Massachusetts: Final Authorization of State Hazardous Waste Management Program Revision

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?

1. Background

On January 8, 1998, Massachusetts submitted a final program revision application relating to the Satellite Accumulation Rule, UWR and TC Rule seeking authorization of its program revision in accordance with 40 CFR 271.21. On Septemer 30, 1998, the EPA granted authorization to the Massachusetts hazardous waste management program for the Satellite Accumulation Rule only and deferred a decision relative to the TC and UWR portions of the application due to the unresolved CRT issues (63 FR 52180).

2. The Proposed Rule

On February 24, 1999 EPA published in the Federal Register a proposed rule announcing its plan to authorize Massachusetts for the TC Rule and the UWR excluding those provisions which relate to CRTs (64 FR 9110). Also, at that time, the agency proposed to disapprove a provision of the Massachusetts hazardous waste regulations at 310 CMR 30.104(21) relating to CRTs. A forty-five (45) day extension to the thirty (30) day comment period of this proposal was requested by Massachuetts and granted in the Federal Register on March 24, 1999 (64 FR 14201) thereby extending the public comment period from March 26, 1999 to May 10, 1999.

3. Recent Developments

Since the publication of the proposed disapproval, the EPA and Massachusetts Department of Environmental Protection

(``DEP'') have discussed a new regulatory approach with respect to CRTs. The DEP currently is seeking input from its Hazardous Waste Advisory Committee regarding this new approach.

4. Comments to the Proposed Rule

EPA has received comments on the proposed rule Federal Register document from various sources, all of which relate solely to CRTs. The EPA is not responding to these comments at this time. Rather, if the DEP revises its regulations to adopt the new approach, the EPA plans to publish a new proposed rule in the Federal Register prior to any final approval, inviting public comment on the new approach. If, on the other hand, the EPA and DEP do not reach final agreement on the CRT issue, the EPA will publish a future final Federal Register notice setting out its final decision on the current DEP regulations and will respond to all comments that have been filed at that time. No final action regarding the CRT issue is being taken by the EPA at this time.

5. The Decision

Today's action finalizes the Agency's approval for final authorization of the Commonwealth of Massachusetts for program revisions which cover the TC Rule and UWR except as they relate to CRTs. We conclude that Massachusetts' application to revise its authorized program, excluding provisions which relate to the regulation of CRTs, meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant the Commonwealth of Massachusetts final authorization to operate its hazardous waste program with the changes described in the authorization application except for those that relate to CRTs. Massachusetts has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders (except in Indian country) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of 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 continue to implement those requirements and prohibitions in Massachusetts for which the state is not authorized, including issuing permits for those provisions until the State is granted authorization to do so.

6. Technical Corrections

Additionally, EPA is making a technical correction to a provision referenced in its immediate final rule published in the Federal Register on September 30, 1998 (effective November 30, 1998) which authorized the State for the Satellite Accumulation Rule (63 FR 52180). This technical correction is described in section G below.

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

The effect of this decision is that a facility in Massachusetts subject to RCRA will now have to comply with the newly authorized State requirements instead of the equivalent federal requirements in order to comply with RCRA. The Commonwealth of 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. This action does not impose additional requirements on the regulated community because the state regulations for which Massachusetts is being authorized by today's action have already been in effect under state law, and are not changed by today's action.

D. What Has Massachusetts Previously Been Authorized For?

Massachusetts initially received Final Authorization on January 24, 1985, effective February 7, 1985 (50 FR 3344) to implement its base hazardous waste management program. We granted authorization for changes to their program regarding satellite accumulation on September 30, 1998, effective November 30, 1998 (63 FR 52180).

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

On January 8, 1998 the Commonwealth of Massachusetts submitted a final program revision application seeking authorization of their changes in accordance with 40 CFR 271.21. We now make a final decision that Massachusetts' hazardous waste program revision satisfies all of the requirements necessary to qualify for Final authorization. Therefore, we grant the Commonwealth of Massachusetts final authorization for the following program changes which cover the UWR and TC Rule except as they relate to CRTs: The TC Rule was promulgated on March 29, 1990 (55 FR 11798) under the authority of the Hazardous and Solid Waste Amendments (HSWA) to RCRA and refines and expands EPA's Extraction Procedure (EP) Toxicity Characteristics Rule promulgated on May 19, 1980 (49 FR 33084). On May 11, 1995 (60 FR 25492) EPA promulgated the UWR which contains new streamlined hazardous waste management regulations governing the collection and management of certain widely generated wastes (batteries, pesticides and thermostats) known as universal wastes. In addition, the regulation contains a provision for a petition process through which additional wastes can be added. The specific RCRA program revisions for which EPA authorizes the Commonwealth of Massachusetts are listed in the table below. The Federal requirements in the table are identified by their checklist numbers and rule descriptions. The following abbreviations are used in defining analogous state authority: MGL = Massachusetts General Laws; CMR = Code of Massachusetts Regulations.

