[Federal Register Volume 64, Number 132 (Monday, July 12, 1999)]
[Rules and Regulations]
[Pages 37624-37638]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17347]



[[Page 37623]]

_______________________________________________________________________

Part III





Environmental Protection Agency





_______________________________________________________________________



40 CFR Part 9 et al.



Project XL Rulemaking for New York State Public Utilities; Hazardous 
Waste Management Systems; Final Rule

  Federal Register / Vol. 64, No. 132 / Monday, July 12, 1999 / Rules 
and Regulations  

[[Page 37624]]



ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 9, 262, 264, 265, and 270

[FRL-6374-8]


Project XL Rulemaking for New York State Public Utilities; 
Hazardous Waste Management System

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Today's rule provides regulatory flexibility under the 
Resource Conservation and Recovery Act (RCRA), as amended. It allows 
participating New York State Utilities to consolidate hazardous waste, 
which they generate at remote locations, at designated Utility-owned 
central collection facilities (UCCFs) for up to 90 days subject to 
specified requirements. EPA is promulgating this rule to implement an 
XL project for Utilities in New York State. The terms of the XL project 
are defined in the Final Project Agreement (FPA) which is scheduled to 
be signed by the parties on July 12, 1999. The FPA explains the project 
in detail, while the promulgation of this federal rule will enable New 
York State Department of Environmental Conservation (NYSDEC) to 
implement portions of the project requiring regulatory changes . The 
requirements of this rule will not take effect in New York State until 
it adopts the requirements as state law. For the sake of simplicity, 
the remainder of this preamble refers to the effects of this rule, 
although it will be the corresponding state law change that will 
actually govern this XL project.
    In order to qualify for the flexibility that the rule provides New 
York State Utilities must initiate and comply with public notice and 
participation requirements set forth in the rule regarding the 
designation and approval of UCCFs. Subsequent to these public 
participation procedures, Utilities must receive approval to 
participate in the flexibility provided by this rule. EPA expects this 
XL project to result in superior environmental performance in New York 
State, while providing cost savings to participating Utilities.

DATES: This final rule is effective on January 10, 2000.

ADDRESSES: A docket containing public comments and supporting materials 
is available for public inspection and copying at the RCRA Information 
Center (RIC), located at Crystal Gateway, 1235 Jefferson Davis Highway, 
First Floor, Arlington, Virginia. The RIC is open from 9:00 am to 4:00 
pm Monday through Friday, excluding federal holidays. The public is 
encouraged to phone in advance to review docket materials. Appointments 
can be scheduled by phoning the Docket Office at (703) 603-9230. Refer 
to RCRA docket number F-98-NYSP-FFFFF. 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:

Outline of Today's Document

    The information presented in this preamble is organized as follows:

I. Authority
II. Background
    A. Overview of Project XL
    B. Overview of the NYSDEC XL Project
    1. Introduction
    2. NYSDEC XL Project Description
    3. Environmental Benefits
    4. Economic Benefits
    5. Stakeholder Involvement
    6. Project Duration and Completion
    C. Rule Description
III. Response to Public Comments
    A. Public Comments Received
    1. ConEd Comment
    2. USWAG Comment
    3. Niagara Mohawk Comment
    4. ASLF Comment
    a. RCRA Permits
    1. Utility-owned Rights-of-Way and Remote Locations
    2. Small Quantity Generator Exclusion
    3. Quantity Limits
    4. Substantive TSDF Requirements
    5. Public Participation
    b. Need for Flexibility Provided by Rule
    1. Transfer Facilities and Other Existing Provisions
    2. Utilities Could Obtain Permits
    3. Delays in Securing Hazardous Waste Transporters
    4. Existence of Delays in Hazardous Waste Removal
    5. Streamlined Permits
    c. Environmental Benefits
IV. Additional Information
    A. Executive Order 12866
    B. Regulatory Flexibility
    C. Congressional Review Act
    D. Paperwork Reduction Act
    E. Unfunded Mandates Reform Act
    F. RCRA/HSWA
    1. Applicability of Rules in Authorized States
    2. Effect on New York State Authorization
    G. Applicability of Executive Order 13045
    H. Executive Order 12875: Enhancing Intergovernmental 
Partnerships
    I. Executive Order 13084: Consultation and Coordination With 
Indian Tribal Governments
    J. National Technology Transfer and Advancement Act

I. Authority

    These regulations are being published under the authority of 
sections 2002(a), 3001, 3002, 3004, 3005, 3006, 3010, and 7004 of the 
Solid Waste Disposal Act, as amended by the Resource Conservation and 
Recovery Act, as amended, 42 U.S.C. 6912(a), 6921, 6922, 6924, 6925, 
6926, 6930, and 6974.

II. Background

A. Overview of Project XL

    The FPA sets forth the intentions of EPA and the NYSDEC with regard 
to a project developed under Project XL, an EPA initiative to allow 
regulated entities to achieve better environmental results at less 
cost. The regulation would facilitate implementation of the project. 
Project XL--``eXcellence and Leadership'' was announced on March 16, 
1995, as a central part of the National Performance Review and the 
EPA's effort to reinvent environmental protection. See 60 FR 27282 (May 
23, 1995). Project XL provides a limited number of private and public 
regulated entities an opportunity to develop their own pilot projects 
to provide regulatory flexibility that will result in environmental 
protection that is superior to what would be achieved through 
compliance with current and reasonably anticipated future regulations. 
These efforts are crucial to EPA's ability to test new strategies that 
reduce the regulatory burden and promote economic growth while 
achieving better environmental and public health protection. EPA 
intends to evaluate the results of this and other XL projects to 
determine which specific elements of the project(s), if any, should be 
more broadly applied to other regulated entities for the benefit of 
both the economy and the environment.
    Under Project XL, participants in four categories--facilities, 
industry sectors, governmental agencies and communities--are offered 
the flexibility to develop common sense, cost-effective strategies that 
will replace or modify specific regulatory requirements, on the 
condition that they produce and demonstrate superior environmental 
performance. To participate in Project XL, applicants must develop 
alternative

[[Page 37625]]

pollution reduction strategies pursuant to eight criteria: superior 
environmental performance; cost savings and paperwork reduction; local 
stakeholder involvement and support; test of an innovative strategy; 
transferability; feasibility; identification of monitoring, reporting 
and evaluation methods; and avoidance of shifting the risk burden. They 
must have full support of affected federal, state and tribal agencies 
to be selected.
    For more information about the XL criteria, readers should refer to 
the two descriptive documents published in the Federal Register (60 FR 
27282, May 23, 1995 and 62 FR 19872, April 23, 1997), and the December 
1, 1995 ``Principles for Development of Project XL Final Project 
Agreements'' document. For further discussion as to how the NYSDEC XL 
project addresses the XL criteria, readers should refer to the Final 
Project Agreement and fact sheet that are available from the docket for 
this action (see ADDRESSES section of today's preamble).
    Project XL is intended to allow the EPA to experiment with untried, 
potentially promising regulatory approaches, both to assess whether 
they provide benefits at the specific facility affected, and whether 
they should be considered for wider application. Such pilot projects 
allow the EPA to proceed more quickly than would be possible when 
undertaking changes on a nationwide basis. EPA may modify rules, on a 
site- or state-specific basis, that represent one of several possible 
policy approaches within a more general statutory directive, so long as 
the alternative being used is permissible under the statute.
    Adoption of such alternative approaches or interpretations in the 
context of a given XL project does not, however, signal EPA's 
willingness to adopt that interpretation as a general matter, or even 
in the context of other XL projects. It would be inconsistent with the 
forward-looking nature of these pilot projects to adopt such innovative 
approaches prematurely on a widespread basis without first determining 
whether or not they are viable in practice and successful for the 
particular projects that embody them. Furthermore, as EPA indicated in 
announcing the XL program, it expects to adopt only a limited number of 
carefully selected projects. These pilot projects are not intended to 
be a means for piecemeal revision of entire programs. Depending on the 
results in these projects, EPA may or may not be willing to consider 
adopting the alternative approach or interpretation again, either 
generally or for other specific facilities.
    EPA believes that adopting alternative policy approaches and/or 
interpretations, on a limited, site- or state-specific basis and in 
connection with a carefully selected pilot project, is consistent with 
the expectations of Congress about EPA's role in implementing the 
environmental statutes (so long as EPA acts within the discretion 
allowed by the statute). Congress' recognition that there is a need for 
experimentation and research, as well as ongoing reevaluation of 
environmental programs, is reflected in a variety of statutory 
provisions, e.g., section 8001 of RCRA.

