[Federal Register: October 21, 2003 (Volume 68, Number 203)]
[Proposed Rules]
[Page 60060-60073]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21oc03-23]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 262 and 271
[FRL-7575-8]
Massachusetts: Proposed Final Authorization of State Hazardous
Waste Management Program Revisions; Proposed State-Specific
Modification to Federal Hazardous Waste Regulations; Proposed Extension
of Site-Specific Regulations for New England Universities' Laboratories
XL Project
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule.
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SUMMARY: Today's action consists of three distinct but related
proposals briefly characterized here and discussed in detail below in
the supplementary information section of this action. First, the EPA
proposes to grant final authorization to the Commonwealth of
Massachusetts for revisions to its hazardous waste program under the
Resource Conservation and Recovery Act (RCRA). The revisions consist of
updated State regulations covering hazardous waste definitions and
miscellaneous provisions, provisions for the identification and listing
of hazardous wastes, and standards for hazardous waste generators,
which correspond to RCRA Consolidated Checklists C1, C2 and C3,
respectively. These State regulations are being updated to address most
Federal RCRA requirements listed in Checklists C1, C2 and C3 through at
least July 1, 1990. These State regulations have been determined by the
EPA to meet the requirements for authorization (including equivalency)
as set forth in the EPA's current regulations.
Second, the State regulations submitted for authorization also
include comprehensive regulations governing hazardous wastes being
recycled on-site by generators. Although these State regulations differ
in several respects
[[Page 60061]]
from the Federal regulations and do not meet particular requirements
for State authorization currently set forth in the EPA's regulations,
the EPA has determined that the State regulations meet the RCRA
statutory test of protecting human health and the environment. These
Massachusetts regulations are at least as environmentally protective
overall as the Federal program. Accordingly, the EPA is proposing to
make a State-specific modification to the Federal hazardous waste
regulations to enable the EPA to authorize these Massachusetts
regulations, pursuant to a proposal for flexibility submitted by the
Massachusetts Department of Environmental Protection (MADEP) under the
program established by the Joint EPA/State Agreement to Pursue
Regulatory Innovation between the EPA and the Environmental Council of
States (ECOS program). The EPA is also proposing (as part of this same
rulemaking) to then authorize these Massachusetts hazardous waste
recyclable materials regulations.
Third, the EPA is proposing to extend the expiration date of site-
specific regulations previously adopted by the EPA under the eXcellence
and Leadership program (Project XL) allowing alternative RCRA generator
requirements to be followed for laboratories at certain universities in
Massachusetts (and Vermont). The EPA is also proposing (as part of this
same rulemaking) to then authorize the Massachusetts regulations which
track these EPA regulations. The EPA already has authorized the Vermont
regulations which track these EPA regulations and expects to extend the
authorization of the Vermont regulations through a separate rulemaking.
DATES: Comments on the proposed rule must be received on or before
November 20, 2003. Comments submitted electronically will be considered
timely submitted if they are received by 11:59 p.m. (Eastern time) on
the deadline date. Commenters may request a public hearing by November
4, 2003. See Supplementary Information below for additional details.
ADDRESSES: Written comments (including requests for hearings) should be
mailed to Robin Biscaia, Hazardous Waste Unit, EPA Region I, One
Congress St., Suite 1100 (CHW), Boston, MA 02114-2023, or e-mailed to: biscaia.robin@epa.gov.
Dockets containing copies of the Commonwealth of Massachusetts'
revision application, the materials which the EPA used in evaluating
the revision, and materials relating to the proposed State-specific and
site-specific Federal regulation changes, have been established at the
following two locations: (i) Massachusetts Department of Environmental
Protection Library, One Winter Street--2nd Floor, Boston, MA 02108,
business hours Monday through Friday 9 a.m. to 5 p.m., tel: (617) 292-
5802; and (ii) EPA Region I Library, One Congress Street--11th Floor,
Boston, MA 02114-2023, business hours Monday through Thursday 10 a.m.--
3 p.m., tel: (617) 918-1990. Records in these dockets are available for
inspection and copying during normal business hours.
FOR FURTHER INFORMATION CONTACT: Robin Biscaia, Hazardous Waste Unit,
EPA Region I, One Congress St., Suite 1100 (CHW), Boston, MA 02114-2023, tel: (617) 918-1642, e-mail: biscaia.robin@epa.gov.
SUPPLEMENTARY INFORMATION:
Additional comment and hearing information. Unless a hearing is
scheduled, all comments must be submitted in writing, and must be
received by the deadline set above. Commenters requesting a public
hearing should specify the basis for their request. If the EPA
determines pursuant to 40 CFR 25.4(d) that there is a sufficient reason
to hold a public hearing, it will hold such a hearing prior to the
close of the public comment period. The public comment period may then
be extended to allow sufficient time to schedule and hold a hearing. If
a public hearing is scheduled, the date, time and location will be
available through a Federal Register notice, by contacting Ms. Robin
Biscaia at the Region I office, and by individual notice to those
persons on the mailing list of those interested in this matter. Persons
wishing to be added to this mailing list should contact Ms. Robin
Biscaia.
Introduction. In part I, below, this document will discuss the
updated State RCRA regulations which are proposed to be authorized as a
standard authorization under the current EPA regulations. In part II,
below, this document will discuss the ECOS program proposal to make a
State-specific change to the Federal regulations to allow authorization
of the Massachusetts hazardous waste recyclable materials regulations,
and the proposed resulting authorization of the recyclable materials
regulations. In part III, below, this document will discuss the
proposal to extend the expiration date of the New England Universities'
Laboratories project XL regulations, and the proposed authorization of
the Massachusetts project XL regulations. In part IV, below, this
document will assess the effects of the proposed decisions, in
accordance with various statutes and executive orders.
I. Proposed Final Authorization of State Hazardous Waste Management
Program Revisions; Standard Authorization
A. Why Are Revisions to State Programs Necessary?
States with final authorization under section 3006(b) of RCRA, 42
U.S.C. 6926(b), have a continuing obligation to maintain a hazardous
waste program that is equivalent to, consistent with, and no less
stringent than the Federal hazardous waste program. As the Federal
hazardous waste program changes, the States must revise their programs
and apply for authorization of the revisions. Revisions to State
hazardous waste programs may be necessary when Federal or State
statutory or regulatory authority is modified or when certain other
changes occur. Most commonly, States must revise their programs because
of changes to EPA's regulations in 40 Code of Federal Regulations (CFR)
parts 124, 260 through 266, 268, 270, 273 and 279.
B. What Has Massachusetts Previously Been Authorized for Under RCRA?
The Commonwealth of Massachusetts initially received Final
Authorization on January 24, 1985, effective February 7, 1985 (50 FR
3344), to implement its base hazardous waste management program. The
authorized base program State regulations currently remain in effect
and generally track Federal hazardous waste requirements through at
least July 1, 1984. In addition, the EPA previously has authorized
particular Massachusetts regulations which address several of the EPA
requirements adopted after July 1, 1984. Specifically, on September 30,
1998, the EPA authorized Massachusetts to administer the Satellite
Accumulation rule, effective November 30, 1998 (63 FR 52180). Also, on
October 12, 1999, the EPA authorized Massachusetts to administer the
Toxicity Characteristics rule (except with respect to Cathode Ray
Tubes), and the Universal Waste rule, effective immediately (64 FR
55153). Finally, on November 15, 2000, the EPA granted interim
authorization for Massachusetts to regulate Cathode Ray Tubes under the
Toxicity Characteristics rule through January 1, 2003, effective
immediately (65 FR 68915). This interim authorization subsequently was
extended to run through January 1, 2006 (67 FR 66338, October 31,
2002).
[[Page 60062]]
C. What Decisions Is the EPA Proposing To Make in This Standard
Authorization?
