02-4786. Wisconsin: Final Authorization of State Hazardous Waste Management Program Revisions

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Immediate final rule.

SUMMARY:

Wisconsin has applied to EPA for Final authorization of the changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA has determined that these changes satisfy all requirements needed to qualify for Final authorization, and is authorizing the State's changes through this immediate final action. In this document, EPA is authorizing the changes by an immediate final rule. EPA did not make a proposal prior to the immediate final rule because we believe this action is not controversial and do not expect comments that oppose it. Unless we get written comments which oppose this authorization during the comment period, the immediate final rule will become effective on the date it establishes, and we will not take further action on the proposal pubished elsewhere in this issue of the Federal Register. If we get comments that oppose this action, we will publish a document in the Federal Register withdrawing this rule, or portions thereof, before it takes effect, and a separate document in the proposed section of this Federal Register will serve as a proposal to authorize the changes.

DATES:

This Final authorization will become effective April 30, 2002 unless EPA receives written adverse comment by April 1, 2002. If EPA receives such comment, it will publish a timely withdrawal of this immediate final rule in the Federal Register and inform the public this authorization will not take effect.

ADDRESSES:

Send written comments to Jean Gromnicki, Wisconsin Regulatory Specialist, DM-7J, 77 West Jackson Boulevard, Chicago, Illinois 60604. Please refer to Docket Number WI ARA 7. We must receive your comments by April 1, 2002. You can examine copies of the materials submitted by Wisconsin during normal business hours at the following locations: EPA Region 5 Library, 77 West Jackson Boulevard, Chicago, Illinois 60604, Contact: Jean Gromnicki, Phone number: [phone] or the Wisconsin Department of Natural Resources, 101 North Webster, Madison, Wisconsin, 53707, Contact: Patricia Chabot, Phone: [phone].

FOR FURTHER INFORMATION CONTACT:

Jean Gromnicki, Wisconsin Regulatory Specialist at [phone].

SUPPLEMENTARY INFORMATION:

A. Why Are Revisions to the State Programs Necessary?

States which 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 changes, States must change their programs and ask EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.

B. What Decisions Have We Made in This Rule?

We conclude that Wisconsin's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we propose to grant Wisconsin Final authorization to operate its hazardous waste program with the changes described in the authorization application. Wisconsin has responsibility for permitting Treatment, Storage and Disposal Facilities (TSDFs) within its borders (except in Indian Country) and for carrying out the aspects of the RCRA program described in its revised program 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 requirements and prohibitions in Wisconsin, including issuing permits, until the State is granted authorization to do so.

C. What Is the Effect of Today's Authorization Decision?

The effect of this decision is that a facility in Wisconsin subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. Additionally, such persons must comply with any applicable Federally-issued requirements, such as, for example, HSWA regulations issued by EPA for which the State has not received authorization, and RCRA requirements that are not supplanted by authorized state-issued requirements. Wisconsin continues to have enforcement responsibilities under its state hazardous waste program for violation of such program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include among others, authority to:

• Do inspections, and require monitoring, tests, analyses or reports.
• Enforce RCRA requirements and suspend or revoke permits.
• Take enforcement actions regardless of whether the State has taken its own actions.

This action does not impose additional requirements on the regulated community because the regulations for which Wisconsin is being authorized by today's action are already effective, and are not changed by today's action.

D. Why Wasn't There a Proposed Rule Before Today's Rule?

EPA did not publish a proposal before today's rule because we view this as a routine program change and do not expect comments that oppose this approval. We are providing an opportunity for public comments now. In addition to this rule, in the proposed rules section of today's Federal Register we are publishing a separate document that proposes to authorize the State program changes.

E. What Happens if EPA Receives Comments That Oppose This Action?

If EPA receives comments that oppose this authorization, we will address all public comments in a later Federal Register. 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 Wisconsin Previously Been Authorized for?

Wisconsin initially received Final Authorization on January 30, 1986, effective January 31, 1986 (51 FR 3783) to implement its base hazardous waste management program. Wisconsin received authorizations for revisions to its 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 4, 1994, effective October 4, 1994 (59 FR 39971), and on August 5, 1999, effective October 4, 1999 (64 FR 42630).

