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[Federal Register Volume 72, Number 51 (Friday, March 16, 2007)]
[Rules and Regulations]
[Pages 12568-12572]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-4774]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[EPA-R01-RCRA-2007-0135; FRL-8287-8]

Vermont: Final Authorization of State Hazardous Waste Management 
Program Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

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

DATES: This final authorization will become effective on May 15, 2007 
unless EPA receives adverse written comment by April 16, 2007. If EPA 
receives such comment, it will publish a timely withdrawal of this 
immediate final rule in the Federal Register and inform the public that 
this authorization will not take immediate effect.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
RCRA-2007-0135, by one of the following methods:
    www.regulations.gov: Follow the on-line instructions for 
submitting comments.
     E-mail: [email protected] Fax: (617) 918-0647, to the attention of Sharon Leitch
     Mail: Sharon Leitch, Hazardous Waste Unit, EPA Region 1, 
One Congress Street, Suite 1100 (CHW), Boston, MA 02114-2023
     Hand Delivery or Courier: Deliver your comments to: Sharon 
Leitch, Hazardous Waste Unit, Office of Ecosystem Protection, EPA 
Region 1, One Congress Street, 11th Floor, (CHW), Boston, MA 02114-
2023. Such deliveries are only accepted during the Office's normal 
hours of operation, and special arrangements should be made for 
deliveries of boxed information.
    Instructions: Identify your comments as relating to Docket ID No. 
EPA-R01-RCRA-2007-0135. EPA's policy is that all comments received will 
be included in the public docket without change and may be made 
available online at www.regulations.gov, including any personal 
information provided, unless the comment includes information claimed 
to be Confidential Business Information (CBI) or claimed to be other 
information whose disclosure is restricted by statute. Do not submit 
information that you consider to be CBI or otherwise protected through 
www.regulations.gov or e-mail. The www.regulations.gov Web site is an 
``anonymous access'' system, which means EPA will not know your 
identity or contact information unless you provide it in the body of 
your comment. If you send an e-mail comment directly to EPA without 
going through www.regulations.gov, your e-mail address will be 
automatically captured and included as part of the comment that is 
placed in the public docket and made available on the Internet. If you 
submit an electronic comment, EPA recommends that you include your name 
and other contact information in the body of your comment and with any 
disk or CD-ROM you submit. If EPA cannot read your comment due to 
technical difficulties and cannot contact you for clarification, EPA 
may not be able to consider your comment. Electronic files should avoid 
the use of special characters, any form of encryption, and be free of 
any defects or viruses. For additional information about EPA's public 
docket visit the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm.
    Docket: EPA has established a docket for this action under Docket 
ID No. EPA-R01-RCRA-2007-0135. All documents in the docket are listed 
on the www.regulations.gov Web site. Although it may be listed in the 
index, some information might not be publicly available, e.g., CBI or 
other information whose disclosure is restricted by statute. Certain 
other material, such as copyrighted material, is not placed on the 
Internet and will be publicly available only in hard copy form. 
Publicly available docket materials are available either electronically 
through www.regulations.gov or in hard copy at the following two 
locations: aves\rules.xml(i) EPA Region 1 Library, One Congress Street-
11th Floor, Boston, MA 02114-2023; by appointment only; tel: (617) 918-
1990; and (ii) Agency of Natural Resources, 103 South Main Street-West 
Office Building, Waterbury, Vermont, 05671-0404; Business Hours: 7:45 
AM to 4:30 PM, Monday through Friday; tel: (802) 241-3888.

FOR FURTHER INFORMATION CONTACT: Sharon Leitch, Hazardous Waste Unit, 
EPA Region 1, One Congress Street, Suite 1100 (CHW), Boston, MA 02114-

[[Page 12569]]

2023, telephone number: (617) 918-1647; fax number: (617) 918-0647, e-
mail address: [email protected].

