[Federal Register: January 31, 2008 (Volume 73, Number 21)]
[Rules and Regulations]
[Page 5753-5760]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31ja08-14]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[EPA-R01-RCRA-2007-1171; FRL-8521-8]
Massachusetts: Final Authorization of State Hazardous Waste
Management Program Revisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Immediate final rule.
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SUMMARY: The Commonwealth of Massachusetts has applied to EPA for final
authorization of certain 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 the State's changes through this
immediate final action.
DATES: This final authorization will become effective on March 31, 2008
unless EPA receives adverse written comment by March 3, 2008. If EPA
receives such comment, it will publish a timely withdrawal of this
immediate final rule in the Federal Register and inform the public that
this authorization will not take immediate effect.
ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
RCRA-2007-1171, by one of the following methods:
www.regulations.gov: Follow the online instructions for
submitting comments.
E-mail: biscaia.robin@epa.gov.
Fax: (617) 918-0642, to the attention of Robin Biscaia.
Mail: Robin Biscaia, Hazardous Waste Unit, EPA New
England--Region 1, One Congress Street, Suite 1100 (CHW), Boston, MA
02114-2023.
Hand Delivery or Courier: Deliver your comments to: Robin
Biscaia, Hazardous Waste Unit, Office of Ecosystem Protection, EPA New
England--Region 1, One Congress Street, 11th Floor, (CHW), Boston, MA
02114-2023. Such deliveries are only accepted during the Office's
normal hours of operation, and special arrangements should be made for
deliveries of boxed information.
Instructions: Identify your comments as relating to Docket ID No.
EPA-R01-RCRA-2007-1171. EPA's policy is that all comments received will
be included in the public docket without change and may be made
available online at www.regulations.gov, including any personal
information provided, unless the comment includes information claimed
to be Confidential Business Information (CBI) or claimed to be other
information whose disclosure is restricted by statute. Do not submit
information that you consider to be CBI or otherwise protected through
www.regulations.gov or e-mail. The www.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 www.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 additional information about EPA's public
docket visit the EPA Docket Center homepage at http://www.epa.gov/
epahome/dockets.htm.
Docket: EPA has established a docket for this action under Docket
ID No. EPA-R01-RCRA-2007-1171. All documents in the docket are listed
on the www.regulations.gov Web site. Although it may be listed in the
index, some information might not be publicly available, e.g., CBI or
other information whose disclosure is restricted by statute. Certain
other material, such as copyrighted material, is not placed on the
Internet and will be publicly available only in hard copy form.
Publicly available docket materials are available either electronically
through www.regulations.gov or in hard copy 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, by appointment only, (617) 918-1990.
FOR FURTHER INFORMATION CONTACT: Robin Biscaia, Hazardous Waste Unit,
EPA New England--Region 1, One Congress Street, Suite 1100 (CHW),
Boston, MA 02114-2023; telephone number: (617) 918-1642; fax number:
(617) 918-0642, e-mail address: biscaia.robin@epa.gov.
SUPPLEMENTARY INFORMATION:
A. Why Are Revisions to State Programs Necessary?
States which have received final authorization from EPA under RCRA
section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste
program that is equivalent to, 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 changes to
EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124,
260 through 266, 268, 270, 273 and 279.
B. What Decisions Have We Made in This Rule?
We have concluded that Massachusetts's application to revise its
authorized program meets all of the statutory and regulatory
requirements established by RCRA. Therefore, we grant Massachusetts
final authorization to operate its hazardous waste program with the
changes described in the authorization application. The Massachusetts
Department of Environmental Protection (MassDEP) has responsibility for
permitting Treatment, Storage, and Disposal Facilities (TSDFs) within
its borders and for carrying out the aspects of the RCRA program
covered by 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 they are authorized for the requirements. Thus, EPA will
implement any such requirements and prohibitions in Massachusetts,
including issuing permits, until the State is granted authorization to
do so.
C. What Is the Effect of This Authorization Decision?
The effect of this decision is that a facility in Massachusetts
subject to RCRA will now have to comply with the authorized State
requirements instead of
[[Page 5754]]
the equivalent Federal requirements in order to comply with RCRA.
Massachusetts has enforcement responsibilities under its State
hazardous waste program for violations of such program, but EPA also
retains its full authority under RCRA sections 3007, 3008, 3013, and
7003, which includes, among others, authority to:
Perform inspections, and require monitoring, tests,
analyses or reports.
Enforce RCRA requirements and suspend or revoke permits.
Take enforcement actions.
This action does not impose additional requirements on the
regulated community because the regulations for which Massachusetts is
being authorized by today's action are already effective under State
law, and are not changed by today's action.
D. Why Wasn't There a Proposed Rule Before This Rule?
EPA did not publish a proposal before today's rule because we view
this as a routine program change and do not expect adverse comments
that oppose this approval. We are providing an opportunity for public
comment now. In addition to this rule, in the proposed rules section of
today's Federal Register we are publishing a separate document that
proposes to authorize the State program changes.
E. What Happens If EPA Receives Comments That Oppose This Action?
If EPA receives comments that oppose this authorization, we will
withdraw this rule by publishing a document in the Federal Register
before the rule becomes effective. EPA will base any further decision
on the authorization of the State program changes on the proposal
mentioned in the previous paragraph. We will then address all public
comments in a later final rule based upon this proposed rule that also
appears in today's Federal Register. You may not have another
opportunity to comment. If you want to comment on this authorization,
you should do so at this time.