B. Overview of the NYSDEC XL Project

1. Introduction
    Today's rule will facilitate implementation of the FPA (the 
document that embodies EPA's intent to implement this project) that has 
been developed by EPA, New York State Department of Environmental 
Conservation (NYSDEC), New York State Utilities, and other 
stakeholders. EPA and NYSDEC are scheduled to sign the final FPA on 
July 12, 1999. The FPA is available for review in the docket for 
today's action and on the world wide web at http://www.epa.gov/
ProjectXL. The FPA addresses the eight Project XL criteria, and the 
expectation of EPA that this XL project will meet those criteria. Those 
criteria are: (1) Environmental performance superior to what would be 
achieved through compliance with current and reasonably anticipated 
future regulations; (2) cost savings or economic opportunity, and/or 
decreased paperwork burden; (3) stakeholder support; (4) test of 
innovative strategies for achieving environmental results; (5) 
approaches that could be evaluated for future broader application; (6) 
technical and administrative feasibility; (7) mechanisms for 
monitoring, reporting, and evaluation; and (8) consistency with 
Executive Order 12898 on Environmental Justice (avoidance of shifting 
of risk burden). The FPA specifically addresses the manner in which the 
project is expected to produce superior environmental benefits.
    EPA is promulgating today's rule to implement the provisions of 
this Project XL initiative that require regulatory changes. However, as 
discussed in Section IV.F. below, 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 today's rule will not take effect in New 
York State until the State adopts equivalent requirements as State law, 
and EPA will not be the primary regulatory agency responsible for 
implementing the requirements of this rule. Although today's rule 
references ``EPA,'' ``NYSDEC'' will be substituted for ``EPA'' when the 
State adopts these requirements as State law. For this reason, this 
preamble discussion will use the term ``regulatory agency'' when 
referring to the ``EPA'' responsibilities identified in today's rule. 
In addition, for the sake of simplicity, the remainder of this preamble 
refers to the effects of this rule, although it will be the 
corresponding state law change that will actually govern this XL 
project.
2. NYSDEC XL Project Description
    Utilities maintain rights-of-way, such as oil and gas pipelines, 
telephone lines, and electric power distribution systems, in some cases 
extending hundreds of miles. Frequently, hazardous waste is generated 
at remote locations that are not continuously staffed. The collection 
of the hazardous waste is sometimes planned in advance, but often is 
not, particularly in cases where there has been a sudden, unexpected 
interruption of service. Waste may also be generated as part of routine 
service. This waste generally consists of sediments accumulating at 
Utility access points.
    In the case of electric power and telephone systems, the locations 
involved are usually transformer vaults, service boxes, and manholes, 
which are most often located in the middle of public roads. In order to 
access conduits and service the system, sediment and/or infiltration 
water must be removed. These materials commonly fail the Toxicity 
Characteristic (TC) for lead and therefore may be hazardous waste. For 
electric power systems, polychlorinated biphenyl (PCB) contamination is 
also possible. Waste containing PCBs is regulated under the Toxic 
Substances Control Act (TSCA). In the case of oil and gas pipelines, 
the waste may consist of pipeline condensate which collects in ``drip'' 
pipes downstream of pressure regulating stations. This waste commonly 
exhibits the characteristic of ignitability, commonly fails the TC for 
benzene and may contain PCBs.
    Generally, hazardous waste may qualify for conditional exemption 
under RCRA because it is generated in quantities less than 100 
kilograms per calendar month. However, when hazardous waste generated 
exceeds 100 kilograms per calendar month, it is subject to applicable 
regulations at 40 CFR part 262. In addition, when one kilogram or more 
of an acutely

[[Page 37626]]

hazardous waste is generated per calendar month at a remote location, 
it is also subject to applicable regulations at 40 CFR part 262.
    Utilities are currently allowed to accumulate hazardous waste 
without a permit at the remote location where it is generated for up to 
90 days (or, under certain circumstances, 180 days) without RCRA 
permits prior to transporting it to a permitted treatment, storage and 
disposal facility (TSDF) or other designated facility. However, since 
remote Utility locations are often unstaffed, it is very difficult to 
store hazardous waste and secure against releases resulting from 
accidents or vandalism. Arranging to bring hazardous waste directly to 
a TSDF may take several days, particularly if the event was unplanned. 
To enhance protection of public health, safety, and the environment, it 
would be preferable if hazardous waste generated at remote locations 
were transported to a secured location as soon as it is collected from 
the remote location.
    RCRA regulations generally do not allow the shipment to, or 
consolidation of, hazardous waste at off-site facilities other than a 
permitted or interim status TSDF or other designated facility. 
Furthermore, for each remote location that generates more than 1,000 
kilograms during any single month, the utility must prepare and submit 
a Biennial Report. The RCRA-authorized state processes each report and 
enters the data into state databases, and EPA enters it into the 
Biennial Report System (BRS) database. As a result, both state and 
federal databases include hundreds of ``sites'' which are actually only 
drip pipes and/or manholes.
    Additionally, utilities must arrange frequent shipments of small 
loads of hazardous waste which must be sent directly to a permitted 
TSDF, which is often located hundreds of miles from the remote 
location. The current handling of hazardous waste at remote locations 
may result in unsafe storage and hazardous conditions, additional 
paperwork and expenditure of time and labor, and inefficiencies in 
transportation, increasing direct costs.
    Utilities would prefer to transport hazardous waste immediately 
from remote locations to a UCCF so that hazardous waste does not remain 
susceptible to releases from the remote locations through accidents or 
vandalism. At the secured UCCFs , the Utilities could then safely 
combine compatible types of hazardous waste collected from different 
remote locations to achieve important efficiencies in transportation 
and waste management. By consolidating hazardous waste in this manner, 
vehicles transporting waste from a UCCF to a commercial TSDF could then 
carry relatively full loads. On the other hand, if hazardous waste must 
be transported to a TSDF directly from remote locations, more vehicle 
trips, often hundreds of miles away, would be required, each carrying 
smaller loads.
    This rule is designed to address the problems of unsafe storage, 
transportation inefficiencies, and unnecessary paperwork in the 
following ways:

    a. Hazardous waste generated at a Utility's remote locations can 
be consolidated without a RCRA permit for up to 90 days at a UCCF, 
so long as the Utility complies with requirements set forth in 
today's rule. Each UCCF can only consolidate waste generated at its 
remote locations and at the UCCF itself. Hazardous waste generated 
at a remote location would be transported from each remote location 
immediately following collection of all hazardous waste at the 
remote location or when the staff collecting the hazardous waste 
leave the remote location, whichever comes first. If wastes arriving 
at the UCCF on different dates are consolidated in the same unit, 
the 90-day period will run from the earlier of the two dates that 
the wastes arrived.
    b. Hazardous waste generated at remote locations that is 
transported to a UCCF can be accounted for in a combined Biennial 
Report, submitted by the Utility, instead of the Utility having to 
submit a Biennial Report for each remote location. A separate 
Biennial Report must be prepared for hazardous waste sent from a 
remote location directly to a permitted TSDF that would ordinarily 
require a Biennial Report.

    Thus, under the rule a UCCF would be able to consolidate hazardous 
waste received from remote locations at the UCCF for up to 90 days, 
thereby providing the Utilities with more flexibility to combine 
compatible hazardous wastes generated at different remote locations, 
prior to having to ship such waste to a treatment, storage, or disposal 
facility.
    In order to participate in the flexibility provided by the rule, 
New York State Utilities must initiate and comply with public notice 
and participation requirements set forth in the rule regarding the 
designation(s) and approval of UCCF(s). In addition, the regulatory 
agency must respond to the comments received regarding the 
designation(s) and approval of UCCF(s). Subsequent to these public 
participation procedures, Utilities must receive approval to 
participate in the flexibility provided by this rule. The regulatory 
agency may determine that a Utility or UCCF should not be approved to 
participate based on relevant information learned before, during or 
after the public notice procedures, including a Utility's compliance 
history.
    The rule will enhance the protection of public health and the 
environment by facilitating and requiring the more immediate removal of 
hazardous waste that is difficult to properly secure at remote 
locations to staffed and secure UCCFs. Hazardous traffic conditions 
that endanger public safety may also diminish. Once hazardous waste is 
transported to a UCCF it will be subject to a number of requirements, 
including that it must be held in units that are managed in accordance 
with specified requirements in 40 CFR part 265. In order to operate a 
UCCF under the terms of today's rule, utilities will also have to 
comply with personnel training, contingency planning, and other 
emergency preparedness and prevention requirements, and they will be 
subject to both general and unit-specific closure requirements. In 
addition, if the regulatory agency determines that the requirements 
identified in this rule may not fully protect human health and the 
environment, it may impose additional conditions on the operation of a 
particular UCCF.
    Utilities should realize considerable savings in direct costs 
through efficiencies in transportation by consolidating hazardous 
waste. Reducing the number of trips made to often-remote TSDFs by 
waste-transporting vehicles also reduces mobile source emissions. 
Elimination of the need to complete biennial reports should bring about 
a very significant reduction in paperwork and savings in time and 
labor, both for Utilities and environmental regulatory agencies, who 
can then redirect such resources to other environmental needs.
    In addition, the rule requires Utilities to reinvest at least one-
third of the direct savings realized from participation in the XL 
project into one or more environmental projects, such as pollution 
prevention, that are over and above existing legal requirements and 
that were not planned prior to the Utility's receipt of approval to 
consolidate hazardous waste pursuant to the rule.
    The rule applies only to hazardous waste at a Utility's remote 
locations or at a UCCF. This rule does not allow a UCCF to receive 
waste from locations other than remote locations that are within the 
same right-of-way network as the UCCF. In addition, except as 
explicitly provided for in the rule, the rule does not affect any other 
requirements pertaining to the storage, transport, and disposal of 
waste generated at a Utility's remote locations. For example, a Utility 
is still required to

[[Page 37627]]

