Rules in Development - Rulemaking Detail
|Authority:||Hazardous Waste Program|
|Rule Number:||10 CSR 025-06.263|
|Rule Name:||Standards Applicable to Transporters of Hazardous Waste|
|Rule Action Type:||Amendment|
|Status:||Rule Action Effective|
|Regulatory Impact Report:||Available|
|Initiate the Rulemaking Process:|
|Regulatory Impact Report 60 Day Comment Period Begins:|
|Proposed Rulemaking Filing with the Secretary of State:|
|Citation:||40 MoReg 639|
|End of Public Comment Period:|
|Adoption by Agency:|
|Order of Rulemaking Filing with the Secretary of State:|
|Citation:||40 MoReg 1587|
|Rulemaking in Effect:|
|Emergency Rule Expires On:|
Abstract Short: Amend the state hazardous waste rules to implement the requirements of the "no stricter than" statute, and to update the incorporation by reference of the federal hazardous waste regulations.
Missouri Department of Natural Resources
Hazardous Waste Program
1. What is the purpose of this proposed rulemaking?
HB 1251 established a new section of the hazardous waste management law that established limits on the authority of the Missouri Hazardous Waste Management Commission to adopt rules stricter than federal rules in certain subject areas. The statute requires the department to review existing rules in Title 10, Division 25 of the Code of State Regulations to identify rules that are inconsistent with the statutory limitation and to propose any changes necessary to ensure that the rules are consistent with the statute.
With input from participants in the Hazardous Waste Forum, department staff have been reviewing the existing rules in these chapters and developing a report that identified rules that would have to be changed. Now that the review and identification process is complete, the next step is to file the necessary amendments to the hazardous waste rules with the Secretary of State. Each of the eight rules in Title 10, Division 25, Chapters 3, 4, 5 and 7 will need to be amended to make the necessary changes.
In addition to rules in these chapters, rules in other chapters in Title 10, Division 25 that are not subject to the statutory limitation in Section 260.373 will need to be amended as well. Some of these other rules, while not subject to the statutory limitation, include references or citations to the regulations that are being changed, so those references and citations will need to be updated as well.
In addition to changes required by the statutory limitation on state rules being stricter than federal, in the process of reviewing the state rules in these chapters, the department, with input from stakeholders, identified other rules that need to be updated or changed, even though they are not subject to the statutory limitation. These rules were either found to be outdated, duplicative, or no longer necessary to accomplish the purpose for which they were originally adopted. Thus, in addition to changes required by HB 1251, as codified in section 260.373 RSMo, the proposed amendments to these chapters will include other rule changes as well. Some of these changes, such as revising the rules for labeling of hazardous waste containers and tanks, the elimination of an exclusion for hazardous waste used to manufacture zinc fertilizers, and the implementation of electronic reporting for large quantity hazardous waste generators, are based on statutory exclusions found in Section 260.373, the “no stricter than” statute. The exclusions allow existing rules relating to specific subjects to be retained, modified, or repealed despite the general limitation on state rules being stricter than federal rules. The amendments being considered on these topics would result in state rules that are stricter than federal rules for these subjects so there may be additional stakeholder interest in these provisions.
Finally, the same rules in these chapters need to be updated to incorporate by reference new federal rules. On December 30, 2011 proposed amendments went into effect to incorporate by reference the July 1, 2010 edition of the Code of Federal Regulations. Since that time, five new federal rules have been added to the Code of Federal Regulations so the state’s incorporation by reference of the CFR needs to be updated to the most current version, currently the July 1, 2013 edition.
Because one additional federal rule was finalized after July 1, 2013, the state rules will need to include a citation to this specific federal rule in order to incorporate it by reference. The rule in question establishes a conditional exclusion from regulation as a hazardous waste for solvent-contaminated wipes and was published on July 31, 2013, so it did not make it into the July 1, 2013 CFR.
