[Federal Register Volume 64, Number 18 (Thursday, January 28, 1999)]
[Proposed Rules]
[Pages 4379-4382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1907]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 239

[FRL-6226-2]
RIN 2050-AD03


Subtitle D Regulated Facilities; State Permit Program 
Determination of Adequacy; State Implementation Rule--Amendments and 
Technical Corrections

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: The Environmental Protection Agency (EPA) is taking direct 
final action to modify the State Implementation Rule (``SIR rule''). 
This modification changes the withdrawal of state permit programs 
provision in Sec. 239.13 of the SIR rule so that Agency

[[Page 4380]]

withdrawals of an approved state municipal solid waste landfill (MSWLF) 
or conditionally exempt small quantity generator (CESQG) permit program 
would only apply to the entire approved program.
    The SIR, which was published on October 23, 1998, set forth a 
flexible framework for modifications of approved programs, established 
procedures for withdrawal of approvals (including withdrawal of a part 
or parts of a state program), and confirmed the process for future 
program approvals so that standards that safeguard human health and the 
environment are maintained (63 FR 57026). Withdrawal of a part or parts 
of a state program will no longer apply.
    EPA is also making some technical corrections to the withdrawal 
provision of the SIR rule.
    Elsewhere in the Final Rule Section of today's Federal Register, 
EPA is taking direct final action to modify the SIR rule. This direct 
final rule will make these amendments and technical corrections 
effective in sixty (60) days unless relevant adverse comment is 
received on this rule within thirty (30) days. We are taking this 
direct final action because we view this amendment and the corrections 
to the SIR rule as being non-controversial. Thus, we anticipate no 
adverse comments. A detailed rationale for the changes to the 
withdrawal provisions of the SIR rule are provided in the preamble to 
the direct final rule.
    If no relevant adverse comment is received in response to this 
rule, no further activity is contemplated regarding this proposal. If 
EPA receives relevant adverse comment, EPA will withdraw the direct 
final rule and address comments in a subsequent final rule. EPA will 
not provide additional opportunities for comment. If we receive 
relevant adverse comment, we will publish a timely withdrawal in the 
Federal Register informing the public that this rule will not take 
effect. If we receive relevant adverse comment on any amendment, 
paragraph, or section of this rule, only those amendments, paragraphs, 
or sections of the rule will be withdrawn; all other amendments, 
paragraphs, and sections of the direct final rule will go into effect 
within the time frame specified in that direct final rule notice (sixty 
(60) days).

DATES: Comments must be submitted on or before March 1, 1999.

ADDRESSES: Commenters must send an original and two copies of their 
comments referencing the docket identification number F-1999-ST2F-FFFFF 
to the RCRA Information Center (RIC), Office of Solid Waste (5305G), 
U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC 
20460. Hand deliveries of comments should be made to the RIC at Crystal 
Gateway I, First Floor, 1235 Jefferson Davis Highway, Arlington, VA. 
Comments may also be submitted electronically by sending electronic 
mail through the Internet to: [email protected]. Comments in 
electronic format should also be identified by the docket number F-
1999-ST2F-FFFFF. All electronic comments must be submitted as an ASCII 
file avoiding the use of special characters and any form of encryption.
    Commenters should not submit electronically any confidential 
business information (CBI). An original and two copies of CBI must be 
submitted under separate cover to: RCRA CBI Document Control Officer, 
Office of Solid Waste (5305W), U.S. EPA, 401 M Street, SW, Washington, 
DC 20460.
    The RIC is open from 9 a.m. to 4 p.m., Monday through Friday, 
excluding federal holidays. To review docket materials, it is 
recommended that the public make an appointment by calling 703-603-
9230. The public may copy a maximum of 100 pages from any regulatory 
docket at no charge. Additional copies cost $0.15 per page.

FOR FURTHER INFORMATION CONTACT: For general information contact the 
RCRA Hotline, Office of Solid Waste, U.S. Environmental Protection 
Agency, 401 M Street SW, Washington, DC 20460; 800-424-9346; TDD 800-
553-7672 (hearing impaired); in the Washington, DC metropolitan area, 
the number is 703-412-9810; TDD 703-486-3323.
    For more detailed information on specific aspects of this 
rulemaking, contact Karen Rudek, Office of Solid Waste (5306W), U.S. 
Environmental Protection Agency Headquarters, 401 M Street SW, 
Washington, DC 20460; 703-308-1682, [email protected].

