[Federal Register Volume 69, Number 47 (Wednesday, March 10, 2004)]
[Rules and Regulations]
[Pages 11322-11326]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-5368]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[FRL-7634-3]


Idaho: Final Authorization of State Hazardous Waste Management 
Program Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: Idaho applied to the United States Environmental Protection 
Agency (EPA) for final authorization of changes to its hazardous waste 
program under the Resource Conservation and Recovery Act (RCRA). On 
August 1, 2003, EPA published a proposed rule to authorize the changes 
and opened a public comment period. The comment period closed on 
September 15, 2003. Today, EPA has decided that these revisions to the 
Idaho hazardous waste management program satisfy all of the 
requirements necessary to qualify for final authorization and is 
authorizing these revisions to Idaho's authorized hazardous waste 
management program in today's final rule.

EFFECTIVE DATE: Final authorization for the revisions to the hazardous 
waste program in Idaho shall be effective at 1 p.m. e.s.t. on March 10, 
2004.

FOR FURTHER INFORMATION CONTACT: Jeff Hunt, WCM-122, U.S. EPA Region 
10, Office of Waste and Chemicals Management, 1200 Sixth Avenue, Mail 
Stop WCM-122, Seattle, Washington, 98101, phone (206) 553-0256.

SUPPLEMENTARY INFORMATION: 

A. Why Are Revisions to State Programs Necessary?

    States which have received final authorization from EPA under RCRA 
section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste 
program that is equivalent to and consistent with the Federal program. 
States are required to have enforcement authority which is adequate to 
enforce compliance with the requirements of the hazardous waste 
program. Under RCRA section 3009, States are not allowed to impose any 
requirements which are less stringent than the Federal program. Changes 
to State programs may be necessary when Federal or State statutory or 
regulatory authority is modified or when certain other changes occur. 
Most commonly, States must change their programs because of changes to 
EPA's regulations in title 40 of the Code of Federal Regulations (CFR) 
parts 124, 260 through 266, 268, 270, 273 and 279.
    Idaho's hazardous waste management program received final 
authorization effective on April 9, 1990 (55 FR 11015, March 29, 1990). 
EPA also granted authorization for revisions to Idaho's program 
effective on June 5, 1992 (57 FR 11580, April 6, 1992), on August 10, 
1992 (57 FR 24757, June 11, 1992), on June 11, 1995 (60 FR 18549, April 
12, 1995), on January 19, 1999 (63 FR 56086, October 21, 1998), and 
most recently on July 1, 2002 (67 FR 44069, July 1, 2002).
    Today's final rule addresses a program revision application that 
Idaho submitted to EPA on June 6, 2003, in accordance with 40 CFR 
271.21, seeking authorization of changes to the State program. On 
August 1, 2003, EPA published a proposed rule announcing its intent to 
grant Idaho final authorization for revisions to Idaho's hazardous 
waste program and provided a period of time for the receipt of public 
comments. The proposed rule can be found at 68 FR 45192.