The following federal rules will be incorporated by reference in this rulemaking:
• Removal of Saccharin and its Salts from the Lists of Hazardous Wastes
• Corrections to the Academic Laboratories Generator Standards
• Revision of the Treatment Standards for Carbamate Wastes
• Hazardous Waste Technical Corrections and Clarifications
• Conditional Exclusion for Solvent Contaminated Wipes
• Hazardous Waste Management System; Modification of the Hazardous Waste Manifest System; Electronic Manifests
Timely adoption of the rules allows for seamless transition of responsibility for implementation of the rules from EPA to the state. It also benefits the regulated community because they are free to operate under one set of regulations instead of two, as is the case until the state adopts federal regulations and is subsequently approved for authorization of those same regulations.
2. Why is the rulemaking being proposed now?
With the assistance of stakeholders through the Hazardous Waste Forum process, department staff have developed a document that identifies rules in the affected chapters determined to be inconsistent. With the review and identification process complete, the next step is to proceed with the formal rulemaking process.
3. Is this proposed rulemaking an adoption of federal mandates by reference or does it substantially codify existing federal or state law?
Part of this rulemaking is to amend the state’s incorporation of federal hazardous waste rules from July 1, 2010 through July 1, 2013, plus one additional federal rule published on July 31, 2013. The amendments will add to the state regulations federal rules adopted as final rules during this time period. Because there are no changes anticipated to the federal rules that are being adopted, the adoption of the new federal rules will substantially codify existing federal law, as found in the July 1, 2013 edition of the Code of State Regulations, plus the additional federal rule published in the Federal Register on July 31, 2013.
In addition to the adoption of new federal rules, this rulemaking includes many changes to rules in Chapters 3, 4, 5, and 7 as necessary to eliminate state requirements that are inconsistent with the limitation in 260.373 RSMo that state rules in certain subject areas may not be stricter or sooner than federal regulations. The majority of the rule changes proposed in response to the “no stricter than” limitation will eliminate state regulations that are stricter than the corresponding federal regulation on certain topics. By eliminating state regulations on certain topics that establish requirements that are stricter than the corresponding federal regulation, this will make those specific state rules identical to the federal rules. Because they will be identical to federal rules on these specific topics, the remaining state regulations will substantially codify federal law.
There are elements of this rulemaking that do not substantially codify existing federal or state law. Some existing state regulations are proposed to be retained based on one of the statutory exclusions to the general limitation in section 260.373 RSMo that state rules may not be stricter, or establish requirements sooner, than federal regulations in certain subject areas.
In addition to existing rules that are proposed to be retained, the proposed rules will include some new requirements that are also based on the statutory exclusions in section 260.373. One of those exclusions allows rules relating to the placement of hazard labels on hazardous waste tanks and containers. As it relates to hazardous waste tanks, this would be a new requirement that is not currently in the state regulations, while for hazardous waste containers, the existing rules would be modified because the current rules require other information on the containers in addition to hazard labels. In addition, one of the statutory exclusions allows for the amendment or rescission of an existing regulatory exclusion for zinc-bearing hazardous secondary materials that are used in the manufacturing process for zinc fertilizers. Finally, another statutory exclusion relates to requirements for electronic reporting by large quantity generators of hazardous waste. The proposed change to the existing rules for large quantity generator reporting would allow annual, rather than quarterly, reporting of hazardous waste beginning with the 2015-2016 reporting year, provided that the department has the capability to accept electronic reports.
Because the proposed rules on these specific topics would establish requirements that have no federal counterpart or that are stricter than the federal regulation on the same topic, they do not substantially codify existing federal law and must be reviewed accordingly.
4. What authority does DNR have to carry out this rulemaking?
Section 260.370 RSMo allows the commission to adopt rules for implementing sections 260.350 to 260.430 RSMo. These rule amendments are consistent with this authority.
