[Federal Register: May 10, 2006 (Volume 71, Number 90)]
[Rules and Regulations]
[Page 27204-27209]
[DOCID:fr10my06-5]

=======================================================================
-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[EPA-R03-RCRA-2006-0381; FRL-8165-7]

Virginia: Final Authorization of State Hazardous Waste Management
Program Revisions

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

-----------------------------------------------------------------------

SUMMARY: Virginia has applied to EPA for final authorization of
revisions to its

hazardous waste program under the Resource Conservation and Recovery
Act (RCRA). EPA has determined that these revisions satisfy all
requirements needed to qualify for final authorization and is
authorizing Virginia's revisions through this immediate final action.
EPA is publishing this rule to authorize the revisions without a prior
proposal because we believe this action is not controversial and do not
expect comments that oppose it. Unless we receive written comments that
oppose this authorization during the comment period, the decision to
authorize Virginia's revisions to its hazardous waste program will take
effect. If we receive comments that oppose this action, we will publish
a document in the Federal Register withdrawing the relevant amendments,
section or paragraph of this rule before they take effect and a
separate document in the proposed rules section of this Federal
Register will serve as a proposal to authorize revisions to Virginia's
program that were the subject of adverse comments.

DATES: This final authorization will become effective on July 10, 2006,
unless EPA receives adverse written comments by June 9, 2006. If EPA
receives any such comment, it will publish a timely withdrawal of this
immediate final rule in the Federal Register and inform the public that
this authorization, or portions thereof, will not take effect as
scheduled.

ADDRESSES: Submit your comments, identified by [EPA-R03-RCRA-2006-0381]
by one of the following methods:
    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow

the on-line instructions for submitting comments.
    2. E-mail<EMAIL_ADDRESS>    3. Mail: Lillie Ellerbe, Mailcode 3WC21, RCRA State Programs
Branch, U.S. EPA Region III, 1650 Arch Street, Philadelphia, PA 19103-
2029.
    4. Hand Delivery: At the previously-listed EPA Region III address.
Such deliveries are only accepted during normal hours of operation, and
special arrangements should be made for deliveries of boxed
information.
    You may inspect 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, Division of Waste Program
Coordination, 629 East Main Street, Richmond, VA 23219, Phone number:
(804) 698-4213, attn: Robert Wickline, and Virginia Department of
Environmental Quality, West Central Regional Office, 3019 Peters Creek
Road, Roanoke, VA 24019, Phone number:<PHONE_NUMBER>, attn: Aziz
Farahmand, and EPA Region III, Library, 2nd Floor, 1650 Arch Street,
Philadelphia, PA 19103-2029, Phone number:<PHONE_NUMBER>.
    Instructions: Direct your comments to [EPA-R03-RCRA-2006-0381].
EPA's policy is that all comments received will be included in the
public file without change, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://www.regulations.gov

or e-mail. The federal http://www.regulations.gov Web site is an ``anonymous

access'' system which means that 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
http://www.regulations.gov, your e-mail address will be automatically captured

and included as part of the comment that is placed in the public file
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 and any form of encryption, and be free of any defects or
viruses.

FOR FURTHER INFORMATION CONTACT: Lillie Ellerbe, Mailcode 3WC21, RCRA
State Programs Branch, U.S. EPA Region III, 1650 Arch Street,
Philadelphia, PA 19103-2029, Phone number:<PHONE_NUMBER>.

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. Program revision may be necessary when the
controlling Federal or State statutory or regulatory authority is
modified or supplemented. 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 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, we grant 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, below. 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 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 Virginia's
authorized hazardous waste program. 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. 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 Virginia
has taken its own actions.

D. Why Wasn't There a Proposed Rule Before This 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 Virginia's program revisions. If EPA receives comments that
oppose this authorization, or portions thereof, that document will
serve as a proposal to authorize the revisions to 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, or
portions thereof, we will withdraw this rule, or portions thereof, by
publishing a document in the Federal Register before the rule would
become effective. EPA will base any further decision on the
authorization of 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 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 Virginia Previously Been Authorized For?

    Initially, Virginia received final authorization to implement its
hazardous waste management program effective December 18, 1984 (49 FR
47391). EPA granted authorization for revisions to Virginia's
regulatory program effective August 13, 1993 (58 FR 32855); September
29, 2000 (65 FR 46607); and June 20, 2003 (68 FR 36925).

