State Hazardous Waste Management Program: West Virginia

West Virginia: Final Authorization of State Hazardous Waste Management Program Revisions

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?

On August 9, 2022, West Virginia submitted a final program revision application (with updated checklists submitted the following year) seeking authorization of revisions to its hazardous waste program that correspond to certain Federal rules promulgated through August 21, 2019.

EPA concludes that West Virginia's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA, as set forth in RCRA section 3006(b), 42 U.S.C. 6926(b), and 40 CFR part 271. Therefore, EPA grants West Virginia final authorization to operate its hazardous waste program with the revisions described in its authorization application, as outlined below in section G of this preamble.

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 action 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 was there not a proposed rule before this rule?

Along with this direct final rule, EPA is publishing a separate document in the "Proposed Rules" section of this issue of the Federal Register that serves as the proposal to authorize these State program revisions. EPA did not publish a proposed rulemaking before this issue of the Federal Register because EPA views this action as a routine program change and does not expect comments that oppose its approval. EPA is providing an opportunity for public comment now, as described in section E of this preamble.

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

If EPA receives adverse comments pertaining to this State revision, EPA will withdraw this direct final rule by publishing a document in the Federal Register before the rule becomes effective. EPA will base any further decision on the authorization of West Virginia's program revisions on the proposed rulemaking mentioned in the previous section, after considering all comments received during the comment period. EPA will then address all relevant 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.

F. What has West Virginia previously been authorized for?

West Virginia initially received final authorization of its hazardous waste program effective May 29, 1986 (May 15, 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); October 16, 2003, effective December 15, 2003 (68 FR 59542); and November 25, 2013, effective January 24, 2014 (78 FR 70225).

G. What revisions is EPA authorizing with this action?

On August 9, 2022, West Virginia submitted a final program revision application (with subsequent corrections) seeking authorization of additional revisions to its hazardous waste program in accordance with 40 CFR 271.21. West Virginia's revision application includes various regulations that are equivalent to, and no less stringent than, selected Federal final hazardous waste rules, as published in the Federal Register through August 19, 2019.

EPA now makes a direct final rule, subject to receipt of written comments that oppose this action, that West Virginia's hazardous waste program revision application satisfies all of the requirements necessary to qualify for final authorization. Therefore, EPA grants West Virginia 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 of this preamble. This table lists the West Virginia analogs that have been revised; these revisions 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" (33CSR20), effective July 1, 2020; Title 45, Series 25 "Control of Air Pollution from Hazardous Waste Treatment, Storage and Disposal Facilities" (45CSR25), effective June 1, 2020; Title 150, Series 11 "Rules Governing the Transportation of Hazardous Waste by Rail" (150CSR11), effective December 24, 2002; and Title 157, Series 7 "Transportation of Hazardous Wastes Upon the Roads and Highways" (157CSR7), effective March 17, 2020.

2. State-Initiated Revisions

In addition, West Virginia will be authorized to carry out, in lieu of the Federal program, State-initiated revisions to provisions of the State's program. These State-initiated revisions are related to the adoption and renumbering of provisions throughout the State's hazardous waste regulations. The changes improve the clarity of the State's regulations and provide the necessary conforming changes due to State terms, or which are related to Federal amendments that do not apply to West Virginia. Tables 2 and 3 of this preamble list the updates on 33CSR20, effective July 1, 2020, where the State incorporates by reference per 33CSR20 sec. 1.5 the Federal counterparts in effect on August 21, 2019.

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

When revised State rules differ from the Federal rules in the RCRA State authorization process, EPA determines whether the State rules are equivalent to, more stringent than, or broader in scope than the Federal program. Pursuant to RCRA section 3009, 42 U.S.C. 6929, State programs may contain requirements that are more stringent than the Federal regulations. Such more stringent requirements can be federally authorized and, once authorized, become federally enforceable. West Virginia's hazardous waste program contains several provisions that are more stringent than the RCRA program. They include, but are not limited to, the following:

1. West Virginia's regulation at 33CSR20 section 4 requires notification to the State of activities involving hazardous waste in the State of West Virginia. This is in addition to the Federal notification requirements found at 40 CFR 262.10(a)(2)(i), 262.13(c)(1), 262.14(a), 262.16, 262.17, 262.232(a)(2), and 266.80(a).

2. West Virginia's regulation at 33CSR20 section 5.3 excepts from incorporation by reference the Federal regulations at 40 CFR 262.14(a)(5)(iv) and (v). These Federal provisions list some conditions that must be met by very small quantity generators (VSQGs) in order to be exempt from meeting most of the requirements of 40 CFR parts 124, 262-268, and 270. West Virginia's program is more stringent because meeting the conditions listed in the Federal provisions will not exempt VSQGs from the analogous requirements listed above.

I. Who handles permits after this authorization takes effect?

After this authorization revision, West Virginia will continue to issue permits covering all the provisions for which it is authorized and will administer all such permits. EPA will continue to administer any RCRA hazardous waste permits or portions of permits that it 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 EPA formally transfers responsibility for a permit to West Virginia and EPA terminates its permit, EPA and West Virginia agree to coordinate the administration of such permit in order to maintain consistency. EPA will not issue any more new permits or new portions of permits for the provisions listed in section G of this preamble 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. 1151) 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 a State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. EPA does this by referencing the authorized State rules in 40 CFR part 272. EPA is not codifying the authorization of West Virginia's revisions at this time. However, EPA reserves the amendment of 40 CFR part 272, subpart XX, for this authorization of West Virginia's program revisions until a later date.

L. Statutory and Executive Order Reviews

This action is not a significant regulatory action as defined in Executive Order 12866 (58 FR 51735, October 4, 1993), as amended by Executive Order 14094 (88 FR 21879, April 11, 2023), because this action authorizes State requirements pursuant to RCRA section 3006 and imposes no additional requirements beyond those imposed by State law. Therefore, this action was not subject to a requirement for Executive Order 12866 review. 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). For the same reason, this action also does not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). In any case, Executive Order 13175 does not apply to this rule since there are no Federally recognized tribes in 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 section 3006(b), EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.

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. ).

Executive Order 12898 (59 FR 7629, February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, because it approves pre-existing State rules that are no less stringent than existing Federal requirements and imposes no additional requirements beyond those imposed by State law. For these reasons, this rule is not subject to Executive Order 12898.

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). However, this action will not be effective until November 29, 2024 because it is a direct final rule.