05-12454. Vermont: Final Authorization of State Hazardous Waste Management Program Revision

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Immediate final rule.

SUMMARY:

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

DATES:

This Final authorization will become effective on August 22, 2005, unless EPA receives adverse written comment by July 25, 2005. If EPA receives such comment, it will publish a timely withdrawal of this immediate final rule in the Federal Register and inform the public that this authorization will not take effect.

ADDRESSES:

Submit your comments by one of the following methods:

1. Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.

2. E-mail: [e-mail].

3. Mail: Sharon Leitch, Hazardous Waste Unit, EPA Region 1, One Congress Street, Suite 1100 (CHW), Boston, MA 02114-2023.

4. Hand Delivery or Courier: Deliver your comments to Sharon Leitch, Hazardous Waste Unit, EPA Region 1, One Congress Street, Suite 1100 (CHW), Boston, MA 02114-2023.

Instructions: We must receive your comments by July 25, 2005. Do not submit information that you consider to be CBI or otherwise protected through regulations.gov, or e-mail. The Federal 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 e-mail comment directly to EPA without going through regulations.gov, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

You can view and copy the State of Vermont's revision application and the materials which the EPA used in evaluating the revision at the following two locations: (i) EPA Region 1 Library, One Congress Street-11th Floor, Boston, MA 02114-2023; business hours Monday through Thursday 10 a.m.-3 p.m., tel: [phone]; and (ii) the Agency of Natural Resources, 103 South Main Street-West Office Building, Waterbury, Vermont 05671-0404; tel. [phone]; Business Hours: 7:45 a.m. to 4:30 p.m. Monday through Friday. These documents are available for inspection during these business hours.

FOR FURTHER INFORMATION CONTACT:

Sharon Leitch, Hazardous Waste Unit, EPA Region 1, One Congress Street, Suite 1100 (CHW), Boston, MA 02114-2023; tel: [phone], e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

A. Why Are Revisions to State Programs Necessary?

States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.

B. What Decisions Have We Made in This Rule?

We have concluded that Vermont's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant Vermont Final authorization to operate its hazardous waste program with the changes described in the authorization application. Vermont has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates under the authority of HSWA take effect in authorized States before they are authorized for the requirements. Thus, EPA will implement any such requirements and prohibitions in Vermont, including issuing permits, until the State is granted authorization to do so.

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

The effect of this decision is that a facility in Vermont subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. Vermont has enforcement responsibilities under its State hazardous waste program for violations of such program, but EPA retains its full authority under RCRA sections 3007, 3008, 3013, and 7003, which includes, among others, authority to:

• Perform inspections, and require monitoring, tests, analyses or reports.
• Enforce RCRA requirements and suspend or revoke permits.
• Take enforcement actions.

This action does not impose additional requirements on the regulated community because the regulations for which Vermont is being authorized by today's action are already effective under state law, and are not changed by today's action.

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

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

E. What Happens If EPA Receives Comments that Oppose This Action?

If EPA receives comments that oppose this authorization, we will withdraw this rule by publishing a document in the Federal Register before the rule becomes effective. EPA will base any further decision on the authorization of the State program changes on the proposal mentioned in the previous paragraph. We will then address all public comments in a later final rule based upon this proposed rule that also appears in today's Federal Register. You may not have another opportunity to comment. If you want to comment on this authorization, you should do so at this time.

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

F. What Has Vermont Previously Been Authorized For?

The State of Vermont initially received Final authorization on January 7, 1985, effective January 21, 1985 (50 FR 775) to implement the RCRA hazardous waste management program. The Region published an immediate final rule for certain revisions to Vermont's program on May 3, 1993 (58 FR 26242) and reopened the comment period for these revisions on June 7, 1993 (58 FR 31911). This authorization became effective August 6, 1993 (58 FR 31911). The Region granted authorization for further revisions to Vermont's program on September 24, 1999 (64 FR 51702), effective November 23, 1999. On October 18, 1999 (64 FR 46174) the Region published a correction to the immediate final rule that was published on September 24, 1999. The Region granted authorization for further revisions to Vermont's program on October 26, 2000, effective December 26, 2000 (65 FR 64164). That Federal Register also made a technical correction.