In addition, section 260.373 RSMo required the Missouri Department of Natural Resources to review existing rules in Title 10, Division 25, Chapters 3, 4, 5, and 7 to determine which existing rules are inconsistent with the limitation on state rules being stricter or sooner than federal rules. Once these rules have been identified, the next step required by the statute is to file any necessary proposed amendments with the Secretary of State to eliminate those requirements that are inconsistent with the statutory limitation.
5. What does the rulemaking require and how does it produce benefits?
The major portion of this proposed rulemaking is to eliminate state regulations that are inconsistent with the “no stricter than” statute in the Missouri Hazardous Waste Management Law. These regulations were determined to be inconsistent with the statute because they establish a requirement either stricter or sooner than required under the federal regulations. The benefit of eliminating state regulations that are stricter or sooner than the federal regulations is that the regulatory burden is lessened by not having to keep track of separate state and federal requirements. Many businesses that deal with hazardous waste have business in multiple states, which requires familiarity with both the state rules in those states as well as the federal rules. By eliminating state rules that are stricter or sooner than federal rules, there will be fewer state specific regulations for these businesses to keep track of, which should make it easier for them to understand the rules with which they must comply.
Similarly, the benefit of updating state regulations to adopt new federal regulations is that state regulations will continue to be as current as possible compared to the most recent version of the Code of Federal Regulations. This will facilitate compliance by regulated facilities as they will have to spend less time reviewing state regulations to determine whether a federal rule has been adopted, or whether state regulations differ from federal regulations. Facilities that operate in multiple states and are familiar with existing federal regulations will consequently be well informed about the requirements for compliance in Missouri.
Some of the specific rules included in this proposed rulemaking would produce benefits as well. The proposed change to allow electronic reporting for large quantity generators would benefit those generators as it would reduce the quarterly reporting requirement to an annual requirement.
The proposed changes for hazard labels on hazardous waste containers and tanks would benefit emergency responders, as the hazard labels provide valuable information in the event of an emergency situation involving spills or releases from the tanks or containers. In addition, the labels will provide facility personnel and others with quick and visible information about the hazards of the contents of the tank. Such information can help to avoid mixing of incompatible wastes, greater assurance that the contents can be managed according to applicable hazardous waste tank regulations, and promote compliance and safety.
Finally, elimination of the exclusion for zinc-bearing hazardous secondary materials would produce the benefit of additional environmental protection by requiring these materials to be handled as hazardous waste. The additional safeguards of managing these materials as a hazardous waste would help prevent unintentional releases of the materials during the storage, handling, and processing of these materials.
6. Who is most likely affected by the rulemaking?
Facilities that generate, treat, store, transport, or dispose of hazardous waste will be affected. Some of these rules will not affect any facilities in Missouri, some will affect only a few, and some will affect a larger number.
7. What impact will the proposed rulemaking have on small businesses? (A small business is defined as a for-profit enterprise with fewer than 50 full or part-time employees.)
There are small businesses among the facilities affected by these proposed rules. In most cases, the proposed changes will reduce the requirements for small businesses by eliminating state-specific rules that go beyond the federal regulations.
The exceptions to this would be the new proposed requirements for the display of hazard labels on hazardous waste containers and tanks, the elimination of the exclusion from regulation as a hazardous waste for zinc-bearing hazardous secondary materials used in the production of zinc fertilizers, and the establishment of electronic reporting for large quantity generators.
For hazard labels on hazardous waste containers, the proposed rules would allow generators to comply with one of two options for meeting the requirement, either the use of Department of Transportation labels, which is currently required, or a new option which allows the use of words that identify the hazards of the contents of the container. For hazard labels on hazardous waste tanks, because these labels are not currently required on hazardous waste tanks, any small businesses that store or treat hazardous waste in tanks would be required to place the appropriate labels on their tanks.