SUPPLEMENTARY INFORMATION:

A. Why Are Revisions to State Programs Necessary?

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

B. What Decisions Have We Made in This Rule?

    We have concluded that Vermont's application to revise its 
authorized program meets all of the statutory and regulatory 
requirements established by RCRA. Therefore, we grant Vermont final 
authorization to operate its hazardous waste program with the changes 
described in the authorization application. Vermont has responsibility 
for permitting Treatment, Storage, and Disposal Facilities (TSDFs) 
within its borders and for carrying out the aspects of the RCRA program 
covered by its revised program application, subject to the limitations 
of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New Federal 
requirements and prohibitions imposed by Federal regulations that EPA 
promulgates under the authority of HSWA take effect in authorized 
States before they are authorized for the requirements. Thus, EPA will 
implement any such requirements and prohibitions in Vermont, 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 Vermont subject 
to RCRA will now have to comply with the authorized State requirements 
instead of the equivalent Federal requirements in order to comply with 
RCRA. Vermont has enforcement responsibilities under its State 
hazardous waste program for violations of such program, but EPA also 
retains its full authority under RCRA sections 3007, 3008, 3013, and 
7003, which includes, among others, authority to:
     Perform inspections, and require monitoring, tests, 
analyses or reports
     Enforce RCRA requirements and suspend or revoke permits
     Take enforcement actions
    This action does not impose additional requirements on the 
regulated community because the regulations for which Vermont is being 
authorized by today's action are already effective under state law, and 
are not changed by today's action.

D. Why Wasn't There a Proposed Rule Before 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 adverse comments 
that oppose this approval. We are providing an opportunity for public 
comment now. In addition to this rule, in the proposed rules section of 
today's Federal Register we are publishing a separate document that 
proposes to authorize the State program changes.

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

    If EPA receives comments that oppose this authorization, we will 
withdraw this rule by publishing a document in the Federal Register 
before the rule becomes effective. EPA will base any further decision 
on the authorization of the State program changes on the proposal 
mentioned in the previous paragraph. We will then address all public 
comments in a later final rule based upon this proposed rule that also 
appears in today's Federal Register. You may not have another 
opportunity to comment. If you want to comment on this authorization, 
you should do so at this time.
    If we receive adverse comments that oppose only the authorization 
of a particular change to the State hazardous waste program, we will 
withdraw that part of this rule but the authorization of the program 
changes that the comments do not oppose will become effective on the 
date specified above. The Federal Register withdrawal document will 
specify which part of the authorization will become effective, and 
which part is being withdrawn.

F. What Has Vermont Previously Been Authorized for?

    The State of Vermont initially received final authorization on 
January 7, 1985, with an effective date of January 21, 1985 (50 FR 775) 
to implement the RCRA hazardous waste management program. The Region 
published an immediate final rule for certain revisions to Vermont's 
program on May 3, 1993 (58 FR 26242) and reopened the comment period 
for these revisions on June 7, 1993 (58 FR 31911). This authorization 
became effective August 6, 1993 (58 FR 31911). The Region granted 
authorization for further revisions to Vermont's program on September 
24, 1999 (64 FR 51702), effective November 23, 1999. On October 18, 
1999 (64 FR 46174) the Region published a correction to the immediate 
final rule that was published on September 24, 1999. The Region granted 
authorization for further revisions to Vermont's program on October 26, 
2000, effective December 26, 2000 (65 FR 64164). That Federal Register 
also made a technical correction. On June 23, 2005 (70 FR 36350) the 
Region published an immediate final rule for additional revisions to 
Vermont's program. This authorization became effective on August 22, 
2005.

