06-2181. Montana: Incorporation By Reference of Approved State Hazardous Waste Management Program

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

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 [phone] 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: [phone], e-mail address: [e-mail].

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: [phone], fax number: [phone], e-mail address: [e-mail].

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 § 272.1350, and revising § 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 implementation of the hazardous waste management program. In addition, § 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 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.

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 BB—[Amended]

§ 272.1350

[Removed and reserved]

2. Section 272.1350 is removed and reserved.

3. Section 272.1351 is revised to read as follows:

§ 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: [phone]). 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 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.

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

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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: [phone]).

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