TITLE 329 SOLID WASTE MANAGEMENT DIVISION

The Indiana Department of Environmental Management (IDEM) has developed draft rule language for amendments to the hazardous waste rules at 329 IAC 3.1. The purpose of this notice is to seek public comment on the draft rule, including suggestions for specific language to be included in the rule. IDEM seeks comment on the affected citations listed and any other provisions of Title 329 that may be affected by this rulemaking.

IC 13-14-9-7 recognizes that under certain circumstances it may be appropriate to reduce the number of public comment periods routinely provided. In cases where the commissioner determines that the rulemaking policy alternatives available to IDEM are so limited that the first notice of public comment period would provide no substantial benefit to the environment or persons to be regulated or otherwise affected by the proposed rule, IDEM may forgo this comment period and proceed directly to the notice of second public comment period.

If the commissioner makes the determination of limited rulemaking policy alternatives required by IC 13-14-9-7, the commissioner shall prepare written findings and include them in the second notice of public comment period published in the Indiana Register. This document constitutes the commissioner's written findings pursuant to IC 13-14-9-7.

The statute provides for this shortened rulemaking process if the commissioner determines that "the rulemaking policy alternatives available to the department are so limited that the public notice and comment period under IC 13-14-9-3 would provide no substantial benefit to:

(1) the environment; or

(2) persons to be regulated or otherwise affected by the proposed rule."

In accordance with Subtitle C of the Resource Conservation and Recovery Act (RCRA), the United States Environmental Protection Agency (U.S. EPA) granted authorization to IDEM to administer the management of hazardous waste in Indiana. To maintain authorization for this program, IDEM must comply with the requirements for state authorization in 40 CFR 271 Subpart A. The activities related to administering the hazardous waste program include permitting, compliance, monitoring, enforcement, and providing technical assistance.

In order to maintain authorization to implement the hazardous waste program, IDEM must revise its program by adopting changes to the hazardous waste rules promulgated by U.S. EPA. IDEM's hazardous waste rules must be at least as stringent as the federal regulations, with the option of adopting more stringent requirements if IDEM determines that action is necessary for the particular situation in Indiana. This rulemaking will adopt the most recent changes that have become effective since July 1, 2011, and an older rulemaking from January 8, 2010, that was delayed because of a pending IDEM rulemaking for spent lead acid batteries.

IDEM has developed draft rule language to incorporate by reference the federal changes into the hazardous waste rules at 329 IAC 3.1 for the following:

° Technical corrections of a typographical error in a table listing the identification and listings of hazardous waste at 40 CFR 261.32(a).

° A conforming change at 40 CFR 266.20(b) to clarify that a recycling facility must keep a one-time certification and notification related to recyclable materials being used in a manner constituting disposal.

° the definition of solid waste if the wipes are cleaned and reused in accordance with specified procedures in 40 CFR 261.1(a); and

° the definition of hazardous waste if the wipes are disposed in accordance with specified procedures in 40 CFR 261.1(b).

The U.S. EPA final regulations published on June 13, 2011; April 13, 2012; July 31, 2013; and January 3, 2014; are optional regulations that IDEM is not required to adopt for IDEM's authorized hazardous waste program. These federal regulations are optional because the regulations are now less stringent than the federal requirements IDEM has previously incorporated by reference. IDEM rules must be at least as stringent as federal requirements, with the option of being more stringent if IDEM determines it is necessary for certain situations. However, with the federal regulations proposed for adoption by incorporation by reference, IDEM believes that the state will benefit from adopting the less stringent federal regulations. Adopting the optional federal regulations will maintain consistency between IDEM's hazardous waste requirements and the U.S. EPA's hazardous waste requirements, reducing confusion for persons and entities affected by the rule changes. In addition, the optional rule changes have the potential to reduce costs for some regulated entities, which is discussed in the Fiscal Impact section of this notice. For these reasons, IDEM chooses to adopt the optional federal regulations.

IDEM proposes to include these federal changes into the hazardous waste program into state rules.

The following element of the draft rule imposes either a restriction or a requirement on persons to whom the draft rule applies that is "not imposed under federal law" (NIFL element or elements):

NIFL Element (A): 329 IAC 3.1-6-2(20). The NIFL element will provide more flexibility for the wording on the container labels for solvent-contaminated wipes.

