[Federal Register Volume 70, Number 99 (Tuesday, May 24, 2005)]
[Rules and Regulations]
[Pages 29910-29913]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-10196]
[[Page 29909]]
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Part IV
Environmental Protection Agency
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40 CFR Part 262
Project XL Rulemaking Extension for New York State Public Utilities;
Hazardous Waste Management Systems; Final Rule
Federal Register / Vol. 70, No. 99 / Tuesday, May 24, 2005 / Rules
and Regulations
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 262
[FRL-7916-2]
Project XL Rulemaking Extension for New York State Public
Utilities; Hazardous Waste Management Systems; Final Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; change of expiration date.
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SUMMARY: EPA is promulgating today the rulemaking extension proposed
and published in the Federal Register on January 25, 2005 for the
Project XL Final Rule for New York State Public Utilities; Hazardous
Waste Management Systems (XL Rule) (70 FR 3501). The XL Rule was
published as a final rule in the Federal Register on Monday, July 12,
1999 and, by its terms, expired, on January 10, 2005. The details of
the XL Rule can be found in 64 FR 37636 (July 12, 1999). No further
changes are being made to the XL Rule other than the change in
expiration date. Because the requirements outlined in the XL Rule do
not become effective until New York State adopts equivalent
requirements through a State rulemaking and receives EPA authorization
for these equivalent State requirements, EPA is extending the XL Rule
for a period of 72 months from the effective date of today's rule. To
date, the State has not adopted an equivalent rule and thus the XL
Project for New York Public State Utilities has not been implemented.
The XL Rule must be extended to facilitate completion of the New York
State Public Utilities XL Project.
DATES: This rule is effective on May 24, 2005.
ADDRESSES: The docket containing supporting information used in
developing this final rule are available for public inspection and
copying. The docket can be found online through the EPA's EDOCKET Web
site (http://docket.epa.gov/edkpub/index.jsp). EDOCKET is EPA's online
public docket and comment system designed to expand access to public
information. The docket for this rulemaking can be accessed by
conducting a search for Docket ID RCRA-2004-0021.
A docket containing public comments and supporting materials from
the original final rulemaking is available for public inspection and
copying at the EPA Docket Center (EPA/DC), located at EPA West
Building, 1301 Constitution Avenue, NW., Room B102, Washington, DC. The
EPA/DC is open from 8:30 a.m. to 4:30 p.m. Monday through Friday,
excluding Federal holidays (all materials from this docket are
available 24 hours a day online through the EDOCKET system with the new
rulemaking's Docket ID of RCRA-2004-0021). The public is encouraged to
phone in advance to review docket materials at the EPA/DC. Appointments
can be scheduled by phoning the Docket Office at (202) 566-2270. Refer
to RCRA docket number F-98-NYSP-FFFFFF. The public may copy a maximum
of 100 pages from any regulatory docket at no charge. Additional copies
cost 15 cents per page.
A duplicate copy of the docket is available for inspection and
copying at U.S. EPA, Region 2, 290 Broadway, New York, NY 10007-1866
during normal business hours. Persons wishing to view the duplicate
docket at the New York location are encouraged to contact Mr. Philip
Flax in advance, by telephoning (212) 637-4143. Project materials are
also available for review on today's action on the World Wide Web at
http://www.epa.gov/ProjectXL.
FOR FURTHER INFORMATION CONTACT: Mr. Philip Flax, U.S. EPA, Region 2,
290 Broadway, New York, NY 10007-1866, (212) 637-4143.
SUPPLEMENTARY INFORMATION: On July 12, 1999, EPA promulgated subpart I
of 40 CFR part 262 (XL Rule) which sets forth the requirements for
Project XL for public utilities in New York State. The XL Rule was
published as a final rule at 64 FR 37624 (July 12, 1999). The XL Rule
expired on January 10, 2005. Accordingly, EPA is amending the
expiration date of the XL Rule in 40 CFR 262.90(j). EPA is not
modifying any other provisions of the XL Rule.
EPA is amending the expiration date of the XL Rule and providing an
additional 72 months from the effective date of today's rulemaking.
This rule is effective upon its publication in the Federal Register
(rather than six months from promulgation) based on EPA's finding that
the regulated community does not need six months to come into
compliance with this regulation. RCRA section 3010(b)(1), 42 U.S.C.
6930(b)(1). The extension of the expiration date for the XL Rule will
enable the New York State Department of Environmental Conservation
(NYSDEC) to implement portions of the project requiring regulatory
changes. New York State has received authority to administer hazardous
waste standards for generators that are equivalent to, or more
stringent than, the federal program. Therefore, the requirements
outlined in the XL Rule will not take effect in New York State until
the State adopts equivalent requirements through a State rulemaking and
receives EPA authorization for these equivalent State requirements. EPA
will not be the primary regulatory agency responsible for implementing
the requirements of the XL Rule. EPA expects this XL Project to result
in superior environmental performance in New York State, while
providing cost savings to participating Utilities.
