[Federal Register Volume 65, Number 248 (Tuesday, December 26, 2000)]
[Rules and Regulations]
[Pages 81381-81386]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-32843]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[FRL-6921-9]
Montana: Final Authorization of State Hazardous Waste Management
Program Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: On May 9, 2000, we published an Immediate Final Rule at 65 FR
26750 to authorize changes to Montana's hazardous waste program under
the Resource Conservation and Recovery Act (RCRA). At that time, we
determined that the changes to Montana's hazardous waste program
satisfied all requirements for final authorization and authorized the
changes through an Immediate Final Rule. The Immediate Final Rule was
to be effective on August 7, 2000 unless significant written comments
opposing the authorization were received during the comment period. At
the same time, in the event we received written comments, we also
published a Proposed Rule at 65 FR 26802 to authorize these same
changes to the Montana hazardous waste program.
As a result of comments received on the Immediate Final Rule, we
withdrew the Immediate Final Rule on August 8, 2000 at 65 FR 48392 and
went forward with the Proposed Rule. By this action, we are issuing a
Final Rule authorizing the changes to the Montana hazardous waste
program as listed in the Immediate Final Rule at 65 FR 26750 and
responding below to each of the comments received.
DATES: This authorization will be effective on December 26, 2000.
ADDRESSES: You can view and copy Montana's application at the following
addresses: Air and Waste Management Bureau, Montana Department of
Environmental Quality, Metcalf Building, 1520 East Sixth Avenue,
Helena, MT 59620 , Phone (406) 444-1430; and U.S. EPA Region VIII,
Montana Office, 301 South Park Avenue, Federal Building, Helena, MT
59626, phone (406) 441-1130 ext 239.
FOR FURTHER INFORMATION CONTACT: Kris Shurr, EPA Region VIII, 999 18th
Street, Suite 300, Denver, CO 80202-2466, Phone (303) 312-6139; or Eric
Finke, Waste and Toxics Team Leader, 301 South Park Avenue, U.S. EPA
Montana Office, 301 South Park Avenue, Federal Building, Helena, MT
59626, Phone (406) 441-1130 ext 239.
SUPPLEMENTARY INFORMATION: The reader should also refer to the Proposed
Rule at 65 FR 26802 and the Immediate Final Rule at 65 FR 26750, both
published on May 9, 2000.
We received written comments from four parties during the comment
period, two of which opposed the authorization. One comment expressed
concern that Montana has more programs than the State can afford and it
appeared that EPA wants to put more people out of business. Two
comments expressed concern that this authorization would make Montana's
rules more stringent than the Federal rules. One of these commenters
later withdrew this comment but noted that StATS (EPA's database
containing the status of Federal rule adoptions for each State) showed
that Montana had not yet adopted EPA's less stringent Land Disposal
Restrictions (LDR) rules and that it was odd and confusing that EPA
plans to authorize Montana for some rules that are no longer effective.
Another comment expressed concern that Montana has not been able to
retain sufficient trained
[[Page 81382]]
staff to adequately implement the Corrective Action program; one
comment asked EPA to clarify that Montana cannot enforce HSWA rules
until Montana adopts them; and one comment asked EPA to clarify that
EPA cannot enforce non-HSWA requirements until Montana adopts them.
Finally, three comments addressed EPA's statement in the Immediate
Final Rule that EPA ``retains the authority to take enforcement actions
regardless of whether the State has taken its own actions''.
Specifically, these three comments stated that in light of the Eighth
Circuit decision in Harmon Industries, Inc. v. Browner, 1919 F. 3d 894
(8th Circuit 1999), EPA has no authority under RCRA to bring an
enforcement action against a company that has already settled with an
authorized State agency for the same violations.
