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 is revised to become more stringent or broader in scope, States must revise their programs and apply to EPA to authorize the revisions. Authorization of revisions to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other revisions occur. Most commonly, States must revise their programs because of revisions to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 268, 270, 273 and 279.

B. What decisions have we made in this rule?

EPA concludes that West Virginia's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant West Virginia final authorization to operate its hazardous waste program with the revisions described in its application for program revisions, subject to the procedures described in section E, ( printed page 70226) below. West 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 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 HSWA requirements and prohibitions for which West Virginia has not been authorized, including issuing HSWA permits, until the State is granted authorization to do so.

C. What is the effect of this authorization decision?

This decision serves to authorize revisions to West Virginia's authorized hazardous waste program. This action does not impose additional requirements on the regulated community because the regulations for which West Virginia is being authorized by this action are already effective and are not changed by this action. West Virginia has enforcement responsibilities under its state hazardous waste program for violations of its program, but EPA retains its 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 West Virginia has taken its own actions.

D. Why wasn't there a proposed rule before this rule?

EPA did not publish a proposal before this 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 West Virginia's program revisions. If EPA receives comments that oppose this authorization, that document will serve as a proposal to authorize the revisions to West Virginia's program that were the subject of adverse comment.

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 would become effective. EPA will base any further decision on the authorization of West Virginia's program revisions on the proposal mentioned in the previous section. We will then address all public comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time. If we receive comments that oppose the authorization of a particular revision to West Virginia's hazardous waste program, we will withdraw that part of this rule, but the authorization of the program revisions 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 West Virginia previously been authorized for?

Initially, West Virginia received final authorization to implement its hazardous waste management program effective May 29, 1986 (51 FR 17739). EPA granted authorization for revisions to West Virginia's regulatory program on May 10, 2000, effective July 10, 2000 (65 FR 29973) and October 16, 2003, effective December 15, 2003 (68 FR 59542).

G. What revisions are we authorizing with this action?

On May 1, 2013, West Virginia submitted a final complete program revision application, seeking authorization of additional revisions to its program in accordance with 40 CFR 271.21. West Virginia's revision application includes: (1) Various regulations that are equivalent to, and no less stringent than, revisions to the Federal hazardous waste program, as published in the Code of Federal Regulations as of June 16, 2010, and (2) a request for EPA's approval of the State's use of the cleanup standards in its Voluntary Remediation Program (VRP) at RCRA corrective action sites.

We now make an immediate final decision, subject to receipt of written comments that oppose this action, that West Virginia's hazardous waste program revision satisfies all of the requirements necessary to qualify for final authorization. Therefore, EPA grants West Virginia's final authorization for the following program revisions:

1. Program Revision Changes for Federal Rules

West Virginia seeks authority to administer the Federal requirements that are listed in Table 1. This Table lists the West Virginia analogs that are being recognized as no less stringent than the analogous Federal requirements. West Virginia's regulatory references are to the West Virginia Code of State Regulations, Title 33, Series 20 “Hazardous Waste Management System” (33 CSR 20), effective June 16, 2011; and Title 45, Series 25 “Control of Air Pollution from Hazardous Waste Treatment, Storage and Disposal Facilities” (45 CSR 25), effective June 16, 2011. West Virginia's application also includes a revised Program Description and Memorandum of Agreement, which explain the reorganization of the State agencies responsible for implementing the hazardous waste program, as well as the procedures that will be followed when the VRP cleanup standards are used at RCRA corrective action sites.

West Virginia is also seeking authorization for certain State-initiated changes that are not directly related to any of the Revision Checklists listed in Table 1. These State-initiated changes are related to the adoption and renumbering of provisions intended to improve the clarity of the State's regulations and to provide for necessary conforming changes as a result of changes in State agencies or in Federal amendments that do not apply to West Virginia. State regulatory provisions that have been renumbered since the 2003 authorization are listed in Table 2.

