40 CFR part 271 result
from the authorization of State regulations under that part. Today's
federal rulemaking also includes making changes to the federal
regulations in 40 CFR part 262, in connection with Massachusetts' ECOS
program proposal and the XL project. The resulting changes to 40 CFR
part 262 are set out at the end of this document.
In part I, below, this document will discuss the updated State RCRA
regulations which are being authorized in accordance with the standard
EPA State authorization regulations in 40 CFR part 271.
In part II, below, this document will discuss the State-specific
change to the Federal regulations in 40 CFR part 262 being made under
the ECOS program to allow authorization of the Massachusetts hazardous
waste recyclable materials regulations, and the resulting authorization
of the recyclable materials regulations.
In part III, below, this document will discuss the extension of the
expiration date in 40 CFR part 262 of the New England Universities'
Laboratories project XL regulations, and the authorization of the
Massachusetts project XL regulations.
In part IV, below, this document will assess the effects of these
decisions, in accordance with various statutes and executive orders.
I. Final Authorization of State Hazardous Waste Management Program
Revisions; Standard Authorization:
A. Why Are Revisions to State Programs Necessary?
States with final authorization under section 3006(b) of RCRA, 42
U.S.C. 6926(b), have a continuing obligation to maintain a hazardous
waste program that is equivalent to, consistent with, and no less
stringent than the Federal hazardous waste program. As the Federal
hazardous waste program changes, the States must revise their programs
and apply for authorization of the revisions. Revisions to State
hazardous waste programs may be necessary when Federal or State
statutory or regulatory authority is modified or when certain other
changes occur. Most commonly, States must revise their programs because
of changes to EPA's regulations in 40 Code of Federal Regulations (CFR)
parts 124, 260 through 266, 268, 270, 273 and 279.
B. What Has Massachusetts Previously Been Authorized for Under RCRA?
The Commonwealth of Massachusetts initially received Final
Authorization on January 24, 1985, effective February 7, 1985 (50 FR
3344), to implement its base hazardous waste management program. This
authorized base program generally tracked Federal hazardous waste
requirements through July 1, 1984. In addition, the EPA previously has
authorized particular Massachusetts regulations which address several
of the EPA requirements adopted after July 1, 1984. Specifically, on
September 30, 1998, the EPA authorized Massachusetts to administer the
Satellite Accumulation rule, effective November 30, 1998 (63 FR 52180).
Also, on October 12, 1999, the EPA authorized Massachusetts to
administer the Toxicity Characteristics rule (except with respect to
Cathode Ray Tubes), and the Universal Waste rule, effective immediately
(64 FR 55153). Finally, on November 15, 2000, the EPA granted interim
authorization for Massachusetts to regulate Cathode Ray Tubes under the
Toxicity Characteristics rule through January 1, 2003, effective
immediately (65 FR 68915). This interim authorization subsequently was
extended to run through January 1, 2006 (67 FR 66338, October 31,
2002).
C. What Decisions Is the EPA Making in This Standard Authorization?
The EPA is authorizing Massachusetts regulations which will update
the State's hazardous waste program. The State regulations cover
hazardous waste definitions and miscellaneous provisions, provisions
for the identification and listing of hazardous wastes, and standards
for hazardous waste generators, which correspond to RCRA Consolidated
Checklists C1, C2 and C3, respectively. The State regulations have been
updated to address most Federal RCRA requirements listed in Checklists
C1, C2 and C3 through at least July 1, 1990. The EPA is authorizing
these changes. In addition to addressing requirements in Checklists C1,
C2 and C3 not previously covered by authorized State regulations, the
State regulations make some changes to the previously authorized
Satellite Accumulation, Universal Waste rule and Toxicity
Characteristics rule regulations. The EPA also is authorizing these
changes. In addition, the State regulations include some State
initiated changes to previously authorized Base Program regulations
(i.e., changes made for reasons other than addressing new EPA
requirements). The EPA also is authorizing these changes insofar as
they address hazardous waste definitions and miscellaneous provisions,
provisions for the identification and listing of hazardous wastes, and
standards for hazardous waste generators, and except as specified
below. Finally, the State regulations include provisions which track
the 180 Day Accumulation Time rule for metal finishing industry waste
water treatment sludges (F006) being recycled, adopted by the EPA on
March 6, 2000 (65 FR 12397). The EPA also is authorizing these
provisions.
The specific RCRA program revisions for which the EPA is
authorizing the Commonwealth of Massachusetts are listed in the table
below. The Federal requirements in the table are identified by their
checklist numbers and rule descriptions. The following abbreviation is
used in defining analogous state authority: CMR = Code of Massachusetts
Regulations. The citations in the table are to the CMR provisions as
recently adopted/amended by the MADEP in Massachusetts Register No. 994
(February 27, 2004).
------------------------------------------------------------------------
Description of Federal requirements and
checklist reference numbers Analogous state authority
------------------------------------------------------------------------
Consolidated Checklist 1 through July 1, 310 CMR 30.001-30.009; 30.010
1990, covering base program (definitions), except for
requirements in 40 CFR part 260, and definitions relating to
requirements in the following rule program elements not being
checklists included in part 260: authorized, namely ``mixed
waste,'' ``municipal or
industrial wastewater
treatment facility permitted
under M.G.L. c. 21, sec. 43''
and definitions relating to
used oil program; 30.011-
30.030.
(5) National Uniform Manifest
(definitions), 49 FR 10490, 3/20/84;
(11) Corrections to Test Methods Manual,
49 FR 47390, 12/4/84;
[[Page 11803]]
(13) Definition of Solid Waste, 50 FR
14216, 4/11/85 as amended on 8/20/85 at
50 FR 33541 (except for variance
authorities, 40 CFR 260.30 through 40
CFR 260.33);
(23) Generators of 100 to 1000 kg
Hazardous Waste (definitions), 51 FR
10146, 3/24/86;
(24) Financial Responsibility;
Settlement Agreement (definitions), 51
FR 16422, 5/2/86;
(28) Standards for Hazardous Waste
Storage and Treatment Tank Systems
(definitions), 51 FR 25422, July 14,
1986 as amended on August 15, 1986 at
51 FR 29430;
(35) Revised Manual SW-846, Amended
Incorporation by Reference
(definitions), 52 FR 8072-8073, March
16, 1987;
(49) Identification and Listing of
Hazardous Waste, Treatability Studies
Sample Exemption (definition), 53 FR
27290, 7/19/88;
(67) Testing and Monitoring Activities,
54 FR 40260, 9/29/89;
(71) Mining Waste Exclusion II
(definition), 55 FR 2322, 1/23/90.