A. Statutory Framework
Congress enacted RCRA in 1976 to provide nationwide protection
against environmental and health dangers arising from the generation,
management, and disposal of waste. Congress' overriding concern was
``the effect on the population and the environment of the disposal of
discarded hazardous wastes--those which by virtue of their composition
or longevity are harmful, toxic, or lethal'' and ``present a clear
danger to the health and safety of the population and to the quality of
the environment.'' \1\ Both the statutory text and legislative history
make clear that Congress considered the problems associated with
hazardous waste management to be national in scope. See, e.g., RCRA
1003(b), 42 U.S.C. 6902(b), establishing a ``national policy'' that
hazardous waste should be treated, stored or disposed to minimize its
threat; RCRA 1003(a)(4) and (5), 42 U.S.C. 6902(a)(4) and (5). Subtitle
C of RCRA, sections 3001-3023, establishes a ``cradle-to-grave''
regulatory structure overseeing the safe treatment, storage, and
disposal of hazardous waste.\2\ 42 U.S.C. 6921-6939e. EPA believes it
is clear that the protective management of hazardous waste is the
central policy objective underlying RCRA Subtitle C.
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\1\ H.R. Rep. No. 94-1491 at 3, 11 (1976), reprinted in 1976
U.S.C.C.A.N. 6238, 6241.
\2\ United Technologies v. EPA, 821 F.2d 714, 716 (D.C. Cir.
1987).
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To achieve its goal of nationwide protection, Congress established
a system that relies on both the Federal and State governments.
Congress established some statutory requirements governing hazardous
waste management and directed EPA to establish additional standards
governing the identification of hazardous waste, RCRA 3001, and the
management of such hazardous waste by generators, RCRA 3002;
transporters, RCRA 3003; and treatment, storage and disposal
facilities, RCRA 3004. 42 U.S.C. 6921-6924. Congress also established a
permit requirement for hazardous waste treatment, storage, and disposal
facilities in RCRA 3005 and directed EPA to establish regulations
governing permitting. These statutory and regulatory requirements make
up the Federal hazardous waste management program. See 40 CFR parts
124, 260-270, and 273.
Congress also established a process in RCRA 3006 of Subtitle C
allowing States to request EPA to authorize a qualified State program.
42 U.S.C. 6926. The State hazardous waste ``program'' consists of
statutes and regulations issued by the State prior to authorization
that EPA determines are equivalent to the Federally-issued hazardous
waste program and meet other statutory authorization requirements. Once
authorized, a State may carry out its authorized program ``in lieu of
the Federal program under * * * subtitle [C] in such State and * * *
issue and enforce permits for the storage, treatment, or disposal of
hazardous waste.'' RCRA 3006(b).
When EPA authorizes a provision of a State-issued statute or
regulation, that requirement replaces the equivalent, Federally-issued
requirement, and becomes the Federal requirement governing regulated
parties in the State. Authorization federalizes the State-issued
requirement so that it becomes a requirement of RCRA Subtitle C. A
regulated party complying with authorized State-issued requirements is
also complying with Federal requirements.\3\
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\3\ Not all Federally-issued Subtitle C requirements are
superseded in States with authorized programs. Federal requirements
found in the 1984 Solid and Hazardous Waste Amendments (HSWA) and
attendant regulations apply directly in all States, even those with
authorized programs, until EPA authorizes equivalent State-issued
requirements. 42 U.S.C. 6926(g). See 50 FR 28702 and 28728-28733
(July 15, 1985).
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The authorized State-issued laws also retain their status as
independent State requirements. RCRA 3009 allows States to retain the
authority to regulate hazardous waste within the national framework
established in RCRA Subtitle C and regulations promulgated by EPA. 42
U.S.C. 6929. State requirements, however, may be no less stringent than
those authorized under RCRA Subtitle C.
RCRA 3006(b) also gives EPA the power to authorize a qualified
State ``to issue and enforce permits'' for treatment, storage, and
disposal (TSD) facilities. Congress used RCRA 3006(d) to clarify the
effect of authorization on the permits so that any permit issued by a
State with an authorized program ``shall have the same force and effect
as action taken by the Administrator under this subtitle.'' After EPA
authorizes State permitting, the State rather than EPA issues any new
permits and TSD facilities in such a State generally do not need to get
a second permit from EPA, as they did prior to authorization.\4\
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\4\ If the permit contains Federally-issued requirements issued
pursuant to the Hazardous and Solid Waste Amendments of 1984 (HSWA)
and the State has not been authorized for those requirements, the
facility must obtain a permit from EPA for the HSWA requirements.