determine whether waste generated at a remote location is subject to 
the land disposal restrictions set forth in 40 CFR part 268 and the 
Toxic Substances Control Act and its implementing regulations set forth 
in 40 CFR part 761 at the point of generation, prior to any commingling 
of waste. In addition, nothing in the rule prohibits a Utility from 
treating hazardous waste in a tank or container pursuant to the 
provisions set forth in Sec. 262.90 provided the Utility complies with 
the requirements for tanks set forth in subpart J of 40 CFR part 265, 
except Secs. 265.197(c) and 265.200, and/or the requirements for 
containers set forth in subpart I of 40 CFR part 265.
    Similarly, it is not the intent of the rule to subject 
Conditionally Exempt Small Quantity Generator waste (i.e., hazardous 
waste that does not exceed 100 kilograms per calender month) generated 
at individual remote locations to increased regulation. Thus, a Utility 
may continue to follow the requirements for Conditionally Exempt Small 
Quantity Generators (CESQGs) at 40 CFR 261.5 for CESGQ waste generated 
at individual remote locations that is not sent to a UCCF. If, however, 
a Utility chooses to send CESQG waste generated at individual remote 
locations to its UCCF, that waste will be subject to the requirements 
of this rule once it is received at the UCCF. The Utility must comply 
with 40 CFR 262.34(a)-(c) (requirements for large quantity generators) 
for all hazardous waste consolidated at the UCCF regardless of the 
total amount of waste generated or consolidated per month at the UCCF.
3. Environmental Benefits
    This XL project facilitates the immediate transport of hazardous 
waste, generated by Utilities at ``remote'' locations that are not 
permanently staffed, to a secured location that is subject to the 
enhanced requirements established by today's rule. At the present time, 
particularly when the collection of hazardous waste is unplanned, it 
may take several days to make arrangements for removal of the material 
directly to a TSDF. In the meantime, if the material remains at the 
remote location, it may endanger public health and the environment 
because it may be difficult for the Utility to provide secure storage 
for the material, safe from releases through accidents or vandalism. 
Moreover, if the material is left at a street location where it 
continues to disrupt normal traffic patterns (vehicular and/or 
pedestrian), public safety is threatened, even if there are no 
releases. Particularly in urban settings (e.g., New York City), the 
disruption of traffic patterns can lead to a substantial risk of 
vehicular collisions or vehicle/pedestrian accidents. Leaving the 
material at a street location may result in forced merging of high-
volume traffic lanes. This project should help to enhance public safety 
and prevent endangerment to human health and the environment.
    There should also be direct environmental results to be realized 
from the consolidation of compatible waste at UCCFs. By minimizing the 
number of vehicle trips that must be made to the often-distant TSDF, 
emissions from mobile sources are reduced, as well as vehicular fuel 
consumption and the possibility of an accident involving a vehicle 
transporting this waste.
    Indirect environmental benefits should result from the reduced need 
for human resources, time and paperwork. More Utility and regulatory 
agency resources would be made available to address higher priority 
environmental issues.
    In addition, participating Utilities are required to reinvest one-
third of the direct cost savings accrued due to participation in this 
project into one or more environmentally beneficial projects that are 
above and beyond what is legally required by law and that were not 
planned prior to receipt of approval of each UCCF. Participating 
Utilities must identify, in annual Progress Reports, the monetary value 
of the direct cost savings which they have experienced as a result of 
the project and the environmental activities in which one-third of 
these direct cost savings have been reinvested.
4. Economic Benefits
    Utilities should realize direct cost savings. Through the need for 
reduced resources, time and paperwork, they also anticipate indirect 
savings. NYSDEC and EPA will realize indirect savings through reduced 
resource demands, time saved (including computer time), and reduced 
paperwork.
    Utilities should realize a variety of direct cost savings. First, 
Utilities will not incur expenses for having to store hazardous waste 
at remote locations, even temporarily. Second, Utilities will realize 
direct cost savings through efficiencies in transportation. By being 
able to combine waste at the UCCF that is compatible, fewer vehicle 
trips to ultimate destination facilities will be required. These 
savings may include: database management for each remote location as an 
individual generator, State annual Hazardous Waste Report preparation 
costs, Biennial Report preparation costs, and cost savings realized 
from consolidation of waste for economical shipment (including no 
longer sending waste directly to a TSDF from a remote location.). The 
proposed rule explicitly identified as reportable cost savings, cost 
savings achieved as a result of not being required to obtain a TSDF 
permit or comply with substantive TSDF requirements. It is EPA's 
understanding, however, that in the absence of today's rule, utilities 
would probably continue to comply with the existing requirements for 
hazardous waste generators rather than obtain a permit for a UCCF. 
Thus, EPA does not generally expect these savings identified in the 
proposed rule to result from this project. Accordingly, EPA has 
modified the proposed rule by deleting the explicit references to these 
types of savings. Instead Sec. 262.90(h) includes a more general 
request for cost savings achieved by a particular utility, thus 
ensuring that all cost savings based on any regulatory requirements 
which a particular utility is actually relieved from due to compliance 
with today's rule will be accounted for in its estimate of cost 
savings. EPA believes that this is a more appropriate approach given 
that the specific cost savings for each utility are difficult to 
precisely anticipate and are based in large part on the operating 
decisions a particular utility may make when faced with the options 
that still exist in the absence of this XL project.
    Utilities will realize indirect savings in resources, time, and 
reduced paperwork by not having to submit separate Biennial Reports for 
each remote location that generates in excess of 1,000 kilograms of 
hazardous waste per calender month. Instead, the hazardous waste 
generated at remote locations will be included in the Biennial Reports 
of the UCCFs to which they are brought. All such hazardous waste will 
still be fully accounted for without increasing the number of Biennial 
Reports that the Utility must prepare and submit. EPA and NYSDEC will 
also realize indirect savings in human resources, time (including 
computer time), and reduced paperwork. Biennial Reports for remote 
locations will no longer need to be processed and entered in state and 
federal databases. As long as the quantities and types of hazardous 
waste from these locations are accounted for, the minimal benefits of 
these excess reports do not justify the extra work involved in 
preparing and processing the reports.
5. Stakeholder Involvement
    NYSDEC and EPA have been involved in the development of this 
project, and

[[Page 37628]]

both support it. Bell Atlantic acted as lead for the telephone 
industry. Consolidated Edison acted as lead for the electric power 
industry, with assistance from the New York State Power Pool. Brooklyn 
Union Gas acted as lead for the oil and gas pipeline industry 
(intrastate and interstate). Consolidated Edison and the New York State 
Power Pool solicited comments from other electric power companies in 
New York State which were then funneled through Consolidated Edison. 
Brooklyn Union Gas provided the same service to other intrastate and 
interstate oil and gas pipelines.
    The development of the FPA was accomplished through implementation 
of a Public Participation and Outreach Plan, which is included in the 
docket for this rulemaking. This Plan provided opportunity for 
participation by potential industrial participants, environmental 
organizations, the general public and other interested parties. The 
rule and FPA also provide for public participation in the designation 
and approval of UCCFs.
    Finally, the NYSDEC intends to propose and (subject to public 
comment) promulgate an equivalent state regulation.
6. Project Duration and Completion
    As with all XL projects testing alternative environmental 
protection strategies, the term of the NYSDEC XL project is one of 
limited duration. The duration of the regulatory relief provided by 
this rule is anticipated to be 60 months from the effective date of 
this rule. However, a participating UCCF or Utility may be terminated 
or suspended at any time for failure to comply with any of the 
requirements of the rule.

C. Rule Description

    The rule adds a new section to the Standards Applicable to 
Generators of Hazardous Waste, 40 CFR 262.90. Paragraph (a) of the rule 
defines terms used in the new rule. The definition of remote location 
in paragraph (a)(3) is of particular interest because of its importance 
in the implementation of the regulation. Paragraph (b) includes the 
requirements that a Utility and UCCF will comply with in order to 
consolidate hazardous waste for up to 90 days at the UCCF. For example, 
under Sec. 262.90(b)(1), the utility is required to use a Uniform 
Hazardous Waste Manifest (Form 8700-22) for all shipments of hazardous 
waste greater than 100 kilograms being sent from a remote location to a 
UCCF. The manifest used to transport hazardous waste from the remote 
location to the UCCF will be prepared as follows:
    (1) The EPA ID # of the UCCF would be entered on the Manifest Form 
in Item 1.
    (2) The name and location of the remote location would be entered 
in the Generator's Name and Mailing Address block (Item 3).
    (3) The transporter's name and EPA ID number would be entered in 
the Transporter 1 Company Name box (Items 5 and 6).
    (4) The UCCF name would be entered in the Designated Facility Name 
and Site Address (Item 9) as the facility which will be handling the 
waste described on the manifest.
    (5) The DOT description and other information about the waste would 
be entered in Items 11 through 14.
    (6) The Generator's Certification (Item 16) would be signed.
    (7) The Transporters Acknowledgment of Receipt (Item 18) would be 
signed.
    (8) The person accepting the waste on behalf of the UCCF would sign 
the Certification of receipt of hazardous materials covered by this 
manifest (Item 20).
    (9) A copy of the manifest, signed by all required signatories, 
must be retained at the UCCF for a minimum of three years. A copy of 
the manifest must also be provided to the transporter, if other than 
the utility.
    The utility would also complete a new manifest in accordance with 
40 CFR 262.20, for all hazardous waste transported to a TSDF from the 
UCCF.
    EPA has modified the rule to consistently refer to a Utility's 
waste handling activities as ``consolidation.'' The proposed rule and 
its accompanying preamble interchangeably used the terms ``accumulate'' 
and ``consolidate'' to refer to Utility waste handling activities. EPA 
has modified the rule to uniformly refer to ``consolidation'' because 
that term more accurately reflects the range of activities that a 
Utility will carry out under this project. The activities that a 
Utility will carry out include, collecting hazardous waste from 
multiple remote locations, transporting the collected hazardous waste 
to a designated UCCF, keeping that hazardous waste at the UCCF for up 
to 90 days, and combining, where feasible and appropriate, physically 
and chemically similar hazardous waste.
    Paragraph (c) of the rule requires public notification of a 
Utility's and UCCF's participation. These requirements ensure that 
there is adequate public notice and comment on participation. Paragraph 
(d) includes items that need to be included in a notification of 
participation that would be sent to the regulatory agency. Paragraph 
(e) describes the procedures for designating UCCFs, including how 
information from the public comments will be incorporated in the 
approval process. Paragraph (f) includes requirements for the addition 
or deletion of UCCFs from participation. Paragraph (g) includes the 
requirement that a participating Utility submit an Annual Progress 
Report, including information on the number of remote locations, the 
total tonnage of each type of waste handled, and savings reaped from 
participation. Paragraph (h) requires a Utility to assess any direct 
savings that result from its participation in the project, and sets 
forth examples of the direct savings that a Utility may experience as a 
result of participation. Paragraph (i) discusses grounds for 
termination of a Utility or UCCF's participation. Paragraph (j) sets 
forth the expiration date of the rule. Amendments to parts 264, 265, 
and 270 clarify that a UCCF operating in accordance with the 
requirements of 40 CFR 262.90 is exempt from TSDF and permitting 
requirements.
    EPA has made several changes to the proposed rule in response to 
comments. These are: (1) A clarification regarding when hazardous waste 
must be transported from a remote location to a UCCF; (2) a 
clarification regarding whether the UCCF may also consolidate hazardous 
waste generated at the UCCF under the terms of this rule; (3) 
additional requirements applicable to containers of hazardous waste; 
(4) additional public notice and public participation requirements; and 
(5) an additional reporting requirement for participating utilities. 
Each of these changes is discussed in detail in section III below.

