Environmental Protection Agency (EPA).Start Printed Page 46607
Immediate final rule.
The Commonwealth of Virginia has applied to EPA for Final authorization of the 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 this approval. Unless we get written comments which oppose this authorization during the comment period, the decision to authorize Virginia'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.
This Final authorization will become effective on September 29, 2000, unless EPA receives adverse written comment by August 30, 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.
Send written comments to Joanne Cassidy, Mailcode 3WC21, RCRA State Programs Branch, U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA 19103; phone number: (215) 814-3381.
You can view and copy Virginia's application from 8:15 a.m. to 4:30 p.m., Monday through Friday, at the following addresses:
Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia 23219; phone number: (804) 698-4213;
Virginia Department of Environmental Quality, West Central Regional Office, 3019 Peters Creek Road, Roanoke, Virginia 24019; phone number: (540) 562-6700; and
EPA Region III, Library, 2nd Floor, 1650 Arch Street, Philadelphia, PA 19103; phone number: (215) 814-5254.Start Further Info
FOR FURTHER INFORMATION CONTACT:
Joanne Cassidy, Mailcode 3WC21, RCRA State Programs Branch, U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA 19103; phone number: (215) 814-3381.End Further Info End Preamble Start Supplemental Information
A. Why Are Revisions to State Programs Necessary?
States which have received Final authorization from EPA under 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 Virginia's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, EPA grants Virginia Final authorization to operate its hazardous waste program with the changes described in the authorization application. Virginia 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 Virginia, 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 Virginia subject to RCRA will have to comply with the authorized Commonwealth requirements instead of the equivalent Federal requirements in order to comply with RCRA. Virginia has enforcement responsibilities for violations of its program, but EPA retains authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:
- Perform inspections, and require monitoring, tests, analyses or reports;
- Enforce RCRA requirements and suspend or revoke permits; and
- 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 Virginia 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 decision, or portion(s) thereof, we will withdraw this authorization decision, or portion(s) thereof, 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 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 EPA receives 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 Virginia Previously Been Authorized for?
The Commonwealth of Virginia initially received Final authorization on December 4, 1984, effective December 18, 1984 (49 FR 47391) to implement the RCRA hazardous waste management Start Printed Page 46608program. Since receiving final authorization, the Commonwealth has restructured its hazardous waste management program and revised its statutes and regulations. Virginia's Attorney General's Statement, dated June 26, 1984, amended by letter dated September 5, 1984, which was a component of the Commonwealth's original final authorization, cited the Virginia Waste Management Act (VWMA) contained in Title 32.1 of the Code of Virginia (Va. Code) as the controlling statute for the Commonwealth's hazardous waste program. Since then, the statutes have undergone a number of revisions, and in 1988, the Virginia General Assembly recodified the VWMA in the Va. Code, Chapter 14, Title 10.1.
The Virginia Waste Management Act was originally written to give the primary implementation of the hazardous waste program to the Virginia Department of Health. In 1986, the Virginia General Assembly created the Department of Waste Management under the new cabinet-level Secretary of Natural Resources. This action made the new department the successor in interest to the Department of Health in authority, duty and responsibility for solid, hazardous, and radioactive waste. The Assembly also retained in effect all the regulations that the Board of Health had issued in those areas. In 1992, the General Assembly established the new Department of Environmental Quality (DEQ) consisting of the Department of Air Pollution Control, the Department of Waste Management, the State Water Control Board, and the Council on the Environment. Based on legislative authority, the DEQ has the sole responsibility for the administration of laws and regulations concerning hazardous wastes. In 1993, the functions of the Hazardous Waste Program were vested in the DEQ Division of Waste Programs and six regional offices. This transfer of authority for the management of the Hazardous Waste Program was approved by EPA as an authorized program revision effective August 13, 1993 (58 FR 32855).
The Virginia General Assembly has made numerous amendments to the regulations promulgated under the Commonwealth's Waste Management Act in order to remain consistent with, and equivalent to, the Federal regulations promulgated under RCRA Subtitle C. Specifically, Virginia has revised the format of its hazardous waste regulations from one of incorporation of the full text of the Federal regulatory language with modifications, to “incorporation by reference” with modifications.
