2010-15255. Massachusetts: Final Authorization of State Hazardous Waste Management Program Revisions

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Immediate final rule.

SUMMARY:

The Commonwealth of Massachusetts has applied to EPA for final authorization of certain changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA has determined that these changes satisfy all requirements needed to qualify for final authorization and is authorizing the State's changes through this immediate final action.

DATES:

This final authorization will become effective on August 23, 2010 unless EPA receives adverse written comment by July 23, 2010. If EPA receives such comment, it will publish a timely withdrawal of this immediate final rule in the Federal Register and inform the public that this authorization will not take immediate effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R01-RCRA-2010-0468, by one of the following methods:

• http://www.regulations.gov: Follow the on-line instructions for submitting comments.
• E-mail: [e-mail].
• Fax: [phone], to the attention of Robin Biscaia.
• Mail: 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.
• Hand Delivery or Courier: Deliver your comments to: 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. Such deliveries are only accepted during the Office's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Identify your comments as relating to Docket ID No. EPA-R01-RCRA-2010-0468. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov,, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or claimed to be other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or e-mail. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through www.regulations.gov,, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/​dockets/​index.htm.

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 www.regulations.gov web site. Although it may be listed in the index, some information might not be publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the following two locations: (i) Massachusetts Department of Environmental Protection, Business Compliance Division, One Winter Street—8th Floor, Boston, MA 02108, business hours Monday through Friday 9 a.m. to 5 p.m., tel: [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, Hazardous Waste Unit, 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:

A. Why are revisions to State programs necessary?

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

B. What decisions have we made in this rule?

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

C. What is the effect of this authorization decision?

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

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

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

D. Why wasn't there a proposed rule before this rule?

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

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

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

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

F. What has Massachusetts previously been authorized for?

The Commonwealth of Massachusetts initially received Final Authorization on January 24, 1985, effective February 7, 1985 (50 FR 3344), to implement its base hazardous waste management program. This authorized base program generally tracked Federal hazardous waste requirements through July 1, 1984. In addition, the EPA previously has authorized particular Massachusetts regulations which address several of the EPA requirements adopted after July 1, 1984. Specifically, on September 30, 1998, the EPA authorized Massachusetts to administer the Satellite Accumulation rule, effective November 30, 1998 (63 FR 52180). Also, on October 12, 1999, the EPA authorized Massachusetts to administer the Toxicity Characteristics rule (except with respect to Cathode Ray Tubes), and the Universal Waste rule, effective immediately (64 FR 55153). On November 15, 2000, the EPA granted interim authorization for Massachusetts to regulate Cathode Ray Tubes under the Toxicity Characteristics rule through January 1, 2003, effective immediately (65 FR 68915). This interim authorization subsequently was extended to run through January 1, 2006 (67 FR 66338, October 31, 2002) which was then further extended until January 1, 2011 (70 FR 69900, November 18, 2005). On March 12, 2004, EPA authorized the State for updates to its hazardous waste program which generally track Federal requirements through the July 1, 1990 edition of Title 40 of the Code of Federal Regulations (and in some cases beyond), with respect to definitions and miscellaneous provisions, provisions for the identification and listing of hazardous wastes and standards for hazardous waste generators; it also approved a State-specific modification to the Federal hazardous waste regulations regarding recyclable materials under an ECOS flexibility project; and finally it approved Massachusetts site-specific regulations developed under the Project XL, New England Universities Laboratories XL Project (69 FR 11801, March 12, 2004), effective immediately. On January 31, 2008 EPA authorized Massachusetts for revisions to the state's hazardous waste management program addressing Federal requirements for Corrective Action, Radioactive Mixed Waste, and the Hazardous Waste Manifest revisions; the authorization also addressed various changes the state had recently made to its base program regulations, including the hazardous waste exemption for dredged material regulated under the Federal Clean Water Act, requirements relating to elementary neutralization, an exemption for dental amalgam being recycled, a State regulation which allows for the waiving of state requirements that are more stringent than the Federal RCRA counterparts, updates to interim status facilities requirements and, finally, an extension of the special regulations governing the New England Universities' Laboratories XL project (73 FR 5753, January 31, 2008), effective March 31, 2008.

