Hazardous waste program authorizations: Maryland,

[Federal Register: July 26, 2004 (Volume 69, Number 142)]

[Rules and Regulations]

[Page 44463-44467]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr26jy04-5]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[FRL-7791-3]

Maryland: Final Authorization of State Hazardous Waste Management Program Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

SUMMARY: Maryland has applied to EPA for final authorization of changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA has determined that these changes satisfy all requirements needed to qualify for final authorization and is authorizing Maryland's changes through this immediate final action. EPA is publishing this rule to authorize the changes without a prior proposal because we believe this action is not controversial and do not expect comments that oppose it. Unless we receive written comments which oppose this authorization during the comment period, the decision to authorize Maryland's changes to its hazardous waste program will take effect. If we receive comments that oppose this action, or portions thereof, we will publish a document in the Federal Register withdrawing the relevant portions of this rule before they take effect and a separate document in the proposed rules section of this Federal Register will serve as a proposal to authorize changes to Maryland's program that were the subject of adverse comments.

DATES: This Final authorization will become effective on September 24, 2004, unless EPA receives adverse written comment by August 25, 2004. If EPA receives any such comment, it will publish a timely withdrawal of this immediate final rule in the Federal Register and inform the public that this authorization, or portions thereof, will not take effect as scheduled.

ADDRESSES: Submit your comments, identified by FRL-7791-3 by one of the following methods:

1. Federal eRulemaking Portal: http://www.regulations.gov. Follow

   the on-line instructions for submitting comments.

2. E-mail: johnson.carol@epamail.epa.gov.

3. Mail: Carol Johnson, Mailcode 3WC21, RCRA State Programs Branch, U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA 19103-2029.

4. Hand Delivery: At the previously-listed EPA Region III address. Such deliveries are only accepted during the normal hours of operation, and special arrangements should be made for deliveries of boxed information.

   You may inspect and copy Maryland's application from 8:30 a.m. to 4:30 p.m., Monday through Friday at the following addresses: Maryland Department of the Environment, Waste Management Administration, Hazardous Waste Program, 1800 Washington Blvd., Suite 645, Baltimore, Maryland 21230-1719, Phone number: (410) 537-3345, Attn: Ed Hammerberg, and the EPA Region III, Library, 2nd Floor, 1650 Arch Street, Philadelphia, PA 19103-2029, Phone number: (215) 814-5254.

   Instructions: Direct your comments to FRL-7791-3. EPA's policy is that all comments received will be included in the public docket without change, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through regulations.gov or e-mail. The federal regulations.gov Web site is an ``anonymous access'' system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

   FOR FURTHER INFORMATION CONTACT: Carol Johnson, Mailcode 3WC21, RCRA State Programs Branch, U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA 19103-2029, Phone number: (215) 814-3378.

   SUPPLEMENTARY INFORMATION:

   1. Why are Revisions to State Programs Necessary?

      States that 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 to become more stringent or broader in scope, States must change their programs and apply to EPA to authorize the changes. Authorization of changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must revise their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.

   2. What Decisions Have We Made in This Rule?

      EPA concludes that Maryland's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant Maryland final authorization to operate its hazardous waste program with the changes described in its application for program revisions, subject to the procedures described in section E, below. Maryland has 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 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 they are authorized for the requirements. Thus, EPA will implement those HSWA requirements and prohibitions for which Maryland has not been authorized, including issuing HSWA permits, until the State is granted authorization to do so.

      [[Page 44464]]

   3. What Is the Effect of Today's Authorization Decision?

      This decision serves to authorize revisions to Maryland's authorized hazardous waste program. This action does not impose additional requirements on the regulated community because the regulations for which Maryland is being authorized by today's action are already effective and are not changed by today's action. Maryland has enforcement responsibilities under its state hazardous waste program for violations of its program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:

      Perform inspections, and require monitoring, tests, analyses or reports;

      Enforce RCRA requirements and suspend or revoke permits; and

      Take enforcement actions regardless of whether Maryland has taken its own actions.

   4. Why Wasn't There a Proposed Rule Before Today's Rule?

      EPA did not publish a proposal before today's rule because we view this as a routine program change and do not expect comments that oppose this approval. We are providing an opportunity for public comment now. In addition to this rule, in the proposed rules section of today's Federal Register we are publishing a separate document that proposes to authorize Maryland's program changes. If EPA receives comments that oppose this authorization, or portions thereof, that document will serve as a proposal to authorize the changes to Maryland's program that were the subject of adverse comment.

