2011-11157. Wisconsin: Incorporation by Reference of Approved State Hazardous Waste Management Program

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Immediate final rule.

SUMMARY:

The Resource Conservation and Recovery Act of 1976, as amended (RCRA) allows EPA to authorize States to operate their hazardous waste management programs in lieu of the Federal program. EPA uses the regulations entitled “Approved State Hazardous Waste Management Programs” to provide notice of the authorization status of State programs and to incorporate by reference those provisions of the State statutes and regulations that will be subject to EPA's inspection and enforcement. This rule codifies in the regulations the prior approval of Wisconsin's hazardous waste management program and incorporates by reference authorized provisions of the State's statutes and regulations.

DATES:

This regulation is effective July 8, 2011, unless EPA receives adverse written comment on this regulation by the close of business June 8, 2011. If EPA receives such comments, it will publish a timely withdrawal of this immediate final rule in the Federal Register informing the public that this rule will not take effect. The incorporation by reference of authorized provisions in the Wisconsin statutes and regulations contained in this rule is approved by the Director of the Federal Register as of July 8, 2011, in accordance with 5 U.S.C. 552(a) and1 CFR part 51.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R05-RCRA-2010-0790 by one of the following methods:

http://www.regulations.gov: Follow the on-line instructions for submitting comments.

E-mail: [e-mail].

Mail: Jean Gromnicki, Wisconsin Regulatory Specialist, LR-8J, U.S. EPA, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604.

Instructions: Direct your comments to Docket ID Number EPA-R05-RCRA-2010-0790. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov,, 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 http://www.regulations.gov Web site is an “anonymous access” system, which means 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 docket 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 or any form of encryption, and be free of any defects or viruses. For additional information about EPA's public docket, visit the EPA Docket Center homepage at http://www.epagov/​epahome/​dockets.htm.

Docket: All documents in the docket are listed in the www.regulations.gov index. Although listed in the index, some of the information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy. You may view and copy the documents that form the basis for this codification and associated publicly available materials from 9 a.m. to 4 p.m., Monday through Friday, excluding Federal holidays, at the following address: U.S. EPA, Region 5, 77 West Jackson Boulevard, Chicago, Illinois. Interested persons wanting to examine these documents should make an appointment with Jean Gromnicki at [phone] at least two weeks in advance.

FOR FURTHER INFORMATION CONTACT:

Jean Gromnicki, Wisconsin Regulatory Specialist, U.S. EPA, Region 5, LR-8J, 77 West Jackson Boulevard, Chicago, Illinois 60604, [phone], e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Incorporation By Reference

A. What is codification?

Codification is the process of placing a State's statutes and regulations that comprise the State's authorized hazardous waste management program into the Code of Federal Regulations (CFR). Section 3006(b) of RCRA, as amended, allows EPA to authorize State hazardous waste management programs to operate in lieu of the federal hazardous waste management regulatory program.

EPA codifies its authorization of the State programs in 40 CFR part 272 and incorporates by reference State statutes and regulations that EPA will enforce under sections 3007 and 3008 of RCRA and any other applicable statutory provisions.

The incorporation by reference of State authorized programs in the CFR should substantially enhance the public's ability to discern the current status of the authorized State program and State requirements that can be federally enforced. This effort provides clear notice to the public of the scope of the authorized program in each State.

B. What is the history of the authorization and codification of Wisconsin's hazardous waste management program?

Wisconsin initially received final authorization on January 30, 1986, effective January 31, 1986 (51 FR 3783) to implement the RCRA hazardous waste management program. EPA granted authorization for changes to Wisconsin's program on May 23, 1989, effective June 6, 1989 (54 FR 15029), on November 22, 1989, effective January 22, 1990 (54 FR 48243), on April 24, 1992, effective April 24, 1992 (57 FR 15029), on June 2, 1993, effective August 2, 1993 (58 FR 31344), on August 5, 1994, effective October 4, 1994 (59 FR 39971), on August 5, 1999, effective October 4, 1999 (64 FR 42630), on June 26, 2002, effective June 26, 2002 (67 FR 43027), on April 15, 2009 (74 FR 17423) effective April 15, 2009, and on April 17, 2009 (74 FR 17785) effective April 17, 2009.

