2019-12180. Ohio: Proposed Authorization of State Hazardous Waste Management Program Revisions

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

Ohio has applied to the Environmental Protection Agency (EPA) for final authorization of changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA), as amended. EPA has reviewed Ohio's application and has determined that these changes satisfy all requirements needed to qualify for final authorization. Therefore, we are proposing to authorize the State's changes. EPA seeks public comment prior to taking final action.

DATES:

Comments must be received on or before July 11, 2019.

ADDRESSES:

Submit your comments by one of the following methods:

• Federal eRulemaking Portal: https://www.regulations.gov. Follow the on-line instructions for submitting comments.
• Email: [e-mail].
• Fax: (prior to faxing, please notify the EPA contact listed below).
• Mail: Jean Gromnicki, Ohio Regulatory Specialist, LR-17J, U.S. EPA, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604.
• Hand Delivery or Courier: Deliver your comments to Jean Gromnicki, LR-17J, U.S. EPA, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604. Such deliveries are only accepted during the Regional Office's normal hours of operation.

Instructions: EPA must receive your comments by July 11, 2019. Direct your comments to Docket ID Number EPA-R05-RCRA-2018-0375. 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 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 email. The federal www.regulations.gov website 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 email comment directly to EPA without going through www.regulations.gov,, your email 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 www.epa.gov/​epahome/​dockets.htm).

Docket: All documents in the docket are listed in the www.regulations.gov,, index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in www.regulations.gov,, or in hard copy.

You can view and copy Ohio's application and associated publicly available materials from 9:00 a.m. to 4:00 p.m. at the following locations: U.S. EPA Region 5, LR-17J, 77 West Jackson Boulevard, Chicago, Illinois, contact: Jean Gromnicki [phone]; or Ohio Environmental Protection Agency, Lazarus Government Center, 50 West Town Street, Suite 700, Columbus, Ohio, contact: Katherine (Kit) Arthur [phone].

Submit your comments, identified by Docket ID No. EPA-R05-RCRA-2018-0375 at https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from www.regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/​dockets/​commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT:

Jean Gromnicki, Ohio Regulatory Specialist, U.S. EPA Region 5, LR-17J, 77 West Jackson Boulevard, Chicago, Illinois 60604, [phone], email: [e-mail].

SUPPLEMENTARY INFORMATION:

A. Why are revisions to State programs necessary?

States that have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, 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 268, 270, 273, and 279.

New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates pursuant to the Hazardous and Solid Waste Amendments of 1984 (HSWA) take effect in authorized states at the same time that they take effect in unauthorized states. Thus, EPA will implement those requirements and prohibitions in Ohio, including the issuance of new permits implementing those requirements, until the State is granted authorization to do so.

B. What decisions has EPA made in this rule?

On February 19, 2019, Ohio submitted a complete program revision application seeking authorization of changes to its hazardous waste program that correspond to certain Federal rules promulgated between July 1, 1987 and June 30, 2015 (including RCRA Clusters II and XXI through XXIV). EPA concludes that Ohio's application to revise its authorized program meets all of the statutory and regulatory requirements established under RCRA, as set forth in RCRA section 3006(b), 42 U.S.C. 6926(b), and 40 CFR part 271. Therefore, EPA proposes to grant Ohio final authorization to operate its hazardous waste program with the changes described in the authorization application, and as outlined below in Section F of this document.

Ohio has responsibility for permitting treatment, storage, and disposal facilities within its borders (except in Indian country) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of HSWA, as discussed above.

C. What is the effect of this proposed authorization decision?

If Ohio is authorized for the changes described in Ohio's authorization application, these changes will become part of the authorized State hazardous waste program, and will therefore be federally enforceable. Ohio will continue to have primary enforcement authority and responsibility for its State hazardous waste program. EPA would maintain its authorities under RCRA sections 3007, 3008, 3013, and 7003, including its authority to:

• Conduct inspections, and require monitoring, tests, analyses and reports;
• Enforce RCRA requirements, including authorized State program requirements, and suspend or revoke permits; and
• Take enforcement actions regardless of whether the State has taken its own actions.