G. What changes are we authorizing with this action?

On June 3, 2010, Massachusetts submitted a final complete program revisions application seeking authorization for its changes in accordance with 40 CFR 271.21. In particular, Massachusetts is seeking authorization for the Land Disposal Restrictions element of the RCRA program. Massachusetts also is seeking authorization for other updates and revisions to its RCRA program.

The State's authorization application includes a copy of MassDEP's Hazardous Waste Regulations, effective April 16, 2010, checklists comparing the Federal and state regulations and an Attorney General's Statement.

We are now making an immediate final decision, subject to reconsideration only if we receive written comments that oppose this action, that Massachusetts' hazardous waste revisions satisfy all of the requirements necessary to qualify for final authorization. Therefore, we grant Massachusetts final authorization for the program changes identified below. Note, the Federal requirements are identified by their rule revision checklist (CL) number or by direct reference to a Federal regulation, and are followed by the corresponding State regulatory analogs from the Massachusetts Hazardous Waste regulations, 310 CMR 30.0000, as in effect on April 16, 2010.

With respect to the Land Disposal Restrictions (LDR) element of the RCRA program, we are authorizing the Massachusetts regulations listed below which relate to the Federal Land Disposal Restriction LDR rule revision checklists or portions thereof identified in the Special Consolidated Checklist for the LDR rules as of June 30, 1992 as well as the Special Consolidated Checklist for the Phases I-IV LDRs as of December 31, 2002: Federal—CL 34 [51 FR 40572, November 7, 1986, 52 FR 21010, June 4, 1987]; CL 39 [52 FR 25760, July 8, 1987, 52 FR 41295, October 27, 1987]; CL 50 [53 FR 31138, August 17, 1988, 54 FR 8264, February 27, 1989]; CL 62 [54 FR 18836, May 2, 1989]; CL 63 [54 FR 26594, June 23, 1989]; CL 66 [54 FR 36967, September 6, 1989, 55 FR 23935, June 13, 1990]; CL 78 [55 FR 22520, June 1, 1990]; CL 83 [56 FR 3864, January 31, 1991]; CL 95 [56 FR 41164, August 19, 1991]; CL 102 [57 FR 8086, March 6, 1992]; CL 103 [57 FR 20766, May 15, 1992]; CL 106 [57 FR 28628, June 26, 1992]; CL 109 [57 FR 37194, August 18, 1992]; CL 116 [57 FR 47772, October 20, 1992]; CL 123 [58 FR 28506, May 14, 1993]; CL 124 [58 FR 29860, May 24, 1993]; CL 136 [59 FR 43496, August 24, 1994]; CL 137 [59 FR 47982, September 19, 1994, 60 FR 242, January 3, 1995]; CLs 142A-142E [60 FR 25492, May 11, 1995]; CL 151 [61 FR 15566, April 8, 1996, 61 FR 15660, April 8, 1996, 61 FR 19117, April 30, 1996, 61 FR 33680, June 