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B. Responses to Comments Received
(1) Comment: ``Montana does not need to expand any more programs,
we have more now than the people in this State can afford. Sounds [to]
me like you want to put some more people out of business or drive them
out of this State!''
EPA's response: Our authorization of Montana's application would
not add new programs in Montana. Instead, it would merely authorize
regulations that Montana adopted in 1995 to update a program that it
has operated since 1984. RCRA requires that States continue to adopt
new Federal rules for hazardous waste in order for States to continue
to regulate hazardous waste under the Federal program. Before we
authorize Montana's newly adopted hazardous waste rules, handlers of
hazardous waste in Montana are actually subject to regulation by both
Montana and EPA. After we authorize Montana's rules, as we are doing
today, the primary responsibility for implementing those rules rests
with Montana, and EPA's primary role becomes one of oversight.
(2) Comment: The commenters noted that the rules that EPA proposes
to approve are more stringent than current Federal rules in some cases.
The commenters noted that Montana cannot adopt rules that are more
stringent than Federal rule and objected to EPA's approval until EPA
provides assurance that the program elements that EPA is approving are
not those in the application package, but are in fact Montana's
December 1999 updated rules.
EPA's response: States must formally adopt rules before they can
apply to EPA for approval. As a result, our review and authorization of
State rules lags behind the State's own rulemaking process. RCRA allows
States one year to adopt new Federal rules where no State
[[Page 81383]]
statutory change is necessary and two years where a State statutory
change is necessary. The process of application, review, and
authorization of those newly adopted rules may take an additional year
or more, particularly if a State's rules must subsequently be changed
to establish equivalence to their Federal counterparts.
In 1993 and 1996, EPA revised some of the Federal Land Disposal
Restriction rules (LDRs) to be less stringent than the original LDR
rules. This occurred after Montana had already adopted the original LDR
rules. Montana adopted the less stringent LDR rules in December 1999,
but has not yet applied to EPA for authorization. When Montana applies
for authorization of the less stringent LDR rules and if we find that
Montana's LDR rules are equivalent to EPA's, we will authorize those
rules in a later Federal Register action. Because Montana's current
application contains other rules which were not made less stringent by
EPA, we believe it is more expedient to authorize Montana's application
now rather than wait until Montana submits an application containing
the less stringent rules.
(3) Comment: The comment noted that StATS (EPA's data base
containing the status of Federal rule adoptions for each State) shows
that Montana has not yet adopted EPA's less stringent LDR rules. The
comment also noted that Montana has in reality already adopted the less
stringent LDR rules and found it rather odd and confusing that EPA
plans to authorize Montana for some rules that are no longer effective.
EPA's response: At the time this comment was prepared, it may have
been true that StATS incorrectly displayed the status of Montana's rule
adoptions. However, as of June 30, 2000, StATS correctly displayed the
adoption status of the rules in question.
For the second half of this comment, we refer the reader to comment
number 2 above and add the following information: Whenever EPA modifies
a rule, regardless of whether the change is to a less or a more
stringent version, the lag between State adoption and EPA authorization
may cause EPA to find itself authorizing a State for a rule which has
already been changed. The apparent confusion will be cleared up when
Montana submits an authorization update application which includes the
less stringent LDR rules.
(4) Comment: Montana is unable to retain sufficient, multi-
discipline trained, permanent staff to administer the Corrective Action
program.
EPA's Response: As part of our review of Montana's hazardous waste
program, we conducted Capability Assessments in 1994 and 2000 which
examined precisely this question. These Capability Assessments are
available through a Freedom of Information Act request or they may be
viewed at the EPA Montana Office in Helena, Montana or at the EPA
Region 8 office in Denver, Colorado.