B. What Were the Comments to EPA's Proposed Rule?

    EPA received one adverse comment letter during the comment period 
on the proposed rule. The comment letter was submitted by the 
Environmental Defense Institute, Keep Yellowstone Nuclear Free and 
David B. McCoy, collectively the commentors. EPA has taken into 
consideration the comments relating to the authorization of revisions 
to the Idaho hazardous waste management program in taking today's 
action. The issues raised by the commentors for purposes of this 
revision authorization and EPA's responses follow below.
    The commentors raised issues in the following areas: (1) The 
commentors asserted that EPA is obligated to delay issuing a final rule 
for authorization of these revisions to the Idaho hazardous waste 
management program until completion of an EPA Office of Inspector 
General (IG) investigation based on a petition submitted to the Office 
of Inspector General on August 8, 2000; (2) the commentors asserted 
that Idaho's intent to move forward with the closure plan for two high 
level radioactive waste (HLW) and mixed waste tanks at the Idaho 
National Engineering and Environmental Laboratory (INEEL) violates the 
recent U.S. District Court ruling in Natural Resources Defense Council, 
et al. v. Spencer Abraham (NRDC v. Abraham), Case No. 01-CV-413 (July 
3, 2003) and requires EPA intervention to ensure enforcement of the 
applicable law, in particular with respect to RCRA ``mixed waste;'' (3) 
the commentors asserted that the Tank Farm Facility (TFF) ``closure 
plan is in violation of RCRA since the DOE/ID has no INEEL RCRA Part B 
Permit;'' and (4) the commentors asserted that the Waste Calcine 
Facility (WCF) at the INEEL was improperly closed under RCRA because 
the facility closed with RCRA mixed waste and HLW in place. While these 
comments focused on a single facility in Idaho and the decisions made 
by DEQ regarding that facility, the commentors, both in the comment 
letter and in the numerous attachments thereto, implied that DEQ's 
actions at this facility had program-wide implications.
    In preparing its response to these comments, EPA reviewed, among 
other documents, the comments and their attachments, the available 
files on the particular permits and units, including the WCF and the 
TFF, and the recent ruling in NRDC v. Abraham, as well as the joint 
amicus brief submitted by the States of Idaho, Washington, Oregon and 
South Carolina, and the Memorandum of Points and Authorities filed on 
March 6, 2003 by the United States Department of Justice on behalf of 
the Department of Energy. The administrative record compiled for this 
final rule can be located by contacting the individual listed in the 
For Further Information Contact section of this rule.
    With respect to the first comment on the proposed rule, EPA does 
not agree that it is obligated to delay this action until completion of 
an IG investigation.\1\ The revisions to authorized hazardous waste 
programs are addressed in the regulations at 40 CFR 271.21. Program 
revisions are approved or disapproved by the Administrator based on the 
requirements of 40 CFR part 271 and the Resource Conservation and 
Recovery Act, as amended, (Act). See 40 CFR 271.21(b)(2). The 
Administrator has the discretion, among other things, to decline to 
approve a program revision as well as to withdraw approval of an 
authorized state program for cause. For purposes of today's action, EPA 
has determined, based on the administrative

[[Page 11323]]

record, that authorizing these revisions to Idaho's hazardous waste 
management program meets the requirements for authorization and 
continues to ensure that the authorized program in Idaho can meet the 
requirements for permitting, enforcement, and environmental protection 
at the INEEL facility and throughout the State of Idaho. The revisions 
in today's final rule include the rules in Idaho that add all delegable 
federal hazardous waste rules promulgated between July 1, 1998, and 
July 1, 2001 (with the exception of parts of the post closure rule), to 
the already existing hazardous waste program.
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    \1\ Nor did the IG reach such a conclusion in the Final 
Evaluation Report ``Review of EPA's Response to Petition Seeking 
Withdrawal of Authorization for Idaho's Hazardous Waste Program,'' 
Report No. 2004-P-00006, February 5, 2004. The IG did conclude that 
``Region 10 generally relied on appropriate regulatory requirements 
and standards in reaching its conclusion that evidence did not exist 
to commence proceedings to withdraw the State of Idaho's authority 
to run its RCRA Hazardous Waste program.''
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    EPA does not agree with the second assertion made by the 
commentors. The commentors asserted that Idaho's intent to move forward 
with the closure plan for HLW tanks at the INEEL violated the recent 
U.S. District Court ruling in NRDC v. Abraham, Case No. 01-CV-413 (July 
3, 2003), and requires EPA intervention to ensure enforcement of the 
applicable law, in particular with respect to RCRA ``mixed waste.'' The 
tanks which are of issue are tanks WM-182 and WM-183 located within the 
TFF at the INEEL. The tanks are subject to RCRA and the Department of 
Energy's (DOE) authority under the Atomic Energy Act (AEA), as DOE 
maintains, or to the Nuclear Waste Policy Act (NWPA), as the District 
Court concluded. The U.S. Department of Justice, on behalf of DOE, has 
appealed the NRDC v. Abraham decision to the Ninth Circuit Court of 
Appeals.
    The commentors failed to distinguish the RCRA ``mixed waste'' 
authority and its application to the tanks from those radioactive solid 
waste issues which may be the subject of the NWPA or the AEA. The State 
of Idaho joined the States of Oregon, South Carolina and Washington in 
an amicus brief to the Court to discuss the complex issues involved in 
the case of NRDC v. Abraham. The joint brief argued from the States' 
perspective that the DOE had to apply the definition of HLW under the 
NWPA to determine whether radioactive solid waste met the definition of 
HLW. The ruling, which the United States appealed, held that DOE did 
not have discretion to dispose of HLW in other than the type of 
repository required by the NWPA and that a DOE order, which set a DOE 
policy to make decisions on how to classify radiological waste, 
conflicted with the NWPA and was invalid.
    The Idaho Department of Environmental Quality (IDEQ) explained to 
the commentors by letter dated July 29, 2003, that the ruling might 
have implications for how DOE addresses the HLW in the tanks:

    Judge Winmill's decision did not issue any form of injunctive 
relief but advised instead that DOE should not take actions 
inconsistent with the decision. It may be possible for DOE to 
proceed with its planned RCRA closure at Tanks WM-182 and WM-183 
without violating any part of Judge Winmill's order (e.g. if no HLW 
as defined by the NWPA is contained in the tanks). If on the other-
hand, it is apparent that DOE will be unable to complete a portion 
of the RCRA closure plan due to the legal constraints of the NWPA, 
the Department will ask DOE to submit an amendment to the plan that 
provides for complete RCRA closure, while meeting other appropriate 
legal requirements. In the interim, nothing in Judge Winmill's 
decision prevents DOE from moving forward with the emptying and 
cleaning of other tanks and other closure activities.

It is clear that Idaho understands the difference between the state's 
authority over RCRA ``mixed waste,'' the hazardous waste component of 
which is addressed by the RCRA-authorized hazardous waste program in 
Idaho, and ``HLW,'' the radiological component of which may be subject 
to the AEA, as DOE maintains, or to the NWPA, as the District Court 
concluded. Idaho is carrying out its responsibilities under the 
authorized hazardous waste program for ``mixed waste.'' EPA's direct 
intervention in this matter, which the commentors request, is not 
called for at this time.
    The commentors' third assertion was that the closure of two HLW 
tanks at INEEL is in violation of RCRA since the DOE/ID has no INEEL 
RCRA Part B Permit. EPA does not agree that the closure of the first 
two of eleven Tank Farm Facility (TFF) tanks without a permit violates 
RCRA. Interim status units are allowed to close pursuant to a closure 
plan approved in accordance with the Federal regulations at 40 CFR part 
265 subpart G, incorporated by reference and authorized in the Idaho 
hazardous waste program at IDAPA 58.01.05.009.
    The commentors' final assertion was that the WCF at the INEEL 
facility improperly closed under RCRA because the facility closed with 
RCRA mixed waste and HLW in place rendering the facility a ``permanent 
disposal site'' for high-level radioactive waste and mixed hazardous 
transuranic waste. The WCF was closed in accordance with a closure plan 
approved by IDEQ pursuant to 40 CFR part 265 subpart G. The WCF closure 
plan called for capping the WCF with a concrete cap. A draft partial 
post-closure permit for the WCF was provided to the public for review 
and comment on May 23, 2003, and a final partial post-closure permit 
was issued for WCF and became effective on October 16, 2003. The 
concrete cap was a component of the post-closure permit. The 
commentors' allegation relates to the policy challenged in NRDC v. 
Abraham. The resolution of this issue does not reside in the RCRA 
statute or regulations and cannot be resolved in this authorization. 
Regardless of the ultimate resolution of the DOE policy challenged in 
NRDC v. Abraham, the comment on the WCF is insufficient as a basis upon 
which to decide the merits of authorizing this revision to the Idaho 
program. The revision and the program as a whole meet the requirements 
for authorization.