-------------------------------------------------------------------------------------------------------------------------------------------------------- Description of Federal Requirement and Checklist Reference Number Analogous State Authority 1 -------------------------------------------------------------------------------------------------------------------------------------------------------- Consolidated Checklist for the Toxicity Characteristic Revisions as of June MGL c 21C Secs. 4 and 6, enacted 11/9/79; 310 CMR 30.099(25) adopted 11/9/ 30, 1994 90, 30.104(13) adopted 10/17/97, 30.105 adopted 11/17/95, 30.125B adopted (74) Toxicity Characteristic Revisions: 55 FR 11798, 3/29/90 as amended 11/9/90, 30.130 adopted 11/9/90, and 30.155B adopted 11/9/90 and amended on 6/29/90 55 FR 26986; 10/17/97. (80) Hydrocarbon Recovery Operations: 55 FR 40834, 10/5/90 as amended on (The Massachusetts regulatory citations above are approved except as they 2/1/91, 56 FR 3978 as amended on 4/2/91, 56 FR 13406, optional rule (MA relate to CRTs.) is not seeking authorization for this provision); (84) Chlorofluoro Refrigerants: 56 FR 5910, 2/13/91, optional rule, (MA is not seeking authorization for this provision); (108) Toxicity Characteristics Revision; Technical Correction: 57 FR 30657, 7/10/92; (117B) Toxicity Characteristic Revision: 57 FR 23062, 6/1/92, (correction not applicable; MA is not seeking authorization for this provision); (119) Toxicity Characteristic Revision, TCLP: 57 FR 55114, 11/24/92, optional rule (MA is not seeking authorization for this provision). Universal Waste Rule Checklists 142 A-E MGL c 21C Secs. 4 and 6, enacted 11/9/79 and MGL c 21E Sec. 6, enacted (142A) Universal Waste Rule: General Provisions, 60 FR 25492-25551, 5/11/ July 20, 1992; 310 CMR 30.010, 30.130, 30.143(2), 30.340(1), 30.351(2)(b)6 95; and 30.351(3), 30.353(2)(b)5 and 30.353(3), 30.392(8), 30.393(6), (142B) Universal Waste Rule: Specific Provisions for Batteries, 60 FR 30.501(2)(e), 30.601(2)(e), 30.801(14), and 30.1000 adopted on 10/17/97. 25492-25551, 5/11/95; (142C) Universal Waste Rule: Specific Provisions for Pesticides, 60 FR 25492-25551, 5/11/95; (142D) Universal Waste Rule: Specific Provisions for Thermostats, 60 FR 25492-25551, 5/11/95; (143E) Universal Waste Rule: Petition Provisions to Add a New Universal Waste, 60 FR 25492 25492-25551, 5/11/95; -------------------------------------------------------------------------------------------------------------------------------------------------------- \1\ The Commonwealth of Massachusetts' provisions are from the Code of Massachusetts Regulations, 310 CMR 30.000, Hazardous Waste Regulations, adopted October 17, 1997.

The specific State regulation not covered in this action is 310 CMR 30.104(21) which falls under 310 CMR 30.104, ``Wastes Not Subject 310 CMR 30.000'' and identifies intact CRTs as a waste not subject to Massachusetts' hazardous waste regulations. EPA is limiting its approval of the State's TC Rule regulations to all wastes except CRTs.

