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Vermont: Final Authorization of State Hazardous Waste Management Program Revisions

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Information about this document as published in the Federal Register.

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Environmental Protection Agency (EPA).


Immediate final rule.


The State of Vermont has applied to EPA for final authorization of certain changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA has determined that these changes satisfy all requirements needed to qualify for final authorization, and is authorizing the State's changes through this immediate final action.


This final authorization will become effective on May 15, 2007 unless EPA receives adverse written comment by April 16, 2007. If EPA receives such comment, it will publish a timely withdrawal of this immediate final rule in the Federal Register and inform the public that this authorization will not take immediate effect.


Submit your comments, identified by Docket ID No. EPA-R01-RCRA-2007-0135, by one of the following methods:

  • Follow the on-line instructions for submitting comments.
  • E-mail:
  • Fax: (617) 918-0647, to the attention of Sharon Leitch
  • Mail: Sharon Leitch, Hazardous Waste Unit, EPA Region 1, One Congress Street, Suite 1100 (CHW), Boston, MA 02114-2023
  • Hand Delivery or Courier: Deliver your comments to: Sharon Leitch, Hazardous Waste Unit, Office of Ecosystem Protection, EPA Region 1, One Congress Street, 11th Floor, (CHW), Boston, MA 02114-2023. Such deliveries are only accepted during the Office's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Identify your comments as relating to Docket ID No. EPA-R01-RCRA-2007-0135. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or claimed to be other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through or e-mail. The Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an e-mail comment directly to EPA without going through, your e-mail address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket visit the EPA Docket Center homepage at​epahome/​dockets.htm.

Docket: EPA has established a docket for this action under Docket ID No. EPA-R01-RCRA-2007-0135. All documents in the docket are listed on the Web site. Although it may be listed in the index, some information might not be publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through or in hard copy at the following two locations: aves\rules.xml(i) EPA Region 1 Library, One Congress Street-11th Floor, Boston, MA 02114-2023; by appointment only; tel: (617) 918-1990; and (ii) Agency of Natural Resources, 103 South Main Street-West Office Building, Waterbury, Vermont, 05671-0404; Business Hours: 7:45 AM to 4:30 PM, Monday through Friday; tel: (802) 241-3888.

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Sharon Leitch, Hazardous Waste Unit, EPA Region 1, One Congress Street, Suite 1100 (CHW), Boston, MA 02114-Start Printed Page 125692023, telephone number: (617) 918-1647; fax number: (617) 918-0647, e-mail address:

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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?

We have concluded that Vermont's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant Vermont final authorization to operate its hazardous waste program with the changes described in the authorization application. Vermont has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders and for carrying out the aspects of the RCRA program covered by 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 any such requirements and prohibitions in Vermont, 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 Vermont subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. Vermont has enforcement responsibilities under its State hazardous waste program for violations of such program, but EPA also retains its full authority under RCRA sections 3007, 3008, 3013, and 7003, which includes, among others, authority to:

  • Perform inspections, and require monitoring, tests, analyses or reports
  • Enforce RCRA requirements and suspend or revoke permits
  • Take enforcement actions

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

D. Why Wasn't There a Proposed Rule Before Today's Rule?

EPA did not publish a proposal before today's rule because we view this as a routine program change and do not expect adverse comments that oppose this approval. We are providing an opportunity for public comment now. In addition to this rule, in the proposed rules section of today's Federal Register we are publishing a separate document that proposes to authorize the State program changes.

E. What Happens if EPA Receives Comments That Oppose This Action?

If EPA receives comments that oppose this authorization, we will withdraw this rule by publishing a document in the Federal Register before the rule becomes effective. EPA will base any further decision on the authorization of the State program changes on the proposal mentioned in the previous paragraph. We will then address all public comments in a later final rule based upon this proposed rule that also appears in today's Federal Register. You may not have another opportunity to comment. If you want to comment on this authorization, you should do so at this time.