G. What Changes Are We Authorizing With Today's Action?

On November 5, 2001, Wisconsin submitted a final complete program revision application seeking authorization of their changes in accordance with 40 CFR 271.21. We now make a final decision, subject to receipt of written comments that oppose this action, that Wisconsin's hazardous waste program revisions satisfies all of the requirements necessary to qualify for Final authorization. Therefore we grant Wisconsin Final authorization for the following program changes:

Description of Federal requirement (checklist #)	Federal Register, date and page	Analogous state authority
Wastes From the Use of Chlorophenolic Formulations in Wood Surface Protection (Checklist 128)	59 FR 458-469, Effective January 4, 1994	NR 600.10(2) 605 (Appendix IV), Effective June 1, 1998.
Revision of Conditional Exemption for Small Scale Treatability Studies (Checklist 129)	59 FR 8362-8366, Effective February 18, 1994	NR 605.05(9)-(11), Effective June 1, 1998.
Recycled Used Oil Management Standards; Technical Amendments and Corrections II (Checklist 130	59 FR 10550-10560, Effective March 4, 1994	NR 590.03(33m), 590.04(1), 590.10(3), 590.11, 590.12(2), 590.36(1), 590.37(1)-(2), 590.50(3); Effective June 1, 1998.
Wood Surface Protection; Correction (Checklist 132)	59 FR 28484, Effective June 2, 1994	NR 600.10(2), Effective June 1, 1998.
Letter of Credit Revision (Checklist 133)	59 FR 29958-29960, Effective June 10, 1994	NR 685.07(5), Effective June 1, 1998.
Correction of Beryllium Powder (PO15) Listing (Checklist 134)	59 FR 31551-31552, Effective June 20, 1994	NR 605.09 (Table IV), 605 Appendix IV, 675.20/Table, Effective June 1, 1998.
Recovered Oil Exclusion (Checklist 135)	59 FR 38536-38545, Effective July 28, 1994	NR 605.04(1), 605.05(1)-(2), 625.07(2), Effective June 1, 1998.
Removal of the Conditional Exemption for Certain Slag Residues (Checklist 136)	59 FR 43496-43500, Effective August 24, 1994	NR 625.05(1), 675.20, Effective June 1, 1998.
Universal Treatment Standards and Treatment Standards for Organic Toxicity Characteristic Wastes and Newly Listed Wastes (Checklist 137)	59 FR 47982-48110, Effective September 19, 1994 as amended at 60 FR 242-302, Effective January 3, 1995	NR 605(2), 630.04(16), 625.05(1), 600.04, 675.03(1m), 675.04(2), 675.03(1), 675.03(7p), 675.07(1)-(2), 675.09(1), (4)-(5), 675.19(1), 675.20(1)-(7), 675.20/Table, 675.21, 675.22, 675.22(1), 675.22 Table1, 675.22(4)-(5), 675.23, 675.25(2), 675.26, 675.28, 675 Appendix III, 675 Appendix VIII; Effective June 1, 1998.
Testing and Monitoring Activities Amendment I (Checklist 139)	60 FR 3089-3095, Effective January 13, 1995	NR 600.10(2), Effective June 1, 1998.
Carbamate Production Identification and Listing of Hazardous Waste (Checklist 140)	60 FR 7824-7859, Effective February 9, 1995	NR 605.(1), 605.09 Table III, 605.09 Table IV, 605.09 Table V, 605 Appendix III, Appendix IV, Effective June 1, 1998.