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

On May 13, 2005, Vermont submitted a final complete program revision application, seeking authorization for their changes in accordance with 40 CFR 271.21. In particular, Vermont is seeking authorization for updated state regulations addressing federal requirements through June 30, 2003, for changes to Vermont's base program for which they had been previously authorized, and for the extension of the New England Universities' Laboratories project XL expiration date. Specifically, we are now authorizing a Vermont regulation to extend the XL project expiration date by three years, to September 30, 2006. EPA amended its federal regulations so as to allow such a state extension through a separate federal rulemaking. See 69 FR 11811. The Vermont Project XL regulations were originally authorized by the EPA and became part of the federally enforceable VT RCRA program on October 26, 2000. See 65 FR 64164. The reason for this extension is to allow the participating universities, the State and EPA additional time to evaluate the project. EPA has received an updated Final Project Agreement (FPA) modification which has been signed by the EPA, the Vermont Department of Environmental Conservation, and the University of Vermont, Burlington.

We are now making an immediate final decision, subject to receipt of written comments that oppose this action, that Vermont's hazardous waste program revisions satisfy all of the requirements necessary to qualify for Final authorization. Therefore, we grant Vermont Final authorization for the following program changes:

Description of Federal Requirement Checklist Reference Number	Analogous State Authority 1
Updated State Regulations
(140) Carbamate Production Identification and Listing of Hazardous Waste (60 FR 7824, 2/9/95; as amended at 60 FR 19165, 4/17/95 and 60 FR 25619, 5/12/95)	No State analog for the exclusions included in this checklist; the State is more stringent. Appendix I, Appendix II, Appendix III, Appendix IV.
(148) RCRA Expanded Public Participation Rule (60 FR 63417, 12/11/95)	Sections: 7-503(b)(5); 7-505(b)(3); 7-506(b)(2); 7-506(f)(2), (3) & (4); 7-511(a) & (d).
(152) Imports and Exports of Hazardous Waste: Implementation of OECD Council Decision (61 FR 16290, 4/12/96)	Section 7-103 (definition of “generator”); Section 7-107 (10 V.S.A. §§ 6610a, 6612 & 8010/See Checklist II); Sections 7-109(a), 7-203(r), 7-204(g), & 301(a)(1), 7-402(b), 7-504(e), & 7-510(c), 7-705(b)(2), 7-705(c), 7-705(d), 7-706(c), 7-708(c), 7-912(k), 7-913(g), 7-915, and 7-915(d).
(156) Military Munitions Rule (62 FR 6622, 2/12/97)	Section 7-103; Section 7-103 (see “discarded”); Sections 7-105(a)(5), 7-109(a), 7-109(b)(2), 7-301(c), 7-401(c)(7), 7-501(d), 7-502(p), 7-504(e), 7-507(f)(1), 7-510(c), and 7-702(c)(2).
(159) Hazardous Waste Management System; Carbamate Production, Identification and Listing of Hazardous Waste; Land Disposal Restrictions: Conformance With the Carbamate Vacatur (62 FR 32974, 6/17/97)	Appendix I, Appendix II, Appendix III, Appendix IV, Sections 7-106(a) and 7-109(a).
(164) Kraft Mill Steam Stripper Condensate Exclusion (63 FR 18504, 4/15/98)	No State analog for this exclusion; the State is more stringent.
(167D) Mineral Processing Secondary Material Exclusion;(63 FR 28556, 5/26/98 and 63 FR 31266, 6/8/98)	No State analog for this exclusion; the State is more stringent.
(167F) Exclusion of Recycled Wood Preserving Wastewaters (63 FR 28556, 5/26/98 and 63 FR 31266, 6/8/98)	Sections 7-204(b) & (c).
(168) Hazardous Waste Combustors Revised Standards (63 FR 33782, 6/19/98)	No State analog for this exclusion; the State is more stringent.
(169) Petroleum Refining Process Wastes (63 FR 42110, 8/6/98)	No State analog for the exclusions included in this checklist; the State is more stringent. Appendix I, Appendix IX, Sections 7-106(a), 7-109(a) & 7-109(b)(1).