III. Response to Public Comments

A. Public Comments Received

    On December 7, 1998, EPA requested comments on the proposed rule 
and draft Final Project Agreement for the NYSDEC XL project. See 63 FR 
67561. As a result of this Federal Register document, EPA received four 
comments: one from Consolidated Edison Company of New York, Inc., 
(ConEd), one from the Utility Solid Waste Activities Group (USWAG), one 
from Niagara Mohawk, and one from the Atlantic States Legal Foundation 
(ASLF) (joined by New York Rivers Unlimited, Great Lakes United, and 
the New York Public Interest Research Group).
1. ConEd Comment
    ConEd supports the NYSDEC XL project because it believes that the

[[Page 37629]]

project will achieve better environmental results at less cost. It 
believes that these cost savings will result from unnecessary paperwork 
reductions, the consolidation of waste, and cost reductions from 
allowing UCCFs to operate under certain conditions without obtaining 
TSD permits and maintaining TSD facilities. In its comment, ConEd also 
extols the environmental benefits of the project which it identifies as 
the reinvestment of cost savings in environmentally beneficial 
projects, the expedited removal of waste, and the reduction in vehicle 
trips through the consolidation of waste. ConEd suggests that EPA 
clarify whether UCCFs may handle hazardous waste generated at the UCCF 
as well as hazardous waste generated at remote locations. ConEd points 
out that, although the proposed rule suggested that a UCCF could handle 
both remote location hazardous waste and UCCF generated hazardous 
waste, a statement in the preamble to the proposed rule suggested that 
each UCCF could only handle waste generated at its remote locations. 
EPA agrees that this issue should be clarified. EPA's intent with the 
proposed rule was that each UCCF would handle both the hazardous waste 
generated at its remote locations as well as hazardous waste generated 
at the UCCF. EPA's statement in the preamble to the proposed rule was 
not meant to suggest that UCCFs would not be able to handle UCCF-
generated hazardous waste, but rather to clarify that a UCCF would not 
be allowed to receive hazardous waste from any off-site location other 
than a remote location. EPA has modified Sec. 262.90(b) to clarify that 
UCCFs may consolidate, under the terms of this rule, hazardous waste 
generated at remote locations and hazardous waste generated at the UCCF 
itself. The Utility must comply with the requirements of 40 CFR 
262.34(a)-(c) (requirements for large quantity generators), regardless 
of the total quantity of waste generated or consolidated each calender 
month (see, Sec. 262.90(b)(4)(i)).
2. USWAG Comment
    USWAG is an informal consortium of the Edison Electric Institute, 
the American Public Power Association, the National Rural Electric 
Cooperative Association, and about 80 electric utilities located 
throughout the country. In its comment, USWAG states that (1) ``the 
current hazardous waste reporting and waste consolidation rules are 
inefficient and increase costs when applied to electric utility 
individual `remote locations;' '' (2) ``the NYSDEC Project XL will 
provide regulatory flexibility and costs savings to electric utilities 
by reducing the paperwork burdens and waste consolidation restrictions 
under the current hazardous waste rules;'' and (3) ``the NYSDEC Project 
XL will not only maintain the same levels of environmental protection 
and public safety under existing rules, but will facilitate their 
improvement.'' USWAG, like ConEd, requests that EPA clarify that 
hazardous waste generated at a UCCF can also be consolidated at the 
UCCF in accordance with the terms of this XL rule. As discussed above, 
EPA agrees and has clarified Sec. 262.90(b) of the rule accordingly. 
USWAG also requests that EPA clarify the meaning of the term, 
``generation event.'' USWAG suggests that a ``generation event'' ends 
when the utility has completed the removal of the hazardous waste from 
inside the manhole, oil or gas pipeline, or other remote location. EPA 
agrees that the term ``generation event'' should be clarified. One of 
the purposes of this XL project is to improve the existing situation in 
which hazardous waste generated at an unstaffed or unsecure remote 
location can remain at that site, unsupervised, for extended periods of 
time. Thus, EPA's intent with this rule is that waste that is collected 
from a manhole or other remote location will not remain at a remote 
location where it might be unsupervised prior to being transferred to a 
UCCF. In light of this comment, EPA believes that use of the term 
``generation event'' is insufficient to indicate when hazardous waste 
must be transferred from a remote location to the UCCF. EPA has 
modified the rule to clarify that hazardous waste must be transferred 
from the remote location to a UCCF immediately following collection of 
all hazardous waste at the remote location or when the staff collecting 
the hazardous waste leave the remote location, whichever comes first. 
This approach will ensure that hazardous waste that is collected at a 
remote location is never left unsupervised and that it does not 
unnecessarily remain on-site for extended periods of time. For example, 
if it takes Utility workers several days to collect all the hazardous 
waste at a remote location, but the workers leave the remote location 
at the end of each day, the hazardous waste collected during the course 
of the day will have to be transported to the UCCF when the workers 
leave the remote location. Alternatively, hazardous waste must be 
transported to the UCCF once all the hazardous waste at the remote 
location has been collected, even if utility staff remain at the remote 
location.
    In addition, USWAG requests that EPA ``consider eliminating the 
requirement that remote locations comply with the identification number 
and manifesting requirements in order to further reduce unnecessary, 
time-consuming and costly paperwork burdens.'' EPA did not intend that 
each remote location would be required to have an individual 
identification number under this project. Rather, under this project, 
the identification number of the UCCF will also be used by its remote 
locations (see, section II.C. above). With respect to the manifesting 
requirements, EPA does not consider the manifest requirements of 40 CFR 
part 262, subpart B (incorporated by reference in today's rule) to be 
unnecessary. Hazardous waste generated at remote locations and 
transported to a UCCF will be traveling on public roads, and thus EPA 
believes that the tracking and emergency response functions served by 
these requirements are still necessary. Moreover, this project is 
focused on experimenting with flexibility regarding hazardous waste 
consolidation, not flexibility with regard to manifest preparation.
3. Niagara Mohawk Comment
    In its comment, Niagara Mohawk supports the initiative proposed by 
this rule and asserts that it will provide substantial regulatory 
relief to the utility industry while reducing environmental impact. 
However, Niagara Mohawk believes that the rule contains two 
requirements that are disincentives to participation. First, it 
believes that the public notice requirements are excessive. 
Specifically, Niagara Mohawk asserts that placing a public notice in a 
newspaper of local circulation should be sufficient and that two 
additional outreach methods are unnecessary. EPA disagrees. Stakeholder 
involvement is one of the criteria for XL projects. The provision of 
two methods of public notice in addition to a public notice in the 
newspaper will help to ensure that all interested members of the 
community will be aware of, and able to participate in the process of 
designating UCCFs. Second, Niagara Mohawk requests a utility exemption 
from the need to obtain a permit under 6 NYCRR part 364. Niagara Mohawk 
is referring to a New York State requirement that a transporter of 
hazardous waste obtain a permit. This requirement is a state-only 
requirement and can be addressed by NYSDEC. It is not appropriate for 
EPA to address this issue in this federal rulemaking.

[[Page 37630]]