G. What Revisions Are We Authorizing With This Action?

    On May 6, 2005, Virginia submitted a program revision application,
seeking authorization of additional revisions to its program in
accordance with 40 CFR 271.21. Virginia's revision application includes
various regulations that are equivalent to, and no less stringent than,
revisions to the Federal hazardous waste program, as published in the
Federal Register from July 1, 2001 through July 1, 2004, as well as
miscellaneous changes to its previously authorized program. We now make
an immediate final decision, subject to receipt of written comments
that oppose this action, that Virginia's hazardous waste program
revision satisfies all of the requirements necessary to qualify for
final authorization. Therefore, EPA grants Virginia's final
authorization for the following program revisions:

1. Program Revision Changes for Federal Rules

    Virginia seeks authority to administer the Federal requirements
that are listed in Table 1. Virginia incorporates by reference these
Federal provisions, in accordance with the dates specified in Title 9,
Virginia Administrative Code (9 VAC 20-60-18). Table 1 lists Virginia's
requirements that are being recognized as no less stringent than the
analogous Federal requirements. The Virginia Waste Management Act
(VWMA), enacted by the 1986 session of the Virginia's General Assembly
and recodified in 1988 as Chapter 14, Title 10.1, Code of Virginia,
forms the basis of the Virginia program. The regulatory references are
to Title 9, Virginia Administrative Code (9 VAC) effective September 8,
2004.

                            Table 1.--Virginia's Analogs to the Federal Requirements
----------------------------------------------------------------------------------------------------------------
   Description of Federal Requirement
       (Revision Checklists) \1\                     Federal Register              Analogous Virginia Authority
----------------------------------------------------------------------------------------------------------------
                                          RCRA Cluster XI \2\, Non-HSWA
----------------------------------------------------------------------------------------------------------------
Hazardous Air Pollutant Standards;       66 FR 35087, 7/3/01....................  Title 9, Virginia
 Technical corrections, Checklist 188.                                             Administrative Code (9 VAC)
                                                                                Sec.  Sec.   20-60-18 and 20-
                                                                                60-264 A.
----------------------------------------------------------------------------------------------------------------
                                         RCRA Cluster XII, HSWA/Non-HSWA
----------------------------------------------------------------------------------------------------------------
Hazardous Waste Identification Rule      66 FR 50332, 10/3/01...................  9 VAC Sec.  Sec.   20-60-18
 Corrections: Revisions to Mixture and                                             and 20-60-261 A.
 Derived-From Rules, Checklist 194.
Identification and Listing of Hazardous  66 FR 58258, 11/20/01; 67 FR 17119, 4/9/ 9 VAC Sec.  Sec.   20-60-18,
 Waste: Inorganic Chemical                02.                                      20-60-261 A and 20-60-268 A.
 Manufacturing Wastes; Land Disposal
 Restrictions for Newly Identified
 Wastes, Checklist 195.
----------------------------------------------------------------------------------------------------------------
                                             RCRA Cluster XII, HSWA
----------------------------------------------------------------------------------------------------------------
CAMU Amendments, Checklist 196.........  67 FR 2962, 1/22/02....................  9 VAC Sec.  Sec.   20-60-18,
                                                                                20-60-260 A and 20-60-264 A.
----------------------------------------------------------------------------------------------------------------
                                         RCRA Cluster XII, HSWA/Non-HSWA
----------------------------------------------------------------------------------------------------------------
Interim Standards for Hazardous Air      67 FR 6792, 2/13/02....................  9 VAC Sec.  Sec.   20-60-18,
 Pollutants for Hazardous Waste                                                    20-60-264 A, 20-60-265 A, 20-
 Combustors, Checklist 197.                                                        60-266 A and 20-60-270 A.
Hazardous Air Pollutant Standards for    67 FR 6968, 2/14/02....................  9 VAC Sec.  Sec.   20-60-18,
 Hazardous Waste Combustors, Checklist                                             20-60-266 A and 20-60-270 A.
 198.
----------------------------------------------------------------------------------------------------------------
                                           RCRA Cluster XII, Non-HSWA
----------------------------------------------------------------------------------------------------------------
Vacatur of Mineral Processing Spent      67 FR 11251, 3/13/02...................  9 VAC Sec.  Sec.   20-60-18
 Materials Being Reclaimed as Solid                                                and 20-60-261 A.
 Wastes and TCLP Use with MGP Waste,
 Checklist 199.
----------------------------------------------------------------------------------------------------------------