If we receive adverse comments that oppose only the authorization
of a particular change to the State 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.
F. What Has Massachusetts Previously Been Authorized for?
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). 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)
which was then further extended until January 1, 2011 (70 FR 69900,
November 18, 2005). On March 12, 2004, EPA authorized the State for
updates to its hazardous waste program which generally track Federal
requirements through the July 1, 1990 edition of Title 40 of the Code
of Federal Regulations (and in some cases beyond), including
definitions and miscellaneous provisions, provisions for the
identification and listing of hazardous wastes and standards for
hazardous waste generators; it also approved a State-specific
modification to the Federal hazardous waste regulations regarding
recyclable materials under an ECOS flexibility project; and finally it
approved Massachusetts site-specific regulations developed under the
Project XL, New England Universities Laboratories XL Project (69 FR
11801, March 12, 2004), effective immediately.
G. What Changes Are We Authorizing With This Action?
On November 30, 2007, Massachusetts submitted a final complete
program revision application, seeking authorization for its changes in
accordance with 40 CFR 271.21. In particular, Massachusetts is seeking
authorization for updated State regulations addressing Federal
requirements for Corrective Action, Radioactive Mixed Waste, and the
Hazardous Waste Manifest revisions. Massachusetts is also seeking
authorization for various changes it recently has made to its base
program regulations, including the hazardous waste exemption for
dredged material regulated under the Federal Clean Water Act,
requirements relating to elementary neutralization, an exemption for
dental amalgam being recycled, and a State regulation which allows for
the waiving of State requirements that are more stringent than the
Federal RCRA counterparts. In addition, Massachusetts has revised its
base program regulations regarding interim status facilities and is
seeking authorization of the revised regulations. Finally,
Massachusetts is seeking authorization for an extension of the special
regulations governing the New England Universities' Laboratories XL
project.
The State's authorization application includes such documents as a
Corrective Action Program Description, a Corrective Action Memorandum
of Agreement (MOA) between EPA and the MassDEP, a Final Project
Agreement Modification for the New England Universities Laboratories XL
Project between EPA and the MassDEP, a copy of MassDEP's Hazardous
Waste Regulations effective July 13, 2007, and an Attorney General's
Statement.
We are now making an immediate final decision, subject to
reconsideration only if we receive written comments that oppose this
action, that Massachusetts's hazardous waste program revisions satisfy
all of the requirements necessary to qualify for final authorization.
Therefore, we grant Massachusetts final authorization for the following
program changes identified below. Note, the Federal requirements are
identified either by their rule checklist (CL) number or by direct
reference to a Federal regulation, followed by the corresponding State
regulatory analogs from Massachusetts Hazardous Waste Regulations, 310
CMR 30.0000, as in effect on July 13, 2007.
First, we are authorizing revised state rules that are analogous to
the following Federal rules which relate to EPA's Corrective Action
program: CL 17L--HSWA Codification Rule, Corrective Action, 50 FR
28702-28755, July 15, 1985; CL 17 O--HSWA Codification Rule, Omnibus
Provision, 50 FR 28702-28755, July 15, 1985; CL 44A--HSWA Codification
Rule 2, Permit Application Requirements Regarding Corrective Action, 52
FR 45788-45799, December 1, 1987; CL 44B--HSWA Codification Rule 2,
Corrective Action Beyond the Facility Boundary, 52 FR 45788-45799,
[[Page 5755]]
December 1, 1987; CL 44C--HSWA Codification Rule 2, Corrective Action
for Injection Wells, 52 FR 45788-45799, December 1, 1987; CL 121--
Corrective Action Management Units and Temporary Units; Corrective
Action Provisions Under Subtitle C, 58 FR 8658-8685, February 16, 1993;
CL 174--Post-Closure Permit Requirements and Closure Process, 63 FR
56710-56735, October 22, 1998; CL 196--Amendments to the Corrective
Action Management Unit (CAMU) Rule, 67 FR 2962-3029, January 22, 2002;
40 CFR 270.73(a) (regarding termination of interim status at facilities
where corrective action has been completed); and 40 CFR 270.1(c)(3),
270.72(a)(5) and 270.1(c) as limited by CERCLA 121(e) (exemptions from
RCRA permitting for certain remedial activities). The analogous State
citations are as follows: 310 CMR 30.010, definitions of ``Facility''
and ``Solid Waste Management Unit,'' 30.602(9), 30.602(10), 30.661(1),
30.604(1), 30.605(1), 30.829, 30.003(8), 30.804(23), 30.804(29),
30.672(5) and (6), 30.602(12), 30.099(13)(a)-(g), 30.602(13)-(15),
30.099(4)(b), 30.099(6), 30.801(11)(a) and (b), and 30.801(intro.) as
limited by 30.801(11)(c).
Second, we are authorizing revised state rules that are analogous
to the following Federal rules which relate to EPA's Mixed Waste
program: MW CL--Radioactive Mixed Waste, 51 FR 24504, July 3, 1986; and
CL 191--Storage, Treatment, Transportation, and Disposal of Mixed
Waste, 66 FR 27218-27266, May 16, 2001. The analogous State citations
are as follows: 310 CMR 30.010, definitions of ``Low-Level Mixed
Waste,'' ``Low-Level Radioactive Waste,'' ``Mixed Waste,'' ``Naturally
Occurring and/or Accelerator-produced Radioactive Material,'' and
``NRC,'' 30.104(3)(g), and 30.099(6)(r).