EPA's 1994 Capability Assessment revealed that Montana had
experienced some of the difficulties described in the comment. However,
EPA's 2000 Capability Assessment revealed that Montana's Department of
Environmental Quality (DEQ) and the Montana Legislature implemented
several important changes since the time period described in the
comment. These changes resulted in significant improvements in
retention of qualified staff. The current staff and management within
the DEQ hazardous waste program collectively have many years of
experience in a variety of relevant technical and environmental program
areas. We believe that the current mix of skills, experience, and
retention in DEQ's hazardous waste program is sufficient to implement
the Corrective Action program.
(5) Comment: EPA should clarify that Montana has no authority to
enforce HSWA rules until the State adopts them. (The comment referred
to EPA's statement in the Immediate Final Rule that EPA and Montana
have agreed to joint permitting and enforcement for those HSWA
requirements for which Montana is not yet authorized.)
EPA's response: Under a previous long-standing agreement, EPA and
Montana have agreed that, when necessary, the agencies will issue a
single, jointly-prepared permit document containing the signatures and
authorities of both agencies. This agreement addresses the potential
situation in which Montana would not yet be sufficiently authorized to
issue the entire permit by itself. Under this arrangement, Montana
issues the permit requirements for which it is authorized and EPA
issues those permit requirements for which Montana is not authorized.
The single joint permit would have in it all of the relevant Federal
and State requirements and would substantially reduce the possibility
of conflicting and duplicative requirements that might exist if EPA and
Montana issued their permits separately. Montana and EPA would each
oversee the permittee's implementation of their respective permit
requirements.
Under this agreement, each agency retains its own independent
enforcement authority. EPA may enforce requirements of Federal law,
including requirements of the authorized program and any HSWA
requirements for which Montana has not yet been authorized. Montana may
enforce any requirement of State law.
Although the preamble in the Immediate Final Rule could have been
more clear, EPA did not contemplate that Montana could enforce HSWA
rules before it had adopted them as State rules.
(6) Comment: EPA should clarify that it cannot enforce non-HSWA
requirements until Montana is authorized to administer them. (The
comment referred to EPA's statement in the Immediate Final Rule that it
retains authority to enforce RCRA requirements and suspend or revoke
permits after authorization occurs.)
EPA's response: EPA may enforce Federally-issued HSWA rules in any
State as soon as they are effective. EPA may enforce non-HSWA
requirements in a base-authorized State like Montana after it is
authorized for State-issued requirements equivalent to the Federal non-
HSWA requirements. EPA's preamble statement discussed the enforcement
authority which EPA retains after the State is authorized. Although it
could have been more clear, EPA's statement did not refer to the
enforcement of unauthorized non-HSWA rules.
(7) Comment: The commenters objected to EPA's assertion that EPA
retains authority to take enforcement actions regardless of whether the
State has taken its own actions. They state that under the decision in
``Harmon'' EPA has no authority under RCRA to bring an enforcement
action against a company that has settled with a State agency for the
same violations.
EPA's Response:
Effect of Authorization on Federal and State Enforcement
Authorization does not affect the authority of the Federal or State
governments to take enforcement actions in the State. RCRA authorizes
the Federal government to enforce the Subtitle C hazardous waste
program independent of State enforcement and States continue to have
the authority to enforce pursuant to State law.
EPA's longstanding interpretation of RCRA,\5\, that EPA may take an
[[Page 81384]]
enforcement action regardless of whether a State with an authorized
program has taken action, is based on the language of RCRA and
Congress' intent at the time of enactment and subsequent amendment.
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\5\ See, e.g., In re Martin Elec., Inc., 2 E.A.D. 381, 385, 1987
WL 109670, at *3 (CJO 1987), holding that ``even if a State's
enforcement action is adequate, such State action provides no legal
basis for prohibiting EPA from seeking penalties for the same RCRA
violation. EPA's decision whether to defer to a prior State action
is a matter of enforcement discretion and policy.'' This
interpretation is also is embodied in regulatory text that makes
clear EPA's view that it retains enforcement authority in authorized
States. See U.S. Response to Defendants' Cross-Motion for Summary
Judgment, Power Engineering, which EPA incorporates into this
comment response together with the other U.S. briefs place in the
record of this authorization decision. See also U.S. v. Power
Engineering Co., No. 97-B-1654, slip op. at 20-23 (ID. Colo. Nov.