This action will not impose additional requirements on the regulated community because the regulations which EPA is proposing to authorize Ohio are already effective under state law, and are not changed by today's proposed action.

D. What happens if EPA receives comments that oppose this action?

If EPA receives comments on this proposed action, we will address all such comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this authorization, you should do so at this time.

E. What has Ohio previously been authorized for?

Ohio initially received final authorization on June 28, 1989, effective June 30, 1989 (54 FR 27170, June 28, 1989) to implement the RCRA hazardous waste management program. Subsequently the EPA granted authorization for changes to the Ohio program effective June 7, 1991 (56 FR 14203, April 8, 1991) as corrected June 19, 1991, effective August 19, 1991 (56 FR 28088); effective September 25, 1995 (60 FR 38502. July 27, 1995); effective December 23, 1996 (61 FR 54950, October 23, 1996); effective January 24, 2003 (68 FR 3429, January 24, 2003); effective January 20, 2006 (71 FR 3220, January 20, 2006); effective October 29, 2007 (72 FR 61063, October 29, 2007); effective March 19, 2012 (77 FR 25966, March 19, 2012), and effective February 12, 2018 (83 FR 5948, February 12, 2018).

F. What changes are we proposing with today's action?

On February 19, 2019, Ohio submitted a final complete program revision application, seeking authorization of changes to its hazardous waste management program in accordance with 40 CFR 271.21. EPA proposes to determine, subject to receipt of written comments that oppose this action, that Ohio's hazardous waste program revisions are equivalent to, consistent with, and no less stringent than the federal program, and therefore satisfy all of the requirements necessary to qualify for final authorization. Therefore, EPA is proposing to authorize Ohio for the following program changes:

Table 1—Ohio's Analogs to the Federal Requirements

Description of Federal Requirement	Federal Register date and page	Analogous state authority
Permit as a Shield Provision Checklist 44 E	December 1, 1987, 52 FR 45788	OAC 3745-50-49; effective February 12, 2018.
Withdrawal of Expansion of Comparable Fuel Exclusion Checklist 224	June 15, 2010, 75 FR 33712	OAC 3745-51-04, 3745-51-38 rescind; effective October 31, 2015.
Removal of Saccharin and its Salts from the Lists of Hazardous Waste Constituents and Hazardous Wastes Checklist 225	December 17, 2010, 75 FR 78918	OAC 3745-51-11, 3745-51-33, 3745-270-40; effective October 31, 2015.
Technical Corrections; Academic Laboratories Generator Standards Checklist 226	December 20, 2010, 75 FR 79304	OAC 3745-52-200, 3745-52-206, 3745-52-212, 3745-52-214; effective October 31, 2015.
Revision of the Land Disposal Treatment Standards for Carbamate Wastes Checklist 227	June 13, 2011, 76 FR 34147	OAC 3745-270-40, 3745-270-48; effective October 31, 2015.
Hazardous Waste Technical Corrections and Clarifications Rule Checklist 228	April 13, 2012, 77 FR 22229	OAC 3745-51-32, 3745-266-20; effective March 24, 2017.
Conditional Exclusion for Solvent-Contaminated Wipes Checklist 229	July 31, 2013, 78 FR 46448	OAC 3745-50-10, 3745-51-04; effective October 31, 2015.
Conditional Exclusion for Carbon Dioxide Streams in Geologic Sequestration Activities Checklist 230	January 3, 2014, 79 FR 350	OAC 3745-50-10, 3745-51-04; effective October 31, 2015.
Revision to the Export Provisions of the Cathode Ray Tube Rule Checklist 232	June 26, 2014, 79 FR 36220	OAC 3745-50-10*, 3745-51-39, 3745-51-41 rescinded, 3745-51-41 new; effective February 12, 2018.
Response to Vacatures of Comparable Fuels Rule and the Gasification Rule Checklist 234	April 8, 2015, 80 FR 18777	OAC 3745-50-10, 3745-51-04, 3745-51-38 rescinded; effective October 31, 2015.