G. What Revisions Are We Authorizing With Today's Action?
Over a period of years, Virginia submitted several sets of draft regulations and elements of a draft authorization application to EPA for review and comment. The Agency reviewed each submission and provided comments to Virginia. On June 23, 2000, Virginia submitted an official, complete program revision application, seeking authorization for the restructuring of its hazardous waste program, as well as authorization of its program revisions, in accordance with 40 CFR 271.21. EPA Region III worked closely with Virginia in the development of the authorization package; therefore, EPA's comments relating to Virginia's legal authority to carry out the Federally delegated programs, the scope of and coverage of activities regulated, 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 solicited public comments on its draft regulations. EPA reviewed Virginia's application, and now makes an immediate final decision, subject to receipt of adverse written comment, that the Commonwealth's hazardous waste program revision satisfies all of the requirements necessary to qualify for final authorization. Consequently, EPA intends to grant Virginia final authorization for the program modifications contained in the program revision application.
Virginia's program revision application includes Commonwealth regulatory changes that are equivalent to the Federal regulations published in the July 1, 1995 version of Title 40 of the Code of Federal Regulations, parts 124, 260 through 266, 268, 270, and 273, except for the final rules published in the Federal Register on September 10, 1992 (57 FR 41566); May 3, 1993 (58 FR 26420); June 17, 1993 (58 FR 33341); March 4, 1994 (59 FR 10550); December 6, 1994 (59 FR 62896); January 3, 1995 (60 FR 241); January 13, 1995 (60 FR 3089); February 9, 1995 (60 FR 7824); April 4, 1995 (60 FR 17001); April 17, 1995 (60 FR 19165); May 12, 1995 (60 FR 25619); May 19, 1995 (60 FR 26828); and on June 29, 1995 (60 FR 33911).
Virginia 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 no less stringent than the analogous Federal requirements. Unless otherwise stated, the Commonwealth's statutory references are to the Code of Virginia (Va. Code) Title 10.1, Chapter 14, §§ 10.1-1400 through 1457 (1999 Replacement Volume). The regulatory references are to Title 9, Virginia Administrative Code (9 VAC) effective February 17, 1999.
|Federal requirement 1||Analogous Virginia authority|
|Part 260—Hazardous Waste Management System: General, as of July 1, 1995||Code of Virginia (Va. Code) §§ 10.1-1400, 10.1-1402(1), 10.1-1402(11); Title 9, Virginia Administrative Code (9 VAC) §§ 20-60-12, 20-60-14, 20-60-17A, 20-60-18, 20-60-260, 20-60-1370, 20-60-1380, 20-60-1390, 20-60-1400, 20-60-1410 A, 20-60-1420 A&B, 20-60-1420 C1, 20-60-1430 A1-4.|
|(More stringent provisions are: 20-60-1370 B, 20-60-1420 B2, 20-60-1420 C1a).|
|Part 261—Identification and Listing of Hazardous Waste, as of July 1, 1995||Va. Code §§ 10.1-1402(8), 10.1-1402(11), 10.1-1402(22); 9 VAC §§ 20-60-18, 20-60-261, 20-60-1430 A5.|
|(More stringent provisions are: 20-60-261 B1 and 20-60-261 B5).|
|Part 262—Standards Applicable to the Generators of Hazardous Wastes, as of July 1, 1995||Va. Code §§ 10.1-1402(1), 10.1-1402(7), 10.1-1402(11), 10.1-1426(B) and 10.1-1450; 9 VAC §§ 20-60-18, 20-60-262, 20-60-305, 20-60-315, 20-60-325.|