EPA received one comment letter in response to the January 25, 2005
proposed rulemaking extension Federal Register notice from the Utility
Solid Waste Activities Group (USWAG), the Edison Electric Institute
(EEI), the American Public Power Association (APPA), the National Rural
Electric Cooperative Association (NRECA), and the American Gas
Association (AGA) (collectively referred to herein as USWAG). The
letter stated that USWAG strongly supports the six-year extension of
the XL Rule. The letter reiterated USWAG's belief that the XL Rule will
promote more efficient and environmentally sound management of
hazardous wastes by allowing participating New York State utilities to
consolidate wastes from remote locations at a utility central
collection facility (UCCF) without requiring the utility to obtain a
hazardous waste permit. USWAG stated that the XL Rule will result in
environmental benefits, financial benefits, and reduced paperwork and
reporting burdens for both the utilities involved and the New York
State Department of Environmental Conservation. No changes have been
made to the proposed rulemaking extension based on this comment.
Additional Information
1. Applicability of Rules in Authorized States
Under section 3006 of RCRA, EPA may authorize qualified states to
administer the RCRA hazardous waste program within the state. Following
authorization, the state requirements authorized by EPA apply in lieu
of equivalent Federal requirements and become Federally enforceable as
requirements of RCRA. EPA maintains independent authority to bring
enforcement actions under RCRA sections 3007, 3008, 3013, and 7003.
Authorized states also have independent authority to bring enforcement
actions under state law. A state may receive authorization by following
the approval process described in 40 CFR part 271. 40 CFR part 271 also
describes the overall
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standards and requirements for authorization.
After a state receives initial authorization, new Federal
regulatory requirements promulgated under the authority in the RCRA
statute which existed prior to the 1984 Hazardous and Solid Waste
Amendments (HSWA) do not apply in that state until the state adopts and
receives authorization for equivalent state requirements. The state
must adopt such requirements to maintain authorization.
In contrast, under RCRA section 3006(g) (i.e., 42 U.S.C. 6926(g)),
new Federal requirements and prohibitions imposed pursuant to HSWA
provisions take effect in authorized states at the same time that they
take effect in unauthorized states. Although authorized states are
still required to update their hazardous waste programs to remain
equivalent to the Federal program, EPA carries out HSWA requirements
and prohibitions in authorized states, including the issuance of new
permits implementing those requirements, until EPA authorizes the state
to do so.
2. Effect on New York State Authorization
Today's rule is promulgated pursuant to RCRA provisions that
predate HSWA. New York State has received authority to administer most
of the RCRA program; thus, authorized provisions of the State's
hazardous waste program are administered in lieu of the federal
program. New York State has received authority to administer hazardous
waste standards for generators. As a result, today's rule will not be
effective in New York State until the State adopts equivalent
requirements as State law and receives EPA authorization for those
equivalent State requirements. EPA may not enforce these requirements
until it approves the State requirements as a revision to the
authorized State program.
Statutory and Executive Order Review
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993) EPA must
determine whether the regulatory action is ``significant'' and
therefore subject to Office of Management and Budget (OMB) review and
the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety in State, local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs of the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Because the annualized cost of this rule will be significantly less
than $100 million and will not meet any of the other criteria specified
in the Executive Order, it has been determined that this rule is not a
``significant regulatory action'' under the terms of Executive Order
12866, and is therefore not subject to OMB review.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) generally requires an Agency
to conduct a Regulatory Flexibility analysis of any rule subject to
notice and comment rulemaking requirements unless the agency certifies
that the rule will not have a significant economic impact on a
substantial number of small entities. Small entities include small
businesses, small not-for-profit enterprises, and small governmental
jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business defined by
the Small Business Administration's (SBA) regulations at 13 CFR
121.201; (2) a small governmental jurisdiction that is a government of
a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is
any not-for-profit enterprise which is independently owned and operated
and is not dominant in its field.
After considering the economic impacts of today's final rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities.
This final rule will not impose any requirements on small entities.
EPA is extending the Project XL Final Rule for New York State Public
Utilities; Hazardous Waste Management Systems (XL Rule) that was
published on July 12, 1999, which expired January 10, 2005. No other
changes are being made to the XL Rule other than to change the
expiration date by providing an additional 72 months from the effective
date of today's rulemaking.
C. Paperwork Reduction Act
The Office of Management and Budget (OMB) has approved the
information collection requirements contained in this rule under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and
has assigned OMB control number 2010-0026.
