SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Action Apply to Me?

This action is directed to the public in general. This document clarifies certain requirements of the authorized RCRA program in the State of Wisconsin and, therefore, may be of particular interest to persons who generate, treat, store, dispose of, or otherwise handle hazardous waste in the State of Wisconsin.

B. How Can I Get Additional Information, Including Copies of This Document and Other Related Documents?

Electronically. You may obtain electronic copies of this document by going to the listings from the EPA Internet Home Page at http://www.epa.gov/​. To access this ( printed page 28398) document, on the Home Page select “Laws and Regulations” and then look up the entry for this document under the “ Federal Register —Environmental Documents.” You can also go directly to the Federal Register listings at http://www.epa.gov/​fedrgstr/​. If you have any questions regarding the information in this notice or want copies of any other related documents, consult the person listed under FOR FURTHER INFORMATION CONTACT .

II. Background

A. What is Authorization?

When a state is authorized to administer the RCRA program, EPA has made a determination that the state's authorized program is equivalent to the federal program. Thereafter the state's authorized laws and regulations apply in the state in lieu of the equivalent federal program regulations. ( See RCRA section 3006(b) and (c)). Authorized States are required to maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal hazardous waste program. As the Federal hazardous waste program changes, the States must revise their programs and apply for authorization of the revisions. Revisions to State hazardous waste programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Authorization revision applications generally consist of a copy of the State regulations, a revised Attorney General's (AG) statement, a revised Program Description, a revised Memorandum of Agreement (MOA), or other documents EPA determines to be necessary (see 40 CFR 271.21(b)(1)). EPA maintains authority to bring enforcement action in authorized States under RCRA sections 3008, 3013, and 7003.

B. Why does EPA Codify Authorized Programs?

EPA codifies authorized State programs through incorporating the authorized state law in the Code of Federal Regulations, to better place regulated entities and members of the public on notice of the requirements pertaining to the generation and management of hazardous waste in a particular State. EPA incorporates by reference only the substantive authorized rules because the federal government uses its own enforcement authorities when bringing actions for alleged violations of the authorized state RCRA program. 40 CFR part 272 has been reserved for codification of approved State RCRA programs.

C. Wisconsin

1. What is the Authorization and Codification History for Wisconsin?

Wisconsin initially received Final Authorization on January 31, 1986 (51 FR 3783, January 30, 1986) to implement its base hazardous waste management program. Wisconsin received authorization for revisions to its program on June 6, 1989 (54 FR 22278, May 23, 1989), January 22, 1990 (54 FR 48243, November 22, 1989), April 24, 1992 (57 FR 15029, April 24, 1992), August 2, 1993 (58 FR 31344, June 2, 1993), October 4, 1994 (59 FR 39971, August 5, 1994) and October 4, 1999 (64 FR 42602, August 5, 1999). EPA uses 40 CFR 272.2501 for codification of decisions to authorize Wisconsin's program and for incorporation by reference of those provisions of its statutes and regulations that EPA will enforce under sections 3008, 3013 and 7003 of RCRA. EPA codified Wisconsin's authorized program on April 24, 1989 (54 FR 7422, February 21, 1989), May 29, 1990 (55 FR 11910, March 30, 1990), and November 22, 1993 (58 FR 49199).

2. Which Notices and Requirements are Being Clarified?

In the following authorization and codification documents, EPA included references to a state variance authority which allows the Wisconsin Department of Natural Resources (WDNR) to issue variances from hazardous waste licensing requirements in cases of “undue or unreasonable hardship:”

There is no analogous Federal variance authority. The purpose of this document is to clarify the limited circumstances under which the State may use this authority to vary an authorized RCRA requirement.

The Wisconsin legislature enacted the State hardship variance in 1978 and the WDNR adopted implementing administrative rules in 1981. Both the statutory and administrative provisions have been amended and renumbered over time; however, at all times relevant to this clarification document the hardship variance authority has been codified in State law at section 144.64(3) or section 291.31 of the Wisconsin Statutes and section NR 181.55(10) or section NR 680.50 of the Wisconsin Administrative Code. Consequently, this document clarifies all references to those specific state statutory and regulatory provisions in the authorization and codification of Wisconsin's hazardous waste program.

3. What is the Clarification?

In the Federal Register documents listed above, EPA included reference to section 144.64(3) or section 291.31 of the Wisconsin Statutes and section NR 181.55(10) or section NR 680.50 of the Wisconsin Administrative Code without explaining that the use of these authorities to waive authorized RCRA rules is generally limited to granting variances from the surface impoundment double liner requirements of section 3005(j)(2) through (9) and (13) of RCRA ^[1] or when the State varies authorized State requirements that are more stringent than current Federal requirements imposing instead the same standards as the less stringent Federal requirements. For example, EPA may promulgate less stringent amendments to Federal rules while the States, because of a temporary lag in authorization, remain authorized for the pre-existing more stringent rules. ( printed page 28399) States may use State waiver authorities to relax authorized State rules to the extent those rules are more stringent than analogous Federal rules (See, for example, 63 FR 65874 at 65925 (November 30, 1998)).

In addition, if a State authorized to implement the RCRA program has a permit waiver authority that is analogous to EPA's authority under section 121(e) of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) or RCRA section 7003, it may use this authority to waive the requirement to obtain a RCRA permit with respect to on-site response actions. As explained in EPA guidance, the two preconditions to allowing the use of this authority are that: “(1) The State has the authority under its own statutes or regulations to grant permit waivers; and (2) the State waiver authority is used in no less stringent a manner than allowed under Federal permit waiver authority, for example, section 7003 of RCRA or section 121(e) of CERCLA.” (See the Memorandum, “RCRA Permit Requirements for State Superfund Actions”, from J. Winston Porter to Regional Administrators, Region I-X (Nov. 16, 1987) (OSWER Dir. No. 9522.00-2).) Nothing in this clarification document changes or affects this policy in any way.

4. Summary

The references in 40 CFR 272.2501 and appendix A to part 272 to sections 144.64(3) and 291.31 of the Wisconsin Statutes and sections NR 181.55(10) and 680.50 of the Wisconsin Administrative Code provide notice that the State, as part of the authorized program, may use this authority only: (1) to grant variances from the surface impoundment double liner requirements of RCRA in those cases wherein the facility meets all of the requirements of RCRA section 3005(j); (2) to grant variances from more stringent authorized requirements that impose instead the same standards as the less stringent federal requirement; and (3) in the manner consistent with sections 7003 of RCRA or 121(e) of CERCLA, as described in applicable EPA guidance. Use of the State hardship variance authority with respect to any other authorized RCRA requirements is not part of the RCRA approved State program. Of course, States retain authority to waive or vary those State requirements that are broader in scope than, and therefore not part of, the Federal RCRA program. Therefore, with certain limited exceptions discussed herein, a State hardship variance cannot excuse compliance with RCRA program requirements. Persons who fail to comply with RCRA program requirements are subject to Federal enforcement under sections 3008, 3013, and 7003 of RCRA.

Authority: This action is issued under the authority of sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended 42 U.S.C. 6912(a), 6926, 6974(b).