F. Where Are the Revised State Rules Different From the Federal Rules?

Under the provisions of the State's UWR program, there are several differences related to the way in which universal wastes are regulated. First, as allowed by EPA's UWR (40 CFR part 273, subpart G), the State program includes additional waste streams; i.e., mercury-containing devices and mercury containing lamps are included as universal wastes (310 CMR 30.1081). The inclusion of these additional wastes, however, is viewed as equivalent to the federal rule rather than broader in scope (or less stringent) as the federal rule allows a petition process by which additional wastes may be added. Massachusetts has adopted a rulemaking process rather than a petition process to include additional wastes under its universal waste program, a provision the EPA also considers equivalent. Related to the coverage of batteries under the UWR, Massachusetts, as required by The Mercury-Containing and Rechargeable Battery Management Act of May 13, 1996 (``The Battery Act''), (Public Law 104- 142), has implemented state requirements governing the collection, storage and transportation of batteries which are identical to EPA's UWR requirements. There are differences from the federal requirements regarding how Massachusetts regulates batteries, but the EPA has determined that they do not concern the ``collection, storage or transportation'' of batteries, where the State is required to be identical. For example, the EPA has determined that the State's requirement regarding site closure (described below) is not within what is preempted by the Battery Act. The differences, and the reasons why the EPA has determined that there is no preemption, are set forth in the EPA's Administrative Record, which is available for public review. We consider the following State requirements to be more stringent than the Federal requirements: • 310 CMR 30.155B(10) requires quality assurance/quality control procedures (QA/QC) in the State's TCLP test which are more stringent than the analogous federal procedures as the State has not adopted EPA's changes to QA/QC procedures under the TC Rule (40 CFR part 261, appendix II, 8.2, 8.4 and 8.5). • 310 CMR 30.1033(4), 30.1043(5) and 30.1061 cover state closure requirements which specifies that handlers who cease operations shall comply with state closure requirements at 310 CMR 30.689, which require removal of waste and site decontamination. This provision covers all of the State's universal wastes (including batteries). • 310 CMR 30.1043(a), (b) require large quantity handlers of universal waste (other than batteries) to notify the State of their universal waste activity even though they may have previously provided notification for hazardous waste activity; the federal requirement does not require such re-notification. • 310 CMR 30.1033(3) requires small quantity generators to submit a change of status request in anticipation of accumulating 5,000 kg or more of universal waste (other than batteries); there is no such federal requirement. • 310 CMR 30.1010 does not allow transfer facilities (except for batteries) as defined in 40 CFR 273.6. • 310 CMR 30.1034(3)(b)(7) requires that ampules, once removed from thermostats, be fully regulated as a hazardous waste. Under the federal UWR program, ampules removed from thermostats are subject to the less restrictive UWR management standards

unless they are leaking and exhibit a characteristic of hazardous waste, in which case they must be managed in accordance with EPA's hazardous waste requirements (40 CFR 273.13(c)(3) and 273.33(c)(3)). These requirements are part of Massachusetts' authorized program and are federally enforceable. We also consider the following State requirements go beyond the scope of the Federal program: • 310 CMR 30.1034(5)(c)(2) and 30.1044(5) requires dismantling/crushing operations of small and large quantity generators who recycle crushed fluorescent bulbs to obtain a State recycling permit. There is no federal permitting requirement for recycling activities per se, although storage prior to recycling could trigger the federal part B permit requirements of 40 CFR part 264. • 310 CMR 30.392(8) and 30.393(6). The State UWR program also has a provision regarding the household hazardous waste collection events in which universal wastes may be collected. The regulation of this event is a broader-in-scope provision as there is no analogous federal component. However, the EPA also has determined that these State provisions (insofar as they cover universal wastes) do not result in the State program being non-equivalent to the federal program under RCRA or non-identical under The Battery Act. Broader-in-scope requirements are not part of the authorized program and EPA does not enforce them. Although sources must comply with these requirements in accordance with state law, they are not federal RCRA requirements.

G. What Technical Corrections Are Addressed by Today's Action?

On September 30, 1998, EPA published its decision to authorize Massachusetts for revisions that relate to EPA's Satellite Rule (see 63 FR 52180). In the regulatory crosswalk table of that notice, EPA cited an incorrect date of 12/29/84 on which EPA promulgated its Satellite Rule at 49 FR 49568. Note, this document corrects the date cited in the regulatory crosswalk on which EPA's Satellite Rule was promulgated to read 12/20/84.

H. Who Handles Permits After This Authorization Takes Effect?

Massachusetts 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. EPA will continue to implement and issue permits for HSWA requirements for which Massachusetts is not yet authorized.

I. How Does Today's Action Affect Indian Country (18 U.S.C. Section 115) In Massachusetts?

Massachusetts is not authorized to carry out its hazardous waste program in Indian country within the State. Therefore, this action has no effect on Indian country. EPA will continue to implement and administer the RCRA program in these lands.

J. What Is Codification and Is EPA Codifying Massachusetts' 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 are today authorizing, but not codifying, the enumerated revisions to the Massachusetts program. We reserve the amendment of 40 CFR part 272, subpart W for the codification of Massachusetts' program until a later date.

K. Regulatory Analysis and Notices

Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with ``Federal mandates'' that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted. Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements. EPA has determined that section 202 and 205 requirements do not apply to today's action because this rule does not contain a Federal mandate that may result in annual expenditures of $100 million or more for State, local, and/or tribal governments in the aggregate, or the private sector. Costs to State, local and/or tribal governments already exist under the Massachusetts' program, and today's action does not impose any additional obligations on regulated entities. In fact, EPA's approval of State programs generally may reduce, not increase, compliance costs for the private sector. Further, as it applies to the State, this action does not impose a Federal intergovernmental mandate because UMRA does not include duties arising from participation in a voluntary federal program. The requirements of section 203 of UMRA also do not apply to today's action because this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Although small governments may be hazardous waste generators, transporters, or own and/or operate TSDFs, they are already subject to the regulatory requirements under the existing State laws that are being authorized by EPA, and, thus, are not subject to any additional significant or unique requirements by virtue of this program approval.