Third, we are authorizing the following revised state rules that
are analogous to the EPA's Uniform Hazardous Waste Manifest revisions:
CL 207--Hazardous Waste Management System, Modification of the
Hazardous Waste Management System, 70 FR 10776-10825, March 4, 2005:
310 CMR 30.010, definition of ``Designated Facility,'' 30.106(2)(a)(3)
and (4), 30.310, 30.311(1), 30.312, 30.313, 30.313(1)-(9), 30.314(1)-
(5), 30.317, 30.323(2), 30.324, 30.331(1) and (2), 30.334(2),
30.340(9), 30.340(9)(a) and (b), 30.341(6)(b), 30.351(2)(a),
30.351(2)(c)(2)-(4), 351(5)(a)(2), 30.351(10)(e) (excluding reference
to 30.316), 30.353(2)(a)(2), 30.353(2)(b)(6), 30.353(2)(c)(3)-(5),
30.353(6)(e) (excluding reference to 30.316), 30.361(1) and (2),
30.340(9), 30.361(1)(a), 30.361(2), 30.404(2) and (3), 30.405(1),
30.405(8)(a)-(d), 30.531, 30.532(1)(a)-(d), 30.532(1)(f) and (g),
30.533(1)(a)-(c), 30.533(2), 30.533(3), 30.533(4)(a) and (b),
30.533(5)(a)-(g), 30.533(6)(a)-(g), 30.533(7), 534(2)(1)-(g),
30.099(6)(a).
In addition to the regulations listed above, there are various
previously authorized State program regulations to which the State has
made changes. The EPA is also authorizing these revised provisions as
in effect in 310 CMR on July 13, 2007. Regarding 40 CFR 261.33(f),
Commercial Chemical Products: State technical correction to the U28
listing at 310 CMR 30.133. Regarding 40 CFR 262.34(a)(1)(i), Generator
accumulation time: 310 CMR 30.342(1)(c) including an update in
container management requirements at 30.685. Regarding Elementary
Neutralization Requirements at 40 CFR 260.10 ``Elementary
Neutralization Unit'' definition, 40 CFR 264.1(g)(6), 40 CFR
265.1(c)(10), 40 CFR 270.1(c)(2): 310 CMR 30.010 ``Elementary
Neutralization'' and ``Elementary Neutralization Unit'' definitions,
310 CMR 30.340(8), 310 CMR 30.351(11), 310 CMR 30.501(2)(h), 310 CMR
30.601(2)(h), 310 CMR 30.801(17), 310 CMR 30.1103. Regarding
requirements related to Dredged Material Exemption at 40 CFR 261.4(g):
310 CMR 30.010 ``Dredged Material'' definition and 310 CMR
30.104(3)(f). Regarding Federal Minimum Requirements in 40 CFR Parts
260 to 279: 310 CMR 30.1100-1102--State Waiver Authority--allowing the
State to waive requirements more stringent than the minimum Federal
requirements. Regarding 40 CFR 261.2, Characteristic sludge exemption:
310 CMR 30.104(2)(u) (exemption for dental amalgam). Regarding 40 CFR
part 265--Interim Status Standards for Owners and Operators of
Hazardous Waste TSDFs, Subpart A--Purpose Scope and Applicability, 40
CFR Part 265.1: 310 CMR 30.010, ``polyhalogenated aromatic
hydrocarbons'' (PAH) definition, 30.099(1)(a) and (b), and 30.099(11).
Regarding Subpart B--General Facility Standards, 40 CFR 265.10-19: 310
CMR 30.099(6)(a). Regarding Subpart C--Preparedness and Prevention, 40
CFR 265.30-37: 310 CMR 30.099(6)(a). Regarding Subpart D--Contingency
Plan and Emergency Procedures, 40 CFR 265.50-56: 310 CMR 30.099(6)(a).
Regarding Subpart E--Manifest System, Record Keeping and Reporting, 40
CFR 265.70-77: 310 CMR 30.099(6)(a). Regarding Subpart F--Ground-water
Monitoring, 40 CFR 265.90-94: 310 CMR 30.099(6)(d). Regarding Subpart
G--Closure and Post-Closure, 40 CFR 265.110-121: 310 CMR 30.099(6)(b).
Regarding Subpart H--Financial Requirements, 40 CFR 265.140-150: 310
CMR 30.099(6)(c). Regarding Subpart I--Containers, 40 CFR 265.170-202:
310 CMR 30.099(6)(e). Regarding Subpart J--Tanks, 40 CFR 265.190-202:
310 CMR 30.099(6)(f). Regarding Subpart K--Surface Impoundments, 40 CFR
265.220-231: 310 CMR 30.099(6)(g). Regarding Subpart L--Waste Piles, 40
CFR 265.250-260: 310 CMR 30.099(6)(h). Regarding Subpart M--Land
Treatment, 40 CFR 265.270-282: 310 CMR 30.099(6)(i). Regarding Subpart
N--Landfills, 40 CFR 265.300-316: 310 CMR 30.099(6)(j). Regarding
Subpart O--Incinerators, 40 CFR 265.340-352. Regarding Subpart P--
Thermal Treatment, 40 CFR 265.370-383: 310 CMR 30.099(6)(l). Regarding
Subpart Q--Chemical, Physical and Biological Treatment, 40 CFR 265.400-
406. Regarding Subpart R--Underground Injection, 265.430: 310 CMR
30.604(1) (prohibition). Regarding Subpart W--Drip Pads, 40 CFR
265.440-445: 310 CMR 30.099(6)(n). Regarding Subpart AA--Air Emission
Standards for Process Vents, 40 CFR 265.1030-1036: 310 CMR
30.099(6)(o). Regarding Subpart BB--Air Emission Standards for
Equipment Leaks, 40 CFR 265.1050-1064: 310 CMR 30.099(6)(p). Regarding
Subpart DD--Containment Buildings, 40 CFR 265.1100-1102: 310 CMR
30.099(6)(q). Regarding 40 CFR part 270--EPA Administered Permit
Programs: The Hazardous Waste Permit Program, Subpart B--Permit
Application, General Application Requirements, 40 CFR 270.10(e): 310
CMR 30.099(2)(a)(1) and (2), and 310 CMR 30.099(12)(d) and (e).
