[Federal Register Volume 65, Number 221 (Wednesday, November 15, 2000)]
[Rules and Regulations]
[Pages 68915-68919]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-29059]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[FRL-6900-5]


Massachusetts: Interim Authorization of State Hazardous Waste 
Management Program Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

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SUMMARY: The Commonwealth of Massachusetts has applied to EPA for 
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 
interim authorization, and is authorizing the State's changes through 
this immediate final action. The interim authorization is for 
Massachusetts to assume the responsibility under the Toxicity 
Characteristics Rule (``TC Rule'') for regulating Cathode Ray Tubes 
(``CRTs''). Massachusetts already has been granted final authorization 
to regulate all other hazardous wastes under the TC Rule. EPA is 
publishing this rule to authorize the changes without a prior proposal 
because we believe this action is not controversial and do not expect 
comments that oppose it. Unless we get written comments which oppose 
this authorization during the comment period, the decision to grant 
interim authorization to Massachusetts for changes to their hazardous 
waste program will take effect. If we get comments that oppose this 
action, we will publish a document in the Federal Register withdrawing 
this rule before it takes effect and the separate document in the 
proposed rules section of this Federal Register will serve as the 
proposal to authorize the changes.

DATES: This interim authorization will become effective on January 16, 
2001 and remain in effect until January 1, 2003 unless EPA receives 
adverse written comment by December 15, 2000. 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: Send any written comments to Robin Biscaia, EPA New England, 
One Congress Street, Suite 1100 (CHW), Boston, MA 02114-2023; 
telephone: (617) 918-1642. Copies of the Commonwealth of Massachusetts' 
revision application and the materials which EPA used in evaluating the 
revision (the ``Administrative Record'') are available for inspection 
and copying during normal business hours at the following locations: 
Massachusetts Department of Environmental Protection Library, One 
Winter Street--2nd Floor, Boston, MA 02108, business hours: 9 a.m. to 5 
p.m., telephone: (617) 292-5802; or EPA New England Library, One 
Congress Street--11th Floor, Boston, MA 02114-2023, business hours: 9 
a.m. to 4 p.m., telephone: (617) 918-1990.

FOR FURTHER INFORMATION CONTACT: Robin Biscaia, Hazardous Waste Program 
Unit, Office of Ecosystems Protection, EPA New England, One Congress 
Street, Suite 1100 (CHW), Boston, MA 02114-2023, telephone: (617) 918-
1642.

SUPPLEMENTARY INFORMATION:

A. Why Are Revisions to State Programs Necessary?

    States which have been authorized to administer the Federal 
hazardous waste program under RCRA section 3006(b), 42 U.S.C. 6926(b), 
have a continuing obligation to update their programs to meet revised 
Federal requirements. 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 revise 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. For example, States must revise 
their programs to regulate the additional wastes determined to be 
hazardous as a result of using the Toxicity Characteristics Leaching 
Procedure (``TCLP'') test adopted by the EPA on March 29, 1990, in the 
TC Rule. 55 FR 11798. The EPA may grant final

[[Page 68916]]

authorization to a State revision if it is equivalent to, consistent 
with, and no less stringent than Federal RCRA requirements.
    In the alternative, as provided by RCRA section 3006(g), 42 U.S.C. 
6926(g), for updated Federal requirements promulgated pursuant to the 
Hazardous and Solid Waste Amendments of 1984 (HSWA), such as the TC 
Rule, the EPA still may grant interim (i.e., temporary) authorization 
to a State revision so long as it is substantially equivalent to 
Federal RCRA requirements. This interim authorization may run until no 
later than January 1, 2003. 40 CFR 271.24.

