E9-9544. Montana: Final Authorization of State Hazardous Waste Management Program Revision

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Immediate final rule.

SUMMARY:

The Solid Waste Disposal Act, as amended, commonly referred to as the Resource Conservation and Recovery Act (RCRA), allows the Environmental Protection Agency (EPA) to authorize States to operate their hazardous waste management programs in lieu of the federal program. Montana has applied to EPA for Final authorization of the changes to its hazardous waste program under the 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.

DATES:

This final authorization will become effective on June 26, 2009 unless EPA receives adverse written comment by May 27, 2009. If adverse comment is received, EPA will publish a timely withdrawal of the immediate final rule in the Federal Register informing the public that this authorization will not take effect.

ADDRESSES:

Submit your comments, identified by EPA-R08-RCRA-2009-0212, by one of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.
• E-mail: [e-mail].
• Fax: [phone].
• Mail, Hand Delivery or Courier: Deliver your comments to Christina Cosentini, Solid and Hazardous Waste Program, EPA Region 8, Mailcode 8P-HW, 1595 Wynkoop Street, Denver, Colorado 80202-1129. Courier or hand deliveries are only accepted during the Regional Office's normal hours of operation. The public is advised to call in advance to verify the business hours. Special arrangements should be made for deliveries of boxed information.

Instructions: Direct your comments to Docket ID No. EPA-R08-RCRA-2009-0212. EPA's policy is that all comments received will be included in the public docket without change, 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 from disclosure through http://www.regulations.gov,, or e-mail. The federal Web site http://www.regulations.gov 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, 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.epa.gov/​epahome/​dockets.htm.

Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information may not be 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 through http://www.regulations.gov or in hard copy from 9 a.m. to 4 p.m., at: EPA Region 8, 1595 Wynkoop Street, Denver, Colorado, contact: Christina Cosentini, phone number [phone], or the Montana Department of Environmental Quality, from 9 a.m. to 4 p.m., Metcalf Building, 1520 East Sixth Avenue, Helena, Montana 59620, contact: Robert Martin, phone number [phone]. The public is advised to call in advance to verify business hours.

FOR FURTHER INFORMATION CONTACT:

Christina Cosentini, 303-312-6231, [e-mail] or Robert Martin, 406-444-4194, [e-mail].

SUPPLEMENTARY INFORMATION:

A. Why Are Revisions to State Programs Necessary?

States that 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 the 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 the State of Montana's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we grant Montana final authorization to operate its hazardous waste program with the changes described in the authorization application. Montana has responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders, (except in Indian country), and for implementing 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 Montana including issuing permits, until Montana is authorized to do so.

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

The effect of this decision is that a facility in Montana 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. The State of Montana has enforcement responsibilities under its State hazardous waste program for violations of such program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:

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

This action does not impose additional requirements on the regulated community because the regulations for which Montana is being authorized by this action are already effective under State law, and are not changed by this action.

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

EPA did not publish a proposal before this rule because we view this as a routine program change. We are providing an opportunity for public comment at this time. 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 Opposing This Action?

If EPA receives comments that oppose this authorization, we will withdraw this rule by publishing a document in the Federal Register before the rule becomes effective. EPA will base any further decision on the authorization of the State program changes on the proposal mentioned in the previous paragraph. We will then address all public comments in a later final rule. You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time.

If we receive comments that oppose only the authorization of a particular change to the Montana hazardous waste program, we will withdraw only that part of this rule, but the authorization of the program changes that the comments do not oppose will become effective on the date specified above. The Federal Register withdrawal document will specify which part of the authorization will become effective, and which part is being withdrawn.

F. For What Has Montana Previously Been Authorized?

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 on July 11, 1984, effective September 25, 1985 (49 FR 28245), January 19, 1994, effective March 21, 1994 (59 FR 02752); December 26, 2000, effective December 26, 2000(65 FR 81381) and September 30, 2005, effective November 29, 2005 (70 FR 57153).

