[Federal Register: March 8, 2006 (Volume 71, Number 45)]
[Rules and Regulations]
[Page 11536-11539]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08mr06-9]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 272
[EPA-R08-RCRA-2006-0048; FRL-8035-5]
Montana: Incorporation By Reference of Approved State Hazardous
Waste Management Program
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Resource Conservation and Recovery Act, as amended (RCRA),
allows EPA to authorize State hazardous waste management programs if
EPA finds that such programs are equivalent and consistent with the
Federal program and provide adequate enforcement of compliance. Title
40 of the Code of Federal Regulations (CFR) part 272 is used by EPA to
codify its decision to authorize individual State programs and
incorporates by reference those provisions of the State statutes and
regulations that are subject to EPA's inspection and enforcement
authorities as authorized provisions of the State's program. This final
rule revises the codification of the Montana authorized program. In
addition, today's document corrects errors made in the September 30,
2005 Federal Register authorization document for Montana.
DATES: This final rule is effective March 8, 2006. The incorporation by
reference of authorized provisions in the Montana regulations contained
in this rule is approved by the Director of the Federal Register as of
March 8, 2006, in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.
ADDRESSES: EPA has established a docket for this action under Docket ID
No. EPA-R08-RCRA-2006-0048. All documents in the docket are listed on
the http://www.regulations.gov web site. Although listed in the index,
some information is not publicly available, e.g., CBI or other
information whose disclosure is restricted by statute. Certain other
material, such as copyrighted material, is not placed on the Internet
and will be publicly available only in hard copy form. Publicly
available docket materials are available either electronically through
http://www.regulations.gov or in hard copy at MDEQ from 9 a.m. to 4
p.m., 1520 E 6th Ave, Helena, MT 59620, contact: Bob Martin, phone
number (406) 444-4194 and EPA Region 8, from 8 a.m. to 3 p.m., 999 18th
Street, Suite 300, Denver, CO 80202-2466, contact: Kris Shurr, phone
number: (303) 312-6139, e-mail address: shurr.kris@epa.gov.
FOR FURTHER INFORMATION CONTACT: Contact Kris Shurr, 8P-HW, U.S. EPA,
Region 8, 999 18th St, Ste 300, Denver, Colorado 80202-2466, phone
number: (303) 312-6139, fax number: (303) 312-6341, e-mail address:
shurr.kris@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Correction
There was an error and an omission published in the September 30,
2005 (70 FR 57152) authorization Federal Register document for Montana.
The following corrections are made to Section G, page 57154, first
column:
In the second paragraph, the effective date of the Administrative
Rules of Montana (ARM), Title 17, Chapter 53, was incorrectly cited as
March 9, 2005. The correct effective date is April 1, 2005.
In the third paragraph, Section 2-3-301 from the Montana Code
Annotated 2005, was omitted from the list of approved procedural and
enforcement provisions. The listing is shown below, the correction is
bolded and italicized.
Montana Code Annotated 2005, sections 2-3-101 et seq., 2-3-221, 2-
3-301, 2-4-103, 2-4-315, 2-6-101 et seq., 2-15-3501 et seq., 27-30-204,
30-14-402 et seq., 75-10-107, and 75-10-401 et seq.; and Montana Rules
of Civil Procedure, Rule 24(a).
II. Incorporation by Reference
A. What is Codification?
Codification is the process of including the statutes and
regulations that comprise the State's authorized hazardous waste
management program into the CFR. Section 3006(b) of RCRA, as amended,
allows the Environmental Protection Agency (EPA) to authorize State
hazardous waste management programs. The State regulations authorized
by EPA supplant the federal regulations concerning the same matter with
the result that after authorization EPA enforces the authorized
regulations. Infrequently, State statutory language which acts to
regulate a matter is also authorized by EPA with the consequence that
EPA enforces the authorized statutory provision. EPA does not authorize
State enforcement authorities and does not authorize State procedural
requirements. EPA codifies the authorized State program in 40 CFR part
272 and incorporates by reference State statutes and regulations that
make up the approved program which is Federally enforceable in
accordance with Sections 3007, 3008, 3013, and 7003 of RCRA, 42 U.S.C.
6927, 6928, 6934 and 6973, and any other applicable statutory and
regulatory provisions.
B. What Is the History of the Authorization and Codification of
Montana's Hazardous Waste Management Program?
Montana initially received Final authorization on July 11, 1984,
effective July 25, 1984 (49 FR 28245) to implement the RCRA hazardous
waste management program. We granted authorization for changes to their
program January 19, 1994, effective March 21, 1994 (59 FR 02752),
October 25, 1996, effective December 24, 1996 (61 FR 55223), December
26, 2000, effective December 26, 2000 (65 FR 81381), and September 30,
2005, effective November 29, 2005 (70 FR 57152). EPA first codified
Montana's authorized hazardous waste program effective January 31, 1986
(51 FR 3954). In this action, EPA revises Subpart BB of 40 CFR part
272, to include the authorization revision actions effective through
November 29, 2005 (70 FR 57152).