The EPA is proposing to authorize Massachusetts regulations which
will update the State's hazardous waste program. The proposed State
regulations cover hazardous waste definitions and miscellaneous
provisions, provisions for the identification and listing of hazardous
wastes, and standards for hazardous waste generators, which correspond
to RCRA Consolidated Checklists C1, C2 and C3, respectively. The State
regulations are being updated to address most Federal RCRA requirements
listed in Checklists C1, C2 and C3 through at least July 1, 1990. The
EPA is proposing to authorize these changes. In addition to addressing
requirements in Checklists C1, C2 and C3 not previously covered by
authorized State regulations, the proposed State regulations make some
changes to the previously authorized Satellite Accumulation, Universal
Waste rule and Toxicity Characteristics rule regulations. The EPA also
is proposing to authorize these changes. In addition, the proposed
State regulations include some State initiated changes to previously
authorized Base Program regulations (i.e., changes made for reasons
other than addressing new EPA requirements). The EPA also is proposing
to authorize these changes insofar as they address hazardous waste
definitions and miscellaneous provisions, provisions for the
identification and listing of hazardous wastes, and standards for
hazardous waste generators, and except as specified below. Finally, the
proposed State regulations include provisions which track the 180 Day
Accumulation Time rule for metal finishing industry waste water
treatment sludges (F006) being recycled, adopted by the EPA on March 6,
2000 (65 FR 12397). The EPA also is proposing to authorize these
provisions.
The specific RCRA program revisions for which the EPA proposes to
authorize the Commonwealth of Massachusetts are listed in the table
below. The Federal requirements in the table are identified by their
checklist numbers and rule descriptions. The following abbreviation is
used in defining analogous state authority: CMR = Code of Massachusetts
Regulations. The citations in the table are to the CMR provisions as
recently proposed to be adopted/amended by the MADEP in Massachusetts
Register No. 983 (September 26, 2003). The EPA expects to authorize
these provisions through a final Federal rule once they are adopted in
final form by the MADEP through a final State rule, if the final State
regulations are the same as the proposed State regulations. If the
final State regulations are different from the proposed State
regulations, the EPA expects to authorize them (without an additional
round of public comment) if but only if the final regulations continue
to meet standard authorization requirements and are a logical outgrowth
of the proposed regulations.
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Description of Federal requirements and
checklist reference numbers Analogous State authority
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Consolidated Checklist 1 through July 1, 310 CMR 30.001-30.009;
1990, covering base program requirements 30.010 (definitions),
in 40 CFR part 260, and requirements in except for definitions
the following rule checklists included in relating to program
part 260: elements not being
authorized, namely ``mixed
waste,'' ``municipal or
industrial wastewater
treatment facility
permitted under M.G.L. c.
21, sec. 43'' and
definitions relating to
used oil program; 30.011-
30.030.
(5) National Uniform Manifest
(definitions), 49 FR 10490, 3/20/84;
(11) Corrections to Test Methods Manual,
49 FR 47390, 12/4/84;
(13) Definition of Solid Waste, 50 FR
14216, 4/11/85 as amended on 8/20/85 at
50 FR 33541 (except for variance
authorities, 40 CFR 260.30 through 40 CFR
260.33);
(23) Generators of 100 to 1000 kg
Hazardous Waste (definitions), 51 FR
10146, 3/24/86;
(24) Financial Responsibility; Settlement
Agreement (definitions), 51 FR 16422, 5/2/
86;
(28) Standards for Hazardous Waste Storage
and Treatment Tank Systems (definitions),
51 FR 25422, July 14, 1986 as amended on
August 15, 1986 at 51 FR 29430;
(35) Revised Manual SW-846, Amended
Incorporation by Reference (definitions),
52 FR 8072-8073, March 16, 1987;
(49) Identification and Listing of
Hazardous Waste, Treatability Studies
Sample Exemption (definition), 53 FR
27290, 7/19/88;
(67) Testing and Monitoring Activities, 54
FR 40260, 9/29/89;
(71) Mining Waste Exclusion II
(definition), 55 FR 2322, 1/23/90.
[[Page 60063]]
Consolidated Checklist 2 through July 1, 310 CMR 30.101-30.103;
1990, covering base program requirements 30.104 (exemptions), except
in 40 CFR part 261 and requirements in for 30.104(3)(d) (research
the following rule checklists included in study samples); 30.105-
part 261: 30.162; 30.353 (rules for
(4) Chlorinated Aliphatic Hydrocarbon very small quantity
Listing (F024), 49 FR 5308, 2/10/84; generators, being
(7) Warfarin and Zinc Phosphide Listing, authorized in place of EPA
49 FR 19922, 5/10/84; conditional exemption in 40
(8) Lime Stabilized Pickle Liquor Sludge, CFR 261.5).
49 FR 23284, 6/5/84;
(9) Household Waste, 49 FR 44978, 11/13/
84;
(13) Definition of Solid Waste, 50 FR
614,1/4/85 as amended 4/11/85 at 50 FR
14216 and 8/20/85 at 50 FR 33541;
(14) Dioxin Waste Listing and Management
Standards, 50 FR 1978, 1/14/85;
(17C) HSWA Codification Rule--Household
Waste, 50 FR 28702, 7/15/85;
(17J) HSWA Codification Rule--Cement
Kilns, 50 FR 28702, 7/15/85;
(18) Listing of TDI, TDA, DNT, 50 FR
42936, 10/23/85;
(20) Listing of Spent Solvents, 50 FR
53315, 12/31/85 as amended on 1/21/86 at
51 FR 2702;
(21) Listing of EDB Waste, 51 FR 5327, 2/
13/86;
(22) Listing of Four Spent Solvents, 51 FR
6537, 2/25/86;
(23) Generators of 100 to 1000 kg
hazardous waste, 51 FR 10146, 3/24/86;
(26) Listing of Spent Pickle Liquor, 51 FR
19320, 5/28/86 amended on 9/22/86 by 51
FR 33612 and on 8/3/87 by 52 FR 28697;
(28) Standards for Hazardous Waste Storage
and Treatment Tank Systems, 51 FR 25422,
7/14/86 as amended on 8/15/86 at 51 FR
29430;
(29) Correction to Listing of Commercial
Chemical Products and Appendix VIII, 51
FR 28296, 8/6/86 (superseded by Checklist
46, see below);
(31) Exports of Hazardous Waste, 51 FR
28664, 8/8/86;
(33) Listing of EBDC, 51 FR 37725, 10/24/
86;
(37) Definition of Solid Waste, Technical
Correction, 52 FR 21306, 6/5/87;
(41) Identification and Listing of
Hazardous Waste, 52 FR 26012, 7/10/87;
(46) Technical Correction, Identification
and Listing of Hazardous Waste, 53 FR
13382, 4/22/88;
(47) Identification and Listing of
Hazardous Waste, Technical Correction
(corrects CL 23);
(49) Identification and Listing of
Hazardous Waste, Treatability Studies
Sample Exemption, 53 FR 27290, 7/19/88;
(53) Identification and Listing of
Hazardous Waste, and Designation,
Reportable Quantities, and Notification,
53 FR 35412, 9/13/88;
(56) Identification and Listing of
Hazardous Waste, Removal of Iron Dextran
from the List of Hazardous Wastes, 53 FR
43878, 10/31/88;
(57) Identification and Listing of
Hazardous Waste, Removal of Strontium
Sulfide from the List of Hazardous
Wastes, 53 FR 43881, 10/31/88;
(65) Mining Waste Exclusion I, 54 FR
36592,9/1/89;
(67) Testing and Monitoring Activities, 54
FR 40260, 9/29/89;
(68) Reportable Quantity Adjustment Methyl
Bromide Production Wastes, 54 FR 41402,
10/6/89;
(69) Reportable Quantity Adjustment, 54 FR
50968, 12/11/89;
(71) Mining Waste Exclusion II, 55 FR
2322, 1/23/90;
(72) Modifications of F019 Listing, 55 FR
5340, 2/14/90;
(73) Testing and Monitoring Activities,
Technical Corrections, 55 FR 8948, 3/9/
90;
(75) Listing of 1,1-Dimethylhydrazine
Production Wastes, 55 FR 18496, 5/2/90;
(76) Criteria for Listing Toxic Wastes,
technical amendment, 55 FR 18726, 5/4/90.
[[Page 60064]]
Consolidated Checklist 3 through July 1, 310 CMR 30.301-30.352 (rules
1990, covering base program requirements for large and small
in 40 CFR part 262 and requirements in quantitygenerators);
the following rule checklists included in revisions to 30.685(1)
part 262: (referenced by generator
(1) Biennial Report, 48 FR 3977, 1/28/83; regulations); 30.361
(5) National Uniform Manifest, 49 FR (international shipments);
10490, 3/20/84; 30.061-30.064 (generator
(17D) HSWA Codification Rule, Waste notifications/i.d.
Minimization, 50 FR 28702, 7/15/85; numbers).