28, 1996, 61 FR 36419, July 10, 1996, 61 FR 43924, August 26, 1996, and 62 FR 7502, February 19, 1997]; CL 155 [62 FR 1992, January 14, 1997]; CL 157 [62 FR 25998, May 12, 1997]; Revision CL 159 [62 FR 32974, June 17, 1997]; CL 160 [62 FR 37694, July 14, 1997]; CL 161 [62 FR 45568, August 28, 1997]; CL 162 [62 FR 64504, December 5, 1997]; CLs 167A, 167B, 167C and 167C.1 [63 FR 28556, May 26, 1998, 63 FR 31266, June 8, 1998]; CL 169 [63 FR 42110, August 6, 1998; 63 FR 54356, October 9, 1998]; CL 170 [63 FR 46332, August 31, 1998]; CL 171 [63 FR 47410 (September 4, 1998)]; CL 172 [63 FR 48124, September 9, 1998]; CL 173 [63 FR 51254, September 24, 1998]; CL 179 [64 FR 2548, May 11, 1999]; CL 181 [64 FR 36466, July 6, 1999]; CL 182 [64 FR 52828, September 30, 1999]; CL 183 [64 FR 56469, October 20, 1999]; CL 185 [65 FR 14472, March 17, 2000]; CL 187 [64 FR 36365, June 8, 2000]; CL 189 [65 FR 67068, November 8, 2000]; CL 190 [65 FR 81373, December 26, 2000]; CL 192B [66 FR 27266, May 16, 2001]; CL 195 [66 FR 58258, November 20, 2001, 67 FR 17119, April 9, 2002]; CL 200 [67 FR 48393, July 24, 2002] and CL 201 [67 FR 62618, October 7, 2002]: State—310 CMR 3.10, 3.14, 30.010 (definitions of “containment building,” “debris,” “hazardous constituent or constituents,” “hazardous debris,” “land disposal,” “miscellaneous unit,” “pile,” “PCBs or polychlorinated biphenyls”), 30.002, 30.003, 30.010 (intro.), 30.012(1), 30.099(1), 30.099(3), 30.099(6)(a), 30.099(6)(b), 30.099(6)(c), 30.099(6)(g), 30.099(6)(h), 30.099(6)(i), 30.099(6)(j), 30.099(6)(q), 30.099(6)(t), 30.101, 30.103(1), 30.103(2) with respect to Federal wastes, 30.103(3), 30.104(2)(e)2(a)-(b), 30.104(2)(e)(3), 30.104(2)(w), 30.104(3)(a), 30.140(1)(f), 30.106(1), 30.122(1), 30.122(1)(c) and (d), 30.122(2), 30.123(2), 30.124(2), 30.125(2), 30.131 (addition of F039), 30.133(1)(c), 30.136(1)(c), 30.141(1), 30.162, 30.231(1) as it relates to Federally regulated materials, 30.231(6), 30.294(2), 30.301(3), 30.302(3)-(5), 30.302(1)-(5), 30.340(1), 30.340(2), 30.340(4), 30.341(2), 30.351(1)(b), 30.351(1)(c), 30.351(1)(d), 30.351(10)(h), 30.353(1)(b)-(c), 30.353(2), 30.353(3), 30.353(6)(c), 30.408(2), 30.501(1), 30.501(2)(h), 30.513(1)(a)-(b), 30.513(2)(a)5, 30.513(2)(a)6.a.-c., 30.542(2)(c), 30.542(2)(i)(1)-(3), 30.542(2)(j)-(o), 30.591, 30.601(1), 30.602(16), 30.616(1)(a)-(b), 30.628(1), 30.629(1)-(2), 30.630, 30.630(5), 30.646(1)(a)-(b), 30.657(1)(a)-(b), 30.700 (intro.), 30.750(1)(a)-(b), 30.750(1)(c)2, 30.750(1)(c)3, 30.750(2)(a)-(h), 30.750(3)(a) Table 1, 30.750(3)(b) Table 2, 30.750(3)(c) Table 3, 30.750(3)(d)1-15, 30.804(28), 30.804(5), 30.829, 30.852 Table (B.1.b, B.1.c and H.1), 30.901(1)(a), 30.903, 30.905, 30.1103(2).