Regarding Subpart G--Interim Status, Qualifying for Interim Status, 40
CFR 270.70(a)-270.70(c): 310 CMR 30.010 ``Existing Facility''
definition, 310 CMR 30.060, and 310 CMR 30.099(1)(a)-(d). Regarding
Operation during Interim Status, 40 CFR 270.71(a) and (b): 310 CMR
30.099(4)(a) and (b). Regarding Changes During Interim Status, 40 CFR
270.72(a) and (b): 310 CMR 30.064(2)(a), and 310 CMR 30.099(5)(a) and
(b). Regarding Termination of Interim Status, 40 CFR 270.73(a)-(g): 310
CMR 30.099(6), and 310 CMR 30.099(12)(a)-(c).
The State has also extended the expiration date of its special
regulations governing the universities participating in the New England
Universities' Laboratories XL project. The Massachusetts Project XL
regulations were originally authorized by the EPA and became part of
the Federally enforceable Massachusetts RCRA program on March 12, 2004.
See 69 FR
[[Page 5756]]
11801. We are now authorizing the extension of these regulations
through April 15, 2009. EPA amended its Federal regulations to allow
for extension of the expiration date of the XL Project from September
30, 2006 to this new date of April 15, 2009. See 71 FR 35547. The State
has adopted a regulation allowing the extension of the XL Project
through September 30, 2012. See 310 CMR 30.354(3). In line with its
regulation as currently amended, the EPA is only able to authorize an
extension through April 15, 2009 at this time, but could later consider
another Federal extension should a longer one prove to be necessary.
EPA believes the current extension is appropriate since it has recently
proposed a national set of alternative regulations for academic
laboratories (see 71 FR 29712, May 23, 2006). Pending promulgation of a
national rule, the extension will allow the universities currently
participating in the Labs XL Project to continue to build upon the
successes of the project and not have to terminate their participation
in the Project. This extension also includes an updated Final Project
Agreement (FPA) for this XL Project to reflect the extended period of
coverage through April 15, 2009. To allow this extension, we are
authorizing the following revised state regulation: 310 CMR 30.354(3)
(through only April 15, 2009). EPA also is authorizing the updated
cross-references in the State regulations at 310 CMR 30.354(1)(a) and
310 CMR 30.354(2).
Today's final authorization of new State regulations and regulation
changes is in addition to the previous authorizations of State
regulations which remain part of the authorized program.
H. Where Are the Revised State Rules Different From the Federal Rules?
The most significant differences between the State rules being
authorized 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 or will become part of the federally enforceable RCRA
program when authorized by the EPA, 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 has adopted an exemption from hazardous
waste requirements for elementary neutralization at 310 CMR 30.1103.
While generally tracking the Federal exemption at 40 CFR 264.1(g)(6),
264.17(b), 265.1(c)(10), 265.17(b), and 270.1(c)(v), the State
regulations are more stringent than the Federal regulations in several
respects. First, the State regulations contain general requirements
that all elementary neutralization be conducted in a manner that does
not present a danger to public health, safety, welfare or the
environment, does not generate toxic vapors or fumes, does not generate
extreme heat or pressure, and does not damage the structural integrity
of the container or tank containing the waste. The Federal regulations
at 40 CFR 264.17(b) and 265.17(b) similarly require the safe conducting
of treatment, for certain wastes posing particular concerns, but the
State provision applies more stringently to the treatment of all
hazardous wastes. Second, the State regulations exempt from the permit
requirement only elementary neutralization conducted at the site of
generation. In contrast, the Federal regulations also exempt from the
permit requirement elementary neutralization conducted at a treatment,
storage or disposal facility. Thus the State regulates TSDFs more
stringently.
2. Broader in Scope Provisions
There are parts of regulations in the Massachusetts program which
are broader in scope than the Federal program. The portions of 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 portions of State requirements
include the following:
Massachusetts has adopted an exemption from hazardous
waste requirements for dredged materials at 310 CMR 30.104(3)(f). While
generally tracking the Federal exemption at 40 CFR 261.4(g), the
Massachusetts exemption is narrower in some respects than the Federal
exemption, which results in the State regulating more broadly than the
Federal regulations. In particular, the Massachusetts exemption applies
to dredged materials only when they are temporarily stored at an
intermediate facility pursuant to 314 CMR 9.07(4) or when they are
placed in confined disposal pursuant to 314 CMR 9.07(8). Under the
Federal regulations, the exemption also could apply to dredged material
that was land applied, provided that such placement was instead
regulated under Section 404 of the Clean Water Act. In addition, the
Massachusetts regulations specify that the exemption applies only when
a source complies with the alternative requirements established by a
Clean Water Act section 404 permit. In contrast, under the Federal
regulations, the exemption applies so long as the source is subject to
a Clean Water Act section 404 permit. In addition, the Massachusetts
regulations specify that the exemption applies only when requirements
have been established by both the State requiring them pursuant to a
Clean Water Act section 401 certification (of a section 404 permit),
and the requirements then being included in the Clean Water Act section
404 permit. In contrast, under the Federal regulations, the exemption
applies so long as there are alternative requirements in the 404
permit, whether or not they were set pursuant to a State section 401
certification. Finally, the State exemption only applies to activities
regulated under Clean Water Act section 404, while the Federal
exemption also applies to activities regulated under the Marine
Protection, Research and Sanctuaries Act. Note that in addition to the
provisions making the Massachusetts requirements partially broader in
scope, the Massachusetts regulation also has clarifying language
emphasizing that for this exemption to apply to a particular activity
(i.e., temporary storage, or placement in confined disposal), specific
alternative requirements must be established (under Clean Water Act
section 404) with respect to that activity.
