Final Authorizations of State Hazardous Waste Management Program Revisions:

Federal Register Volume 76, Number 195 (Friday, October 7, 2011)

Rules and Regulations

Pages 62303-62306

From the Federal Register Online via the Government Printing Office [www.gpo.gov]

FR Doc No: 2011-25899

ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 271

FRL-9476-2

California: Final Authorization of State Hazardous Waste

Management Program Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final determination.

SUMMARY: California has applied for final authorization of certain revisions to its hazardous waste program under the Resource

Conservation and Recovery Act (RCRA). The Environmental Protection

Agency (EPA) has reviewed California's application and has reached a final determination that the revisions to California's hazardous waste program satisfy all of the requirements necessary to qualify for final authorization. Thus, with respect to these revisions, EPA is granting final authorization to the State to operate its program subject to the limitations on its authority retained by EPA in accordance with the

Hazardous and Solid Waste Amendments of 1984.

DATES: Effective Date: Final authorization for the revisions to

California's hazardous waste management program shall be effective at 1 p.m. on October 7, 2011.

FOR FURTHER INFORMATION CONTACT: Zac Appleton, WST-3, U.S. EPA Region 9, 75 Hawthorne Street, San Francisco 94105-3901, (415) 972-3321.

SUPPLEMENTARY INFORMATION:

1. Why are revisions to state programs necessary?

   States which have received final authorization from EPA under RCRA

   Section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, states must change their programs and ask EPA to authorize the changes. Changes to state programs may be necessary when Federal or state statutory or regulatory authority is modified or when certain other changes occur.

   Most commonly, states must change their programs because of

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   changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.

   California initially received final authorization on July 23, 1992, effective August 1, 1992 (57 FR 32726), to implement the RCRA hazardous waste management program. EPA granted authorization for changes to

   California's program on September 26, 2001, effective September 26, 2001 (66 FR 49118). EPA made the tentative determination to approve subsequent changes to California's program when it invited public comment in a Federal Register Notice on September 30, 2010 (75 FR 60398).

2. What were the comments and responses to EPA's proposal?

   On September 30, 2010, EPA published a tentative determination announcing its intent to grant California final authorization for the revisions to its base program. Further background on the tentative decision to grant authorization appears at Vol. 75, No. 189, September 30, 2010 at pages 60398-60403.

   Along with the tentative determination, EPA announced the availability of the application for public comment. EPA received no comments.

3. What decisions have we made in this rule?

   EPA has made the final determination that California's application for authorization of the subject revisions meets all of the statutory and regulatory requirements established by RCRA. Therefore, with respect to the revisions, we are granting California final authorization to operate its hazardous waste program as described in the revisions authorization application. California will continue to have responsibility for permitting Treatment, Storage, and Disposal

   Facilities (TSDFs) within its borders and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by

   Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized states before such states are authorized for the requirements. Thus, for revisions to the Federal program for which

   California has not yet sought authorization, EPA will continue to implement those HSWA requirements and prohibitions in California, including issuing permits, until the State is granted authorization to do so.

4. What is the effect of today's action?

   A facility in California subject to RCRA must comply with the authorized State requirements in lieu of the corresponding Federal requirements in order to comply with RCRA. Additionally, such persons must comply with any applicable Federally-issued requirements, such as, for example, HSWA regulations issued by EPA for which the State has not received authorization, and RCRA requirements that are not supplanted by authorized state-issued requirements. California continues to have enforcement responsibilities under its State law to pursue violations of its hazardous waste management program. EPA continues to have independent authority under RCRA Sections 3007, 3008, 3013, and 7003, which include, among others, the authority to:

   Do inspections, and require monitoring, tests, analyses or reports,

   Enforce RCRA requirements (including State-issued statutes and regulations that are authorized by EPA and any applicable

   Federally-issued statutes and regulations) and suspend or revoke permits, and

   Take enforcement actions regardless of whether the State has taken its own actions.

   This action approving the subject revisions does not impose additional requirements on the regulated community because the regulations for which California is being authorized are already effective under State law and are not changed by the act of authorization.

   EPA cannot delegate the Federal requirements at 40 CFR part 262, subparts E and H. Although California has adopted these requirements verbatim from the Federal regulations in Title 22 of the California

   Code of Regulations, Sections 66260-66262, EPA will continue to implement those requirements.

5. What rules are we authorizing with today's action?

   On August 2, 2004 and August 17, 2004 California submitted final complete program revision applications, seeking authorization of changes in accordance with 40 CFR 271.21. California applied for only the Federal changes relating to the corrective action management units, the Bevill exclusion and the land disposal restrictions.