IDEM is making a change to the required wording for labels on containers that hold solvent contaminated wipes. IDEM believes this change is necessary because the label wording required by federal regulations is too narrow for the possible materials that can be placed in the container. IDEM also would like to allow regulated entities to be more descriptive of the contents in the container, if necessary. Allowing more wording than the federal requirements will provide a more accurate representation of the container contents for inspectors and regulated entities, which could prove useful in the event of an accidental release or exposure.

Also, IDEM would like to allow flexibility for the use of these containers if regulated entities might use the containers for materials other than excluded solvent-contaminated wipes when the regulated entities are accumulating other materials. Having a container with only the phrase "Excluded Solvent-Contaminated Wipes" restricts the containers from being used for other purposes if the regulated entity would like to do so.

This NIFL element is not anticipated to have a fiscal impact. The only change from federal regulations is the option to add an extra phrase on the container label, which should have the same cost as the less flexible label wording required by federal law.

To include this NIFL element in the rule changes, IDEM used experiences from field inspectors and feedback from regulated entities to make the change. IDEM has past experiences with labeling requirements that are too limiting, and prefers to provide flexibility for regulated entities, when possible.

All of the changes from this rulemaking that may have a fiscal impact are mandated by federal rules that IDEM must adopt for IDEM's authorized hazardous waste program to maintain equivalency with federal requirements. The only other change proposed by IDEM, which was described in the NIFL element section, will not have a fiscal impact. Therefore, the potential fiscal impact from the rule derives from federal requirements, not state-only requirements. No rule changes initiated by IDEM will have a fiscal impact. The following is a description of the fiscal impact from the federal rule changes that IDEM proposes to incorporate by reference.

The alternative standard for the treatment and disposal of hazardous wastes from the production of carbamates and carbamate products at 40 CFR 268 does not impose new requirements that could result in increased costs. The rule changes provide an alternative for treating these wastes, and do not add requirements or costs to the established standards for treatment.

The technical corrections and clarifications to the federal hazardous waste rules at 40 CFR 261.32(a) and 40 CFR 266.20(b) will not have a fiscal impact on government agencies, regulated entities, or other affected parties because they do not impose any new requirements or repeal any existing rules. The rule changes simply make corrections and do not have any new impacts.

The adoption of the requirements for the transboundary shipments of hazardous wastes will not have a fiscal impact in addition to the initial fiscal impact estimated by U.S. EPA when the final rule became effective on July 7, 2010. Because the January 8, 2010, federal rule is for import/export requirements which are matters of foreign policy that states are not authorized to administer, affected regulated entities already should be complying with the rule changes before adoption of the final rule by IDEM. The complete fiscal impact from the final rule can be found in U.S. EPA docket #EPA-HQ-RCRA-2005-0018-0041, with the summary of the costs available in the January 8, 2010, Federal Register notice at 75 FR 1249 through 75 FR 1250.

The conditional exclusion for carbon dioxide streams will provide a cost savings for any affected entities because the streams will be excluded from hazardous waste regulations. The main cost savings is the exclusion from treatment as a hazardous waste. For carbon dioxide capture facilities, U.S. EPA estimates a one-time cost savings of $5,273 per facility and annual cost savings of $8,130 per facility. For sequestration facilities, U.S. EPA estimates a one-time cost savings of $4,440 per facility and an annual cost savings of $4,298 per facility. Additional information on the fiscal impact of this rule can be found in U.S. EPA docket #EPA-HQ-RCRA-2010-0695-0092.

The rule changes for the conditional exclusion from solid waste and hazardous waste for solvent contaminated wipes will have an overall cost savings after the first year. In the initial year of implementation, the regulated entities will have minor costs for understanding the rule, purchasing new equipment, and complying with the new requirements. After the first year, the annual benefits greatly outweigh the annual costs. Cost savings include exclusions from hazardous waste requirements, less disposal costs, reduced management of free liquids, and less state fees and taxes. Additional information on the fiscal impact of this rule can be found in U.S. EPA docket #EPA-HQ-RCRA-2003-0004-0482. The following table has the EPA estimates for annual costs and savings of both reusable and disposable wipes:

1. Regulatory Impact Analysis for Conditional Exclusions from Solid Waste and Hazardous Waste for Solvent-Contaminated Wipes Final Rule, Docket #: EPA-HQ-RCRA-2003-0004-0482, Office of Resource Conservation and Recovery, U.S. Environmental Protection Agency: June 21, 2013.