4. ASLF Comment
    ASLF agrees that the portion of the project pertaining to RCRA 
identification numbers and biennial reports will achieve RCRA 
objectives in a superior manner while achieving cost savings. ASLF 
does, however, raise a number of concerns regarding the consolidation 
of remote location hazardous waste at a UCCF.
a. RCRA Permits
    ASLF asserts that RCRA section 3005(a) requires that a UCCF obtain 
a permit before it can accept waste from a Utility remote location. EPA 
disagrees. RCRA section 3005(a) requires treatment, storage, and 
disposal facilities (TSDFs) to obtain permits. RCRA section 3002 
establishes separate requirements for generators. Thus, the statute 
clearly recognizes that generators and TSDFs are separate classes of 
regulated entities subject to different regulatory regimes, although it 
does not clearly specify where the line between these classes of 
regulated entities is drawn. Specifically, it does not identify at what 
point a generator's waste handling activities become ``treatment'' or 
``storage'' under the statute such that the generator becomes a TSDF. 
EPA believes it is clear that some amount of waste handling by a 
generator must fall outside the scope of the RCRA TSDF requirements; 
otherwise, virtually every generator in the country would also be a 
TSDF and the distinction between the two classes of regulated entities 
would be meaningless. EPA does not believe that Congress intended that 
every entity in the country that generates hazardous waste become a 
TSDF subject to the requirement to obtain a RCRA permit.
    In the case of hazardous waste generated at Utility remote 
locations and consolidated at a central collection facility, EPA 
believes it is inappropriate to require a UCCF to obtain a permit 
because it is not acting as a TSDF. Rather, the consolidation of remote 
location hazardous waste at the UCCF is an activity that is incidental 
to the Utility's operations. As discussed previously, the purpose of 
consolidating hazardous waste at the UCCF prior to transportation to a 
TSDF is to ensure that remote location hazardous waste is not left in 
an unsecured, unstaffed location and to achieve transportation 
efficiencies. These are issues that the Utilities face as generators of 
hazardous waste. For this reason, EPA believes that RCRA does not 
prohibit the participating Utilities from consolidating remote location 
hazardous waste for up to 90 days at a UCCF without a TSDF permit. In 
addition, EPA believes that the procedural and substantive requirements 
that participating Utilities will have to comply with in order to 
consolidate remote location waste at a UCCF ensure the protection of 
human health and the environment. These requirements include that 
hazardous waste can only be held at a UCCF for a limited duration (up 
to 90 days) and such waste must be held in units that are managed in 
accordance with specified technical requirements in 40 CFR part 265, as 
well as with additional requirements for closure and secondary 
containment of containers. Utilities will also have to comply with 
personnel training, contingency planning, and other emergency 
preparedness and prevention requirements, and they will be subject to 
both general and unit-specific closure requirements. In addition, the 
regulatory agency may impose additional conditions on the operation of 
a particular UCCF if it determines that the requirements identified in 
this rule may not fully protect human health and the environment. 
Finally, the designation of a particular UCCF is subject to public 
notice and comment (including the opportunity for a public meeting if 
the regulatory agency determines such a meeting is warranted) and must 
be approved by the regulatory agency. If the regulatory agency believes 
that the designation of a UCCF will not ensure protection of human 
health and the environment, the UCCF will be rejected as provided for 
in Sec. 262.90(e)(4).
    This limited exemption is, in fact, necessary in order to provide 
utilities with the incentive to more immediately remove hazardous waste 
generated at unstaffed remote locations. If permitting were required, 
utilities who permitted their facilities would incur high transaction 
costs as a result of lengthy permitting procedures and high state 
permitting fees. Utilities have not found permitting of these 
facilities to be cost-effective, and utilities are thus unlikely to 
permit them. As a result, waste is generally sent to non-utility-owned 
permitted facilities. Because utilities await authorization from these 
TSD facilities prior to transport, the waste remains at the remote 
location for several days. EPA is entering into this project to 
experiment with ways to avoid this situation and allow waste to be 
removed from remote locations faster. In fact, this project idea was 
initiated when three utilities independently expressed concern to New 
York State that the storage of hazardous waste ``on-site'' at remote 
locations was a problem in terms of potential liability, traffic 
disruption, accidental releases and attendant environmental damage, and 
vandalism.
    ASLF also asserts that the Agency has reopened the issue of its 
authority to exempt 90-day generator on-site accumulation units from 
the RCRA permit requirement. EPA disagrees. EPA has never indicated in 
any way that it intended to reconsider the existing regulatory 
provisions for the on-site accumulation of hazardous waste. EPA did not 
propose to amend or otherwise modify the existing provisions for on-
site accumulation of hazardous waste, nor did the Agency solicit 
comment on these provisions. Today's rule is limited to the off-site 
consolidation of hazardous waste for a limited class of hazardous waste 
generators. It does not in any way affect the existing requirements for 
on-site accumulation of hazardous waste.
1. Utility-owned Rights-of-Way and Remote Locations
    ASLF states that the rule excludes from ``permitting a storage or 
treatment facility simply because it is located along a utility right-
of-way, and would thereby regulate the entire right-of-way as if it 
were one onsite individual generation location,'' and concludes that 
the rule extends the current provisions for on-site accumulation beyond 
their limits. EPA disagrees. Today's rule is not intended to treat a 
utility right-of-way as one site (see, e.g., Sec. 262.90(b)(1) which 
requires participating utilities to manifest hazardous waste shipments 
from a remote location to an off-site UCCF). EPA did not include the 
notion of the Utility right-of-way in today's rule for any reason other 
than to limit the waste a UCCF may receive. By linking the definition 
of ``remote location'' to a Utility's right-of-way network, the rule 
ensures that a UCCF may only receive waste generated by that Utility at 
predictable and expected locations. Finally, today's rule is not 
intended to be an ``extension'' of the existing provisions for on-site 
accumulation, rather it is a distinct set of requirements under which 
participating Utilities can consolidate remote location waste at off-
site UCCFs.
    ASLF further states that some ``rights-of-way may include hundreds 
of miles of rural areas where the utility may actually own (or operate) 
little or none of the land'' and that concepts of contiguous ownership 
inherent in EPA's definition of ``facility'' are disregarded. As 
discussed above, today's rule is not intended to treat a Utility right 
of way as one site or one facility.

[[Page 37631]]

2. Small Quantity Generator Exclusion
    ASLF notes that this rule does not modify the small quantity 
generator exclusion threshold for individual remote locations, and 
asserts that this is inconsistent with otherwise regulating ``the 
entire right-of-way as one collective onsite generator location.'' As 
discussed above, this rule does not regulate a right-of-way as one 
site. In addition, it is not the intent of the rule to subject 
Conditionally Exempt Small Quantity Generator waste (i.e., hazardous 
waste that does not exceed 100 kilograms per calender month) generated 
at individual remote locations to increased regulation. Thus, a Utility 
may continue to follow the requirements for Conditionally Exempt Small 
Quantity Generators (CESQGs) at 40 CFR 261.5 for CESGQ waste generated 
at individual remote locations that is not sent to a UCCF. If, however, 
a Utility chooses to send CESQG waste generated at individual remote 
locations to its UCCF, that waste will be subject to the requirements 
of Sec. 262.90 (see 40 CFR 262.90(b)).
3. Quantity Limits
    ASLF expresses concern that the rule does not include quantity 
limits restricting the consolidation of large quantities of waste at 
each UCCF, particularly because UCCFs may be located at or near 
population centers. EPA agrees that there may be circumstances where it 
will be necessary to limit the amount of hazardous waste that may be 
consolidated at a particular UCCF; however, EPA does not believe it is 
necessary to impose a universal limit on all UCCFs regardless of their 
particular circumstances. Instead, the rule provides that such 
restrictions may be imposed on a UCCF on a case-by-case basis at the 
time the UCCF is approved (see, 40 CFR 262.90(e)(3)). In addition, EPA 
has modified the rule to require the inclusion in the utilities' Annual 
Report of the total tonnage of each type of hazardous waste handled at 
each UCCF. This information will enable EPA to conduct reviews to 
determine whether the approach is working. If this experiment is later 
extended to the rest of the nation, the collection of this data will 
assist EPA in determining whether quantity limits should be imposed.
4. Substantive TSDF Requirements
    ASLF voices concern that some of the substantive requirements 
applicable to permitted TSDFs would not apply to UCCFs. Specifically, 
ASLF highlights that a UCCF would not be subject to the following 
standards: (1) Secondary containment for container storage areas; (2) 
clean closure of container storage areas; and (3) facility wide 
corrective action. At the time of proposal, EPA did not consider 
additional requirements for containers because, given the types of 
hazardous waste generated at utility remote locations, it is unlikely 
that the utilities will be consolidating hazardous waste in containers. 
Upon consideration of ASLF's comment, however, EPA agrees that 
additional requirements for containers may be appropriate to include as 
part of this XL project in the event that containers are used to 
consolidate hazardous waste. As a result, EPA has included in today's 
rule a requirement for secondary containment of containers that is 
based on New York State requirements currently applicable to all 
generators (i.e., requirements that are not currently federal 
requirements). This requirement is that participating Utilities 
operating a UCCF that holds liquid hazardous waste in containers must 
provide secondary containment for those containers under two sets of 
circumstances: (1) If the UCCF is consolidating 8,800 gallons or more 
of liquid hazardous waste at any time; and (2) if the UCCF is 
consolidating 185 gallons or more of liquid hazardous waste at any time 
and is located in an area designated by New York State that overlays a 
sole-source aquifer (this would include, for example, areas in 
Brooklyn, Queens, and Long Island). In addition, EPA has incorporated 
the closure requirements of 40 CFR 264.178 for containers into today's 
rule. EPA does not, however, believe that it is appropriate to require 
corrective action because the purpose of today's rule is to provide 
flexibility so that utilities will have an incentive to quickly remove 
hazardous waste generated at remote locations to a secure location. 
Because facility-wide corrective action can be extremely expensive, 
imposing such a requirement would likely create a disincentive to the 
very behavior the Agency seeks to promote. Overall, EPA believes 
today's rule will result in hazardous waste management practices that 
provide a benefit of superior protection of human health and the 
environment as compared with current practices. In addition, if a UCCF 
is not operated in compliance with the terms of today's rule, it may be 
deemed a treatment, storage or disposal facility subject to enforcement 
or corrective action under RCRA section 3008 or section 3004. 
Furthermore, UCCFs participating in this project remain subject to 
enforcement or cleanup authorities under RCRA and other environmental 
statutes (e.g., RCRA section 7003, CERCLA section 106).
5. Public Participation
    ASLF is also concerned that certain procedural rights associated 
with permitted facilities may not apply under this rule. In particular, 
ASLF expresses concern regarding (1) reduced public notice requirements 
at the time a facility is first proposed for designation; (2) lack of 
an opportunity to administratively appeal the approval of a facility; 
(3) lack of opportunity to review and comment on closure plans; and (4) 
no formal opportunity to seek modifications of an approval once it is 
issued. With respect to public notice requirements, EPA believes the 
types of public outreach required at the time that the UCCF is proposed 
are sufficient to ensure that all interested parties will be notified 
about a proposed UCCF. However, to further ensure that notice of a 
proposed UCCF designation is provided to all interested parties, EPA 
has modified the rule to ensure that the parties who commented on the 
proposed rule for this XL project are notified by a Utility when that 
Utility seeks approval for a particular UCCF. Today's rule also 
includes other requirements to ensure public involvement in the 
decision process for UCCFs. Utilities are required to respond to all of 
the comments that are submitted at the time that the UCCF is proposed. 
EPA has also modified the rule to clarify that the regulatory agency 
responsible for deciding whether to approve a particular UCCF will also 
respond to all of the comments submitted at the time that the UCCF is 
proposed, and consider these comments in determining whether or not to 
approve the UCCF, impose restrictions on the approval, or hold a site-
specific meeting. EPA has also modified the rule to require that 
notification of the decision on whether or not to approve the UCCF be 
sent to each party that commented on the proposed designation.
    ASLF expresses concerns about the lack of an opportunity to 
administratively appeal the approval of a facility. ASLF is correct 
that this rule provides no opportunity for administrative appeals 
following the regulatory agency's decision regarding designation of a 
UCCF; however, as part of this XL initiative there will be an annual 
opportunity for public input on the continued operation of a UCCF. As 
it does for all XL projects, EPA will be conducting annual evaluations 
of this project's progress. At the time of the evaluation, EPA will 
solicit public comment on how the project is progressing, and will 
contact all persons