(23) Generators of 100 to 1000 kg Note: The Massachusetts
Hazardous Waste, 51 FR 10146, 3/24/86; ``Class A'' recycling
(28) Standards for Hazardous Waste Storage regulations regarding
and Treatment Tank Systems, 51 FR 25422, generators doing on-site
7/14/86 as amended on 8/15/86 at 51 FR recycling also will be
29430; authorized, as described in
(31) Exports of Hazardous Waste, 51 FR Part II of this document.
28664, 8/8/86; Special rules for certain
(32) Standards for Generators, Waste university laboratories
Minimization Certifications, 51 FR 35190, covered by the New England
10/1/86; Universities' Laboratories
(42) Exception Reporting for Small XL project also will be
Quantity Generators of Hazardous Waste, authorized, as described in
52 FR 35894, 9/23/87; Part III of this document.
(48) Farmer Exemptions, Technical
Corrections, 53 FR 27164, 7/19/88;
(58) Standards for Generators of Hazardous
Waste, Manifest Renewal, 53 FR 45089, 11/
8/88;
(71) Mining Waste Exclusion II, 55 FR
2322, as described in Part III 1/23/90
RCRA Cluster X:
(184) Accumulation Time for Waste Water 310 CMR 30.340(5).
Treatment Sludges, 65 FR 12378, 3/8/00.
Revisions to Previously Authorized Rules:
(12) Satellite Accumulation Rule, 49 FR 310 CMR 30.340(6),
49568, 12/20/84; 30.351(5), 30.351(2)(b)(6.)
and 30.353(2)(b)(6.).310
CMR 30.155 and 30.012
(updated incorporation by
reference).
(119) Toxicity Characteristics Revision,
TCLP Correction, 57 FR 55114, 11/24/92 as
amended on 2/2/93 at 58 FR 6854.
(142) Universal Waste Rule, 60 FR 25492, 5/ 310 CMR
11/95. 30.1034(5)(c)(1.)(c.)
(revised cross-reference).
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Following review of the proposed Massachusetts regulations, the EPA
has determined that they are equivalent to, no less stringent than and
consistent with the Federal program. The reasons for these
determinations are set forth in the Administrative Docket, which is
available for public review. Many of the proposed State regulations
track Federal requirements virtually identically. Others differ from
the Federal regulations in particular details, but have been determined
by the EPA to be equivalent to the Federal regulations in providing the
same (or greater) overall level of environmental protection with
respect to each Federal requirement. The resolution of various issues
relating to the proposed State regulations is recorded in an EPA
Memorandum dated February 14, 2003 entitled ``Comments on Proposed
Massachusetts RCRA Regulations'' and an EPA Memorandum dated March 31,
2003 entitled ``Resolution of Issues Regarding Proposed Massachusetts
RCRA Regulations.''
Future updates of the State's regulations will need to address
requirements covered by Checklists C1 through C3 adopted after July 1,
1990 and requirements covered by Checklists C4 through C10 adopted
since July 1, 1984. The EPA has not reviewed and is not currently
proposing to authorize changes the State may have made to Base Program
regulations relating to Checklists C4--C10. (Note, Checklists C4
through C10 address EPA provisions found in 40 CFR parts 263, 264, 265,
266, 268, 270, 124 and 279). Also not covered in the current proposed
authorization are some rules issued by the EPA before July 1, 1990
which apply in part to generators, namely the 1986 Radioactive Mixed
Waste rule/interpretation, the various rules relating to Land Disposal
Restrictions (``LDRs''), and the 1990 Organics Air Emissions rule
(``AA'' and ``BB'' rule). Also not covered in the current proposed
authorization are sector-specific rules that the MADEP has adopted for
printers, photo processors and dry cleaners under its Environmental
Results Program (``ERP''). Although many sources in these sectors are
subject to RCRA requirements, the MADEP has advised the EPA that the
ERP regulations have not made any changes to the hazardous waste
management requirements applicable to these sectors, and has not
submitted the ERP regulations for authorization at this time. Also not
covered in the current proposed authorization is the proposed State
regulation at 310 CMR 30.104(3)(d) relating to research facilities.
That proposed regulation relates to an exemption from full Treatment,
Storage, Disposal Facility (``TSDF'') requirements found at 310 CMR
30.864. The EPA will review that research facility provision (and the
related exemption) when the MADEP submits updated regulations for TSDFs
(Consolidated Checklists C5, C6 and C9). Also not covered in the
current proposed authorization is the proposed State definition of
``municipal or industrial wastewater treatment facility permitted under
M.G.L. c. 21, sec. 43'' in 310 CMR 30.010. That proposed definition
relates to an exemption from full TSDF requirements found at 310 CMR
30.801(4). The EPA will review this definition (and the related
exemption) when the MADEP submits updated regulations for TSDFs.
D. Where Are the Proposed State Rules Different From the Federal Rules?
The most significant differences between the proposed State rules
and the Federal rules are summarized below. It should be noted that
this summary does not describe every difference, or every detail
regarding the differences that are described. Members of the regulated
community are advised to read the complete regulations to ensure that
they understand all of the requirements with which they will need to
comply.
[[Page 60065]]
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:
[sbull] Massachusetts does not follow the EPA interpretation
allowing Large Quantity Generators and Small Quantity Generators to
conduct treatment without permits in accumulation tanks and containers.
[sbull] Massachusetts imposes various requirements regarding
storage of hazardous wastes by generators which are more stringent than
Federal requirements. For example, Massachusetts requires that labels
on tanks and containers include identification of the hazardous wastes
and the type of hazards associated with the wastes, as well as tracking
the Federal requirement that the labels include the words ``hazardous
waste.''
[sbull] In addition, Massachusetts specifies recordkeeping
requirements to document compliance with requirements in some
circumstances where the recordkeeping is not expressly required under
the Federal regulations, e.g., the keeping of an inspection log for
container area inspections.
[sbull] Massachusetts imposes spill containment requirements for
container areas (not just for tanks as in the Federal regulations),
including a requirement that indoor containers be located on an
impervious base and a requirement that outdoor containers have full
secondary containment.
[sbull] Massachusetts requires security measures and posting of
signs at hazardous waste storage areas, in addition to the labeling of
individual tanks and containers as required by the Federal regulations.
[sbull] Massachusetts does not allow any storage of hazardous
wastes in open tanks, whereas the Federal regulations allow such
storage except when otherwise required by the 40 CFR parts 264 and 265,
subpart CC hazardous air emission rules.
[sbull] Massachusetts specifies requirements for Very Small
Quantity Generators (``VSQGs'') (Federal Conditionally Exempt Small
Quantity Generators) which go beyond the Federal requirements for
conditional exemption. For example, Massachusetts specifies safe
storage practices for VSQGs whereas the Federal regulations regarding
tank and container storage apply only to Large Quantity Generators
(``LQGs'') and Small Quantity Generators (``SQGs'').
[sbull] In addition, Massachusetts prohibits VSQGs from generating
or accumulating any acutely hazardous wastes, whereas the Federal
regulations allow such generators to accumulate up to one kilogram of
such wastes.
[sbull] Finally, VSQG hazardous wastes may be sent to municipal
solid waste landfills under the Federal program but not under the
Massachusetts program.
2. Broader in Scope Provisions
There also are aspects of the Massachusetts program which are
broader in scope than the Federal program. The State requirements which
are broader in scope are not considered to be part of the Federally
enforceable RCRA program. However, they are fully enforceable under
State law and must be complied with by sources within Massachusetts.
These broader in scope requirements include the following:
[sbull] As further discussed in part II, below, Massachusetts
designates and regulates as hazardous many recyclable materials not
regulated as hazardous wastes under the Federal RCRA program, in
addition to regulating those hazardous recyclable materials that are
regulated as hazardous wastes in the Federal program.
[sbull] Massachusetts regulates both Centers and Events which
collect household hazardous wastes and VSQG hazardous wastes. In
contrast, household hazardous wastes are not regulated as hazardous
wastes under the Federal program even when collected at centers and
events. In addition, under the Federal regulations, VSQG hazardous
wastes may be sent to facilities authorized by the State to manage such
wastes, but there are no Federal regulations specifying the standards
to be followed at facilities which are centers and events.
3. Different but Equivalent Provisions
As noted in part I.C. above, there also are various Massachusetts
regulations which differ from but have been determined to be equivalent
to the Federal regulations. These State regulations which are different
from but equivalent to the Federal regulations are or will become part
of the Federally enforceable RCRA program when authorized by the EPA.
