[Federal Register Volume 70, Number 7 (Tuesday, January 11, 2005)]
[Rules and Regulations]
[Pages 1825-1830]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-504]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[FRL-7857-8]


New York: Final Authorization of State Hazardous Waste Management 
Program Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

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SUMMARY: New York has applied to EPA for Final authorization of changes 
to its hazardous waste program under the Solid Waste Disposal Act, as 
amended, commonly referred to as Resource Conservation and Recovery Act 
(RCRA). EPA has determined that these changes satisfy all requirements 
needed to qualify for final authorization, and is authorizing the 
State's changes through this immediate final action. EPA is publishing 
this rule to authorize the changes without a prior proposal because we 
believe this action is not controversial and do not expect comments 
that oppose it. Unless we get written comments which oppose this 
authorization during the comment period, the decision to authorize New 
York's changes to its hazardous waste program will take effect as 
provided below. If we get comments that oppose this action, we will 
publish a document in the Federal Register withdrawing this rule, or 
the portion of the rule that is the subject of the comments, before it 
takes effect and a separate document in the proposed rules section of 
this Federal Register will serve as a proposal to authorize the 
changes.

DATES: This final authorization will become effective on March 14, 
2005, unless EPA receives adverse written comment by February 10, 2005. 
If EPA receives such comment, it will publish a timely withdrawal of 
this immediate final rule or those paragraphs or sections of this rule 
which are the subject of the comments opposing the authorization in the 
Federal Register and inform the public that only the portion of the 
rule that is not withdrawn will take effect. (See Section E of this 
rule for further details.)

ADDRESSES: Submit your comments, identified by FRL-7857-8 by one of the 
following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     E-mail: [email protected].
     Fax: (212) 637-4437.
     Mail: Send written comments to Michael Infurna, Division 
of Environmental Planning and Protection, EPA, Region 2, 290 Broadway, 
22nd Floor, New York, NY 10007.
     Hand Delivery or Courier: Deliver your comments to Michael 
Infurna, Division of Environmental Planning and Protection, EPA, Region 
2, 290 Broadway, 22nd Floor, New York, NY 10007. Such deliveries are 
only accepted during the Regional Office's normal hours of operation. 
The public is advised to call in advance to verify the business hours. 
Special arrangements should be made for deliveries of boxed 
information.
    You can view and copy New York's application during business hours 
at the following addresses: EPA Region 2 Library, 290 Broadway, 16th 
Floor, New York, NY 10007, Phone number: (212) 637-3185; or New York 
State Department of Environmental Conservation, Division of Solid and 
Hazardous Materials, 625 Broadway, Albany, NY 12233-7250, Phone number: 
(518) 402-8730. The public is advised to call in advance to verify the 
business hours of the above locations.
    Instructions: Direct your comments to FRL-7857-8. EPA's policy is 
that all comments received will be included in the public docket 
without change, including any personal information provided, unless the 
comment includes information claimed to be Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Do not submit information that you consider to be CBI or 
otherwise protected through regulations.gov, or e-mail. The Federal 
regulations.gov Web site is an ``anonymous access'' system, which means 
EPA will not know your identity or contact information unless you 
provide it in the body of your comment. If you send an e-mail comment 
directly to EPA without going through regulations.gov, your e-mail 
address will be automatically captured and included as part of the 
comment that is placed in the public docket and made available on the 
Internet. If you submit an electronic comment, EPA recommends that you 
include your name and other contact information in the body of your 
comment and with any disk or CD-ROM you submit. If EPA cannot read your 
comment due to technical difficulties, and cannot contact you for 
clarification, EPA may not be able to consider your comment. Electronic 
files should avoid the use of special characters or any form of 
encryption, and be free of any defects or viruses.

FOR FURTHER INFORMATION CONTACT: Michael Infurna, Division of 
Environmental Planning and Protection, EPA Region 2, 290 Broadway, 22nd 
floor, New York, NY 10007; telephone number (212) 637-4177; fax number: 
(212) 637-4377; e-mail address: [email protected].

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, consistent with, and no less stringent 
than the Federal program. As the Federal program changes, States must 
change their programs and ask EPA to authorize the changes. 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 40 Code of Federal Regulations (CFR) parts 124, 
260 through 266, 268, 270, 273 and 279.

