Pennsylvania: Final Authorization of State Hazardous Waste Management Program Revisions

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Immediate final rule.

SUMMARY:

The Commonwealth of Pennsylvania (Commonwealth) 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 Commonwealth'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 Pennsylvania'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 November 27, 2000, unless EPA receives adverse written comment by October 26, 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 effect.

ADDRESSES:

Send written comments to Charles Bentley, Mailcode 3WC21, RCRA State Programs Branch, U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA 19103-2029, Phone number: (215) 814-3379. We must receive your comments by October 26, 2000. You can view and copy Pennsylvania's application from 8 a.m. to 4:30 p.m., Monday through Friday at the following addresses: Pennsylvania Department of Environmental Protection, Bureau of Land Recycling and Waste Management, P.O. Box 8471, Rachel Carson State Office Building, Harrisburg, PA 17105-8471, Phone number (717) 787-6239; Pennsylvania Department of Environmental Protection, Southwest Regional Office, 400 Waterfront Drive, Pittsburgh, PA 15222-4745, Phone number: (412) 442-4120; and EPA Region III, Library, 2nd Floor, 1650 Arch Street, Philadelphia, PA 19103-2029, Phone number: (215) 814-5254. Persons with a disability may use the AT&T Relay Service to contact Pennsylvania Department of Environmental Protection by calling (800) 654-5984 (TDD users), or (800) 654-5988 (voice users).

FOR FURTHER INFORMATION CONTACT:

Charles Bentley, Mailcode 3WC21, RCRA State Programs Branch, U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA 19103-2029, Phone number: (215) 814-3379.

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 Pennsylvania's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant Pennsylvania Final authorization to operate its hazardous waste program with the changes described in the authorization application. Pennsylvania 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 Pennsylvania, 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 Pennsylvania subject to RCRA will have to comply with the authorized Commonwealth requirements instead of the equivalent Federal requirements in order to comply with RCRA. Pennsylvania 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
• Take enforcement actions regardless of whether the Commonwealth has taken its own actions.

This action does not impose additional requirements on the regulated community because the regulations for which Pennsylvania 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 Commonwealth 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 Commonwealth'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 we receive comments that oppose only the authorization of a particular change to the Commonwealth 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 Pennsylvania Previously Been Authorized for?

Pennsylvania's Solid Waste Management Act of July 7, 1980 (Public Law 380, No. 97), as amended (Act 97), provided for the “regulation of the management of municipal, residual and hazardous waste” within the Commonwealth, and authorized the Department of Environmental Resources (DER) and the Environmental Quality Board (EQB) to “adopt rules, regulations, standards and procedures” to carry out the provisions of the act. The Commonwealth received Final authorization from EPA to implement its base hazardous waste program effective January 30, 1986 (51 FR 1791; January 15, 1986).

On July 1, 1995, the DER was divided into two separate agencies through the enactment of House Bill 1400, the Conservation and Natural Resources Act. Through this legislation, the environmental protection aspects of the former Department of Environmental Resources were placed in a newly created Department of Environmental Protection.

On February 16, 1999, the EQB adopted amendments to the Commonwealth's hazardous waste regulations by deleting the existing text at Chapters 260 through 267, 269 and 270, and renumbering or adding new hazardous waste regulations in Chapters 260a through 266a, 266b and 268a through 270a. After a public comment period, the Commonwealth's regulations became effective on May 1, 1999. The new Chapters incorporate by reference the Code of Federal Regulations (CFR) in effect as of May 1, 1999, including subsequent modifications and additions.

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

On August 10, 2000, Pennsylvania submitted a final, complete program revision application, seeking authorization of its hazardous waste regulations, in accordance with 40 CFR 271.21. EPA Region III worked closely with Pennsylvania to develop the authorization package. Therefore, EPA's comments relative to Pennsylvania's legal authority to carry out aspects of the Federal program for which Pennsylvania is seeking authorization; the scope of and coverage of activities regulated; and Commonwealth procedures, including the criteria for permit reviews, public participation and enforcement capabilities, were addressed before the submission of the final application by the Commonwealth. The Commonwealth also solicited public comments on its proposed regulations before they were adopted. The EPA has reviewed Pennsylvania's application, and now makes an immediate final decision, subject to receipt of adverse written comment, that Pennsylvania's hazardous waste program revisions satisfy all of the requirements necessary to qualify for Final authorization. Consequently, EPA intends to grant Pennsylvania Final authorization for the program modifications contained in the program revision application.

Pennsylvania's program revision application includes Commonwealth statutory and regulatory changes to the Commonwealth's authorized hazardous waste program, including the adoption of the Federal hazardous waste regulations published through July 6, 1999 (including the codified Federal regulations plus the Federal rule published in the Federal Register on July 6, 1999), with certain exceptions described in section H.