2. Cost Assessment for the Final Rule on Exports and Imports of Hazardous Waste Destined for the Recovery Among OECD Countries, Exports of Spent Lead-Acid Batteries from the U.S., and Import Consent Documentation, Docket #: EPA-HQ-RCRA-2005-0018-0041, Office of Resource Conservation and Recovery, Office of Solid Waste and Emergency Response, U.S. Environmental Protection Agency: May 2009.

3. Assessment of the Potential Costs, Benefits, and Other Impacts, Hazardous Waste Management System: Conditional Exclusion for Carbon Dioxide (CO₂) Streams in Geologic Sequestration Activities, Docket #: EPA-HQ-RCRA-2010-0695-0092, Office of Resource Conservation and Recovery, U.S. Environmental Protection Agency: August 27, 2013.

No work group is planned for the rulemaking. If you feel that a work group or other informal discussion on the rule is appropriate, please contact Dan Watts, Rules Development Branch, Office of Legal Counsel at (317) 234-5345 or (800) 451-6027 (in Indiana).

IDEM established a compliance and technical assistance program (CTAP) under IC 13-28-3. The program provides assistance to small businesses and information regarding compliance with environmental regulations. In accordance with IC 13-28-3 and IC 13-28-5, there is a small business assistance program ombudsman to provide a point of contact for small businesses affected by environmental regulations. Information on the CTAP program, the monthly CTAP newsletter, and other resources available can be found at:

For purposes of IC 4-22-2-28.1, small businesses affected by this rulemaking may contact the Small Business Regulatory Coordinator:

Jessica Faust-Hamblin

IDEM Small Business Regulatory Coordinator

IGCN 1225

100 North Senate Avenue

Indianapolis, IN 46204-2251

(317) 232-8172 or (800) 988-7901

ctap@idem.in.gov

For purposes of IC 4-22-2-28.1, the Small Business Ombudsman designated by IC 4-4-35-8 is:

Erik Scheub

Office of Small Business and Entrepreneurship

One North Capitol, Suite 600

Indianapolis, IN 46204

(317) 232-5679

ombudsman@osbe.in.gov

Resources available to regulated entities through the small business ombudsman include the ombudsman's duties stated in IC 4-4-35-8, specifically IC 4-4-35-8(9), investigating and attempting to resolve any matter regarding compliance by a small business with a law, rule, or policy administered by a state agency, either as a party to a proceeding or as a mediator.

The Small Business Assistance Program Ombudsman is:

Steven N. Howell

IDEM Small Business Assistance Program Ombudsman

IGCN 1301

100 North Senate Avenue

Indianapolis, IN 46204-2251

(317) 232-8587 or (800) 451-6027

snhowell@idem.in.gov

The commissioner of IDEM has prepared written findings regarding rulemaking on the hazardous waste rules at 329 IAC 3.1. These findings are prepared under IC 13-14-9-7 and are as follows:

(1) While IDEM is required to include changes to federal regulations into its rules governing the RCRA hazardous waste program to maintain authority to administer the program, the federal regulations IDEM seeks to incorporate are less stringent than existing state rules. Therefore, IDEM may retain existing rules because they would be more stringent than current federal law or adopt the new regulations. Because the policy alternatives to adopting the federal regulations into IDEM rules are so limited, the use of the more expedited rulemaking process under IC 13-14-9-7, allowing for the elimination of the first notice comment period, is appropriate.

(2) The federal regulations related to wording on disposal containers would limit the use of such containers for other disposal purposes. IDEM proposes to allow flexibility in the use of the disposal containers so long as they are properly labeled. Such containers must contain the federally-required wording when being used for the disposal of excluded solvent contaminated wipes but may be used for the disposal of other materials so long as the containers clearly identify the contents. This is the only element of the rulemaking where IDEM is proposing an additional option. IDEM believes that this amendment will provide cost savings to regulated entities affected by these rules.

(3) The additional incorporations of federal regulations, while optional, would provide cost savings to regulated entities without sacrificing environmental protection.

(4) I have determined that under the specific circumstances pertaining to this rule, the rulemaking policy alternatives are so limited that the public notice and comment period provided in the notice of first public comment period would provide no substantial benefit to the environment or to persons to be regulated or otherwise affected by the rule.