                                        RCRA Cluster XIII, HSWA/Non-HSWA
----------------------------------------------------------------------------------------------------------------
Zinc Fertilizers Made From Recycled      67 FR 48393, 7/24/02...................  9 VAC Sec.  Sec.   20-60-18,
 Hazardous Secondary Materials,                                                    20-60-261 A, 266 A and 20-60-
 Checklist 200.                                                                    268 A.
----------------------------------------------------------------------------------------------------------------
                                             RCRA Cluster XIII, HSWA
----------------------------------------------------------------------------------------------------------------
Land Disposal Restrictions: National     67 FR 62618, 10/7/02...................  9 VAC Sec.  Sec.   20-60-18
 Treatment Variance to Designate New                                               and 20-60-268 A.
 Treatment Subcategories for
 Radioactively Contaminated Cadmium-,
 Mercury-, and Silver-, Containing
 Batteries, Checklist 201.
NESHAP: Standards for Hazardous Air      67 FR 77687, 12/19/02..................  9 VAC Sec.  Sec.   20-60-18
 Pollutants for Hazardous Waste                                                    and 20-60-270 A.
 Combustors-Corrections, Checklist 202.
----------------------------------------------------------------------------------------------------------------
                                           RCRA Cluster XIV, Non-HSWA
----------------------------------------------------------------------------------------------------------------
Hazardous Waste Management System:       68 FR 44659, 7/30/03...................  9 VAC Sec.  Sec.   20-60-8, 20-
 Identification and Listing of                                                     60-261 A and 20-60-279 A.
 Hazardous Waste; Recycled Used Oil
 Standards, Checklist 203.
National Environmental Performance       69 FR 21737, 4/22/04...................  9 VAC Sec.  Sec.   20-60-18
 Track Program, Checklist 204.                                                     and 20-60-262A.
NESHAP: Surface Coating of Automobiles   69 FR 22601, 4/26/04...................  9 VAC Sec.  Sec.   20-60-18,
 and Light-Duty Trucks, Checklist 205.                                             20-60-264A, and 20-60-265A.
----------------------------------------------------------------------------------------------------------------
\1\ A Revision Checklist is a document that addresses the specific revisions made to the Federal regulations by
  one or more related final rules published in the Federal Register. EPA develops these checklists as tools to
  assist States in developing their authorization applications and in documenting specific State analogs to the
  Federal Regulations. For more information see EPA's RCRA State Authorization Web page at http://www.epa.gov/
  epaoswer/hazwaste/state.

\2\ A RCRA ``Cluster'' is a set of Revision Checklists for Federal rules, typically promulgated over a 12-month
  period starting on July 1 and ending on June 30 of the following year.

2. Miscellaneous Changes

    In addition to adopting the Federal program revisions discussed in
Section G.1, Virginia has made various regulatory revisions to its
authorized program. Virginia is seeking authorization for these
miscellaneous changes. In a number of the revisions, Virginia has made
wording changes and technical corrections in order to clarify its
regulations. For example, ``director'' has been replaced by
``department'' in many provisions. Virginia has also removed a portion
of the provision that was at 9 VAC Sec.  20-60-70 B. The Commonwealth
previously required that permits for hazardous waste management
facilities, including permits by rule, be the subject of a public
hearing. The provision was more stringent than the Federal
requirements. By removing a portion of the 9 VAC Sec.  20-60-70 B
provision from its regulations, Virginia's requirement for public
hearings is now the same as the analogous Federal regulation.
    Finally, Virginia has made various additional regulatory revisions
which are listed following this paragraph. While some of the changes
clarify Virginia's regulations, others make the Virginia program more
stringent or broader in scope than the Federal program. The broader-in-
scope provisions are discussed in Section H.1 below. Regulatory
citations annotated with an asterisk are deemed to be more stringent
than the Federal program. EPA has evaluated the changes described in
this section and has determined that they are consistent with and no
less stringent than the corresponding Federal regulations.
    Title 9, Virginia Administrative Code (9 VAC) Sec. Sec.  20-60-264
B 8*, 20-60-264 B 9*, 20-60-264 B 10*, 20-60-264 B 11, 20-60-264 B 12,
20-60-264 B 13*, 20-60-264 B 14*, 20-60-264 B 15*, 20-60-264 B 16*, 20-
60-264 B 17*, 20-60-264 B 18*, 20-60-264 B 19*, 20-60-264 B 20, 20-60-
264 B 21, 20-60-264 B 22*, 20-60-265 B 8*, 20-60-270 B 15, 20-60-315 D
and 20-60-420 A.
    A further discussion of Virginia's miscellaneous regulatory changes
is found in the following application document for Virginia:
``Demonstration of Adequate Authority for Virginia Hazardous Waste
Program Revisions, Program Revision III, 2004.''

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

1. Virginia Requirements That Are Broader in Scope Than the Federal
Program

    The Virginia hazardous waste program contains certain provisions
that are beyond the scope of the Federal program. As part of the
miscellaneous changes discussed in Section G.2, Virginia amended its
hazardous waste regulations to (1) change the fee structure for permit
applicants, (2) add annual fees for facilities and large quantity
generators, and (3) shift the cost of certain public participation
activities to applicants and petitioners. The requirements, which are
listed below, are beyond the scope of the Federal program. These
broader in scope provisions are not part of the program being
authorized by today's action. EPA cannot enforce requirements that are
broader in scope, although compliance with such provisions is required
by Virginia law.
    (a) Virginia's regulations at 9 VAC Sec.  20-60-124 B9 now require
the petitioners for variances to publish and announce the required
public hearings at their expense.
    (b) Virginia's regulations at 9 VAC Sec. Sec.  20-60-262 B8, 20-60-
270 B16 and 20-60-1260 through 9 VAC 20-60-1286 require that beginning
July 1, 2004, large quantity generators, permitted facilities, interim
status facilities and all facilities subject to an order or agreement,
must pay an annual fee to help fund the regulatory programs.