If we receive adverse comments that oppose only the authorization of a particular change to the State hazardous waste program, we will 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 Vermont Previously Been Authorized for?

The State of Vermont initially received final authorization on January 7, 1985, with an effective date of January 21, 1985 (50 FR 775) to implement the RCRA hazardous waste management program. The Region published an immediate final rule for certain revisions to Vermont's program on May 3, 1993 (58 FR 26242) and reopened the comment period for these revisions on June 7, 1993 (58 FR 31911). This authorization became effective August 6, 1993 (58 FR 31911). The Region granted authorization for further revisions to Vermont's program on September 24, 1999 (64 FR 51702), effective November 23, 1999. On October 18, 1999 (64 FR 46174) the Region published a correction to the immediate final rule that was published on September 24, 1999. The Region granted authorization for further revisions to Vermont's program on October 26, 2000, effective December 26, 2000 (65 FR 64164). That Federal Register also made a technical correction. On June 23, 2005 (70 FR 36350) the Region published an immediate final rule for additional revisions to Vermont's program. This authorization became effective on August 22, 2005.

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

On January 31, 2007, Vermont submitted a final complete program revision application, seeking authorization for their changes in accordance with 40 CFR 271.21. In particular, Vermont is seeking authorization for updated State regulations addressing federal requirements added from July 1, 2003 through June 30, 2005, plus federal manifest rule changes, and the federal dyes and pigments listing, which took effect after June 30, 2005. Vermont is also seeking authorization for various changes it recently has made to its base program regulations. Finally, Vermont is seeking authorization for an additional extension of the special regulations governing the New England Universities' Laboratories XL project.

We are now making an immediate final decision, subject to reconsideration only if we receive written comments that oppose this action, that Vermont's hazardous waste program revisions satisfy all of the requirements necessary to qualify for final authorization. Therefore, we grant Vermont final authorization for the following program changes. First, we are authorizing State regulations that track federal regulations adopted since July 1, 2003, as follows (the Federal Citation is followed by the analog from chapter 7 of the Vermont Environmental Protection Rules (Hazardous Waste Management Regulations), effective October 15, 2006): Federal: Recycled Used Oil Management Standards-Revisions [68 FR 44659, 7/30/03] (Checklist 203)—State: 7-805(d) and sections 7-809(c)(1) Start Printed Page 12570and (c)(2)(A) through (C); Federal: National Environmental Performance Track Program and Corrections [69 FR 21737, 4/22/04, and 69 FR 62217, 10/25/04] (Checklist 204)—State: 7-308(b)(2)(D); Federal: Nonwastewaters from Dyes and Pigments and Corrections [70 FR 9138, 2/24/05 and 70 FR 35032, 6/16/05] (Checklist 206)—State: 7-106, Appendix I , Appendix II, and Appendix IX; and, Federal: Uniform Hazardous Waste Manifest Rule and Corrections [70 FR 10776, 3/4/05 and 70 FR 35034, 6/16/05] (Checklist 207)—State: 7-103; 7-109(b)(3); 7-203(j); 7-203(j)(1)(B) and (C); 7-309(b)(1)(C); 7-309(b)(8); 7-504(e)(1); 7-510(c)(1); 7-702(a)(1); 7-702(b)(3); 7-702(b)(3)(A) and (B); 7-703(a); 7-703(b)(6) and (7); 7-704(a); 7-704(b); 7-704(b)(1), ( 2), (3), (6) and (7); 7-704(c), (d) and (f); 7-704(g)(1); 7-704(g)(1)(A), (B) and (C); 7-704(g)(2), (3), and (4); 7-704(h); 7-704(h)(1) through (7); 7-705(b)(7)(C) and (E); 7-705(c)(1) and (3); 7-706(b)(3), (4), and (5); and, Appendix V.