Consolidated Checklist 2 through July 1, 310 CMR 30.101-30.103; 30.104
1990, covering base program (exemptions), except for
requirements in 40 CFR part 261 and 30.104(3)(d) (research study
requirements in the following rule samples); 30.105-30.162;
checklists included in part 261: 30.353 (rules for very small
quantity generators, being
authorized in place of EPA
conditional exemption in 40
CFR 261.5)
(4) Chlorinated Aliphatic Hydrocarbon
Listing (F024), 49 FR 5308, 2/10/84;
(7) Warfarin and Zinc Phosphide Listing,
49 FR 19922, 5/10/84;
(8) Lime Stabilized Pickle Liquor
Sludge, 49 FR 23284, 6/5/84;
(9) Household Waste, 49 FR 44978, 11/13/
84;
(13) Definition of Solid Waste, 50 FR
614, 1/4/85 as amended 4/11/85 at 50 FR
14216 and 8/20/85 at 50 FR 33541;
(14) Dioxin Waste Listing and Management
Standards, 50 FR 1978, 1/14/85;
(17C) HSWA Codification Rule--Household
Waste, 50 FR 28702, 7/15/85;
(17J) HSWA Codification Rule--Cement
Kilns, 50 FR 28702, 7/15/85;
(18) Listing of TDI, TDA, DNT, 50 FR
42936, 10/23/85;
(20) Listing of Spent Solvents, 50 FR
53315, 12/31/85 as amended on 1/21/86
at 51 FR 2702;
(21) Listing of EDB Waste, 51 FR 5327, 2/
13/86;
(22) Listing of Four Spent Solvents, 51
FR 6537, 2/25/86;
(23) Generators of 100 to 1000 kg
hazardous waste, 51 FR 10146, 3/24/86;
(26) Listing of Spent Pickle Liquor, 51
FR 19320, 5/28/86 amended on 9/22/86 by
51 FR 33612 and on 8/3/87 by 52 FR
28697;
(28) Standards for Hazardous Waste
Storage and Treatment Tank Systems, 51
FR 25422, 7/14/86 as amended on 8/15/86
at 51 FR 29430;
(29) Correction to Listing of Commercial
Chemical Products and Appendix VIII, 51
FR 28296, 8/6/86 (superseded by
Checklist 46, see below);
(31) Exports of Hazardous Waste, 51 FR
28664, 8/8/86;
(33) Listing of EBDC, 51 FR 37725, 10/24/
86;
(37) Definition of Solid Waste,
Technical Correction, 52 FR 21306, 6/5/
87;
(41) Identification and Listing of
Hazardous Waste, 52 FR 26012, 7/10/87;
(46) Technical Correction,
Identification and Listing of Hazardous
Waste, 53 FR 13382, 4/22/88;
(47) Identification and Listing of
Hazardous Waste, Technical Correction
(corrects CL 23);
(49) Identification and Listing of
Hazardous Waste, Treatability Studies
Sample Exemption, 53 FR 27290, 7/19/88;
(53) Identification and Listing of
Hazardous Waste, and Designation,
Reportable Quantities, and
Notification, 53 FR 35412, 9/13/88;
(56) Identification and Listing of
Hazardous Waste, Removal of Iron
Dextran from the List of Hazardous
Wastes, 53 FR 43878, 10/31/88;
(57) Identification and Listing of
Hazardous Waste, Removal of Strontium
Sulfide from the List of Hazardous
Wastes, 53 FR 43881, 10/31/88;
(65) Mining Waste Exclusion I, 54 FR
36592, 9/1/89;
(67) Testing and Monitoring Activities,
54 FR 40260, 9/29/89;
(68) Reportable Quantity Adjustment
Methyl Bromide Production Wastes, 54 FR
41402, 10/6/89;
(69) Reportable Quantity Adjustment, 54
FR 50968, 12/11/89;
(71) Mining Waste Exclusion II, 55 FR
2322, 1/23/90;
(72) Modifications of F019 Listing, 55
FR 5340, 2/14/90;
(73) Testing and Monitoring Activities,
Technical Corrections, 55 FR 8948, 3/9/
90;
(75) Listing of 1,1-Dimethylhydrazine
Production Wastes, 55 FR 18496, 5/2/90;
(76) Criteria for Listing Toxic Wastes,
technical amendment, 55 FR 18726, 5/4/
90.
Consolidated Checklist 3 through July 1, 310 CMR 30.301-30.352 (rules
1990, covering base program for large and small quantity
requirements in 40 CFR part 262 and generators); revisions to
requirements in the following rule 30.685(1) (referenced by
checklists included in part 262: generator regulations);
30.361 (international
shipments); 30.061-30.064
(generator notifications/i.d.
numbers).
(1) Biennial Report, 48 FR 3977, 1/28/
83;
[[Page 11804]]
(5) National Uniform Manifest, 49 FR
10490, 3/20/84;
(17D) HSWA Codification Rule, Waste
Minimization, 50 FR 28702, 7/15/85;
(23) Generators of 100 to 1000 kg
Hazardous Waste, 51 FR 10146, 3/24/86;
(28) Standards for Hazardous Waste
Storage and Treatment Tank Systems, 51
FR 25422, 7/14/86 as amended on 8/15/86
at 51 FR 29430;
(31) Exports of Hazardous Waste, 51 FR
28664, 8/8/86;
(32) Standards for Generators, Waste
Minimization Certifications, 51 FR
35190, 10/1/86;
(42) Exception Reporting for Small
Quantity Generators of Hazardous Waste,
52 FR 35894, 9/23/87; laboratories
(48) Farmer Exemptions, Technical
Corrections, 53 FR 27164, 7/19/88;
(58) Standards for Generators of
Hazardous Waste, Manifest Renewal, 53
FR 45089, 11/8/88;
(71) Mining Waste Exclusion II, 55 FR
2322, 1/23/90.
Note: The Massachusetts
``Class A'' recycling
regulations regarding
generators doing on-site
recycling also are being
authorized, as described in
Part II of this document.
Special rules for certain
university covered by the New
England Universities'
Laboratories XL project also
are being authorized, as
described in Part III of this
document.
RCRA Cluster X:
(184) Accumulation Time for Waste Water 310 CMR 30.340(5)
Treatment Sludges, 65 FR 12378, 3/8/00.
Revisions to Previously Authorized
Rules:
(12) Satellite Accumulation Rule, 49 FR 310 CMR 30.340(6), 30.351(5),
49568, 12/20/84;. 30.351(2)(b)(6.) and
30.353(2)(b)(6.).
(119) Toxicity Characteristics Revision, 310 CMR 30.155 and 30.012
TCLP Correction, 57 FR 55114, 11/24/92 (updated incorporation by
as amended on 2/2/93 at 58 FR 6854. reference).
(142) Universal Waste Rule, 60 FR 25492, 310 CMR 30.1034(5)(c)(1.)(c.)
5/11/95. (revised cross-reference).
------------------------------------------------------------------------
Following review of these Massachusetts regulations, the EPA has
determined that they are equivalent to, no less stringent than and
consistent with the Federal program. Therefore, under the standard
authorization process, the EPA is granting Massachusetts final
authorization to operate its updated hazardous waste program as
reflected in the table above. The reasons for these determinations are
set forth in the Administrative Docket, which is available for public
review. Many of the State regulations track Federal requirements
virtually identically. Others differ from the Federal regulations in
particular details, but have been determined by the EPA to be
equivalent to the Federal regulations in providing the same (or
greater) overall level of environmental protection with respect to each
Federal requirement. The resolution of various issues relating to the
State regulations is recorded in an EPA Memorandum dated February 14,
2003 entitled ``Comments on Proposed Massachusetts RCRA Regulations''
and an EPA Memorandum dated March 31, 2003 entitled ``Resolution of
Issues Regarding Proposed Massachusetts RCRA Regulations.''
The final State regulations being authorized by the EPA today are
virtually identical to the proposed State regulations that were
proposed to be approved by the EPA on October 21, 2003. The only
substantive difference between the proposed state regulations and final
regulations is that, in response to public comments made at the State
level, the MADEP has not adopted the proposed requirement that
inspection logs be kept of inspections made in Satellite accumulation
areas. The requirement that weekly inspections occur in such areas has
been maintained. The EPA is today authorizing the State's Satellite
accumulation area regulations, notwithstanding this change, since the
State's regulations remain at least as stringent as the federal
Satellite accumulation area regulations. The EPA is granting this final
authorization without conducting an additional public comment process,
since the change is a minor one and is a logical outgrowth from the
State regulations initially proposed to be authorized by the EPA.
