01-22520. District of Columbia: Final Authorization of State Hazardous Waste Management Program Revision

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Immediate final rule.

SUMMARY:

The District of Columbia has applied to EPA for Final authorization of 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 District'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 get written comments which oppose this authorization during the comment period, the decision to authorize the District of Columbia's changes to its hazardous waste program will take effect. If we get 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 in the proposed rules section of this Federal Register will serve as a proposal to authorize the changes.

DATES:

This Final authorization will become effective on November 9, 2001 unless EPA receives adverse written comment by October 10, 2001. 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:

Send written comments to Charles Bentley, Mailcode 3WC21, RCRA State Programs Branch, U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA 19103-2029, Phone number: [phone]. We must receive your comments by October 10, 2001. You can view and copy the District of Columbia's application from 8:30 a.m. to 4:30 p.m. at the following addresses: District of Columbia Department of Health, Environmental Health Administration, Bureau of Hazardous Materials and Toxic Substances, Hazardous Waste Division, 51 N Street, NE, 3rd Floor, Washington DC 20002, Phone number [phone], attn: James Sweeney, and EPA Region III, Library, 2nd Floor, 1650 Arch Street, Philadelphia, PA 19103-2029, Phone number: [phone].

FOR FURTHER INFORMATION CONTACT:

Charles Bentley, Mailcode 3WC21, RCRA State Programs Branch, U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA 19103-2029, Phone number: [phone].

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 conclude that the District of Columbia's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant the District of Columbia Final authorization to operate its hazardous waste program with the changes described in the authorization application. The District of Columbia 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 those requirements and prohibitions in the District of Columbia, including issuing permits, until the State is granted authorization to do so.

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

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

• Do inspections, and require monitoring, tests, analyses or reports,
• Enforce RCRA requirements and suspend or revoke permits, and
• Take enforcement actions regardless of whether the District has taken its own actions.

This action does not impose additional requirements on the regulated community because the regulations for which the District of Columbia is being authorized by today's action are already effective, 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 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 District's program changes. If EPA receives comments which oppose this authorization, or portion(s) thereof, that document will serve as a proposal to authorize such 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 District's program changes on the proposal mentioned in the previous paragraph. We will then address all public comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time.

If we receive comments that oppose only the authorization of a particular change to the District's hazardous waste program, we may 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 the District of Columbia Previously Been Authorized for?

The District of Columbia Hazardous Waste Management Act of 1977 (D.C. Law 2-64, as amended) directed the Mayor to develop a regulatory scheme for management of hazardous waste in the District, and the District subsequently established a comprehensive hazardous waste management program. On July 22, 1983, the District adopted analogs to 40 CFR parts 260 through 265 (July 1982 ed.), 40 CFR part 270 (July 1983 ed.) and 40 CFR part 124, subpart A (July 1983 ed.) as amended by the District. These regulations were amended on September 28, 1984. EPA's final authorization of the District's base RCRA program took effect on March 22, 1985.

Since the base program authorization, the District of Columbia Hazardous Waste Management Act was amended in 1989, and the District's hazardous waste regulations have been amended five (5) times (1985, 1987, 1988, 1996, and 2000). The latest regulatory amendments became effective on September 19, 2000.

The District of Columbia's Department of Health (DOH) is currently designated the lead agency for implementing the District's hazardous waste program. The District's previously-authorized hazardous waste program was administered through the Department of Consumer and Regulatory Affairs. However, on July 17, 1996, the District's government was reorganized, and all of the District's environmental programs were reassigned to the DOH. The District's hazardous waste program is currently being implemented by the Hazardous Waste Division of the Bureau of Hazardous Material and Toxic Substances (BHMTS) of the Environmental Health Administration (EHA), within the DOH.

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

On July 20, 2001, the District of Columbia submitted a final complete program revision application, seeking authorization of its changes in accordance with 40 CFR 271.21. EPA Region III worked closely with the District to develop the authorization application. Therefore, EPA's comments relative to the District's legal authority to carry out aspects of the Federal program for which the District is seeking authorization; the scope of and coverage of activities regulated; and the District's procedures, including the criteria for permit reviews, public participation and enforcement capabilities, were addressed before the submission of the final application by the District. The District also solicited public comments on its proposed regulations before they were adopted. The EPA has reviewed the District's application, and now makes an immediate final decision, subject to receipt of adverse written comment, that the District's hazardous waste program revisions satisfy all of the requirements necessary to qualify for Final authorization. Consequently, EPA intends to grant the District of Columbia Final authorization for the program modifications contained in the program revision application.