|(More stringent provisions are: 260-60-262 B4 and 20-60-262 B6).|
|Part 263—Standards Applicable to the Transporters of Hazardous Wastes, as of July 1, 1995||Va. Code §§ 10.1-1402(1), 10.1-1402(7), 10.1-1402(11), 10.1-1402(18), 10.1-1426(A) & (B) and 10.1-1450; 9 VAC §§ 20-60-263, 20-60-305, 20-60-315, 20-60-325, 20-60-420A-D, 20-60-430, 20-60-440, 20-60-450H, 20-60-460, 20-60-470, 20-60-480, 20-60-490, 20-60-500.|
|(More stringent provisions are: 20-60-440 C, 20-60-480 G2, 20-60-490 C & D).|
|Part 264—Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities, as of July 1, 1995||Va. Code §§ 10.1-1402(1), 10.1-1402(7), 10.1-1402(11), 10.1-1402(18), 10.1-1426(A), (B) & (C) 10.1-1427(B) and 10.1-1428; 9 VAC §§ 20-60-17B, 20-60-18, 20-60-264, 20-60-305, 20-60-315, 20-60-325, 20-60-1410B, 20-60-1420 C2.|
|Start Printed Page 46609|
|(More stringent provisions are: 20-60-264 B4, 20-60-264 B5, 20-60-264 B11, 20-60-264 B14, 20-60-264 B15a).|
|Part 265—Interim Status Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities, as of July 1, 1995||Va. Code §§ 10.1-1402(1), 10.1-1402(11), 10.1-1426(A). 9 VAC §§ 20-60-17B, 20-60-18, 20-60-265, 20-60-305, 20-60-315, 20-60-325, 20-60-1410B, 20-60-1420 C2.|
|(More stringent provisions are: 20-60-265 B3, 20-60-265 B4, 20-60-265 B5, 20-60-265 B6, 20-60-265 B7, 20-60-265 B15, 20-60-265 B16, 20-60-265 B17).|
|Part 266—Standards for the Management of Specific Hazardous Wastes and Specific Types of Hazardous Waste Management Facilities, as of July 1, 1995||Va. Code §§ 10.1-1402(1), 10.1-1402(7), 10.1-1402(11), 10.1-1402(18), 10.1-1426(A), (B) & (C) 10.1-1427(B) and 10.1-1428; 9 VAC §§ 20-60-18, 20-60-266, 20-60-420F.|
|(More stringent provisions are: 20-60-266 B1-3).|
|Part 268—Land Disposal Restrictions, as of July 1, 1995||Va. Code §§ 10.1-1402(1), 10.1-1402(11); 9VAC §§ 20-60-18, 20-60-268, 20-60-1410C.|
|Part 270—The Hazardous Waste Permit Program and Part 124—Permit Procedures, as of July 1, 1995||Va. Code §§ 10.1-1402, 10.1-1426, 10.1-1427, 2.1-342(A); 9 VAC §§ 20-60-14 B2 & B4, 20-60-17A, 20-60-18, 20-60-70 E & F, 20-60-124, 20-60-270, 20-60-970 through 20-60-1250, Appendix 11.2.|
|(More stringent provisions are: 20-60-270 B4, 20-60-970 C, 20-60-1010 B5, 20-60-1010 B10, 20-60-1010 K3d, 20-60-1010 K4b, 20-60-1060 L1&2a, 20-60-1170 B4, 20-60-1170 C4, 20-60-1170 C7, 20-60-1200 C1b, 20-60-1200 E, Appendix 11.2 entries A(4)(b), B(1)(d), B(2)(b), B(5)(a)&(b), C(1)(a), C(3), I(3)&(4), and L(8)).|
|Part 273—Standards for Universal Waste Management, as of July 1, 1995||Va. Code §§ 10.1-1402(1), 10.1-1402(7), 10.1-1402(8), 10.1-1402(11), 10.1-1450, 10.1-1426(A) & (C); 9 VAC §§ 20-60-273, 20-60-305, 20-60-315, 20-60-325.|
|(More stringent provision is: 20-60-273 B3).|
|Non-HSWA Cluster II|
|Radioactive Mixed Waste (MW) (RCRA §§ 1004(27) and 3001(b))||Va. Code §§ 10.1-1400 “Solid waste”, 10.1-1402(22); 9VAC 20-60-261 B8.|
|HSWA Cluster I|
|Sharing of Information With the Agency for Toxic Substances and Disease Registry (SI) (RCRA § 3019(b))||Va. Code §§ 10.1-1402(1), 10.1-1402(2) and 10.1-1402(9).|
|1 Federal Regulations as published in the 40 CFR, as of July 1, 1995 (Base Program through RCRA Cluster V), except rules published in the Federal Register as noted above.|