B. What Decisions Have We Made in This Rule?

1. Background

    The TC Rule grants authority over wastes which first became 
classified as hazardous as a result of using the ``TCLP'' test, such as 
many CRTs. See 55 FR 11798, 11847-11849 (March 29, 1990). CRTs are the 
glass picture tubes found inside television and computer monitors. 
Because of their high lead content, CRTs generally fail the TCLP test. 
Thus, under the EPA's regulations, CRTs generally become hazardous 
wastes when they are discarded (e.g., when sent for disposal or 
reclamation rather than being reused).
    In order to encourage recycling, the EPA allows States to reduce 
RCRA regulatory requirements for certain widely-generated hazardous 
wastes under the Universal Waste Rule. 60 FR 25492 (May 11, 1995). In 
August 1998, however, the Massachusetts Department of Environmental 
Protection (``DEP'') instead amended its regulations to completely 
exempt intact CRTs from all hazardous waste requirements. At the time, 
the DEP had pending before the EPA an application for final 
authorization of the TC Rule. Because the DEP's exemption of intact 
CRTs resulted in a State program that was not equivalent to or as 
stringent as Federal RCRA requirements, the EPA proposed to limit its 
approval of the Massachusetts TC Rule to all wastes other than CRTs. 64 
FR 9110 (February 24, 1999). EPA granted final authorization to 
Massachusetts to administer the TC Rule for all wastes other than CRTs 
on October 12, 1999. 64 FR 55153.

2. Recent State Action

    On August 4, 2000, Massachusetts adopted regulations which revised 
its regulatory program as it relates to CRTs. The State replaced its 
exemption of intact CRTs with a three-part approach: (1) Intact CRTs 
being disposed will be subject to full hazardous waste requirements 
(along with crushed or ground up CRTs); (2) intact CRTs that may still 
be reused (without reclamation) generally will be exempt from hazardous 
waste requirements; and, finally, (3) intact CRTs which will not be 
reused, but which instead will be crushed and recycled (i.e., as spent 
materials being reclaimed), will be subject to reduced requirements 
which substantially track the EPA's universal waste requirements.
    Documentation relating to the State's new approach may be found in 
EPA's Administrative Record. The documents include Massachusetts' 
revised Hazardous Waste Regulations and Solid Waste Regulations, as 
adopted on August 4, 2000, a Q & A Guidance document (which will serve 
as the Program Description as required by 40 CFR 271.24 and 271.21 for 
revisions to State programs), and an Attorney General's Statement.

3. The Decision

    As further explained in a legal memorandum contained in the 
Administrative Record, dated January 21, 2000 entitled 
``Massachusetts'' Regulation of CRTs,'' the EPA believes that the State 
program is ``substantially equivalent'' to Federal RCRA requirements. 
Therefore, we are granting Massachusetts interim authorization to 
regulate CRTs under the TC Rule as described in the authorization 
application. Pursuant to 40 CFR 271.24, this interim authorization will 
expire on January 1, 2003, at which time the authority to regulate the 
CRTs will revert to the EPA unless final authorization for this waste 
has been granted or unless EPA's regulations are amended to extend the 
January 1, 2003 deadline for interim authorization (in which case 
today's interim authorization may be extended).
    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 
implement those requirements and prohibitions in Massachusetts, 
including issuing permits, until the State is granted authorization to 
do so.
    The State's new three-part approach regarding CRTs is substantially 
equivalent to Federal requirements. With respect to intact CRTs being 
disposed, as well as crushed and ground-up CRTs, the State is now 
tracking the full Federal hazardous waste requirements. With respect to 
intact CRTs that may still be reused, the State has formulated an 
exemption which makes sense for this unusual waste stream. As explained 
in the EPA's January 21 legal memorandum, the State's exemption is at 
least substantially equivalent to Federal exemptions for products and 
materials used or reused as effective substitutes for products.
    With respect to intact CRTs heading to reclamation, the State's 
program differs from the Universal Waste Rule in that these CRTs will 
be regulated as non-hazardous solid wastes under State law rather than 
as universal wastes. In addition, the State's regulations will not be 
as detailed or comprehensive as the universal waste requirements. While 
the State's differing approach would be problematic if the State was 
now seeking final authorization, the EPA believes that the State 
program nevertheless is ``substantially equivalent'' to Federal 
hazardous waste requirements. The State regulations track key 
provisions of the universal waste regulations. In addition, the DEP has 
submitted these regulations to be authorized as part of the Federally 
enforceable hazardous waste program. Thus, at the Federal level, these 
regulations will be fully enforceable as part of the hazardous waste 
program. These regulations also will be fully enforceable under State 
law, utilizing enforcement authority covering the State's solid waste 
programs.
    The DEP's classification of intact CRTs heading for reclamation as 
solid waste will not change their status when sent to foreign countries 
since the DEP's proposed solid waste regulations specify that hazardous 
waste requirements must then be followed. See 310 CMR 16.05(3)(f)(3). 
The DEP's classification will not bind other States, since when there 
is interstate transportation, the requirements of States to and through 
which the wastes are shipped will apply. See Program Description, item 
14; See also 64 FR 36466, 36482-36483 (July 6, 1999).
    CRTs are different from most hazardous wastes. For example, a large 
percentage of them come from households. Effective management of CRTs 
involves encouraging charitable organizations, households and small 
businesses to participate in the collection, reuse and recycling 
effort.

