[Federal Register Volume 71, Number 45 (Wednesday, March 8, 2006)]
[Rules and Regulations]
[Pages 11536-11539]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-2181]


-----------------------------------------------------------------------

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 272

[EPA-R08-RCRA-2006-0048; FRL-8035-5]


Montana: Incorporation By Reference of Approved State Hazardous 
Waste Management Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Resource Conservation and Recovery Act, as amended (RCRA), 
allows EPA to authorize State hazardous waste management programs if 
EPA finds that such programs are equivalent and consistent with the 
Federal program and provide adequate enforcement of compliance. Title 
40 of the Code of Federal Regulations (CFR) part 272 is used by EPA to 
codify its decision to authorize individual State programs and 
incorporates by reference those provisions of the State statutes and 
regulations that are subject to EPA's inspection and enforcement 
authorities as authorized provisions of the State's program. This final 
rule revises the codification of the Montana authorized program. In 
addition, today's document corrects errors made in the September 30, 
2005 Federal Register authorization document for Montana.

DATES: This final rule is effective March 8, 2006. The incorporation by 
reference of authorized provisions in the Montana regulations contained 
in this rule is approved by the Director of the Federal Register as of 
March 8, 2006, in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-R08-RCRA-2006-0048. All documents in the docket are listed on 
the http://www.regulations.gov web site. Although listed in the index, 
some information is not publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically through 
http://www.regulations.gov or in hard copy at 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 address: [email protected].

FOR FURTHER INFORMATION CONTACT: Contact Kris Shurr, 8P-HW, U.S. EPA, 
Region 8, 999 18th St, Ste 300, Denver, Colorado 80202-2466, phone 
number: (303) 312-6139, fax number: (303) 312-6341, e-mail address: 
[email protected].

SUPPLEMENTARY INFORMATION: 

I. Correction

    There was an error and an omission published in the September 30, 
2005 (70 FR 57152) authorization Federal Register document for Montana. 
The following corrections are made to Section G, page 57154, first 
column:
    In the second paragraph, the effective date of the Administrative 
Rules of Montana (ARM), Title 17, Chapter 53, was incorrectly cited as 
March 9, 2005. The correct effective date is April 1, 2005.
    In the third paragraph, Section 2-3-301 from the Montana Code 
Annotated 2005, was omitted from the list of approved procedural and 
enforcement provisions. The listing is shown below, the correction is 
bolded and italicized.
    Montana Code Annotated 2005, sections 2-3-101 et seq., 2-3-221, 2-
3-301, 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).

II. Incorporation by Reference

A. What is Codification?

    Codification is the process of including the statutes and 
regulations that comprise the State's authorized hazardous waste 
management program into the CFR. Section 3006(b) of RCRA, as amended, 
allows the Environmental Protection Agency (EPA) to authorize State 
hazardous waste management programs. The State regulations authorized 
by EPA supplant the federal regulations concerning the same matter with 
the result that after authorization EPA enforces the authorized 
regulations. Infrequently, State statutory language which acts to 
regulate a matter is also authorized by EPA with the consequence that 
EPA enforces the authorized statutory provision. EPA does not authorize 
State enforcement authorities and does not authorize State procedural 
requirements. EPA codifies the authorized State program in 40 CFR part 
272 and incorporates by reference State statutes and regulations that 
make up the approved program which is Federally enforceable in 
accordance with Sections 3007, 3008, 3013, and 7003 of RCRA, 42 U.S.C. 
6927, 6928, 6934 and 6973, and any other applicable statutory and 
regulatory provisions.

B. What Is the History of the Authorization and Codification of 
Montana's Hazardous Waste Management Program?

    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 January 19, 1994, effective March 21, 1994 (59 FR 02752), 
October 25, 1996, effective December 24, 1996 (61 FR 55223), December 
26, 2000, effective December 26, 2000 (65 FR 81381), and September 30, 
2005, effective November 29, 2005 (70 FR 57152). EPA first codified 
Montana's authorized hazardous waste program effective January 31, 1986 
(51 FR 3954). In this action, EPA revises Subpart BB of 40 CFR part 
272, to include the authorization revision actions effective through 
November 29, 2005 (70 FR 57152).