Table 2—Equivalent State Initiated Changes

Liners and leak detection systems for HW land disposal units [permit shield portion only] (on checklist 100)	FR January 29, 1992, 57 FR 3462	OAC 3745-50-49; effective February 12, 2018.
Organic air emission standards for tanks, surface impoundments, & containers [permit shield portion only] (on checklist 154.1)	FR December 6, 1994, 59 FR 62896	OAC 3745-50-49; effective February 12, 2018.
Reorganization and name change for the Office of Solid Waste	FR June 25, 2009, 74 FR 30228	OAC 3745-266-103; effective March 24, 2017.
Hazardous waste technical corrections and clarifications rule [permit shield portion only] (on checklist 223)	FR March 18, 2010, 75 FR 12989	OAC 3745-50-49; effective February 12, 2018.
Guidelines establishing test procedures for the analysis of pollutants under the Clean Water Act; Analysis and sampling procedures	FR May 18, 2012, 77 FR 29758	OAC 3745-50-11; effective October 31, 2015.
Identification and listing; correction to 40 CFR 261.3	FR June 20, 2014, 79 FR 35290	OAC 3745-51-03; effective March 24, 2017.
Ohio Senate Bill 294 (129th General Assembly, Senator Schaffer)	Correcting “annual” to “biennial” for some reporting requirements rules where the correction was not made previously	OAC 3745-50-11, 3745-51-04, 3745-51-06; effective October 31, 2015.
Housekeeping	Ohio's 72-hour recyclers rule	OAC 3745-51-06; effective October 31, 2015.
Housekeeping	Update or remove Ohio EPA division names, address, and telephone numbers after agency reorganization	OAC 3745-52-34, 3745-53-30, 3745-54-52, 3745-54-56, 3745-65-56, 3745-279-42, 3745-279-43, 3745-279-51, 3745-279-52, 3745-279-62, 3745-279-73; effective October 31, 2015.
Housekeeping	Miscellaneous corrections (typos, spelling, minor stylistic changes, etc.)	OAC 3745-50-50, 3745-51-33, 3745-51-35, 3745-52-30, 3745-52-201, 3745-52-214, 3745-53-22, 3745-53-31, 3745-54-37, 3745-54-52, 3745-56-27, 3745-56-59, 3745-56-83, 3745-57-17, 3745-57-90, 3745-65-37, 3745-65-52, 3745-69-40, 3745-266-108, 3745-266-109, 3745-270-38, 3745-270-40, 3745-273-05, 3745-273-09, 3745-273-39, 3745-273-62; effective October 31, 2015.
Five-year review rules (2015)	Ohio Rules Reviewed per 5-year review requirements in Ohio Revised Code section 106	OAC 3745-50-10, 3745-50-11, 3745-50-20, 3745-50-21, 3745-50-23, 3745-50-30 rescinded, 3745-50-30 new, 3745-50-40, 3745-50-42, 3745-50-44, 3745-50-45, 3745-50-51, 3745-50-52, 3745-50-57, 3745-50-62, 3745-50-66, 3745-50-235, 3745-51-04, 3745-51-05, 3745-51-06, 3745-51-08, 3745-51-10, 3745-51-11, 3745-51-20, 3745-51-21, 3745-51-22, 3745-51-24, 3745-52-21, 3745-52-34, 3745-52-200, 3745-52-206, 3745-52-212, 3745-53-30, 3745-54-01, 3745-54-13, 3745-54-15, 3745-54-18, 3745-54-53, 3745-54-54, 3745-54-56, 3745-54-70, 3745-54-73, 3745-54-76, 3745-55-18, 3745-55-43, 3745-55-96, 3745-65-01, 3745-65-13, 3745-65-15, 3745-65-53, 3745-65-56, 3745-65-70, 3745-65-73, 3745-65-76, 3745-66-41, 3745-66-93, 3745-66-95, 3745-66-96, 3745-256-100, 3745-256-101, 3745-266-23, 3745-266-100, 3745-266-102, 3745-266-104, 3745-266-105, 3745-266-106, 3745-266-107, 3745-266-111, 3745-266-201, 3745-266-202, 3745-266-203, 3745-266-205, 3745-266-210, 3745-266-260, 3745-270-48, 3745-279-42, 3745-279-43, 3745-279-51, 3745-279-52, 3745-279-62, 3745-279-73; effective October 31, 2015.