B. What Decisions Have We Made in This Rule?

    We conclude that New York's application to revise its authorized 
program meets all of the statutory and regulatory requirements 
established by RCRA. Therefore, we grant New York final authorization 
to operate its hazardous waste program with the changes described in 
the authorization application. New York has responsibility for 
permitting Treatment, Storage, and Disposal Facilities (TSDFs) within 
its borders (except in Indian Country) and for carrying out the aspects 
of the RCRA program described in its revised program application, 
subject to the limitations of 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 
take effect in authorized States before the States are authorized for 
the requirements. Thus, EPA will implement those requirements and 
prohibitions in New York, including issuing permits if necessary, until 
the State is granted authorization to do so.

[[Page 1826]]

C. What Is the Effect of Today's Authorization Decision?

    The effect of this decision is that a facility in New York subject 
to RCRA will now have to comply with the authorized State requirements 
instead of the equivalent Federal requirements in order to comply with 
RCRA. New York has enforcement responsibilities under its State 
hazardous waste program for violations of such program, but EPA retains 
its authority under statutory provisions, including but not limited to, 
RCRA sections 3007, 3008, 3013, and 7003. These sections include, but 
may not be limited to, the authority to:
     Do inspections, and require monitoring, tests, analyses, 
reports or other actions;
     Enforce RCRA requirements and suspend or revoke permits;
     Take enforcement actions regardless of whether the State 
has taken its own actions.
    This action does not impose additional requirements on the 
regulated community because the regulations for which New York is being 
authorized by today's action are already effective, and are not changed 
by today's action.

D. Why Wasn't There a Proposed Rule Before Today's Rule?

    EPA did not publish a proposal before today's rule because we view 
this as a routine program change and do not expect comments that oppose 
this approval. We are providing an opportunity for public comment now. 
In addition to this rule, in the proposed rules section of today's 
Federal Register, we are publishing a separate document that proposes 
to authorize the State program changes.

E. What Happens if EPA Receives Comments That Oppose This Action?

    If EPA receives comments that oppose this authorization, we will 
withdraw this rule by publishing a document in the Federal Register 
before the rule becomes effective. EPA will base any further decision 
on the authorization of the State program changes on the proposal 
mentioned in the previous paragraph. We will then address all public 
comments in a later final rule. You may not have another opportunity to 
comment. If you want to comment on this authorization, you must do so 
at this time.
    If we receive comments that oppose only the authorization of a 
particular change to the State hazardous waste program, we will 
withdraw that part of this rule but the authorization of the program 
changes that the comments do not oppose will become effective on the 
date specified above. The Federal Register withdrawal document will 
specify which part of the authorization will become effective, and 
which part is being withdrawn.

F. What Has New York Previously Been Authorized For?

    New York initially received final authorization effective on May 
29, 1986 (51 FR 17737) to implement its base hazardous waste management 
program. We granted authorization for changes to its program effective 
July 3, 1989 (54 FR 19184), May 7, 1990 (55 FR 7896), October 29, 1991 
(56 FR 42944), May 22, 1992 (57 FR 9978), August 28, 1995 (60 FR 
33753), October 14, 1997 (62 FR 43111) and January 15, 2002 (66 FR 
57679).
    While EPA is not authorizing any new New York State civil or 
criminal statute in this program revision authorization, be advised 
that New York State has revised some of the statutory provisions which 
provide the legal basis for the State's implementation of the hazardous 
waste management program in New York State. On May 15, 2003, 
subdivisions 1 and 2 of section 71-2705 of the Environmental 
Conservation Law were amended. Amendments to subdivision 1 increased 
penalties for civil and administrative sanctions, while amendments to 
subdivision 2 increased fines for criminal sanctions.

G. What Changes Are We Authorizing With Today's Action?

    On May 22, 2002, New York submitted a program revision application, 
seeking authorization of its changes in accordance with 40 CFR 271.21. 
New York's revision application includes changes to the Federal 
Hazardous Waste program, as well as State-initiated changes. New York 
made these changes to provisions that we had previously authorized, as 
listed in Section F. The State-initiated changes make the State's 
regulations more internally consistent, or make the State regulations 
more like the Federal language.
    We now make an immediate final decision, subject to receipt of 
written comments that oppose this action, that New York's hazardous 
waste program revision and State-initiated changes satisfy all of the 
requirements necessary to qualify for Final authorization. Therefore, 
we grant New York Final authorization for the following program 
revisions. These provisions are analogous to RCRA regulations found in 
the 1999 edition of Title 40 of the CFR. The New York provisions are 
from the Title 6, New York Codes, Rules and Regulations (6 NYCRR), 
Volume A-2A, Hazardous Waste Management System, amended through April 
10, 2004.