H. Where Are the Revised Commonwealth Rules Different From the Federal Rules?
The Virginia hazardous waste program contains several provisions which are more stringent than is required by the RCRA program as codified in the July 1, 1995 edition of Title 40 of the Code of Federal Regulations (CFR). These more stringent provisions are part of the Federally authorized program and are Federally enforceable. The specific more stringent provisions are noted in the table above and the Commonwealth's authorization application, and include, but are not limited to, the following:
1. At 9 VAC 20-60-1420 C 1 a, (analog to 40 CFR 260.41(a)), Virginia requires compliance with all of 40 CFR part 262, including subpart B, the manifest requirements. Under the Federal code, the Administrator may only require compliance with subparts A, C, D and E of 40 CFR part 262.
2. In 9 VAC 20-60-261 B 5 (partial analog to 40 CFR 261.5(g)(3)(iv) & (v)), a conditionally exempt small quantity generator cannot send exempt hazardous waste to a solid waste facility unless that facility has written permission from the Department to receive such wastes.
3. In 9 VAC 20-60-262 B 4, prior to March 1, 1988, generators accumulating hazardous waste in accordance with 40 CFR 262.34 were required to notify the Department of that activity. Generators intending to open an accumulation area after March 1, 1988 are required to notify the Department of that intent 15 days before establishing the accumulation area. New generators are required to identify the location of accumulation areas when filing a Notification of Hazardous Waste Activity.
4. In 9 VAC 20-60-263 B 1, transporters of hazardous waste must comply with Part VII of the Virginia regulations. Part VII contains some provisions that are more stringent than the Federal requirements of 40 CFR part 263. Specifically, 9 VAC 20-60-440 C requires that identification numbers be placed on correspondence and spill documents; 9 VAC 20-60-480 G2 requires that any manifest be revised instead of allowing the designation by generators of an alternate facility on the manifest; and 9 VAC 20-60-490 C and D require that additional parties be notified in the case of a discharge.
5. In 9 VAC 20-60-264 B14, 9 VAC 20-60-265 B17, and 9 VAC 20-60-270 B4, underground injection of hazardous waste is prohibited. From the initiation of the hazardous waste program in Virginia, the Commonwealth determined that suitable geological conditions for underground injection facilities do not exist.
6. In addition to the requirements of 40 CFR 265.91, at 9 VAC 20-60-265 B7, Virginia requires that a log must be made of each groundwater monitoring well describing the soils and rock encountered, the permeability of formations, and the cation exchange capacity of soils encountered, and a copy of the log with appropriate maps must be sent to the Department.
7. In Part XI, nine types of permit modifications (e.g., waste pile management practices and substitution of non-hazardous waste fuel) are considered to be more extensive modifications than the Federal program requires at 40 CFR 270.42. That is, EPA has three “classes” of permit Start Printed Page 46610modifications triggering three types of procedures to affect their approval. These procedures consist of simple notification, agency approval, or public involvement. In some instances, Virginia re-designates EPA classes of permit modifications, requiring a more rigorous procedure for approval.
The Commonwealth's regulations do not include a number of provisions analogous to the Federal rules listed below. The following provisions are not part of the Commonwealth's program being authorized by today's action:
Virginia is not seeking authorization at this time for the final rules published in the Federal Register on December 6, 1994 (59 FR 62896); January 3, 1995 (60 FR 241); January 13, 1995 (60 FR 3089); February 9, 1995 (60 FR 7824); April 4, 1995 (60 FR 17001); April 17, 1995 (60 FR 19165); May 12, 1995 (60 FR 25619); May 19, 1995 (60 FR 26828), and on June 29, 1995 (60 FR 33911).
The Commonwealth's regulations include a number of provisions that are not part of the Commonwealth's program being authorized by today's action. Such provisions include, but are not limited to, the following:
1. Virginia is not seeking authorization for hazardous waste procedures or the review of petitions regarding equivalent testing, or for excluding certain recycled wastes from being classified as solid waste.
