Washington: Final Authorization of State Hazardous Waste Management Program Revisions

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Immediate final rule; authorization of State-initiated changes.

SUMMARY:

During a review of Washington's regulations, EPA identified a variety of State-initiated changes to Washington's hazardous waste program under the Resource Conservation and Recovery Act, as amended, (RCRA), for which the State had not previously sought authorization. We have reviewed Washington's changes to its program and have determined that these changes are minor and satisfy all requirements needed to qualify for final authorization, therefore we are authorizing the State-initiated changes through this immediate final action. EPA is publishing this rule to authorize the changes without a prior proposal because we believe this action is not controversial and do not expect comments that oppose it. Unless we receive written comments that oppose this authorization during the comment period, the decision to authorize Washington's changes to its hazardous waste program will take effect June 13, 2006. If we receive comments that oppose this action, EPA will publish a document in the Federal Register withdrawing this rule before it takes effect. EPA will then address public comments in a later final rule based on the proposed rule in today's Federal Register. If we receive comments that oppose only the authorization of a particular change to the State hazardous waste program, we will withdraw that part of today's rule. However, the authorization of program changes that are not opposed by any comments will become effective on the date specified above. A Federal Register withdrawal document will specify which part of the authorization will become effective and which part is being withdrawn. EPA may not provide further opportunity for comment. Any parties interested in commenting on this action must do so at this time. Today's document also makes corrections to the table included in the authorization Federal Register document for Washington published on October 12, 1999.

DATES:

This final authorization will become effective on June 13, 2006, unless EPA receives adverse written comments on or before May 15, 2006.

ADDRESSES:

Submit your comments, identified by EPA-R10-RCRA-2006-0087 by one of the following methods:

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

2. E-mail: kocourek.nina@epamail.epa.gov.

3. Mail: Nina Kocourek, U.S. EPA, Region 10, Office of Air, Waste and Toxics, 1200 Sixth Avenue, Mail Stop AWT-122, Seattle, Washington 98101.

4. Hand Delivery: At the previously-listed EPA Region 10 address. Such deliveries are only accepted during normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to EPA-R10-RCRA-2006-0087. EPA's policy is that all comments received will be included in the public file without change, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or 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 that 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 file 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 and any form of encryption, and shall 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/epahome/dockets.htm.

Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy during normal business hours at the U.S. Environmental Protection Agency (EPA), Region 10 Library, 1200 Sixth Avenue, Seattle WA 98101. This Docket Facility is open to the public from 9 to 11:30 a.m. and from 1 to 4 p.m. Monday through Friday, excluding legal holidays. The library telephone number is (206) 553-1289. Additionally, hard copies are available from the Washington Department of Ecology, 300 Desmond Drive, Lacey, WA 98503, contact, Patricia Hervieux at (360) 407-6756.

FOR FURTHER INFORMATION CONTACT:

Nina Kocourek, U.S. EPA, Region 10, Office of Air, Waste and Toxics, 1200 Sixth Avenue, Mail Stop AWT-122, Seattle, Washington 98101. Phone number: (206) 553-6502 or Patricia Hervieux, Washington Department of Ecology, 300 Desmond Drive, Lacey, WA 98503; phone number: (360) 407-6756, e-mail: pher461@ecy.wa.gov.

SUPPLEMENTARY INFORMATION:

I. Authorization of State-Initiated Changes to Washington's Hazardous Waste Program

A. Why Are Revisions to State Programs Necessary?

States that have received final authorization from EPA pursuant to section 3006(b) of RCRA, 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 is revised States must revise their programs and apply to EPA to authorize the revisions. Authorization of revisions to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other revisions occur, including, among others, revisions to the State program initiated by the State. Most commonly, States revise their programs because of revisions to EPA's regulations in Title 40 of the 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 Washington's revisions to its authorized program meet all of the statutory and regulatory requirements established by RCRA. Therefore, we revise Washington's authorized hazardous waste program to include the changes identified by EPA and described in section G, below.

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 HSWA requirements and prohibitions for which Washington has not been authorized, including issuing HSWA 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 Washington subject to RCRA will continue to be subject to the authorized State requirements and to the federal HSWA provisions for which the State is not authorized in order to comply with RCRA. Washington has enforcement responsibilities under its state hazardous waste program for violations of its program, but EPA continues to have independent enforcement authority under RCRA sections 3007, 3008, 3013, and 7003, which authority includes, among others, authority to:

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

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

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

EPA did not publish a proposal before today's rule because we view this as a routine program change and do not expect any adverse written comments. 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 Washington's program changes.