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. These changes are as follows: Federal: 40 CFR part 260-279—State: (general update to incorporation by reference) 7-109(a); Federal: Regulation of materials used in a manner constituting disposal, 40 CFR 261.2(c)(1)(i)—State: Revised and clarified, 7-204(a)(2)(A); Federal: Regulation of materials burned for energy recovery, 40 CFR 261.2(c)(2)(i)—State: Revised and clarified, 7-204(a)(2)(B); Federal: Exemption for certain commercial chemical products applied to the land, 40 CFR 261.2(c)(1)(ii)—State: Added and clarified, 7-204(k); Federal: Exemptions for commercial chemical products being reclaimed, 40 CFR 261.2(c)(3) and for certain commercial chemical products burned as fuels, 261.2(c)(2)(ii)—State: Added and clarified, 7-204(l); Federal: the definition of used oil, 40 CFR 279.1—State: Revised and clarified, 7-103 and 7-802; Federal: Generator requirements, 40 CFR 262.34—State: Revised and clarified the generator change in status notification requirement, 7-104(c); Federal: Marking requirements, 40 CFR 262.32 reflecting the hazardous waste determination at 262.11—State: Clarification, 7-202; Federal: Exemption for certain petroleum contaminated media and debris, 261.4(b)(10)—State: Clarified and more stringent, 7-203(p) and added definition of media, 7-103; Federal: Representative sampling methods, 40 CFR 261 Appendix I—State: Incorporation by reference, 7-219(c); Federal: Generator manifest requirements, 40 CFR 262.20—State: Clarification, 7-304(c); Federal, generator emergency response, 40 CFR 262.34(a)(4), incorporating 40 CFR part 265, Subpart D, and 40 CFR 262.34(d)—State: Clarification, 7-307(c)(10), 7-308(b)(2)(D), and 7-308(b)(11); Federal: Generator tank system closure, 40 CFR 262.34(a)(1)(ii), incorporating 40 CFR part 265, subpart J—State: Revised 7-309(c); Federal, transporter transfer facility requirements, 40 CFR 263.12—State, added and more stringent, 7-404-(c)(3); Federal: State authorization for consolidation of CESQG waste at certain small and large quantity generators, 261.5(g)(3)(iii)—State: Clarification, 7-502(q); and, additional requirements regarding 40 CFR parts 260-279—State: Allowance for the State to impose additional requirements on a case by case basis, 7-512. Note: Depending upon the nature of the requirements, the additional requirements may be more stringent than the federal program or they may be broader in scope.

The State has also made changes to its previously authorized Project XL regulations. The EPA is also authorizing these changes. These changes are as follows: Federal: Extension of the Project XL Site-specific Rulemaking for University Laboratories, 40 CFR 262.108—State: 7-109(c); Federal: Project XL requirements, 40 CFR 262.100-262.107—State: revised and clarified, 7-109(c). The Vermont Project XL regulations were originally authorized by the EPA and became part of the Federally enforceable VT RCRA program on October 26, 2000. See 65 FR 64164. Specifically, we are now authorizing an extension of approximately two and a half years to April 15, 2009. EPA amended its Federal regulations to extend the expiration date of the XL Project from September 30, 2006 to a new date of April 15, 2009. See 71 FR 35547. The State has adopted an extension of six years to September 30, 2012. The EPA is only able to authorize the extension for two and a half years at this time, but could consider another Federal extension should a longer one prove necessary. EPA believes an extension is appropriate since it has recently proposed a national set of alternative regulations for academic laboratories (see 71 FR 29712, May 23, 2006) and, pending promulgation of a national rule, the extension will allow the universities currently participating in the Labs XL Project to continue to build upon the successes of the project and not have to terminate their participation in the Project. The current extension of the expiration date also should be accompanied by an updated Final Project Agreement (FPA) for this XL Project. We anticipate that the FPA will be updated (for this interstate Vermont-Massachusetts project) by the time that the EPA authorizes the Commonwealth of Massachusetts for changes it will be making to its hazardous waste program regulations. EPA expects that this will occur in the spring of 2007.

