[Federal Register Volume 85, Number 124 (Friday, June 26, 2020)]
[Rules and Regulations]
[Pages 38330-38332]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-12537]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[EPA-R01-RCRA-2019-0617; FRL-10010-59-Region 1]
Maine: Final Authorization of State Hazardous Waste Management
Program Revisions
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is granting Maine
final authorization for changes to its hazardous waste program under
the Resource Conservation and Recovery Act (RCRA). The Agency published
a Proposed Rule on December 20, 2019 and provided opportunity for
public comment. EPA received one substantive and two non-substantive
comments relevant to our proposed action.
DATES: This final authorization is effective June 26, 2020.
FOR FURTHER INFORMATION CONTACT: Sharon Leitch, RCRA Waste Management,
UST and Pesticides Section; Land, Chemicals and Redevelopment Division;
EPA Region 1, 5 Post Office Square, Suite 100 (Mail code 07-1), Boston,
MA 02109-3912; telephone number: (617) 918-1647; fax
[[Page 38331]]
number (617) 918-0647; email address: leitch.sharon@epa.gov.
SUPPLEMENTARY INFORMATION:
A. Authorization of Revisions to Maine's Hazardous Waste Program
On October 16, 2019, Maine submitted a complete program revision
application seeking authorization of changes to its hazardous waste
program in accordance with 40 CFR 271.21. EPA now makes a final
decision that Maine's hazardous waste program revisions that are being
authorized are equivalent to, consistent with, and no less stringent
than the Federal program, and therefore satisfy all of the requirements
necessary to qualify for final authorization. For a list of State rules
being authorized with this Final Authorization, please see the proposed
rule published in the Federal Register (84 FR 70135, December 20,
2019).
B. What comments were received on Maine's proposed authorization and
how is EPA responding to these comments?
EPA received three (3) comments on its December 20, 2019, proposed
authorization of Maine's hazardous waste program revisions. These
comments are provided in the docket for today's final action. See
Docket ID No. EPA-R01-RCRA-2019-0617 at www.regulations.gov. Two of the
comments submitted are non-substantive and generally support EPA's
proposed authorization. The third comment is substantive and it was
submitted by Maine's Attorney General and the Maine Department of
Environmental Protection (MDEP) Commissioner (collectively ``Maine'').
In Maine's comment, Maine states three points of disagreement with
EPA's Proposed Authorization and provides EPA with three requests.
Maine disagrees (1) with EPA's characterization of the scope of Maine's
current hazardous waste program submission; (2) with EPA's
characterization of the scope of Maine's current hazardous waste
program; and (3) with EPA's characterization of Maine's environmental
regulatory authority and jurisdiction. Maine requests that (1) EPA
extend its authorization of Maine's hazardous waste program to include
all lands within the State, including Indian country; (2) EPA expressly
acknowledge that Maine has environmental regulatory authority and
jurisdiction statewide, including in Indian country; and (3) EPA
expressly acknowledge that MDEP's current hazardous waste program
submission and supporting materials requests program authorization for
all lands within the State, including Indian country.
As EPA noted in its proposed authorization, Maine did not
explicitly identify Indian country as lands for which it was seeking
authorization in its October 16, 2019 hazardous waste program
submission. It was in its subsequent comments on EPA's proposed
authorization that Maine was explicit that its submission seeks
authorization of its hazardous waste program for Indian country.
EPA's RCRA regulations require Maine to seek authority from EPA
over activities on Indian lands with ``an appropriate analysis of the
State's authority'' in the Attorney General's statement that Maine must
provide to EPA in its hazardous waste program submission. 40 CFR
271.7(b).
Additionally, under basic principles of federal Indian law, states
generally lack civil regulatory jurisdiction within Indian country as
defined in 18 U.S.C. Section 1151. Alaska v. Native Village of Venetie
Tribal Government, 522 U.S. 520,527 n.1 (1998). Thus, EPA cannot
presume a state has authority to regulate in Indian country, including
with regard to RCRA activities. Instead, a state must demonstrate its
jurisdiction, and EPA must determine that the state has made the
requisite demonstration and expressly determine that the state has
authority, before a state can implement a program in Indian country.