Today's authorization addresses some but not all of the RCRA
provisions which need to be adopted by the State. Future updates of the
State's regulations will need to address requirements covered by
Checklists C1 through C3 adopted after July 1, 1990 and requirements
covered by Checklists C4 through C10 adopted since July 1, 1984. The
EPA has not reviewed and is not currently authorizing changes the State
may have made to Base Program regulations relating to Checklists C4-
C10. (Note, Checklists C4 through C10 address EPA provisions found in
40 CFR parts 263, 264, 265, 266, 268, 270, 124 and 279). Also not
covered in the current authorization are some rules issued by the EPA
before July 1, 1990 which apply in part to generators, namely the 1986
Radioactive Mixed Waste rule/interpretation, the various rules relating
to Land Disposal Restrictions (``LDRs''), and the 1990 Organics Air
Emissions rule (``AA'' and ``BB'' rule). Also not covered in the
current authorization are sector-specific rules that the MADEP has
adopted for printers, photo processors and dry cleaners under its
Environmental Results Program (``ERP''). Although many sources in these
sectors are subject to RCRA requirements, the MADEP has advised the EPA
that the ERP regulations have not made any changes to the hazardous
waste management requirements applicable to these sectors, and has not
submitted the ERP regulations for authorization at this time. Also not
covered in the current authorization is the State regulation at 310 CMR
30.104(3)(d) relating to research facilities. That regulation relates
to an exemption from full Treatment, Storage, Disposal Facility
(``TSDF'') requirements found at 310 CMR 30.864. The EPA will review
that research facility provision (and the related exemption) when the
MADEP submits updated regulations for TSDFs (Consolidated Checklists
C5, C6 and C9). Also not covered in the current authorization is the
proposed State definition of ``municipal or industrial
[[Page 11805]]
wastewater treatment facility permitted under M.G.L. c. 21, sec. 43''
in 310 CMR 30.010. That definition relates to an exemption from full
TSDF requirements found at 310 CMR 30.801(4). The EPA will review this
definition (and the related exemption) when the MADEP submits updated
regulations for TSDFs.
D. Where Are the State Rules Different From the Federal Rules?
The most significant differences between the State rules and the
Federal rules are summarized below. It should be noted that this
summary does not describe every difference, or every detail regarding
the differences that are described. Members of the regulated community
are advised to read the complete regulations to ensure that they
understand all of the requirements with which they will need to comply.
1. More Stringent Provisions
There are aspects of the Massachusetts program which are more
stringent than the Federal program. All of these more stringent
requirements are part of the federally enforceable RCRA program, and
must be complied with in addition to the State requirements which track
the minimum Federal requirements. These more stringent requirements
include the following:
Massachusetts does not follow the EPA
interpretation allowing Large Quantity Generators and Small Quantity
Generators to conduct treatment without permits in accumulation tanks
and containers.
Massachusetts imposes various requirements
regarding storage of hazardous wastes by generators which are more
stringent than Federal requirements. For example, Massachusetts
requires that labels on tanks and containers include identification of
the hazardous wastes and the type of hazards associated with the
wastes, as well as tracking the Federal requirement that the labels
include the words ``hazardous waste.''
In addition, Massachusetts specifies record-
keeping requirements to document compliance with requirements in some
circumstances where the record-keeping is not expressly required under
the Federal regulations, e.g., the keeping of an inspection log for
container inspections in central storage areas.
Massachusetts imposes spill containment
requirements for container areas (not just for tanks as in the Federal
regulations), including a requirement that indoor containers be located
on an impervious base and a requirement that outdoor containers have
full secondary containment.
Massachusetts requires security measures and
posting of signs at hazardous waste storage areas, in addition to the
labeling of individual tanks and containers as required by the Federal
regulations.
Massachusetts does not allow any storage of
hazardous wastes in open tanks, whereas the Federal regulations allow
such storage except when otherwise required by the 40 CFR parts 264 and
265, subpart CC hazardous air emission rules.
The Massachusetts satellite storage regulations
require containers to be moved from satellite areas to central storage
areas within three days of a container being filled, whereas this
three-day period begins to run under the Federal regulations only when
more than 55 gallons has been accumulated in the satellite area.
Massachusetts specifies requirements for Very
Small Quantity Generators (``VSQGs'') (Federal Conditionally Exempt
Small Quantity Generators) which go beyond the Federal requirements for
conditional exemption. For example, Massachusetts specifies safe
storage practices for VSQGs whereas the Federal regulations regarding
tank and container storage apply only to Large Quantity Generators
(``LQGs'') and Small Quantity Generators (``SQGs'').
In addition, Massachusetts prohibits VSQGs from
generating or accumulating any acutely hazardous wastes, whereas the
Federal regulations allow such generators to accumulate up to one
kilogram of such wastes.
Finally, VSQG hazardous wastes may be sent to
municipal solid waste landfills under the Federal program but not under
the Massachusetts program.
2. Broader in Scope Provisions
There also are aspects of the Massachusetts program which are
broader in scope than the Federal program. The State requirements which
are broader in scope are not considered to be part of the Federally
enforceable RCRA program. However, they are fully enforceable under
State law and must be complied with by sources within Massachusetts.
These broader in scope requirements include the following:
As further discussed in part II, below,
Massachusetts designates and regulates as hazardous many recyclable
materials not regulated as hazardous wastes under the Federal RCRA
program, in addition to regulating those hazardous recyclable materials
that are regulated as hazardous wastes in the Federal program.
Massachusetts regulates both Centers and Events
which collect household hazardous wastes and VSQG hazardous wastes. In
contrast, household hazardous wastes are not regulated as hazardous
wastes under the Federal program even when collected at centers and
events. In addition, under the Federal regulations, VSQG hazardous
wastes may be sent to facilities authorized by the State to manage such
wastes, but there are no Federal regulations specifying the standards
to be followed at facilities which are centers and events.
3. Different but Equivalent Provisions
As noted in part I.C. above, there also are various Massachusetts
regulations which differ from but have been determined to be equivalent
to the Federal regulations. These State regulations which are different
from but equivalent to the Federal regulations are part of the
Federally enforceable RCRA program. These different but equivalent
requirements include the following:
The Massachusetts regulations regarding
satellite storage allow more than one container in a satellite area (so
long as there is only one container per waste stream) whereas the
Federal regulations contemplate that there will be only one 55 gallon
container in each satellite area. Unlike the Federal regulations,
however, the State regulations impose requirements to ensure that
multiple containers will be stored safely, including aisle spacing
requirements, requirements for separation of containers with
incompatible wastes and inspection requirements.
The Massachusetts regulations specify that while
hazardous wastes placed into satellite storage must be counted when
determining a generator's rate of generation, they need not be counted
when determining the amount of hazardous waste stored on site (for
purposes of determining whether a generator is a LQG, SQG or VSQG). In
contrast, under the Federal regulations, wastes in satellite storage
are counted both when determining a generator's rate of generation and
when determining the amount of hazardous waste stored on site.
The Massachusetts regulations contain the same
exemption from hazardous waste requirements for certain chromium wastes
as is found in the Federal regulations at 40 CFR 261.4(b)(6). However,
under the EPA regulation, a generator seeking to claim the exemption
for other than specifically listed waste streams must petition the EPA
and obtain a determination that its particular wastes are exempt. In
contrast, Massachusetts is allowing a generator to make this
[[Page 11806]]
determination for itself provided that the generator documents
compliance with the criteria listed in the State (and Federal)
regulations. Of course, a generator is responsible for making the
correct determination, and the EPA encourages generators who have any
questions to seek guidance from the MADEP or EPA. Also, an exemption
determination made by a generator under the Massachusetts regulations
will apply only within Massachusetts. Petitions will need to be filed
with any other authorized State to which shipments are made, or with
the EPA if shipments are made to a non-authorized State.
The Massachusetts regulations contain
conditional exemptions for bulk scrap metal items as well as smaller
particle scrap metal items being recycled, for whole used circuit
boards as well as shredded circuit boards being recycled and for
certain mixtures of water and unused gasoline being recycled. The
Federal regulations similarly exempt these materials, but sometimes
under different categories (e.g., whole used circuit boards under the
scrap metal category, certain mixtures of water and unused gasoline
under the commercial chemical products category).
Massachusetts allows VSQGs to conduct certain
kinds of treatment on site without a permit. The exemption is limited
to non-thermal treatment (typically neutralization) of wastes generated
on site and is subject to a requirement that the treatment be conducted
safely. The Massachusetts program operates somewhat similarly to the
EPA interpretation allowing certain kinds of treatment in accumulation
tanks and containers without permits, by LQGs and SQGs. However,
Massachusetts allows treatment without permits only by VSQGs, whereas
the EPA interpretation instead allows it by LQGs and SQGs. Also, the
EPA interpretation allows treatment only within accumulation tanks and
containers, whereas the Massachusetts regulation allows treatment in
non-accumulation containers (e.g., laboratory containers) at the site
where the waste was generated, provided of course that this can be done
safely.
