AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

The Environmental Protection Agency (EPA) is proposing to authorize changes California has made to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA), as amended. EPA reviewed California's application for authorization of these changes and determined that the changes satisfy all requirements. EPA seeks public comment prior to taking final action.

DATES:

Comments on this proposed rule must be received by November 18, 2019.

ADDRESSES:

Submit your comments, identified by Docket ID No. [EPA-R09-RCRA-2019-0491], at https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/​dockets/​commenting-epa-dockets.

FOR FURTHER INFORMATION CONTACT:

Laurie Amaro, EPA Region 9, 75 Hawthorne St., San Francisco, CA 94105. By phone: (415) 972-3364 or by email at Amaro.Laurie@epa.gov. You may also view California's application at: California Environmental Protection Agency, Department of Toxic Substances Control, 1001 “I” Street, 11th Floor, Sacramento, CA 95814, Attention: Carmela Torres, Phone (916) 322-7893, from 8 a.m. to noon and 1 p.m. to 5 p.m., Monday through Friday (appointment preferred but not required).

SUPPLEMENTARY INFORMATION:

A. Why are revisions to state programs necessary?

States that 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 268, 270, 273, and 279.

New Federal requirements and prohibitions imposed by Federal regulations that EPA promulgates pursuant to the Hazardous and Solid Waste Amendments of 1984 (HSWA) take effect in authorized states at the same time that they take effect in unauthorized states. Thus, EPA will implement those requirements and prohibitions in California, including the issuance of new permits implementing those requirements, until the state is granted authorization to do so.

B. What decisions has EPA made in this rule?

On July 10, 2019, California submitted a program revision application to EPA seeking authorization of changes to its hazardous waste management program that correspond to certain Federal rules related to the universal waste rule initially promulgated by EPA on May 11,1995 (63 FR 60 FR 25492) and amended on July 6, 1999 (64 FR 36466), December 24, 1998 (63 FR 71225), August 5, 2005 (70 FR 45508) and July 14, 2006 (71 FR 40254). These regulatory changes are also known as RCRA rule checklists 142A, 142B, 142D, 142E, 176, 181 and 209. EPA concludes that California's application to revise its authorized program meets all statutory and regulatory requirements established by RCRA, as set forth in RCRA section 3006(b), 42 U.S.C. 6926(b), and 40 CFR part 271. Therefore, EPA proposes to grant California final authorization to operate its hazardous waste program with the changes described in the authorization application dated July 10, 2019, and as outlined below in Section F of this document.

California has responsibility for permitting treatment, storage, and disposal facilities 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 HSWA, as discussed above.

C. What is the effect of this authorization decision?

If California is authorized for the changes described in the State's authorization application, these changes would become part of the authorized State hazardous waste program and would therefore be federally enforceable. California will continue to have primary enforcement authority and responsibility for its State hazardous waste program. EPA would retain its authorities under RCRA sections 3007, 3008, 3013, and 7003, including its authority to:

• Conduct inspections, and require monitoring, tests, analyses or reports;
• Enforce RCRA requirements, including authorized California program requirements, and suspend or revoke permits; and
• Take enforcement actions regardless of whether the State has taken its own actions.

This action does not impose additional requirements on the regulated community because the regulations for which California is being authorized by today's action are already effective and are not changed by today's action.

D. What happens if EPA receives comments that oppose this proposed action?

EPA will consider all comments received during the comment period and address them in a 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.

E. What has California previously been authorized for?

California initially received final authorization for the state hazardous waste management program on July 23, 1992, effective August 1, 1992 (57 FR 32726). EPA granted final authorization for changes to California's program on the following dates: September 26, 2001 (66 FR 49118), effective September 26, 2001 and October 7, 2011 (76 FR 62303), effective October 7, 2011.

F. What changes is EPA authorizing with today's action?

EPA proposes to determine, subject to our consideration of any adverse written comments, that California's hazardous waste program revisions are equivalent to, consistent with and no less stringent than the Federal program and therefore satisfy all the requirements necessary to qualify for final authorization.

Therefore, EPA is proposing to authorize California's program changes to adopt a universal waste program as outlined in the following table.

G. Where are the revised state rules different from the Federal rules?

EPA considers the following California requirements to be beyond the scope of the Federal program:

• Notifications. Small quantity handlers of universal waste must notify the State of hazardous waste activity. Federal regulations in 40 CFR 273.12 exempt small quantity handlers of universal waste from notification of hazardous waste activity.
• Mercury-added lamps toxicity. Stricter toxicity standards in California Code of Regulations title 22 division 4.5, chapter 11 cause some mercury-added lamps not defined as Federal hazardous waste to be covered under the California hazardous waste and universal waste programs.
• California-only universal wastes. California has added the following non-RCRA waste streams to its universal waste program: Aerosol cans, cathode ray tubes (CRTs), CRT glass and electronic devices.

Broader-in-scope requirements are not part of the authorized program and EPA cannot enforce them. Although regulated entities must comply with these requirements in accordance with state law, they are not RCRA requirements.

In the State's application, it identified the consolidation of large and small quantity universal waste handler requirements resulting in the application of standards to handlers that would otherwise be exempt from the requirement as broader in scope. However, EPA has determined that this requirement is more stringent.

H. Who handles permits after the authorization takes effect?

California will continue to issue permits for all the provisions for which it is authorized and will administer the permits it issues. Section 3006(g)(1) of RCRA, 42 U.S.C. 6926(g)(1), gives EPA the authority to issue or deny permits or parts of permits for requirements for which the state is not authorized. Therefore, whenever EPA adopts standards under HSWA for activities or wastes not currently covered by the authorized program, EPA may process RCRA permits in California for the new or revised HSWA standards until California has received final authorization for such new or revised HSWA standards. EPA and California have agreed to a joint permitting process for facilities covered by both the authorized program and standards under HSWA for which the State is not yet authorized, and for handling existing EPA permits after the State receives authorization.

I. How does today's action affect Indian country (18 U.S.C. 1151) in California?

California 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 retains jurisdiction over Indian country and will continue to implement and administer the RCRA program on these lands.

J. What is codification and is EPA codifying California'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. EPA is not proposing to codify the authorization of California's changes at this time. However, EPA reserves the amendment of 40 CFR part 272, subpart F for this authorization of California's program changes until a later date.

K. Statutory and Executive Order Reviews

The Office of Management and Budget (OMB) has exempted this action (RCRA state authorization) from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). 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, 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). As explained above, this action also does not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). 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), the 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 the 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, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. The 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.). Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. Because this rule authorizes pre-existing state rules which are at least equivalent to, and no less stringent than existing Federal requirements, and impose no additional requirements beyond those imposed by state law, and there are no anticipated significant adverse human health or environmental effects, the rule is not subject to Executive Order 12898. 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. The 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 the final approval is published in the Federal Register.

List of Subjects in 40 CFR Part 271

• Environmental protection
• Administrative practice and procedure
• Confidential business information
• Hazardous materials transportation
• Hazardous waste
• Indian-lands
• Intergovernmental relations
• Penalties
• Reporting and recordkeeping requirements
• Water pollution control
• Water supply

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, and 6974(b).