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

    On January 31, 2007, Vermont submitted a final complete program 
revision application, seeking authorization for their changes in 
accordance with 40 CFR 271.21. In particular, Vermont is seeking 
authorization for updated State regulations addressing federal 
requirements added from July 1, 2003 through June 30, 2005, plus 
federal manifest rule changes, and the federal dyes and pigments 
listing, which took effect after June 30, 2005. Vermont is also seeking 
authorization for various changes it recently has made to its base 
program regulations. Finally, Vermont is seeking authorization for an 
additional extension of the special regulations governing the New 
England Universities' Laboratories XL project.
    We are now making an immediate final decision, subject to 
reconsideration only if we receive written comments that oppose this 
action, that Vermont's hazardous waste program revisions satisfy all of 
the requirements necessary to qualify for final authorization. 
Therefore, we grant Vermont final authorization for the following 
program changes. First, we are authorizing State regulations that track 
federal regulations adopted since July 1, 2003, as follows (the Federal 
Citation is followed by the analog from chapter 7 of the Vermont 
Environmental Protection Rules (Hazardous Waste Management 
Regulations), effective October 15, 2006): Federal: Recycled Used Oil 
Management Standards-Revisions [68 FR 44659, 7/30/03] (Checklist 203)--
State: 7-805(d) and sections 7-809(c)(1)

[[Page 12570]]