The Massachusetts regulations require that
secondary containment systems for outdoor above-ground tanks must have
a capacity at least equal to 110% of the volume of the largest tank.
This requirement is designed to take the place of the Federal
requirement (in 40 CFR 265.193(e)) that such containment systems must
have a capacity at least equal to 100% of the volume of the largest
tank plus sufficient capacity to contain precipitation from a 25 year,
24 hour storm. The Massachusetts regulations generally track the
Federal requirements regarding secondary containment requirements for
underground tanks. The Massachusetts regulations have been amended to
require secondary containment for indoor above-ground tanks with a
capacity at least equal to 100% of the volume of the largest tank (the
Federal standard).
The Massachusetts regulations specify standards
for when tanks will be considered ``empty.'' The EPA regulations
specify such standards only for containers, while specifying that tanks
must be decontaminated before being disposed or reused. It should be
noted that the State's empty tank standard for non-acute wastes is more
stringent than the State (and Federal) empty container standard, i.e.,
it does not allow waste residues to be left in tanks. The State
standards will operate similarly to the tank decontamination
requirement in the Federal regulations, but the State regulations
clarify that generators may be able to determine that tanks are
``empty'' based on knowledge of the waste (e.g., knowledge that there
has been appropriate thorough cleaning of the tanks), without needing
to do TCLP testing in every case.
E. What Will Be the Effect of the Authorization Decision?
The effect of the authorization decision will be that entities in
Massachusetts subject to RCRA will need to comply with the authorized
State requirements instead of the Federal requirements, with respect to
the matters covered by the authorized State requirements, in order to
comply with RCRA. However, until the authorized Massachusetts program
is brought fully up to date, there will continue to be a dual state/
Federal RCRA program in Massachusetts. RCRA was amended by the
Hazardous and Solid Waste Amendments (``HSWA'') in 1984. Section
3006(g) of RCRA, 42 U.S.C. 6906(g), provides that when the EPA
promulgates new regulatory requirements pursuant to HSWA, the EPA shall
directly carry out these requirements in states authorized to
administer the underlying hazardous waste program, until the states are
authorized to administer these new requirements. The EPA has
established various new regulatory requirements pursuant to HSWA which
have not yet been authorized to be administered by Massachusetts. There
also are various self-implementing requirements directly established by
the HSWA statutory amendments themselves. Regulated entities must
comply with these HSWA requirements as set out in the Federal
regulations and statute in addition to authorized State program
requirements. The HSWA requirements that will continue to be
administered by the EPA in Massachusetts include all of the Land
Disposal Restriction (``LDR'') requirements set out in 40 CFR part 268
(including requirements adopted prior to July 1, 1990), the Corrective
Action requirements referenced in 40 CFR 264.101, and the hazardous air
emission standards set out in 40 CFR parts 264 and 265, subparts AA, BB
and CC. A complete list of HSWA requirements is set out in 40 CFR
271.1, Tables 1 and 2.
With respect to TSDF permitting, Massachusetts will continue to
issue permits for all the provisions for which it is authorized and
will administer the permits it issues. The EPA will continue to
administer any RCRA hazardous waste permits or portions of permits it
has issued. The EPA also will continue to issue permits or portions of
permits covering HSWA requirements for which Massachusetts is not
authorized. In addition, the EPA will continue to implement the
provisions of 40 CFR 264.1(f)(2) within Massachusetts. That provision
specifies that TSDFs must comply with any standards promulgated by the
EPA (HSWA or non-HSWA) after a State is authorized, until the State
obtains authorization to issue permits covering such newly promulgated
standards. The major effect of this provision in Massachusetts is that
the EPA will remain responsible for issuing permits for Miscellaneous
Units, since the EPA promulgated the Miscellaneous Unit standards in 40
CFR part 264, subpart X after the initial authorization of the
Massachusetts base program, and since Massachusetts has not yet applied
for and is not now being authorized to carry out these requirements.
Massachusetts is not authorized to carry out its hazardous waste
program in Indian country within the State (land of the Wampanoag
tribe). Today's action will have no effect on Indian country. The EPA
will continue to implement and administer the RCRA program in these
lands.
The EPA is authorizing but not codifying the enumerated revisions
to the Massachusetts program. 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. The EPA does this by referencing the authorized State
rules in 40 CFR part 272. The EPA reserves the amendment of 40 CFR part
272, subpart W for the codification of the
[[Page 11807]]
Massachusetts' program until a later date.
F. Response to Public Comments
The EPA received one comment generally supporting the authorization
of the updated State regulations. A second commenter took no position
on the authorization, but suggested that the EPA make a minor revision
to the description of the federal Satellite accumulation regulations
contained in the proposed rulemaking notice. Specifically, in the
second bulleted item in part I.D.3. of the proposed rulemaking notice,
Region I indicated that under the federal regulations, when a container
is moved from a Satellite accumulation area to a central storage area,
the time allowed for central storage begins to run when the container
is required to be moved, which can be up to three days before the
container is actually moved. The commenter pointed out that EPA's
Office of Solid Waste has issued a more liberal interpretation of the
federal regulations, stating that the time allowed for central storage
begins to run only when the container is moved (provided of course that
the container is moved within the three-day period). See RCRA/Superfund
Hotline Monthly Summary, October 1990 (Faxback 13410). To avoid
confusion, the Region has dropped its prior description of this federal
Satellite accumulation requirement from today's final rulemaking
notice. The Region plans to follow the OSW interpretation when applying
the federal regulations.
This change has no effect on the interpretation of the
Massachusetts regulations being authorized. In the proposed rulemaking
notice, the Region correctly described the State regulations as
specifying that the time allowed for central storage begins to run when
a container is moved (within the three-day period).
II. State-Specific Modification to Federal Hazardous Waste Regulations,
Pursuant to ECOS Program Proposal, To Enable EPA To Authorize Certain
Portions of the Massachusetts Revisions; Resulting Authorization of
Massachusetts Recyclable Materials Regulations
A. What Massachusetts Regulations Are Being Authorized?
In 1986, the MADEP adopted regulations to comprehensively regulate
hazardous recyclable materials, under provisions separate from those
governing hazardous wastes planned to be disposed. These regulations
are found in 310 CMR 30.200. In the Federal RCRA program, some
hazardous recyclable materials are not considered to be hazardous
wastes and thus are exempt from hazardous waste regulation (e.g.,
sludges and byproducts exhibiting a characteristic of hazardous waste
and being reclaimed) whereas other hazardous recyclable materials are
considered to be hazardous wastes and are subject to regulation
including all of the usually applicable hazardous waste generator
regulations (e.g., spent materials, listed sludges and listed
byproducts being reclaimed). In contrast, the State regulations cover
virtually all hazardous recyclable materials under some level of
regulation. However, based on the perceived level of risk, different
recyclable materials are subject to different levels of regulation,
from the least regulated Class A to the most regulated Class C.
Initially, the State's Class A regulations applied only to
recyclable materials that are exempt from Federal regulation. Thus the
State was not required to seek Federal authorization for these
regulations. In 1995, however, the MADEP expanded the Class A category
to include many recyclable materials that are recycled at the site of
generation. Under the State regulations, these Class A recyclable
materials must be recycled in a recycling system that is completely
enclosed, but may be stored in tanks or containers prior to being
recycled, without the entire storage to recycling process being
completely enclosed. Thus the Class A regulations now apply to certain
federally regulated hazardous wastes that are recycled on site by
generators, namely those hazardous recyclable materials that are spent
materials, listed sludges and listed byproducts, that are accumulated
or stored on site before being recycled, and that are recycled through
a process that does not meet all of the conditions for Federal
exemption as a completely enclosed recycling process set out in 40 CFR
261.4(a)(8). In particular, the Class A regulations apply to Federally
regulated recyclable materials currently being stored by about 136
generators with stand alone solvent stills/distillation units and to
Federally regulated recyclable materials currently being stored by
about 40 generators with stand alone silver recovery units.