These different but equivalent requirements include the following:
[sbull] The Massachusetts regulations regarding satellite storage
allow more than one container in a satellite area (so long as there is
only one container per waste stream) whereas the Federal regulations
contemplate that there will be only one 55 gallon container in each
satellite area. Unlike the Federal regulations, however, the State
regulations impose requirements to ensure that multiple containers will
be stored safely, including aisle spacing requirements, requirements
for separation of containers with incompatible wastes and formal
inspection requirements.
[sbull] The Massachusetts satellite storage regulations require
containers to be moved from satellite areas to central storage areas
within three days of a container being filled (whereas this three-day
period begins to run under the Federal regulations only when more than
55 gallons has been accumulated in the satellite area), but the
Massachusetts regulations also provide that the time allowed for
storage in the central storage areas begins to run only when the
container is moved to the central storage area or no later than three
days after the container is filled. In contrast, under the Federal
regulations, the time allowed for storage in central storage areas
begins to run as soon as the container is required to be moved (i.e.,
at the beginning of the three-day period).
[sbull] The Massachusetts regulations specify that while hazardous
wastes placed into satellite storage must be counted when determining a
generator's rate of generation, they need not be counted when
determining the amount of hazardous waste stored on site (for purposes
of determining whether a generator is a LQG, SQG or VSQG). In contrast,
under the Federal regulations, wastes in satellite storage are counted
both when determining a generator's rate of generation and when
determining the amount of hazardous waste stored on site.
[sbull] The Massachusetts regulations contain the same exemption
from hazardous waste requirements for certain chromium wastes as is
found in the Federal regulations at 40 CFR 261.4(b)(6). However, under
the EPA regulation, a generator seeking to claim the exemption for
other than specifically listed waste streams must petition the EPA and
obtain a determination that its particular wastes are exempt. In
contrast, Massachusetts is proposing to allow a generator to make this
determination for itself provided that the generator documents
compliance with the criteria listed in the State (and Federal)
regulations. Of course, a generator is responsible for making the
correct determination, and the EPA encourages generators who
[[Page 60066]]
have any questions to seek guidance from the MADEP or EPA. Also, an
exemption determination made by a generator under the Massachusetts
regulations will apply only within Massachusetts. Petitions will need
to be filed with any other authorized State to which shipments are
made, or with the EPA if shipments are made to a non-authorized State.
[sbull] The Massachusetts regulations contain conditional
exemptions for bulk scrap metal items as well as smaller particle scrap
metal items being recycled, for whole used circuit boards as well as
shredded circuit boards being recycled and for certain mixtures of
water and unused gasoline being recycled. The Federal regulations
similarly exempt these materials, but under sometimes different
categories (e.g., whole used circuit boards under the scrap metal
category, certain mixtures of water and unused gasoline under the
commercial chemical products category).
[sbull] Massachusetts allows VSQGs to conduct certain kinds of
treatment on site without a permit. The exemption is limited to non-
thermal treatment (typically neutralization) of wastes generated on
site and is subject to a requirement that the treatment be conducted
safely. The Massachusetts program operates somewhat similarly to the
EPA interpretation allowing certain kinds of treatment in accumulation
tanks and containers without permits, by LQGs and SQGs. However,
Massachusetts allows treatment without permits only by VSQGs, whereas
the EPA interpretation instead allows it by LQGs and SQGs. Also, the
EPA interpretation allows treatment only within accumulation tanks and
containers, whereas the Massachusetts regulation allows treatment in
non-accumulation containers (e.g., laboratory containers) at the site
where the waste was generated, provided of course that this can be done
safely.
[sbull] The Massachusetts regulations require that secondary
containment systems for outdoor above-ground tanks must have a capacity
at least equal to 110% of the volume of the largest tank. This
requirement is designed to take the place of the Federal requirement
(in 40 CFR 265.193(e)) that such containment systems must have a
capacity at least equal to 100% of the volume of the largest tank plus
sufficient capacity to contain precipitation from a 25 year, 24 hour
storm. The Massachusetts regulations generally track the Federal
requirements regarding secondary containment requirements for
underground tanks. The Massachusetts regulations are being amended to
require secondary containment for indoor above-ground tanks with a
capacity at least equal to 100% of the volume of the largest tank (the
Federal standard).
[sbull] The Massachusetts regulations specify standards for when
tanks will be considered ``empty.'' The EPA regulations specify such
standards only for containers, while specifying that tanks must be
decontaminated before being disposed or reused. It should be noted that
the State's empty tank standard for non-acute wastes is more stringent
than the State (and Federal) empty container standard, i.e., it does
not allow waste residues to be left in tanks. The State standards will
operate similarly to the tank decontamination requirement in the
Federal regulations, but the State regulations clarify that generators
may be able to determine that tanks are ``empty'' based on knowledge of
the waste (e.g., knowledge that there has been appropriate thorough
cleaning of the tanks), without needing to do TCLP testing in every
case.
E. What Will Be the Effect of the Proposed Authorization Decision?
The effect of the proposed authorization decision will be that
entities in Massachusetts subject to RCRA will need to comply with the
authorized State requirements instead of the Federal requirements, with
respect to the matters covered by the authorized State requirements, in
order to comply with RCRA. However, until the authorized Massachusetts
program is brought fully up to date, there will continue to be a dual
state/Federal RCRA program in Massachusetts. RCRA was amended by the
Hazardous and Solid Waste Amendments (``HSWA'') in 1984. Section
3006(g) of RCRA, 42 U.S.C. 6906(g), provides that when the EPA
promulgates new regulatory requirements pursuant to HSWA, the EPA shall
directly carry out these requirements in states authorized to
administer the underlying hazardous waste program, until the states are
authorized to administer these new requirements. The EPA has
established various new regulatory requirements pursuant to HSWA which
have not yet been authorized to be administered by Massachusetts. There
also are various self-implementing requirements directly established by
the HSWA statutory amendments themselves. Regulated entities must
comply with these HSWA requirements as set out in the Federal
regulations and statute in addition to authorized State program
requirements. The HSWA requirements that will continue to be
administered by the EPA in Massachusetts include all of the Land
Disposal Restriction (``LDR'') requirements set out in 40 CFR part 268
(including requirements adopted prior to July 1, 1990), the Corrective
Action requirements referenced in 40 CFR 264.101, and the hazardous air
emission standards set out in 40 CFR parts 264 and 265, subparts AA, BB
and CC. A complete list of HSWA requirements is set out in 40 CFR
271.1, Tables 1 and 2.
With respect to TSDF permitting, Massachusetts will continue to
issue permits for all the provisions for which it is authorized and
will administer the permits it issues. The EPA will continue to
administer any RCRA hazardous waste permits or portions of permits it
has issued. The EPA also will continue to issue permits or portions of
permits covering HSWA requirements for which Massachusetts is not
authorized. In addition, the EPA will continue to implement the
provisions of 40 CFR 264.1(f)(2) within Massachusetts. That provision
specifies that TSDFs must comply with any standards promulgated by the
EPA (HSWA or non-HSWA) after a State is authorized, until the State
obtains authorization to issue permits covering such newly promulgated
standards. The major effect of this provision in Massachusetts is that
the EPA will remain responsible for issuing permits for Miscellaneous
Units, since the EPA promulgated the Miscellaneous Unit standards in 40
CFR part 264, subpart X after the initial authorization of the
Massachusetts base program, and since Massachusetts has not yet applied
for and is not now being authorized to carry out these requirements.
Massachusetts is not authorized to carry out its hazardous waste
program in Indian country within the State (land of the Wampanoag
tribe). The proposed action will have no effect on Indian country. The
EPA will continue to implement and administer the RCRA program in these
lands.
The EPA is proposing to authorize but not codify the enumerated
revisions to the Massachusetts program. Codification is the process of
placing the State's statutes and regulations that comprise the State's
authorized hazardous waste program into the Code of Federal
Regulations. The EPA does this by referencing the authorized State
rules in 40 CFR part 272. The EPA reserves the amendment of 40 CFR part
272, subpart W for the codification of the Massachusetts' program until
a later date.