C. What Decisions Have We Made in This Action?
Today's action codifies EPA's authorization of revisions to
Montana's hazardous waste management program. This codification
reflects the State program in effect at the time EPA authorized
revisions to the Montana hazardous waste management program in a final
rule dated September 30, 2005 (70 FR 57152). Notice and an opportunity
for comment regarding the revisions to the authorized State program
were provided to the public at the time those revisions were proposed.
This action does not reopen any decision EPA previously made concerning
the authorization of the State's hazardous waste management program.
EPA is amending 40 CFR part 272, Subpart BB by removing and
reserving Sec. 272.1350, and revising Sec. 272.1351 to incorporate by
reference Montana's authorized hazardous waste regulations, as amended
through April 1, 2005. Section 272.1351 also references the
demonstration of adequate enforcement authority, including procedural
and enforcement provisions, which provide the legal basis for the
State's
[[Page 11537]]
implementation of the hazardous waste management program. In addition,
Sec. 272.1351 references the Memorandum of Agreement, the Enforcement
Agreement, the Attorney General's Statements and the Program
Description, which are evaluated as part of the approval process of the
hazardous waste management program in accordance with Subtitle C of
RCRA.
D. What is the Effect of Montana's Codification on Enforcement?
EPA retains the authority under statutory provisions, including but
not limited to, RCRA sections 3007, 3008, 3013 and 7003, and other
applicable statutory and regulatory provisions to undertake inspections
and enforcement actions and to issue orders in all authorized States.
With respect to enforcement actions, EPA will rely on Federal
sanctions, Federal inspection authorities, and Federal procedures
rather than the State analogs to these provisions. Therefore, the EPA
is not incorporating by reference Montana's inspection and enforcement
authorities nor are those authorities part of Montana's approved State
program which operates in lieu of the Federal program. 40 CFR
272.1351(c)(2) lists these authorities for informational purposes, and
also because EPA considered them in determining the adequacy of
Montana's procedural and enforcement authorities. Montana's authority
to inspect and enforce the State's hazardous waste management program
requirements continues to operate independently under State law.
E. What State Provisions Are Not Part of the Codification?
The public is reminded that some provisions of Montana's hazardous
waste management program are not part of the federally authorized State
program. These non-authorized provisions include:
(1) Provisions that are not part of the RCRA subtitle C program
because they are ``broader in scope'' than RCRA subtitle C (see 40 CFR
271.1(i));
(2) State procedural and enforcement authorities which are
necessary to establish the ability of the State's program to enforce
compliance but which do not supplant the Federal statutory enforcement
and procedural authorities.
State provisions that are ``broader in scope'' than the Federal
program are not incorporated by reference in 40 CFR part 272. For
reference and clarity, 40 CFR 272.1351(c)(3) lists the Montana
statutory and regulatory provisions which are ``broader in scope'' than
the Federal program and which are not part of the authorized program
being incorporated by reference. While ``broader in scope'' provisions
are not part of the authorized program and cannot be enforced by EPA,
the State may enforce such provisions under State law.
F. What Will be the Effect of the Codification on Federal HSWA
Requirements?
With respect to any requirement(s) pursuant to HSWA for which the
State has not yet been authorized, and which EPA has identified as
taking effect immediately in States with authorized hazardous waste
management programs, EPA will enforce those Federal HSWA standards
until the State is authorized for those provisions.
The codification does not affect Federal HSWA requirements for
which the State is not authorized. EPA has authority to implement HSWA
requirements in all States, including States with authorized hazardous
waste management programs, until the States become authorized for such
requirements or prohibitions, unless EPA has identified the HSWA
requirement(s) as an optional or as a less stringent requirement of the
Federal program. A HSWA requirement or prohibition, unless identified
by EPA as optional or as less stringent, supersedes any less stringent
or inconsistent State provision which may have been previously
authorized by EPA (50 FR 28702, July 15, 1985).
Some existing State requirements may be similar to the HSWA
requirements implemented by EPA. However, until EPA authorizes those
State requirements, EPA enforces the HSWA requirements and not the
State analogs.
III. 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 codifies 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
codifies 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). 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 codifies 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. This action 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.
The requirements being codified are the result of Montana's
voluntary participation in EPA's program authorization process under
RCRA Subtitle C. 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. As required by section 3 of Executive Order 12988
(61 FR 4729, February 7, 1996), in issuing this action, EPA has taken
the necessary steps to eliminate drafting errors and ambiguity,
minimize potential litigation, and provide a clear legal standard for
affected conduct. This action 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
[[Page 11538]]
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 is
effective March 8, 2006.