The EPA is today authorizing the State's Class A regulations
insofar as they apply to the storage of recyclable materials by
generators with stand alone solvent stills/distillation units,
generators with stand alone silver recovery units, and any other
generators who may store Federally regulated recyclable materials
subject to the Class A regulations in the future (i.e., generators
referenced by 310 CMR 30.212(10)). These Class A regulations are now
part of the federally approved and enforceable State base program
generator requirements.
It should be noted that the State has just revised its Class A
regulations (as part of its recent update), and it is the revised Class
A regulations which the EPA is authorizing. With respect to the Class A
program, there are no substantive differences between the final State
regulations being authorized by the EPA today and the proposed State
regulations that were proposed to be approved by the EPA on October 21,
2003.
Today's authorization does not cover the Class A regulations
insofar as they apply to the Federally exempt recyclable materials
referenced by 310 CMR 30.212(1) through (7), as the regulation of these
recyclable materials is beyond the scope of the Federal RCRA program.
The authorization also does not cover the Class A regulations insofar
as they apply to waste oil and specification used fuel oil as
referenced by 310 CMR 30.212 (8)--(9), since the MADEP has not yet
applied to be authorized for the Federal RCRA Used Oil program
(established in 40 CFR part 279). Finally, the authorization does not
cover the State's Class B and Class C regulations, since the MADEP has
not yet applied to be authorized for these regulations (which generally
relate to off-site non-generator recycling).
B. Why is the EPA Making a Federal Regulation Change?
The EPA has reviewed the Massachusetts Class A regulations and
determined that they do not meet particular requirements for State
authorization set out in the current EPA regulations. However, the EPA
also has determined that the Massachusetts Class A regulations meet the
RCRA statutory test of protecting human health and the environment and
are at least as environmentally protective overall as the Federal
program. Thus the EPA is making a State-specific Federal regulation
change to allow authorization of the Massachusetts Class A regulations.
1. Differences in the State Class A Regulations Which Preclude a
Standard Authorization
In comparison with the EPA regulations applicable to storage of
hazardous wastes by generators, the Class A regulations regarding
storage of hazardous recyclable materials by generators differ with
respect to various details. For example, under the Federal regulations,
storage of hazardous wastes
[[Page 11808]]
without TSDF permits by LQGs and SQGs generally is limited to 90 and
180 days, respectively. In contrast, the Class A regulations allow
recyclable materials to be stored pending recycling so long as there is
no ``speculative accumulation.'' This typically allows storage times
without TSDF permits of a year or longer. The EPA regulations on State
authorization specify that, ``[s]tate law must require [TSDF] permits
for owners and operators of all hazardous waste management facilities
required to obtain permits under 40 CFR part 270 . . .'' 40 CFR
271.13(a). By allowing generator storage times without TSDF permits
longer than the Federal regulations, the Class A regulations do not
comply with this current EPA requirement for State authorization.
In addition, the Class A regulations impose requirements regarding
storage of recyclable materials by generators which are quite different
from the Federal regulations in 40 CFR part 262 regarding generator
storage. In place of the Federal categories of LQG, SQG and CESQG
(Massachusetts VSQG), the Class A regulations establish a dual status
system. Generators are classified as LQGs or SQGs or VSQGs with respect
to wastes to be shipped off-site based on the amount of such wastes to
be shipped off-site. Generators are separately classified and regulated
with respect to Class A recyclable materials based on the amounts of
such materials (and are placed in either a merged LQG/SQG category or a
VSQG category for that purpose). The resulting differences between the
State and Federal regulations are fully described in a EPA memorandum
dated July 8, 2002 entitled ``Massachusetts RCRA Program Update: Issues
Regarding Regulation of Recyclable Materials Reclaimed by Generators on
Site.'' The differences include that the State does not count Class A
recyclable materials in determining generator status (for wastes to be
shipped off-site), resulting in some sources which would be LQGs under
the Federal program instead being regulated in a lesser-regulated
generator category. In addition, for sources which remain LQGs
(notwithstanding the difference regarding counting), the usual LQG
requirements regarding contingency planning and training do not apply
to the parts of the generator's site handling the Class A hazardous
recyclable materials. Rather, with respect to these recyclable
materials, such generators are instead subject to the less formal and
detailed Class A requirements regarding emergency planning and
training.
The EPA is committed to reexamining the extent of flexibility that
should be employed when reviewing State RCRA programs. In connection
with another part of Massachusetts' ECOS program proposal, the EPA has
created a Work Group of EPA and State personnel to examine
authorization issues. Without waiting for the results of this effort,
the EPA nevertheless has employed some flexibility consistent with its
current regulations in reviewing the Massachusetts RCRA program update,
as indicated by its approval of some Massachusetts provisions which
differ from Federal provisions, discussed in part I.D. above. However,
the differences between the Massachusetts Class A regulations and the
EPA generator storage regulations are greater than those discussed in
part I.D., and a standard authorization of the Class A regulations is
precluded under the current EPA State authorization regulations by, for
example, the difference regarding when TSDF permits are required. Thus
the EPA is not approving the Massachusetts Class A regulations as a
standard authorization.
2. Justification for Making a Change to the Federal Regulations to
Allow the Authorization
The EPA was persuaded to make a State-specific regulation change to
its Federal regulations to enable the authorization of the Class A
regulations, based on the following reasons. The Massachusetts program
comprehensively regulates hazardous wastes that are recycled on site by
generators, and has operated successfully for many years. The State
regulations contain incentives that encourage recycling (e.g., lower
fees for generators which recycle). In its ECOS project application,
the MADEP reported that as of 1999, over 490,000 tons of wastes were
recycled under its program, as opposed to 90,000 tons of hazardous
wastes that were disposed. Basic requirements are in place in the
State's recycling program, including the requirement to do waste
determinations, the requirement to obtain hazardous waste i.d. numbers
(except for VSQGs) and safe handling requirements. While less stringent
with respect to certain details, the Massachusetts program is at least
as stringent as the Federal program overall. In particular, the
Massachusetts program regulates a broader universe of hazardous
recyclable materials than are regulated in the Federal program. Even if
the focus is limited to Federally regulated wastes, the Massachusetts
program is as stringent as the Federal program overall. It regulates
the recycling process itself as well as prior hazardous waste storage,
unlike the Federal program which regulates only the storage. Finally,
some of the State's more stringent storage requirements (described in
part I.D. above), have been applied to the storage of Class A
materials, including additional labeling requirements and the
prohibition of the use of open tanks.
Thus the Massachusetts Class A regulations meet the RCRA statutory
test of protecting human health and the environment, and constitute an
acceptable alternative approach (to regulating hazardous recyclable
materials) to the approach currently set forth in the Federal
regulations. In addition, the EPA recently announced that it is
planning to propose a change to its regulations to revise the Federal
RCRA regulatory requirements with respect to recyclable materials that
remain in use in a continuous industrial process. 49 FR 11251 (March
13, 2002). This is a part of the EPA's response to the court's decision
in Association of Battery Recyclers v. EPA, 208 F.3d 1047 (D.C.Cir.
2000) (``ABR''), which set aside a portion of an EPA regulation
regarding mineral processing industry recyclable materials. If the EPA
ultimately adopts a regulation exempting recyclable materials used in a
continuous industrial process from Federal RCRA regulation, this
exemption is likely to cover at least most Class A recyclable
materials.