The final authorization of new State regulations and regulation changes is in addition to the previous authorization of State regulations, which remain part of the authorized program.

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

The most significant differences between the State rules being authorized and the Federal rules are summarized below. It should be noted that this summary does not describe every difference, or every detail regarding the differences that are described. Members of the regulated community are advised to read the complete regulations to ensure that they understand all of the requirements with which they will need to comply.

1. More Stringent Provisions

There are aspects of the Vermont program which are more stringent than the Federal program. All of these more stringent requirements are, or will become, part of the Federally enforceable RCRA program when authorized by the EPA and must be complied with in addition to the State requirements which track the minimum Federal requirements. These more stringent requirements include the following: (a) There is no State analog to the Federal rule at 40 CFR 261.5(j) because the State does not exempt conditionally exempt small quantity generators from the hazardous waste regulations; (b) Vermont does not include the exclusion for leachate or gas condensate generated at non-hazardous landfills which is derived from previously disposed and newly-listed hazardous wastes (40 CFR 261.4(b)(15)) in their rules; (c) the State exemption at 7-203(p) for petroleum contaminated media and debris includes additional conditions that are not included in the Federal exemption at 40 CFR 261.4(b)(10); (d) Vermont is also more stringent by not adopting the following optional rule: NESHAPS—Surface Coating of Automobiles and Light Duty Trucks, Checklist 205; and, (e) the State has revised its language regarding commercial chemical product fuels in 7-204(a)(2), (k) and (l). The revised Start Printed Page 12571State exemption is equivalent to the combination of the Federal exemption for commercial chemical product fuels being burned for energy recovery and the Federal exemption for commercial chemical products being reclaimed, in 40 CFR 261.2(c)(2)(ii) and (c)(3), respectively. However, Vermont does not have the general exemption for commercial chemical products being reclaimed, but is adopting the exemption for commercial chemical products being reclaimed only when they are reclaimed to produce fuels, e.g., when water is removed from an off-spec unused fuel so that it can be burned. The State is more stringent in that it attaches conditions to the exemption for certain commercial chemical products burned as fuels.

2. Partially Broader in Scope Provisions

There are also aspects of the Vermont program which are partially broader in scope than the Federal program. The portion of the State requirements which are broader in scope are not considered to be part of the Federally enforceable RCRA program. However, they are fully enforceable under State law and must be complied with by sources in Vermont. The various changes Vermont has made to its previously authorized base program regulations include partially broader in scope provisions. These provisions involve the State requirements for generator closure at 7-309(c). The State revised their requirements for generator closure with this update. The requirements are partially broader in scope since they apply to all generator closures and not just to closure of generator tanks systems as is the case under the Federal program.

I. Who Handles Permits After the Authorization Takes Effect?

Vermont will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer and enforce any RCRA and HSWA (Hazardous and Solid Waste Act) permits or portions of permits which it has issued in Vermont prior to the effective date of this authorization until the State incorporates the terms and conditions of the federal permits into the State RCRA permits. EPA will not issue any more new permits, or new portions of permits, for the provisions listed in this notice above after the effective date of this authorization. EPA will continue to implement and issue permits for any HSWA requirements for which Vermont is not yet authorized.

J. What Is Codification and Is EPA Codifying Vermont'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. We do this by referencing the authorized State rules in 40 CFR Part 272. We reserve the amendment of 40 CFR Part 272, Subpart UU for this authorization of Vermont's program until a later date.

K. Administrative Requirements

The Office of Management and Budget has exempted this action (RCRA State Authorization) from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993); 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 (Pub. L. 104-4). 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), 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 F.R. 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 nevertheless will be effective 60 days after it is published, because it is an immediate final rule.

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List of Subjects in 40 CFR Part 271

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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).

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Dated: March 1, 2007.

Robert W. Varney,

Regional Administrator, EPA New England.

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[FR Doc. E7-4774 Filed 3-15-07; 8:45 am]