[Federal Register Volume 70, Number 189 (Friday, September 30, 2005)]
[Rules and Regulations]
[Pages 57152-57155]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-19619]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[FRL-7977-4]


Montana: Final Authorization of State Hazardous Waste Management 
Program Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

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SUMMARY: Montana has applied to EPA for Final authorization of changes 
to its hazardous waste program under the Resource Conservation and 
Recovery Act (RCRA). EPA has determined that these changes satisfy all 
requirements for Final authorization and is authorizing the State's 
changes through this immediate Final action. EPA is publishing this 
rule to authorize the changes without a prior proposed rule because we 
believe this action is not controversial. Unless we get written 
comments opposing this authorization during the comment period, the 
decision to authorize Montana's changes to their hazardous waste 
program will take effect as provided below. If we receive comments that 
oppose this action, we will publish a document in the Federal Register 
withdrawing this rule before it takes effect. A separate document in 
the proposed rules section of this Federal Register will serve as the 
proposal to authorize the State's changes.

[[Page 57153]]


DATES: We must receive your comments by October 31, 2005. Unless EPA 
receives comments that oppose this action, this Final authorization 
approval will become effective without further notice on November 29, 
2005.

ADDRESSES: Submit your comments by one of the following methods: 1. 
Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-
line instructions for submitting comments. 2. E-mail: 
[email protected]. 3. Mail: Kris Shurr, 8P-HW, U.S. EPA, Region 8, 999 
18th St, Ste 300, Denver, Colorado 80202-2466, phone number: (303) 312-
6139. 4. Hand Delivery or Courier: to Kris Shurr, 8P-HW, U.S. EPA, 
Region 8, 999 18th St, Ste 300, Denver, Colorado 80202-2466, phone 
number: (303) 312-6139.
    Instructions: Do not submit information that you consider to be 
Confidential Business Information (CBI) or information that should be 
otherwise protected from disclosure through regulations.gov, or e-mail. 
The Federal regulations.gov Web site 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 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.
    You can view and copy Montana's application at the following 
addresses: MDEQ from 9 a.m. to 4 p.m., 1520 E 6th Ave, Helena, MT 
59620, contact: Bob Martin, phone number (406) 444-4194 and EPA Region 
8, from 8 a.m. to 3 p.m., 999 18th Street, Suite 300, Denver, CO 80202-
2466, contact: Kris Shurr, phone number: (303) 312-6139, e-mail: 
[email protected].

FOR FURTHER INFORMATION CONTACT: Kris Shurr, EPA Region 8, 999 18th 
Street, Suite 300, Denver, Colorado 80202-2466, phone number: (303) 
312-6139, e-mail: [email protected].

SUPPLEMENTARY INFORMATION:

A. Why are Revisions to State Programs Necessary?

    States that have received final authorization from EPA under RCRA 
section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste 
program 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 their changes. Changes to State 
programs may be necessary when 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 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 carrying out those portions 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 facilities in Montana subject 
to RCRA will now have to comply with the authorized State requirements 
instead of the equivalent Federal requirements. Montana has primary 
enforcement responsibility under its state hazardous waste program for 
violations of the program, but EPA retains its authority under RCRA 
sections 3007, 3008, 3013, and 7003, which include, among others, the 
authority to conduct inspections and require monitoring, tests, 
analyses, or reports; and enforce RCRA requirements and suspend or 
revoke permits.
    This action does not impose additional requirements on the 
regulated community because the regulations for which Montana is being 
authorized are already effective and are not changed by today's action.

D. Why Wasn't There A Proposed Rule Before Today's Rule?

    EPA did not publish a proposal before today's rule because this 
action is a routine program change, and we do not expect comments 
opposing this approval. We are providing an opportunity for public 
comment at this time. In addition, in the proposed rules section of 
today's Federal Register, there is a separate document that proposes to 
authorize the State program changes. If we receive comments opposing 
this authorization, that document will serve as a proposal to authorize 
the changes.

E. What Happens If EPA Receives Comments Opposing This Action?

    If EPA receives comments opposing this authorization, we will 
withdraw this rule by publishing a notice in the Federal Register 
before the rule becomes effective. We then will address all public 
comments in a later Federal Register. You may not have another 
opportunity to comment. If you want to comment on this action, you must 
do so at this time.
    If we receive comments opposing authorization of only a particular 
change to the State hazardous waste program, we will withdraw that part 
of the rule. However, the authorization of program changes that are not 
opposed by any comments 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. What Has Montana Previously Been Authorized For?

    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), and December 
26, 2000, effective December 26, 2000 (65 FR 81381).