C. What Decisions Have We Made in This Rule?

    EPA has made a final determination that Idaho's revisions to the 
Idaho authorized hazardous waste program meet all of the statutory and 
regulatory requirements established by RCRA for authorization. 
Therefore, EPA is authorizing the revisions to the Idaho hazardous 
waste program and authorizing the State of Idaho to operate its 
hazardous waste program as described in the revision authorization 
application. Idaho's authorized program will be responsible for 
carrying out the aspects of the RCRA program described in its revised 
program application, subject to the limitations of RCRA, including the 
Hazardous and Solid Waste Amendments of 1984 (HSWA).
    New Federal requirements and prohibitions imposed by Federal 
regulations that EPA promulgates under the authority of HSWA are 
implemented by EPA and take effect in States with authorized programs 
before such programs are authorized for the requirements. Thus, EPA 
will implement those HSWA requirements and prohibitions in Idaho, 
including issuing permits or portions of permits, until the State is 
authorized to do so.

D. What Will Be the Effect of Today's Action?

    The effect of today's action is that a facility in Idaho subject to 
RCRA must comply with the authorized State program requirements and 
with any applicable Federally-issued requirement, such as, for example, 
the federal HSWA provisions for which the State is not authorized, and 
RCRA requirements that are not supplanted by authorized State-issued 
requirements, in order to comply with RCRA. Idaho has enforcement 
responsibilities under its State hazardous waste program for violations 
of its currently authorized program and will have enforcement 
responsibilities for the revisions which are the subject of this final 
rule. EPA continues to have independent

[[Page 11324]]

enforcement authority under RCRA sections 3007, 3008, 3013, and 7003, 
which include, among others, authority to:
     Conduct inspections; require monitoring, tests, 
analyses or reports;
     Enforce RCRA requirements, including State 
program requirements that are authorized by EPA and any applicable 
federally-issued statutes and regulations; suspend, modify or revoke 
permits; and
     Take enforcement actions regardless of whether 
the State has taken its own actions.
    This final action approving these revisions will not impose 
additional requirements on the regulated community because the 
regulations for which Idaho's program is being authorized are already 
effective under State law.

E. What Rules Are We Authorizing With Today's Action?

    On June 6, 2003, Idaho submitted a complete program revision 
application, seeking authorization for all delegable Federal hazardous 
waste regulations codified as of July 1, 2001, as incorporated by 
reference in IDAPA 58.01.05.(002)-(016) and 58.01.05.997, except 
specific portions of the post closure rule noted in the paragraphs 
below.\2\ EPA has determined that the revisions to Idaho's hazardous 
waste program satisfy all of the requirements necessary for final 
authorization, and EPA is authorizing the state's changes.
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    \2\ Sections of the Federal hazardous waste program are not 
delegable to the states. These sections are 40 CFR part 262, 
subparts E, F, & H; 40 CFR 268.5; 40 CFR 268.42(b); 40 CFR 
268.44(a)-(g); and 40 CFR 268.6. Authority for implementing the 
provisions contained in these sections remains with EPA.
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    In this final rule, Idaho is receiving partial authorization for 
the Post Closure Rule promulgated on October 22, 1998 (63 FR 56710). 
Idaho is not receiving authorization for 40 CFR 270.1(c)(7), 
Enforceable documents for post-closure care; 40 CFR 265.121, Post-
closure requirements for facilities that obtain enforceable documents 
in lieu of post-closure permits; 40 CFR 265.110(c), and 40 CFR 
265.118(c)(4). These provisions are described in the Post Closure rule 
preamble at 63 FR 56712 section a., Post-closure care under 
alternatives to permits.
    Idaho is not receiving authorization for the clause ``* * * or in 
an enforceable document (as defined in 270.1(c)(7))'' in the following 
sections which are incorporated by reference into Idaho's hazardous 
waste program: 40 CFR 264.90(e), 264.90(f), 264.110(c), 264.112(b)(8), 
264.112(c)(2)(iv), 264.118(b)(4), 264.118(d)(2)(iv), 264.140(d), 
265.90(f), 265.110(d), 265.112(b)(8), 265.118(c)(5), 265.140(d), 
270.1(c) introduction, and 270.28.

