Project XL Rulemaking Extension for New York State Public Utilities; Hazardous Waste Management Systems; Proposed Rule, 3501-3504 [05-822]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

[Federal Register Volume 70, Number 15 (Tuesday, January 25, 2005)]
[Proposed Rules]
[Pages 3501-3504]
From the Federal Register Online via the Government Printing 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

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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 (https://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 https://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

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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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