AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Proposed rule.

SUMMARY:

Maine has applied to the Environmental Protection Agency (EPA) for final authorization of changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA), as amended. EPA has reviewed Maine's application and has determined that these changes satisfy all requirements needed to qualify for final authorization. Therefore, we are proposing to authorize the State's changes. EPA seeks public comment prior to taking final action.

DATES:

Comments must be received on or before January 21, 2020.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R01-RCRA-2019-0617, at https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from www.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:

Sharon Leitch, RCRA Waste Management, UST and Pesticides Section; Land, Chemicals and Redevelopment Division; EPA Region 1, 5 Post Office Square, Suite 100 (Mail code 07-1), Boston, MA 02109-3912; telephone number: (617) 918-1647; fax number (617) 918-0647; email address: leitch.sharon@epa.gov.

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 Maine, 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 October 16, 2019, Maine submitted a complete program revision application seeking authorization of changes to its hazardous waste program. EPA concludes that Maine's application to revise its authorized program meets all of the statutory and regulatory requirements established under 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 Maine final authorization to operate its hazardous waste program with the changes described in the authorization application, and as outlined below in Section F of this document.

Maine 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 proposed authorization decision?

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

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

This action will not impose additional requirements on the regulated community because the regulations for which EPA is proposing to authorize Maine are already effective under state law and are not changed by this proposed action.

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

If EPA receives comments on this proposed action, we will address all such comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this authorization, you should do so at this time.

E. What has Maine previously been authorized for?

Maine initially received final authorization on May 6, 1988, effective May 20, 1988 (53 FR 16264) to implement the RCRA hazardous waste management program. EPA granted authorization for changes to Maine's program on the following dates: June 24, 1997, effective August 25, 1997 (62 FR 34007); and November 9, 2004, effective January 10, 2005 (69 FR 64861).

F. What changes are we proposing with today's action?

On October 16, 2019, Maine submitted a final complete program revision application, seeking authorization of changes to its hazardous waste management program in accordance with 40 CFR 271.21. Maine is seeking authorization for updated state regulations addressing portions of the federal Land Disposal Restrictions (LDRs); the federal Toxicity Characteristic (TC) rules to also include organics; updates to the Test Methods; additional Waste Listings; the Conditional Exclusion for Solvent Contaminated Wipes; the Universal Waste rule; and changes to Maine's base program for which they had been previously authorized. EPA proposes to determine, subject to receipt of written comments that oppose this action, that Maine's hazardous waste program revisions are equivalent to, consistent with, and no less stringent than the federal program, and therefore satisfy all of the requirements necessary to qualify for final authorization. Therefore, EPA is proposing to authorize Maine for the following program changes:

Because Maine has not adopted certain waste listings that were promulgated under the authority of the Hazardous and Solid Waste Amendments (HSWA), we are not authorizing Maine for Land Disposal Restrictions related to these wastes at this time. As such, EPA will retain authority over the following hazardous waste listings (identified by rule revision checklist number) until the State adopts and is granted authorization in a future rulemaking: 82, Wood Preserving Listings (55 FR 50450, 12/6/1990); 140, Carbamate Production Wastes (60 FR 7824, 2/9/1995, as amended at 60 FR 19165, 4/17/1995, and at 60 FR 25619, 5/12/1995); 169, Petroleum Refining Process Wastes (63 FR 42110, 8/6/1998); 189, Chlorinated Aliphatics Wastes (65 FR 67068, 11/8/2000); and 195, Inorganic Chemical Manufacturing Wastes (66 FR 58258, 11/20/2001; 67 FR 17119, 4/9/2002). In addition, since the state has not adopted the air emission rules at 40 CFR part 264 and 265 (subparts AA and BB), and these provisions were also promulgated under HSWA authority, EPA will retain authority for these rules and will not be authorizing Maine for the related LDR revisions.

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. Note, the Federal requirements are identified by reference to a Federal regulation and are followed by the corresponding State regulatory analogs. The changes are as follows: Federal: Materials that are not solid wastes when recycled, 40 CFR 261.2(e)(1)(ii)—State: Added 850.3.A(3)(a)(xix), recycled isopropyl alcohol as an excluded hazardous waste when it is used or reused as an effective substitute for commercial products; Federal: 40 CFR part 279—State: Used cutting oil exclusion, 850.3A(4)(a); Federal: 40 CFR part 262 generator container inspection requirements—State: 851.13.D(1) reduced the requirement for daily inspections at central accumulation areas to weekly inspections.

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

When revised state rules differ from the Federal rules in the RCRA state authorization process, EPA determines whether the state rules are equivalent to, more stringent than, or broader in scope than the federal program. Pursuant to Section 3009 of RCRA, 42 U.S.C. 6929, state programs may contain requirements that are more stringent than the federal regulations. Such more stringent requirements can be federally authorized and, once authorized, become federally enforceable. Although the statute does not prevent states from adopting regulations that are broader in scope than the federal program, states cannot receive federal authorization for such regulations, and they are not federally enforceable.