[[Page 68917]]

The DEP has put together a program to encourage CRT recycling, which 
includes banning the disposal of even household CRTs in Massachusetts 
solid waste facilities. All of this counsels in favor of flexibly 
applying RCRA by approving the State's program on an interim basis. 
Interim approval will enable the State to start-up its program without 
needing to address the additional requirements applicable to final 
authorization. However, acceptance of the DEP's unusual approach for 
CRTs, on an interim basis, should not be regarded as a precedent for 
other types of situations or wastes.
    It also should be emphasized that the DEP's proposed reduced 
regulations will apply only to intact CRTs. While the DEP plans to 
allow incidental numbers of unintentionally broken CRTs to be handled 
under the reduced regulations, intentionally broken CRTs or multiple 
CRTs broken due to poor housekeeping will be subject to full hazardous 
waste requirements. Also, full hazardous waste requirements will apply 
to disposal of CRTs, whether intact or broken, thus prohibiting such 
things as abandoning CRTs in warehouses or ``midnight dumping.''

4. Prior Comments Received Regarding EPA's Proposed Rule To Authorize 
Massachusetts for the UWR and TC Rule Except for CRTs

    The EPA has received various comments to its proposed rule of 
February 24, 1999 (64 FR 9110) regarding whether or not Massachusetts 
should have been granted final authorization to regulate CRTs 
notwithstanding the DEP's prior exemption of intact CRTs from all 
hazardous waste requirements. The EPA does not plan to respond to these 
comments because the EPA and DEP have instead agreed upon the new 
approach described above. The issue now before the EPA is whether to 
grant an interim authorization for the regulation of CRTs in light of 
the State's new approach.

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

    The effect of this decision is that for CRTs regulated under the TC 
Rule, a facility in Massachusetts subject to RCRA will have to comply 
with the newly authorized State requirements instead of the Federal 
requirements in order to comply with RCRA. The Commonwealth of 
Massachusetts has enforcement responsibilities under its State 
hazardous and solid waste programs for violations of such programs, 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 interim 
authorization to Massachusetts is being granted by today's action are 
already in effect 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 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. 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 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 on September 30, 1998, effective November 30, 
1998 (63 FR 52180) and October 12, 1999, effective that date (64 FR 
55153).

G. What Changes Are We Authorizing in Today's Action

    On October 11, 2000 Massachusetts submitted a complete program 
revision application seeking authorization of their changes in 
accordance with 40 CFR 271.24. We now make an immediate final decision, 
subject to receipt of written comments that oppose this action, that 
Massachusetts' hazardous waste program revision satisfies all of the 
requirements necessary to qualify for interim authorization.
    The specific RCRA program revisions for which the EPA grants 
interim authorization to 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 substantially equivalent state authority: MGL = Massachusetts 
General Laws; CMR = Code of Massachusetts Regulations.