and (c)(2)(A) through (C); Federal: National Environmental Performance 
Track Program and Corrections [69 FR 21737, 4/22/04, and 69 FR 62217, 
10/25/04] (Checklist 204)--State: 7-308(b)(2)(D); Federal: 
Nonwastewaters from Dyes and Pigments and Corrections [70 FR 9138, 2/
24/05 and 70 FR 35032, 6/16/05] (Checklist 206)--State: 7-106, Appendix 
I , Appendix II, and Appendix IX; and, Federal: Uniform Hazardous Waste 
Manifest Rule and Corrections [70 FR 10776, 3/4/05 and 70 FR 35034, 6/
16/05] (Checklist 207)--State: 7-103; 7-109(b)(3); 7-203(j); 7-
203(j)(1)(B) and (C); 7-309(b)(1)(C); 7-309(b)(8); 7-504(e)(1); 7-
510(c)(1); 7-702(a)(1); 7-702(b)(3); 7-702(b)(3)(A) and (B); 7-703(a); 
7-703(b)(6) and (7); 7-704(a); 7-704(b); 7-704(b)(1), ( 2), (3), (6) 
and (7); 7-704(c), (d) and (f); 7-704(g)(1); 7-704(g)(1)(A), (B) and 
(C); 7-704(g)(2), (3), and (4); 7-704(h); 7-704(h)(1) through (7); 7-
705(b)(7)(C) and (E); 7-705(c)(1) and (3); 7-706(b)(3), (4), and (5); 
and, Appendix V.
    In addition to the regulations listed above, there are various 
previously authorized State program regulations to which the State has 
made changes. The EPA is also authorizing these changes. These changes 
are as follows: Federal: 40 CFR part 260-279--State: (general update to 
incorporation by reference) 7-109(a); Federal: Regulation of materials 
used in a manner constituting disposal, 40 CFR 261.2(c)(1)(i)--State: 
Revised and clarified, 7-204(a)(2)(A); Federal: Regulation of materials 
burned for energy recovery, 40 CFR 261.2(c)(2)(i)--State: Revised and 
clarified, 7-204(a)(2)(B); Federal: Exemption for certain commercial 
chemical products applied to the land, 40 CFR 261.2(c)(1)(ii)--State: 
Added and clarified, 7-204(k); Federal: Exemptions for commercial 
chemical products being reclaimed, 40 CFR 261.2(c)(3) and for certain 
commercial chemical products burned as fuels, 261.2(c)(2)(ii)--State: 
Added and clarified, 7-204(l); Federal: the definition of used oil, 40 
CFR 279.1--State: Revised and clarified, 7-103 and 7-802; Federal: 
Generator requirements, 40 CFR 262.34--State: Revised and clarified the 
generator change in status notification requirement, 7-104(c); Federal: 
Marking requirements, 40 CFR 262.32 reflecting the hazardous waste 
determination at 262.11--State: Clarification, 7-202; Federal: 
Exemption for certain petroleum contaminated media and debris, 
261.4(b)(10)--State: Clarified and more stringent, 7-203(p) and added 
definition of media, 7-103; Federal: Representative sampling methods, 
40 CFR 261 Appendix I--State: Incorporation by reference, 7-219(c); 
Federal: Generator manifest requirements, 40 CFR 262.20--State: 
Clarification, 7-304(c); Federal, generator emergency response, 40 CFR 
262.34(a)(4), incorporating 40 CFR part 265, Subpart D, and 40 CFR 
262.34(d)--State: Clarification, 7-307(c)(10), 7-308(b)(2)(D), and 7-
308(b)(11); Federal: Generator tank system closure, 40 CFR 
262.34(a)(1)(ii), incorporating 40 CFR part 265, subpart J--State: 
Revised 7-309(c); Federal, transporter transfer facility requirements, 
40 CFR 263.12--State, added and more stringent, 7-404-(c)(3); Federal: 
State authorization for consolidation of CESQG waste at certain small 
and large quantity generators, 261.5(g)(3)(iii)--State: Clarification, 
7-502(q); and, additional requirements regarding 40 CFR parts 260-279--
State: Allowance for the State to impose additional requirements on a 
case by case basis, 7-512. Note: Depending upon the nature of the 
requirements, the additional requirements may be more stringent than 
the federal program or they may be broader in scope.
    The State has also made changes to its previously authorized 
Project XL regulations. The EPA is also authorizing these changes. 
These changes are as follows: Federal: Extension of the Project XL 
Site-specific Rulemaking for University Laboratories, 40 CFR 262.108--
State: 7-109(c); Federal: Project XL requirements, 40 CFR 262.100-
262.107--State: revised and clarified, 7-109(c). The Vermont Project XL 
regulations were originally authorized by the EPA and became part of 
the Federally enforceable VT RCRA program on October 26, 2000. See 65 
FR 64164. Specifically, we are now authorizing an extension of 
approximately two and a half years to April 15, 2009. EPA amended its 
Federal regulations to extend the expiration date of the XL Project 
from September 30, 2006 to a new date of April 15, 2009. See 71 FR 
35547. The State has adopted an extension of six years to September 30, 
2012. The EPA is only able to authorize the extension for two and a 
half years at this time, but could consider another Federal extension 
should a longer one prove necessary. EPA believes an extension is 
appropriate since it has recently proposed a national set of 
alternative regulations for academic laboratories (see 71 FR 29712, May 
23, 2006) and, pending promulgation of a national rule, the extension 
will allow the universities currently participating in the Labs XL 
Project to continue to build upon the successes of the project and not 
have to terminate their participation in the Project. The current 
extension of the expiration date also should be accompanied by an 
updated Final Project Agreement (FPA) for this XL Project. We 
anticipate that the FPA will be updated (for this interstate Vermont-
Massachusetts project) by the time that the EPA authorizes the 
Commonwealth of Massachusetts for changes it will be making to its 
hazardous waste program regulations. EPA expects that this will occur 
in the spring of 2007.
    The final authorization of new State regulations and regulation 
changes is in addition to the previous authorization of State 
regulations, which remain part of the authorized program.

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

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

1. More Stringent Provisions

    There are aspects of the Vermont program which are more stringent 
than the Federal program. All of these more stringent requirements are, 
or will become, part of the Federally enforceable RCRA program when 
authorized by the EPA and must be complied with in addition to the 
State requirements which track the minimum Federal requirements. These 
more stringent requirements include the following: (a) There is no 
State analog to the Federal rule at 40 CFR 261.5(j) because the State 
does not exempt conditionally exempt small quantity generators from the 
hazardous waste regulations; (b) Vermont does not include the exclusion 
for leachate or gas condensate generated at non-hazardous landfills 
which is derived from previously disposed and newly-listed hazardous 
wastes (40 CFR 261.4(b)(15)) in their rules; (c) the State exemption at 
7-203(p) for petroleum contaminated media and debris includes 
additional conditions that are not included in the Federal exemption at 
40 CFR 261.4(b)(10); (d) Vermont is also more stringent by not adopting 
the following optional rule: NESHAPS--Surface Coating of Automobiles 
and Light Duty Trucks, Checklist 205; and, (e) the State has revised 
its language regarding commercial chemical product fuels in 7-
204(a)(2), (k) and (l). The revised