SUPPLEMENTARY INFORMATION:

I. Authority

    The U.S. Environmental Protection Agency (EPA or the Agency) is 
proposing these amendments to the SIR rule under the authority of 
sections 2002(a)(1) and 4005(c) of the Resource Conservation and 
Recovery Act of 1976 (RCRA or the Act), as amended by the Hazardous and 
Solid Waste Amendments of 1984.
    Subtitle D of RCRA, at section 4005(c)(1)(B), requires each state 
to develop and implement a permit program or other system of prior 
approval to ensure that facilities that receive household hazardous 
waste or conditionally exempt small quantity generator (CESQG) 
hazardous waste are in compliance with the federal revised criteria 
promulgated under section 4010(c) of Subtitle D of RCRA. Section 
4005(c)(1)(C) further directs EPA to determine whether state permit 
programs are adequate to ensure compliance with the revised federal 
criteria. Section 2002(a)(1) of RCRA authorizes EPA to promulgate 
regulations necessary to carry out its functions under the Act.

II. Regulated Entities

    Regulated entities include state governments requesting full or 
partial approvals of permit programs or other systems of prior 
approval, or revisions to existing fully or partially approved 
programs.

III. Background

    The background of the RCRA Subtitle D federal revised criteria and 
the SIR rule are set forth elsewhere in the Final Rule Section of 
today's Federal Register. This proposed rule incorporates that 
background and historical information.

IV. Proposed Changes to the SIR Rule

A. Partial Withdrawal of State Permit Programs

    EPA is proposing to amend the SIR rule so that section 239.13, 
which pertains to the withdrawal of state permit programs, would only 
apply to the entire approved program and not to part or parts of a 
state program. The reasons for this change are set forth in the 
preamble of the direct final rule published elsewhere in the Final 
Rules Section of today's Federal Register. Those reasons are hereby 
incorporated into this proposed rule.

B. Technical Corrections

    In addition to this amendment to the SIR rule, we are proposing two 
technical corrections to errors which the Agency discovered in the 
language of Sec. 239.13. First, in Sec. 239.13(g)(3), both the proposed 
and final rule had stated that the Regional Administrator would hold a 
public hearing on a tentative withdrawal determination if such a 
hearing would ``clarify issues involved in the tentative adequacy 
determination'' (63 FR 57044, Oct. 23, 1998; 61 FR 2605, Jan. 26, 
1996). As reflected in both the title of this section of the SIR rule 
(``Criteria and procedures for withdrawal of determination of 
adequacy'') and in the preamble to the proposed rule (61 FR 2509), it 
is clear that the Agency intended this language in Sec. 239.13(g)(3) to 
allow the Regional

[[Page 4381]]

Administrator to hold a public hearing to clarify issues involved in 
the tentative ``withdrawal'' determination and not the tentative 
``adequacy'' determination. The Agency is proposing to modify the SIR 
rule to reflect this intention.
    Second, in the first sentence of both Sec. 239.13(f) and (g), we 
propose inserting the word ``the'' in the phrase ``withdrawal of 
determination of adequacy'' to read ``withdrawal of the determination 
of adequacy.'' We believe that these corrections will merely clarify 
the language without altering the intent of the two provisions.

V. Regulatory Assessments

A. Executive Order 12866: Assessment of Potential Costs and Benefits

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether any proposed or final regulatory action 
is ``significant,'' and, therefore, subject to 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:
    (a) 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, or state, local, or tribal governments or 
communities;
    (b) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (c) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (d) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this proposed rule is not a 
``significant regulatory action.'' Thus, EPA has not submitted this 
action to OMB for review under E.O. 12866.

B. Regulatory Flexibility Act

    Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq., 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996) whenever an agency is required to publish a notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small governmental jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies the rule will not have a significant adverse 
economic impact on a substantial number of small entities.
    SBREFA amended the Regulatory Flexibility Act to require Federal 
agencies to provide a statement of the factual basis for certifying 
that a rule will not have a significant economic impact on a 
substantial number of small entities. The following discussion explains 
EPA's determination.
    The Agency has determined that today's proposed rule will not have 
a significant economic impact on a substantial number of small 
entities, since the rule has direct effects only on state agencies. 
Therefore, no regulatory flexibility analysis has been prepared. Based 
on the foregoing discussion, I hereby certify that this proposed rule 
will not have a significant adverse economic impact on a substantial 
number of small entities.

C. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (``UMRA''), 
Pub. L. 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 ``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, ``205 of 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 UMRA ``205 do 
not apply when they are inconsistent with applicable law. Moreover, 
UMRA ``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 ``203 of 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.
    EPA has determined that this proposed rule does not contain a 
federal mandate (under the regulatory provisions of Title II of the 
UMRA) that may result in expenditures of $100 million or more for state 
and local governments in the aggregate, or for the private sector in 
any one year. Thus, there is no obligation to prepare a written 
statement, including a cost-benefit analysis, under ``202 of UMRA. For 
the same reasons outlined in part V.B above, EPA has determined that 
this proposed rule to amend the SIR rule will not significantly or 
uniquely affect small governments (UMRA ``203).