3. Different but Equivalent Provisions
There are some Massachusetts regulations which differ from, but
have been determined to be equivalent to, the Federal regulations.
These State regulations are or will become part of the Federally
enforceable RCRA program when authorized by the EPA. These different
but equivalent requirements include some requirements related to
Corrective Action described in the next section, and also the
following:
Under the State's Environmental Results Program (ERP), the
State has adopted regulations requiring dental offices to install
wastewater treatment units to collect dental amalgam containing mercury
and to ship such
[[Page 5757]]
amalgam for recycling (including mercury reclamation). The
environmentally poor practices of putting such amalgam in the trash or
flushing it down the drain both are banned, as a part of the State's
efforts to reduce mercury in the environment. As a part of this set of
regulations, the State has exempted from its hazardous waste
regulations ``amalgam waste'' that is hazardous solely due to the
mercury characteristic, when the ``amalgam waste'' is managed by dental
facilities in accordance with the proposed ERP sector regulations. See
310 CMR 30.104(2)(u). The State regulates such ``amalgam waste'' under
the ERP sector regulations rather than its hazardous waste regulations.
As further explained in a March 9, 2005 memorandum by Jeffry Fowley,
EPA Region I Office of Regional Counsel, entitled ``Proposed
Massachusetts Regulations Regarding Dental Amalgam'' (included in the
administrative docket), the Massachusetts exemption is equivalent to
Federal RCRA requirements. Under the Federal RCRA regulations, the
dental amalgam would be classified as a characteristic sludge, which is
not considered to be a solid or hazardous waste when being reclaimed,
and thus is exempt from RCRA requirements. In general, the
Massachusetts hazardous waste program does not exempt characteristic
sludge from hazardous waste requirements--but rather regulates it under
the State's Class A recycling program. But Massachusetts has chosen to
regulate dental amalgam in a different way, outside of its hazardous
waste program. Massachusetts may of course choose to exempt certain
characteristic sludges from hazardous waste requirements--e.g., dental
amalgam--in line with Federal requirements, while regulating more
stringently and broadly in its hazardous waste program other
characteristic sludges. Thus, the EPA is authoring the State's
exemption in 310 CMR 30.104(2)(u) and the associated definitions of
``amalgam'' and ``amalgam waste'' in 310 CMR 30.010.
Massachusetts has adopted regulations allowing the MassDEP
to grant waivers from State RCRA regulatory requirements for wastes or
activities that the MassDEP determines are insignificant as a potential
hazard to public health, safety, welfare or the environment, or are
adequately regulated by another government agency. 310 CMR 30.1100
(including 30.1101 and 30.1102). These regulations specify that waivers
may be granted only from requirements that are, ``more stringent than
the minimum Federal requirements promulgated under the Resource
Conservation and Recovery Act.'' Moreover the person seeking the waiver
must demonstrate that the waiver ``will not result in the Department's
requirements applicable to the person becoming less stringent than the
minimum Federal requirements promulgated under the Resource
Conservation and Recovery Act.'' The person receiving the waiver must
comply with the terms of the waiver (which will be established in place
of any waived requirements), in addition to all requirements that are
not waived. As further explained in a March 8, 2005 letter to MassDEP
from Ernest Waterman, Chief of the EPA Region I Hazardous Waste Unit,
and Jeffry Fowley of the Region I Office of Regional Counsel (included
in the administrative docket), since the State regulations mandate that
requirements equivalent to the minimum Federal RCRA requirements always
will be maintained, the State regulations are equivalent to the Federal
RCRA regulations. Thus the EPA is authorizing these State regulations.
As a result of today's authorization, individual waiver determinations
may be issued by the State without needing to separately and repeatedly
go through the authorization process, provided of course that
equivalency with the minimum Federal requirements is maintained. Any
alternative requirements set by the State in any waiver determination,
in order to maintain equivalency with the Federal requirements, will
become part of the Federally enforceable (as well as State enforceable)
RCRA program, as a result of being specified in the waiver
determination by the State. EPA Region I has encouraged the MassDEP to
consult with the Region with respect to each waiver, to ensure that the
Department and EPA are in agreement that any waiver is only from more
stringent State requirements.
I. What Is the Massachusetts Corrective Action Program That Is Being
Authorized?
As part of this program update, the State will be assuming
responsibility for operating the Federal Corrective Action program. The
program being authorized covers all Treatment Storage and Disposal
Facilities (TSDFs) subject to 40 CFR 264.101, which includes (i) active
facilities which need permits to conduct ongoing treatment, storage or
disposal, and (ii) interim status land disposal facilities which have
been required to seek post closure permits under the EPA regulations.