Because Massachusetts has not yet adopted certain waste listings that were promulgated under the authority of the Hazardous and Solid Waste Amendments (HSWA), we are not authorizing the Commonwealth for Land Disposal Restrictions related to these wastes at this time. As such, EPA will retain authority over the following hazardous waste listings until the State adopts and is granted authorization in a future rulemaking: F032 (Wood Preserving Wastes); K141, K142, K143, K144, K145, K147, and K148 (Coke By-Product Wastes); K156, K157, K158, K159, K161, P127, P128, P185, P188, P189, P190, P191, P192, P194, P196, P197, P198, P199, P201, P202, P203, P204, P205, U271, U278, U279, U280, U364, U367, U372, U373, U387, U389, U394, U395, U404, U409, U410, and U411 (Carbamate Wastes); K169, K170, K171 and K172 (Petroleum Refining Wastes); K174 and K175 (Organic Chemicals); and, K176 and K177 (Inorganic Chemicals). Regulated entities in Massachusetts will need to comply with the LDR requirements for these wastes, but it is the Federal rather than the State LDR requirements that will continue to apply.

We also are authorizing the following other updates and revisions to the Massachusetts RCRA program: Federal: CL 3—Interim Status Standards Applicability [48 FR 52718-52720, November 22, 1983]—State: 30.099(1); Federal: CL 10—Interim Status Standards Applicability [49 FR 46094-46095, November 21, 1984]—State: 30.099(1); Federal: CL 15—Interim Status Standards for Treatment, Storage, and Disposal Facilities [50 FR 16044-16048, April 23, 1985]—State: 30.099(6)(b)8, 30.099(6)(g), 30.099(6)(i), 30.099(6)(j), and 30.630; Federal: interim status facility requirements at 40 CFR part 265—State: editorial change at 30.099(4)(b); Federal: requirements under subpart N, Landfills, 40 CFR 265.300 to 265.316—State: editorial change at 30.099(6)(j); Federal: interim status requirements under subpart O, Incinerators, 40 CFR 265.340 to 265.352—State: updated incorporation of Federal requirements by reference at 30.099(6)(k); Federal: interim status requirements under subpart P, Thermal Treatment, 40 CFR 265.370 to 265.383—State: updated incorporation of Federal requirements by reference at 30.099(6)(l); Federal: interim status requirements under subpart Q, Chemical, Physical and Biological Treatment, 40 CFR 265.400 to 265.406—State: updated incorporation of Federal requirements by reference at 30.099(6)(m); Federal: interim status requirements under subpart AA, Air Emission Standards for Process Vents, 40 CFR 265.1030 to 265. 1035—State: updated incorporation of Federal requirements by reference at 30.099(6)(o); Federal: interim status requirements under subpart BB—Air Emission Standards for Equipment Leaks, 40 CFR 265.1050 to 265.1064—State: updated incorporation of Federal requirements by reference at 30.099(6)(p); Federal: requirements relating to subpart S, 40 CFR 264.552 (Corrective Action Management Units), § 264.553 (Temporary Units), and § 264.554 (Staging Piles)—State: specification that interim status facilities are subject to such additional requirements at 30.099(6)(s); Federal: subpart CC, Air Emission Standards for Tanks, Surface Impoundments and Containers, at interim status facilities, 40 CFR 265.1080 to 265.1090—State: 30.099(6)(u); Federal: corrective action requirements at 40 CFR 264.101—State: updated incorporation of Federal regulations by reference at 30.099(13)(d); Federal: CL 16—Paint Filter Test [50 FR 18370-18375, April 30, 1985]—State: 30.099(6)(a)(1) and (2), 30.099(6)(j), 30.629(1) and (2), 30.513(2)(a)5, and 30.542(c) and (g); Federal: CL 17A—Small Quantity Generators [50 FR 28702, July 15, 1985]—State: portions not previously authorized, 30.102(2)(c), 30.405(9), 30.801(1) and (2), and 30.099(2)(a)1 and 2; Federal: CL 17B—Delisting [54 FR 27114, June 27, 1989]—State: 30.142(1) and (2); Federal: CL 17E—Location Standards for Salt Domes, Salt Beds, Underground