(178) Petroleum Refining Process Wastes—Leachate Exemption (64 FR 6806, 2/11/99)	No State analog for this exclusion; the State is more stringent.
(181) Universal Waste Rule: Specific Provisions for Hazardous Waste Lamps (64 FR 36466, 7/6/99)	Sections: 7-103; 7-106; 7-203(s); 7-502(j); 7-901; 7-902; 7-903; 7-904; 7-906(a) & (b); 7-910(a) & (b); 7-911; 7-912(a); 7-912(c)(3)(D); 7-912(c)(3)(E); 7-912(d)(5); 7-912(e)(6); 7-913(a); 7-914(a)(1); 7-916(b)(1).
(184) 180-Day Accumulation Time Under RCRA for Waste Water Treatment Sludges From the Metal Finishing Industry (65 FR 12378, 3/8/00)	Sections 7-307; 7-308; 7-308(b)(2)(C); 7-308(b)(2)(C) “Note”.
(187) Petroleum Refining Process Wastes— Clarification (64 FR 36365, 6/8/00)	Section 7-106(a).
(189) Chlorinated Aliphatics Listing and LDRs for Newly identified Wastes (65 FR 67068, 11/8/00)	Sections-106(a) & 109(a), Appendix I, II, IX.
(190) Land Disposal Restrictions Phase IV—Deferral for PCBs in Soil (65 FR 81373, 12/26/00)	Sections 7-106(a) and 7-109(a).
(191) Mixed Waste Rule (66 FR 27218, 5/16/01)	Sections 7-103 and 7-109(b)(2).
(192A) Mixture and Derived-From Rules Revisions (66 FR 27266, 5/16/01)	Sections 7-202(a); 7-202(a)(3); 7-203(f); 7-203(k).
(192 B) Land Disposal Restrictions: Correction (66 FR 27266, 5/16/01)	Sections 7-106 and 7-109(a).
(193) Change of Official EPA Mailing Address; Additional Technical Amendments and Corrections (66 FR 34374, 6/28/01)	Sections 7-109(a) and 7-219(d).
(194) Mixture and Derived-From Rules Revisions II (66 FR 50332, 10/3/01)	Sections 7-202(a); 7-203(k) & (k)(2); 7-217.
(195) Inorganic Manufacturing Wastes Identification and Listing (66 FR 58258, 11/20/01; 67 FR 17119, 4/9/02)	No State analog for the exclusions included in this Chemical checklist; the State is more stringent. Appendix I, Appendix IX, Sections 7-106(a) and 7-109(a).
(196) Amendments to the Corrective Action Management Unit Rule (67 FR 2962, 1/22/02)	Sections 7-103; 7-109(a); and 7-504(e).
(199) Vacatur of Mineral Processing Spent Materials Being Reclaimed as Solid Wastes and TCLP Use with MGP Waste (67 FR 11251, 3/13/02)	No State analog for this revision; the State is more stringent.
(200) Zinc Fertilizer Rule (67 FR 48393, 7/24/02)	No State analog for this exclusion; the State is more stringent.
(201) Treatment Variance for Radioactively Contaminated Batteries (67 FR 62618, 10/7/02)	Sections 7-106(a) and 7-109(a).
Changes to the State RCRA Base Program Regulations
Exempts used oil filters that are crushed and cold drained, in addition to hot draining	Section 7-203(o)(1)(E).
Clarifies the recycling exemptions regarding inherently waste-like material	Section 7-204(a)(2).
Includes additional requirements for transporter transfer facilities	Section 7-404.
Allows treatment in tanks and containers by generators	Section 7-502(o).
Adds mercury containing devices and cathode ray tubes (CRTs) to the Universal Waste rule	Sections 7-907 and 7-908.
Prohibits the intentional breaking or crushing of mercury-containing lamps	Section 7-912(b)(2) Note.
Project XL
Extension of the Project XL Site-specific Rulemaking for University Laboratories	Section 7-109(c).
1 State of Vermont's Hazardous Waste Rules, effective October 1, 2004.

Note:

In addition to the regulations listed in the tables above, there are various State based program regulations to which the State has made minor changes and additions. The EPA is also proposing to authorize these minor changes. The final authorization of new State regulations and regulation changes is in addition to the previous authorization of State regulations, which have not changed and remain part of the authorized program.

H. Where Are the Revised 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.

1. More Stringent Provisions

There are aspects of the Vermont 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.