[[Page 60067]]
II. Proposed State-Specific Modification to Federal Hazardous Waste
Regulations, Pursuant to ECOS Program Proposal, To Enable EPA To
Authorize Certain Portions of the Massachusetts Revisions; Proposed
Resulting Authorization of Massachusetts Recyclable Materials
Regulations
A. What Massachusetts Regulations Are Proposed To Be Authorized?
In 1986, the MADEP adopted regulations to comprehensively regulate
hazardous recyclable materials, under provisions separate from those
governing hazardous wastes planned to be disposed. These regulations
are found in 310 CMR 30.200. In the Federal RCRA program, some
hazardous recyclable materials are not considered to be hazardous
wastes and thus are exempt from hazardous waste regulation (e.g.,
sludges and byproducts exhibiting a characteristic of hazardous waste
and being reclaimed) whereas other hazardous recyclable materials are
considered to be hazardous wastes and are subject to regulation
including all of the usually applicable hazardous waste generator
regulations (e.g., spent materials, listed sludges and listed
byproducts being reclaimed). In contrast, the State regulations cover
virtually all hazardous recyclable materials under some level of
regulation. However, based on the perceived level of risk, different
recyclable materials are subject to different levels of regulation,
from the least regulated Class A to the most regulated Class C.
Initially, the State's Class A regulations applied only to
recyclable materials that are exempt from Federal regulation. Thus the
State was not required to seek Federal authorization for these
regulations. In 1995, however, the MADEP expanded the Class A category
to include many recyclable materials that are recycled at the site of
generation. Under the State regulations, these Class A recyclable
materials must be recycled in a recycling system that is completely
enclosed, but may be stored in tanks or containers prior to being
recycled, without the entire storage to recycling process being
completely enclosed. Thus the Class A regulations now apply to certain
federally regulated hazardous wastes that are recycled on site by
generators, namely those hazardous recyclable materials that are spent
materials, listed sludges and listed byproducts, that are accumulated
or stored on site before being recycled, and that are recycled through
a process that does not meet all of the conditions for Federal
exemption as a completely enclosed recycling process set out in 40 CFR
261.4(a)(8). In particular, the Class A regulations apply to Federally
regulated recyclable materials currently being stored by about 136
generators with stand alone solvent stills/distillation units and to
Federally regulated recyclable materials currently being stored by
about 40 generators with stand alone silver recovery units.
The EPA is proposing to authorize the State's Class A regulations
insofar as they apply to the storage of recyclable materials by
generators with stand alone solvent stills/distillation units,
generators with stand alone silver recovery units, and any other
generators who may store Federally regulated recyclable materials
subject to the Class A regulations in the future (i.e., generators
referenced by 310 CMR 30.212(10)). Once authorized, the Class A
regulations will become part of the federally approved and enforceable
State base program generator requirements.
It should be noted that the State is in the process of revising its
Class A regulations (as part of its current update), and it is the
proposed revised Class A regulations which the EPA is proposing to
authorize. The EPA expects to authorize the final State regulations,
once they are adopted, if they are the same as the proposed State
regulations. If the final State regulations are different from the
proposed State regulations, the EPA expects to authorize them (without
an additional round of public comment) if but only if the final
regulations continue to meet the RCRA statutory requirements and are a
logical outgrowth of the proposed regulations.
The proposed authorization does not cover the Class A regulations
insofar as they apply to the Federally exempt recyclable materials
referenced by 310 CMR 30.212(1) through (7), as the regulation of these
recyclable materials is beyond the scope of the Federal RCRA program.
The authorization also will not cover the Class A regulations insofar
as they apply to waste oil and specification used fuel oil as
referenced by 310 CMR 30.212(8)-(9), since the MADEP has not yet
applied to be authorized for the Federal RCRA Used Oil program
(established in 40 CFR part 279). Finally, the authorization will not
cover the State's Class B and Class C regulations, since the MADEP has
not yet applied to be authorized for these regulations (which generally
relate to off-site non-generator recycling).
B. Why Is the EPA Proposing To Make a Federal Regulation Change?
The EPA has reviewed the Massachusetts Class A regulations and
determined that they do not meet particular requirements for State
authorization set out in the current EPA regulations. However, the EPA
also has determined that the Massachusetts Class A regulations meet the
RCRA statutory test of protecting human health and the environment and
are at least as environmentally protective overall as the Federal
program. Thus the EPA is proposing to make a State-specific Federal
regulation change to allow authorization of the Massachusetts Class A
regulations.
1. Differences in the State Class A Regulations Which Preclude a
Standard Authorization
In comparison with the EPA regulations applicable to storage of
hazardous wastes by generators, the Class A regulations regarding
storage of hazardous recyclable materials by generators differ with
respect to various details. For example, under the Federal regulations,
storage of hazardous wastes without TSDF permits by LQGs and SQGs
generally is limited to 90 and 180 days, respectively. In contrast, the
Class A regulations allow recyclable materials to be stored pending
recycling so long as there is no ``speculative accumulation.'' This
typically allows storage times without TSDF permits of a year or
longer. The EPA regulations on State authorization specify that,
``[s]tate law must require [TSDF] permits for owners and operators of
all hazardous waste management facilities required to obtain permits
under 40 CFR part 270 * * * '' 40 CFR 271.13(a). By allowing generator
storage times without TSDF permits longer than the Federal regulations,
the Class A regulations do not comply with this current EPA requirement
for State authorization.
In addition, the Class A regulations impose requirements regarding
storage of recyclable materials by generators which are quite different
from the Federal regulations in 40 CFR part 262 regarding generator
storage. In place of the Federal categories of LQG, SQG and CESQG
(Massachusetts VSQG), the Class A regulations establish a dual status
system. Generators are classified as LQGs or SQGs or VSQGs with respect
to wastes to be shipped off-site based on the amount of such wastes to
be shipped off-site. Generators are separately classified and regulated
with respect to Class A recyclable materials based on the amounts of
such materials (and are placed in either a merged LQG/SQG category or a
VSQG category for that purpose). The resulting differences between the
State and Federal regulations are fully described in a EPA memorandum
dated July 8, 2002,
[[Page 60068]]
entitled ``Massachusetts RCRA Program Update: Issues Regarding
Regulation of Recyclable Materials Reclaimed by Generators on Site.''
The differences include that the State does not count Class A
recyclable materials in determining generator status (for wastes to be
shipped off-site), resulting in some sources which would be LQGs under
the Federal program instead being regulated in a lesser-regulated
generator category. In addition, for sources which remain LQGs
(notwithstanding the difference regarding counting), the usual LQG
requirements regarding contingency planning and training do not apply
to the parts of the generator's site handling the Class A hazardous
recyclable materials. Rather, with respect to these recyclable
materials, such generators are instead subject to the less formal and
detailed Class A requirements regarding emergency planning and
training.
The EPA is committed to reexamining the extent of flexibility that
should be employed when reviewing State RCRA programs. In connection
with another part of Massachusetts' ECOS program proposal, the EPA is
creating a Work Group of EPA and State personnel to examine
authorization issues. Without waiting for the results of this effort,
the EPA nevertheless has employed some flexibility consistent with its
current regulations in reviewing the Massachusetts RCRA program update,
as indicated by its proposed approval of some Massachusetts provisions
which differ from Federal provisions, discussed in part I.D. above.
However, the differences between the Massachusetts Class A regulations
and the EPA generator storage regulations are greater than those
discussed in part I.D., and a standard authorization of the Class A
regulations is precluded under the current EPA State authorization
regulations by, for example, the difference regarding when TSDF permits
are required. Thus the EPA is not proposing to approve the
Massachusetts Class A regulations as a standard authorization.
2. Justification for Making a Change To the Federal Regulations To
Allow the Authorization
The EPA is persuaded that it should make a State-specific
regulation change to its Federal regulations to enable the
authorization of the Class A regulations. The Massachusetts program
comprehensively regulates hazardous wastes that are recycled on site by
generators, and has operated successfully for many years. The State
regulations contain incentives that encourage recycling (e.g., lower
fees for generators which recycle). In its ECOS project application,
the MADEP reported that as of 1999, over 490,000 tons of wastes were
recycled under its program, as opposed to 90,000 tons of hazardous
wastes that were disposed. Basic requirements are in place in the
State's recycling program, including the requirement to do waste
determinations, the requirement to obtain hazardous waste i.d. numbers
(except for VSQGs) and safe handling requirements. While less stringent
with respect to certain details, the Massachusetts program is at least
as stringent as the Federal program overall. In particular, the
Massachusetts program regulates a broader universe of hazardous
recyclable materials than are regulated in the Federal program. Even if
the focus is limited to Federally regulated wastes, the Massachusetts
program is as stringent as the Federal program overall. It regulates
the recycling process itself as well as prior hazardous waste storage,
unlike the Federal program which regulates only the storage. Finally,
some of the State's more stringent storage requirements (described in
Part I.D. above) have been applied to the storage of Class A materials,
including additional labeling requirements and the prohibition of the
use of open tanks.