Mines and Caves [50 FR 28702, July 15, 1985]—State: 30.707 and 30.099(10); Federal: CL 17F—Liquids in Landfills I [51 FR 19176, May 28, 1986]—State: 30.629, 30.620(1), 30.099(6)(j), and 30.804(19)(g); Federal: CL 17G—Dust Suppression [50 FR 28702, July 15, 1985]—State: 30.231(1) and 30.205(13) as it relates to Federally regulated materials; Federal: CL 17M—Pre-construction Ban [50 FR 28702, July 15, 1985]—State: 30.801, 30.801(12), and 30.501(3); Federal: CL 17N—Permit Life [50 FR 28702, July 15, 1985]—State: 30.827, 30.851(3), and 30.851(3)(a)3; Federal: CL 17S—Exposure Information [50 FR 28702, July 15, 1985]—State: 30.804, 30.804(18)(n), and 30.804(19)(n); Federal: CL 23—Generators of 100 to 1000 kg Hazardous Waste [51 FR 10146-10176, March 24, 1986]—State: portions not previously authorized, 30.102(2)(c), 30.405(9), 30.801(1) and (2), and 30.099(2)(a)1 and 2; Federal: CL 25—Codification Rule, Technical Correction [51 FR 19176-19177, May 28, 1986]—State: 30.099(6)(j); Federal: CL 40—List (Phase 1) of Hazardous Constituents for Ground-water Monitoring [52 FR 25942-25953, July 9, 1987]—State: 30.161, 30.664(6)(a), 30.664(7)(b), 30.664(7)(d), 30.671(6) and 30.804(23)(d)2; Federal: CL 44E—Permit as a Shield Provision [52 FR 45788-45799, December 1, 1987]—State: 30.812 and 30.851(3)(a)3; Federal: CL 44F—Permit Conditions to Protect Human Health and the Environment [52 FR 45788-45799, December 1, 1987]—State: 30.804 (intro.) and 30.827; Federal: CL 45 and 59—Hazardous Waste Miscellaneous Units and Corrections [52 FR 46946, December 10, 1987, and 54 FR 615, January 9, 1989]—State: 30.010 definition of “landfill” and “miscellaneous unit,” 30.502(1)(f), 30.515(2)(c), 30.542(2)(g), 30.582, 30.583(1)(h), 30.585, 30.592(1)(a) and (b), 30.593(1), 30.606, 30.661(1) and (4), 30.700, 30.701, 30.701(7), 30.804(8), (12), (13) and (27), 30.901(1)(b), 30.903(1), 30.905(1), and 30.908(2); Federal: CL 52—Hazardous Waste Management System; Standards for Hazardous Waste Storage and Treatment Tank Systems [53 FR 34079, September 2, 1988]—State: 30.010, 30.099(6)(b) and (6)(b)8, 30.099(6)(f), 30.585, 30.691(1) and (2), and 30.694(6)(c); Federal: CL 81 and 89—Petroleum Refinery Primary and Secondary Oil/Water/Solids Separation Sludge Listings (F037 and F038) and Amendments [55 FR 46354, November 2, 1990, as amended at 55 FR 51707, December 17, 1990 and 56 FR 21955, May 13, 1991]—State: 30.130; 30.131; and 30.162; Federal: CL 86—Removal of Strontium Sulfide from the List of Hazardous Wastes [56 FR 7567, February 25, 1991]—State: 30.136 and 30.160; Federal: CL 115—Chlorinated Toluenes Production Waste Listing [57 FR 47376, October 15, 1992]—State: 30.132 and 30.162; Federal: CL 132—Wood Surface Protection, Correction [59 FR 28484, June 2, 1994]—State: 30.012(1)(k); Federal: CL 140—portions relating to waste listing for P188, Physostigmine Salicylate and P204, Physostigmine [60 FR 7824, February 9, 1995 as amended at 60 FR 19165, April 17, 1995 and at 60 FR 25619, May 12, 1995]—State: 30.136 and 30.160; Federal: CL 192A—Mixture and Derived-From Rules Revisions, only as it relates to medicinal nitroglycerin, and the conditional exemption for low-level mixed waste [66 FR 27266, May 16, 2001]—State: 30.104(2)(v) and 30.104(3)(g); Federal: CL 193—Change of Official EPA Mailing Address [66 FR 34374, June 28, 2001]—State: 30.012(1)(k); Federal: CL 206—Non-wastewaters from Dyes and Pigments Waste Listing [70 FR 9138, February 24, 2005 as amended at 70 FR 35032, June 16, 2005]—State: 30.132, 30.160, 30.162, and 30.750(1)(a); Federal: CL 207—Uniform Hazardous Waste Manifest Revisions, [70 FR 10776, March 4, 2005]—State: corrections to previously authorized State definitions in 30.010; Federal: dredged material exemption at 40 CFR 261.4(g)—State: formatting corrections to previously authorized State regulations 30.104(3)(f)-(g); Federal: conditional exemption of waste pickle liquor