D. Paperwork Reduction Act

    Today's proposed rule does not add new burden as defined by the 
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The Office of 
Management and Budget has previously approved the information 
collection in the existing regulations and has assigned OMB control 
number 2050-0152, (EPA ICR No. 1608.01).

E. Executive Order 13045: Protection of Children From Environmental 
Health Risks and Safety Risks

    Executive Order 13045: ``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 E.O. 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 
proposed rule is not subject to E.O. 13045 because it is not an 
economically significant rule as defined by E.O. 12866.

F. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Pub L. No. 104-113, Sec. 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

[[Page 4382]]

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 
standards.
    This action does not involve technical standards. Therefore, EPA 
did not consider the use of any voluntary consensus standards.

G. Executive Order 12898: Environmental Justice

    Under Executive Order 12898, ``Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations,'' as well as through EPA's April 1995, ``Environmental 
Justice Strategy, OSWER Environmental Justice Task Force Action Agenda 
Report,'' and National Environmental Justice Advisory Council, EPA has 
undertaken to incorporate environmental justice into its policies and 
programs. EPA is committed to addressing environmental justice concerns 
and is assuming a leadership role in environmental justice initiatives 
to enhance environmental quality for all residents of the United 
States. The Agency's goals are to ensure that no segment of the 
population, regardless of race, color, national origin, or income bears 
disproportionately high and adverse human health and environmental 
effects as a result of EPA's policies, programs, and activities, and 
all people live in clean and sustainable communities. To address this 
goal, EPA considered the impacts of the final State Implementation Rule 
on low-income populations and minority populations and concluded that 
the SIR will potentially advance environmental justice causes (63 FR 
57039, Oct. 23, 1998). Today's proposed amendments to the SIR will not 
affect these beneficial impacts on environmental justice causes.

H. Executive Order 12875: Enhancing the Intergovernmental Partnership

    Under Executive Order 12875, EPA may not issue a regulation that is 
not required by statute and that creates a mandate upon a state, local 
or tribal government, unless the Federal government provides the funds 
necessary to pay the direct compliance costs incurred by those 
governments. If the mandate is unfunded, EPA must provide to the Office 
of Management and Budget a description of the extent of EPA's prior 
consultation with representatives of affected State, local and tribal 
governments, the nature of their concerns, copies of any written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 12875 
requires EPA to develop an effective process permitting elected 
officials and other representatives of state, local and tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory proposals containing significant unfunded mandates.''
    In developing this proposed rule, EPA consulted with various states 
and a state organization to enable them to provide meaningful and 
timely input in the development of this rule. EPA also worked closely 
with state governments in the development of the final SIR (63 FR 
57039, Oct. 23, 1998).
    Through notice, EPA sought input from small governments during the 
SIR rulemaking process. However, today's proposed rule to amend the SIR 
will not create a mandate on State, local or tribal governments. The 
proposed rule would not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 1(a) of Executive 
Order 12875 do not apply to this proposed rule.

I. Executive Order 13084: Consultation and Coordination With Indian 
Tribal Governments

    Under Executive Order 13084, EPA may not issue a regulation that is 
not required by statute, that significantly or uniquely affects the 
communities of Indian tribal governments, and that imposes substantial 
direct compliance costs on those communities, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by the tribal governments. If the mandate is unfunded, 
EPA must provide to the Office of Management and Budget, in a 
separately identified section of the preamble to the rule, a 
description of the extent of EPA's prior consultation with 
representatives of affected tribal governments, a summary of the nature 
of their concerns, and a statement supporting the need to issue the 
regulation. In addition, Executive Order 13084 requires EPA to develop 
an effective process permitting elected and other representatives of 
Indian tribal governments ``to provide meaningful and timely input in 
the development of regulatory policies on matters that significantly or 
uniquely affect their communities.''
    Today's proposed rule does not significantly or uniquely affect the 
communities of Indian tribal governments. There is no impact on these 
communities. Accordingly, the requirements of section 3(b) of Executive 
Order 13084 do not apply to this proposed rule.

List of Subjects in 40 CFR Part 239

    Environmental protection, Administrative practice and procedure, 
Municipal solid waste landfills, Non-municipal solid waste, Non-
hazardous solid waste, State permit program approval, Adequacy.

    Dated: January 19, 1999.
Carol M. Browner,
Administrator.
[FR Doc. 99-1907 Filed 1-27-99; 8:45 am]
BILLING CODE 6560-50-P