Thus the Massachusetts Class A regulations meet the RCRA statutory
test of protecting human health and the environment, and constitute an
acceptable alternative approach (to regulating hazardous recyclable
materials) to the approach currently set forth in the Federal
regulations. In addition, the EPA recently announced that it is
planning to propose a change to its regulations to revise the Federal
RCRA regulatory requirements with respect to recyclable materials that
remain in use in a continuous industrial process. 49 FR 11251 (March
13, 2002). This is a part of the EPA's response to the court's decision
in Association of Battery Recyclers v. EPA, 208 F.3d 1047 (D.C.Cir.
2000) (``ABR''), which set aside a portion of an EPA regulation
regarding mineral processing industry recyclable materials. If the EPA
ultimately adopts a regulation exempting recyclable materials used in a
continuous industrial process from Federal RCRA regulation, this
exemption is likely to cover at least most Class A recyclable
materials.
The EPA does not believe that in light of the ABR decision, it
should determine now that all Class A materials are not subject to
Federal regulation, and thus conclude that the Class A regulations
create no authorization issues. Such a result is not compelled by the
court's decision and would prejudge the EPA's anticipated general
rulemaking process. However, the fact that the EPA is planning to move
in the direction of reducing regulation regarding recyclable materials
is an additional reason counseling in favor of authorizing the State's
program regarding Class A recyclable materials under the authority of a
special EPA regulation. As mentioned above, the State's Class A program
has operated successfully for many years. Requiring the State to now
change that program to track EPA requirements does not make sense in
the particular circumstances, including the EPA's announced intention
to soon change the requirements.
The EPA is proposing to make the State-specific change to its
Federal regulations pursuant to a proposal for flexibility submitted by
the MADEP under the ECOS program. Under the Joint EPA/State Agreement
to Pursue Regulatory Innovation, the EPA agreed to entertain State
proposals for flexibility in an agreement entered into between the EPA
and the Environmental Council of States. See 63 FR 24784 (May 5, 1998).
As specified in that agreement, the EPA may accept State proposals to
follow alternative regulatory requirements when (as here) the
alternative requirements provide at least an equivalent overall level
of environmental protection as the standard EPA mandated requirements.
C. What Is the Proposed Regulation Change?
The proposed change to the Federal regulations which will enable
the EPA to grant the requested flexibility is set out at the end of
this document. The EPA proposes to amend 40 CFR 262.10 to add a
paragraph (k), which will specify that generators within Massachusetts
may comply with the Class A regulations, when authorized, with respect
to the recyclable materials and matters covered by the authorization,
instead of complying with certain standard EPA regulations. The EPA
proposes to have this new regulation take effect immediately upon its
final promulgation. The EPA Administrator has delegated one-time
authority to the Regional Administrator, EPA New England, to make this
regulation change.
D. What Will Be the Effect of the Proposed Federal Regulation Change?
The proposed change to the Federal regulations will enable the EPA
to authorize the Massachusetts regulations, since the Federal
regulations will specify that the State regulations contain acceptable
alternative standards
[[Page 60069]]
for Massachusetts. The State regulations will be equivalent to,
consistent with and no less stringent than these acceptable alternative
standards. Allowing the alternative standards is justified for the
reasons discussed in part II.B, above. In particular, the EPA has
determined that the alternative program is at least as stringent
overall as the standard EPA RCRA program. The EPA believes that it has
the authority to approve this alternative program under the RCRA
statute.
However, the change to the Federal regulations will not itself
result in any change to the legal requirements applicable to generators
in Massachusetts. Rather, generators will become subject to the
proposed revised Class A requirements under State law when they are
adopted in final form by the MADEP. These requirements will in turn
become part of the Federally enforceable RCRA program when they are
authorized by the EPA. For the sake of efficiency, the EPA is proposing
to both make the Federal regulation change and to authorize the State
regulations in the rulemaking proposed today. Thus in this particular
case, the EPA expects that the State requirements will become
authorized and federally enforceable at the same time as the Federal
regulation change.
Under section 3006 of RCRA, the EPA may authorize a qualified State
to administer and enforce a hazardous waste program within the State.
(See 40 CFR part 271 for the requirements for authorization). States
with final authorization administer their own hazardous waste programs
in lieu of the Federal program. Following authorization, the EPA
continues to have independent enforcement authority under RCRA sections
3007, 3008, 3013 and 7003.
After authorization, Federal rules written under RCRA provisions
which predate the Hazardous and Solid Waste Amendments of 1984 (HSWA)
no longer apply in the authorized state. Rather, the authorized State
regulations apply in lieu of such Federal requirements. In addition,
new Federal requirements imposed by such rules do not take effect in an
authorized state until the state adopts the requirements.
In contrast, under section 3006(g) of RCRA, new requirements and
prohibitions imposed by HSWA take effect in authorized states at the
same time that they take effect in non-authorized states. The EPA is
directed to carry out HSWA requirements and prohibitions in authorized
states until the state is granted authorization to do so.
This proposed rule, if finalized, would be promulgated pursuant to
non-HSWA authority. Thus as explained above, the alternative standards
contemplated by the rule will take effect in Massachusetts only when
adopted by Massachusetts and will become Federally enforceable only
when authorized by the EPA. Once they take effect, however, they will
apply in lieu of the EPA program with respect to the recyclable
materials and matters covered by the authorization. For example,
generators storing solvents for recycling in stand alone stills/
distillation units will be able to store such solvents without permits
for more than the 90 or 180 days set out in the Federal regulations, so
long as they do not engage in ``speculative accumulation.''
Of course, generators still will need to comply with any other
applicable RCRA requirements in addition to the Class A requirements.
For example, generators storing some wastes for recycling and other
wastes for disposal will need to comply with the authorized State
requirements regarding wastes being stored for disposal with respect to
those other wastes. In addition, generators will need to comply with
any applicable Federal requirements which are being directly
implemented by the EPA within Massachusetts pursuant to HSWA, i.e., all
HSWA requirements for which the State has not yet been authorized.
In particular, the State has not yet been authorized for and the
EPA is continuing to administer within Massachusetts the air emission
standards for tanks and containers set out in 40 CFR part 265, subpart
CC (``CC regulations''). These regulations are applicable to many large
quantity generators storing solvents, among others. Following
authorization of the Class A regulations, the EPA plans to administer
and enforce these CC regulations within Massachusetts as follows.
First, only generators which are classified as large quantity
generators under the State regulations will be considered subject to
the CC regulations. That is, the EPA will utilize the Massachusetts
counting rules when administering the CC rule within Massachusetts.
This will avoid generators needing to do two separate State and Federal
status calculations. Second, however, any generators which are
classified as large quantity generators under the State regulations
with respect to any part of their site will be subject to the CC
regulations throughout their sites. Large quantity generators storing
solvents will need to comply with all applicable requirements imposed
by the CC regulations, whether the solvents are being stored for
disposal or recycling. That is, the EPA will not utilize the
Massachusetts dual status concept when administering the CC rule within
Massachusetts. The EPA expects that any generator which is a LQG will
take the steps required under the CC rule to prevent hazardous air
emissions, just as such generators are subject to all applicable Clean
Air Act requirements whether they dispose of their wastes or recycle.
E. For How Long Will the Proposed Authorization Continue?
Unlike the proposed authorization of the Labs XL project
regulations discussed in Part III below, the proposed authorization of
the Massachusetts ECOS project regulations will continue indefinitely.
The EPA believes this is justified based on the long successful
operation of the Massachusetts Class A program, i.e., no further
assessment is necessary prior to the permanent authorization of this
RCRA program element. Of course, like any other authorized program
element, the Massachusetts Class A program will be subject to EPA
oversight and possible future revision. But absent future EPA action to
modify or rescind the action, the authorization will continue.
If the EPA issues future final regulations changing the status of
recyclable materials used in a continuous industrial process under
Federal RCRA regulation, portions of the Massachusetts Class A program
now proposed to be authorized could then become beyond the scope of
Federal regulation. If and when any revised national regulations take
effect, the EPA will then address, in connection with a later update of
the Massachusetts RCRA program, the effect of the national regulations
on the Massachusetts program.