EPA first codified Wisconsin's authorized hazardous waste program on February 21, 1989, effective April 24, 1989 (54 FR 7422), and updated the codification of Wisconsin's program on March 30, 1990, effective May 29, 1990 (55 FR 11910), and September 22, 1993, effective November 22, 1993 (58 FR 49199). In this action, EPA is revising Subpart YY of 40 CFR part 272 to include the authorization revision actions effective through April 17, 2009.

C. What decisions have we made in this rule?

The purpose of today's Federal Register document is to codify Wisconsin's base hazardous waste management program and its revisions to that program. This codification reflects the Wisconsin hazardous waste program EPA authorized in final rules dated April 15, 2009 (74 FR 17423) and April 17, 2009 (74 FR 17785).

EPA provided notices and opportunity for comments on its decisions to authorize the Wisconsin program. EPA is not now reopening the decisions, nor requesting comments, on the Wisconsin authorizations as published in the Federal Register notices specified in Section B of this document.

This document incorporates by reference Wisconsin's authorized hazardous waste statutes and regulations and clarifies which provisions are included in the authorized and federally enforceable program. By codifying Wisconsin's authorized program and by amending the CFR, the public will be more easily able to discern the status of federally approved requirements of the Wisconsin hazardous waste management program.

EPA is incorporating by reference the Wisconsin authorized hazardous waste program in subpart YY of 40 CFR part 272. 40 CFR 272.2501 incorporates by reference Wisconsin's authorized hazardous waste statutes and regulations. Section 272.2501 also references the statutory provisions (including procedural and enforcement provisions) which provide the legal basis for the State's implementation of the hazardous waste management program, the Memorandum of Agreement, the Attorney General's Statements, and the Program Description, which are approved as part of the hazardous waste management program under Subtitle C of RCRA.

D. What is the effect of Wisconsin's codification on enforcement?

The EPA retains its 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. On occasion when EPA might need to undertake these actions, it will rely on Federal sanctions, Federal inspection authorities, and Federal procedures rather than any authorized State analogues to these provisions. Therefore, EPA is not incorporating by reference any such approved Wisconsin procedural and enforcement authorities. 40 CFR 272.2501(c)(2) lists the statutory provisions which provide the legal basis for the State's implementation of the hazardous waste management program, as well as those procedural and enforcement authorities that are part of the State's approved program, but these are not incorporated by reference.

E. What State provisions are not part of the codification?

The public needs to be aware that some provisions of Wisconsin'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) Federal rules for which Wisconsin is not authorized, but which have been incorporated into the State regulations because of the way the State adopted Federal regulations by reference.

(3) Unauthorized State requirements; and

(4) State procedural and enforcement authorities which are necessary to establish the ability of the State's program to enforce compliance but which do not supplement the Federal statutory enforcement and procedural authorities.

State provisions that are “broader in scope” than the Federal program are not part of the RCRA authorized program and EPA will not enforce them. Therefore, they are not incorporated by reference in 40 CFR part 272. For reference and clarity, 40 CFR 272.2510 (c) (3) lists the Wisconsin regulatory provisions which are “broader in scope” than the Federal program and which are not part of the authorized program being incorporated by reference. “Broader in scope” provisions cannot be enforced by EPA; the State, however, may enforce such provisions under State law.

With respect to any requirement pursuant to the Hazardous and Solid Waste Amendments of 1984 (HSWA) for which the State has not yet been authorized, EPA will continue to enforce the Federal HSWA standards until the State is authorized for these provisions.