   What follows is a summary, for each category identified by

   California in its submittals, of the specific subjects of changes to the Federal program for that category. Although the changes to the

   Federal program are identified in the summary, California did not necessarily make revisions to its program as a result of each Federal revision noted. For example, certain revisions to the Federal program may have resulted in less stringent regulation than that which previously existed. Since states may maintain programs which are more stringent than the Federal program, states have the option whether or not to adopt such revisions. 1. Changes California Identified as Relating to Corrective Action

   Management Units

   We are granting California final authorization for revisions to its program due to certain changes to the Federal Corrective Action

   Management Unit program. 2. Changes California Identified as Relating to Land Disposal

   Restrictions Phases 3 and 4

   We are granting California final authorization for revisions to its program due to certain changes to the Federal program in the following areas: (1) Land Disposal Restrictions Phase III--Decharacterized

   Wastewaters; (2) Emergency Extension of the K088 Capacity Variance; (3)

   Land Disposal Restrictions Phase IV--Treatment Standards for Wood

   Preserving Wastes, Paperwork Reduction and Streamlining, Exemptions

   From RCRA for Certain Processed Materials; (4) Emergency Revision of the Carbamate Land Disposal Restrictions; (5) Clarification of

   Standards for Hazardous Waste LDR Treatment Variances; (6) Treatment

   Standards for Metal Wastes and Mineral Processing Wastes; (7) Hazardous

   Soils Treatment Standards and Exclusions; (8) Administrative Stay for

   Zinc Micronutrient Fertilizers; (9) Emergency Revision of the Land

   Disposal Restrictions (LDR) Treatment Standards for Listed Hazardous

   Wastes from Carbamate Production; (10) Extension of Compliance Date for

   Characteristic Slags; (11) Treatment Standards for Spent Potliners from

   Primary Aluminum Reduction (K088); (12) Chlorinated Aliphatics Listing and LDRs for Newly Identified Wastes; (13) Deferral for PCBs in Soil; and (14) Certain Land Disposal Restrictions Technical Corrections and

   Clarifications. Note that California has not yet adopted the provisions addressed by the following Federal final rules which are also part of

   Phase IV of the land disposal restrictions requirements: LDR Revision

   Checklist 195 (66 FR 58258, November 20, 2001, as amended by 67 FR 17119, April 9, 2002); non-LDR Revision Checklist 200 (67 FR 28393,

   July 24, 2002); and LDR

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   Revision Checklist 201 (67 FR 62618, October 7, 2002). 3. Changes California Identified as Relating to the Bevill Exclusion

   We are granting California final authorization for all revisions to its program due to certain changes to the Federal program in the Bevill

   Exclusion requirements.

   EPA published a table in its notice of its tentative decision to authorize the foregoing revisions to California's hazardous waste management program, which shows the Federal and analogous State provisions involved in this decision and the relevant corresponding checklists (75 FR 60398, 60400-6040, September 30, 2010).

6. Where are the State rules different from the Federal rules?

   State requirements that go beyond the scope of the Federal program are not part of the authorized program and EPA cannot enforce them.

   Although persons must comply with these requirements in accordance with

   California law, they are not RCRA requirements. EPA considers that the following State requirements, which pertain to the revisions involved in this decision, go beyond the scope of the Federal program.

   The following analysis differs in some ways from the areas which

   California identified as being broader in scope than the Federal program in its application. 1. The definition of ``remediation waste'' at 22 C.C.R. Sec. 66260.10 is broader in scope than the Federal definition at 40 CFR 260.10 only to the extent California's definition includes hazardous substances which are neither ``hazardous wastes'' nor '''solid wastes.'' 2. California regulation subjects CAMUs for non-RCRA hazardous waste to state-specific requirements under 22 CCR 66264.552.5. The state requirement at 22 CCR 66264.552.5 is broader in scope because the federal program does not consider these wastes to be hazardous. In addition, 22 CCR 66264.550(a) is also considered broader in scope to the extent that it subjects non-RCRA wastes to the state-only CAMU requirements. 3. California did not adopt the Federal definitions at 40 CFR 261.1(c)(9)-(12), 261.4(a)(13)-(14), and 261.6(a)(3)(ii) addressing scrap metals or the related Federal changes to 40 CFR 261.2(c)(4)/

   Table. California's program is broader in scope to the extent that the statutory provisions at HS&C Sec. 25143.2(a) and (e), do not exclude these scrap metals from regulation. 4. The California provisions at 22 CCR 66268.7(a)-(c) are broader in scope than the Federal land disposal treatment provisions at 40 CFR 268.7(a)-(c) to the extent that the State's provisions also apply to non-RCRA wastes. Similarly, California's variance petition provisions at 22 CCR 66268.44(c) and 66268.44(h) are also broader in scope to the extent that they apply to non-RCRA wastes.