   5. What Happens if EPA Receives Comments That Oppose This Action?

      If EPA receives comments that oppose this authorization, or portions thereof, we will withdraw this rule, or portions thereof, by publishing a document in the Federal Register before the rule would become effective. EPA will base any further decision on the authorization of Maryland's program changes on the proposal mentioned in the previous section. We will then address all public comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time.

      If we receive comments that oppose the authorization of a particular change to the State's hazardous waste program, we will withdraw that part of this rule, but the authorization of the program changes that the comments do not oppose will become effective on the date specified above. The Federal Register withdrawal document will specify which part of the authorization will become effective, and which part is being withdrawn.

   6. What Has Maryland Previously Been Authorized for?

      Initially Maryland received final authorization effective February 11, 1985 (50 FR 3511; January 25, 1985) to implement its base hazardous waste management program. EPA granted authorization for changes to Maryland's regulatory program on June 1, 2001, effective July 31, 2001 (66 FR 29712).

   7. What Changes Are We Authorizing With Today's Action?

      On May 27, 2004, Maryland submitted a program revision application, seeking authorization of additional changes to its program in accordance with 40 CFR 271.21. Maryland's revision application includes various regulations that are equivalent to, and no less stringent than, changes to the Federal hazardous waste program, as published in the Federal Register through June 1, 2001. We now make an immediate final decision, subject to receipt of written comments that oppose this action, that Maryland's hazardous waste program revision satisfies all of the requirements necessary to qualify for final authorization. Therefore, EPA grants Maryland final authorization for the following program changes:

1. Program Revision Changes for Federal Rules

   Maryland seeks authority to administer the Federal requirements that are listed in Tables 1-A and 1-B below. Tables 1-A and 1-B identify Maryland's analogs that are being recognized as equivalent or more stringent to the appropriate Federal requirements. The regulatory references are to Title 26, Subtitle 13 of the Code of Maryland Regulations (COMAR), Chapters 01 through 07, and Chapter 10, as amended effective November 1, 2002. The State's statutory authority for its hazardous waste program is based on the Environment Article, Title 7, Subtitle 2 of the Annotated Code of Maryland (1996 Repl. Vol., 1999 Cumul. Supp.). Maryland has made no changes to its hazardous waste statutes since 1999.

   Table 1-A.--Maryland's Analogs to the Federal Requirements

   Description of Federal requirement (revision Federal Register Analogous state checklists \1\)

   date and page

   authority

   Wood Preserving Listings 12/6/90, 55 FR

   COMAR 26.13.01.03B (Revision Checklists 82, 50450; 7/1/91, 56 (16-1); 92, 120, 167F).

   FR 30192; 12/24/92, 26.13.02.04A(9), 57 FR 61492; 5/26/ .04C, .16A, .16C, 98, 63 FR 28556. .22, .23 and .24; 26.13.03.05E(1)(b), (e), and (l); 26.13.05.10A(1), .10A(5) and .17-1 through .17-4; 26.13.06.18A and .26; 26.13.07.02- 11. Liquids in Landfills II 11/18/92, 57 FR COMAR (Revision Checklist 118). 54452.

   23.13.05.14N(1); 26.13.06.22F(1), .22F(3)(c) and .22F(3)(d). (More stringent provisions: 26.13.05.14N(1); 26.13.06.22F(1)).

   [[Page 44465]]

   Universal Waste Rules

   5/11/95, 60 FR

   COMAR 26.13.01.03A; (Revision Checklists 142A- 25492; 12/24/98, 63 26.13.01.03B(4-1), E, 176).

   FR 71225.

   (12-1), (16-2), (24- 2), (29), (46-1), (56), (62-1), (72- 2), (80-1), (89-1), (89-2), (89-3), (89- 4); 26.13.01.04A(1) and .04J; 26.13.02.05A(2), .05D(2)(f)(ii) and .05D(2)(g); 26.13.02.06A(3)(a)( ii)-(iv); 26.13.02.07-1; 26.13.03.01B, .01B- 1, .01C through .01F, .02B; 26.13.05.01A(3)(k); 26.13.06.01A(4)(j); 26.13.07.01A; 26.13.10.04, .06 through .14, .17A (except A(2)(e) and A(2)(f)), .17B, .17C, .17D, .18 (except C(2)), .19, .20 (except .20D and .20(E)), .21, .22 (except (G)(1)), .23, .24 (except .24B(4)) and .25. [Note: Maryland's regulations addressing lamps and PCB-containing lamps are not part of the State's universal waste requirements being authorized.] Removal of Legally Obsolete 6/29/95, 60 FR 33912 The Federal final Rules (Revision Checklist

   rule removed 144).

   obsolete language from the Code of Federal Regulations. Maryland did not adopt the Federal rule because Maryland's regulations did not include the obsolete Federal language. Liquids in Landfills III 7/11/95, 60 FR 35703 COMAR (Revision Checklist 145).