F. What will be the effect of federal HSWA requirements on the codification?

EPA is not amending 40 CFR part 272 to include HSWA requirements and prohibitions that are implemented by EPA. Section 3006(g) of RCRA provides that any HSWA requirement or prohibition (including implementing regulations) takes effect in authorized and not authorized States at the same time. A HSWA requirement or prohibition supersedes any less stringent or inconsistent State provision which may have been previously authorized by EPA (50 FR 28702, July 15, 1985). EPA has the authority to implement HSWA requirements in all States, including authorized States, until the States become authorized for such requirement or prohibition. Authorized States are required to revise their programs to adopt the HSWA requirements and prohibitions, and then to seek authorization for those revisions pursuant to 40 CFR part 271.

Instead of amending the 40 CFR part 272 every time a new HSWA provision takes effect under the authority of RCRA section 3006(g), EPA will wait until the State receives authorization for its analog to the new HSWA provision before amending the State's 40 CFR part 272 incorporation by reference. Until then, persons wanting to know whether a HSWA requirement or prohibition is in effect should refer to 40 CFR 271.1(j), as amended, which lists each such provision.

Some existing State requirements may be similar to the HSWA requirement implemented by EPA. However, until EPA authorizes those State requirements, EPA can only enforce the HSWA requirements and not the State analogs. EPA will not codify those State requirements until the State receives authorization for those requirements.

II. Administrative Requirements

1. Executive Order 18266: Regulatory Planning Review

The Office of Management and Budget has exempted this rule from its review under Executive Order 12866 (58 FR 51735, October 4, 1993) and, therefore, this action is not subject to review by OMB.

2. Paperwork Reduction Act

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.).

3. Regulatory Flexibility Act

This action authorizes State requirements for the purpose of RCRA section 3006 and imposes no additional requirements beyond those imposed by State law. Accordingly, I certify that this rule 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.).

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 of 1995 (Pub. L. 104-4).

5. Executive Order 13132: Federalism

Executive Order 13132 (64 FR 43255, August 10, 1999) 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 (65 FR 67249, November 9, 2000) does not apply to this rule because it will not have tribal implications (i.e., substantial direct effects on one or more Indian tribes, or 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 and Safety Risks

This rule is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant as defined in Executive Order 12866 and because EPA does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children.

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

This rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not a significant regulatory action as defined in Executive Order 12866.

9. National Technology Transfer 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 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 to this rule.

10. Executive Order 12988

As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.

11. Executive Order 12630: Evaluation of Risk and Avoidance of Unanticipated Takings

EPA has complied with Executive Order 12630 (53 FR 8859, March 18, 1988) by examining the takings implications of the rule in accordance with the Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings issued under the executive order.

12. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low Income Populations

Because this rule proposes authorization of pre-existing State rules and imposes no additional requirements beyond those imposed by State law and there are no anticipated significant adverse human health or environmental effects, the rule is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994).

13. 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 the 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).

List of Subjects in 40 CFR Part 272

• Environmental protection
• Administrative practice and procedure
• Confidential business information
• Hazardous materials transportation
• Hazardous waste
• Indians—lands
• Incorporation by reference
• Intergovernmental relations
• Penalties
• Reporting and recordkeeping requirements

Dated: March 24, 2011.

Susan Hedman,

Regional Administrator, Region 5.

For the reasons set forth in the preamble, 40 CFR part 272 is amended as follows:

PART 272—APPROVED STATE HAZARDOUS WASTE MANAGEMENT PROGRAMS

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 YY—[Amended]

2. Section 272.2501 is revised to read as follows:

§ 272.2501

Wisconsin State-administered program: Final authorization.

(a) Pursuant to section 3006(b) of RCRA, 42 U.S.C. 6926(b), Wisconsin has final authorization for the following elements as submitted to EPA in Wisconsin's base program application for final authorization which was approved by EPA effective on January 31, 1986. Subsequent program revision applications were approved effective on June 6, 1989, January 22, 1990, April 24, 1992, August 2, 1993, October 4, 1994, October 4, 1999, June 26, 2002, April 15, 2009, and April 17, 2009.