2. Virginia Requirements That Are More Stringent Than the Federal
Program

    The Virginia hazardous waste program contains some provisions that
are more stringent than those required by the RCRA program as codified
in the July 1, 2004 edition of title 40 of the

Code of Federal Regulations (CFR). These more stringent provisions are
hereby incorporated into the Federally-authorized program. The specific
more stringent provisions are noted in Section G.2.

3. Virginia's Adoption of EPA's Site-Specific Delisting and Variance
Decisions

    In its regulations, Virginia has adopted EPA's decisions relative
to the site-specific delistings published on July 30, 2003 (68 FR
44652), August 7, 2003 (68 FR 46951), September 11, 2003 (68 FR 53517),
February 26, 2004 (69 FR 8828), April 22, 2004 (69 FR 21754), as well
as the site-specific treatment variances from the Land Disposal
Restrictions (LDR) treatment standards published on February 11, 2004
(69 FR 6567). EPA today is not authorizing Virginia to delist wastes or
to grant treatment variances. With regard to waste delisted as a
hazardous waste by EPA, the authority of the Department of
Environmental Quality is limited to recognition of the waste as a
delisted waste in Virginia, and the supervision of waste management
activities for the delisted waste when the activities occur within the
Commonwealth of Virginia. Virginia is not authorized to delist wastes
on behalf of the EPA, or to otherwise administer any case decision to
issue, revoke, or continue a delisting of a waste by EPA. Similarly,
while Virginia is recognizing EPA's decision regarding the site-
specific treatment variances, the authority to grant such variances
remains with the EPA.

I. Who Handles Permits After This 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 that we issued prior to the effective
date of this authorization until the timing and process for effective
transfer to the State are mutually agreed upon. Until such time as
formal transfer of EPA permit responsibility to Virginia occurs and EPA
terminates its permit, EPA and 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 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 This Action Affect Indian Country (18 U.S.C. 115) in
Virginia?

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

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 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 VV, for this authorization of Virginia's
program revisions until a later date.

L. Statutory and Executive Order Reviews

    This rule only authorizes hazardous waste requirements pursuant to
RCRA section 3006 and imposes no requirements other than those imposed
by State law (see Supplementary Information: section A. Why are
Revisions to State Programs Necessary?). Therefore, this rule complies
with applicable executive orders and statutory provisions as follows.

1. Executive Order 12866: Regulatory Planning Review

    The Office of Management and Budget has exempted this rule from its
review under Executive Order 12866.

2. Paperwork Reduction Act

    This rule does not impose an information collection burden under
the Paperwork Reduction Act.

3. Regulatory Flexibility Act

    After considering the economic impacts of today's rule on small
entities under the Regulatory Flexibility Act, I certify that this rule
will not have a significant economic impact on a substantial number of
small entities.

4. Unfunded Mandates Reform Act

    Because this rule approves 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.

5. Executive Order 13132: Federalism

    Executive Order 13132 does not apply to this rule because it will
not have federalism implications (i.e., 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).

6. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    Executive Order 13175 does not apply to this rule because it will
not have tribal implications (i.e., substantial direct effects on one
or more Indian tribes, on the relationship between the Federal
government and Indian tribes, or on the distribution of power and
responsibilities between the Federal Government and Indian tribes).

7. Executive Order 13045: Protection of Children From Environmental
Health & Safety Risks

    This rule is not subject to Executive Order 13045 because it is not
economically significant and it is not based on health or safety risks.

8. Executive Order 13211: Actions That Significantly Affect Energy
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211 because it is not
a significant regulatory action as defined in Executive Order 12866.

9. National Technology Transfer and Advancement Act

    EPA approves State programs as long as they meet criteria required
by RCRA, so it would be inconsistent with applicable law for EPA, in
its review of a State program, to require the use of any particular
voluntary consensus standard in place of another standard that meets
the requirements of RCRA. Thus, section 12(d) of the National
Technology Transfer and Advancement Act does not apply to this rule.

10. Congressional Review Act

    EPA will submit a report containing this rule and other information
required by the Congressional Review Act (5 U.S.C. 801 et seq.) 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 on July
10, 2006.

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, 6974(b).

    Dated: April 13, 2006.
Donald S. Welsh,
Regional Administrator, EPA Region III.
[FR Doc. 06-4200 Filed 5-9-06; 8:45 am]

BILLING CODE 6560-50-P