2010-20469. Massachusetts: Final Authorization of State Hazardous Waste Management Program Revisions

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Commonwealth of Massachusetts applied to EPA for final authorization of certain changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA determined that these changes satisfy all requirements needed to qualify for final authorization and recently authorized the State's changes through an immediate final action. In the immediate final action, EPA also stated that “Massachusetts is not authorized to carry out its hazardous waste program in Indian country.” An adverse comment was filed regarding this determination (but not otherwise challenging the authorization decision). Therefore, EPA is today responding to this comment and making a final decision that the updated authorization does not apply to Indian country. In addition, EPA is correcting an error in the immediate final action rule.

DATES:

The authorization of Massachusetts' program revisions shall continue to take effect on August 23, 2010 as provided in the immediate final rule. Today's decision that the updated authorization does not apply to Indian country also will be final, effective August 23, 2010.

ADDRESSES:

Docket: EPA has established a docket for this action under Docket ID No. EPA-R01-RCRA-2010-0468. All documents in the docket are listed on the http://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 http://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: [phone]; and (ii) EPA Region I Library, 5 Post Office Square, 1st Floor, Boston, MA 02109-3912, by appointment only, [phone].

FOR FURTHER INFORMATION CONTACT:

Robin Biscaia, RCRA Waste Management Section, Office of Site Remediation and Restoration (OSRR 07-1), EPA New England—Region 1, 5 Post Office Square, Suite 100, Boston, MA 02109-3912; telephone number: [phone]; fax number: [phone], e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION:

The Massachusetts program revisions authorized by EPA through the recent immediate final action are identified in the immediate final rule, 75 FR 35660 (June 23, 2010). Since no adverse comments were received regarding EPA's decision to authorize these revisions, the decision to authorize the revisions is not being withdrawn and will continue to take effect on August 23, 2010 as provided in the immediate final rule.

However, in the immediate final rule, EPA also stated that “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.” Id. at 35665. An adverse comment was received regarding this determination, worded as follows: “Through federalism, Massachusetts as one of the 50 sovereign united States, should have the authority to protect its residents from hazardous waste contaminating our water and air within our boundaries. Whenever the Massachusetts regulations exceed the Federal regulations or are broader, the EPA through comity should be enforcing the higher Massachusetts standards within Indian country.” Since an adverse comment was received on this issue, the determination regarding whether the authorization applies within Indian country will not take effect as a final decision based on the immediate final rule. Rather, EPA instead has considered the comment and is making its final determination regarding the effect of the authorization decision on Indian country in today's final rule.

Massachusetts has not applied for authority to operate its RCRA program within Indian country. In the absence of any request from the State, the EPA has no occasion for considering whether it would grant Massachusetts such authority. Thus, in the absence of any request from the State, the EPA cannot agree with the commenter that Massachusetts should be granted the authority to operate its program in Indian country. Rather, the EPA administered RCRA program will continue to apply in those lands.

The EPA also cannot agree with the commenter that it should be enforcing the Massachusetts requirements rather than the Federal RCRA requirements, within Indian country. As a legal matter, for areas where the EPA directly administers the RCRA program, the EPA must enforce its own requirements rather than a State's requirements.

Thus, the EPA is today making the final determination that 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. This determination affects only the land in the town of Gay Head (Aquinnah), Massachusetts, taken into trust by the Department of the Interior for the Wampanoag Tribal Council of Gay Head, Inc., as authorized by the Wampanoag Tribal Council of Gay Head, Inc., Indian Claims Settlement Act of 1987. See 25 U.S.C. 1771-1771i.

In addition, EPA is today correcting an error in the immediate final action rule. At page 35664 of that rule, the EPA authorized the State to regulate waste codes P188, Physostigmine Salicylate, and P204, Physostigmine, under Checklist 140. However, on page 35663 of that rule, the EPA erroneously stated that the State was not being authorized for those two waste codes. This incorrect statement should be disregarded. The authorization of the State to regulate those two waste codes will take effect on August 23, 2010, along with the rest of the immediate final rule.

The ways in which the EPA has complied with various administrative requirements regarding the authorization action is set out in part L. of the immediate final rule. No further steps are required in order to make today's final determination.

List of Subjects in 40 CFR Part 271

• Environmental protection
• Hazardous waste
• Indian lands

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: August 9, 2010.

Ira W. Leighton,

Acting Regional Administrator, EPA New England.