Vermont's regulations are more stringent because they did not adopt the exclusions included in the following Federal rules: Carbamate Production Identification and Listing of Hazardous Waste; Kraft Mill Steam Stripper Condensate Exclusion; Mineral Processing Secondary Materials Exclusion; Hazardous Waste Combustors Revised Standards; Petroleum Refining Process Wastes; Inorganic Chemical Manufacturing Wastes Identification and Listing; and, the Zinc Fertilizer rule. In addition, the State did not adopt the following revision: the Vacatur of Mineral Processing Spent Materials Being Reclaimed as Solid Wastes and TCLP Use with MGP Waste. The State has also added additional requirements to their transporter transfer facility regulations which include requiring secondary containment for containers. These more stringent requirements are part of Vermont's authorized program and are federally enforceable.

2. Different but Equivalent Provisions

Vermont also has some regulations which differ from, but have been determined to be equivalent to, the Federal regulations. These State regulations will become part of the federally enforceable RCRA program when authorized by the EPA. These different but equivalent requirements include the following: (1) Vermont has adopted a conditional exemption for oil filters in its Rule 7-203(o)(1) which differs from the Federal exemption in 40 CFR 261.4(b)(6) by allowing cold draining and crushing of the filters whereas the Federal regulation allows only hot draining. The State regulation specifies that any cold draining must include crushing using a mechanical, pneumatic or hydraulic device designed for the purpose of crushing oil filters and effectively removing the oil. This State provision will encourage recycling of used oil by enabling filters from junked vehicles to be managed in accordance with the exemption. Junked vehicles often cannot be started and consequently filters removed from those vehicles cannot meet the hot draining criteria of the Federal regulation. Vermont presented documentation showing that as much or more used oil is removed from used oil filters through cold draining plus crushing than is removed by some of the hot draining methods allowed in the Federal regulation. Thus, while the Vermont exemption differs from the Federal exemption, the State regulation is at least as stringent as the Federal regulation in requiring the removal of the oil. We believe that the State regulation thus is legally equivalent to the Federal regulation, since it is equivalent in environmental protectiveness and effect. (2) Vermont also has adopted regulations allowing certain kinds of treatment in containers and tanks by generators without treatment permits. The Vermont regulation is equivalent to the EPA interpretation of the Federal regulations that was issued in the following Federal Register notice: 51 FR 10168, March 24, 1986. In that rulemaking notice, the EPA determined that no permitting would be required if a generator chose to treat its waste in the generator's accumulation tanks or containers in conformance with the applicable requirements of subpart J or I of part 265. Also in conformance with Federal guidance, the Vermont regulations do not allow thermal treatment by generators without permits. In addition, the Vermont regulations do not allow generators to treat mercury containing wastes or devices without permits. (3) In addition to certain batteries, pesticides, thermostats, and fluorescent lamps, Vermont has added mercury containing devices and CRTs to the State's universal waste rule. We deem this equivalent because the Federal Universal Waste Rule allows States the flexibility to add additional hazardous wastes to their State list of universal wastes without requiring the waste to be added at the Federal level.

I. Who Handles Permits After the Authorization Takes Effect?

Vermont will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer and enforce any RCRA and HSWA (Hazardous and Solid Waste Act) permits or portions of permits which it has issued in Vermont prior to the effective date of this authorization until the State incorporates the terms and conditions of the Federal permits into the State RCRA permits. EPA will not issue any more new permits, or new portions of permits, for the provisions listed in the table above after the effective date of this authorization. EPA will continue to implement and issue permits for any HSWA requirements for which Vermont is not yet authorized.

J. What Is Codification and Is EPA Codifying Vermont's Hazardous Waste Program as Authorized in This Rule?

Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. We do this by referencing the authorized State rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272, subpart UU for this authorization of Vermont's program until a later date.

K. Administrative Requirements

The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993); therefore, this action is not subject to review by OMB. This action authorizes State requirements for the purpose of RCRA section 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action authorizes pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 104-4). For the same reason, this action also does not significantly or uniquely affect the communities or tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001) ) because it is not a significant regulatory actions 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 issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this document and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This action nevertheless will be effective August 22, 2005, because it is an immediate final rule.

List of Subjects in 40 CFR Part 271

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

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

Dated: June 3, 2005.

Ira W. Leighton,

Acting Regional Administrator, EPA New England.