The District's program revision application includes the District's statutory and regulatory changes to the District's authorized hazardous waste program, including the adoption of the Federal hazardous waste regulations published through June 30, 1998 (RCRA Cluster VII), with certain exceptions described in section H.

The District is today seeking authority to administer the Federal requirements that are listed in the chart below. This chart also lists the District's analogs that are being recognized as equivalent to the appropriate Federal requirements. Unless otherwise stated, the District's statutory references are to the District of Columbia Hazardous Waste Management Act as contained in the D.C. Code 6-701 et seq. (1981 ed., 1995 Repl. Vol., 1999 Supplement). The regulatory references are to Title 20 of the District of Columbia Municipal Regulations (DCMR), Chapters 1 through 6, Chapters 40 through 50 and Chapter 54, as amended, effective September 29, 2000.

We now make an immediate final decision, subject to receipt of written comments that oppose this action, that the District of Columbia's hazardous waste program revision satisfies all of the requirements necessary to qualify for Final authorization. Therefore, we grant the District of Columbia Final authorization for the following program changes:

Federal requirement	Analogous District of Columbia Authority
40 CFR part 260—Hazardous Waste Management System: General, as of July 1, 1998	District of Columbia Code (D.C. Code) §§ 6-701(a), 6-702(1)-(3), 6-702(5)-(9) and 6-705(a); Title 20 District of Columbia Municipal Regulations (20 DCMR)§§ 4000.1 through 4001.18, 4017.1, 4017.3 and 5400.1.
	(More stringent provision: 5400.1 “small quantity generator”).
40 CFR part 261—Identification and Listing of Hazardous Waste, as of July 1, 1998	D.C. Code §§ 6-701(a) and 6-705(a); 20 DCMR §§ 4016, 4100 through 4112, Chapter 41 Appendices I&II, 4200.2 and 5400.1.
	(More stringent provisions: 4100.13(a), 4101.5, 4101.6(a)&(b), 4101.7, 4101.9 (introductory paragraph), 4101.9(c), (d) & (f), 4102.5 (introductory paragraph), 4102.6, 4102.7(d)&(e), 4102.10, 4103.2(b) and 4106.1).
40 CFR part 262—Standards Applicable to the Generators of Hazardous Wastes, as of July 1, 1998	D.C. Code §§ 6-701(a) and 6-705(a); 20 DCMR Chapter 42 (except 4200.16 and 4208), and §§ 5400.1 and 4016.
	(More stringent provisions: 4200.2, 4202.7(b)(1)&(2), 4203.5(c)&(e), 4204.3(c), 4204.9 (introductory paragraph), 4207.12(a)(1), 4207.21 and 4207.24 (introductory paragraph)).
40 CFR part 263—Standards Applicable to the Transporters of Hazardous Wastes, as of July 1, 1998	D.C. Code §§ 6-701(a) and 6-705(a); 20 DCMR Chapter 43 (except § 4300.11 and 4303).
	(More stringent provisions: 4300.9, 4300.12 and 4302.3(b)).
40 CFR part 264—Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities, as of July 1, 1998	D.C. Code §§ 6-701(a), 6-702(1), 6-703(b), 6-705(a), 6-904, 6-905, and 6-906; 20 DCMR Chapters 1-6, Chapter 44, 20 DCMR §§ 5400.1, 4016 and 4018.
	(More stringent provisions: 4400.3, 4018, 4400.7(i)&(k), 4407.1, 4413.1, 4413.7, 4413.11 (introductory paragraph), 4413.11(b), 4413.12 (introductory paragraph), 4413.12(b), 4413.17 (introductory paragraph), 4413.19 (introductory paragraph), 4413.26, 4414.4, 4414.10(h), 4414.15(h), 4416.32(d) (introductory paragraph), 4417.2, 4417.3 and 4474.1).
40 CFR part 265—Interim Status Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities, as of July 1, 1998	D.C. Code §§ 6-701(a), 6-702(1), 6-705(a), 6-904, 6-905, and 6-906; 20 DCMR Chapters 1 through 6 and §§ 4401, 4016 and 5400.1.