sludge at 40 CFR 261.3(c)(2)(ii)(A)—State: 30.104(2)(e)(1); Federal: 40 FR 261.4(b), solid wastes which are not hazardous—State: updated incorporation of Federal requirements at 30.104(2)(m); Federal: listing criteria at 40 CFR 261.11—State: updated incorporation of Federal requirements by reference at 30.112(1)(b) and (c); Federal: Appendix I to 40 CFR part 261 regarding representative sampling methods—State: clarification at 30.151 that the Department incorporates by reference Appendix I to 40 CFR part 261; Federal: test method for determining the characteristic of ignitability at 40 CFR 261.21(a)(1)—State: update to reference at 30.152(1)(a) to reflect incorporation of reference at 30.012; Federal: test methods for corrosivity at 40 CFR 261.22(a)—State: update to test methods and references at 30.153(1) and (2); Federal: reference to test method 9095B in EPA publication SW-846 (paint filter liquids test) at 40 CFR part 260.11(c)(3)—State: modification of 30.156 to reflect current paint filter test method; Federal: exports of industrial ethyl alcohol for reclamation at 40 CFR 261.6(a)(3)(i)(A) and (B)—State: updated incorporation of Federal requirements by reference at 30.212(2); Federal: 40 CFR 262.21—State: updated incorporation of Federal requirements by reference at 30.316; Federal: Waste minimization certification at 40 CFR 262.27—State: updated incorporation of Federal requirements by reference at 30.317; Federal: 40 CFR part 262, subparts E and F regarding imports and exports of hazardous waste—State: updated incorporations of Federal requirements by reference at 30.361(1) and (2); Federal: 263.20(a)(2) relating to exports—State: updated incorporation of Federal requirements by reference at 30.405(8); Federal: 40 CFR 263.30(c)—State: update of 30.413(2)(b)-(c); Federal: 40 CFR 264.1(g)(3)—State: update of 30.501(2)(a) and 30.601(2)(a); Federal 40 CFR 264.1(g)(6)—State: clerical error correction at 30.501(2)(d); Federal: 40 CFR 264.56(a)—State: clerical error corrections at 30.524(6)(c)1; Federal: 40 CFR 264.70 relating to manifests—State: update of 30.541; Federal: 40 CFR 262.41(a)(6), 264.75(h), and 265.75(h) related to toxicity and waste reduction under biennial reporting—State: general update of 30.542(2)(h); Federal: Corrective Action requirements related to 40 CFR 264.101, 264.552, 264.553 and 40 CFR 265.121—State: update of incorporated Federal references at 30.602(9), 30.602(10)(c)3, 30.602(12) and 30.602(13); Federal: 40 CFR 264.1(g)(10)—State: clerical error correction at 30.603(1)(a); Federal: 40 CFR 264.221(b) regarding surface impoundments—State: update of 30.613(4)(a)1-3; Federal: 40 CFR 264.251(a)(2)—State: clerical error correction at 30.641(1)(b); Federal: 40 CFR 264.273(d)—State: clerical error correction at 30.654(6); Federal: 40 CFR 264.193—State: clerical error correction at 30.694(4)(a)2; Federal: Facility location standards at 40 CFR 264.18—State: update to provisions at 30.700 (intro.), 30.701 (intro.), 30.701(7)(a) and 30.703 (Figure, clerical error correction); Federal: 40 CFR 270.1(c)(3)(i), exclusions from requirement to obtain a Part B permit—State: general update at 30.801(11); Federal: Content of Part B at 40 CFR 270.14(b)(2)—State: update of 30.804(5) to include hazardous debris; Federal: 40 CFR 270.14(c) Content of Part B, additional requirements—State: updated incorporation of Federal groundwater monitoring requirements at 40 CFR 265.90-265.94 by reference at 30.804(23)(a); Federal: 40 CFR 264.144(b) regarding annual inflation adjustment of cost estimate for post-closure care—State: revision at 30.905(2) to reflect time frame consistent with Federal requirement; Federal: hazardous waste requirements in 40 CFR parts 260 to 279—State: 30.004 (effective dates for all state regulations utilized to meet these Federal requirements and 30.011 (general updated incorporation of Federal requirements by reference).