Housekeeping	Miscellaneous corrections (typos, spelling, minor stylistic changes, etc.)	OAC 3745-266-20, 3745-270-07; effective March 24, 2017.
Five-year review rules (2017)	Ohio Rules Reviewed per 5-year review requirements in Ohio Revised Code section 106	OAC 3745-50-01, 3745-50-19, 3745-50-39, 3745-50-41, 3745-50-43, 3745-50-53, 3745-50-54, 3745-50-56, 3745-51-03, 3745-51-31, 3745-51-32, 3745-52-11, 3745-52-12, 3745-52-203, 3745-52-204, 3745-52-209, 3745-52-210, 3745-52-211, 3745-52-215, 3745-55-42, 3745-55-44, 3745-55-45, 3745-55-47, 3745-55-95, 3745-55-98, 3745-57-74, 3745-65-90, 3745-65-92, 3745-65-93, 3745-66-12, 3745-66-42, 3745-66-43, 3745-66-44, 3745-66-45, 3745-66-47, 3745-66-98, 3745-66-101, 3745-67-24, 3745-67-59, 3745-68-03, 3745-69-30, 3745-205-100, 3745-205-101, 3745-266-103, 3745-270-09, 3745-270-42, 3745-279-01, 3745-279-81; effective March 24, 2017.
Housekeeping	Miscellaneous corrections (typos, spelling, minor stylistic changes, etc.)	OAC 3745-51-41 rescinded, 3745-51-41 new, 3745-52-23, 3745-54-76, 3745-54-93, 3745-56-71, 3745-56-72, 3745-56-76, 3745-65-76, 3745-66-77, 3745-67-30, 3745-67-57, 3745-67-82, 3745-68-13, 3745-266-101; effective February 12, 2018.
Five-year review rules (2018)	Ohio Rules Reviewed per 5-year review requirements in Ohio Revised Code section 106	OAC 3745-50-10,* 3745-50-28, 3745-50-46, 3745-50-49, 3745-50-58, 3745-51-01, 3745-51-02, 3745-51-07, 3745-51-23, 3745-51-39, 3745-51-40, 3745-51-41 new, 3745-52-10, 3745-52-12, 3745-52-41, 3745-52-50, 3745-52-60, 3745-52-205, 3745-53-10, 3745-53-11 rescinded, 3745-53-11 new, 3745-53-20 rescinded, 3745-53-20 new, 3745-54-12, 3745-54-16, 3745-54-71, 3745-54-77, 3745-54-93, 3745-54-94, 3745-54-99, 3745-55-74, 3745-57-91, 3745-65-12, 3745-65-16, 3745-65-33, 3745-65-71, 3745-65-77, 3745-65-94, 3745-66-74, 3745-266-70, 3745-266-80, 3745-266-101, 3745-266-200, 3745-270-05, 3745-270-06, 3745-270-44, 3745-273-08, 3745-273-20, 3745-273-40, 3745-273-56, 3745-273-70; effective February 12, 2018.
* Although rule 3745-50-10 of the Ohio Administrative Code, as effective February 12, 2018, is included in Ohio's request for authorization in ARA 10, Ohio is not seeking authorization for the following provisions that went into the rule on that date regarding Ohio-specific universal wastes (these provisions are not in the federal counterpart 40 CFR 260.10 and are Broader in Scope): 3745-50-10 “Paint-related waste” definition; 3745-50-10 “Small quantity handler of universal waste” definition; 3745-50-10 in “Universal waste” definition, paragraphs (e) through (e)(iii); 3745-50-10 in “Universal waste handler” definition; 3745-50-10 “Universal waste satellite accumulation area” definition.