III. Proposed Extension of Site-Specific Regulations for New England
Universities' Laboratories XL Project To Enable EPA To Authorize
Certain Portions of the Massachusetts Revisions; Proposed Authorization
of Massachusetts XL Project Regulations
A. What Is the New England Universities' Laboratories XL Project?
Project XL--``eXcellence and Leadership'' was announced in May 1995
as a part of the National Performance Review and the EPA's effort to
reinvent environmental protection. See 60 FR 27282 (May 23, 1995).
Project XL provides a limited number of private and public regulated
entities an opportunity to develop pilot projects to provide regulatory
flexibility
[[Page 60070]]
that will result in environmental protection that is superior to what
would be achieved through compliance with current standard regulations
and reasonably anticipated future regulations.
One of the projects that has been approved under Project XL is the
New England Universities' Laboratories project. A Project XL proposal
that the EPA exercise flexibility under RCRA was developed for the
University of Massachusetts--Boston, Boston, MA, Boston College,
Chestnut Hill, MA, and the University of Vermont, Burlington, VT (the
``participating universities''). A Final Project Agreement approving
the proposal was signed by the EPA, the participating universities, the
MADEP and the Vermont Department of Environmental Conservation, on
September 28, 1999. Pursuant to that agreement, the participating
universities have been allowed to comply with Environmental Management
Plans (EMPs) covering their laboratories in place of certain standard
requirements for hazardous waste generators, during a trial period. In
order to allow this experiment, the EPA adopted special regulations
during 1999 which are set forth in 40 CFR 262.10(j) and 40 CFR 262.100-
108. See 64 FR 52380 (September 28, 1999) (final rulemaking) and 64 FR
40696 (July 27, 1999) (proposed rulemaking). The reasons for approving
the special EPA regulations are fully set forth in those rulemaking
notices and will not be repeated here. Like the special regulation
discussed in part II above in connection with the proposed ECOS
project, the special EPA regulations were designed to enable the EPA to
authorize State regulations that are different from the standard EPA
regulations. Also like the ECOS project, the actual implementation of
the XL project requires the adoption, and Federal authorization, of
State regulations.
Following the adoption of EPA's special Project XL regulations,
both Massachusetts and Vermont adopted regulations setting alternative
standards for laboratories at the participating universities. The
Vermont regulations were authorized by the EPA and became part of the
Federally enforceable Vermont RCRA program on October 26, 2000. See 65
FR 64164. The Massachusetts regulations are in effect under State law
and now have been submitted to the EPA to be authorized as part of the
current update of the Massachusetts RCRA program.
B. Why Is the EPA Proposing To Extend the Expiration Date of Its XL
Project Regulations?
The New England Universities' Laboratories XL project was initially
planned to run for four years (September 1999 through September 2003).
Thus the EPA project regulations currently have an expiration date of
September 30, 2003. See 40 CFR 262.108.
The EPA conducted a mid-term evaluation of the project between
September 2001 and September 2002. As set out in the mid-term
evaluation report, the project has shown great success in some
important areas: developing EMPs, training staff, increasing awareness,
shifting attitudes and behaviors, improving the range of activities
that determine compliance and emergency preparedness, and demonstrating
that the environmental management system approach to managing
laboratory waste is gaining hold and making progress. See Project in
Excellence and Leadership: New England Universities' Laboratories Mid-
Term Evaluation: Piloting Superior Environmental Performance in Labs,
EPA 100-R-02-005 (September 2002), page 5. On the other hand, the
project has not to date shown the expected successes in other areas
such as chemical reuse and redistribution and pollution prevention. Id.
The implementation of the EMPs proved to be complex, and took somewhat
longer than anticipated, resulting in delays in aggressively focusing
on reuse, redistribution and pollution prevention. However, efforts to
encourage pollution prevention and ``Green Chemistry'' practices have
begun to be more widely endorsed by faculty, and the EPA hopes and
expects that they will bear fruit in the next several years.
Taking account of both the progress that has been made and the
remaining issues, the EPA (with the concurrence of the MADEP and VTDEC)
believes that the appropriate course of action is to extend the
project's expiration date by three years, i.e., to September 30, 2006.
This will allow for a further period of evaluation, including a further
test of whether the universities will succeed in their efforts to
implement significant chemical reuse and redistribution and pollution
prevention. In light of the success that has occurred in EMP
development and implementation, the EPA believes that the continuation
of this project should provide a superior level of environmental
performance in comparison to an immediate return to standard RCRA
regulation.
In addition, the EPA Office of Solid Waste currently is analyzing
issues regarding the management of hazardous waste in laboratories,
using a discussion group of EPA Headquarters and Regional personnel,
which is expected to be followed by stakeholder meetings. This process
may result in changes to the EPA requirements or the way the EPA
interprets its requirements regarding laboratories. The proposed three-
year extension of the New England Universities' Laboratories XL project
will allow the three participating universities to continue to follow
the alternative project requirements while the EPA considers whether to
make changes in national policy. This will avoid those universities
needing to terminate the project, prior to the EPA having a chance to
consider whether standard RCRA requirements applicable to university
laboratories should be changed. The continuation of the project also
should provide information that is useful to the EPA as it analyzes the
potential national impact of making changes regarding the management of
hazardous waste in laboratories.
C. What Is the Proposed Federal Regulation Change?
The proposed Federal regulation change will extend the expiration
date in 40 CFR 262.108 from September 30, 2003 to September 30, 2006.
The other special EPA regulations adopted to allow the implementation
of the New England Universities' Laboratories XL project will stay the
same. The proposed regulation change is set out at the end of this
document. The EPA proposes to have this regulation change take effect
immediately upon its promulgation. The EPA Administrator has delegated
one-time authority to the Regional Administrator, EPA New England, to
make this regulation change. Massachusetts and Vermont also are in the
process of changing their State regulations to extend the expiration
date of this XL project to September 30, 2006. The EPA and other
signatories also are proposing to amend the Final Project Agreement for
this XL project to extend the expiration date, with annual reporting
obligations also being extended and all other provisions of the
agreement remaining the same.
D. What Will Be the Effect of the Proposed Federal Regulation Change?
The proposed change to the Federal regulations will enable the EPA
to authorize the Massachusetts and Vermont regulations governing the
New England Universities' Laboratories XL project through September 30,
2006. In Vermont's case, the State regulations
[[Page 60071]]
already have been authorized through September 30, 2003, and the EPA
expects to extend this authorization through September 30, 2006 in a
separate rulemaking. In Massachusetts' case, the State regulations (310
CMR 30.354) have been submitted to the EPA to be authorized as part of
this current update of the Massachusetts RCRA program. The EPA proposes
to grant this authorization through September 30, 2006, following
public comment, as part of this rulemaking, once the currently proposed
updated Massachusetts RCRA regulations have been adopted in final form.
The different effects of authorization regarding HSWA and non-HSWA
rules was discussed above in part II.D. The proposed extension to the
Federal XL project regulation would be promulgated pursuant to non-HSWA
authority. Thus the extension will take effect in Massachusetts only
when adopted by Massachusetts and will become Federally enforceable
only when the State regulations containing the extension are authorized
by the EPA.
IV. Statutory and Executive Order Reviews
The EPA has examined the cumulative effects of the proposed State
authorization decisions discussed above, and the two proposals to make
changes to the Federal regulations, and reached the conclusions set out
below.
A. Executive Order 12866: Regulatory Planning and Review
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to Office of Management and Budget (OMB) review
and the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely effect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof;
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Because the annualized cost of these proposed actions will be
significantly less than $100 million and because these proposed actions
will not meet any of the other criteria specified in the Executive
Order, it has been determined that this proposed rule is not a
``significant regulatory action'' under the terms of the Executive
Order and is therefore not subject to OMB review.
B. Paperwork Reduction Act
Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., Federal
agencies must consider the paperwork burden imposed by any information
request contained in a proposed rule or final rule. These proposed
actions will authorize or enable the authorization of state
requirements for the purpose of RCRA 3006 and will impose no additional
requirements beyond those imposed by State law. Therefore, they will
require no information collection activities subject to the Paperwork
Reduction Act. In addition, no Federal reporting obligations have been
established under the ECOS project. Rather, the EPA will monitor this
project through its regular oversight of the Massachusetts RCRA
program. Finally, the New England Universities' Laboratories XL project
applies to only three universities, and any reporting obligations for
nine or fewer sources are not subject to the Paperwork Reduction Act.
Therefore no information collection request (ICR) will be submitted to
OMB for review under the Paperwork Reduction Act.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., generally
requires an agency to prepare a regulatory flexibility analysis of any
rule subject to notice and comment rulemaking under the Administrative
Procedure Act or other statute, unless the agency certifies that the
rule will not have a significant economic impact on a substantial
number of small entities. Small entities include small businesses,
small organizations, and small governmental jurisdictions.