[[Page 37632]]

who have expressed an interest in the project as a whole or in 
particular UCCFs. Where information provided by the public indicates a 
Utility or UCCF is not operating in compliance with today's rule, EPA 
may consider taking appropriate enforcement action or terminating or 
suspending a Utility or UCCF from the project. In addition, EPA will 
consider comments on a UCCF that are submitted at any time during the 
project.
    ASLF comments that it is unclear whether there will be an 
opportunity for judicial review of the regulatory agency's approval of 
a particular UCCF. As discussed in section II.B., NYSDEC will be the 
primary regulatory authority responsible for implementing the 
requirements of this rule and will therefore be the regulatory agency 
determining whether or not a UCCF may be approved to participate. Thus, 
the right to judicial review of the approval of a particular UCCF would 
be governed by the State Administrative Procedures Act.
    ASLF expresses concern that there is no formal opportunity to seek 
modifications of a UCCF approval once it is issued. ASLF is correct 
that this rule will provide no formal opportunity for the public to 
request a modification of a UCCF approval. EPA notes, however, that 
there is also no formal opportunity for the public to request 
modification of a RCRA permit once it is issued. As discussed above, as 
part of this XL initiative, there will be an annual opportunity for 
public input regarding continued operation of a UCCF. Each year, EPA, 
using the annual reports that utilities are required to file with the 
regulatory agency as a starting point, will evaluate the progress of 
the project. EPA conducts this annual evaluation for all XL projects. 
At the time of the evaluation, EPA will solicit public comment on how 
the project is progressing. At this point in time, EPA will contact all 
persons who have expressed an interest in the project as a whole or in 
particular UCCFs. In addition, EPA will consider comments on a UCCF 
that are submitted at any time during the project. Where information 
provided by the public indicates a Utility or UCCF is not operating in 
compliance with today's rule, EPA or NYSDEC may consider taking 
appropriate enforcement action or terminating or suspending a Utility 
or UCCF from the project.
    ASLF is also concerned about the lack of opportunity to review and 
comment on closure plans for UCCFs. In response, EPA wishes to clarify 
that there is no opportunity for public review on closure plans because 
utilities are not required to develop closure plans to participate in 
this XL project. Under today's rule, utilities are required to comply 
with general and unit-specific closure requirements, but they are not 
required to develop closure plans.
    Finally, EPA notes that the appropriate baseline against which the 
environmental benefits of this project should be measured is the status 
quo, under which waste is accumulated at remote locations without any 
of these public participation opportunities. EPA does not believe that 
a comparison to the safeguards provided at permitted facilities is 
meaningful, since (with limited exceptions) the utilities have not 
chosen to obtain permits and are not required to do so.
b. Need for Flexibility Provided by Rule
1. Transfer Facilities and Other Existing Provisions
    ASLF suggests that existing regulatory provisions, such as 
requirements for transfer facilities (where hazardous waste may be held 
for up to 10 days as part of the normal course of transportation) could 
be sufficient to deal with the problem identified in this rulemaking. 
ASLF also states that emergency identification numbers are available, 
and some utilities are licensed to transport the waste. EPA does not 
believe these options are generally sufficient to deal with the 
identified problems. First, none of these options help a utility to 
remove hazardous waste from a remote location more quickly if the only 
place that it can ultimately be transported to is a TSDF. Under current 
regulations, prior to transport to a TSDF or a transfer facility, a 
utility must complete a manifest, which includes identifying the name 
of the TSDF (regardless of whether the waste will be held at a transfer 
facility during the course of transportation to that TSDF). The 
requirements for holding hazardous waste at a transfer facility include 
that the hazardous waste be manifested. Since the waste cannot be taken 
to a TSDF or even manifested unless the TSDF grants its permission, 
utilities do not, in practice, transport the waste until authorization 
from the TSDF is received. Waiting for authorization from the TSDF can 
cause a delay of two to three days before the hazardous waste can be 
removed from the remote location. By allowing the utility to transport 
waste directly to the UCCF, this rule facilitates more immediate 
transport of the hazardous waste. Also, while waste may be held at a 
transfer facility for up to 10 days, the utilities have not found this 
time period to be long enough to provide a meaningful opportunity to 
consolidate the hazardous waste generated at remote locations so that 
the hazardous waste can be transported to a TSDF in a cost-effective 
manner. The reason that 10 days is insufficient is that utilities 
cannot predict how much waste will be removed from each remote location 
or how the hazardous waste generated at each remote location will 
combine to make an efficient load.
2. Utilities Could Obtain Permits
    ASLF states that there is no evidence in the rulemaking record that 
utilities are unable to obtain a RCRA permit where necessary or 
advantageous to do so. ASLF states that utilities can obtain permits 
under current regulations so the flexibility provided by this rule is 
unnecessary. EPA disagrees with the assertion that the flexibility 
provided by this rule is unnecessary. While utilities may obtain 
permits for UCCFs under current regulations, in practice they generally 
do not because of the high cost of obtaining a permit and paying annual 
state permit fees.1 This project is an experiment to 
determine if an alternate regulatory approach can create incentives for 
utilities to expedite the removal of hazardous waste from remote 
locations and to achieve transportation efficiencies. As discussed in 
section II.A., the overall purpose of Project XL is to experiment with 
untried, potentially promising regulatory approaches. EPA believes that 
this approach will accomplish faster removal of hazardous waste and 
result in superior environmental performance. The proposed rule was 
developed based on EPA's understanding from communications with NYSDEC 
and various New York State utilities. Confirmatory information 
supporting this final rule that addresses this point has been included 
in the rulemaking record.
---------------------------------------------------------------------------

    \1\ There are currently five TSDFs operating under a RCRA permit 
and owned by a utility in all of New York State. However, not all 
utilities currently own or operate a permitted TSDF and of those 
that do, the TSDF may not be accessible to all of their remote 
locations. Whether a utility already owns or operates a TSDF will be 
an issue considered by the regulatory agency when it decides whether 
to approve a designation of a particular UCCF.
---------------------------------------------------------------------------

3. Delays in Securing Hazardous Waste Transporters
    ASLF expresses concern that, to the extent that securing the 
services of a hazardous waste transporter is the cause of the delay in 
removing hazardous waste from a remote location, this project will not 
solve that problem. EPA has not found that the delay in removing 
hazardous waste from the remote locations is generally a result of

[[Page 37633]]

having to secure a licensed transporter, but rather of having to obtain 
authorization from the TSDF before that TSDF can be entered on the 
manifest (see (4)(b)(2) above). To the extent that securing a 
commercial transporter is a problem, this rule will address it because 
allowing the Utilities to transport waste to a UCCF will mean that 
Utilities could remove the waste immediately with their own licensed 
transporters.
4. Existence of Delays in Hazardous Waste Removal
    ASLF comments that the rulemaking record does not contain any 
evidence that the delay in transporting hazardous waste from remote 
locations actually occurs and that there is no analysis of why a delay 
should ever occur. For an explanation of why this delay occurs, see 
section III. A.4.b.1. Regarding the rulemaking record, the proposed 
rule was developed based on EPA's understanding from communications 
with NYSDEC and various New York State utilities. Confirmatory 
information supporting this final rule that addresses these points has 
been included in the rulemaking record.
5. Streamlined Permits
    ASLF questions why EPA did not consider an option of a streamlined 
permit for UCCFs because streamlined permitting in general is being 
considered by EPA's Office of Solid Waste. Under Project XL potential 
participants are invited to develop their proposals for common sense, 
cost-effective strategies that will replace or modify specific 
regulatory requirements and result in superior environmental benefits. 
Project XL is intended to allow EPA to experiment with these proposals 
to assess whether they provide benefits at the specific facility 
affected, and whether they should be considered for wider application. 
In this case, several Utilities and NYSDEC proposed this approach to 
EPA. This approach provides a commonsense way to ensure the fast 
removal of hazardous waste from remote locations. Because of the 
hazards involved in leaving the waste at the remote locations, EPA has 
determined that this project is beneficial to human health and the 
environment and is worth evaluating as an alternative to the existing 
system.
c. Environmental Benefits
    ASLF also expresses concern over the environmental benefits of the 
project. ASLF states that the immediate removal of hazardous waste from 
remote locations is not derived from the exemption from permitting 
requirements for UCCFs. EPA disagrees. As discussed above, nothing 
currently prevents utilities from leaving hazardous waste at unstaffed, 
unsecured remote locations. In fact, there is generally, a two to three 
day delay in the transport of the hazardous waste from the remote 
locations (after all the hazardous waste is collected) because 
utilities wait for TSDF authorization prior to listing the TSDF on the 
manifest and transporting the waste. While utilities may obtain permits 
for UCCFs under current regulations, in practice they generally do not. 
This project is an experiment to determine if an alternate regulatory 
approach can create incentives for utilities to expedite the removal of 
hazardous waste from remote locations and to achieve transportation 
efficiencies. ASLF questions the amount of environmental benefits 
resulting from the consolidation of waste resulting in fewer vehicle 
trips. While EPA does not consider this environmental benefit in of 
itself to constitute superior environmental performance, EPA believes 
that a reduction in vehicle trips does create some environmental 
benefit. EPA considers all of the environmental benefits as a whole 
when deciding whether a project achieves superior environmental 
performance. ASLF also expresses concern that the utilities may choose 
the environmental projects. EPA views this as one of the areas of 
experimentation under this project. Because utilities know their 
facilities and operations better than EPA, they should know where they 
can achieve the greatest environmental benefit. Thus, EPA is 
experimenting with giving the utilities discretion to choose the best 
environmental projects for their particular facilities. These 
environmental projects, as well as the amount of money spent, must be 
described in the utilities' annual reports. As discussed above, as in 
all XL projects, EPA will solicit public comment on the project when it 
evaluates the annual reports. EPA will consider these comments in 
determining whether the approval of individual UCCFs and the project as 
a whole provide sufficient environmental benefits. In addition, if the 
regulatory agency finds that the environmental projects are a sham, the 
regulatory agency has the authority to terminate a UCCF's approval or a 
utility's participation in this project.
    ASLF also expresses concern that the determination of whether an 
environmental project is otherwise required by law is subject to 
interpretation. EPA believes that the regulatory agencies have the 
knowledge and expertise to determine whether a particular environmental 
project is otherwise required by law. If a Utility chooses a project 
that it is otherwise required to do, the regulatory agency has the 
authority to terminate a UCCF's approval or a utility's participation 
in this project.
    ASLF is concerned that there is no opportunity for public input 
into the areas of reinvestment chosen by the utilities. EPA disagrees. 
The public may provide suggestions to the utilities about the 
environmental projects chosen by the utilities at any time. In 
addition, when EPA conducts its annual evaluation of this project, it 
will solicit public input on the benefit of the environmental projects 
chosen by the utilities. All information received from the public will 
be included in EPA's annual evaluation of the project. EPA will also 
provide this information to NYSDEC and the relevant utilities.