Today's final authorization of State regulations and regulation changes is in addition to the previous authorizations of State regulations which remain part of the authorized program.

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

The most significant differences between the State rules being authorized and the Federal rules are summarized below. It should be noted that this summary does not describe every difference, or every detail regarding the differences that are described. Members of the regulated community are advised to read the complete regulations to ensure that they understand all of the requirements with which they will need to comply.

A further explanation regarding why the EPA is today classifying certain State regulations as more stringent versus other State regulations as broader in scope than the Federal regulations is provided in a memorandum entitled “More Stringent and Broader in Scope Determinations Made in 2010 Massachusetts RCRA Program Authorization,” by Jeffry Fowley of the Office of Regional Counsel, dated June 2010. This memorandum has been placed in the administrative record and is available upon request.

In addition to the differences between the State regulations and the Federal regulations as of July 1, 2008, described in items 1 and 2, below, the State rules are different from the current (2010) Federal rules in that the State has not adopted the EPA's Definition of Solid Waste (DSW) Rule, which took effect at the Federal level on December 29, 2008. Since today's authorization of the State regulations addresses Federal requirements only through July 1, 2008, and since the EPA currently is considering whether to revise the DSW Rule, this authorization rulemaking does not address the extent to which not adopting the DSW makes particular State requirements more stringent versus broader in scope. Rather, consideration of this matter is deferred.

1. More Stringent Provisions

There are aspects of the Massachusetts program which are more stringent than the Federal program. Pursuant to 40 CFR 271.1(i)(1), 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 State requirements include the following: (a) The use of underground injection as a means of land disposal is prohibited within Massachusetts. Thus, in adopting the LDR requirements, Massachusetts did not adopt any provisions allowing such use of underground injection; (b) Massachusetts regulates hazardous waste pesticides discarded by farmers under its universal waste regulations, rather than tracking only the minimum Federal requirements in 40 CFR 262.70. Thus, in adopting the LDR requirements, Massachusetts did not adopt the exemption from LDR requirements for these hazardous waste pesticides; (c) Massachusetts does not allow the land disposal of lab packs, or ignitable or reactive hazardous wastes, within Massachusetts. Thus, in adopting the LDR requirements, Massachusetts did not adopt any provisions allowing for such land disposal of these wastes; (d) The waiver and variance provisions for surface impoundments in 40 CFR 268.4(a)(3)(ii) and (iii) are inapplicable in Massachusetts. Also, variances from the treatment standards in 40 CFR 268.44(h) through (o) are not granted by Massachusetts; (e) Massachusetts generally does not allow generators to treat without permits/licenses in containers and tanks. Thus, in adopting the LDR requirements, Massachusetts did not adopt any provisions allowing for such treatment; and (f) Massachusetts does not allow generators or permitted/licensed facilities to operate containment buildings. Thus, in adopting the LDR requirements, Massachusetts did not adopt any provisions allowing for such entities to operate containment buildings.

2. Broader-in-Scope Provisions

There are also aspects of the Massachusetts program which are broader in scope than the Federal program. Pursuant to 40 CFR 271.1(i)(2), the portions of the State requirements which are broader in scope are not authorized by EPA and 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 in Massachusetts. These broader-in-scope State requirements include the following: (a) Massachusetts has not adopted the mixture and derived from rule revisions enacted by EPA on May 16, 2001, at 66 FR 27266, except that Massachusetts has adopted an exemption for medicinal nitroglycerine equivalent to the EPA exemption. Thus, except for medicinal nitroglycerine, Massachusetts is continuing to regulate as listed wastes the waste mixtures and derived from wastes excluded from Federal regulation by the EPA on May 16, 2001.

I. Who handles permits after the authorization takes effect?

Massachusetts will issue permits for provisions for which it is authorized and will administer the permits it issues. However, EPA will continue to administer and enforce any RCRA and HSWA (Hazardous and Solid Waste Act) permits or portions of permits which it has issued in Massachusetts prior to the effective date of this authorization. EPA will not issue any more new permits, or new portions of permits, for the provisions listed in this document above after the effective date of this authorization. EPA will continue to implement and issue permits for any HSWA requirements for which Massachusetts is not yet authorized.

J. How does this action affect Indian country (18 U.S.C. 115) in Massachusetts?

Massachusetts is not authorized to carry out its hazardous waste program in Indian country within the State (land of the Wampanoag tribe). Therefore, EPA will continue to implement and administer the RCRA program in these lands.

K. What is codification and is EPA codifying Massachusetts's hazardous waste program as authorized in this rule?

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

L. Administrative Requirements

The Office of Management and Budget has exempted this action (RCRA State Authorization) from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993); therefore, this action is not subject to review by OMB. This action authorizes State requirements under RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action authorizes pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). For the same reason, this action also does not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997) because it is not economically significant as it approves a state program and, thus, does not make decisions based on environmental health or safety risks. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)) because it is not a significant regulatory action under Executive Order 12866.

Under RCRA 3006(b), EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this document and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2). This action nevertheless will be effective 60 days after it is published in the Federal Register 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
• 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, 6974(b).

Dated: June 8, 2010.

Ira W. Leighton,

Acting Regional Administrator, EPA New England.