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

Montana submitted a complete program revision application on January 31, 2008, seeking authorization of their changes in accordance with 40 CFR 271.21. We now make an immediate final decision subject to receipt of written comments that oppose this action that Montana's hazardous waste program revision satisfies all of the requirements necessary to qualify for final authorization. Therefore, we grant Montana final authorization for its entire Hazardous Waste Program, excluding the broader-in-scope provisions as found at Administrative Rules of Montana (ARM), Title 17, Chapter 53, effective December 22, 2006, which incorporated 40 CFR parts 124, and 260 through 268, 270, 272, and 279, effective July 1, 2006. The State of Montana has revised its program using a method that incorporates the Federal Program by reference. The State's laws and regulations, as amended by these provisions, provide authority which remains equivalent to and no less stringent than the Federal laws and regulations. The State also excluded Federal provisions from the incorporation by reference that are not delegated to the State's program. The State of Montana revisions consist of regulations which specifically govern Federal Hazardous Waste revisions promulgated from July 1, 2003 through July 1, 2006, (RCRA Clusters XIV-XVI). Montana requirements are included in a chart with this document.

Description of federal requirement (include checklist #, if relevant)	Federal Register date and page (and/or RCRA statutory authority)	Analogous state authority
1. Recycled Used Oil Management Standards; Clarification. (Checklist 203)	68 FR 44659-44665 July 30, 2003	Montana Code Annotated (MCA) effective 2007, Title 75-10-404 and 405; Administrative of Montana (ARM), Title 17, Chapter 53, 17.53.501, 17.53.1401, as amended and effective December 22, 2006.
2. Performance Track. (Checklist 204)	69 FR 21737-21754 April 22, 2004	Montana Code Annotated (MCA) effective 2007, Title 75-10-404 and 405; Administrative of Montana (ARM), Title 17, Chapter 53, 17.53.601, as amended and effective December 22, 2006.
3. NESHAP: Surface Coating of Automobiles and Light-Duty Trucks. (Checklist 205)	69 FR 22601-22661 April 26, 2004	Montana Code Annotated (MCA) effective 2007, Title 75-10-404 and 405; Administrative of Montana (ARM), Title 17, Chapter 53, 17.53.801, as amended and effective December 22, 2006.
4. Nonwastewaters from Dyes and Pigments. (Checklist 206)	70 FR 9138-9180 February 24, 2005	Montana Code Annotated (MCA) effective 2007, Title 75-10-404 and 405; Administrative of Montana (ARM), Title 17, Chapter 53, 17.53.501, and 17.53.1101, as amended and effective December 22, 2006.