2. Virginia 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 § 3006(f).
3. At 9 VAC 20-60-279, Virginia has adopted provisions addressing the used oil management standards, as published in the Federal Register on September 10, 1992 (57 FR 41566); May 3, 1993 (58 FR 26420); June 17, 1993 (58 FR 33341); and March 4, 1994 (59 FR 10550) (40 CFR part 279). However, the Commonwealth is not seeking authorization for this portion of the program at this time.
4. Section 38.2-2200 of the Code of Virginia allows the Commonwealth to act directly against the insurer or guarantor of an owner's or operator's financial responsibility. This provision is similar to the ability of the Federal government to act under section 3004(t) of RCRA. EPA does not delegate its authority to act under the Federal statute; therefore, in this situation, the Virginia law creates a parallel cause of action viable in State courts, but the cause of action does not limit the availability of the Federal action. The Commonwealth's cause of action is separate and in addition to any Federal action.
5. At 9 VAC 20-60-262 A, 20-60-262 B2 and 20-60-262 B3, Virginia has adopted the requirements addressed by 40 CFR 262.12, 262.53, 262.54, 262.55, 262.56 and 262.57, and has correctly left the implementation authority with EPA for the non-delegable hazardous waste import and export requirements. Similarly, at 9 VAC 20-60-268 A and 20-60-268 B3, the Commonwealth has correctly left the implementation authority with EPA for the non-delegable provisions at 40 CFR 268.5, 268.6, 268.10, 268.11, 268.12, 268.40(b), 268.42(b) and 268.44(a) through (g).
The Commonwealth's regulations contain several requirements that are broader in scope than the Federal program, and are not part of the program being authorized by today's action. EPA cannot enforce these broader-in-scope requirements. Although compliance with these requirements is appropriate in accordance with Commonwealth law, they are not RCRA requirements. Such provisions include but are not limited to the following:
1. At 9 VAC 20-60-420 E, 20-60-450, 20-60-490 B 3 and Appendix 7.1, Virginia requires all transporters, including universal waste transporters, to obtain a transporter permit and pay a permit application fee if they handle shipments that originate or terminate in the Commonwealth.
2. At 9 VAC 20-60-266 B 3, to the degree Virginia places requirements beyond Federal requirements on transporters for shipments of spent lead-acid batteries destined for recovery, Virginia is broader in scope.
3. In Part XII, Virginia requires permit application fees from hazardous waste storage, treatment and disposal facilities.
I. Who Handles Permits After the Authorization Takes Effect?
After authorization, Virginia 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 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 the joint administration (e.g. modifications) of the EPA and Commonwealth permits so they remain consistent over time. EPA will not issue any more new permits or new portions of permits for the provisions listed in the Table above after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which Virginia is not yet authorized.
J. How Does Today's Action Affect Indian Country (18 U.S.C. 115) in Virginia?
Virginia 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 Virginia'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 VV, for such future use.
L. Regulatory Analysis and Notices
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, EPA generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating an EPA rule for which a written statement is needed, section 205 of the UMRA generally requires EPA to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPA to adopt an alternative other than the least costly, most cost-effective or least burdensome alternative if the Administrator publishes with the final rule an explanation why that alternative was not adopted.
Before EPA establishes any regulatory requirements that may significantly or uniquely affect small governments, including tribal governments, it must Start Printed Page 46611have developed under section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of EPA regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.
EPA has determined that section 202 and 205 requirements do not apply to today's action because this rule does not contain a Federal mandate that may result in annual expenditures of $100 million or more for State, local, and/or tribal governments in the aggregate, or the private sector. Costs to Commonwealth, local and/or tribal governments already exist under the Virginia program, and today's action does not impose any additional obligations on regulated entities. In fact, EPA's approval of Commonwealth programs generally may reduce, not increase, compliance costs for the private sector. Further, as it applies to the Commonwealth, this action does not impose a Federal intergovernmental mandate because UMRA does not apply to duties arising from participation in a voluntary Federal program.