Where the State did not expressly seek authorization for Indian country
in this authorization package, EPA properly did not include such lands
in the proposed authorization of program revisions.
Based on the unique jurisdictional framework established in the Act
to Implement the Maine Indian Claims Settlement (``Maine Implementing
Act'' or ``MIA''), 30 M.R.S. Sec. Sec. 6201 to 6214, and the federal
Maine Indian Claims Settlement Act (``MICSA''), 1980 Public Law 96-420
(Oct. 10, 1980), and the two companion laws for the Aroostook Band of
Micmacs, EPA has previously determined that the State of Maine has
civil regulatory jurisdiction in Indian country in two contexts. In
2012, EPA determined that the State of Maine has jurisdiction to issue
National Pollutant Discharge Elimination System (``NPDES'') permits
under the Clean Water Act in the territories of the Penobscot Indian
Nation and Passamaquoddy Tribe. 77 FR 23481, 23482 (April 19, 2012);
see alsoMaine v. Johnson, 498 F.3d 37 (1st Cir. 2007). In 2015, EPA
determined that the State of Maine has authority to set water quality
standards under the Clean Water Act for waters in Tribal lands.
February 2, 2015, Letter from H. Curtis Spalding, EPA Regional
Administrator, to Patricia W. Aho, Maine Department of Environmental
Protection Commissioner, Re: Review and Decision on Water Quality
Standards Revisions, available at https://www.epa.gov/sites/production/files/2016-04/documents/me_let_020215.pdf.
In recognition of the significant time and resources needed to
address Maine's assertion of authority to regulate hazardous waste
activities on Tribal lands and EPA's finding that Maine did not seek
authority over activities on Indian lands through a required and
appropriate analysis of the State's authority in its Attorney General's
statement, EPA is not making a determination on such authority as part
of this decision. This approach allows EPA to move forward with the
approval of Maine's program. EPA will act on such assertion following
the necessary consultation with the federally recognized Indian tribes
directly impacted by Maine's assertion, consistent with Executive Order
13175 (Nov. 6, 2000) and EPA's Policy on Consultation and Coordination
with Indian Tribes (May 4, 2011). Because Maine's submission for
hazardous waste program approval did not explicitly seek authority on
Indian lands, additional processes may be necessary and appropriate,
including a public comment period, before EPA takes any action on the
State's assertion over Indian lands.
Therefore, EPA grants Maine final approval to operate its hazardous
waste program with the changes described in Maine's hazardous waste
program submission and as outlined in the proposed authorization,
except as it relates to hazardous waste activities on Indian lands. EPA
grants Maine ``full'' program approval in accordance with 40 CFR part
271.1(h).
In response to Maine's remaining comments, it is EPA's position
that it has never explicitly approved the State to regulate RCRA
activities in Tribal lands. Nor can EPA simply presume that Maine has
authority to implement its RCRA program in Indian country. Rather, the
Agency must first consult with the affected federally recognized Indian
tribes and carefully consider the applicable legal authorities before
making an explicit determination as to the State's authority. Finally,
Maine's hazardous waste program submission is not the appropriate forum
for EPA to address the State's asserted civil regulatory jurisdiction
in Indian country with regard to other, non-RCRA environmental
statutes.
[[Page 38332]]
C. What is codification and is EPA codifying Maine's hazardous waste
program as authorized in this rule?
Codification is the process of placing citations and references to
the State's statutes and regulations that comprise the State's
authorized hazardous waste program into the Code of Federal
Regulations. EPA does this by adding those citations and references to
the authorized State rules in 40 CFR part 272. EPA is not codifying the
authorization of Maine's revisions as part of today's action.
D. Statutory and Executive Order Reviews
This final authorization revises Maine's authorized hazardous waste
management program pursuant to Section 3006 of RCRA and imposes no
requirements other than those currently imposed by State law. For
further information on how this authorization complies with applicable
executive orders and statutory provisions, please see the proposed rule
published in the Federal Register (84 FR 70135, December 20, 2019).
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, 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, and 6974(b).
Dated: June 4, 2020.
Dennis Deziel,
Regional Administrator, EPA Region 1.
[FR Doc. 2020-12537 Filed 6-25-20; 8:45 am]
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