G. What Changes Are We Authorizing With Today's Action?

    On July 28, 2005, Montana submitted a final revision application, 
seeking

[[Page 57154]]

authorization of program changes in accordance with 40 CFR 271.21.
    We now make an immediate final decision, subject to receipt of 
written comments opposing this action, that Montana's hazardous waste 
program revision satisfies all of the requirements necessary 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 March 9, 2005, which incorporated 40 CFR 
parts 124 and 260 through 268, 270, 273, and 279, effective July 1, 
2004. Montana has revised it's entire program using a method that 
incorporates the Federal Program by reference. This method clearly 
indicates where the State's requirements are more stringent or broader-
in-scope than the Federal requirements. EPA is also approving changes 
to the State's Availability of Information requirements (AI), as well 
authorizing the State for the Exceptions to Blending and Burning of 
Hazardous Waste requirements [RCRA section 3004(q)(2)(A), (r)(2) and 
(r)(3), as codified in 40 CFR 261.4(a)(12)(i)&(ii)] (Non-Checklist Item 
BB).
    In addition to the changes authorized above, EPA is also approving 
changes to the State's procedural and enforcement provisions. EPA 
reviewed these provisions in order to determine the adequacy of 
Montana's procedural and enforcement authorities to operate the 
hazardous waste program. In compliance with the requirements of 40 CFR 
271.16(a)(3)(ii), Montana has revised its provisions at Montana Code 
Annotated Section 75-10-418 to obtain criminal penalties for used oil 
violations (Non-Checklist Item CP), as well as hazardous waste 
violations. State procedural and enforcement provisions are not 
authorized by EPA and do not supplant the Federal procedural and 
enforcement provisions. EPA relies on Federal procedural and 
enforcement authorities rather than the State analogs to these 
provisions. Montana's procedures to implement the State's hazardous 
waste management program requirements continue to operate independently 
under State law. The following State procedural and enforcement 
authorities are included as part of this action for informational 
purposes and are not part of the State's program that operate in lieu 
of EPA: Montana Code Annotated 2005, sections 2-3-101 et seq., 2-3-221, 
2-4-103, 2-4-315, 2-6-101 et seq., 2-15-3501 et seq., 27-30-204, 30-14-
402 et seq., 75-10-107, and 75-10-401 et seq.; and Montana Rules of 
Civil Procedure, Rule 24(a).

H. Where Are the Revised State Rules Different From the Federal Rules?

    The State has not adopted the following Federal rules: 40 CFR 
260.20, 260.21, 260.22, and 260.23. (See ARM 17.53.401.) While this 
does not make the State more stringent, the regulated community must 
apply to the Regional office and comply with the Federal requirements 
for petitions, including delisting petitions, addressed by these rules. 
The State does not adopt any provision associated with the regulation 
of 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 the provisions do not apply to the 
State.
    The State has requirements that are more stringent than the Federal 
rules at (references are to the 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 wastes, 
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 
standard; and 17.53.1002(6) and 17.53.1002(8) do not allow the 40 CFR 
266.109 low risk exemption and the Sec.  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)).
    We also consider the State requirements to be broader-in-scope than 
the Federal program at: 17.53.111(2), 17.53.112, 17.53.113 and 
17.53.1202(5)(l) 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 part 262, 
subparts E and H, Sec. Sec.  268.5, 268.6, 268.42(b), and 268.44(a) 
through (g). EPA will continue to implement these requirements. 
Additionally, the State has chosen not to adopt 40 CFR 268.44(h) 
through (m); the responsibility for these requirements also remains 
with EPA.

I. Who Handles Permits After This 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 we issued prior to 
the effective date of this authorization. EPA will transfer any pending 
permit applications, completed permits, or pertinent file information 
to Montana within 30 days of this approval. We 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.

[[Page 57155]]

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. Lands within the exterior boundaries of the following Indian 
Reservations located within or abutting the State of Montana:
    a. Blackfeet Indian Reservation.
    b. Crow Tribe of Montana Indian Reservation.
    c. Flathead Indian Reservation.
    d. Fort Belknap Indian Reservation.
    e. Fort Peck Indian Reservation.
    f. Northern Cheyenne Indian Reservation.
    g. Rocky Boy's Indian 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 Code of 
Federal Regulations. We do this by referencing the authorized State 
rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272, 
subpart BB for this authorization of Montana's program until a later 
date.

L. Administrative Requirements

    The Office of Management and Budget has exempted this action from 
the requirements of Executive Order 12866 (58 FR 51735, October 4, 
1993), and therefore this action is not subject to review by OMB. This 
action 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 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 section 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 November 29, 2005.

List of Subjects in 40 CFR Part 271

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous waste, Hazardous waste 
transportation, Incorporation-by-reference, Indians-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: September 22, 2005.
Robert E. Roberts,
Regional Administrator, Region 8.
[FR Doc. 05-19619 Filed 9-29-05; 8:45 am]
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