1. Program Revisions

------------------------------------------------------------------------
   Description of  Federal
    Requirement  (Revision      Analogous State regulatory authority \2\
       Checklists \1\)
------------------------------------------------------------------------
                          RCRA CLUSTER \3\ VII
------------------------------------------------------------------------
Hazardous Waste Management     Title 6 New York Codes, Rules and
 System; Testing and            Regulations (6 NYCRR) 370.1(e)
 Monitoring Activities (6/13/   introductory paragraph, 370.1(e)(1)(i),
 97, 62 FR 32452; Revision      370.1(e)(1)(vii)-(xiv),
 Checklist 158).                370.1(e)(1)(xvii), 370.1(e)(5)(i),
                                370.1(e)(6)(i), 370.1(e)(8)(i),
                                370.1(e)(8)(v) and (vi), 373-
                                2.27(e)(4)(i)(`c'), 373-2.27(e)(6), 373-
                                2.28(n)(4)(ii), 373-2 Appendix 33,
                                Footnote 5, 373-3.27(e)(4)(i)(`c'), 373-
                                3.27(e)(6), 373-3.28(n)(4)(ii), 374-
                                1.8(e)(5)(i), 374-1.8(g)(7)(i) and (ii),
                                374-1.8(h)(6), and 374-1 Appendix 49.
------------------------------
                            RCRA CLUSTER VIII
------------------------------------------------------------------------
Organic Air Emission           NYCRR 373-1.5(a)(2)(v), 373-
 Standards for Tanks, Surface   2.2(g)(2)(iv), 373-2.5(c)(2)(vi), 373-
 Impoundments, and              2.27(a)(2)(iii), 373-2.27(a)(3) and
 Containers; Clarification      (a)(4), 373-2.27(b)(21), 373-
 and Technical Amendment (12/   2.27(d)(1)(ii)(`a')-(`d'), 373-
 8/97, 62 FR 64636; Revision    2.28(a)(2)(iii), 373-2.28(a)(3) and
 Checklist 163).                (a)(6), 373-2.28(k), 373-
                                3.29(i)(3)(iii)(`b'), 373-
                                3.29(i)(3)(vii), 373-3.29(k)(1), 373-
                                3.29(k)(2)(i)(`b')(`2'), 373-
                                3.29(k)(6)(i), 373-3.29(k)(10), and 373
                                Appendix 55.
                               (More stringent provisions: 373-
                                2.29(c)(3)(iv)(`b') and 373-
                                3.29(d)(3)(iv)(`b').)

[[Page 1827]]