IV. Additional Information

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

    The Regulatory Flexibility Act (RFA) generally requires an Agency 
to conduct a Regulatory Flexibility analysis of any rule subject to 
notice and comment

[[Page 37634]]

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. EPA believes that in 
determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the required analyses is to identify and address 
regulatory alternatives ``which minimize any significant economic 
impact of the proposed [or final] rule on small entities.'' 5 U.S.C. 
603 and 604. Thus, EPA may certify as not having a significant economic 
impact on a substantial number of small entities rules that relieve 
regulatory burden, or otherwise have a positive economic effect on the 
small entities subject to the rule. EPA has concluded that today's rule 
will relieve regulatory burden for all types of entities, including any 
affected small entities. Further, today's rule does not impose any 
requirements on any utility unless the utility opts to participate and 
receives approval to participate. Therefore, EPA certifies today's rule 
is unlikely to have a significant economic impact on a substantial 
number of small entities.

C. 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 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 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 January 10, 2000.

D. 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 is 
amending 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 this final 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.

E. 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 
private sector in any one year. Thus, today's rule is not subject to 
the requirements of sections 202 and 205 of the UMRA.

F. RCRA/HSWA

1. Applicability of Rules in Authorized States
    Under section 3006 of RCRA, EPA may authorize qualified states to 
administer and enforce the RCRA program for hazardous waste within the 
state. (See 40 CFR part 271 for the standards and requirements for 
authorization.) States with final

[[Page 37635]]

authorization administer their own hazardous waste programs in lieu of 
the federal program. Following authorization, EPA retains enforcement 
authority under sections 3008, 7003 and 3013 of RCRA.
    After authorization, rules written under RCRA provisions that 
predate the Hazardous and Solid Waste Amendments of 1984 (HSWA) no 
longer apply in the authorized state. New federal requirements imposed 
by those rules do not take effect in an authorized state until the 
state adopts the requirements as state law.
    In contrast, under section 3006(g) of RCRA, new requirements and 
prohibitions imposed by HSWA take effect in authorized states at the 
same time they take effect in nonauthorized states. EPA is directed to 
carry out those requirements and prohibitions in authorized states 
until the state is granted authorization 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. It is EPA's understanding that subsequent to 
the promulgation of this rule, New York State intends to propose a rule 
containing equivalent provisions. EPA may not enforce these 
requirements until it approves the State requirements as a revision to 
the authorized State program.

G. 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 EO 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 E.O. 13045 because it is not an 
economically significant rule as defined by E.O. 12866, and because it 
does not involve decisions on environmental health or safety risks that 
may disproportionately affect children.

H. Executive Order 12875: Enhancing Intergovernmental Partnerships

    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 or EPA consults with those governments. If EPA complies by 
consulting, E.O. 12875 requires EPA to 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.'' 
Today's rule does not create a mandate on State, local or tribal 
governments. The rule does not impose any enforceable duties on these 
entities. Accordingly, the requirements of section 1(a) of Executive 
Order 12875 do not apply to this 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 or EPA consults with those 
governments. If EPA complies by consulting, E.O. 13084 requires EPA to 
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 officials 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 rule does not significantly or uniquely 
affect the communities of Indian tribal governments. Accordingly, the 
requirements of section 3(b) of Executive Order 13084 do not apply to 
this rule.

J. 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.

List of Subjects

40 CFR Part 9

    Reporting and recordkeeping requirements.

40 CFR Part 262

    Environmental protection, Hazardous materials transportation, 
Hazardous waste, Packaging and containers, Reporting and recordkeeping 
requirements.

40 CFR Part 264

    Environmental protection, Hazardous waste, Packaging and 
containers, Reporting and recordkeeping requirements.

40 CFR Part 265

    Environmental protection, Hazardous waste, Packaging and 
containers, Reporting and recordkeeping requirements.

40 CFR Part 270

    Environmental protection, Hazardous waste, Recordkeeping 
requirements.


[[Page 37636]]


    Dated: July 1, 1999.
Carol M. Browner,
Administrator.

    For the reasons set forth in the preamble, parts 9, 262, 264, 265, 
and 270 of title 40 of the Code of Federal Regulations are amended as 
follows:

PART 9--[AMENDED]

    1. The authority citation for part 9 continues to read as follows:

    Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003, 
2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 1321, 1326, 1330, 
1342, 1344, 1345 (d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, 
1971-1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g, 
300g-1, 300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2, 
300j-3, 300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542, 
9601-9657, 11023, 11048.

    2. In Sec. 9.1 the table is amended by adding a new entry in 
numerical order under the indicated heading to read as follows:


Sec. 9.1  OMB approvals under the Paperwork Reduction Act.

* * * * *

------------------------------------------------------------------------
                    40 CFR citation                      OMB Control No.
------------------------------------------------------------------------
 
*                  *                  *                  *
                  *                  *                  *
Standards Applicable to Generators of Hazardous Waste
 
*                  *                  *                  *
                  *                  *                  *
    262.90(c), (d), (f), (g)...........................        2010-0026
 
*                  *                  *                  *
                  *                  *                  *
------------------------------------------------------------------------

PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE

    1. The authority citation for part 262 continues to read as 
follows:

    Authority: 42 U.S.C. 6906, 6912, 6922-6925, 6937, and 6938.

    2. Subpart I consisting of Sec. 262.90 is added to read as follows:

Subpart I--New York State Public Utilities


Sec. 262.90  Project XL for Public Utilities in New York State.

    (a) The following definitions apply to this section:
    (1) A Utility is any company that operates wholesale and/or retail 
oil and gas pipelines, or any company that provides electric power or 
telephone service and is regulated by New York State's Public Service 
Commission or the New York Power Authority.
    (2) A right-of-way is a fixed, integrated network of aboveground or 
underground conveyances, including land structures, fixed equipment, 
and other appurtenances, controlled or owned by a Utility, and used for 
the purpose of conveying its products or services to customers.
    (3) A remote location is a location in New York State within a 
Utility's right-of-way network that is not permanently staffed.
    (4) A Utility's central collection facility (UCCF) is a Utility-
owned facility within the Utility's right-of-way network to which 
hazardous waste, generated by the Utility at remote locations within 
the same right-of-way network, is brought.
    (b) A UCCF designated pursuant to paragraph (e) of this section may 
consolidate hazardous waste (with the exception of mixed waste) 
generated by that Utility at its remote locations (and at that UCCF) 
for up to 90 days without a permit or without having interim status, 
provided that:
    (1) The Utility complies with all applicable requirements for 
generators in 40 CFR part 262 (except Sec. 262.34 (d) through (f)) for 
hazardous waste generated at its remote locations and at the UCCF, 
including the manifest and pretransport requirements for all shipments 
greater than 100 kilograms sent from a remote location to a UCCF.
    (2) The Utility transports the hazardous waste from the remote 
location to a UCCF immediately after collection of all hazardous waste 
at the remote location is complete or when the staff collecting the 
hazardous waste leave the remote location, whichever comes first.
    (3) The Utility complies with all applicable requirements for 
transporters in 40 CFR part 263 for each shipment of hazardous waste 
greater than 100 kilograms which is sent from remote location to the 
UCCF, and all applicable Department of Transportation requirements.
    (4) (i) The Utility complies with 40 CFR 262.34 (a) through (c), 
regardless of the total quantity of hazardous waste generated or 
consolidated at the UCCF per calendar month;
    (ii) The Utility complies with 40 CFR 264.178; and
    (iii) Secondary containment is provided for all liquid hazardous 
waste consolidated in containers if:
    (A) The UCCF is consolidating 8,800 gallons or more of liquid 
hazardous waste, or
    (B) The UCCF is consolidating 185 gallons or more of liquid 
hazardous waste and is located in an area designated by New York State 
that overlays a sole-source aquifer.
    (5) The Utility submits a biennial report in accordance with 40 CFR 
262.41 including all hazardous waste shipped from remote locations to 
the UCCF. This UCCF biennial report may be submitted in lieu of 
submitting a biennial report for each remote location. However, for 
hazardous waste generated at a particular remote location that exceeds 
1000 kg per calendar month and that is not sent to the UCCF, the 
Utility must submit a separate biennial report.
    (6) Waste generated at a remote location that is not sent to a UCCF 
is managed according to the requirements of parts 260 through 270 of 
this chapter.
    (7) The Utility maintains records at the UCCF in accordance with 
all the recordkeeping requirements set forth in subpart D of 40 CFR 
part 262, including 40 CFR 262.40, and maintains records on any PCB 
test results for hazardous wastes brought to the facility from remote 
locations.
    (8) The UCCF obtains an EPA identification number.
    (9) The UCCF receives hazardous waste only from its remote 
location.
    (10) The Utility reinvests at least one-third of the direct savings 
described in paragraph (h) of this section in one or more 
environmentally beneficial projects, such as remediation or pollution 
prevention, that are over and above existing legal requirements and