	(More stringent provisions: 4401.2 (introductory paragraph), 4401.2(a)-(n) & (r)-(t))
40 CFR part 266—Standards for the Management of Specific Hazardous Wastes and Specific Types of Hazardous Waste Management Facilities, as of July 1, 1998	D.C. Code §§ 6-701(a), 6-702(1), 6-703(b), 6-705(a), 6-904, 6-905, and 6-906; 20 DCMR Chapters 1-6, Chapter 45 (except 4512.5(c)), 20 DCMR § 5400.1.
	(More stringent provisions: 4507.1 and 4507.3).
40 CFR part 268—Land Disposal Restrictions, as of July 1, 1998	D.C. Code §§ 6-701(a) and 6-705(a); 20 DCMR Chapter 50 and §§ 5400.1 and 4016.
	(More stringent provisions: 5000.2, 5000.11 and 500.12(h)(2) (introductory paragraph)).
40 CFR part 270—The Hazardous Waste Permit Program, as of July 1, 1998	D.C. Code §§ 6-701(a), 6-703, 6-705(a), and 6-709; 20 DCMR Chapter 46, 20 DCMR §§ 4017.1, 4017.2 and 5400.1.
	(More stringent provisions: 4018, 4400.3, 4507.1, 4600.6, 4600.8(c)&(h), 4600.12, 4601.3, 4601.10, 4601.16 (introductory paragraph), 4617.13(e) and 4618.4).
	The District has no analog to 40 CFR 270.5 in its regulations; however, in its Memorandum of Agreement (MOA) with EPA, the District has agreed to comply with the 40 CFR 270.5 requirements.
40 CFR part 124—Permit Procedures, as of July 1, 1998	D.C. Code §§ 6-701(a), 6-703, 6-705(a), and 6-709; 20 DCMR Chapter 47.
40 CFR part 273—Standards for Universal Waste Management, as of July 1, 1998	D.C. Code §§ 6-701(a) and 6-705(a); 20 DCMR Chapter 48 and § 5400.1.
	(More stringent provisions: 4800.2, 4801.1, 4801.2(c), 4801.3, 4801.6(e), 4801.8(c), 4802.6, 4802.7 and 4804.1(b)).
40 CFR part 279—Standards for the Management of Used Oil, as of July 1, 1998	D.C. Code §§ 6-701(a), 6-705(a), and 6-713; 20 DCMR Chapter 49 and § 5400.1.
	(More stringent provisions: 4900.5, 4900.6, 4900.7, 4900.9, 4900.15 Table 1, 4900.16(a)&(b), 4900.16(d)(1)-(3), 4900.16(e), 4901.3, 4901.5, 4901.7(a)(3), 4902.2(b), 4903.5, 4903.11(c)&(d), 4903.14(d), 4903.16 (introductory paragraph), 4904.2(c), 4904.3, 4904.12(c), 4905 and 4906.4(b)).
HSWA Cluster I
Sharing of Information With the Agency for Toxic Substances and Disease Registry (SI) (RCRA section 3019(b))	D.C. Code §§ 6-705(a), 6-731 et seq.
	In its MOA with EPA, the District has agreed to share exposure information with the Agency for Toxic Substances and Disease Registry.

H. Where Are the District's Revised Rules Different From the Federal Rules?

The District of Columbia's hazardous waste program contains several provisions that are more stringent than the Federal RCRA program. The more stringent provisions are being recognized as a part of the Federally-authorized program and are Federally-enforceable. The specific more stringent provisions are noted in the preceding chart and in the District's authorization application, and include, but are not limited to, the following:

1. The District subjects generators of between 100 kilograms and 1,000 kilograms of hazardous waste in a calendar month to full regulation rather than to the reduced requirements in the Federal regulations for this group of generators.

2. At 20 DCMR section 4300.9, the District's analog to 40 CFR 263.12, transporters storing waste at transfer facilities in the District for 10 days or less are subject to the District's requirements analogous to 40 CFR 264.14-264.17 and 40 CFR subparts C, D, and F, unlike the Federal program. These additional requirements make the District's program more stringent than the Federal program.