List of Subjects in 40 CFR Part 272
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous waste, Hazardous waste
transportation, Incorporation by Reference, Indian lands,
Intergovernmental relations, Penalties, Reporting and recordkeeping
requirements.
Dated: February 7, 2006.
Kerrigan G. Clough,
Acting Regional Administrator, Region 8.
0
For the reasons set forth in the preamble, 40 CFR part 272 is amended
as follows:
PART 272--APPROVED STATE HAZARDOUS WASTE MANAGEMENT PROGRAMS
0
1. The authority citation for part 272 continues to read as follows:
Authority: Secs. 2002(a), 3006, and 7004(b) of the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery
Act, as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).
Subpart BB--[Amended]
Sec. 272.1350 [Removed and reserved]
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2. Section 272.1350 is removed and reserved.
0
3. Section 272.1351 is revised to read as follows:
Sec. 272.1351 Montana State-Administered Program: Final
Authorization.
(a) Pursuant to section 3006(b) of RCRA, 42 U.S.C. 6926(b), Montana
has final authorization for the following elements as submitted to EPA
in Montana's base program application for final authorization which was
approved by EPA effective on July 25, 1984. Subsequent program revision
applications were approved effective on, March 21, 1994, December 24,
1996, December 26, 2000 and November 29, 2005.
(b) The State of Montana has primary responsibility for enforcing
its hazardous waste management program. However, EPA retains the
authority to exercise its inspection and enforcement authorities in
accordance with sections 3007, 3008, 3013, 7003 of RCRA, 42 U.S.C.
6927, 6928, 6934, 6973, and any other applicable statutory and
regulatory provisions, regardless of whether the State has taken its
own actions, as well as in accordance with other statutory and
regulatory provisions.
(c) State Statutes and Regulations. (1) The Montana regulations
cited in paragraph (c)(1)(i) of this section are incorporated by
reference as part of the hazardous waste management program under
subtitle C of RCRA, 42 U.S.C. 6921 et seq. This incorporation by
reference is approved by the Director of the Federal Register in
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of the
Montana regulations that are incorporated by reference in this
paragraph are available from the Montana Secretary of State,
Administrative Rules Bureau, P.O. Box 202801, Helena, MT 59620-2801
(Phone: 406-444-2055). You may inspect a copy at EPA Region 8, from 7
a.m. to 4 p.m., 999 18th Street, Suite 300, Denver, Colorado 80202-
2466, or at the National Archives and Records Administration (NARA).
For information on the availability of this material at NARA, call 202-
741-6030, or go to: http://www. archives.gov/ federal-register/ cfr/
ibr-locations. html.
(i) The Binder entitled ``EPA Approved Montana Regulatory
Requirements Applicable to the Hazardous Waste Management Program'',
dated November 2005.
(ii) [Reserved]
(2) EPA considered the following statutes and regulations in
evaluating the State program but is not incorporating them herein for
enforcement purposes:
(i) Montana Code Annotated (MCA) 2005, Title 2, ``Government
Structure and Administration'': Chapter 3, ``Public Participation in
Governmental Operations'', sections 2-3-102 introductory paragraph
through 2-3-102(2), 2-3-103(1), 2-3-104, 2-3-105, 2-3-111, 2-3-112, 2-
3-221, 2-3-301; Chapter 4, ``Administrative Procedure Act'', sections
2-4-103, 2-4-315; Chapter 6, ``Public Records'', sections 2-6-101 et
seq.; Chapter 15, ``Executive Branch Officers and Agencies'', sections
2-15-3501 and 2-15-3502.
(ii) Montana Code Annotated (MCA) 2005, Title 25, ``Civil
Procedure'': Chapter 20, ``Rules of Civil Procedure'', Rule 24(a).
(iii) Montana Code Annotated (MCA) 2005, Title 27, ``Civil
Liability, Remedies, and Limitations'': Chapter 30, ``Nuisances'',
section 27-30-204.
(iv) Montana Code Annotated (MCA) 2005, Title 30, ``Trade and
Commerce'': Chapter 14, ``Unfair Trade Practices and Consumer
Protection'', sections 30-14-402 et seq.
(v) Montana Code Annotated (MCA) 2005, Title 75, ``Environmental
Protection'': Chapter 10, ``Waste and Litter Control'', sections 75-10-
107, 75-10-402(3), 75-10-403, 75-10-404(1) introductory paragraph and
(1)(a), 75-10-404(1)(e), 75-10-404(2), 75-10-405 (except 75-10-
405(1)(i), (1)(j) and (2)(a)), 75-10-406, 75-10-408, 75-10-409, 75-10-
410, 75-10-411, 75-10-413, 75-10-414, 75-10-415, 75-10-416, 75-10-417,
75-10-418, 75-10-419, 75-10-420, 75-10-421, 75-10-422, 75-10-424, 75-
10-425, 75-10-426, 75-10-427, 75-10-441 and 75-10-442; Chapter 20,
``Major Facility Siting''.