[[Page 12571]]

State exemption is equivalent to the combination of the Federal 
exemption for commercial chemical product fuels being burned for energy 
recovery and the Federal exemption for commercial chemical products 
being reclaimed, in 40 CFR 261.2(c)(2)(ii) and (c)(3), respectively. 
However, Vermont does not have the general exemption for commercial 
chemical products being reclaimed, but is adopting the exemption for 
commercial chemical products being reclaimed only when they are 
reclaimed to produce fuels, e.g., when water is removed from an off-
spec unused fuel so that it can be burned. The State is more stringent 
in that it attaches conditions to the exemption for certain commercial 
chemical products burned as fuels.

2. Partially Broader in Scope Provisions

    There are also aspects of the Vermont program which are partially 
broader in scope than the Federal program. The portion of the State 
requirements which are broader in scope are not considered to be part 
of the Federally enforceable RCRA program. However, they are fully 
enforceable under State law and must be complied with by sources in 
Vermont. The various changes Vermont has made to its previously 
authorized base program regulations include partially broader in scope 
provisions. These provisions involve the State requirements for 
generator closure at 7-309(c). The State revised their requirements for 
generator closure with this update. The requirements are partially 
broader in scope since they apply to all generator closures and not 
just to closure of generator tanks systems as is the case under the 
Federal program.

I. Who Handles Permits After the Authorization Takes Effect?

    Vermont will issue permits for all the provisions for which it is 
authorized and will administer the permits it issues. EPA will continue 
to administer and enforce any RCRA and HSWA (Hazardous and Solid Waste 
Act) permits or portions of permits which it has issued in Vermont 
prior to the effective date of this authorization until the State 
incorporates the terms and conditions of the federal permits into the 
State RCRA permits. EPA will not issue any more new permits, or new 
portions of permits, for the provisions listed in this notice above 
after the effective date of this authorization. EPA will continue to 
implement and issue permits for any HSWA requirements for which Vermont 
is not yet authorized.

J. What Is Codification and Is EPA Codifying Vermont's Hazardous Waste 
Program as Authorized in This Rule?

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

K. Administrative Requirements

    The Office of Management and Budget has exempted this action (RCRA 
State Authorization) from the requirements of Executive Order 12866 (58 
FR 51735, October 4, 1993); therefore, this action is not subject to 
review by OMB. This action authorizes State requirements 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 (Pub. L. 104-4). 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 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 FR 8859, March 15, 1988) by examining 
the takings implications of the rule in accordance with the ``Attorney 
General's Supplemental Guidelines for the Evaluation of Risk and 
Avoidance of Unanticipated Takings'' issued under the executive order. 
This rule does not impose an information collection burden under the 
provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).
    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this document and 
other required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication in the Federal Register. A major rule cannot take effect 
until 60 days after it is published in the Federal Register. This 
action is not a ``major rule'' as defined by 5 U.S.C. 804(2). This 
action nevertheless will be effective 60 days after it is published, 
because it is an immediate final rule.

List of Subjects in 40 CFR Part 271

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous waste, Hazardous waste 
transportation, Indian lands, Intergovernmental relations, Penalties, 
Reporting and recordkeeping requirements.

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

[[Page 12572]]

    Dated: March 1, 2007.
Robert W. Varney,
Regional Administrator, EPA New England.
 [FR Doc. E7-4774 Filed 3-15-07; 8:45 am]
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