5. Uniform Hazardous Waste Manifest Rule. (Checklist 207)	70 FR 10776-10825 March 4, 2005	Montana Code Annotated (MCA) effective 2007, Title 75-10-404 and 405; Administrative of Montana (ARM), Title 17, Chapter 53, 17.53.301, 17.53.501, 17.53.601, 17.53,701, 17.53.801, and 17.53.901, as amended effective December 22, 2006.
6. Methods Innovation Rule and SW-846 Final Update IIIB. (Checklist 208)	70 FR 34538-34592 June 14, 2005	Montana Code Annotated (MCA) effective 2007, Title 75-10-404 and 405; Administrative of Montana (ARM), Title 17, Chapter 53, 17.53.501,17.53.801, 17.53.901, 17.53.1001, 17.53.1101, 17.53.1102 (5), 17.53.1201, and 17.53.1401, as amended effective December 22, 2006. The State did not adopt Federal rules at 40 CFR parts 260.11, 260.21(d) and 260.22(d)(1)(i) because the rules are optional federal provisions.
7. Universal Waste Rule: Specific Provisions for Mercury Containing Equipment. (Checklist 209)	70 FR 45508-45522 August 5, 2005	Montana Code Annotated (MCA) effective 2007, Title 75-10-404 and 405; Administrative of Montana (ARM), Title 17, Chapter 53, 17.53.301, 17.53.501, 17.53.501, 17.53.601, 17.53.1101, 17.53.1201, and 17.53.1301, as amended effective December 22, 2006.
8. Standardized Permits for RCRA Hazardous Waste Management Facilities. (Checklist 210)	70 FR 53420-53478 September 8, 2005	Montana Code Annotated (MCA) effective 2007, Title 75-10-404 and 405; Administrative of Montana (ARM), Title 17, Chapter 53, 17.53.1201, 17.53.301, and 17.53.501, as amended effective December 22, 2006.
9. Revisions of Wastewater Treatment Exemptions for Hazardous Waste Mixtures (“Headworks exemptions”). Checklist 211)	70 FR 57769-57785 October 4, 2005	Montana Code Annotated (MCA) effective 2007, Title 75-10-404 and 405; Administrative of Montana (ARM), Title 17, Chapter 53, 17.53.501, as amended effective December 22, 2006.
10. NESHAP: Final Standards for Hazardous Waste Combustors (Phase I Final Replacement Standards and Phase II). (Checklist 212)	70 FR 59402-59579 October 12, 2005	Montana Code Annotated (MCA) effective 2007, Title 75-10-404 and 405; Administrative of Montana (ARM), Title 17, Chapter 53, 17.53.801, 17.53.1001, and 17.53.1201, as amended effective December 22, 2006. The State did not adopt Federal rules 40 CFR parts 260.11(a) and 260.11(c)(1) because the rules are optional Federal provisions.
11. Burden Reduction Initiative. (Checklist 213)	71 FR 16862-16915 April 4, 2006	Montana Code Annotated (MCA) effective 2007, Title 75-10-404 and 405; Administrative of Montana (ARM), Title 17, Chapter 53, 17.53.301, 17.53.402, 17.53.501, 17.53.801, 17.53.802 (9), 17.53.802 (11), 17.53.901, 17.53.902 (9), 17.53.902 (11), 17.53.1001, 17.53.1101, 17.53.1102 (4), and 17.53.1201, as amended effective December 22, 2006.