(vi) Administrative Rules of Montana (ARM), effective April 1,
2005, Title 17, ``Environmental Quality'': Chapter 53, Hazardous Waste,
sections 17.53.104, 17.53.201, 17.53.202 , 17.53.206, 17.53.207,
17.53.208, 17.53.212, 17.53.213, 17.53.214, 17.53.215,
17.53.1202(5)(m), 17.53.1202(6).
(3) The following statutory and regulatory provisions are broader
in scope than the Federal program, are not part of the authorized
program, are not incorporated by reference and are not federally
enforceable:
(i) Montana Code Annotated (MCA) 2005, Title 75, ``Environmental
Protection'': Chapter 10, ``Waste and Litter Control'', sections 75-10-
405(1)(i) & (j), 75-10-405(2)(a), 75-10-431, 75-10-432, 75-10-433, 75-
10-434.
(ii) Administrative Rules of Montana (ARM), effective April 1,
2005, Title 17, ``Environmental Quality'', Chapter 53, Hazardous Waste,
sections 17.53.112, 17.53.113, 17.53.703, and 17.53.1202(5)(l), and
(17).
(4) Memorandum of Agreement and Enforcement Agreement. The
Memorandum of Agreement between EPA Region 8 and the State of Montana,
signed by the State of Montana Department of Environmental Quality on
November 30, 1993, and by the EPA Regional Administrator on December
25, 1993, and the Enforcement Agreement between EPA Region 8 and the
State of Montana, signed by the State of Montana Department of
Environmental Quality on September 1, 2000, and by the EPA Regional
Administrator on September 11, 2000, although not incorporated by
reference, are referenced as part of the authorized hazardous waste
management program under subtitle C of RCRA, 42 U.S.C. 6921 et seq.
(5) Statement of Legal Authority. ``Independent Legal Counsel
Statement'', accompanied by an Attorney General concurrence letter
signed by the Attorney General of Montana on December 27, 1983 as
amended June 7, 1984 and revisions, supplements and addenda to that
Statement accompanied by Attorney General concurrence letters dated
[[Page 11539]]
September 23, 1993, March 28, 1995, June 29, 1995, and April 4, 2005
although not incorporated by reference, are referenced as part of the
authorized hazardous waste management program under subtitle C of RCRA,
42 U.S.C. 6921 et seq.
(6) Program Description. The Program Description and any other
materials submitted as supplements thereto, although not incorporated
by reference, are referenced as part of the authorized hazardous waste
management program under subtitle C of RCRA, 42 U.S.C. 6921 et seq.
0
4. Appendix A to part 272 , State Requirements, is amended by adding in
alphabetical order, ``Montana'' and its listing to read as follows:
Appendix A to Part 272--State Requirements
* * * * *
Montana
The regulatory provisions include:
Administrative Rules of Montana, Title 17, Environmental
Quality, Chapter 53, Hazardous Waste, effective April 1, 2005,
sections 17.53.101, 17.53.102, 17.53.105, 17.53.107, 17.53.111(1),
17.53.111(2), (except the phrase ``or to pay the fee required by ARM
17.53.111'' in the introductory paragraph), 17.53.111(3) (except the
phrase ``and the generator fee required by ARM 17.53.113'' at
17.53.111(3)(a)), 17.53.301 (except the phrase ``and for which a
registration fee is assessed'' at 17.53.301(2)(q)), 17.53.401,
17.53.402, 17.53.403, 17.53.501, 17.53.502, 17.53.601, 17.53.602,
17.53.603, 17.53.604, 17.53.701, 17.53.702, 17.53.704, 17.53.706,
17.53.707, 17.53.708, 17.53.801, 17.53.802, 17.53.803, 17.53.901,
17.53.902, 17.53.903, 17.53.1001, 17.53.1002, 17.53.1003,
17.53.1004, 17.53.1101, 17.53.1102, 17.53.1201, 17.53.1202 (except
17.53.1202(5)(l), (5)(m), (6) and (17)), 17.53.1203, 17.53.1301,
17.53.1302, 17.53.1303, 17.53.1401, and 17.53.1402.
Copies of the Montana regulations that are incorporated by
reference are available from the Montana Secretary of State,
Administrative Rules Bureau, P.O. Box 202801, Helena, MT 59620-2801
(Phone: 406-444-2055).
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[FR Doc. 06-2181 Filed 3-7-06; 8:45 am]
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