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

If the Agency does receive adverse written comment, it will publish a notice withdrawing this immediate final rule before its effective date. EPA then will address the comment in a later final rule based on the companion document appearing in the Proposed Rules section of today's Federal Register. If we receive comments that oppose only the authorization of a particular change to the State hazardous waste program, we will withdraw that part of today's rule. However, the authorization of program changes that are not opposed by any comments will become effective on June 13, 2006. A Federal Register withdrawal document will specify which part of the authorization will become effective and which part is being withdrawn. You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time.

F. What Has Washington Previously Been Authorized for?

Washington initially received final authorization on January 30, 1986, effective January 31, 1986 (51 FR 3782), to implement the RCRA hazardous waste management program. EPA granted authorization for changes to Washington's program on September 22, 1987, effective on November 23, 1987 (52 FR 35556); August 17, 1990, effective October 16, 1990 (55 FR 33695); November 4, 1994, effective November 4, 1994 (59 FR 55322); February 29, 1996, effective April 29, 1996 (61 FR 7736); September 22, 1998, effective October 22, 1998 (63 FR 50531); October 12, 1999, effective January 11, 2000 (64 FR 55142); and on April 11, 2002 effective April 11, 2002 (67 FR 17636).

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

During a review of Washington's regulations, we identified a variety of changes that Washington had made to provisions we had previously authorized. EPA brought these changes to the attention of Washington and confirmed with the State that the State-initiated changes generally correct typographical errors and printing errors, clarify and make the State's regulations more internally consistent, or bring the State regulations closer to the Federal language. The State's authorized hazardous waste program, as amended by these provisions, remains equivalent to, consistent with, and no less stringent than the Federal RCRA program.

We are revising Washington's authorized hazardous waste program to include the changes listed in the table below. The provisions listed in the table are from the Washington Annotated Code (WAC) and are analogous to the RCRA regulations, as indicated in the table. The RCRA regulations are those as published in 40 CFR parts 124, 260 through 266, 268, 270, 273 and 270, as of July 1, 1999, unless otherwise noted. All of the referenced analogous state authorities were legally adopted and effective as of June 10, 2000. Note that a number of the State provisions have no direct Federal analogs but are related to particular paragraphs, sections, or parts of the Federal hazardous waste requirements in the 40 CFR parts 264, 265 and 270. For example, the Federal code has no specific definition for “acute hazardous waste” in 40 CFR 260.10, but a description of and the requirements for “acute hazardous waste” can be found in 40 CFR 261.30(d). Therefore, in the “Analogous Federal Requirement” column, the Federal analog to the State's definition of “acute hazardous waste” in WAC 173-303-040 is listed as “No Federal analog; related to 261.30(d)). Similarly, while the Federal code has no specific definition for “Independent qualified registered professional engineer”, the term is used in 40 CFR parts 264, 265 and 270.

In addition to the changes authorized above, EPA is also approving changes made by Washington to State procedural provisions. EPA reviewed these changes in order to determine the adequacy of State procedures to operate the hazardous waste program. State procedural provisions are not authorized by EPA and do not supplant Federal procedures. With respect to procedural requirements, EPA relies on Federal procedures rather than the State analogs to these provisions. Washington's procedures to implement the State's hazardous waste management program requirements continue to operate independently under State law. The approved changes to the following State procedures are included as part of this action for informational purposes only: WAC Chapter 173-03, Public Records, § 173-03-060(1)-(5), effective as of August 31, 1998, and Chapter 173-303, Dangerous Waste Regulations, §§ 173-303-806(13), 173-303-840(2)(d)(i)&(ii), and 173-303-910(1)(e), effective as of June 10, 2000.

H. Who Handles Permits After This Authorization Takes Effect?

After authorization, Washington 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 that were issued prior to the effective date of this authorization. EPA will not issue any new permits or new portions of permits for the provisions listed in section G after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which Washington is not yet authorized.

