Maryland: Final Authorization of State Hazardous Waste Management Program Revisions

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Immediate final rule.

SUMMARY:

The State of Maryland (State) 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 State's changes through this immediate final action. EPA is publishing this rule to authorize the changes without a prior proposal because we view this as a routine program change 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 Maryland's changes to its hazardous waste program will take effect as provided below. If we get comments that oppose this action, or portions thereof, we will publish a document in the Federal Register withdrawing this rule, or portions thereof, 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 July 31, 2001, unless EPA receives adverse written comment by July 2, 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 Carol Johnson, Mailcode 3WC21, RCRA State Programs Branch, U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA 19103-2029, Phone number: (215) 814-3378. We must receive your comments by July 2, 2001. You can view and copy Maryland's application from 8:30 a.m. to 4:30 p.m., Monday through Friday at the following addresses: Maryland Department of the Environment, Waste Management Administration, Hazardous Waste Program, 2500 Broening Highway, Baltimore, Maryland 21224, Phone number (410) 631-3345; and EPA Region III, Library, 2nd Floor, 1650 Arch Street, Philadelphia, PA 19103-2029, Phone number: (215) 814-5254.

FOR FURTHER INFORMATION CONTACT:

Carol Johnson, Mailcode 3WC21, RCRA State Programs Branch, U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA 19103-2029, Phone number: (215) 814-3378.

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?

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

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

The effect of this decision is that a facility in Maryland subject to RCRA will have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. Maryland has enforcement responsibilities under its state hazardous waste program for violations of such program, but EPA retains 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 State has taken its own actions.

This action does not impose additional requirements on the regulated community because the regulations for which Maryland 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 State 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 State'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 EPA receives comments that oppose only the authorization of a particular change to the State 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 Maryland Previously Been Authorized for?

Title 7, Subtitle 2 of the Health-Environmental Article of the Annotated Code of Maryland, as amended through 1984, authorized the Department of Health and Mental Hygiene (DHMH) to “adopt rules and regulations to carry out the provisions of this subtitle” and to “administer and enforce this subtitle and the rules, regulations, and orders adopted or issued under this subtitle.” The DHMH promulgated regulations to implement Subtitle 2 in Chapters 10.51.01 through 10.51.07 of the Code of Maryland Regulations. The State received Final authorization from EPA to implement its base hazardous waste program effective February 11, 1985 (50 FR 3511; January 25, 1985).

The statutory provisions concerning hazardous waste management were shifted without renumbering to the newly created Environment Article of the Annotated Code of Maryland in 1987. At that time, the responsibilities for adopting rules and regulations, and for administering and enforcing Subtitle 2, were transferred to the newly created Maryland Department of the Environment (MDE). Since Maryland's base program authorization, the State has made numerous changes to its regulations. Most notably, in 1989 the regulations were recodified in Chapters 26.13.01 through 26.13.10 of the Code of Maryland Regulations with conforming changes to internal references and some renumbering of provisions in Chapters 26.13.02 and 26.13.05. MDE's latest regulatory revisions took effect on October 16, 2000.

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

On December 21, 2000, Maryland 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 State to develop the authorization package. Therefore, EPA's comments relative to the State's legal authority to carry out aspects of the Federal program for which the State is seeking authorization, the scope and coverage of activities regulated, and the State's procedures, including the criteria for permit reviews, public participation and enforcement capabilities, were addressed before the submission of the final application by the State. Maryland also solicited public comments on its proposed regulations before they were adopted.

Maryland's program revision application includes statutory and regulatory changes to the State's authorized hazardous waste program, including the adoption of interim status regulations, the adoption of changes to the Federal hazardous waste regulations addressed by selected Revision Checklists listed in the following table, and the adoption of State-initiated changes. The State's statutory references are to the Environment Article, Title 7, Subtitle 2 of the Annotated Code of Maryland (1996 Repl. Vol., 1999 Cumul. Supp.). The regulatory references are to Title 26, Subtitle 13 of the Code of Maryland Regulations (COMAR), Chapters 01 through 07, and Chapter 10, as amended effective October 16, 2000.