The State's statutory authority for the hazardous waste program for which it is seeking authorization is based on the following provisions from the West Virginia Code, as amended through 2010: Chapter 22, Article 18, Hazardous Waste Management Act; Chapter 22, Article 1, Department of Environmental Protection, Sections 22-1-3a, 22-1-3(c), 22-1-6(c), and 22-1-6(d)(8); Chapter 22, Article 5, Air Pollution Control, Section 22-5-1 and Chapter 22, Article 12, Groundwater Protection Act, Section 22-12-4. West Virginia's authority to incorporate the Federal program is found at W. Va. Code, Section 22-1-3(c). ( printed page 70227)

2. State-Initiated Changes

West Virginia has amended its regulations by adopting and renumbering provisions intended to improve the clarity of the State's regulations and to provide for necessary conforming changes as a result of changes in State terms and agencies, or Federal amendments that do not apply to West Virginia. In addition, 33-20-5.5 as found in the July 1, 2001 regulations was removed. This provision specifically incorporated by reference the March 8, 2000 federal final rule addressed by Revision Checklist 184 and was necessary because at the time, West Virginia incorporated by reference 40 CFR as of July 1, 1999. The provision is no longer necessary because West Virginia now incorporates by reference 40 CFR as of June 16, 2010. EPA has evaluated the changes and has determined that the State's regulations remain consistent with, and are no less stringent than, the corresponding Federal regulations. Table 2 lists those State regulatory provisions that have been renumbered since the 2003 authorization.

3. The West Virginia Voluntary Remediation Program as It Relates to the State's RCRA Corrective Action Program

On December 15, 2003, EPA approved the State's application for revision of the State authorized Hazardous Waste Program. The 2003 approval included, among other things, the authority for the State to implement corrective action at hazardous waste sites. EPA's authorization of the State's Corrective Action Program related to corrective action permitting responsibilities under RCRA sections 3004(u) and (v). West Virginia is now seeking approval to utilize, at RCRA corrective action sites, the cleanup standards in its Voluntary Remediation Program (VRP), as set forth in its Voluntary Remediation and Redevelopment Act (Chapter 22, Article 22 of the West Virginia Code) and its implementing regulations in Title 60, Series 3 of the Code of State Regulations (60 CSR 3), “Voluntary Remediation And Redevelopment Rule,” effective May 1, 2012.

EPA has reviewed the Voluntary Remediation Program that was in effect in 2008, and in a letter to WVDEP dated August 21, 2008, EPA identified areas where the VRP standards are potentially inconsistent with EPA corrective action requirements and guidance documents. However, EPA agrees to allow the use of the VRP standards to the extent that the requirements of the VRP are consistent with and no less stringent than the federal corrective action requirements, and that completed cleanups are consistent with EPA goals. For those ( printed page 70230) sites where EPA has determined that the application of VRP standards will not result in cleanups that are protective of the environment, West Virginia will use the appropriate EPA requirement to assure that the cleanup will protect the environment.

This approval to allow the use of the cleanup standards of the VRP at RCRA corrective action sites and the Memorandum of Agreement (MOA) between the State and EPA do not alter the corrective action authorities granted to the State in 2003. The MOA sets forth more specific detail regarding how the State will implement corrective action at hazardous waste sites and clarifies the role of the VRP cleanup standards within the Corrective Action Program. However, no provision of the Voluntary Remediation and Redevelopment Act or regulations promulgated pursuant thereto relieves any person of the responsibility to comply with any otherwise applicable portion of the authorized hazardous waste program or prevents the State from exercising the full extent of its authority corresponding to the state program approval requirements found in 40 CFR 271.16 (“Requirements for enforcement authority”), in any matter.

H. Where are the revised West Virginia rules different from the Federal rules?

1. Rules for Which West Virginia Is Not Seeking Authorization

West Virginia is not seeking authorization for the following RCRA revisions that are found in 40 CFR as of June 16, 2010:

(a) West Virginia is not seeking authorization for, and has appropriately left authority with EPA, for non-delegable federal rules. Non-delegable federal rules address certain functions for which EPA must retain authority, including treatment standards variances at 40 CFR 268.44(a)-(g). At section 33-20-1.5.a, West Virginia excludes from its substitution of state terms, federal rules that cannot be delegated to the state. In some cases, West Virginia also excludes non-delegable rules from its incorporation by reference. For example, at section 33-20-10.2, West Virginia excludes 40 CFR 268.44 from its incorporation by reference of 40 CFR part 268. EPA will continue to implement these requirements as appropriate.