F. Who Handles Permits After This Authorization Takes Effect?

    Idaho will issue permits for all the provisions for which it is 
authorized and will administer the permits it issues. All permits or 
portions of permits issued by EPA prior to final authorization of this 
revision will continue to be administered by EPA until the effective 
date of the issuance, re-issuance after modification, or denial of a 
State RCRA permit or until the permit otherwise expires or is revoked, 
and until EPA takes action on its permit or portion of permit. HSWA 
provisions for which the State is not authorized will continue in 
effect under the EPA-issued permit or portion of permit. EPA will 
continue to issue permits or portions of permits for HSWA requirements 
for which Idaho is not yet authorized.

G. What Is Codification and Is EPA Codifying Idaho's Hazardous Waste 
Program as Authorized in This Rule?

    Codification is the process of placing the State's statutes and 
regulations that comprise the State's authorized hazardous waste 
program into the Code of Federal Regulations. EPA does this by 
referencing the authorized State's authorized rules in 40 CFR part 272. 
EPA is reserving the amendment of 40 CFR part 272, subpart F for 
codification of Idaho's program at a later date.

H. How Does Today's Action Affect Indian Country (18 U.S.C. Section 
1151) in Idaho?

    EPA's decision to authorize the Idaho hazardous waste program does 
not include any land that is, or becomes after the date of this 
authorization, ``Indian Country,'' as defined in 18 U.S.C. 1151. This 
includes: (1) All lands within the exterior boundaries of Indian 
reservations within or abutting the State of Idaho; (2) any land held 
in trust by the U.S. for an Indian tribe; and (3) any other land, 
whether on or off an Indian reservation that qualifies as Indian 
country. Therefore, this action has no effect on Indian country. EPA 
retains jurisdiction over ``Indian Country'' as defined in 18 U.S.C. 
1151.

I. Statutory and Executive Order Reviews

1. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4,1993), the 
Agency must determine whether the regulatory action is ``significant'', 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant regulatory action'' as 
one that is likely to result in a rule that may: (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, or 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 
entitlements, grants, user fees, or loan programs, or 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. It has been determined 
that this final rule is not a ``significant regulatory action'' under 
the terms of Executive Order 12866 and is therefore not subject to OMB 
review.

2. Paperwork Reduction Act

    The Paperwork Reduction Act, 44 U.S.C. 3501, et seq., is intended 
to minimize the reporting and record-keeping burden on the regulated 
community, as well as to minimize the cost of Federal information 
collection and dissemination. In general, the Act requires that 
information requests and record-keeping requirements affecting ten or 
more non-Federal respondents be approved by OPM. Since this final rule 
does not establish or modify any information or record-keeping 
requirements for the regulated community, it is not subject to the 
provisions of the Paperwork Reduction Act.

3. Regulatory Flexibility

    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act (SBREFA), 5 U.S.C. 601 et 
seq., generally requires federal agencies to prepare a regulatory 
flexibility analysis of any rule subject to notice and comment 
rulemaking requirements under the Administrative Procedure Act or any 
other statute 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 organizations, and small 
governmental jurisdictions. For purposes of assessing the impacts of 
today's rule on small entities, small entity is defined as: (1) A small 
business, as codified in the Small Business Size Regulations at 13 CFR

[[Page 11325]]

part 121; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field. EPA has determined that this action 
will not have a significant impact on small entities because the final 
rule will only have the effect of authorizing pre-existing requirements 
under State law. After considering the economic impacts of today's 
proposed rule, I certify that this action will not have a significant 
economic impact on a substantial number of small entities.

4. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub. 
L. 104-4) establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local and tribal 
governments and the private sector. Under 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 
year. Before promulgating an EPA rule for which a written statement is 
needed, Section 205 of the UMRA generally requires EPA to identify and 
consider a reasonable number of regulatory alternatives and adopt the 
least costly, most cost-effective or least burdensome alternative that 
achieves the objectives of the rule. The provisions of section 205 do 
not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why the 
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.
    This rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local or tribal 
governments or the private sector. It imposes no new enforceable duty 
on any State, local or tribal governments or the private sector. 
Similarly, EPA has also determined that this rule contains no 
regulatory requirements that might significantly or uniquely affect 
small government entities. Thus, the requirements of section 203 of the 
UMRA do not apply to this rule.

5. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among various levels of government.''
    This rule does not have federalism implications. It will not have 
substantial direct effects on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among various levels of government, as specified 
in Executive Order 13132. This rule addresses the authorization of pre-
existing State rules. Thus, Executive Order 13132 does not apply to 
this rule.

6. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
With Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This rule does not have 
tribal implications, as specified in Executive Order 13175. Thus, 
Executive Order 13175 does not apply to this rule.

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

    Executive Order 13045 applies to any rule that: (1) is determined 
to be ``economically significant'' as defined under Executive Order 
12866, and (2) concerns an environmental health or safety risk that EPA 
has reason to believe may have a disproportionate effect on children. 
If the regulatory action meets both criteria, the Agency must evaluate 
the environmental health or safety effects of the planned rule on 
children, and explain why the planned regulation is preferable to other 
potentially effective and reasonably feasible alternatives considered 
by the Agency.
    This rule is not subject to Executive Order 13045 because it is not 
economically significant as defined in Executive Order 12866 and 
because the Agency does not have reason to believe the environmental 
health or safety risks addressed by this action present a 
disproportionate risk to children.

8. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355, May 22, 2001) because it is not a 
``significant regulatory action'' as defined under Executive Order 
12866.

9. National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law No. 104-113, 12(d) (15 U.S.C. 272) 
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 bodies. The NTTAA directs EPA to provide Congress, 
through the OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards. This rule does 
not involve ``technical standards'' as defined by the NTTAA. Therefore, 
EPA is not considering the use of any voluntary consensus standards.

10. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low Income Populations

    To the greatest extent practicable and permitted by law, and 
consistent with the principles set forth in the report on the National 
Performance Review, each Federal agency must make achieving 
environmental justice part of its mission by identifying and 
addressing, as

[[Page 11326]]

appropriate, disproportionately high and adverse human health and 
environmental effects of its programs, policies, and activities on 
minority populations and low-income populations in the United States 
and its territories and possessions, the District of Columbia, the 
Commonwealth of Puerto Rico, and the Commonwealth of the Mariana 
Islands. Because this rule addresses authorizing pre-existing State 
rules and there are no anticipated significant adverse human health or 
environmental effects, the rule is not subject to Executive Order 
12898.

11. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and 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 on the date the rule is published 
in the Federal Register.

List of Subjects in 40 CFR Part 271

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous waste, Hazardous waste 
transportation, Indian lands, Intergovernmental relations, Penalties, 
Reporting and recordkeeping requirements.

    Authority: This action is issued under the authority of sections 
2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended 
42 U.S.C. 6912(a), 6926, 6974(b).

    Dated: March 3, 2004.
L. John Iani,
Regional Administrator, Region 10.
[FR Doc. 04-5368 Filed 3-9-04; 8:45 am]
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