(5) The draft rule is hereby incorporated into these findings.

This notice requests the submission of comments on the draft rule language, including suggestions for specific revisions to language to be contained in the draft rule. Comments may be submitted in one of the following ways:

(1) By mail or common carrier to the following address:

LSA Document #14-288 Updates to Hazardous Waste Rules

Dan Watts

Rules Development Branch

Office of Legal Counsel

Indiana Department of Environmental Management

Indiana Government Center North

100 North Senate Avenue

Indianapolis, IN 46204-2251

(2) By facsimile to (317) 233-5970. Please confirm the timely receipt of your faxed comments by calling the Rules Development Branch at (317) 233-8903.

(3) By electronic mail to dwatts1@idem.in.gov. To confirm timely delivery of submitted comments, please request a document receipt when sending the electronic mail. PLEASE NOTE: Electronic mail comments will NOT be considered part of the official written comment period unless they are sent to the address indicated in this notice.

(4) Hand delivered to the receptionist on duty at the thirteenth floor reception desk, Office of Legal Counsel, Indiana Government Center North, 100 North Senate Avenue, Indianapolis, Indiana.

Regardless of the delivery method used, to properly identify each comment with the rulemaking action it is intended to address, each comment document must clearly specify the LSA document number of the rulemaking.

All comments must be postmarked, faxed, or time stamped not later than August 22, 2014. Hand-delivered comments must be delivered to the appropriate office by 4:45 p.m. on the above-listed deadline date.

Additional information regarding this action may be obtained from Dan Watts, Rules Development Branch, Office of Legal Counsel) (317) 234-5345 or (800) 451-6027 (in Indiana).

SECTION 1. 329 IAC 3.1-1-7 IS AMENDED TO READ AS FOLLOWS:

Affected: IC 13-14-8; 40 CFR 260.11

Sec. 7. (a) When incorporated by reference in this article, references to 40 CFR 260 through 40 CFR 270 and 40 CFR 273 shall mean the version of that publication revised as of July 1, 2008, and amended as published in the Federal Register on:

(b) When used in 40 CFR 260 through 40 CFR 270 and 40 CFR 273, as incorporated in this article, references to federally incorporated publications shall mean that version of the publication as specified at 40 CFR 260.11.

(c) The following publications are also incorporated by reference:

(d) Federal regulations that have been incorporated by reference do not include any later amendments than those specified in the incorporation citation in subsections (a) through (c). Sales of the Code of Federal Regulations are handled by the Superintendent of Documents, P.O. Box 371954, Pittsburgh, PA 15250-7954, or online at http://bookstore.gpo.gov/. The telephone number for the Superintendent of Documents is (202) 512-1800 or toll-free (866) 512-1800. The incorporated materials are available for public review at the offices of the department of environmental management.

(e) Where exceptions to incorporated federal regulations are necessary, these exceptions will be noted in the text of the rule. In addition, all references to administrative stays are deleted.

(f) Cross-references within federal regulations that have been incorporated by reference shall mean the cross-referenced provision as incorporated in this rule with any indicated additions and exceptions.

(g) The incorporation of federal regulations as state rules does not negate the requirement to comply with federal provisions that may be effective in Indiana that are not incorporated in this article or are retained as federal authority.

SECTION 2. 329 IAC 3.1-6-2 IS AMENDED TO READ AS FOLLOWS:

Affected: IC 13-11-2-99; IC 13-11-2-205; IC 13-11-2-245; IC 13-11-2-266; IC 13-14-2-2; IC 13-14-10-1; IC 13-22-2-3; P.L.231-2003, SECTION 6; 40 CFR 261

Sec. 2. Exceptions and additions to federal standards for identification and listing of hazardous waste are as follows:

SECTION 3. 329 IAC 3.1-11-2 IS AMENDED TO READ AS FOLLOWS:

Affected: IC 13-15-2; IC 13-22-2; 40 CFR 266

Sec. 2. Exceptions and additions to standards for the management of specific hazardous waste and specific types of hazardous waste facilities are as follows:

Notice of Public Hearing

DIN: 20140723-IR-329140288FDA

Composed: Apr 24,2024 12:52:00AM EDT

A PDF version of this document.