For zinc fertilizers, because the hazardous secondary materials used in the manufacture of zinc fertilizers would no longer be exempt from regulation as a hazardous waste, any small business handling these materials would have to manage those materials as a hazardous waste. The requirements to manage the materials as a hazardous waste are more stringent than the requirements for managing the materials under the existing exclusion.
For electronic reporting, small businesses that are large quantity generators of hazardous waste would be able to switch to annual reporting, rather than quarterly reporting, beginning with the 2015-2016 reporting year, provided they report electronically and the department has the ability to process electronic reports.
8. What are the probable costs for the department or any other public agency in the implementation and enforcement of the rulemaking?
The proposed changes to the rules, particularly the requirements for the display of hazard labels on hazardous waste tanks, would require training for Department of Natural Resources employees to familiarize staff with the new rules. There will also be cost associated with revising all fact sheets and bulletins used to educate the regulated community on hazardous waste issues.
9. What is the anticipated effect of the rulemaking on state revenue?
A few of the changes proposed in these rules could result in changes to state revenue, although the department believes that any changes would be minimal. One of the federal rules proposed to be adopted would add an exclusion for solvent-contaminated wipes. For generators whose only waste stream is solvent-contaminated wipes, the exclusion could result in those generators either being conditionally-exempt, or in being a small quantity rather than large quantity generator, as well as reducing the total amount of hazardous waste generated. Because hazardous waste fees are based on the amount of waste generated, this could result in reduced fees for these generators.
For the proposed elimination of the zinc fertilizer exclusion, hazardous secondary materials used in the production of zinc fertilizers are currently exempt from regulation as a hazardous waste, and therefore from the hazardous waste fees that are tied to the generation of hazardous waste. This could result in generators being subject to fees for those materials.
Another change being considered would eliminate a lower threshold, as well as the use of a state-specific waste code for certain types of hazardous waste containing dioxin. By eliminating the lower threshold and state-specific waste codes,it could result in the reduction of hazardous waste fees for some generators.
10. Who was involved in developing the rulemaking?
For approximately the past year and a half, the Department of Natural Resources (MDNR) has been working with stakeholders including REGFORM through the Hazardous Waste Forum to satisfy the statutory requirement in section 260.373 RSMo that the department identify rules inconsistent with the limitation on state rulemaking authority, and to propose necessary amendments to eliminate any inconsistencies. Through this process, department staff have developed a color coded rule text document, which assigned each requirement in the affected rules as either consistent or inconsistent with the statutory limitation.
The department has discussed this document with stakeholders at several meetings of the Hazardous Waste Forum and provided an opportunity to review and comment before the document was finalized. Forum participants include environmental professionals from businesses and industry, health and safety staff from universities, representatives of retail stores including Walmart and Home Depot, environmental consultants, emergency response officials, and staff from other state agencies including SEMA and DHSS.
11. How has the development of the rulemaking been shared with interested parties and the public at large?
Program staff have kept the Hazardous Waste Management Commission informed of our discussions with Forum participants. As we move through the formal rule development process, we will continue to seek input from affected stakeholders and other interested parties. All of the information related to the Hazardous Waste Forum and the development of the documents prepared as part of the “no stricter than” review process has been posted to the department’s website, including meeting agendas, minutes from meetings, copies of presentations, and draft rule text. Program staff have received and responded to comments from stakeholders on these documents and made some changes to the proposed rule text that was developed as part of the review process, and which was the basis of the amendments being proposed to these rules.
12. Who may I contact to either ask questions or provide input on this rulemaking?
For information about this rulemaking or to provide input, contact Tim Eiken, Rule Coordinator of the Hazardous Waste Program at (573) 522-8057 or by email at firstname.lastname@example.org.
13. What are the expected dates for the comment period and public hearing?
Proposed rulemaking published in Missouri Register December 1, 2014
Public hearing (must be at least thirty days after publication) February 19, 2015
End of public comment period (No sooner than 7 days after hearing) February 26, 2015
Final HWMC action (approx. two months after public hearing) April 23, 2015