   26.13.05.14N(1). (More stringent provision: 26.13.05.14N(1)). Conditionally Exempt Small 7/1/96, 61 FR 34252. COMAR Quantity Generator Disposal

   26.13.02.05D(2). Options Under Subtitle D

   (More stringent (Revision Checklist 153).

   provision: 26.13.02.05D(2)(c)) .

   \1\ A Revision Checklist is a document that addresses the specific changes made to the Federal regulations by one or more related final rules published in the Federal Register. EPA develops these checklists as tools to assist States in developing their authorization applications and in documenting specific State analogs to the Federal regulations. For more information see EPA's RCRA State Authorization Web page at http://www.epa.gov/epaoswer/hazwaste/state.

   In addition to the provisions listed in Table 1-A, Maryland is seeking authorization for the provisions listed in Table 1-B. These provisions relate to the comparable/syngas fuel requirements published on June 19, 1998 (63 FR 33782; Revision Checklist 168), and the subsequent revisions published on September 30, 1999 (64 FR 52828) and July 10, 2000 (65 FR 42292). Note that the 1999 and 2000 Federal rules address the standards that reflect the performance of Maximum Achievable Control Technologies (MACT) as specified by the Clean Air Act, as well as technical corrections to the June 19, 1998 comparable/ syngas fuel requirements. Maryland has not adopted, and is not seeking authorization for, the MACT standards.

   Table 1-B.--Maryland's Analogs to the Federal Requirements

   Description of Federal requirement (revision checklists)

   Federal Register date and page

   Analogous state authority

   Hazardous Waste Combustors Revised 6/19/98, 63 FR 33782.......... COMAR 26.13.02.04A(13); 26.13.02.19-1, Standards (Revision Checklist 168).

   19-2A (except (2)(d)), .19-2B through .19-2G, .19-3, .19-4 and .19-5; 26.13.07.13-2A(10)(e); 26.13.07.23C(3)(h). (More stringent provisions: 26.13.02.19-2C(2), 26.13.02.19-5B(3). In addition, Maryland has not adopted an analog to 40 CFR 270.42(j)(2)). 40 CFR 260.10 ``Dioxins and furans (D/ 9/30/99, 64 FR 52828

   COMAR 26.13.01.03B(13-1), 26.13.02.19-1B/ F)'' [definition];.

   Table 1 and 26.13.07.13-2A(10)(e). 40 CFR 261.38, Table 1--[detection and detection limit values for comparable fuel specification]; 40 CFR 270.42, Item L(9) [permit modification requirement addressing technology changes needed to meet standards under 40 CFR Part 63, Subpart EEE.] (From Revision Checklist 182) 40 CFR 261.38(c)(2)(iv) [revision for 7/10/00; 65 FR 42292.......... COMAR 26.13.02.19-2A(2)(d). gas turbines] (From Revision Checklist 188).

   [[Page 44466]]

2. State-Initiated Changes

   Maryland's program revision application includes State-initiated changes that are not directly related to any of the Revision Checklists in Tables 1-A and 1-B. All the State-initiated changes are related to either (1) the adoption of a provision that makes internal clarification and conforming changes to the State's regulations, (2) adoption of a provision that makes the State's regulations, which had been more stringent, now equivalent to the Federal hazardous waste regulations, or (3) correction of typographical errors. EPA grants Maryland final authorization for the State provisions listed in Table 2. These requirements are analogous to the indicated Federal RCRA regulations found at 40 CFR as of July 1, 2001.

   Table 2.--Equivalent State-Initiated Changes

   State citation

   Federal RCRA citation

   26.13.02.05D(2)(c)(iv)*............. No direct Federal analog/Related to 261.5(g)(3)(i). 26.13.06.01A(4)(k).................. 265.1(c)(13). 26.13.10.03A........................ 266.70(a). 26.13.10.04C........................ 266.80.

   * Note: In accordance with its solid waste regulations at COMAR 26.04.07.03B(5), Maryland prohibits the acceptance of hazardous waste at a solid waste facility unless the facility is specifically authorized by a valid permit issued under COMAR 26.13.07.