Pennsylvania is today seeking authority to administer the Federal requirements that are listed in the chart below. This chart also lists the Commonwealth analogs that are being recognized as equivalent to the appropriate Federal requirements. Unless otherwise stated, the Commonwealth's statutory references are to the Solid Waste Act, Act of July 7, 1980 (Public Law 380, No. 97), as amended, Title 35, Pennsylvania Statutes (1993) (35 P.S.), sections 6018.102-105, 6018.401-404, 6018.501-507, 6018.608 and 6018.610, 6018.1001; Right-to-Know Law, Act of June 21, 1957 (Public Law 390), as amended, (65 P.S. sections 66.1 et. seq.); Section 1920-A of the Administrative Code of 1929, Act of April 9, 1929 (Public Law 177), as amended, 71 P.S. 510-21; and Administrative Agency Law, Act of November 25, 1970 (Public Law 707), as amended, section 602 (2 Pa. C.S.A. sections 504-506). The regulatory references are to Title 25, Pennsylvania Code (25 Pa. Code), Chapters 260a through 266a, 266b, 268a, and 270a, effective May 1, 1999.

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

The Pennsylvania hazardous waste program contains several provisions which are more stringent than the Federal RCRA program. The more stringent provisions are being recognized as a part of the Federally-authorized program and are Federally enforceable. The specific more stringent provisions are noted in the chart above and in the Commonwealth's authorization application, and include, but are not limited to, the following:

1. At 25 Pa. Code section 261a.5(b), Pennsylvania is more stringent than 40 CFR 261.5(f)(3)(iv)&(v) and 261.5(g)(3)(iv)&(v) because conditionally-exempt small quantity generators may not dispose of hazardous waste in a municipal or residual waste landfill in Pennsylvania. The Federal program allows disposal in such facilities.

2. At 25 Pa. Code section 262a.100, Pennsylvania requires generators to prepare a source reduction strategy every five years, or sooner if there is a change in the type of waste generated or in the manufacturing process. This requirement is in addition to the Federal requirements at 40 CFR 262.41(a)(6) & (7), which Pennsylvania has incorporated by reference, to report waste minimization efforts biennially.

3. Pennsylvania's requirements at 25 Pa. Code sections 264a.221 and 264a.301 are more stringent than the Federal requirements for surface impoundments and landfills at 40 CFR 264.221(a) & (c) and 264.301(a) & (c), respectively. The Commonwealth requires that surface impoundments and landfills must be designed to maintain a minimum distance of four feet between the bottom of the liner and seasonal high water table without the use of artificial or manmade drainage or dewatering systems. In addition, the distance between the top of the subbase and the regional water table must be at least eight feet. The Federal requirements do not specify such minimum distances.

A number of the Commonwealth's regulations are not being authorized by today's actions. Such provisions include, but are not limited to, the following:

1. Pennsylvania has regulations defining how program information is to be shared with the public, but is not seeking authorization at this time for the Availability of Information requirements relative to RCRA section 3006(f).

2. Pennsylvania is not seeking authority for the Federal corrective action program. EPA will continue to administer this part of the program. The Commonwealth is planning to apply for the corrective action program in a subsequent authorization revision application.

3. At 25 Pa. Code sections 270a.83 and 270a.84, Pennsylvania has analogs to the Federal expanded public participation requirements as found in 40 CFR 124.31 and 124.33, respectively. However, because the Commonwealth has not adopted an analog to 40 CFR 124.32, the Commonwealth is not being authorized for the Federal rule published on December 11, 1995 (60 FR 63417; Revision Checklist 148).

4. The Commonwealth has adopted, but is not seeking authorization for, the organobromine production wastes provisions addressed by the final rules published in the Federal Register on May 4, 1998 (63 FR 24596), June 29, 1998 (63 FR 35147) and August 10, 1998 (63 FR 42580).

5. Pennsylvania has incorporated the Federal hazardous waste export provisions at 40 CFR part 262, subparts E and H into its regulations at 25 Pa. Code sections 262a.55 and 262a.80. However, the Commonwealth is not seeking authorization for these provisions at this time. EPA will continue to implement those requirements as appropriate.

6. Pennsylvania is not seeking authorization for the Federal used oil regulations at this time. The Commonwealth's current used oil regulations are being revised to more closely follow the Federal standards.

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

1. Pennsylvania's regulations at 25 Pa. Code section 263a place requirements on transporters that are not part of the Federal regulations. Transporters in Pennsylvania must obtain a license from the Department, must pay a hazardous waste transportation fee, must post a bond, and must prepare an in-transit preparedness, prevention and contingency plan.

2. Hazardous waste management facilities are subject to siting requirements in Chapter 269a which are beyond the scope of the Federal program.

3. Pennsylvania requires hazardous waste storage, treatment and disposal facilities to pay hazardous waste management fees, administration fees, and permit application fees. Federal regulations do not require such fees.

I. Who Handles Permits After the Authorization Takes Effect?

After authorization, Pennsylvania 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 Commonwealth are mutually agreed upon. Until such time as formal transfer of EPA permit responsibility to the Commonwealth occurs and EPA terminates its permit, EPA and the Commonwealth 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 Pennsylvania is not yet authorized.

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

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

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

Codification is the process of placing the Commonwealth's statutes and regulations that comprise the Commonwealth's authorized hazardous waste program into the Code of Federal Regulations. We do this by referencing the authorized Commonwealth rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272, subpart NN, for this authorization of Pennsylvania'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 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 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 will be effective November 27, 2000.

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).