[[Page 37637]]

that have not been initiated prior to the Utility's receipt of approval 
to consolidate hazardous waste pursuant to this section.
    (c) Utilities seeking to have UCCFs designated under paragraph (e) 
of this section must comply with the following requirements:
    (1) Any New York State Utility seeking approval to consolidate 
hazardous waste under this section must notify local governments and 
communities of the Utility's intent to designate specific UCCFs.
    (2) In carrying out paragraph (c)(1) of this section, the Utility 
must solicit public comment. In soliciting public comment, the Utility 
must use the notice method set forth in paragraph (c)(2)(i) of this 
section, as well as at least two of the methods set forth in paragraphs 
(c)(2)(ii) through (vii) of this section. Each Utility must also notify 
by mail all parties who commented on the proposed rule for this XL 
project.
    (i) A public notice in a newspaper of general circulation within 
the area in which each proposed UCCF is located;
    (ii) A radio announcement in each affected community during peak 
listening hours;
    (iii) Mailings to all citizens within a five-mile radius of 
proposed UCCF;
    (iv) Well-publicized community meetings;
    (v) Presentations to the local community board;
    (vi) Placement of copies of this section and the Final Project 
Agreement that explains the regulatory relief outlined in this section 
in the local library nearest the proposed UCCF, and inclusion of the 
name and address of the library in the newspaper notice; and
    (vii) Placement of copies of this section and the Final Project 
Agreement that explains the regulatory relief outlined in this section 
on the Utility's web site, and inclusion of the web site's address in 
the newpaper notice.
    (3) All outreach efforts made under paragraph (c)(2) of this 
section shall be prepared in English (and any other language spoken by 
a large number of persons in the community of concern) and at a minimum 
shall include the following information:
    (i) A brief description of the XL project, the intended new use of 
the facility, and a request for comments on the proposed UCCF.
    (ii) The name, if any, and address of the proposed UCCF and its 
current status under the RCRA Subtitle C program.
    (iii) The intended duration of use of the UCCF under the 
requirements of this section.
    (iv) Names, addresses, and telephone numbers of contact persons, 
representing the Utility, to whom questions or comments may be 
directed.
    (v) Notification of when the comment period of no less than 30 days 
will close.
    (4) Prior to the solicitation of public comment pursuant to 
paragraph (c)(2) of this section, the Utility must submit copies of 
each notice, announcement or mailing directly to local governments and 
to EPA.
    (5) At the close of the comment period, the Utility shall prepare a 
Responsiveness Package containing a summary of public outreach efforts, 
all comments and questions received as a result of its outreach 
efforts, and the Utility's written responses to all comments and 
questions. The Utility shall provide copies of its Responsiveness 
Package to any citizens that participated in the public notice process, 
local governments and EPA.
    (d) Upon completion of the public notice procedures described in 
paragraph (c) of this section, the Utility must provide written notice 
to EPA of its intent to participate. The Notice of Intent must contain 
the following information:
    (1) The name of the Utility, corporate address, and corporate 
mailing address, if different.
    (2) The name, mailing address, and telephone number of a corporate-
level contact person to whom communications and inquiries may be 
directed.This contact person may be changed by written notification to 
EPA.
    (3) A list of the names, addresses, and EPA identification numbers, 
if applicable, of all Utility-owned facilities in New York State that 
are proposed UCCFs and the names and telephone numbers of a designated 
contact person at each facility.
    (4) A summary of public outreach efforts undertaken pursuant to 
paragraph (c) of this section.
    (5) A commitment that one-third of the direct cost savings outlined 
in paragraph (h) of this section due to project participation will be 
reinvested in one or more environmentally beneficial projects which are 
over and above existing legal requirements and which have not been 
initiated prior to the Utility's receipt of approval to consolidate 
hazardous waste pursuant to this section.
    (6) An acknowledgment that the signatory is personally familiar 
with the terms and conditions of this section and has the authority to 
obligate and does obligate the Utility to comply with all such terms 
and conditions. The Utility shall comply with the signatory 
requirements set forth in 40 CFR 270.11(a)(1).
    (e) The procedures for designating UCCFs are as follows:
    (1) Subject to paragraphs (e)(2) through (5) of this section, the 
Utility and specified UCCF shall receive approval to comply with the 
requirements set forth in paragraph (b) of this section upon the 
receipt of written acknowledgment from EPA that the Notice of Intent 
described in paragraph (d) of this section has been received and found 
to be complete and in compliance with all the requirements set forth in 
paragraph (d) of this section. This acknowledgment will state whether 
the UCCF has been designated under this section and any additional 
limitations which have been placed on the UCCF.
    (2) Based on information provided and comments received during the 
public notice and comment period, EPA shall prepare a response to the 
comments received. The response to comments shall be attached to the 
acknowledgment described in paragraph (e)(1). Both the acknowledgment 
and the response to comments shall be sent to all persons who commented 
on the designation of the UCCF(s) that are the subject of the 
acknowledgment.
    (3) Based on information provided and comments received during or 
after the public notice and comment period, designated UCCFs may be 
rejected for the proposed use, or, if EPA determines that acceptance 
for the proposed use under the conditions of paragraph (b) of this 
section may not fully protect human health and the environment based on 
the Utility's compliance history or other appropriate factors, the 
acknowledgment may impose conditions in addition to those in paragraph 
(b) of this section.
    (4) If EPA determines that a site-specific informational public 
meeting is warranted prior to determining the acceptability of a 
designated UCCF, the acknowledgment will so state.
    (5) Subsequent to any public meeting, EPA may reject or prohibit 
UCCFs from participating in this project based on information provided 
or comments received during or after the public notice process or based 
on a determination that acceptance for the proposed use under the 
conditions of paragraph (b) of this section may not fully protect human 
health and the environment based on the Utility's compliance history or 
other appropriate factors.
    (f) At any time, a Utility may add or remove UCCF designations by 
complying with the following requirements:

[[Page 37638]]

    (1) A Utility may notify EPA of its intent to designate additional 
UCCFs. Such a notification shall be submitted to, and processed by, 
EPA, in the manner indicated in paragraphs (d) and (e) of this section.
    (2) To have one or more additional UCCFs designated, the Utility 
must comply with paragraph (c) of this section.
    (3) A Utility can discontinue use of a facility as a UCCF by 
notifying EPA in writing.
    (g) Each Utility that receives approval to consolidate hazardous 
waste pursuant to this section shall submit an Annual Progress Report 
with the following information for the preceding year:
    (1) The number of remote locations statewide for which hazardous 
waste was handled in accordance with paragraph (b) of this section.
    (2) The total tonnage of each type of hazardous waste handled by 
each UCCF.
    (3) The number of remote locations statewide from which 1,000 
kilograms or more of hazardous waste were collected per calendar month.
    (4) The number of remote locations statewide from which between 100 
and 1,000 kilograms of hazardous waste were collected per calendar 
month.
    (5) An estimate of the monetary value, on a Utility-wide basis, of 
the direct savings realized by participation in this project. Direct 
savings at a minimum include those outlined in paragraph (h) of this 
section.
    (6) Descriptions of the environmental compliance, remediation, or 
pollution prevention projects or activities into which the savings, 
described in paragraph (h) of this section, have been reinvested, with 
an estimate of the savings reinvested in each. Any such projects must 
consist of activities that are over and above existing legal 
requirements and that have not been initiated prior to the Utility's 
receipt of approval to consolidate hazardous waste pursuant to this 
section.
    (7) The addresses and EPA identification numbers for all facilities 
that served as UCCFs for hazardous waste from remote locations.
    (h) Utilities that receive approval to consolidate hazardous waste 
pursuant to this section must assess the direct savings realized as a 
result. Cost estimates shall include direct savings based on relief 
from any regulatory requirements, which the facility expects to be 
relieved from due to compliance with the provisions of this section 
including, but not limited to, the following:
    (1) Database management for each remote location as an individual 
generator;
    (2) Biennial Report preparation costs; and/or
    (3) Cost savings realized from consolidation of waste for 
economical shipment (including no longer shipping waste directly to a 
TSD from remote locations).
    (i) If any UCCF or Utility that receives approval under this 
section fails to comply with any of the requirements of this section, 
EPA may terminate or suspend the UCCF's or Utility's participation. EPA 
will provide a UCCF or Utility with 15 days written notice of its 
intent to terminate or suspend participation. During this period, the 
UCCF will have the opportunity to come back into compliance or provide 
a written explanation as to why it was not in compliance with the terms 
of this section and how it will come back into compliance. If EPA then 
issues a written notice terminating or suspending participation, the 
Utility must take immediate action to come into compliance with all 
otherwise applicable federal requirements. EPA may also take 
enforcement action against a Utility for non-compliance with the 
provisions of this section.
    (j) This section will expire on January 10, 2005.

PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE 
TREATMENT, STORAGE, AND DISPOSAL FACILITIES

    1. The authority citation for part 264 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.

    2. Section 264.1 is amended by adding paragraph (g)(12) to read as 
follows:


Sec. 264.1  Purpose, scope and applicability.

* * * * *
    (g) * * *
    (12) A New York State Utility central collection facility 
consolidating hazardous waste in accordance with 40 CFR 262.90.
* * * * *

PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF 
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES

    1. The authority citation for part 265 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6906, 6912, 6922, 6923, 6924, 6925, 
6935, 6936 and 6937.

    2. Section 265.1 is amended by adding paragraph (c)(15) to read as 
follows:


Sec. 265.1  Purpose, scope, and applicability.

* * * * *
    (c) * * *
    (15) A New York State Utility central collection facility 
consolidating hazardous waste in accordance with 40 CFR 262.90.
* * * * *

PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE 
PERMIT PROGRAM

    1. The authority citation for part 270 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and 
6974.

    2. Section 270.1 is amended by adding paragraph (c)(2)(ix) to read 
as follows:


Sec. 270.1  Purpose and scope of these regulations.

* * * * *
    (c) * * *
    (2) * * *
    (ix) A New York State Utility central collection facility 
consolidating hazardous waste in accordance with 40 CFR 262.90.
* * * * *
[FR Doc. 99-17347 Filed 7-9-99; 8:45 am]
BILLING CODE 6560-50-P