24, 2000), concluding that regulations reflect EPA's position that
the ``only restrictions on its authority to bring enforcement
actions are those explicitly stated in the RCRA.''
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RCRA 3008(a) grants EPA the power to enforce RCRA Subtitle C
requirements in all States, regardless of authorization. 42 U.S.C.
6928(a). The only restriction placed on EPA's ability to bring an
enforcement action in a State with an authorized program is that EPA
give notification to a State prior to issuing an order or commencing a
civil action. Similarly in RCRA 3008(a)(3) and (c), Congress recognized
that authorization does not supplant Federal enforcement when it gave
EPA the power to revoke a permit whether ``issued by the Administrator
or the State'' after giving notification to the State. Congress
dispensed with even the notification requirement in the enforcement
provisions creating criminal RCRA violations, leaving Federal power to
enforce those laws despite authorization. See, U.S. v. MacDonald &
Watson Waste Oil Co., 933 F.2d 35 (1st Cir. 1991). Similarly, Congress
granted EPA broad enforcement powers to issue orders or initiate civil
actions to require Corrective Action at interim status facilities in
RCRA 3008(h), without imposing any limitations connected to
authorization.\6\
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\6\ Congress also granted EPA broad inspection authority without
limitations related to authorization. In RCRA 3007(a), Congress
granted representatives of both EPA and States with authorized
programs, access to enter and inspect the records of places where
hazardous waste activities occur. RCRA 2002(c) authorizes EPA to
conduct investigations of RCRA's criminal provisions. Similarly,
RCRA 3013 authorizes EPA to order monitoring, analysis, and testing
but imposes no limitations related to authorization. See, Wyckoff
Co. v. EPA, 796 F.2d 1197 (9th Cir. 1986).
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Nothing in RCRA 3006 modifies Federal enforcement authority. The
section does not address Federal authority and, as discussed above, the
``in lieu of'' provision in RCRA 3006(b) operates only to substitute
authorized State-issued hazardous waste requirements for Federally-
issued equivalents as requirements of Subtitle C. RCRA 3006(d) also
does not address Federal enforcement. Although States must have
adequate enforcement authority to become authorized, RCRA 3006(b), the
State enforcement provisions themselves are not part of the State
hazardous waste program that becomes authorized to operate in lieu of
the Federal program. This is clear from the language and structure of
the statute, because the enforcement section of RCRA, as explained
above, explicitly contemplates Federal enforcement in States with
authorized programs. Thus, Congress clearly did not intend that State
enforcement would operate in lieu of Federal enforcement in such
States. Rather, Congress expressly established the standards governing
Federal enforcement in States with authorized programs in the
enforcement section of RCRA. In short, RCRA 3006(b) addresses what gets
enforced, not who may take enforcement actions.
The provision which is titled ``Effect of State permit '' provides
that any action taken by a State under an authorized program has the
``same force and effect'' as an action of EPA's Administrator. This
provision ensures that State-issued permits have the same force and
effect as permits issued by EPA. Absent this provision there could have
been some doubt as to whether a facility operating under a permit from
a State with an authorized program had complied with the requirement in
RCRA 3005(a) that each TSD facility have a RCRA permit.
Harmon Industries
In Harmon, the Eighth Circuit held that RCRA precluded EPA from
pursing a civil action for violation of RCRA against a company when
Missouri, a State with an authorized program, had signed an agreement
with the same company that resolved claims based on violations of
Missouri regulations, and a State court had embodied the settlement in
a consent decree. In dicta, the court stated that EPA's enforcement
rights are ``triggered only after State authorization is rescinded or
the State fails to initiate an enforcement action.'' Harmon, 191 F.3d
at 899.