C. What Decisions Have We Made in This Action?

    Today's action codifies EPA's authorization of revisions to 
Montana's hazardous waste management program. This codification 
reflects the State program in effect at the time EPA authorized 
revisions to the Montana hazardous waste management program in a final 
rule dated September 30, 2005 (70 FR 57152). Notice and an opportunity 
for comment regarding the revisions to the authorized State program 
were provided to the public at the time those revisions were proposed. 
This action does not reopen any decision EPA previously made concerning 
the authorization of the State's hazardous waste management program.
    EPA is amending 40 CFR part 272, Subpart BB by removing and 
reserving Sec.  272.1350, and revising Sec.  272.1351 to incorporate by 
reference Montana's authorized hazardous waste regulations, as amended 
through April 1, 2005. Section 272.1351 also references the 
demonstration of adequate enforcement authority, including procedural 
and enforcement provisions, which provide the legal basis for the 
State's

[[Page 11537]]

implementation of the hazardous waste management program. In addition, 
Sec.  272.1351 references the Memorandum of Agreement, the Enforcement 
Agreement, the Attorney General's Statements and the Program 
Description, which are evaluated as part of the approval process of the 
hazardous waste management program in accordance with Subtitle C of 
RCRA.

D. What is the Effect of Montana's Codification on Enforcement?

    EPA retains the authority under statutory provisions, including but 
not limited to, RCRA sections 3007, 3008, 3013 and 7003, and other 
applicable statutory and regulatory provisions to undertake inspections 
and enforcement actions and to issue orders in all authorized States. 
With respect to enforcement actions, EPA will rely on Federal 
sanctions, Federal inspection authorities, and Federal procedures 
rather than the State analogs to these provisions. Therefore, the EPA 
is not incorporating by reference Montana's inspection and enforcement 
authorities nor are those authorities part of Montana's approved State 
program which operates in lieu of the Federal program. 40 CFR 
272.1351(c)(2) lists these authorities for informational purposes, and 
also because EPA considered them in determining the adequacy of 
Montana's procedural and enforcement authorities. Montana's authority 
to inspect and enforce the State's hazardous waste management program 
requirements continues to operate independently under State law.

E. What State Provisions Are Not Part of the Codification?

    The public is reminded that some provisions of Montana's hazardous 
waste management program are not part of the federally authorized State 
program. These non-authorized provisions include:
    (1) Provisions that are not part of the RCRA subtitle C program 
because they are ``broader in scope'' than RCRA subtitle C (see 40 CFR 
271.1(i));
    (2) State procedural and enforcement authorities which are 
necessary to establish the ability of the State's program to enforce 
compliance but which do not supplant the Federal statutory enforcement 
and procedural authorities.
    State provisions that are ``broader in scope'' than the Federal 
program are not incorporated by reference in 40 CFR part 272. For 
reference and clarity, 40 CFR 272.1351(c)(3) lists the Montana 
statutory and regulatory provisions which are ``broader in scope'' than 
the Federal program and which are not part of the authorized program 
being incorporated by reference. While ``broader in scope'' provisions 
are not part of the authorized program and cannot be enforced by EPA, 
the State may enforce such provisions under State law.

F. What Will be the Effect of the Codification on Federal HSWA 
Requirements?

    With respect to any requirement(s) pursuant to HSWA for which the 
State has not yet been authorized, and which EPA has identified as 
taking effect immediately in States with authorized hazardous waste 
management programs, EPA will enforce those Federal HSWA standards 
until the State is authorized for those provisions.
    The codification does not affect Federal HSWA requirements for 
which the State is not authorized. EPA has authority to implement HSWA 
requirements in all States, including States with authorized hazardous 
waste management programs, until the States become authorized for such 
requirements or prohibitions, unless EPA has identified the HSWA 
requirement(s) as an optional or as a less stringent requirement of the 
Federal program. A HSWA requirement or prohibition, unless identified 
by EPA as optional or as less stringent, supersedes any less stringent 
or inconsistent State provision which may have been previously 
authorized by EPA (50 FR 28702, July 15, 1985).
    Some existing State requirements may be similar to the HSWA 
requirements implemented by EPA. However, until EPA authorizes those 
State requirements, EPA enforces the HSWA requirements and not the 
State analogs.

III. 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 codifies 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 
codifies 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 codifies 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 action 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.
    The requirements being codified are the result of Montana's 
voluntary participation in EPA's program authorization process under 
RCRA Subtitle C. 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 action, EPA has taken 
the necessary steps to eliminate drafting errors and ambiguity, 
minimize potential litigation, and provide a clear legal standard for 
affected conduct. This action 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

[[Page 11538]]

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 is 
effective March 8, 2006.

List of Subjects in 40 CFR Part 272

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous waste, Hazardous waste 
transportation, Incorporation by Reference, Indian lands, 
Intergovernmental relations, Penalties, Reporting and recordkeeping 
requirements.

    Dated: February 7, 2006.
Kerrigan G. Clough,
Acting Regional Administrator, Region 8.