EPA is collecting information regarding the locations and amount of
waste involved as well as the money saved and what the savings was
invested in. EPA plans to use this information to determine whether the
XL project is successful. The success of the project will help
determine whether it should be extended to other areas of the country.
Participation in the project is voluntary; however, if a Utility
decides to participate, EPA requires the filing of a report containing
pertinent information. These reports will be publicly available. The
estimated cost burden of filing the annual report is $10,000 and the
estimated length of time to prepare the report is 40 hours. The
estimated number of respondents is 15. Burden means the total time,
effort, or financial resources expended by persons to generate,
maintain, retain, or disclose or provide information to or for a
Federal agency. This includes the time needed to review instructions;
develop, acquire, install, and utilize technology and systems for the
purposes of collecting, validating, and verifying information,
processing and maintaining information, and disclosing and providing
information; adjust the existing ways to comply with any previously
applicable instructions and requirements; train personnel to be able to
respond to a collection of information; search data sources; complete
and review the collection of information; and transmit or otherwise
disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR Chapter 15. EPA
amended the 40 CFR part 9 table of currently approved ICR control
numbers issued by OMB for various regulations to list the information
requirements contained in the XL Rule. The table lists the CFR
citations for EPA's reporting and recordkeeping requirements, and the
current OMB control numbers. This listing of OMB control numbers and
their subsequent codification in the CFR satisfy the requirements of
the Paperwork Reduction Act and OMB's
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implementing regulations at 5 CFR part 1320.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for federal agencies to assess the
effects of their regulatory actions on state, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``federal mandates'' that
may result in expenditures to state, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation of why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
Today's rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments or the private sector. As noted above, this final rule is
applicable only to New York State Utilities. The EPA has determined
that this rule contains no regulatory requirements that might
significantly or uniquely affect small governments. EPA has also
determined that this final rule does not contain a federal mandate that
may result in expenditures of $100 million or more for state, local,
and tribal governments, in the aggregate, or the private sector in any
one year. Thus, today's rule is not subject to the requirements of
sections 202 and 205 of the UMRA.
E. Applicability of Executive Order 13045
The Executive Order, ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that (1) is determined to be ``economically significant''
as defined under Executive Order 12866, and (2) concerns an
environmental health or safety risk that EPA has reason to believe may
have a disproportionate effect on children. If the regulatory action
meets both criteria, the Agency must evaluate the environmental health
or safety effects of the planned rule on children; and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it is not
an economically significant rule as defined by Executive Order 12866,
and because it does not involve decisions on environmental health or
safety risks that may disproportionately affect children.
F. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that 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.''
This final rule does not have federalism implications. It 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. This rule does not create a
mandate on State, local, or tribal governments and does not impose any
enforceable duties on these entities. Thus, Executive Order 13132 does
not apply to this rule. In the spirit of Executive Order 13132, and
consistent with EPA policy to promote communications between EPA and
State and local governments, EPA specifically solicited comment on the
proposed rule from State and local officials.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This final rule does not have
tribal implications, as specified in Executive Order 13175. The rule
does not significantly or uniquely affect the communities of Indian
tribal governments. Thus, Executive Order 13175 does not apply to this
rule.
H. Executive Order 13211: Energy Effects
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.
I. National Technology Transfer and Advancement Act
As noted in the proposed rule, section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law
104-113, section 12(d) (15 U.S.C. 272 note) directs EPA to use
voluntary consensus standards in its regulatory activities unless to do
so would be inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices) that are developed or adopted by voluntary consensus
standards bodies. The NTTAA directs EPA to provide Congress, through
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standard. This rulemaking does not
involve technical standards. Therefore, EPA did not consider the use of
any voluntary consensus standards.
J. Congressional Review Act
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 rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and
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the Comptroller General of the United States prior to publication of
the rule 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 rule
will be effective May 24, 2005.
List of Subjects in 40 CFR Part 262
Environmental protection, Hazardous materials transportation,
Hazardous waste, Packaging and containers, Reporting and recordkeeping
requirements.
Dated: May 17, 2005.
Stephen L. Johnson,
EPA Administrator.
0
For the reasons set forth in the preamble, part 262 of title 40 of the
Code of Federal Regulations is amended as follows:
PART 262--[AMENDED]
0
1. The authority citation for part 262 continues to read as follows:
Authority: 42 U.S.C. 6906, 9612, 6922-6925, 6937, and 6938.
Subpart I--[Amended]
0
2. Section 262.90 is amended by revising paragraph (j) to read as
follows:
Sec. 262.90 Project XL for Public Utilities in New York State.
* * * * *
(j) This section will expire on May 24, 2011.
[FR Doc. 05-10196 Filed 5-23-05; 8:45 am]
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