The requirements of section 203 of UMRA also do not apply to today's action because this rule contains no regulatory requirements that might significantly or uniquely affect small governments. Although small governments may be hazardous waste generators, transporters, or own and/or operate TSDFs, they are already subject to the regulatory requirements under the existing Commonwealth laws that are being authorized by EPA, and, thus, are not subject to any additional significant or unique requirements by virtue of this program approval.
Certification Under the Regulatory Flexibility Act (RFA), as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq.
The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.
For purposes of assessing the impacts of today's action on small entities, a small entity is defined as: (1) A small business as specified in the Small Business Administration regulations; (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000; and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.
After considering the economic impacts of this authorization on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. This action does not impose any new requirements on small entities because small entities that are hazardous waste generators, transporters, or owners and/or operators of TSDFs are already subject to the regulatory requirements under the Commonwealth laws which EPA is now authorizing. This action merely authorizes for the purpose of RCRA section 3006 those existing Commonwealth requirements.
Submission to Congress and the Comptroller General
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 rule 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 of the rule in today's Federal Register. This rule is not a “major rule” as defined by 5 U.S.C. 804(2).
Compliance With Executive Order 12866
The Office of Management and Budget has exempted this rule from the requirements of Executive Order 12866.
Compliance With Executive Order 13132 (Federalism)
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications.” “Policies that have Federalism implications” is defined in the Executive Order to include regulations that 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.”
Under section 6 of Executive Order 13132, EPA may not issue a regulation that has Federalism implications, that imposes substantial direct compliance costs, and that is not required by statute, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by State and local governments, or EPA consults with State and local officials early in the process of developing the proposed regulation. EPA also may not issue a regulation that has Federalism implications and that preempts State law unless the Agency consults with State and local officials early in the process of developing the proposed regulation.
This authorization does not have Federalism implications. It will not have a substantial direct effect on 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, because this rule affects only one State. This action simply approves Virginia's proposal to be authorized for updated requirements of the hazardous waste program that the Commonwealth has voluntarily chosen to operate.
Further, as a result of this action, newly authorized provisions of the Commonwealth's program apply in Virginia in lieu of the equivalent Federal program provisions implemented by EPA under HSWA. Affected parties are subject only to those authorized Commonwealth program provisions, as opposed to being subject to both Federal and Commonwealth regulatory requirements. Thus the requirements of section 6 of the Executive Order do not apply.
Compliance With Executive Order 13045
Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks,” applies to any rule that: (1) The Office of Management and Budget determines is “economically significant” as defined under Executive Order 12866; and (2) concerns an environmental health or safety risk that EPA has reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, the Agency must evaluate the environmental health or safety effects of the planned rule on children and explain why the planned regulation is Start Printed Page 46612preferable to other potentially effective and reasonably feasible alternatives considered by the Agency.
EPA interprets Executive Order 13045 as applying only to those regulatory actions that are based on health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This rule is not subject to Executive Order 13045 because it authorizes a State program.
Compliance With Executive Order 13084
Under Executive Order 13084, EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments, or EPA consults with those governments. If EPA complies with consulting, Executive Order 13084 requires EPA to provide to the Office of Management and Budget, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation.
In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments “to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.”
This rule is not subject to Executive Order 13084 because it does not significantly or uniquely affect communities of Indian tribal governments. Virginia is not authorized to implement the RCRA hazardous waste program in Indian country, since there are no Federally-recognized Indian lands in the Commonwealth.
Paperwork Reduction Act
Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., Federal agencies must consider the paperwork burden imposed by any information request contained in a proposed rule or a final rule. This rule will not impose any information requirements upon the regulated community.
National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law No. 104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs EPA to provide Congress, through OMB, explanations when the Agency decides not to use available and applicable voluntary consensus standards.
This action does not involve such technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.Start List of Subjects
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
- Reporting and recordkeeping requirements
Dated: July 17, 2000.
Bradley M. Campbell,
Regional Administrator, EPA Region III.
[FR Doc. 00-19114 Filed 7-28-00; 8:45 am]
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