0
For the reasons set forth in the preamble, 40 CFR part 272 is amended 
as follows:

PART 272--APPROVED STATE HAZARDOUS WASTE MANAGEMENT PROGRAMS

0
1. The authority citation for part 272 continues to read as follows:

    Authority: Secs. 2002(a), 3006, and 7004(b) of the Solid Waste 
Disposal Act, as amended by the Resource Conservation and Recovery 
Act, as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).

Subpart BB--[Amended]


Sec.  272.1350  [Removed and reserved]

0
2. Section 272.1350 is removed and reserved.

0
3. Section 272.1351 is revised to read as follows:


Sec.  272.1351  Montana State-Administered Program: Final 
Authorization.

    (a) Pursuant to section 3006(b) of RCRA, 42 U.S.C. 6926(b), Montana 
has final authorization for the following elements as submitted to EPA 
in Montana's base program application for final authorization which was 
approved by EPA effective on July 25, 1984. Subsequent program revision 
applications were approved effective on, March 21, 1994, December 24, 
1996, December 26, 2000 and November 29, 2005.
    (b) The State of Montana has primary responsibility for enforcing 
its hazardous waste management program. However, EPA retains the 
authority to exercise its inspection and enforcement authorities in 
accordance with sections 3007, 3008, 3013, 7003 of RCRA, 42 U.S.C. 
6927, 6928, 6934, 6973, and any other applicable statutory and 
regulatory provisions, regardless of whether the State has taken its 
own actions, as well as in accordance with other statutory and 
regulatory provisions.
    (c) State Statutes and Regulations. (1) The Montana regulations 
cited in paragraph (c)(1)(i) of this section are incorporated by 
reference as part of the hazardous waste management program under 
subtitle C of RCRA, 42 U.S.C. 6921 et seq. This incorporation by 
reference is approved by the Director of the Federal Register in 
accordance with 5 U.S.C. 552(a) and 1 CFR part 51. Copies of the 
Montana regulations that are incorporated by reference in this 
paragraph are available from the Montana Secretary of State, 
Administrative Rules Bureau, P.O. Box 202801, Helena, MT 59620-2801 
(Phone: 406-444-2055). You may inspect a copy at EPA Region 8, from 7 
a.m. to 4 p.m., 999 18th Street, Suite 300, Denver, Colorado 80202-
2466, or at the National Archives and Records Administration (NARA). 
For information on the availability of this material at NARA, call 202-
741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html html.
    (i) The Binder entitled ``EPA Approved Montana Regulatory 
Requirements Applicable to the Hazardous Waste Management Program'', 
dated November 2005.
    (ii) [Reserved]
    (2) EPA considered the following statutes and regulations in 
evaluating the State program but is not incorporating them herein for 
enforcement purposes:
    (i) Montana Code Annotated (MCA) 2005, Title 2, ``Government 
Structure and Administration'': Chapter 3, ``Public Participation in 
Governmental Operations'', sections 2-3-102 introductory paragraph 
through 2-3-102(2), 2-3-103(1), 2-3-104, 2-3-105, 2-3-111, 2-3-112, 2-
3-221, 2-3-301; Chapter 4, ``Administrative Procedure Act'', sections 
2-4-103, 2-4-315; Chapter 6, ``Public Records'', sections 2-6-101 et 
seq.; Chapter 15, ``Executive Branch Officers and Agencies'', sections 
2-15-3501 and 2-15-3502.
    (ii) Montana Code Annotated (MCA) 2005, Title 25, ``Civil 
Procedure'': Chapter 20, ``Rules of Civil Procedure'', Rule 24(a).
    (iii) Montana Code Annotated (MCA) 2005, Title 27, ``Civil 
Liability, Remedies, and Limitations'': Chapter 30, ``Nuisances'', 
section 27-30-204.
    (iv) Montana Code Annotated (MCA) 2005, Title 30, ``Trade and 
Commerce'': Chapter 14, ``Unfair Trade Practices and Consumer 
Protection'', sections 30-14-402 et seq.
    (v) Montana Code Annotated (MCA) 2005, Title 75, ``Environmental 
Protection'': Chapter 10, ``Waste and Litter Control'', sections 75-10-
107, 75-10-402(3), 75-10-403, 75-10-404(1) introductory paragraph and 
(1)(a), 75-10-404(1)(e), 75-10-404(2), 75-10-405 (except 75-10-
405(1)(i), (1)(j) and (2)(a)), 75-10-406, 75-10-408, 75-10-409, 75-10-
410, 75-10-411, 75-10-413, 75-10-414, 75-10-415, 75-10-416, 75-10-417, 
75-10-418, 75-10-419, 75-10-420, 75-10-421, 75-10-422, 75-10-424, 75-
10-425, 75-10-426, 75-10-427, 75-10-441 and 75-10-442; Chapter 20, 
``Major Facility Siting''.
    (vi) Administrative Rules of Montana (ARM), effective April 1, 
2005, Title 17, ``Environmental Quality'': Chapter 53, Hazardous Waste, 
sections 17.53.104, 17.53.201, 17.53.202 , 17.53.206, 17.53.207, 
17.53.208, 17.53.212, 17.53.213, 17.53.214, 17.53.215, 
17.53.1202(5)(m), 17.53.1202(6).
    (3) The following statutory and regulatory provisions are broader 
in scope than the Federal program, are not part of the authorized 
program, are not incorporated by reference and are not federally 
enforceable:
    (i) Montana Code Annotated (MCA) 2005, Title 75, ``Environmental 
Protection'': Chapter 10, ``Waste and Litter Control'', sections 75-10-
405(1)(i) & (j), 75-10-405(2)(a), 75-10-431, 75-10-432, 75-10-433, 75-
10-434.
    (ii) Administrative Rules of Montana (ARM), effective April 1, 
2005, Title 17, ``Environmental Quality'', Chapter 53, Hazardous Waste, 
sections 17.53.112, 17.53.113, 17.53.703, and 17.53.1202(5)(l), and 
(17).
    (4) Memorandum of Agreement and Enforcement Agreement. The 
Memorandum of Agreement between EPA Region 8 and the State of Montana, 
signed by the State of Montana Department of Environmental Quality on 
November 30, 1993, and by the EPA Regional Administrator on December 
25, 1993, and the Enforcement Agreement between EPA Region 8 and the 
State of Montana, signed by the State of Montana Department of 
Environmental Quality on September 1, 2000, and by the EPA Regional 
Administrator on September 11, 2000, although not incorporated by 
reference, are referenced as part of the authorized hazardous waste 
management program under subtitle C of RCRA, 42 U.S.C. 6921 et seq.
    (5) Statement of Legal Authority. ``Independent Legal Counsel 
Statement'', accompanied by an Attorney General concurrence letter 
signed by the Attorney General of Montana on December 27, 1983 as 
amended June 7, 1984 and revisions, supplements and addenda to that 
Statement accompanied by Attorney General concurrence letters dated