Testing and Monitoring Activities Amendment II (Checklist 141)	60 FR 17001-17004, Effective April 4, 1995	NR 600.10(2), Effective June 1, 1998.
Universal Waste: General Provisions (Checklist 142 A)	60 FR 25492-25551, Effective May 11, 1995	NR 600.03, 600.03 (56m), 600.03 (249m),600.03 (249p), 600.03 (249z), 610.07(1m), 610.07(1), 690.01, 690.02, 690.04, 615.04, 615.05, 615.06(6), 630.04(17), 605.05(12), 675.04(3), 680.02, 690.04(1)-(2), 690.08(1), 690.03(2), 690.03(4)-(6), 690.03(8), 690.03(10)-(13), 690.10, 690.11, 690.12(2), 690.14, 690.15(1)-(3), 690.16, 690.17(1)-(2), 690.18(1)-(8), 690.19, 690.20, 690.30, 690.31, 690.32(1)-(2), 690.34, 690.35(1)-(3), 690.36, 690.37(1)-(2), 690.38(1)-(8), 690.39(1)-(3), 690.40, 690.50, 690.51, 690.52(1)-(2), 690.53(1)-(2), 690.54(1)-(2), 690.55(1)-(2), 690.56, 690.60(1)-(2), 690.61(1)-(4), 690.62(1)-(2), 690.70; Effective June 1, 1998.
Universal Waste Rule: Specific Provisions for Batteries (Checklist 142 B)	60 FR 25492-25551, Effective May 11, 1995	NR 690.03(1), 690.03(10), 690.02(1), 630.04(17), 625.02, 625.05, 625.12(1), 675.04(3), 690.04(1), 690.05(1)-(3), 690.03, 690.13, 690.14, 690.33, 690.34; Effective June 1, 1998
Universal Waste Rule: Specific Provisions for Pesticides (Checklist 142 C)	60 FR 25492-25551, Effective May 11, 1995	NR 690.03(7), 690.03(10), 605.05(12), 690.04(1), 630.04(17), 675.04(3), 680.02, 690.06(1)-(4), 690.03(3), 690.03(7), 690.03(10), 690.13(2), 690.14(2)-(3), 690.32(1), 690.33(2), 690.34(2)-(3) Effective June 1, 1998.
Universal Waste Rule: Specific Provisions for Thermostats (Checklist 142 D)	60 FR 25492-25551, Effective May 11, 1995	NR 605.05(12), 630.04(17), 690.04(1), 675.04(3), 680.02, 690.07, 690.03(9)-(10), 690.13(3), 690.14(4), 690.33(3), 690.34(4) Effective June 1, 1998.
Universal Waste Rule: Petition Provisions to Add a New Universal Waste (Checklist 142 E)	60 FR 25492-25551, Effective May 11, 1995	NR 605.10(1)-(2), 605.10(6)-(7), 690.80(1)-(3), 690.81(1)-(8), Effective June 1, 1998.
Liquids in Landfills III (Checklist 145)	60 FR 35703-13106, Effective July 11, 1995	NR 660.18(8), Effective June 1, 1998.
RCRA Expanded Public Participation (Checklist 148)	60 FR 63417-63434, Effective December 11, 1995	NR 680.06(1m), 680.06(8m), 680.06(15), 600.03(104), 680.03(3m), 680.42(18m), 680.07(7), 665.06(1), 665.07(2), 665.06(4), 665.06(1), 665.02, June 1, 1998.
Amendments to the Definition of Solid Waste: Amendment II (Checklist 150)	61 FR 13103-13106, Effective March, 26, 1996	NR 605.05(1), Effective June 1, 1998.
Land Disposal Restriction Phase III Decharacterized Wastewaters, Carbamate Wastes and Spent Potliners (Checklist 151)	61 FR 15566-15660, Effective April 8, 1996	NR 600.04(1), 675.05(3), 675.03(1m), 675.03(4m), 675.03(7p), 675.03(8), 675.04(2), 675.06(1)-(3), 675.07(1)-(2), 675.09(1), 675.09(4), 675.19(2), 675.20(1), 675.20(6), 675.20, Table, 675.22/Table 1, 675.24(1), 675.28(a) Table UTS, 675 Appendix IX, Effective June 1, 1998.