It is the Federal government's position that the court did not
correctly interpret the law in Harmon.\7\ The decision conflicts with
the better interpretation of RCRA, discussed previously, which
authorizes EPA to maintain an enforcement action despite action by a
State with an authorized hazardous waste program. The court disregarded
the plain meaning of RCRA 3008(a) which conditions EPA's authority to
take enforcement actions only upon notification to States with an
authorized program, with no other limitations.\8\ The Eighth Circuit
also misinterprets RCRA 3006 based upon its unsupported conclusion that
the ``administration and enforcement of the hazardous waste program are
inexorably intertwined.'' See, U.S. v. Power Engineering Co., No. 97-B-
1654, slip op at 15-17 (concluding that RCRA does not intertwine
administration and enforcement). RCRA 3006(b) simply provides that once
authorization takes place, selected State-issued requirements replace
selected Federally-issued requirements as the controlling body of
Federal hazardous waste requirements in that State. It does not affect
Federal enforcement authority.
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\7\ The Administrator of EPA, through the Department of Justice,
as well as the Solicitor General, have stated that the Eighth
Circuit did not correctly interpret RCRA. See Petition for Rehearing
En Banc filed in Harmon on November 15, 1999, and the U.S. Brief in
Opposition to Petition for Writ of Certiorari in Smithfield Foods,
Inc. v. U.S. filed July 2000.
\8\ Congress has already considered, and rejected an explicit
prohibition against EPA enforcement unless the State failed to bring
an action Legislative History of the Solid Waste Disposal Act, 102d
Cong., 1st Sess. At 370 (Comm. Print 1991). In addition, Congress
demonstrated its intent not to prevent EPA enforcement when it
amended RCRA in 1980 to eliminate the requirement that EPA give
States with authorized programs thirty days notification prior to
initiating action. Id. at 896.
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Similarly, Harmon fails to recognize, as discussed previously, that
RCRA 3006(d) addresses State permits, clarifying that any permit issued
by a State with an authorized program must be given the ``same force
and effect'' of a permit issued by EPA. As the Colorado district court
noted in Power Engineering, slip op. at 19, EPA's interpretation ``is
the most reasonable because it both gives effect to every word of the
statute, and does not necessitate `harmonizing' Section 6928 by adding
restrictions on the EPA's enforcement power not found in the plain
language of that section.''
EPA also believes the Harmon court's conclusion that, under the
principles of res judicata, EPA is bound by a State court suit is
contrary to the Supreme Court's decision in Montana v. U.S., 440 U.S.
147 (1979). EPA authorization of a State hazardous waste program is not
sufficient to bring EPA into privity with the State or otherwise
establish an agency relationship. Power Engineering, slip op at 29
(Harmon rests on ``unsupported expansion of the doctrine of res
judicata and provides no basis for precluding Federal enforcement based
on ``attenuated connection'' of authorization).
Finally, the Harmon decision is fundamentally flawed because it
fails to recognize the Federal/State relationship that Congress
established in RCRA. It has long been a Federal goal and EPA policy to
encourage and support State
[[Page 81385]]
administration of the RCRA hazardous waste management program. At the
same time, RCRA directs EPA to ensure that hazardous wastes are managed
nationally in a responsible manner. Recognizing both the States'
interest in program administration and the national interest in
consistent and effective implementation of the RCRA program, RCRA
provides for independent State and Federal authority in States with
authorized programs. EPA must maintain the ability to enforce RCRA in a
manner that ensures equal levels of protection from hazardous waste
contamination for the entire nation. Although EPA rarely takes an
enforcement action when a State has taken an action with respect to the
same violator,\9\ there are numerous circumstances where national
interests must be protected. For example, EPA must be able to act where
a particular violator operates facilities in several States, all with
varying degrees of noncompliance. To rely on State-by-State actions to
address such patterns of illegal activity would likely not result in a
comprehensive remedy addressing corporate-wide mismanagement and
penalties commensurate with the scope of illegal behavior. In addition,
EPA may know of a pattern of non-compliance by different companies
nationwide that threatens to erode part of the RCRA program and may
therefore place a high priority on an enforcement action against a type
of violation that is lower on the State's list of priorities. EPA's
authority also may be required to address situations where a facility's
illegal behavior in one State results in environmental contamination in
a neighboring State. Similarly EPA must protect national interests in
maintaining a level playing field to ensure that law abiding facilities
are not at a competitive disadvantage to facilities that choose to
violate the law. EPA enforcement helps ensure that disparate
enforcement priorities between States do not disadvantage those
companies that operate in States with rigorous environmental
enforcement. See Power Engineering, slip op at 27-28.