[[Page 11539]]

September 23, 1993, March 28, 1995, June 29, 1995, and April 4, 2005 
although not incorporated by reference, are referenced as part of the 
authorized hazardous waste management program under subtitle C of RCRA, 
42 U.S.C. 6921 et seq.
    (6) Program Description. The Program Description and any other 
materials submitted as supplements thereto, although not incorporated 
by reference, are referenced as part of the authorized hazardous waste 
management program under subtitle C of RCRA, 42 U.S.C. 6921 et seq.

0
4. Appendix A to part 272 , State Requirements, is amended by adding in 
alphabetical order, ``Montana'' and its listing to read as follows:

Appendix A to Part 272--State Requirements

* * * * *

Montana

    The regulatory provisions include:
    Administrative Rules of Montana, Title 17, Environmental 
Quality, Chapter 53, Hazardous Waste, effective April 1, 2005, 
sections 17.53.101, 17.53.102, 17.53.105, 17.53.107, 17.53.111(1), 
17.53.111(2), (except the phrase ``or to pay the fee required by ARM 
17.53.111'' in the introductory paragraph), 17.53.111(3) (except the 
phrase ``and the generator fee required by ARM 17.53.113'' at 
17.53.111(3)(a)), 17.53.301 (except the phrase ``and for which a 
registration fee is assessed'' at 17.53.301(2)(q)), 17.53.401, 
17.53.402, 17.53.403, 17.53.501, 17.53.502, 17.53.601, 17.53.602, 
17.53.603, 17.53.604, 17.53.701, 17.53.702, 17.53.704, 17.53.706, 
17.53.707, 17.53.708, 17.53.801, 17.53.802, 17.53.803, 17.53.901, 
17.53.902, 17.53.903, 17.53.1001, 17.53.1002, 17.53.1003, 
17.53.1004, 17.53.1101, 17.53.1102, 17.53.1201, 17.53.1202 (except 
17.53.1202(5)(l), (5)(m), (6) and (17)), 17.53.1203, 17.53.1301, 
17.53.1302, 17.53.1303, 17.53.1401, and 17.53.1402.
    Copies of the Montana regulations that are incorporated by 
reference are available from the Montana Secretary of State, 
Administrative Rules Bureau, P.O. Box 202801, Helena, MT 59620-2801 
(Phone: 406-444-2055).
* * * * *
[FR Doc. 06-2181 Filed 3-7-06; 8:45 am]
BILLING CODE 6560-50-P