(b) The State of Wisconsin 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, and 7003 of RCRA, 42 U.S.C. 6927, 6928, 6934, and 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 Wisconsin regulations referenced 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. (See § 272.2). The director of the Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain copies of the Wisconsin regulations (Wisconsin Administrative Code) that are incorporated by reference in this paragraph from: Reference Bureau, One East Main Street, Suite 200, Madison, Wisconsin 53701-2037. You may inspect a copy at EPA Region 5, from 8 a.m. to 4 p.m., 77 West Jackson Boulevard, Chicago, Illinois, 60604, or at the National Archives and Records Administration (NARA). For more information on the availability of this material at NARA, call 202-741-6030, or go to: http:/www.archives.gov/​federal-register/​cfr/​ibrlocations.html.

(i) The Binder entitled “EPA-Approved Wisconsin Department of Natural Resources Regulatory and Statutory Requirements Applicable to the Hazardous Waste Program,” May 2009. Only those provisions that have been authorized by EPA are incorporated by reference. These regulatory provisions are listed in Appendix A to Part 272.

(ii) [Reserved]

(2) The following provisions provide the legal basis for the State's implementation of the hazardous waste management program, but they are not being incorporated by reference and do not replace Federal authorities: Wisconsin Statutes, Sections 13.93(2m)(b)7, 19.21, 19.31, 19.32(2) and (5), 19.35(3) and (4), 19.36, 19.37(1) and (2), 23.32(1), 101.055, 141.05(47), 227.14, 227.51, 283.01(7) and (12), 283.11, 283.21(2), 283.31, 283.33, 287.07(1m)(a) and (am), 287.15, 287.18, 287.189, 289.22(1m) and (2), 289.25-289.28, 289.30(3), 289.33(6), 289.34, 289.41(1)(a),(b), (c) and (m), (3)(a)(5), (4) and (5)(d), (6) and (7), 289.61-289.68, 289.91-289.97, 291.01(7), (17), and (21), 291.05 (1)-(7), 291.11, 291.15, 291.21, 291.23, 291.25, 291.25(4), 291.37, 291.85-291.97, 291.97(1), 292, 292.11, 295.01(2)(c), 299.45(1)(a), 803.09 and 985.05. Copies of the Wisconsin Statutes are available from: Legislative Reference Bureau, One East Main Street, Suite 200, Madison, Wisconsin 53701-2037.

(3) The following statutory and regulatory provisions are broader in scope than the Federal program, are not part of the authorized program, and are not incorporated by reference:

(i) The Wisconsin Administrative Code, 2006/2007 Edition, Sections NR 665.0071(1)(b)6, 666.900-666.905, 666.909, 666.910, 670.007, and 670.427, chapter NR 670 Appendix II: Hazardous Waste Fee Table, and section NR 673.08.

(ii) [Reserved]

(4) Memorandum of Agreement. The Memorandum of Agreement between EPA Region 5 and the State of Wisconsin (WDNR), signed by the EPA Regional Administrator on October 23, 2008, is 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. “Attorney General's Statement for Final Authorization,” signed by the Attorney General of Wisconsin on July 23, 1985, and revisions, supplements and addenda to that Statement dated December 27, 1985, June 30, 1987, July 22, 1987, March 29, 1988, December 10, 1991, February 25, 1994, April 27, 1999, September 18, 2000, and October 31, 2007 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 are referenced as part of the authorized hazardous waste management program under subtitle C of RCRA, 42 U.S.C. 6921 et seq.