 
National Emission Standards    6 NYCRR 371.1(e)(1)(xv).
 for Hazardous Air Pollutants
 for Source Category: Pulp
 and Paper Production;
 Effluent Limitations
 Guidelines, Pretreatment
 Standards, and New Source
 Performance Standards: Pulp,
 Paper, and Paperboard
 Category (4/15/98 63 FR
 18504; Revision Checklist
 164).
Land Disposal Restrictions     6 NYCRR 376.1(b)(xii), 376.1(c)(4),
 Phase IV--Treatment            376.3(b)(1)-(3), (5) and (6),
 Standards for Metal Wastes     376.4(a)(5) and (8), 376.4(a)/Table, and
 and Mineral Processing         376.4(j)/Table UTS.
 Wastes (5/26/98, 63 FR        (More stringent provisions:
 28556; Revision Checklist      376.3(b)(5)(iii).)
 167 A).
Land Disposal Restrictions     6 NYCRR 376.1(b)(1)(xiv), 376.1(g)(1)(i)-
 Phase IV--Hazardous Soils      (g)(1)(iii)(`b'), 376.1(g)(1)(iv),
 Treatment Standards and        376.1(g)(1)(iv)/Table, 376.1(g)(1)(v)
 Exclusions (5/26/98, 63 FR     and (vi), 376.1(g)(2)(i)-(g)(2)(iii),
 28556; Revision Checklist      376.1(g)(2)(iv) introductory paragraph,
 167 B).                        376.1(g)(5), 376.4(e)(8)(iii)-(v) and
                                376.4(k)(1)-(5).
Land Disposal Restrictions     6 NYCRR 376.1(d)(1)(ii)(`b') and (`c'),
 Phase IV--Corrections (5/26/   376.1(g)(1)(vii), 376.1(g)(2)(iii)(`b')/
 98, 63 FR 28556, as amended    Table, 376.1(g)(2)(iv)(`d') and (`e'),
 6/8/98, 63 FR 31266;           376.1(g)(2)(v) and (vi), 376.4(a)(5),
 Revision Checklist 167 C).     376.4(a)/Table, 376.4(c)(1), 376.4(g)(1)
                                introductory paragraph, 376.4(g)(4)(iii)
                                and (iv), and 376.4(j)/table.
Land Disposal Restrictions     6 NYCRR 371.1(d)(1)(ii)(`a') and (`c'),
 Phase IV--Bevill Exclusion     371.1(e)(2)(vi) introductory paragraph
 Revisions and Clarifications   through (vi)(`b')(`20') and
 (5/26/98, 63 FR 28556;         371.1(e)(2)(vi)(`c'). 2.28(m)(2)(ii) and
 Revision Checklist 167 E).     (iii), 373-2.28(o)(7)(vi), 373-
                                2.28(o)(13), 373-2.29(a)(2)(i), 373-
                                2.29(a)(3), 373-2.29(c)(2), 373-
                                2.29(c)(3)(ii)(`i'), 373-
                                2.29(c)(3)(iii), 373-
                                2.29(c)(3)(iv)(`b'), 373-2.29(d)(1)(ii),
                                373-2.29(d)(2)(i), 373-
                                2.29(e)(3)(ii)(`c') introductory
                                paragraph, 373-2.29(e)(3)(ii)(`c')(`2'),
                                373-2.29(e)(5)(iv), 373-
                                2.29(e)(6)(iii)(`a')(`4')(`iv'), 373-
                                2.29(e)(6)(iii)(`c'), 373-
                                2.29(e)(6)(iv), 373-
                                2.29(e)(10)(ii)(`c'), 373-
                                2.29(f)(2)(ii), 373-2.29(f)(4)(i)(`c'),
                                373-2.29(f)(4)(ii)(`a')(`2'), 373-
                                2.29(f)(5)(ii)(`c'), 373-2.29(g)(3)(ii),
                                373-2.29(g)(3)(iv)(`a'), 373-
                                2.29(g)(4)(ii) and (iv)(`a'), 373-
                                2.29(g)(7), 373-2.29(h)(3)(iii)(`b'),
                                373-2.29(h)(3)(vii), 373-2.29(j)(1), 373-
                                2.29(j)(2)(i)(`b')(`2'), 373-
                                2.29(j)(6)(i), 373-2.29(j)(10), 373-
                                3.2(f)(2)(iv), 373-3.5(c)(2)(vi), 373-
                                3.27(a)(2)(iii), 373-3.27(a)(3), 373-
                                3.27(d)(1)(ii), 373-
                                3.27(d)(6)(ii)(`f')(`2'), 373-
                                3.28(a)(2)(iii), 373-3.28(a)(5), 373-
                                3.28(k), 373-3.28(m)(2)(ii) and (iii),