The EPA does not believe that in light of the ABR decision, it
should determine now that all Class A materials are not subject to
Federal regulation, and thus conclude that the Class A regulations
create no authorization issues. Such a result is not compelled by the
court's decision and would prejudge the EPA's anticipated general
rulemaking process. However, the fact that the EPA is planning to move
in the direction of reducing regulation regarding recyclable materials
is an additional reason counseling in favor of authorizing the State's
program regarding Class A recyclable materials under the authority of a
special EPA regulation. As mentioned above, the State's Class A program
has operated successfully for many years. Requiring the State to now
change that program to track EPA requirements does not make sense in
the particular circumstances, including the EPA's announced intention
to soon change the requirements.
The EPA is making the State-specific change to its Federal
regulations pursuant to a proposal for flexibility submitted by the
MADEP under the ECOS program. Under the Joint EPA/State Agreement to
Pursue Regulatory Innovation, the EPA agreed to entertain
[[Page 11809]]
State proposals for flexibility in an agreement entered into between
the EPA and the Environmental Council of States. See 63 FR 24784 (May
5, 1998). As specified in that agreement, the EPA may accept State
proposals to follow alternative regulatory requirements when (as here)
the alternative requirements provide at least an equivalent overall
level of environmental protection as the standard EPA mandated
requirements.
C. What Is the Regulation Change?
The change to the Federal regulations which is enabling the EPA to
grant the requested flexibility is set out at the end of this document.
The EPA is amending 40 CFR 262.10 to add a paragraph (k), which
specifies that generators within Massachusetts may comply with the
Class A regulations, when authorized, with respect to the recyclable
materials and matters covered by the authorization, instead of
complying with certain standard EPA regulations. This new regulation is
taking effect immediately upon today's publication in the Federal
Register. Having the regulation take effect immediately is justified
under RCRA section 3010(b), 42 U.S.C. 6930(b) and under the
Administrative Procedures Act, 5 U.S.C. 553(d), since this new
regulation allows the EPA to authorize a long-standing State program
and the regulated community does not need any further time to come into
compliance with that State program. The EPA Administrator has delegated
one-time authority to the Regional Administrator, EPA New England, to
make this regulation change.
D. What Will be the Effect of the Federal Regulation Change?
The change to the Federal regulations is enabling the EPA to today
authorize the Massachusetts regulations, since the Federal regulations
now specify that the State regulations contain acceptable alternative
standards for Massachusetts. The State regulations are equivalent to,
consistent with and no less stringent than these acceptable alternative
standards. Allowing the alternative standards is justified for the
reasons discussed in part II.B, above. In particular, the EPA has
determined that the alternative program protects human health and the
environment and is at least as stringent overall as the standard EPA
RCRA program. The EPA believes that it has the authority to approve
this alternative program under the RCRA statute.
However, the change to the Federal regulations does not itself
result in any change to the legal requirements applicable to generators
in Massachusetts. Rather, generators became subject to the revised
Class A requirements under State law following their recent adoption in
final form by the MADEP. These requirements are in turn becoming part
of the Federally enforceable RCRA program upon being authorized by the
EPA today. For the sake of efficiency, the EPA is both making the
Federal regulation change and authorizing the State regulations in this
same rulemaking today. Thus in this particular case, the State
requirements are becoming authorized and federally enforceable at the
same time as the Federal regulation change.
Under section 3006 of RCRA, the EPA may authorize a qualified State
to administer and enforce a hazardous waste program within the State.
(See 40 CFR part 271 for the requirements for authorization). States
with final authorization administer their own hazardous waste programs
in lieu of the Federal program. Following authorization, the EPA
continues to have independent enforcement authority under RCRA sections
3007, 3008, 3013 and 7003.
After authorization, Federal rules written under RCRA provisions
which predate the Hazardous and Solid Waste Amendments of 1984 (HSWA)
no longer apply in the authorized state. Rather, the authorized State
regulations apply in lieu of such Federal requirements. In addition,
new Federal requirements imposed by such rules do not take effect in an
authorized state until the state adopts the requirements.
In contrast, under section 3006(g) of RCRA, new requirements and
prohibitions imposed by HSWA take effect in authorized states at the
same time that they take effect in non-authorized states. The EPA is
directed to carry out HSWA requirements and prohibitions in authorized
states until the state is granted authorization to do so.
Today's federal regulation change is promulgated pursuant to non-
HSWA authority. Thus, as explained above, the alternative standards
contemplated by the rule took effect in Massachusetts following
adoption by Massachusetts and are becoming Federally enforceable upon
being authorized by the EPA today. They now apply in lieu of the EPA
program with respect to the recyclable materials and matters covered by
the authorization. For example, generators storing solvents for
recycling in stand alone stills/distillation may store such solvents
without permits for more than the 90 or 180 days set out in the Federal
regulations, so long as they do not engage in ``speculative
accumulation.''
Of course, generators still will need to comply with any other
applicable RCRA requirements in addition to the Class A requirements.
For example, generators storing some wastes for recycling and other
wastes for disposal will need to comply with the authorized State
requirements regarding wastes being stored for disposal with respect to
those other wastes. In addition, generators will need to comply with
any applicable Federal requirements which are being directly
implemented by the EPA within Massachusetts pursuant to HSWA, i.e., all
HSWA requirements for which the State has not yet been authorized.
In particular, the State has not yet been authorized for and the
EPA is continuing to administer within Massachusetts the air emission
standards for tanks and containers set out in 40 CFR part 265, subpart
CC (``CC regulations''). These regulations are applicable to many large
quantity generators storing solvents, among others. Following today's
authorization of the Class A regulations, the EPA plans to administer
and enforce these CC regulations within Massachusetts as follows.
First, only generators which are classified as large quantity
generators under the State regulations will be considered subject to
the CC regulations. That is, the EPA will utilize the Massachusetts
counting rules when administering the CC rule within Massachusetts.
This will avoid generators needing to do two separate State and Federal
status calculations. Second, however, any generators which are
classified as large quantity generators under the State regulations
with respect to any part of their site will be subject to the CC
regulations throughout their sites. Large quantity generators storing
solvents will need to comply with all applicable requirements imposed
by the CC regulations, whether the solvents are being stored for
disposal or recycling. That is, the EPA will not utilize the
Massachusetts dual status concept when administering the CC rule within
Massachusetts. The EPA expects that any generator which is a LQG will
take the steps required under the CC rule to prevent hazardous air
emissions, just as such generators are subject to all applicable Clean
Air Act requirements whether they dispose of their wastes or recycle.
E. For How Long Will the Authorization Continue?
Unlike the authorization of the Labs XL project regulations
discussed in part III below, today's authorization of the Massachusetts
ECOS project regulations will continue indefinitely. The EPA believes
this is justified based on the
[[Page 11810]]
long successful operation of the Massachusetts Class A program, i.e.,
no further assessment is necessary prior to the permanent authorization
of this RCRA program element. Of course, like any other authorized
program element, the Massachusetts Class A program will be subject to
EPA oversight and possible future revision. But absent future EPA
action to modify or rescind the action, the authorization will
continue.
If the EPA issues future final regulations changing the status of
recyclable materials used in a continuous industrial process under
Federal RCRA regulation, portions of the Massachusetts Class A program
now being authorized could then become beyond the scope of Federal
regulation. If and when any revised national regulations take effect,
the EPA will then address, in connection with a later update of the
Massachusetts RCRA program, the effect of the national regulations on
the Massachusetts program.
F. Response to Public Comments
The EPA received one comment supporting the authorization of the
State's Class A program. No comments were filed opposing authorization
of the program.
III. Extension of Site-Specific Regulations for New England
Universities' Laboratories XL Project To Enable EPA To Authorize
Certain Portions of the Massachusetts Revisions; Authorization of
Massachusetts XL Project Regulations
A. What Is the New England Universities' Laboratories XL Project?
Project XL--``eXcellence and Leadership'' was announced in May 1995
as a part of the National Performance Review and the EPA's effort to
reinvent environmental protection. See 60 FR 27282 (May 23, 1995).
Project XL provides a limited number of private and public regulated
entities an opportunity to develop pilot projects to provide regulatory
flexibility that will result in environmental protection that is
superior to what would be achieved through compliance with current
standard regulations and reasonably anticipated future regulations.