3. Appendix A to part 272 is amended by revising the listing for Wisconsin to read as follows:

Appendix A to Part 272—State Requirements

* * * * *

Wisconsin

The regulatory provisions include: The Wisconsin Administrative Code, 2006/2007 Edition, sections NR 660.01, 660.02, 660.07, 660.10, 660.11, 660.20-660.23, 660.30-660.33, 660.40, 660.41, 661.01-661.04, 661.06-661.11, 661.20-661.24, 661.30-661.33, 661.35 and 661.38 and chapter NR 661 Appendix I, II, III, VII and VIII, sections NR 662.010-662.012, 662.020, 662.022, 662.023, 662.027, 662.030-662.034, 662.040-662.043, 662.050-662.058, 662.060, 662.070, 662.080-662.087, 662.089, 662.190-662.194, 662.220, 663.10-663.13, 663.20-663.22, 663.30, 663.31, 664.0001, 664.0003, 664.0004, 664.0010-664.0019, 664.0025, 664.0030-664.0035, 664.0037, 664.0050-664.0056, 664.0070-664.0077, 664.0090-664.0101, 664.0110-664.0120, 664.0140-664.0148, 664.0151, 664.0170-664.0179, 664.0190-664.0200, 664.0220-664.0223, 664.0226-664.0232, 664.0250-664.0259, 664.0270, 664.0300-664.0304, 664.0309, 664.0310, 664.0312-664.0317, 664.0340-664.0345, 664.0347, 664.0351, 664.0550-664.0555, 664.0570-664.0575, 664.0600-664.0603, 664.1030-664.1036, 664.1050-664.1065, 664.1080-664.1090, 664.1100-664.1102 and 664.1200-664.1202, chapter NR 664 Appendix I, IV, V and IX, sections NR 665.0001, 665.0004, 665.0010-665.0019, 665.0030-665.0035, 665.0037, 665.0050-665.0056, 665.0070-665.0077 (excluding 665.0071(1)(b)6), 665.0090-665.0094, 665.0110-665.0121, 665.0140-665.0148, 665.0170-665.0174, 665.0176-665.0178, 665.0190-665.0200, 665.0202, 665.0220-665.0226, 665.0228-665.0231, 665.0250-665.0260, 665.0270, 665.0300-665.0304, 665.0309, 665.0310, 665.0312-665.0316, 665.0340, 665.0341, 665.0345, 665.0347, 665.0351, 665.0352, 665.0370, 665.0373, 665.0375, 665.0377, 665.0381-665.0383, 665.0400-665.0406, 665.0430, 665.0440-665.0445, 665.1030-665.1035, 665.1050-665.1064, 665.1080-665.1090, 665.1100-665.1102 and 665.1200-665.1202, chapter NR 665 Appendix I, III, IV, V and VI, sections NR 666.020-666.023, 666.070, 666.080, 666.100-666.112, 666.200-666.206, 666.210, 666.220, 666.225, 666.230, 666.235, 666.240, 666.245, 666.250, 666.255, 666.260, 666.305, 666.310, 666.315, 666.320, 666.325, 666.330, 666.335, 666.340, 666.345, 666.350, 666.355, 666.360, chapter NR 666 Appendix I- IX and XI -XIII, sections NR 668.01-668.07, 668.09, 668.14, 668.30-668.46 and 668.48-668.50, chapter NR 668 Appendix III, IV, VI-IX and XI, sections NR 670.001, 670.002, 670.004, 670.005, 670.010-670.019, 670.021-670.033, 670.040-670.043, 670.050, 670.051, 670.061, 670.062, 670.065, 670.066, 670.068, 670.070-670.073, 670.079, 670.235, 670.401, 670.403-670.406, 670.408-670.412, 670.415, 670.417, and 670.431-670.433, chapter NR 670 Appendix I, sections NR 673.01-673.05, 673.09-673.20, 673.30-673.40, 673.50-673.56, 673.60-673.62, 673.70, 673.80, 673.81, 679.01, 679.10-679.12, 679.20-679.24, 679.30-679.32, 679.40-679.47, 679.50-679.67, 679.70-679.75, and 679.80-679.82.

Copies of the Wisconsin regulations that are incorporated by reference can be obtained from: Legislative Reference Bureau, One East Main Street, Suite 200, Madison, Wisconsin 53701-2037.