[Federal Register Volume 66, Number 100 (Wednesday, May 23, 2001)]
[Rules and Regulations]
[Pages 28397-28399]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-12894]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 272
[FRL-6983-2]
Wisconsin: Clarification of Codification of Approved State
Hazardous Waste Program for Wisconsin
AGENCY: Environmental Protection Agency (EPA).
ACTION: Clarification.
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SUMMARY: Under the Resource Conservation and Recovery Act of 1976, as
amended, the Environmental Protection Agency (EPA) may grant Final
Authorization to States to operate their hazardous waste management
programs in lieu of the Federal program. EPA uses part 272 of title 40
of the Code of Federal Regulations (40 CFR part 272) to codify its
authorization of State programs. Through codification the authorized
elements of approved State programs are placed in the Code of Federal
Regulations (CFR). The codification of State programs is designed to
enhance the public's ability to discern the current status of the
approved State program and to better alert the public to the specific
State regulations that the Federal government can enforce if necessary.
The purpose of today's Federal Register document is to clarify EPA's
codification of Wisconsin's authorized hazardous waste program.
FOR FURTHER INFORMATION CONTACT: Denise Reape, U.S. EPA Region 5, Waste
Pesticides and Toxics Division, Program Management Branch (DM-7J), 77
W. Jackson Blvd., Chicago, IL 60604, Phone (312) 353-7925.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does This Action Apply to Me?
This action is directed to the public in general. This document
clarifies certain requirements of the authorized RCRA program in the
State of Wisconsin and, therefore, may be of particular interest to
persons who generate, treat, store, dispose of, or otherwise handle
hazardous waste in the State of Wisconsin.
B. How Can I Get Additional Information, Including Copies of This
Document and Other Related Documents?
Electronically. You may obtain electronic copies of this document
by going to the listings from the EPA Internet Home Page at http://www.epa.gov/. To access this
[[Page 28398]]
document, on the Home Page select ``Laws and Regulations'' and then
look up the entry for this document under the ``Federal Register--
Environmental Documents.'' You can also go directly to the Federal
Register listings at http://www.epa.gov/fedrgstr/. If you have any
questions regarding the information in this notice or want copies of
any other related documents, consult the person listed under FOR
FURTHER INFORMATION CONTACT.
II. Background
A. What is Authorization?
When a state is authorized to administer the RCRA program, EPA has
made a determination that the state's authorized program is equivalent
to the federal program. Thereafter the state's authorized laws and
regulations apply in the state in lieu of the equivalent federal
program regulations. ( See RCRA section 3006(b) and (c)). Authorized
States are required to maintain a hazardous waste program that is
equivalent to, consistent with, and no less stringent than the Federal
hazardous waste program. As the Federal hazardous waste program
changes, the States must revise their programs and apply for
authorization of the revisions. Revisions to State hazardous waste
programs may be necessary when Federal or State statutory or regulatory
authority is modified or when certain other changes occur.
Authorization revision applications generally consist of a copy of the
State regulations, a revised Attorney General's (AG) statement, a
revised Program Description, a revised Memorandum of Agreement (MOA),
or other documents EPA determines to be necessary (see 40 CFR
271.21(b)(1)). EPA maintains authority to bring enforcement action in
authorized States under RCRA sections 3008, 3013, and 7003.
B. Why does EPA Codify Authorized Programs?
EPA codifies authorized State programs through incorporating the
authorized state law in the Code of Federal Regulations, to better
place regulated entities and members of the public on notice of the
requirements pertaining to the generation and management of hazardous
waste in a particular State. EPA incorporates by reference only the
substantive authorized rules because the federal government uses its
own enforcement authorities when bringing actions for alleged
violations of the authorized state RCRA program. 40 CFR part 272 has
been reserved for codification of approved State RCRA programs.
C. Wisconsin
1. What is the Authorization and Codification History for Wisconsin?
Wisconsin initially received Final Authorization on January 31,
1986 (51 FR 3783, January 30, 1986) to implement its base hazardous
waste management program. Wisconsin received authorization for
revisions to its program on June 6, 1989 (54 FR 22278, May 23, 1989),
January 22, 1990 (54 FR 48243, November 22, 1989), April 24, 1992 (57
FR 15029, April 24, 1992), August 2, 1993 (58 FR 31344, June 2, 1993),
October 4, 1994 (59 FR 39971, August 5, 1994) and October 4, 1999 (64
FR 42602, August 5, 1999). EPA uses 40 CFR 272.2501 for codification of
decisions to authorize Wisconsin's program and for incorporation by
reference of those provisions of its statutes and regulations that EPA
will enforce under sections 3008, 3013 and 7003 of RCRA. EPA codified
Wisconsin's authorized program on April 24, 1989 (54 FR 7422, February
21, 1989), May 29, 1990 (55 FR 11910, March 30, 1990), and November 22,
1993 (58 FR 49199).