I. How Does Today's Action Affect Indian Country (18 U.S.C. 1151) in Washington?

EPA's decision to authorize the Washington hazardous waste program does not include any land that is, or becomes after the date of this authorization, “Indian Country,” as defined in 18 U.S.C. 1151, with the exception of the non-trust lands within the exterior boundaries of the Puyallup Indian Reservation (also referred to as the “1873 Survey “Area” or “Survey “Area”) located in Tacoma, Washington. EPA retains jurisdiction over “Indian Country.” Effective October 22, 1998 (63 FR 50531, September 22, 1998) Washington's state program was authorized to implement the state authorized program on the non-trust lands within the 1873 Survey Area of the Puyallup Indian Reservation. The authorization did not extend to trust lands within the reservation. EPA retains its authority to implement RCRA on trust lands and over Indians and Indian activities within the 1873 Survey Area.

J. What Is Codification and Is EPA Codifying Washington'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. EPA does this by referencing the authorized State rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272, subpart WW, for this authorization of Washington's program revisions until a later date.

II. Corrections

A. Corrections to October 12, 1999 (64 FR 55142) Authorization Document

There were omissions and typographical errors in the table published as part of the October 12, 1999 (64 FR 55142) authorization notice for Washington. The affected entries and the corrected entries are shown in the table below.

III. Statutory and Executive Order Reviews

This rule authorizes revisions to the State of Washington's authorized hazardous waste program pursuant to section 3006 of RCRA and imposes no requirements other than those currently imposed by State law. This rule complies with applicable executive orders and statutory provisions as follows.

1. Executive Order 12866

Under Executive Order 12866 (58 FR 51735, October 4, 1993), the Agency must determine whether the regulatory action is “significant,” and therefore subject to OMB review and the requirements of the Executive Order. The Order defines “significant regulatory action” as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more, or adversely affect in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities; (2) create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. It has been determined that this final rule is not a “significant regulatory action” under the terms of Executive Order 12866 and is therefore not subject to OMB review.

2. Paperwork Reduction Act

This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501, et seq., because this final rule does not establish or modify any information or recordkeeping requirements for the regulated community and is only authorizing the pre-existing requirements under State law and imposes no additional requirements beyond those imposed by State law.

Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.

3. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act (SBREFA), 5 U.S.C. 601 et seq., generally requires Federal agencies to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For purposes of assessing the impacts of today's rule on small entities, small entity is defined as: (1) A small business defined by the Small Business Administrations' Size Regulations at 13 CFR 121.201; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. EPA has determined that this action will not have a significant economic impact on small entities because the final rule will only have the effect of authorizing pre-existing requirements under State law and imposes no additional requirements beyond those imposed by State law. After considering the economic impacts of today's rule, I certify that this action will not have a significant economic impact on a substantial number of small entities.

4. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub. L. 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 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 the 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. Today's rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local or tribal governments or the private sector. It imposes no new enforceable duty on any State, local or tribal governments or the private sector. Similarly, EPA has also determined that this rule contains no regulatory requirements that might significantly or uniquely affect small government entities. Thus, today's rule is not subject to the requirements of section 203 of the UMRA.

5. Executive Order 13132: Federalism

Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that 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 various levels of government.” This rule does not have federalism implications. It 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 various levels of government, as specified in Executive Order 13132. This rule addresses the authorization of preexisting State rules. Thus, Executive Order 13132 does not apply to this rule.

6. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (59 FR 22951, November 9, 2000), requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” This rule does not have tribal implications, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this rule.

7. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

Executive Order 13045 applies to any rule that: (1) Is determined to be “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 Executive Order 13045 because it is not economically significant as defined in Executive Order 12866 and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children.

8. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

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” as defined under Executive Order 12866.

9. 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) 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 bodies. The NTTAA directs EPA to provide Congress, through the OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards. This rule does not involve “technical standards” as defined by the NTTAA. Therefore, EPA is not considering the use of any voluntary consensus standards.

10. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low Income Populations

To the greatest extent practicable and permitted by law, and consistent with the principles set forth in the report on the National Performance Review, each Federal agency must make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health and environmental effects of its programs, policies, and activities on minority populations and low-income populations in the United States and its territories and possessions, the District of Columbia, the Commonwealth of Puerto Rico, and the Commonwealth of the Mariana Islands. Because this rule addresses authorizing pre-existing State rules and there are no anticipated significant adverse human health or environmental effects, the rule is not subject to Executive Order 12898.

11. Congressional Review Act

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 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 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 rule, although not a major rule, will be effective on the June 13, 2006.

List of Subjects in 40 CFR Part 271

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

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