One of the projects that has been approved under Project XL is the
New England Universities' Laboratories project. A Project XL proposal
that the EPA exercise flexibility under RCRA was developed for the
University of Massachusetts--Boston, Boston, MA, Boston College,
Chestnut Hill, MA, and the University of Vermont, Burlington, VT (the
``participating universities''). A Final Project Agreement approving
the proposal was signed by the EPA, the participating universities, the
MADEP and the Vermont Department of Environmental Conservation, on
September 28, 1999. Pursuant to that agreement, the participating
universities have been allowed to comply with Environmental Management
Plans (EMPs) covering their laboratories in place of certain standard
requirements for hazardous waste generators, during a trial period. In
order to allow this experiment, the EPA adopted special regulations
during 1999 which are set forth in 40 CFR 262.10(j) and 40 CFR 262.100-
108. See 64 FR 52380 (September 28, 1999) (final rulemaking) and 64 FR
40696 (July 27, 1999) (proposed rulemaking). The reasons for approving
the special EPA regulations are fully set forth in those rulemaking
notices and will not be repeated here. Like the special regulation
discussed in part II above in connection with the proposed ECOS
project, the special EPA regulations were designed to enable the EPA to
authorize State regulations that are different from the standard EPA
regulations. Also like the ECOS project, the actual implementation of
the XL project requires the adoption, and Federal authorization, of
State regulations.
Following the adoption of EPA's special Project XL regulations,
both Massachusetts and Vermont adopted regulations setting alternative
standards for laboratories at the participating universities. The
Vermont regulations were authorized by the EPA and became part of the
Federally enforceable Vermont RCRA program on October 26, 2000. See 65
FR 64164. The Massachusetts regulations are in effect under State law
and recently were submitted to the EPA to be authorized as part of the
current update of the Massachusetts RCRA program.
B. Why Is the EPA Extending the Expiration Date of Its XL Project
Regulations?
The New England Universities' Laboratories XL project was initially
planned to run for four years (September 1999 through September 2003).
Thus the EPA project regulations had an expiration date of September
30, 2003. See 40 CFR 262.108.
The EPA conducted a mid-term evaluation of the project between
September 2001 and September 2002. As set out in the mid-term
evaluation report, the project has shown great success in some
important areas: developing EMPs, training staff, increasing awareness,
shifting attitudes and behaviors, improving the range of activities
that determine compliance and emergency preparedness, and demonstrating
that the environmental management system approach to managing
laboratory waste is gaining hold and making progress. See Project in
Excellence and Leadership: New England Universities' Laboratories Mid-
Term Evaluation: Piloting Superior Environmental Performance in Labs,
EPA 100-R-02-005 (September 2002), page 5. On the other hand, the
project has not to date shown the expected successes in other areas
such as chemical reuse and redistribution and pollution prevention. Id.
The implementation of the EMPs proved to be complex, and took somewhat
longer than anticipated, resulting in delays in aggressively focusing
on reuse, redistribution and pollution prevention. However, efforts to
encourage pollution prevention and ``Green Chemistry'' practices have
begun to be more widely endorsed by faculty, and the EPA hopes and
expects that they will bear fruit in the next several years.
Taking account of both the progress that has been made and the
remaining issues, the EPA (with the concurrence of the MADEP and VTDEC)
believes that the appropriate course of action is to extend the
project's expiration date by three years, i.e., to September 30, 2006.
This will allow for a further period of evaluation, including a further
test of whether the universities will succeed in their efforts to
implement significant chemical reuse and redistribution and pollution
prevention. In light of the success that has occurred in EMP
development and implementation, the EPA believes that the continuation
of this project should provide a superior level of environmental
performance in comparison to an immediate return to standard RCRA
regulation.
In addition, the EPA Office of Solid Waste currently is analyzing
issues regarding the management of hazardous waste in laboratories,
using a discussion group of EPA Headquarters and Regional personnel,
and stakeholder meetings. This process may result in changes to the EPA
requirements or the way the EPA interprets its requirements regarding
laboratories. The proposed three-year extension of the New England
Universities' Laboratories XL project will allow the three
participating universities to continue to follow the alternative
project requirements while the EPA considers whether to make changes in
national policy. This will avoid those universities needing to
terminate the project, prior to the EPA having a chance to consider
whether standard RCRA requirements applicable
[[Page 11811]]
to university laboratories should be changed. The continuation of the
project also should provide information that is useful to the EPA as it
analyzes the potential national impact of making changes regarding the
management of hazardous waste in laboratories.
C. What Is the Federal Regulation Change?
The Federal regulation change is extending the expiration date in
40 CFR 262.108 from September 30, 2003 to September 30, 2006. The other
special EPA regulations adopted to allow the implementation of the New
England Universities' Laboratories XL project are staying the same. The
regulation change is set out at the end of this document. This
regulation change is taking effect immediately upon today's publication
in the Federal Register. Having the regulation take effect immediately
is justified under RCRA section 3010(b), 42 U.S.C. 6930(b) and under
the Administrative Procedures Act, 5 U.S.C. 553(d), since this
regulation change simply allows the EPA to extend an ongoing XL project
and the regulated entities involved in the project do not need any
further time to come into compliance with the requirements of this
project. The EPA Administrator has delegated one-time authority to the
Regional Administrator, EPA New England, to make this regulation
change.
As part of its recent update, Massachusetts has similarly changed
its State regulations to extend the expiration date of this XL project
to September 30, 2006. The EPA and other signatories also are amending
the Final Project Agreement for this XL project to extend the
expiration date, with annual reporting obligations also being extended
and all other provisions of the agreement remaining the same.
D. What Will Be the Effect of the Federal Regulation Change?
The change to the Federal regulations is enabling the EPA to today
authorize the Massachusetts regulations governing the New England
Universities' Laboratories XL project, through September 30, 2006. The
State regulations (310 CMR 30.354) have been submitted to the EPA to be
authorized as part of this current update of the Massachusetts RCRA
program. The EPA is granting this authorization to run through
September 30, 2006.
The different effects of authorization regarding HSWA and non-HSWA
rules was discussed above in part II.D. The extension to the Federal XL
project regulation is being promulgated pursuant to non-HSWA authority.
Thus, the extension took effect in under State law following its recent
adoption by Massachusetts, and the requirements of the alternative XL
program are becoming Federally enforceable today, through September 30,
2006, with respect to the two universities in Massachusetts, due to
today's authorization of the State regulations by the EPA.
E. Response to Public Comments
The EPA received one comment supporting the extension of the XL
project. No comments were filed opposing extension of the project or
authorization of this program element.
IV. Statutory and Executive Order Reviews
The EPA has examined the cumulative effects of the State
authorization decisions discussed above, and the two changes to the
Federal regulations, and reached the conclusions set out below.
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely effect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof;
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Because the annualized cost of these actions will be significantly
less than $100 million and because these actions will not meet any of
the other criteria specified in the Executive Order, it has been
determined that this rule is not a ``significant regulatory action''
under the terms of the Executive Order and is therefore not subject to
OMB review.
