[Federal Register Volume 70, Number 15 (Tuesday, January 25, 2005)]
[Proposed Rules]
[Pages 3501-3504]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-822]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 262
[FRL-7861-4]
Project XL Rulemaking Extension for New York State Public
Utilities; Hazardous Waste Management Systems; Proposed Rule
AGENCY: Environmental Protection Agency (EPA).
ACTION: Proposed rule; change of expiration date.
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SUMMARY: EPA proposes to extend the Project XL Final Rule for New York
State Public Utilities; Hazardous Waste Management Systems (XL Rule).
The XL Rule was published as a final rule in the Federal Register on
Monday, July 12, 1999 and, by its terms, expires, 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 proposes to extend the XL
Rule for a period of 72
[[Page 3502]]
months from the effective date of the rule resulting from today's
proposal. 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: Comments on the proposed extension of the XL Rule must be
received on or before February 24, 2005.
ADDRESSES: Comments can be submitted electronically 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 will be open for
comment under the ``EPA Headquarters Materials Available for Comment''
section of the Web site with the Docket ID of RCRA-2004-0021.
Written comments should be mailed to the EPA Docket Center (EPA/
DC), RCRA Docket (5305T), 1200 Pennsylvania Avenue NW., Washington, DC
20460. Please send an original and two copies of all comments, and
refer to Docket Number RCRA-2004-0021. A copy should also be sent to
Mr. Philip Flax at U.S. Environmental Protection Agency, Region 2, 290
Broadway, New York, NY 10007-1866.
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 am to 4:30 pm 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. Information is also
available 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
expires on January 10, 2005. Accordingly, EPA is proposing to amend the
expiration date of the XL Rule in 40 CFR 262.90(j). EPA is not
proposing to modify any other provisions of the XL Rule.
EPA proposes to amend the expiration date of the XL Rule and
provide an additional 72 months from the effective date of the rule
resulting from today's proposal. An 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.
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 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 proposed 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
[[Page 3503]]
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
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 proposed rule on
small entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. This
proposed rule will not impose any requirements on small entities. EPA
proposes to extend 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 will expire 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 the rule resulting from today's proposal. We continue to be
interested in the potential impacts of the proposed rule on small
entities and welcome comments on issues related to such impacts.
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 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 or 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.
As noted above, this 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 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
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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 proposed 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 proposed 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 solicits comment
on this 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 proposed 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
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.
List of Subjects in 40 CFR Part 262
Environmental protection, Hazardous materials transportation,
Hazardous waste, Packaging and containers, Reporting and recordkeeping
requirements.
Dated: January 6, 2005.
Stephen L. Johnson,
Deputy Administrator.
For the reasons set forth in the preamble, part 262 of title 40,
chapter I of the Code of Federal Regulations is proposed to be amended
as follows:
PART 262--[AMENDED]
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]
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 ---- [72 months from effective
date].
[FR Doc. 05-822 Filed 1-24-05; 8:45 am]
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