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

1. Program Revision Changes

2. State-Initiated Changes

Maryland's program revision application includes State-initiated changes that are not directly related to any of the Revision Checklists in the previous table. All the State-initiated changes are either (1) related to the adoption of a provision at 26.13.01.05 that makes conforming and clarification changes to the State's adoption by reference of Federal regulations and statutes, (2) related to general renumbering with conforming changes that do not impact equivalency, or (3) related to the extension of the maximum duration of a permit from three to five years. The State-initiated changes include the following provisions of the State's program: COMAR 26.13.01.05B, 26.13.01.05C, 26.13.07.02E, 26.13.07.02-1 through 26.13.07.02-10, and 26.13.07.06A.

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

EPA considers several Maryland requirements to be more stringent than the Federal requirements. These requirements are part of the State's authorized program and are Federally enforceable. The specific more stringent provisions are noted in the above table and in Maryland's authorization application and include, but are not limited to, the following:

1. Unlike the Federal program, Maryland does not have reduced requirements for generators who generate 100 kg to 1000 kg of hazardous waste in a calendar month. In addition, the State has more stringent requirements for generators using tanks for accumulation.

2. Maryland subjects transporters of recyclable materials utilized for precious metal recovery to full regulation as transporters under COMAR 26.13.04.

3. Maryland does not allow the financial test or corporate guarantee in 40 CFR 264.143(f), 264.145(f), 265.143(e), or 265.145(e) to be used to establish financial assurance for closure or post-closure care.

4. Maryland does not allow materials contaminated with a waste identified solely on the basis of ignitability to be used for road treatment or dust suppression unlike the Federal program.

5. Maryland has a complete ban on the disposal of bulk or non-containerized waste containing free liquids in landfills.

6. Maryland prohibits underground injection of hazardous waste at COMAR 26.13.05.19 and 26.13.06.27.

7. Maryland provides for two classifications of permit modifications rather than the three categories in the Federal regulations. For similar levels of permit modifications, the State requires a higher degree of public involvement and agency approval.

A number of Maryland's regulations are not being authorized by today's actions. A full description of the State's provisions that MDE is not being authorized for can be found in the State's application. Some of these provisions include, but are not limited to, the following:

1. Maryland has adopted rules addressing the wood preserving listings (F032, F034, and F035) at COMAR 26.13.02.04A(9), .16A, .16C, .23, and .24, as well as the requirements for drip pads at COMAR 26.13.01.03B(16-1); 26.13.03.05E(1)(b)(iii) & .05E(1)(l); 26.13.05.10A(5) & .17-1 through 17-4; 26.13.06.26; and 26.13.07.02-11. However, Maryland is not seeking authorization at this time for these regulations.

2. Maryland has adopted rules addressing the dioxin listings (F020, F021, F022, F023, F026, F027, and F028) at COMAR 26.13.02.05E(6)(a), .15E(1), .16A, .19, .23, and .24, as well as special requirements for facilities handling these wastes at COMAR 26.13.05.09H(5), .11K, .12J, .13N, .14P & .16F(1)(b); COMAR 26.13.06.01A(6), .23C & .24B(1); and COMAR 26.13.07.02-4B(17), .02-5B(10), .02-7B(7) & .02-8B(8). Again, Maryland is not seeking authorization at this time for these regulations.

Maryland'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 Maryland law. Such provisions include, but are not limited to the following:

1. Maryland has chosen to specifically list as hazardous waste materials that are not listed in the Federal regulations. These wastes are identified with the following waste codes: K067, K068, K122, K133, K134, K991, K992, K993, K994, K995, K996, K997, K998, K999, M001, MT01, MX01, MD01, and MD02.

2. Maryland does not have an analog to the Federal provision at 40 CFR 261.6(a)(3)(vii) which exempts from regulation coke and coal tar waste (K087) from the iron and steel industries when it is recycled.

3. The State operates a certification program for hazardous waste haulers, drivers domiciled in Maryland, and vehicles.

I. Who Handles Permits After the Authorization Takes Effect?

After authorization, Maryland will issue permits covering 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 State are mutually agreed upon. Until such time as formal transfer of EPA permit responsibility to the State occurs and EPA terminates its permit, EPA and the State agree to coordinate the administration of permits in order to maintain consistency. We will not issue any more new permits or new portions of permits for the provisions listed in the Chart above after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which Maryland is not yet authorized.

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

Maryland is not seeking authority to operate the program on Indian lands, since there are no Federally-recognized Indian Lands in the State.

K. What Is Codification and Is EPA Codifying Maryland'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 272, subpart V, for this authorization of Maryland'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), and, 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 also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). 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.

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 F.R. 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 F.R. 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 July 31, 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).