B. Paperwork Reduction Act
Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., Federal
agencies must consider the paperwork burden imposed by any information
request contained in a proposed rule or final rule. These actions
authorize or enable the authorization of state requirements for the
purpose of RCRA 3006 and impose no additional requirements beyond those
imposed by State law. Therefore, they require no information collection
activities subject to the Paperwork Reduction Act. In addition, no
Federal reporting obligations have been established under the ECOS
project. Rather, the EPA will monitor this project through its regular
oversight of the Massachusetts RCRA program. Finally, the New England
Universities' Laboratories XL project applies to only three
universities, and any reporting obligations for nine or fewer sources
are not subject to the Paperwork Reduction Act. Therefore no
information collection request (ICR) was submitted to OMB for review
under the Paperwork Reduction Act.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., generally
requires an agency to prepare a regulatory flexibility analysis of any
rule subject to notice and comment rulemaking under the Administrative
Procedure Act or other statute, unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
These actions authorize or enable the authorization of state
requirements for the purpose of RCRA 3006 and impose no additional
requirements beyond those imposed by state law. In addition, the two
Federal regulatory changes will increase regulatory flexibility, which
should have a positive economic effect on small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities under the Regulatory Flexibility
Act, the impact of concern is any significant adverse economic impact,
since the primary purpose of any regulatory flexibility analysis would
be to identify and address regulatory alternatives ``which minimize any
significant economic impact of the proposed rule on small entities.'' 5
U.S.C. 603 and 604. Thus, an agency may certify that a rule will not
have a significant economic impact on a substantial number of small
entities if the rule relieves regulatory burden, or
[[Page 11812]]
otherwise has a positive economic effect on all of the small entities
subject to the rule. Accordingly, the EPA hereby certifies 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.). Thus a regulatory flexibility analysis is not required to
be prepared under that Act.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, the
EPA generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures to State, local, and tribal
governments, in the aggregate, or to the private sector, of $100
million or more in any one year. Before promulgating a EPA rule for
which a written statement is needed, section 205 of the UMRA generally
requires the EPA to identify and consider a reasonable number of
regulatory alternatives and adopt the least costly, most cost-effective
or least burdensome alternative that achieves the objectives of the
rule. The provisions of section 205 do not apply when they are
inconsistent with applicable law. Moreover, section 205 allows the EPA
to adopt an alternative other than the least costly, most cost-
effective or least burdensome alternative if the Administrator
publishes with the final rule an explanation why that alternative was
not adopted. In addition, before the EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments about the
regulatory requirements, enabling officials of affected small
governments to have meaningful and timely input in the development of
the EPA regulatory proposals with significant Federal intergovernmental
mandates, and informing, educating, and advising small governments on
compliance with the regulatory requirements.
The EPA has determined that the section 202 and 205 requirements do
not apply to this action because the rule does not contain a Federal
mandate that may result in annual expenditures of $100 million or more
for State, local, and/or tribal governments in the aggregate, or the
private sector. Costs to State, local or tribal governments and the
private sector already exist under the State program, and the actions
will not impose any additional obligations on regulated entities. In
fact, the EPA's approval of State programs generally may reduce, not
increase, compliance costs for the private sector, by reducing the need
for companies to comply with Federal requirements in addition to State
requirements. Further, as it applies to the State, this action does not
impose a Federal intergovernmental mandate because UMRA does not cover
duties arising from voluntary participation in a Federal program, such
as Massachusetts' voluntary decision to operate the RCRA program.
Because this action will authorize pre-existing requirements under
state law and will not impose any additional enforceable duties beyond
those required by state law, it also will not uniquely affect small
governments, as described in section 203 of UMRA. Thus the requirements
of section 203 that the EPA develop a small government agency plan will
not apply to this rule.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires the EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have Federalism implications.''
``Policies that have Federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
The actions will not have Federalism implications, as defined in
the Executive Order, because they merely authorize (or enable the
authorization of) 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.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires the EPA to develop an accountable process to ensure
``meaningful and timely input by tribal officials in the development of
regulatory policies that have tribal implications.'' ``Policies that
have tribal implications'' is defined in the Executive Order to include
regulations that have ``substantial direct effects on one or more
Indian tribes, on the relationship between the Federal government and
the Indian tribes, or on the distribution of power and responsibilities
between the Federal government and the Indian tribes.''
The actions will not have tribal implications, as defined by the
Executive Order, because they will have no direct effect on Indian
lands. As noted in Part I.E. above, Massachusetts is not authorized to
administer the RCRA program in Indian country. Rather, the EPA directly
administers the Federal RCRA program in Indian country within
Massachusetts.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks,'' applies to any rule that: (1) Is
determined to be ``economically significant'' as defined under
Executive Order 12866, and (2) concerns an environmental health or
safety risk that the EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it is not
an economically significant rule as defined by Executive Order 12866.
In addition, it does not concern environmental health or safety risks
that the EPA has reason to believe may have a disproportionate effect
on children.
As discussed in parts II and III above, the EPA has determined that
the regulatory flexibility to be allowed by the two Federal regulatory
changes will not create health and safety risks. In any event, the
particular RCRA program elements affected do not pose any
disproportionate risks to children. As discussed in part I above, the
standard authorization portion of this rule simply authorizes
Massachusetts regulations which are equivalent to previously
established Federal RCRA requirements. Authorizing State regulations
which equivalently protect the environment, in place of Federal
regulations, does not create any disproportionate risks to children.
[[Page 11813]]
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This rule is not subject to Executive Order 13211 because that
Executive Order applies only to rules that are ``significant'' under
Executive Order 12866, and this rule is not a significant regulatory
action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs the EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs the
EPA to provide Congress, through OMB, explanations when the Agency
decides not to use available and applicable voluntary consensus
standards.
This rule does not involve technical standards covered by voluntary
consensus standards. In addition, under RCRA section 3006(b), the EPA
grants a State's application for authorization as long as the State
meets the criteria required under RCRA. It would thus be inconsistent
with applicable law for the EPA, when it reviews a State authorization
application, to require the use of any particular voluntary consensus
standard in place of another standard that satisfies the requirements
of RCRA. Therefore, the EPA did not consider the use of any voluntary
consensus standards in developing this rule.
J. Congressional Review Act
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 is submitting 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 in 5 U.S.C. 804(2). This
action will be effective immediately upon today's publication in the
Federal Register.
List of Subjects
40 CFR Part 262
Environmental protection, Hazardous waste, Reporting and
recordkeeping requirements.
40 CFR Part 271
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous waste, Hazardous materials
transportation, Indian-lands, Intergovernmental relations, Penalties,
Reporting and recordkeeping requirements.
Authority: The Federal regulation changes are being made under
the authority of the Resource Conservation and Recovery Act (RCRA)
sections 2002 and 3002, 42 U.S.C. 6912 and 6922. The authorizations
of the Massachusetts revisions are being made under the authority of
RCRA sections 2002 and 3006, 42 U.S.C. 6912 and 6926.
Dated: March 3, 2004.
Ira W. Leighton,
Acting Regional Administrator, EPA New England.
0
For the reasons set forth in the preamble, chapter I of title 40 of the
Code of Federal Regulations is amended as follows:
PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE
0
1. The authority citation for part 262 continues to read as follows:
Authority: 42 U.S.C. 6906, 6912, 6922-6925, 6937, and 6938.
Subpart A--General
0
2. Section 262.10 is amended by adding paragraph (k) to read as
follows:
Sec. 262.10 Purpose, scope and applicability.
* * * * *
(k) Generators in the Commonwealth of Massachusetts may comply with
the State regulations regarding Class A recyclable materials in 310
C.M.R. 30.200, when authorized by the EPA under 40 CFR part 271, with
respect to those recyclable materials and matters covered by the
authorization, instead of complying with the hazardous waste
accumulation requirements of Sec. 262.34, the reporting requirements
of Sec. 262.41, the storage facility operator requirements of 40 CFR
parts 264 and 265 and the permitting requirements of 40 CFR part 270.
Such generators must also comply with any other applicable
requirements, including any applicable authorized State regulations
governing hazardous wastes not being recycled and any applicable
Federal requirements which are being directly implemented by the EPA
within Massachusetts pursuant to the Hazardous and Solid Waste
Amendments of 1984.
Subpart J--University Laboratories XL Project--Laboratory
Environmental Management Standard
0
3. Section 262.108 is revised to read as follows:
Sec. 262.108 When will this subpart expire?
This subpart will expire on September 30, 2006.
PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE
PROGRAMS
0
EPA is granting Final authorization under part 271 to the Commonwealth
of Massachusetts for revisions to its hazardous waste program under the
Resource Conservation and Recovery Act.
[FR Doc. 04-5644 Filed 3-11-04; 8:45 am]
BILLING CODE 6560-50-P