Massachusetts is planning to carry out the Corrective Action
program utilizing three different approaches. First, the State will
issue RCRA permits (called licenses in Massachusetts) to active TSDFs,
in accordance with State regulations that track 40 CFR 264.101. Second,
Massachusetts will issue enforceable Orders to some interim status land
disposal facilities (LDFs) undergoing closure or in post closure, in
accordance with State regulations which track the requirements of the
EPA's closure/post-closure rule, 63 FR 56710 (October 22, 1998). The
State regulations regarding such permits and Orders raise no
significant authorization issues.
Use of the 21E Program
Third, Massachusetts also plans to allow some clean-ups at interim
status LDFs to be conducted under the State's Superfund program
promulgated under M.G.L. c. 21E (the 21E program). This should result
in the acceleration of the cleanups. This deferral of corrective action
to the 21E program will occur only at sites which have not yet been
issued RCRA closure/post-closure permits, and will involve moving
forward with the clean-ups without waiting for the issuance of the
permits. The 21E program regulations contain enforceable deadlines and
standards that facilities must follow. This deferral of corrective
action also will avoid duplication of effort. Cleanups at most of the
sites in question already are occurring under the 21E program, and it
makes sense to take advantage of that fact, rather than starting the
cleanups over again under another program.
However, the State's plan to utilize the 21E program at sites
subject to Corrective Action under RCRA raised certain RCRA
authorization issues. In particular, these issues arose because in the
21E program, Massachusetts utilizes State licensed but privately
employed professionals (Licensed Site Professionals or LSPs) for day-
to-day oversight of many of the clean-ups. In the 21E program
generally, only some LSP clean-up determinations are subject to State
audit. Also, in the 21E program generally, the public comment process
does not include a comment period in connection with the audits. In
contrast, the EPA corrective action regulations contemplate that there
will be governmental oversight and the opportunity for public comment
(to the government) in connection with clean-ups.
These authorization issues have been resolved as follows. First,
Massachusetts has adopted a regulation requiring State audits at all
corrective action sites at which clean-ups are conducted in the 21E
program under the day-to-day
[[Page 5758]]
direction of LSPs. 310 CMR 30.099(13)(e)(3). If the audit finds that a
site has not been remediated so as to meet the same State clean-up
standards as would be applied under a RCRA permit or Order, then the
facility must carry out additional corrective action as required. Id.
The State regulations also clarify that the MassDEP may intervene at
any time during the carrying out of a remediation to correct any
violations of the corrective action requirements. 310 CMR
30.099(13)(e)(2). In addition, the State regulations require that a
public comment period will be conducted by the State regarding each
audit, prior to making the determination that corrective action is
complete. 310 CMR 30.099(13)(e)(4). This is in addition to the public
comment process that must occur at the time of remedy selection. 310
CMR 30.099(13)(e)(1).
The adoption of these additional State regulations along with
commitments made by the State in the Memorandum of Agreement and
Program Description, have resolved the EPA's concerns. There will be
government oversight and a meaningful opportunity for public comment in
connection with all clean-ups at corrective action sites subject to
today's authorization. To the extent that the State's use of the 21E
program will result in cleanups occurring with less immediate day-to-
day government oversight than might occur under a permit or Order, this
is compensated for by the acceleration of the cleanups and the fact
that there will be a thorough governmental review at the end of the
process.
If instead of authorizing Massachusetts to carry out the Corrective
Action program, the EPA was to continue to operate the program in
Massachusetts, it similarly could allow a clean-up to occur, prior to
permitting, under another program such as the 21E program. In such a
situation, the EPA would then review the adequacy of the clean-up prior
to determining that corrective action was complete, and thus allowing
the facility to be terminated from interim status, pursuant to 40 CFR
270.73(a).\1\ Prior to terminating the facility's interim status, the
EPA also would follow the public comment procedures specified in 40 CFR
124.6 and 124.10(a)(1)(i). The State has adopted similar regulations
requiring governmental review and public comment prior to interim
status being terminated. These State regulations are equivalent to--or
more stringent than--40 CFR 270.73(a).\2\
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\1\ An EPA decision terminating interim status after corrective
action had been completed (with no waste left in place) would
technically be a `permit denial' based on there being no need for a
closure/post closure permit since corrective action (and all other
required closure activities) had been completed. The State program
similarly contemplates that facilities fully cleaned up prior to
getting a permit (with no waste left in place) never will need to be
issued a closure/post closure permit.
\2\ Pursuant to the EPA regulations on State authorization at 40
CFR 271.12(a) and 271.14, States with interim status facilities must
track the requirements of 40 CFR 270.73, but generally need not
track the public comment requirements of 40 CFR 124.6 and
124.10(a)(1)(i) when denying a permit under 40 CFR 270.73. This is
because permit denials typically are employed to not allow
facilities to operate, and a State may be more stringent in not
allowing a facility to operate without needing to follow any
federally prescribed comment process. However, since Massachusetts
will be employing a procedure similar to the federal ``permit
denial'' to recognize the completion of correction action and allow
facilities to be terminated from interim status, Massachusetts
appropriately agreed to adopt public comment procedures (as well as
audit procedures) as a part of that process.