                                373-3.28(o)(7)(vi), 373-3.28(o)(13), 373-
                                3.29(a)(2)(i) and (a)(3), 373-
                                3.29(b)(11) and (c), 373-3.29(d)(2), 373-
                                3.29(d)(3)(ii)(`a') and (`i'), 373-
                                3.29(d)(3)(iii), 373-
                                3.29(d)(3)(iv)(`b'), 373-3.29(e)(1)(ii),
                                373-3.29(e)(1)(iii)(`b')(`2'), 373-
                                3.29(e)(1)(iii)(`c') introductory
                                paragraph and (`1'), 373-
                                3.29(e)(1)(iii)(`c')(`6'), 373-
                                3.29(e)(1)(iii)(`c')(`7') introductory
                                paragraph and (`i'), 373-
                                3.29(e)(1)(iii)(`d') and (`e'), 373-
                                3.29(e)(1)(iv)(`d'), 373-3.29(e)(2)(i),
                                373-3.29(e)(2)(iii)(`b')(`2'), 373-
                                3.29(e)(2)(iii)(`c') introductory
                                paragraph, 373-3.29(e)(2)(iii)(`c')(`6')
                                and (`7'), 373-3.29(e)(2)(iii)(`d') and
                                (`e'), 373-3.29(e)(2)(viii)(`c'), 373-
                                3.29(e)(2)(ix)(`d'), 373-
                                3.29(e)(4)(v)(`b'), 373-
                                3.29(f)(3)(ii)(`c') introductory
                                paragraph, 373-3.29(f)(3)(ii)(`c')(`2'),
                                373-3.29(f)(5)(iv), 373-
                                3.29(f)(6)(iii)(`a')(`4')(`iv'), 373-
                                3.29(f)(6)(iv), 373-
                                3.29(f)(10)(ii)(`c'), 373-
                                3.29(g)(2)(ii), 373-3.29(g)(4)(i)(`c'),
                                373-3.29(g)(4)(ii)(`a')(`2'), 373-
                                3.29(g)(5)(ii)(`c'), 373-
                                3.29(h)(3)(iv)(`a'), 373-
                                3.29(h)(4)(iv)(`a'), 3733.29(h)(7), 373-
Land Disposal Restrictions     6 NYCRR 371.1(e)(1)(ix)(`c').
 Phase IV--Exclusion of
 Recycled Wood Preserving
 Wastewaters (5/26/98, 63 FR
 28556; Revision Checklist
 167 F).
Hazardous Waste Combustors;    6 NYCRR 371.1(e)(1)(xvii), 371.4(i), 373-
 Revised Standards; Part 1:     1.3(g)(2)(viii), 373-1.7(c)(12)(iii),
 RCRA Comparable Fuel           373-1.7(j) introductory paragraph, and
 Exclusion; Permit              371.7(j)(1).
 Modifications for Hazardous   (More stringent provisions: 373-
 Waste Combustion Units;        1.7(c)(12)(iii).)
 Notification of Intent To
 Comply; Waste Minimization
 and Pollution Prevention
 Criteria for Compliance
 Extensions (6/19/98, 63 FR
 33782; Checklist 168).
------------------------------
                             RCRA CLUSTER IX
------------------------------------------------------------------------
Hazardous Waste Management     6 NYCRR 371.1(d)(1)(ii)(`d')(`3'),
 System; Identification and     371.1(d)(3)(ii)(`b')(`2'),
 Listing of Hazardous Waste;    371.1(d)(3)(ii)(`b')(`5'),
 Petroleum Refining Process     371.1(e)(1)(xii)(`a') and (`b'),
 Wastes; Land Disposal          371.1(e)(1)(xvii)-(xviii),
 Restrictions for Newly         371.1(g)(1)(iii)(`d')(`3'),
 Identified Wastes; and         371.1(g)(1)(iii)(`e'), 371.4(b)(1),
 CERCLA Hazardous Substance     371.4(c), and 371 Appendix 22, 374-
 Designation and Reportable     1.8(a)(2)(iii), 376.2(a) and (b),
 Quantities (8/6/98, 63 FR      376.3(d)(1), and 376.4(a).
 42110, as amended 10/9/98,
 63 FR 54356; Revision
 Checklist 169).
Hazardous Waste Recycling;     6 NYCRR 370.1(e)(2)(v) and 376.4(a)(9).
 Land Disposal Restrictions
 (8/31/98, 63 FR 46332;
 Revision Checklist 170).