   8. Where Are the Revised Maryland Rules Different From the Federal Rules?

1. Maryland Requirements That Are Broader in Scope Than the Federal Program

   The Maryland hazardous waste program contains certain provisions that are beyond the scope of the Federal program. These broader in scope provisions are not part of the program being authorized by today's action. EPA cannot enforce requirements that are broader in scope, although compliance with such provisions is required by Maryland law. Examples of broader in scope provisions of Maryland's program include, but are not limited to, the following:

   Maryland's regulations at COMAR section 26.13.10 include PCB- containing lamp ballasts as a universal waste. The requirements for PCB-containing lamp ballasts go beyond the scope of the Federal program because PCB's are not a Federal hazardous waste and thus are not part of the program being authorized by today's action. EPA cannot enforce these requirements that are broader in scope, although compliance with these provisions is required by Maryland law.

2. Maryland Requirements That Are More Stringent Than the Federal Program

   Maryland's hazardous waste program contains several provisions that are more stringent than the RCRA program as codified in the July 1, 2001 edition of Title 40 of the Code of Federal Regulations (CFR). More stringent provisions are part of a Federally-authorized program and are, therefore, Federally-enforceable. The specific more stringent provisions in Maryland's program are noted in section G. 1 and include, but are not limited to, the following:

   (a) Maryland's regulations are more stringent than the Federal requirements addressed by the final rule published on November 18, 1992 (55 FR 54452, as amended on July 11, 1995 (60 FR 35703). The Federal provisions allow liquid wastes to be placed in landfills if the owner or operator complies with certain requirements. Per COMAR sections 26.13.05.14.N(1) and 26.13.06.22F(1), Maryland does not allow bulk or non-containerized liquid waste or waste containing free liquids to be disposed in landfills.

   (b) Maryland's provision at COMAR section 26.13.02.19-2C(2) is more stringent than the Federal requirement at 40 CFR 261.38(c)(1)(ii) because in addition to the Federal requirement that a burner provide public notice in a major newspaper prior to burning an excluded comparable/syngas fuel, Maryland also requires burners to submit a copy of the public notice to the Secretary.

   (c) Maryland's provision at COMAR section 26.13.02.19-5B(3) is more stringent than the Federal requirements at 40 CFR 261.38(c)(11) because Maryland requires records and waste analysis plans to be maintained as long as the Department has an enforcement case, unlike the Federal program where records must be maintained for a period of three years.

   (d) Maryland has not adopted an analog to 40 CFR 270.42(j)(2), which provides for automatic approval of permit modification requests in the event the Director does not approve or deny a request within 90 days of receipt. Therefore, Maryland's program is more stringent than the Federal program in this regard.

   I. Who Handles Permits After the Authorization Takes Effect?

   After authorization, Maryland will issue permits covering all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits that we issued prior to the effective date of this authorization until the timing and process for effective transfer to the State are mutually agreed upon. Until such time as formal transfer of EPA permit responsibility to the State occurs and EPA terminates its permit, EPA and the State agree to coordinate the administration of permits in order to maintain consistency. We will not issue any more new permits or new portions of permits for the provisions listed in Tables 1-A, 1-B and 2 above after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which Maryland is not yet authorized.

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

       Maryland is not seeking authority to operate the program on Indian lands, since there are no Federally-recognized Indian Lands in the State.

   11. What Is Codification and Is EPA Codifying Maryland'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. We do this by referencing the authorized State rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272, subpart V, for this authorization of Maryland's program changes until a later date.

       L. Statutory and Executive Order Reviews

       This rule only authorizes hazardous waste requirements pursuant to RCRA section 3006 and imposes no requirements other than those imposed by State law (see Supplementary Information, section A. Why are

       [[Page 44467]]

       Revisions to State Programs Necessary?). Therefore, this rule complies with applicable executive orders and statutory provisions as follows.

1. Executive Order 12866: Regulatory Planning Review

   The Office of Management and Budget has exempted this rule from its review under Executive Order 12866.

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 today's 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 pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act.

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 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).

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).

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. Congressional Review Act

    EPA will submit a report containing this rule and other information required by the Congressional Review Act (5 U.S.C. 801 et seq.) to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a ``major rule'' as defined by 5 U.S.C. 804(2). This action will be effective on September 24, 2004.

    List of Subjects in 40 CFR Part 271

    Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Indians-lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements.

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

    Dated: July 12, 2004. Donald S. Welsh, Regional Administrator, Region III.

    [FR Doc. 04-16944 Filed 7-23-04; 8:45 am]

    BILLING CODE 6560-50-P