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

The Montana hazardous waste program is equivalent to the Federal program in all areas, except Montana has not adopted the following Federal rules: 40 CFR 260.11, 260.20, 260.21, 260.22, 260.21(d), 260.22(d)(1)(i), 260.11(a), 260.11(c)(1), and 260.23. (See ARM 17.53.401). These cited regulations do not make the State more stringent; the regulated community must apply to the EPA Regional office and comply with the Federal requirements for petitions, including delisting petitions, addressed by these regulations. The State did not adopt any provision related to underground injection; instead the responsibility for this part of the program is left with EPA (see 17.53.102(3), 17.53.802(2), 17.53.902(18), 17.53.1202(16), and 17.53.1202(18). The State also has not adopted the permit by rule requirements for ocean disposal barges, because the State is landlocked and accordingly, the provisions do not apply.

Montana's more stringent regulations found at Administrative Rules of Montana, Title 17: 17.53.502(2), 17.53.602(2), 17.53.602(3), 17.53.603, 17.53.802(5), 17.53.803, 17.53.902(6), 17.53.903 and 17.53.1202(11) require annual rather than biennial reports; 17.53.803(1)(f)(iii) requires the most recent corrective action cost estimate to be submitted in the annual report; 17.53.702(2) through (4), 17.53.704 and 17.53.706 through 708 contain additional requirements for transfer facilities; 17.53.602(7) and (8) require the primary exporter to also file a report with the Montana Department of Environmental Quality; 17.53.602(9) gives both EPA and the State the authority to extend the record retention period; 17.53.1002(1), 17.53.1002(6) and 17.53.1003 prohibit certain waste, including the dioxin wastes, from being burned in a Boiler and Industrial Furnace (BIF); 17.53.1002(2) and 17.53.1004 require that BIFs also perform background and periodic testing of soils and water in addition to the 40 CFR 266.102 requirements; 17.53.1002(4) does not allow the 40 CFR 266.102(e)(3)(ii) exemption from the particulate standards for BIFs and adds a provision that gives the Montana Department of Environmental Quality the discretion to require a BIF owner/operator submit, in conjunction with the permit application, a plan that will require cessation of hazardous waste burning during prolonged inversion conditions; 17.53.1002(5) requires annual stack emissions in addition to 40 CFR 266.102(e)(8)(i)(C); 17.53.1002(7) does not allow the 40 CFR 266.105(b) waiver from the BIF particulate matter standards; and 17.53.1002(6) and 17.53.1002(8) do not allow the 40 CFR 266.109 low risk exemption and the 266.110 waiver of the DRE trial burn for boilers; 17.53.1202(10) does not allow the submission of data in lieu of a trial burn as per 40 CFR 270.22(a)(1)(ii) and 270.22(a)(6); 17.53.1202(14) and (15) require that the term of a Boiler and Industrial Furnace permit be only five years and the permit may be modified to assure that the facility is in compliance with the current applicable requirements. The State does not allow interim status for BIFs; thus, does not adopt 40 CFR 266.103 and the language associated with it in 40 CFR part 266 (see 17.53.1002(3), as well as 40 CFR 270.66(g)), (see 17.53.1202(19)).

Montana's hazardous waste regulations are broader-in-scope than the Federal rules at: 17.53.111(2), 17.53.112, 17.53.113, and 17.53.1202(5)(1) and (17), because the State requires permit application fees, as well as registration fees; 17.53.703 is also broader-in-scope because it requires that transporters obtain a registration from the State. Broader-in-scope requirements are not part of the authorized program, and EPA cannot enforce them. Although a facility must comply with these requirements in accordance with State law, they are not RCRA requirements.

EPA cannot delegate the Federal requirements at 40 CFR 262, Subparts E and H, 268.5, 268.6, 268.42(b), and 268.44(a) through (g). Therefore, EPA will continue to implement these requirements. Additionally, the State has chosen not to adopt 40 CFR 268.44(h) through (m) so the responsibility for these requirements also remains with EPA.

I. Who Administers Permits After the Authorization Takes Effect?

Montana will issue and administer permits for all the provisions for which it is authorized. EPA will continue to administer any RCRA hazardous waste permits or portions of permits that were issued prior to the effective date of this authorization. EPA 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 and Montana have agreed to joint permitting and enforcement for those HSWA requirements for which Montana is not yet authorized.

J. How Does Today's Action Affect Indian Country (18 U.S.C. 1151) in Montana?

Montana is not authorized to carry out its hazardous waste program in Indian country, as defined in 18 U.S.C. 1151. This includes, but is not limited to:

A. All lands within the exterior boundaries of the following Indian Reservations located within or abutting the State of Montana:

a. Blackfeet Indian Reservation.

b. Crow Indian Reservation.

c. Flathead Reservation.

d. Fort Peck Reservation.

e. Fort Belknap Indian Reservation.

f. Northern Cheyenne Indian Reservation.

g. Rocky Boy's Reservation.

B. Any land held in trust by the U.S. for an Indian tribe, and

C. Any other land, whether on or off a reservation that qualifies as Indian country within the meaning of 18 U.S.C. 1151.

Therefore, this program revision does not extend to Indian country where EPA will continue to implement and administer the RCRA program in these lands.

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

Codification is the process of placing the State's authorized hazardous waste program statutes and regulations into the CFR. EPA does this by referencing the authorized State rules in 40 CFR part 272. EPA reserves the amendment of 40 CFR part 272, subpart BB for this authorization of Montana's program changes until a later date. In this authorization application EPA is not codifying the rules documented in this Federal Register.

L. Statutory and Executive Order Reviews

The Office of Management and Budget has exempted this action from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993). Therefore, this action is not subject to review by OMB. This action authorizes 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 authorizes preexisting 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 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. 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 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.

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 the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the Executive Order. 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.).

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 June 26, 2009.

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: April 8, 2009.

Stephen S. Tuber,

Acting Regional Administrator, Region 8.