[Federal Register Volume 74, Number 79 (Monday, April 27, 2009)]
[Rules and Regulations]
[Pages 18997-19001]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-9544]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[EPA-R08-RCRA-2009-0212; FRL-8895-7]
Montana: Final Authorization of State Hazardous Waste Management
Program Revision
AGENCY: Environmental Protection Agency (EPA).
ACTION: Immediate final rule.
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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: [email protected].
Fax: (303) 312-6341.
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 (303) 312-6231, 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 (406) 444-4194. The public is
advised to call in advance to verify business hours.
FOR FURTHER INFORMATION CONTACT: Christina Cosentini, 303-312-6231,
[email protected] or Robert Martin, 406-444-4194,
[email protected].
SUPPLEMENTARY INFORMATION:
A. Why Are Revisions to State Programs Necessary?
States that have received final authorization from EPA under RCRA
[[Page 18998]]
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.
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Description of federal Federal Register
requirement (include date and page (and/ Analogous state
checklist , if or RCRA statutory authority
relevant) authority)
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1. Recycled Used Oil 68 FR 44659-44665 Montana Code
Management Standards; July 30, 2003. Annotated (MCA)
Clarification. (Checklist effective 2007,
203). 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.
[[Page 18999]]
2. Performance Track. 69 FR 21737-21754 Montana Code
(Checklist 204). April 22, 2004. 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 69 FR 22601-22661 Montana Code
of Automobiles and Light- April 26, 2004. Annotated (MCA)
Duty Trucks. (Checklist effective 2007,
205). 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 70 FR 9138-9180 Montana Code
and Pigments. (Checklist February 24, 2005. Annotated (MCA)
206). 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 70 FR 10776-10825 Montana Code
Manifest Rule. (Checklist March 4, 2005. Annotated (MCA)
207). 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 70 FR 34538-34592 Montana Code
and SW-846 Final Update June 14, 2005. Annotated (MCA)
IIIB. (Checklist 208). 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: 70 FR 45508-45522 Montana Code
Specific Provisions for August 5, 2005. Annotated (MCA)
Mercury Containing effective 2007,
Equipment. (Checklist 209). 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 70 FR 53420-53478 Montana Code
RCRA Hazardous Waste September 8, 2005. Annotated (MCA)
Management Facilities. effective 2007,
(Checklist 210). 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 70 FR 57769-57785 Montana Code
Treatment Exemptions for October 4, 2005. Annotated (MCA)
Hazardous Waste Mixtures effective 2007,
(``Headworks exemptions''). Title 75-10-404 and
Checklist 211). 405; Administrative
of Montana (ARM),
Title 17, Chapter
53, 17.53.501, as
amended effective
December 22, 2006.
10. NESHAP: Final Standards 70 FR 59402-59579 Montana Code
for Hazardous Waste October 12, 2005. Annotated (MCA)
Combustors (Phase I Final effective 2007,
Replacement Standards and Title 75-10-404 and
Phase II). (Checklist 212). 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 71 FR 16862-16915 Montana Code
Initiative. (Checklist 213). April 4, 2006. 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.
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[[Page 19000]]
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
[[Page 19001]]
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.
[FR Doc. E9-9544 Filed 4-24-09; 8:45 am]
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