H. Where Are the Revised State Rules Different From the Federal Rules?

Wisconsin has proposed specific parts of Federal Regulation to be more stringent than Federal requirements. These requirements are part of Wisconsin's authorized program and are federally enforceable.

Description of Federal requirement	Federal citation number (checklist number)	State citation number
Revision of Conditional Exemption for Small Scale Treatability Studies (Checklist 129)	261.4(e)(3)(iii)(A)	605.05(10)(e)1.
	261.4(f)(4)	605.05(11)(d)
Recovered Oil Exclusion (Checklist 135)	261.3(c)(2)(ii)(B)	605.04(1)(b)10.
	261.4(a)(12)	605.05(1)(x).
Removal of the Conditional Exemption for Certain Slag Residues (Checklist 136)	266.20(c)	625.05(1).
Universal Treatment Standards and Treatment Standards for Organic Toxicity Characteristic Wastes and Newly Listed Wastes (Checklist 137)	260.30 intro, 260.30(b)	There is no Wisconsin waiver to the definition of Solid Waste.
	260.31(a), 260.31(b)	Wisconsin does not have a provision like 260.31(a). Materials that are speculatively accumulated must be managed as hazardous waste (see 605.05(4).
	260.32 intro, 260.33 intro, 260.33(a), 260.33(b)	Wisconsin does not have a boiler variance provision.
	266.23(a)	625.05(1).
	268.1(c)(3)(ii), 268.1(c)(3)(iii)	600.04(1), 600.04.
	268.7(a)(8)	675.07(1)(j).
	268.7(b)(4)(ii)	675.07(2)(d)b.
	268.38(a)	675.19(1)(a).
	268.38(b)	675.19(1)(b).
Carbamate Production Identification and Listing of Hazardous Waste (Checklist 140)	261.3(a)(2)(iv)(F), 261.3(a)(2)(iv)(G)	There is no exemption 261.3(a)(2)(iv)(F) of (G) in the Wisconsin Code.
	261.3(c)(2)(ii)(D)	There is no Wisconsin citation for 261.3(c)(2)(ii)(D).
Universal Waste Rule: Petition Provisions to Add a New Universal Waste (Checklist 145)	264.314(e)(2)(ii), 264.314(e)(2)(iii), 265.314(f)(2)(ii), 265.314(f)(2)(iii)	660.18(8)(b) Wisconsin does not allow OECD Test 301B, rules are more restrictive in defining non-biodegradable sorbents.
Land Disposal Restrictions Phase III—Decharacterized, Wastewaters, Carbamate Wastes, and Spent Potliners (Checklist 151)	268.1(c)(3), 268.1(c)(3)(i), 268.1(c)(3)(ii), 268.1(c)(3)(iii)	600.04(1) Note: Underground injection is prohibited.
	268.1(c)(4), 268.1(c)(4)(i), 268.1(c)(4)(ii), 268.1(c)(4)(iii), 268.1(c)(4)(iv)
	268.7(a)(1)(vi)	675.07(1)(d).
	268.39(b)	675.19(2)(b).
	268.39(c)	675.19(2)(c).
	268.39(d)	675.19(2)(e).
	268.39(f)	675.19(2)(g).
	268.40(a)	675.20(1).
	268.40(g)	675.20(1).

I. Who Handles Permits After Authorization Takes Effect?

Wisconsin will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer any RCRA hazardous waste permits or portions of permits which we issued prior to the effective date of this authorization until they expire or are terminated. We will not issue any more new permits or new portions of permits for the provisions listed in the Table above after the effective date of this authorization. EPA will continue to implement and issue permits for HSWA requirements for which Wisconsin is not yet authorized.

J. How Does Today's Action Affect Indian Country (18 U.S.C. 115) in Wisconsin?

Wisconsin is not authorized to carry out its hazardous waste program in Indian country within the State, as defined in 18 U.S.C. 1151. This includes:

1. All lands within the exterior boundaries of Indian reservations within or abutting the State of Wisconsin;

2. Any land held in trust by the U.S. for an Indian tribe; and

3. Any other land, whether on or off an Indian reservation that qualifies as Indian country. Therefore, this action has no effect on Indian country. EPA will continue to implement and administer the RCRA program in Indian country.

K. What Is Codification and Is EPA Codifying Wisconsin's Hazardous Waste Program as Authorized in This Rule?

Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. We do this by referencing the authorized State Rules in 40 CFR part 272. We reserve the amendment of 40 CFR 272, subpart YY for this authorization of Wisconsin's program changes until a later date.

L. Administrative Requirements

The Office of Management and Budget (OMB) has exempted RCRA authorizations from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993), and therefore, a decision to authorize Wisconsin for these revisions is not subject to review by OMB. Furthermore, 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. This action authorizes State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. This authorization will effectively suspend the applicability of certain Federal regulations in favor of Wisconsin's program, thereby eliminating duplicative requirements for handlers of hazardous waste in the State. Authorization will not impose any new burdens on small entities. Accordingly, I certify that these revisions will not have a significant economic impact on a substantial number of small entities under the Regulator Flexibility Act (5 U.S.C. 601 et seq.). Because implementing this proposal would authorize pre-existing requirements under State law and would not impose any additional enforceable duty beyond that required by State law, it will 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 proposed rule does not have tribal implications within the meaning of Executive Order 13175 (65 FR 67249, November 6, 2000). Authorization 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. A decision to authorize Wisconsin for these revisions 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 does not include environmental justice related issues that require consideration under Executive Order 12898 (59 FR 7629, February 16, 1994).

Under RCRA 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. 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. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with any Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings issued under the Executive Order. A decision to authorize Wisconsin's revisions will 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 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 will be effective April 30, 2002.

List of Subjects in 40 CFR Part 271

• Environmental protection
• Administrative practice and procedure
• Confidential business information
• Hazardous waste
• Hazardous waste transportation
• Indian lands
• Intergovernmental relations
• Penalties
• Reporting and recordkeeping requirements

Authority: This Action is issued under the authority of sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended 42 U.S.C. 6912(a), 6926, 6974(b).

Dated: February 15, 2002.

Bertram C. Frey,

Acting Regional Administrator, Region 5.