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The EPA is not authorizing as part of the Federal RCRA program the
21E program as such, or the 21E program regulations themselves, or the
use of LSPs. As explained above, the 21E program standing alone is not
equivalent to the Federal Corrective Action program in certain
respects. Rather, the EPA is authorizing the regulations at 310 CMR
30.099(13) that the State will utilize to ensure that clean-ups that
have occurred in the 21E program meet Federal Corrective Action
requirements.
Today's authorization does not alter the previously authorized
State requirements regarding regulated unit closure. Regulated unit
closure will continue to be governed by the State's hazardous waste
program regulations rather than being conducted under the 21E program
under the supervision of LSPs. See 310 CMR 30.099(13)(f). Also, sites
which are addressed in the 21E program, but which are unable to clean
close, will be issued post closure permits or Orders rather than
remaining under LSP supervision over the long term. In its discussion
of the 21E program audits, at page 5, the Memorandum of Agreement
specifies: ``[f]or facilities requiring long-term operation and
maintenance, and monitoring (e.g., closed landfills), these [audits]
will be conducted in connection with the issuance of post-closure
permits or orders requiring the long-term operation and maintenance,
and monitoring.''
Exemption From Permitting
Massachusetts also has adopted a hazardous waste program regulation
which exempts some remediation activities from the RCRA permit (state
license) requirement, if the activities are conducted within a
``disposal site'' in compliance with the 21E program requirements. 310
CMR 30.801(c).\3\ The EPA is authorizing this regulation in connection
with today's authorization of the Corrective Action program.
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\3\ This new hazardous waste program regulation actually narrows
the exemption from RCRA permitting earlier allowed by Massachusetts
in its 21E program regulations, at 310 CMR 40.0031(3) and
40.0041(4). This new regulation specifies that its terms ``govern''
in the event of any inconsistency between its terms and the 21E
program regulations. See 310 CMR 30.801(11) (intro.).
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The State regulation narrowly exempts from only the permit
requirement only certain low risk treatment activities which may occur
within previously contaminated areas in order to reduce or eliminate
the contamination. A permit still will be required before higher risk
treatment involving the combustion of hazardous waste is allowed. 310
CMR 30.801(c)(1). The exemption also does not apply to treatment which
occurs outside of the boundary of a contaminated ``disposal site.'' 310
CMR 30.801(c)(3) and (4). The exemption also is only from the permit
requirement and does not exempt even on-site treatment activities from
other applicable hazardous waste program requirements. 310 CMR
30.801(c)(5).
The EPA long has allowed States to waive the RCRA permit
requirement in order to foster the on-site clean-up of remediation
wastes. On November 16, 1987, the EPA Director of the Office of Solid
Waste and Emergency Response, J. Winston Porter, issued guidance--OSWER
Policy Directive 9522.00-2 (Porter Memorandum)--stating that ``[i]n
general, * * * a State authorized to conduct the RCRA base permit
program will have the authority to waive RCRA permit requirements for
State Superfund actions as long as: (1) The State has the authority
under its own statutes and regulations to grant permit waivers, and (2)
the State waiver authority is used in no less stringent a manner than
allowed under Federal permit waiver authority, for example, sec. 7003
of RCRA or sec. 121(e) of CERCLA.'' The Porter Memorandum goes on to
state that ``* * * States should be encouraged to move ahead on
cleanups under their own Superfund authorities and * * * it does not
make sense to delay actions until a RCRA permit can be issued, as long
as an appropriate waiver mechanism applies and adequate measures are
taken to protect human health and the environment.'' That the Porter
Memorandum would continue to be followed was reiterated by EPA in the
Preamble to the HWIR-Media Rule. In its discussion of when RCRA permits
[[Page 5759]]
are required, the Preamble states, ``There are also instances when
treating, storing and disposing of remediation wastes do not require a
RCRA permit. * * * Another example would be when [a] State that is
authorized to implement the RCRA program has a permit waiver authority
that is analogous to EPA's authority under CERCLA 121(e) or RCRA 7003.
This permit waiver authority is described in a memorandum from J.
Winston Porter * * * available in the docket to today's rule. Today's
rule does not change or affect this policy in any way.'' 63 FR 65874,
65887-65888 (November 30, 1998).
The Massachusetts permit exemption meets the tests set forth in the
Porter Memorandum. Massachusetts has been authorized to conduct the
RCRA base permit program. The State has the statutory authority to
grant waivers from RCRA permit requirements pursuant to M.G.L. c. 21C,
sec. 4, so long as there is ``adequate regulation'' under another
program--such as exists under the State's 21E program. Finally, the
State's waiver authority is being used in a manner that is no less
stringent than allowed under sec. 121(e) of CERCLA. That Federal
provision specifies that ``No Federal, State or local permit shall be
required for the portion of any removal or remedial action conducted
entirely onsite, where such remedial action is carried out in
compliance with this section.'' The Massachusetts exemption similarly
applies only to remediation activities conducted within a ``disposal
site'' and only when they are conducted in accordance with the State's
21E program requirements. The State's 21E program requirements which
ensure that LSPs will safely carry out hazardous waste remediation
activities within disposal sites are described in the Program
Description at pages 29-30. At least for the lower risk treatment
activities covered by the State's exemption, these requirements are
equivalent in ensuring environmental protection to the requirements
under CERCLA.
Under the Federal RCRA regulations--40 CFR 270.1(c)--a RCRA permit
is required for the ``treatment,'' ``storage'' and ``disposal'' of
hazardous waste, but that requirement is limited by CERCLA 121(e).