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\9\ During fiscal years 1992 through 1994, EPA took action after
the conclusion of a State action in 30 cases under RCRA, the Clear
Air Act, and the Clean Water Act combined. During fiscal years 1994
and 1995, EPA took such action in a total of 18 cases. During fiscal
year 1996, EPA filed its own actions following State action in four
cases. Statement of Steven A. Herman, Assistant Administrator, OECA,
USEPA, Before the Environment and Public Works Committee, U.S.
Senate, June 10, 1997, available in LEXIS, Legis, Library,
Congressional Hearings file, and in Westlaw at 1997 WL 309230 *13.
By comparison, States took 8,643 enforcement actions in fiscal year
1992; 11,881 in fiscal year 1993; 11,250 in fiscal year 1994; 9,785
in fiscal year 1995; 9,306 in fiscal year 1996; and 10,515 in fiscal
year 1997. Enforcement and Compliance Assurance Accomplishments
Report, FY 1997, EPA-300-R-98-003, July 1998, page 2-1 and Table A-
6.
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Rather than foster cooperative efforts between EPA and the States,
Harmon offers an unreasonable statutory interpretation which creates an
incentive for competition between Federal and State governments. Some
courts would erroneously use the Harmon rationale, to suggest that
either sovereign is prohibited from bringing an action as a result of
the action of the other sovereign. See e.g., Treacy v. Smithfield Foods
Inc., Chancery No. 97-80, Final Order (Cir. Ct. Isle of Wight Co., Jan
5, 2000).
The suggestion in Harmon that, where the State has acted, EPA must
withdraw authorization to take a civil enforcement action is a drastic,
impractical, and lengthy remedy. At least one court already has agreed
that program withdrawal is an inappropriate remedy, stating that
``wholesale withdrawal of State enforcement authority is a drastic
measure warranted only by drastic circumstances'' such as where there
is ``clear evidence that the entire State program has fallen into
disrepair,'' CLEAN v. Premium Standard Farms, Inc., slip op. at 52,
2000 U.S. Dist. LEXIS 1990 (W.D. Mo. Feb 23, 2000) (citing Clean Water
Act legislative history from 1972). Use of such a measure, when faced
with a case-specific need for action, is unworkable within the State-
Federal partnership scheme.
Conclusion
Because the Harmon court does not have the authority to impose its
interpretation outside the Eighth Circuit and because it is proper for
EPA to continue to exercise its enforcement authority consistent with
its interpretation of RCRA, EPA is not adopting the court's
interpretation of RCRA in the State of Montana.\10\ EPA therefore
stands by its statement that after authorization of Montana's hazardous
waste program EPA may continue to ``take enforcement actions regardless
of whether the State has taken its own actions.''
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\10\ Harmon, however, is final and is binding on EPA in that
particular case.
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C. Administrative Requirements
The Office of Management and Budget (OMB) 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 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 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 13084 (63 FR
27655, May 10, 1998). 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.
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
[[Page 81386]]
Unanticipated Taking'' 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.).
List of Subjects in 40 CFR Part 271
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous waste, Hazardous waste
transportation, Indian country, Intergovernmental relations,
Incorporation by reference, Penalties, Reporting and record keeping
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: December 14, 2000.
Patricia D. Hull,
Acting Regional Administrator, Region 8.
[FR Doc. 00-32843 Filed 12-22-00; 8:45 am]
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