2. Which Notices and Requirements are Being Clarified?
In the following authorization and codification documents, EPA
included references to a state variance authority which allows the
Wisconsin Department of Natural Resources (WDNR) to issue variances
from hazardous waste licensing requirements in cases of ``undue or
unreasonable hardship:''
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This document clarifies
Effective date FR cite references to
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April 24, 1989........................ 54 FR 7422, February 21, 1989, at 7424.. Wis. Stat. 144.64(3) and WAC
NR 181.55(10).
May 29, 1990.......................... 55 FR 11910, March 30, 1990, at 11911... WAC NR 181.55(10).
August 2, 1993........................ 58 FR 31344, June 2, 1993, at 31344..... WAC NR 181.55(10).
November 22, 1993..................... 58 FR 49199, November 22, 1993, at 49200 Wis. Stat. 144.64(3) and WAC
NR 680.50.
October 4, 1999....................... 64 FR 42602, August 5, 1999, at 42607... Wis. Stat. 144.64(3) and
291.31.
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There is no analogous Federal variance authority. The purpose of
this document is to clarify the limited circumstances under which the
State may use this authority to vary an authorized RCRA requirement.
The Wisconsin legislature enacted the State hardship variance in
1978 and the WDNR adopted implementing administrative rules in 1981.
Both the statutory and administrative provisions have been amended and
renumbered over time; however, at all times relevant to this
clarification document the hardship variance authority has been
codified in State law at section 144.64(3) or section 291.31 of the
Wisconsin Statutes and section NR 181.55(10) or section NR 680.50 of
the Wisconsin Administrative Code. Consequently, this document
clarifies all references to those specific state statutory and
regulatory provisions in the authorization and codification of
Wisconsin's hazardous waste program.
3. What is the Clarification?
In the Federal Register documents listed above, EPA included
reference to section 144.64(3) or section 291.31 of the Wisconsin
Statutes and section NR 181.55(10) or section NR 680.50 of the
Wisconsin Administrative Code without explaining that the use of these
authorities to waive authorized RCRA rules is generally limited to
granting variances from the surface impoundment double liner
requirements of section 3005(j)(2) through (9) and (13) of RCRA \1\ or
when the State varies authorized State requirements that are more
stringent than current Federal requirements imposing instead the same
standards as the less stringent Federal requirements. For example, EPA
may promulgate less stringent amendments to Federal rules while the
States, because of a temporary lag in authorization, remain authorized
for the pre-existing more stringent rules.
[[Page 28399]]
States may use State waiver authorities to relax authorized State rules
to the extent those rules are more stringent than analogous Federal
rules (See, for example, 63 FR 65874 at 65925 (November 30, 1998)).
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\1\ Unlike the Federal RCRA program, Wisconsin's hazardous waste
requirements do not include a specific waiver for the double liner
requirements for RCRA regulated surface impoundments. Instead, the
Wisconsin Attorney General, in a statement supporting State
authorization, referenced the State hardship waiver as State
authority to grant such waivers. EPA is unaware of any instance
wherein Wisconsin has granted a waiver from the double liner
requirements for surface impoundments.
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In addition, if a State authorized to implement the RCRA program
has a permit waiver authority that is analogous to EPA's authority
under section 121(e) of the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA) or RCRA section 7003, it may
use this authority to waive the requirement to obtain a RCRA permit
with respect to on-site response actions. As explained in EPA guidance,
the two preconditions to allowing the use of this authority are that:
``(1) The State has the authority under its own statutes or regulations
to grant permit waivers; and (2) the State waiver authority is used in
no less stringent a manner than allowed under Federal permit waiver
authority, for example, section 7003 of RCRA or section 121(e) of
CERCLA.'' (See the Memorandum, ``RCRA Permit Requirements for State
Superfund Actions'', from J. Winston Porter to Regional Administrators,
Region I-X (Nov. 16, 1987) (OSWER Dir. No. 9522.00-2).) Nothing in this
clarification document changes or affects this policy in any way.
4. Summary
The references in 40 CFR 272.2501 and appendix A to part 272 to
sections 144.64(3) and 291.31 of the Wisconsin Statutes and sections NR
181.55(10) and 680.50 of the Wisconsin Administrative Code provide
notice that the State, as part of the authorized program, may use this
authority only: (1) to grant variances from the surface impoundment
double liner requirements of RCRA in those cases wherein the facility
meets all of the requirements of RCRA section 3005(j); (2) to grant
variances from more stringent authorized requirements that impose
instead the same standards as the less stringent federal requirement;
and (3) in the manner consistent with sections 7003 of RCRA or 121(e)
of CERCLA, as described in applicable EPA guidance. Use of the State
hardship variance authority with respect to any other authorized RCRA
requirements is not part of the RCRA approved State program. Of course,
States retain authority to waive or vary those State requirements that
are broader in scope than, and therefore not part of, the Federal RCRA
program. Therefore, with certain limited exceptions discussed herein, a
State hardship variance cannot excuse compliance with RCRA program
requirements. Persons who fail to comply with RCRA program requirements
are subject to Federal enforcement under sections 3008, 3013, and 7003
of RCRA.
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).
David A. Ullrich,
Acting Regional Administrator, Region 5.
[FR Doc. 01-12894 Filed 5-22-01; 8:45 am]
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