EPA considers the following State requirements to be more stringent than the Federal requirements: (a) Maine does not have the exclusion for K061 waste, electric arc furnace dust; (b) the use of underground injection as a means of land disposal is prohibited in Maine, therefore Maine did not adopt any provisions allowing such underground injection; (c) Maine does not have equivalent provisions for 40 CFR part 266, therefore Maine did not adopt any provisions relating to the federal rule; (d) Maine did not adopt the optional changes at 40 CFR 260.30-33; (e) Maine did not adopt the provisions at 40 CFR 268.1(c)(4), Maine requires additional conditions for disposal in a Clean Water Act (CWA) unit; (f) Maine requires a Bureau of Environmental Protection (BEP) rulemaking for any variance from specified treatment technologies issued by EPA; (g) Maine did not adopt any of the provisions for containment buildings; (h) Maine did not adopt any of the revisions to 40 CFR 270.42 for permit modifications, Maine's permit modification procedures are more stringent than the federal ones; and, (i) Maine has reduced the daily inspection requirements for satellite accumulation areas to weekly inspections.

Maine also has some regulations that differ from, but have been determined to be equivalent to, the federal regulations. Specifically, Maine's exclusion for solvent contaminated wipes incorporates the federal solid waste exclusion requirements into the State's exclusion from hazardous waste requirements, therefore the resulting requirements are the same. In addition, Maine has added postconsumer architectural paint waste to its Universal Waste rules in chapter 858. We are authorizing this as being equivalent to the requirements of 40 CFR part 273 Subpart G since postconsumer architectural paint is an appropriate universal waste and that the rules allow the States the flexibility to add additional wastes to their list of universal wastes. Therefore, EPA is reauthorizing the existing universal waste regulations as they are applied to the paint wastes.

These requirements would become part of Maine's authorized program and would be federally enforceable.

EPA also considers the following State requirement as going beyond the scope of the Federal program: Maine has not adopted the mixture and derived from rule revisions (see 66 FR 27266, 5/16/2001) except that Maine has adopted, at 850.3.C(4)(c), an exemption for medicinal nitroglycerine equivalent to the EPA exemption. The waste mixtures and derived from wastes that are excluded from Federal regulation by EPA continue to be regulated as wastes in Maine, except for medicinal nitroglycerine. The State exemption is a broader-in scope requirement.

Broader-in-scope requirements do not become 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 Federal RCRA requirements.

EPA cannot delegate certain Federal requirements associated with the land disposal restrictions at 40 CFR 286.5, 268.40(b), 268.42(b) and 286.44(a)-(g). Although Maine has adopted these requirements by reference at 852.8A, 852.14A and 852.14B, EPA would continue to implement those requirements.

H. Who handles permits after the final authorization takes effect?

When the final authorization takes effect, Maine will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to implement and issue permits for HSWA requirements for which Maine is not yet authorized. EPA has the authority to enforce state-issued permits after the State is authorized.

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

Maine has not applied for and is not authorized to carry out its hazardous waste program in Indian country within the State, which includes the land of the Houlton Band of Maliseet Indians; the Aroostook Band of Micmacs; the Passamaquoddy Tribe at Pleasant Point and Indian Township; and the Penobscot Nation. 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 will EPA codify Maine's hazardous waste program as proposed in this rule?

Codification is the process of placing citations and references to 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 adding those citations and references to the authorized State rules in 40 CFR part 272. EPA is not proposing to codify the authorization of Maine's changes at this time. However, EPA reserves the ability to amend 40 CFR part 272, subpart U for the authorization of Maine's program at a later date.

K. Statutory and Executive Order Reviews

The Office of Management and Budget (OMB) has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). This action proposes to authorize State requirements for the purpose of RCRA section 3006 and imposes no additional requirements beyond those imposed by State law. Therefore, this action is not subject to review by OMB. This action is not an Executive Order 13771 (82 FR 9339, February 3, 2017) regulatory action because actions such as today's proposed authorization of Maine's revised hazardous waste program under RCRA are exempted under Executive Order 12866. 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 proposes to authorize 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 (2 U.S.C. 1531-1538). For the same reason, 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 proposes to authorize 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 action 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 section 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 proposing 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 this action 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 action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). “Burden” is defined at 5 CFR 1320.3(b). 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 action proposes authorization of pre-existing State rules which are at least equivalent to, and no less stringent than existing federal requirements, and imposes no additional requirements beyond those imposed by State law, and there are no anticipated significant adverse human health or environmental effects, this proposed rule is not subject to Executive Order 12898.

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, and 6974(b).