Certification Under the Regulatory Flexibility Act

Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996), whenever an agency is required to publish a notice of rulemaking for any proposed or final rule, it must prepare and make available for public comment a regulatory flexibility analysis that describes the effect of the rule on small entities (i.e., small businesses, small organizations, and small governmental jurisdictions). This analysis is

unnecessary, however, if the agency's administrator certifies that the rule will not have a significant economic impact on a substantial number of small entities. The EPA has determined that this authorization will not have a significant economic impact on a substantial number of small entities. Such small entities which are hazardous waste generators, transporters, or which own and/or operate TSDFs are already subject to the regulatory requirements under the existing State laws that are now being authorized by EPA. The EPA's authorization does not impose any significant additional burdens on these small entities. This is because EPA's authorization would simply result in an administrative change, rather than a change in the substantive requirements imposed on these small entities. Pursuant to the provision at 5 U.S.C. 605(b), the Agency hereby certifies that this authorization will not have a significant economic impact on a substantial number of small entities. This authorization approves regulatory requirements under existing State law to which small entities are already subject. It does not impose any new burdens on small entities. This rule, therefore, does not require a regulatory flexibility analysis.

Submission to Congress and the Comptroller General

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. The EPA will submit a report containing this rule 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 of the rule in today's Federal Register. This rule is not a ``major rule'' as defined by 5 U.S.C. 804(2).

Compliance With Executive Order 12866

The Office of Management and Budget has exempted this rule from the requirements of Executive Order 12866.

Compliance With Executive Order 12875

Under Executive Order 12875, EPA may not issue a regulation that is not required by statute and that creates a mandate upon a State, local or tribal government, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by those governments, or EPA consults with those governments. If EPA complies with consulting, Executive Order 12875 requires EPA to provide to the Office of Management and Budget a description of the extent of EPA's prior consultation with representatives of affected State, local and tribal governments, the nature of their concerns, copies of any written communications from the governments, and a statement supporting the need to issue the regulation. In addition, Executive Order 12875 requires EPA to develop an effective process permitting elected officials and other representatives of State, local and tribal governments ``to provide meaningful and timely input in the development of regulatory proposals containing significant unfunded mandates.'' This rule does not create a mandate on State, local or tribal governments. The rule does not impose any enforceable duties on these entities. The State administers its hazardous waste program voluntarily, and any duties on other State, local or tribal governmental entities arise from that program, not from this action. Accordingly, the requirements of Executive Order 12875 do not apply to this rule. On August 4, 1999, President Clinton issued a new executive order on federalism, Executive Order 13132 (64 FR 43255, August 10, 1999) which will take effect on November 2, 1999. In the interim, the current Executive Order 12612 (52 FR 41685, October 30, 1987) on federalism still applies. This rule will not have substantial direct effect on 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 12612 because this rule affects only one State. In addition, this rule simply approves the State's proposal to be authorized for updated requirements in the hazardous waste program that the state has voluntarily chosen to operate. Finally, as a result of this action, for provisions enacted pursuant to the Hazardous and Solid Waste Amendments of 1984 (HSWA), those newly authorized provisions of the State's program now apply in Massachusetts in lieu of the equivalent Federal program provisions. Affected parties are subject only to those authorized state program provisions, as opposed to being subject both to the Federal and State program provisions.

Compliance With Executive Order 13045

Executive Order 13045, ``Protection of Children from Environmental Health Risks and Safety Risks,'' applies to any rule that: (1) The Office of Management and Budget determines is ``economically significant'' as defined under Executive Order 12866, and (2) Concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children and explain why the planned regulation is preferable to other potentially effective and reasonably feasible alternatives considered by the Agency. This rule is not subject to E.O. 13045 because it is not an economically significant rule as defined by E.O. 12866, and because it does not concern environmental health or safety risks that the EPA has reason to believe may have a disproportionate effect on children. Rather, this rule simply applies previously established health and safety requirements with respect to the Massachusetts state RCRA program.

Compliance with Executive Order 13084

Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies with consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments ``to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.'' This rule is not subject to E.O. 13084 because it does not significantly or uniquely affect the communities of Indian tribal governments.

Massachusetts is not authorized to implement the RCRA hazardous waste program in Indian country. This action has no effect on the hazardous waste program that EPA implements in the Indian country within the State.

Paperwork Reduction Act

Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., Federal agencies must consider the paperwork burden imposed by any information request contained in a proposed rule or a final rule. This rule will not impose any non-federal information requirements upon the regulated community.

National Technology Transfer and Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (``NTTAA''), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This action does not involve imposing federal technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.

List of Subjects in 40 CFR Part 271

Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Incorporation by reference, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Water pollution control, Water supply.

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: September 29, 1999. John P. DeVillars, Regional Administrator, Region I. [FR Doc. 99-26332 Filed 10-8-99; 8:45 am] BILLING CODE 6560-50-P