7. What is EPA's position on California's regulation of conditionally exempt small quantity generators?

   When California initially received final authorization for the base

   RCRA program on July 23, 1992, effective August 1, 1992 (57 FR 32726),

   EPA Pacific Southwest Region (Region IX) identified California's failure to adopt the federal exclusion for conditionally exempt small quantity generators (CESQGs) (found, generally, at 40 CFR 261.5) as

   ``broader in scope'' than the federal program. (See also 40 CFR 270.1(c)(2)(iii).) However, EPA's position regarding the absence of the conditional exclusion for CESQGs in a state program has changed and EPA now clearly regards the absence of any such exclusion as more stringent than the federal program, making state regulation of CESQGs federally enforceable when authorized. See United States v. Southern Union Co., 643 F. Supp. 2d 201 (D.R.I. 2009). In order to harmonize our authorization of California's program with EPA's position with respect to CESQGs, EPA is hereby redesignating California's regulation of

   CESQGs as more stringent than the federal program. Therefore, the

   State's regulation of such federally exempt CESQGs will be part of the authorized state program and will be federally enforceable within the

   State of California. Specifically, this change will allow federal enforcement of State requirements applicable to CESQGs who are conditionally exempt under the federal provisions found at 40 CFR 261.5, 266.100(b)(3) and 270.1(c)(2)(iii). This change will not result in any new requirements on CESQGs, but will only mean that the more stringent State requirements for CESQGs will be federally enforceable.

8. Who handles permits after this authorization takes effect?

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

   California is not yet authorized.

   1. How does today's action affect Indian country (18 U.S.C. 1151) in

   California?

   California is not authorized to carry out its hazardous waste program in Indian country within the State. Indian country includes all lands within the exterior boundaries of an Indian reservation, any land held in trust by the United States for an Indian tribe whether or not formally designated as an Indian reservation, and any other land, whether within or outside of an Indian reservation, that qualifies as

   Indian country under 18 U.S.C. 1151. A list of Indian Tribes in

   California can be found on the Web at http://www.bia.gov, under the section ``Region Selector.''

   Therefore, this action has no effect on the Indian country within the States' borders. EPA will continue to implement and administer the

   RCRA program in Indian country within the State.

10. What is codification and is EPA codifying California's hazardous waste program as authorized in this rule?

    Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. EPA does this by referencing the authorized State rules in 40 CFR part 272. EPA is reserving the amendment of 40 CFR part 272, subpart F for codification of California's program at a later date.

11. Statutory and Executive Order Reviews 1. Executive Order 12866: Regulatory Planning and Review and Executive

    Order 13563: Improving Regulation and Regulatory Review 13563

    This action approves the subject revisions and does not impose additional requirements on the regulated community because the regulations for which California is being authorized are already effective under State law and are not changed by the act of authorization. This type of action is exempt from review under

    Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011).

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    2. Paperwork Reduction Act

    This rule does not impose an information collection burden under the Paperwork Reduction Act. 3. Regulatory Flexibility Act

    After considering the economic impacts of this rule on small entities under the Regulatory Flexibility Act, I certify that this rule will not have a significant economic impact on a substantial number of small entities. 4. Unfunded Mandates Reform Act

    Because this rule approves preexisting 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. 5. Executive Order 13132: Federalism

    Executive Order 13132 does not apply to this rule because it will not have federalism implications (i.e., substantial direct effects on the State, 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 described in Executive Order 13132. 6. Executive Order 13175: Consultation and Coordination With Indian

    Tribal Governments

    Executive Order 13175 does not apply to this rule because it will not have tribal implications (i.e., substantial direct effects on one or more Indian tribes, on the relationship between the Federal

    Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes). As stated previously, this action would have no effect on the Indian country within the State's borders and EPA will continue to implement and administer the RCRA program in Indian country within the State. 7. Executive Order 13045: Protection of Children From Environmental

    Health & Safety Risks

    This rule is not subject to Executive Order 13045 because it is not economically significant and it is not based on health or safety risks. 8. Executive Order 13211: Actions That Significantly Affect Energy

    Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211 because it is not a significant regulatory action as defined in Executive Order 12866. 9. National Technology Transfer Advancement Act

    EPA approves State programs as long as they meet criteria required by RCRA, so it would be inconsistent with applicable law for EPA, in its review of a State program, to require the use of any particular voluntary consensus standard in place of another standard that meets the requirements of RCRA. Thus, Section 12(d) of the National

    Technology Transfer and Advance Act does not apply to this rule. 10. Executive Order 12898: Federal Actions To Address Environmental

    Justice in Minority Populations and Low Income Populations

    Because this rule addresses authorizing pre-existing State rules and imposes no additional requirements beyond those imposed by State law and there are no anticipated significant adverse human health or environmental effects, the rule is not subject to Executive Order 12898. 11. Executive Order 12988

    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. 12. Executive Order 12630: Evaluation of Risk and Avoidance of

    Unanticipated Takings

    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.

    List of Subjects in 40 CFR Part 271

    Environmental protection, Administrative practice and procedure,

    Confidential business information, Hazardous materials transportation,

    Hazardous waste, Indian lands, Intergovernmental relations, Penalties,

    Reporting and recordkeeping requirements.

    Authority: This notice is issued under the authority of Sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended 42 U.S.C. 6912(a), 6926, 6974(b).

    Dated: September 8, 2011.

    Jared Blumenfeld,

    Regional Administrator, Region 9.

    FR Doc. 2011-25899 Filed 10-6-11; 8:45 am

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