3. The District prohibits land disposal, incineration and underground injection of hazardous waste, and prohibits the burning, processing or incineration of hazardous waste, hazardous waste fuels, or mixtures of hazardous wastes and other materials in any type of incinerator, boiler, or industrial furnace. The Federal program does not include such prohibitions.

4. Unlike the Federal program, the District prohibits the burning of both on- and off-specification used oil in the District, and prohibits the use of used oil as a dust supressant.

A number of the District's regulations are not being authorized by today's actions. Such provisions include, but are not limited to, the following:

1. The District has regulations defining how program information is to be shared with the public, but is not seeking authorization at this time for the Availability of Information requirements relative to RCRA section 3006(f).

2. The District is not seeking authority for the Federal corrective action program. EPA will continue to administer this part of the program. The District is planning to apply for the corrective action program in a subsequent authorization revision application.

3. The District has incorporated the Federal hazardous waste export provisions at 40 CFR part 262, subparts E and H, into its regulations at 20 DCMR sections 4204 and 4207. However, the District is not seeking authorization for these provisions at this time. EPA will continue to implement those requirements as appropriate.

4. The District is adopting the universal waste requirements relative to the Federal program as of July 1, 1998 and 63 FR 71225 (Revision Checklist 176). The District also regulates mercury-containing lamps as a universal waste, but is not seeking authorization for this universal waste at this time because the District's requirements, while consistent with the Federal requirements, were developed before the promulgation of the Federal hazardous waste lamp rule (64 FR 36466, Revision Checklist 181). The District will make any necessary revisions to its lamp rule and authorization will be sought in a subsequent revision authorization package.

The District's regulations contain several requirements that go beyond the scope of the Federal program, and thus are not part of the program being authorized by today's action. EPA cannot enforce these requirements which are broader in scope, although compliance with these provisions is required by District law. Such provisions include, but are not limited to, the following:

1. The District does not have an analog to 40 CFR 261.4(a)(4) that excludes source, special nuclear, or by-product material as defined by the Atomic Energy Act of 1954 from the Federal definition of solid waste. This difference makes the District's universe of regulated hazardous waste larger than EPA's and, therefore, broader in scope.

2. Under Federal regulations, generators of 0-100 kilograms of hazardous waste are conditionally exempt from regulation. The District regulates all generators of hazardous waste, and its regulations do not provide any conditional exemption from regulatory requirements. In the District, generators of 0-100 kilograms of hazardous waste, or up to 1 kilogram of acute hazardous waste, are considered small quantity generators and may accumulate up to 600 kilograms of hazardous waste on site for up to 180 days. They are not conditionally exempt from regulation and are subject to the same regulatory requirements as Federal large quantity generators. Thus, the District's regulation is broader in scope than the Federal regulation, because there is no Federal analog to this regulatory approach.

3. 20 DCMR section 4200.16 requires that all generators obtain a permit under 20 DCMR section 4208. Such a permit must be renewed on a biennial basis. The generator must also pay a fee to obtain a permit. There are no such requirements in the Federal system.

4. Unlike the Federal system, all transporters holding a hazardous waste at a transfer facility in the District must obtain a Hazardous Waste Transfer Facility Permit pursuant to the requirements of 20 DCMR section 4303, including the payment of fees.

I. Who Handles Permits After the Authorization Takes Effect?

After authorization, the District of Columbia 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 we issued prior to the effective date of this authorization until the timing and process for effective transfer to the District are mutually agreed upon. Until such time as formal transfer of EPA permit responsibility to the District occurs and EPA terminates its permit, EPA and the District agree to coordinate the administration of permits in order to maintain consistency. EPA will not issue any more new permits or new portions of permits for the provisions listed in the chart in section G after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which the District of Columbia is not yet authorized.

J. How Does Today's Action Affect Indian Country (18 U.S.C. 115) in the District of Columbia?

The District of Columbia is not seeking authority to operate the program on Indian lands, since there are no Federally-recognized Indian lands in the District.

K. What Is Codification and Is EPA Codifying the District of Columbia's Hazardous Waste Program as Authorized in This Rule?

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

L. 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 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 does not have tribal implications within the meaning of Executive Order 13175 (65 FR 67249, November 6, 2000). It does not have substantial direct effects on tribal governments, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in Executive Order 13175. 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 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 will be effective November 9, 2001.

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: August 24, 2001.

Donald S. Welsh,

Regional Administrator, Region III.