[[Page 68918]]



------------------------------------------------------------------------
 Description of Federal requirement and
        checklist reference No.            Analogous state authority\1\
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Consolidated Checklist for the Toxicity
Characteristic Revisions as of June 30,
                 1994.
 
(74) Toxicity Characteristic Revisions:  MGL c 21C Secs.  4 and 6,
 55 FR 11798, 3/29/90 as amended on 6/    enacted 11/9/79; 310 CMR
 29/90, 55 FR 26986; (80) Hydrocarbon     30.099(25) adopted 11/9/90,
 Recovery Operations: 55 FR 40834, 10/5/  30.104(13) adopted 10/17/97,
 90 as amended on 2/1/91, 56 FR 3978 as   30.105 adopted 11/17/95,
 amended on 4/2/91, 56 FR 13406,          30.125B adopted 11/9/90,
 optional rule (MA is not seeking         30.130 adopted 11/9/90 and
 authorization for this provision):       30.155B adopted 11/9/90 and
 (84) Chlorofluoro Refrigerants: 56 FR    amended 10/17/97.
 5910, 2/13/91, optional rule, (MA is    310 CFR 30.010 (definitions of
 not seeking authorization for this       ``CRT'' and ``Non-commodity
 provision); (108) Toxicity               CRT'') and 310 CMR 30.104(21),
 Characteristics Revision; Technical      as amended through 8/4/000.
 Correction: 57 FR 30657, 7/10/92;       310 CMR 16.02, 16.05(2)(e),
 (117B) Toxicity Characteristic           16.05(3)(f), 16.05(5)(f) and
 Revision: 57 FR 23062, 6/1/92,           16.05(11), as amended through
 (correction not applicable; MA is not    8/4/00.
 seeking authorization for this          310 CMR 19.017(3)(a), (c) and
 provision); (119) Toxicity               Table 310 CMR 19.017(3) (as to
 Characteristic Revision, TCLP: 57 FR     non-household CRTs), and
 55114, 11/24/92, optional rule (MA is    19.043(5)(k), as amended
 not seeking authorization for this       through 8/4/00.
 provision)..                            310 CMR 11.03, as amended
                                          through 8/4/00.
                                         MGL c. 21A, Sec.  13 and MGL c.
                                          111, Sec.  150A, as amended
                                          through 8/4/00.
                                         (The Massachusetts regulatory
                                          citations above are approved
                                          as they relate to CRTs.)
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\1\ The Commonwealth of Massachusetts' provisions are from the Code of
  Massachusetts Regulations, 310 CMR 11.00, 16.00 and 310 CMR 19.00,
  Solid Waste Regulations as adopted through August 4, 2000 and 310 CMR
  30.000, Hazardous Waste Regulations as adopted through August 4, 2000.

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

    The differences between the State and Federal regulations with 
respect to CRTs are discussed in section B above. Notwithstanding these 
differences, the EPA believes that the State regulations are 
substantially equivalent to the Federal regulations and, thus, the 
State qualifies to receive interim authorization. During the interim 
authorization period, for CRTs regulated under the TC Rule, these state 
regulations will operate in lieu of the Federal hazardous waste 
regulations.
    The State hazardous and solid waste regulations listed in the chart 
above in section E will be enforceable under both Federal and state 
law. The one exception is that the State's ban on the disposal of even 
household CRTs at Massachusetts solid waste facilities goes beyond the 
scope of the Federal hazardous waste program and will be enforceable 
only under State law.

I. 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.

J. How Does Today's Action Affect Indian Country (18 U.S.C. 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.

K. 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.

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 FR 4729, February 7, 1996), 
in issuing this rule, EPA has taken the necessary steps to eliminate 
drafting errors and ambiguity, minimize potential litigation, and 
provide a clear legal standard for

[[Page 68919]]

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 (sixty) days after 
publication pursuant to the procedures governing immediate final rules.

List of Subjects in 40 CFR Part 271

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

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

    Dated: November 2, 2000.
Mindy S. Lubber,
Regional Administrator, EPA New England.
[FR Doc. 00-29059 Filed 11-14-00; 8:45 am]
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