(b) In its hazardous waste management rules at 33 CSR 20 effective June 16, 2011, West Virginia has incorporated by reference the Uniform Hazardous Waste Manifest final rules (70 FR 10776; 3/04/05 as amended June 16, 2005 at 70 FR 35034; Revision Checklist 207). However, the West Virginia Public Service Commission rules at 150 CSR 11, effective December 24, 2002, and the WV Department of Transportation regulations at 157 CSR 7, effective April 17, 2012, do not contain analogs to some of the 40 CFR part 263 requirements for transporters that were revised by the March 4, 2005 and June 16, 2005 final rules.

(c) At § 33-20-11.1, West Virginia has incorporated by reference 40 CFR part 267, as introduced by the September 8, 2005 final rule addressing Standardized Permits for RCRA Hazardous Waste Management Facilities (70 FR 53420-53478, Revision Checklist 210). However, West Virginia is not being authorized for this final rule because after reviewing the state's regulations, EPA found that West Virginia has not correctly adopted all of the revisions introduced by the Standardized Permit rule.

(d) West Virginia is not seeking authorization for the National Environmental Performance Track Program (4/22/04, 69 FR21737; as amended 10/25/04, 69 FR 62217; Revision Checklist 204). On March 16, 2009, EPA announced its intention to halt and review the National Performance Track Program.

2. More Stringent West Virginia Rules

The West Virginia hazardous waste program contains some provisions that are more stringent than is required by the RCRA program as codified in the June 16, 2010 edition of title 40 of the Code of Federal Regulations (CFR). These more stringent provisions are being recognized as a part of the Federally-authorized program. The specific more stringent provisions are also noted in West Virginia's authorization application. They include, but are not limited to, the following:

(a) At § 33-20-3.1.a, West Virginia requires the owner and operator to comply with additional requirements beyond the Federal requirements in order for a mixture of waste and one or more hazardous wastes identified in 40 CFR 261.3(a)(2)(iv) to be exempt from the definition of hazardous waste. This makes the State more stringent.

(b) At § 33-20-5.4 and 33-20-5.5, West Virginia is more stringent because the state requires copies of all documents sent to EPA in compliance with 40 CFR parts 262 Subparts E and H, to also be sent to the state.

(c) At § 33-20-7.3 and 33-20-8.2, West Virginia is more stringent in that the State requires that the notification sent to EPA in compliance with 40 CFR 264.12(a) and 265.12(a), also be sent to the state.

I. Who handles permits after this authorization takes effect?

After this authorization revision, West 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 that we issued prior to the effective date of this authorization. Until such time as formal transfer of EPA permit responsibility to West Virginia occurs and EPA terminates its permit, EPA and West Virginia agree to coordinate the administration of permits in order to maintain consistency. We will not issue any more new permits or new portions of permits for the provisions listed in Section G after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which West Virginia is not yet authorized.

J. How does this action affect Indian Country (18 U.S.C. 115) in West Virginia?

West Virginia is not seeking authorization to operate the program on Indian lands, since there are no Federally-recognized Indian lands in West Virginia.

K. What is codification and is EPA codifying West Virginia'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 XX, for this authorization of West Virginia's program revisions until a later date.

L. Administrative Requirements

The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore this action is not subject to review by OMB. This action authorizes State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action authorizes pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required ( printed page 70231) 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). For the same reason, this action would not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). In any case, Executive Order 13175 does not apply to this rule since there are no Federally recognized tribes in the State of West Virginia.

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 that may disproportionately affect children. 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. 3701, et seq.) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 18, 1988) by examining the takings implications of the rule in accordance with the Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this document and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication in the Federal Register . A major rule cannot take effect until 60 days after it is published in the Federal Register . This action is not a “major rule” as defined by 5 U.S.C. 804(2); this action will be effective January 24, 2014.

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).