[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

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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

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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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