These actions authorize or enable the authorization of state
requirements for the purpose of RCRA 3006 and impose no additional
requirements beyond those imposed by state law. In addition, the two
proposed Federal regulatory changes will increase regulatory
flexibility, which should have a positive economic effect on small
entities. In determining whether a rule has a significant economic
impact on a substantial number of small entities under the Regulatory
Flexibility Act, the impact of concern is any significant adverse
economic impact, since the primary purpose of any regulatory
flexibility analysis would be to identify and address regulatory
alternatives ``which minimize any significant economic impact of the
proposed rule on small entities.'' 5 U.S.C. 603 and 604. Thus, an
agency may certify that a rule will not have a significant economic
impact on a substantial number of small entities if the rule relieves
regulatory burden, or otherwise has a positive economic effect on all
of the small entities subject to the rule. Accordingly, the EPA hereby
certifies that this action will not have a significant economic impact
on a substantial number of small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.). Thus a regulatory flexibility
analysis is not required to be prepared under that Act.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, the
EPA generally must prepare a written statement, including a cost-
benefit analysis, for proposed and final rules with ``Federal
mandates'' that may result in expenditures to State, local, and tribal
governments, in the aggregate, or to the private sector, of $100
million or more in any one year. Before promulgating an EPA rule for
which a written statement is needed, section 205 of the UMRA generally
requires the EPA to identify and consider a reasonable number of
regulatory alternatives and adopt the least costly, most cost-effective
or least burdensome alternative that achieves the objectives of the
rule. The provisions of section 205 do not apply when they are
inconsistent with applicable law. Moreover, section 205 allows the EPA
to adopt an alternative other than the least costly, most cost-
effective or least burdensome alternative if the Administrator
publishes with the final rule an explanation why that alternative was
not adopted. In addition, before the EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments about the
regulatory requirements, enabling officials of affected small
governments to have meaningful and timely input in
[[Page 60072]]
the development of the EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
The EPA has determined that the section 202 and 205 requirements do
not apply to this proposed action because the proposed rule does not
contain a Federal mandate that may result in annual expenditures of
$100 million or more for State, local, and/or tribal governments in the
aggregate, or the private sector. Costs to State, local or tribal
governments and the private sector already exist under the State
program, and the proposed actions will not impose any additional
obligations on regulated entities. In fact, the EPA's approval of State
programs generally may reduce, not increase, compliance costs for the
private sector, by reducing the need for companies to comply with
Federal requirements in addition to State requirements. Further, as it
applies to the State, this action does not impose a Federal
intergovernmental mandate because UMRA does not cover duties arising
from voluntary participation in a Federal program, such as
Massachusett's voluntary decision to operate the RCRA program.
Because this action will authorize pre-existing requirements under
state law and will not impose any additional enforceable duties beyond
those required by state law, it also will not uniquely affect small
governments, as described in section 203 of UMRA. Thus the requirements
of section 203 that the EPA develop a small government agency plan will
not apply to this rule.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires the EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have Federalism implications.''
``Policies that have Federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.''
The proposed actions will not have Federalism implications, as
defined in the Executive Order, because they merely authorize (or
enable the authorization of) state requirements as part of the State
RCRA hazardous waste program, without altering the relationship or the
distribution of power and responsibilities established by RCRA.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000),
requires the EPA to develop an accountable process to ensure
``meaningful and timely input by tribal officials in the development of
regulatory policies that have tribal implications.'' ``Policies that
have tribal implications'' is defined in the Executive Order to include
regulations that have ``substantial direct effects on one or more
Indian tribes, on the relationship between the Federal government and
the Indian tribes, or on the distribution of power and responsibilities
between the Federal government and the Indian tribes.''
The proposed actions will not have tribal implications, as defined
by the Executive Order, because they will have no direct effect on
Indian lands. As noted in part I.E. above, Massachusetts is not
authorized to administer the RCRA program in Indian country. Rather,
the EPA directly administers the Federal RCRA program in Indian country
within Massachusetts.
G. Executive Order 13045: Protection of Children From Environmental
Health and Safety Risks
Executive Order 13045, ``Protection of Children from Environmental
Health Risks and Safety Risks,'' applies to any rule that: (1) Is
determined to be ``economically significant'' as defined under
Executive Order 12866, and (2) concerns an environmental health or
safety risk that the EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it is not
an economically significant rule as defined by Executive Order 12866.
In addition, it does not concern environmental health or safety risks
that the EPA has reason to believe may have a disproportionate effect
on children.
As discussed in parts II and III above, the EPA has determined that
the regulatory flexibility to be allowed by the two proposed Federal
regulatory changes will not create health and safety risks. In any
event, the particular RCRA program elements affected do not pose any
disproportionate risks to children. As discussed in part I above, the
standard authorization portion of this rule simply authorizes
Massachusetts regulations which are equivalent to previously
established Federal RCRA requirements. Authorizing State regulations
which equivalently protect the environment, in place of Federal
regulations, does not create any disproportionate risks to children.
H. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use
This proposed rule is not subject to Executive Order 13211 because
that Executive Order applies only to rules that are ``significant''
under Executive Order 12866, and this rule is not a significant
regulatory action under Executive Order 12866.
I. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C.
272 note) directs the EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs the
EPA to provide Congress, through OMB, explanations when the Agency
decides not to use available and applicable voluntary consensus
standards.
This proposed rule does not involve technical standards covered by
voluntary consensus standards. In addition, under RCRA section 3006(b),
the EPA grants a State's application for authorization as long as the
State meets the criteria required under RCRA. It would thus be
inconsistent with applicable law for the EPA, when it reviews a State
authorization application, to require the use of any particular
voluntary consensus standard in place of another standard that
satisfies the requirements of RCRA. Therefore, the EPA did not consider
the use of any voluntary consensus standards in developing this rule.
[[Page 60073]]
List of Subjects
40 CFR Part 262
Environmental protection, Hazardous waste, Reporting and
recordkeeping requirements.
40 CFR Part 271
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous materials transportation,
Hazardous waste, Indians-lands, Intergovernmental relations, Penalties,
Reporting and recordkeeping requirements.
Authority: The proposed Federal regulation changes will be made
under the authority of the Resource Conservation and Recovery Act
(RCRA) sections 2002 and 3002, 42 U.S.C. 6912 and 6922. The proposed
authorizations of the Massachusetts revisions will be made under the
authority of RCRA sections 2002 and 3006, 42 U.S.C. 6912 and 6926.
Dated: October 7, 2003.
Ira W. Leighton,
Acting Regional Administrator, EPA New England.
For the reasons set forth in the preamble, chapter I of title 40 of
the Code of Federal Regulations is proposed to be amended as follows:
PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE
1. The authority citation for part 262 continues to read as
follows:
Authority: 42 U.S.C. 6906, 6912, 6922-6925, 6937, and 6938.
Subpart A--General
2. Section 262.10 is amended by adding paragraph (k) to read as
follows:
Sec. 262.10 Purpose, scope and applicability.
* * * * *
(k) Generators in the Commonwealth of Massachusetts may comply with
the State regulations regarding Class A recyclable materials in 310
C.M.R. 30.200, when authorized by the EPA under 40 CFR part 271, with
respect to those recyclable materials and matters covered by the
authorization, instead of complying with the hazardous waste
accumulation requirements of Sec. 262.34, the reporting requirements
of Sec. 262.41, the storage facility operator requirements of 40 CFR
parts 264 and 265 and the permitting requirements of 40 CFR part 270.
Such generators must also comply with any other applicable
requirements, including any applicable authorized State regulations
governing hazardous wastes not being recycled and any applicable
Federal requirements which are being directly implemented by the EPA
within Massachusetts pursuant to the Hazardous and Solid Waste
Amendments of 1984.
Subpart J--University Laboratories XL Project--Laboratory
Environmental Management Standard
3. Section 262.108 is revised to read as follows:
Sec. 262.108 When will this subpart expire?
This subpart will expire on September 30, 2006.
PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE
PROGRAMS
EPA proposes to grant Final authorization under part 271 to the
Commonwealth of Massachusetts for revisions to its hazardous waste
program under the Resource Conservation and Recovery Act.
[FR Doc. 03-26321 Filed 10-20-03; 8:45 am]
BILLING CODE 6560-50-P