G. Where are the revised State rules different from the Federal rules?

Ohio has excluded the non-delegable federal requirements at 40 CFR 268.5, 268.6, 268.42(b), 268.44, and 270.3. EPA will continue to implement those requirements. Only recently receiving the statutory authority, Ohio has not adopted the rules for Subparts AA, BB and CC of 40 CFR part 264. Until Ohio is authorized for such rules, the federal rules at 40 CFR part 264 subpart AA, BB and CC and Part 265 subpart AA, BB and CC, which are promulgated under HSWA, still apply in Ohio.

Broader in Scope Rules

Ohio has added three new types of Universal Waste (UW) to their existing UW Rule. They are Paint and Paint-Related Waste, Antifreeze and Non-Empty Aerosol Containers that are not already regulated as hazardous waste. Since Ohio is adding universal wastes EPA does not regulate under RCRA subtitle C, these additions are considered broader in scope and, as noted above, Ohio is not seeking authorization for them.

H. Who handles permits after the final authorization takes effect?

When the Final Authorization takes effect, Ohio will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits which EPA issues prior to the effective date of the proposed authorization until they expire or are terminated. EPA will not issue any new permits or new portions of permits for the provisions listed in the Table above after the effective date of the authorization. EPA will continue to implement and issue permits for HSWA requirements for which Ohio is not yet authorized. EPA has the authority to enforce state-issued permits after the State is authorized.

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

Ohio is not authorized to carry out its hazardous waste program in Indian country within the State, which includes:

• All lands within the exterior boundaries of Indian reservations within or abutting the State of Ohio;
• Any land held in trust by the U.S. for an Indian tribe; and
• Any other land, whether on or off an Indian reservation, that qualifies as Indian country.

Therefore, this action has no effect on Indian country. EPA retains jurisdiction over Indian country and will continue to implement and administer the RCRA program on these lands.

J. What is codification and will EPA codify Ohio's hazardous waste program as proposed in this rule?

Codification is the process of placing citations and references to the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. EPA does this by adding those citations and references to the authorized State rules in 40 CFR part 272. EPA is not proposing to codify the authorization of Ohio's changes at this time. However, EPA reserves the ability to amend 40 CFR part 272, subpart KK for the authorization of Ohio's program changes at a later date.

K. Statutory and Executive Order Reviews

The Office of Management and Budget (OMB) has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). This action proposes to authorize State requirements for the purpose of RCRA section 3006 and imposes no additional requirements beyond those imposed by State law. Therefore, this action is not subject to review by OMB. This action is not an Executive Order 13771 (82 FR 9339, February 3, 2017) regulatory action because actions such as today's proposed authorization of Ohio's revised hazardous waste program under RCRA are exempted under Executive Order 12866. 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 proposes to authorize 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 (2 U.S.C. 1531-1538). 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 proposes to authorize 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, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This action 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 section 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 proposing 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 this action 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 action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). “Burden” is defined at 5 CFR 1320.3(b). Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. Because this action proposes authorization of pre-existing State rules which are at least equivalent to, and no less stringent than existing federal requirements, and imposes no additional requirements beyond those imposed by State law, and there are no anticipated significant adverse human health or environmental effects, this proposed rule is not subject to Executive Order 12898.

List of Subjects in 40 CFR Part 271

• Environmental protection
• Administrative practice and procedure
• Confidential business information
• Hazardous waste
• Hazardous waste transportation
• Indian 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, and 6974(b).

Dated: May 21, 2019.

Cheryl L. Newton,

Acting Regional Administrator, Region 5.