Under the Massachusetts hazardous waste program regulations, a RCRA
``license'' similarly is required for treatment, storage and disposal
of hazardous waste by 310 CMR 30.801 (intro.), but that requirement is
limited by 310 CMR 30.801(11)(c). The State requirement at 30.801
(intro.) as limited by 30.801(11)(c) is equivalent to the Federal
requirement at 40 CFR 270.1(c), as limited by CERCLA 121(e). Thus the
EPA is authorizing 310 CMR 30.801(11)(c).
Additional Issues
In determining whether remediation is complete at corrective action
sites, the State will utilize the clean-up standards set forth in its
21E program regulations. 310 CMR 40.0000. The EPA has reviewed those
regulations. For the reasons explained in the Memorandum entitled ``MA
Contingency Plan Regulations'' by Frank Battaglia, MA State
Coordinator, RCRA Corrective Action Section, dated February 6, 2007
(included in the administrative docket), the EPA has determined that
the State standards meet the Federal requirement (40 CFR 264.101) for
protection of human health and the environment.
In connection with today's authorization, the EPA also did an
analysis to determine if the State has the capability to administer the
Corrective Action program. This analysis went beyond reviewing the
State regulations to focus on such things as resources and technical
capability. For the reasons explained in the Memorandum entitled
``Capability Assessment'' by Frank Battaglia, dated March 9, 2007
(included in the administrative docket), the EPA has determined that
the State has the capability to administer this important program.
J. How Does This Action Affect Indian Country (18 U.S.C. 115) in
Massachusetts?
Massachusetts is not authorized to carry out its hazardous waste
program in Indian country within the State (land of the Wampanoag
tribe). Therefore, EPA will continue to implement and administer the
RCRA program in these lands.
K. Who Handles Permits After the Authorization Takes Effect?
Massachusetts will issue permits for provisions for which it is
authorized and will administer the permits it issues. However, EPA will
continue to administer and enforce any RCRA and HSWA (Hazardous and
Solid Waste Act) permits or portions of permits which it has issued in
Massachusetts prior to the effective date of this authorization. In
particular, as further specified in the Memorandum of Agreement, the
EPA will continue to administer the EPA corrective action permit
reissued to General Electric--Pittsfield in 2007, including handling
any permit modifications, and any administrative and court appeals from
any permit modifications. EPA will not issue any more new permits, or
new portions of permits, for the provisions listed in this notice above
after the effective date of this authorization. EPA will continue to
implement and issue permits for any HSWA requirements for which
Massachusetts is not yet authorized.
L. What Is Codification and Is EPA Codifying Massachusetts'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 UU for this authorization of
Massachusetts's program until a later date.
M. Administrative Requirements
The Office of Management and Budget has exempted this action (RCRA
State Authorization) from the requirements of Executive Order 12866 (58
FR 51735, October 4, 1993); therefore, this action is not subject to
review by OMB. This action authorizes State requirements under RCRA
3006 and imposes no additional requirements beyond those imposed by
State law. Accordingly, I certify that this action will not have a
significant economic impact on a substantial number of small entities
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because
this action authorizes pre-existing requirements under State law and
does not impose any additional enforceable duty beyond that required by
State law, it does not contain any unfunded mandate or significantly or
uniquely affect small governments, as described in the Unfunded
Mandates Reform Act of 1995 (Pub. L. 104-4). For the same reason, this
action also does not significantly or uniquely affect the communities
of Tribal governments, as specified by Executive Order 13175 (65 FR
67249, November 9, 2000). This action will not have substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government, as specified
in Executive Order 13132 (64 FR 43255, August 10, 1999), because it
merely authorizes State requirements as part of the State RCRA
hazardous waste program without altering the relationship or the
distribution of power and responsibilities established by RCRA. This
action also is not subject to Executive Order 13045 (62 FR 19885,
[[Page 5760]]
April 23, 1997), because it is not economically significant and it does
not make decisions based on environmental health or safety risks. This
rule is not subject to Executive Order 13211, ``Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use'' (66 FR 28355 (May 22, 2001) ) because it is not a significant
regulatory action under Executive Order 12866.
Under RCRA 3006(b), EPA grants a State's application for
authorization as long as the State meets the criteria required by RCRA.
It would thus be inconsistent with applicable law for EPA, when it
reviews a State authorization application, to require the use of any
particular voluntary consensus standard in place of another standard
that otherwise satisfies the requirements of RCRA. Thus, the
requirements of section 12(d) of the National Technology Transfer and
Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required
by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996),
in issuing this rule, EPA has taken the necessary steps to eliminate
drafting errors and ambiguity, minimize potential litigation, and
provide a clear legal standard for affected conduct. EPA has complied
with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining
the takings implications of the rule in accordance with the ``Attorney
General's Supplemental Guidelines for the Evaluation of Risk and
Avoidance of Unanticipated Takings'' issued under the executive order.
This rule does not impose an information collection burden under the
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et
seq.).
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit a report containing this document and
other required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication in the Federal Register. A major rule cannot take effect
until 60 days after it is published in the Federal Register. This
action is not a ``major rule'' as defined by 5 U.S.C. 804(2). This
action nevertheless will be effective March 31, 2008, because it is an
immediate final rule.
List of Subjects in 40 CFR Part 271
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous waste, Hazardous waste
transportation, Incorporation by reference, 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: December 17, 2007.
Robert W. Varney,
Regional Administrator, EPA New England.
[FR Doc. E8-1316 Filed 1-30-08; 8:45 am]
BILLING CODE 6560-50-P