[[Page 1828]]

 
Emergency Revision of the      6 NYCRR 376.4(a)(7), 376.4(a)(9), 376.4/
 Land Disposal Restrictions     Table and 376.4(j)(1)/Table UTS.
 (LDR) Treatment Standards
 for Listed Hazardous Wastes
 from Carbamate Production (9/
 4/98, 63 FR 47410; Revision
 Checklist 171).
Characteristic Slags           6 NYCRR 376.3(b)(2), (3), (5) and (6).
 Generated From Thermal
 Recovery of Lead by
 Secondary Lead Smelters;
 Land Disposal Restrictions;
 Extension of Compliance Date
 (9/9/98, 63 FR 48124;
 Revision Checklist 172).
Land Disposal Restrictions:    6 NYCRR 376.3(g)(3) and 376.4(a)/Table.
 Treatment Standards for
 Spent Potliners from Primary
 Aluminum Reduction (K088) (9/
 24/98, 63 FR 51254; Revision
 Checklist 173).
Standards Applicable to        6 NYCRR 373-1.2(e) introductory paragraph
 Owners and Operators of        and (e)(3), 373-1.5(a)(1), 373-1.5(o),
 Closed and Closing Hazardous   373-2.6(a)(5) and (6), 373-2.7(a)(3),
 Waste Management Facilities:   373-2.7(c)(2)(viii), 373-
 Post-Closure Permit            2.7(c)(3)(ii)(`d'), 373-2.7(h)(2)(iv),
 Requirement and Closure        373-2.7(h)(4)(ii)(`d'), 373-2.8(a)(4),
 Process (10/22/98, 63 FR       373-3.6(a)(6), 373-3.7(a)(3) and (a)(4),
 56710; Revision Checklist      373-3.7(c)(2)(viii), 373-
 174).                          3.7(c)(3)(i)(`d'), 373-3.7(h)(3)(iv) and
                                (v), 373-3.7(h)(4)(i)(`c'), 373-3.7(k),
                                and 373-3.8(a)(4).
Hazardous Remediation Waste    6 NYCRR 370.2(b)(37), 370.2(b)(70),
 Management Requirements        370.2(b)(124), 370.2(b)(157)-(b)(159),
 (HWIR Media) (11/30/98, 63     370.2(b)(179), 373-1.3(h)(1), 373-
 FR 65874; Revision Checklist   1.4(a)(5)(iv)(`a') and (`b'), 373-
 175).                          1.7(c)(15), 373-1.9(e), 373-1.11, 373-
                                2.1(a)(9), 373-2.5(c)(2)(xvii), 373-
                                2.6(l)(4), 373-2.19(a)(1), 373-
                                2.19(b)(1), 373-2.19(c), 373-3.1(a)(2),
                                376.1(b)(1)(iii), 376.5(a)(7), 621.3,
                                621.6, 621.7(a), (c) and (d),
                                621.9(a)(2), 621.13, and 621.14.
                               (More stringent provisions: 373-
                                1.7(c)(15), 373-1.11(b)(2)(iii) and
                                (b)(2)(iv), 373-1.11(d)(4)(i) intro.-
                                (d)(4)(i)(`e'), 373- 1.11(e)(1)(i)-(iii)
                                introductory paragraph, 373-
                                1.11(e)(1)(iv) and (vii), 373-
                                1.11(f)(3)(i), 373-1.11(g)(1)(iii),
                                621.6, 621.13, 621.14.)
Universal Waste Rule           6 NYCRR 374-1.7(a)(1), 374-1.7(a)(1)/
 (Hazardous Waste Management    Table, 374-1.7(a)(2) and 374-3.1(i)(9).
 System; Modification of the
 Hazardous Waste Recycling
 Regulatory Program) (12/24/
 98, 63 FR 71225; Revision
 Checklist 176).
Hazardous Waste Treatment,     6 NYCRR 373-1.1(d)(1)(iii)(`c')(`1'), 373-
 Storage, and Disposal          2.27(b)(12), 373-2.27(b)(25), 373-
 Facilities and Hazardous       2.27(b)(30), 373-2.29(a)(2)(v), 373-
 Waste Generators; Organic      2.29(d)(1)(i)(`a') and (`b'), 373-
 Air Emission Standards for     2.29(d)(2)(i)(`a') and (`b'), 373-
 Tanks, Surface Impoundments,   2.29(e)(8)(iii), 373-2.29(g)(5)(vi), 373-
 and Containers (1/21/99, 64    3.29(a)(2)(v), 373-3.29(e)(1)(i)(`a')
 FR 3382; Revision Checklist    and (`b'), 373-3.29(e)(1)(iii)(`b')(`2')
 177).                          and (`4'), 373-3.29(e)(1)(iii)(`c'), 373-
                                3.29(e)(2)(i)(`a') and (`b'), 373-
                                3.29(e)(2)(iii)(`b')(`2') and (`4'), 373-
                                3.29(e)(2)(iii)(`c'), 373-
                                3.29(f)(8)(iii), and 373-3.29(h)(5)(vi).
Hazardous Waste Management     6 NYCRR 371.1(e)(2)(xiii).
 System; Identification and
 Listing of Hazardous Waste;
 Petroleum Refining Process
 Wastes; Exemption for
 Leachate from Non-Hazardous
 Waste Landfills (2/11/99, 64
 FR 6806; Revision Checklist
 178).
Land Disposal Restrictions--   6 NYCRR 371.1(c)(4)(iii), 371.1(c)(4)
 Phase IV: Treatment            Table 1, 371.1(c)(6)(i)(`c'),
 Standards for Wood             371.1(e)(2)(vi)(`c'),
 Preserving Wastes, Treatment   371.1(e)(2)(vi)(`c')(`1'),
 Standards for Metal Wastes,    372.2(a)(8)(iii)(`d'),
 Zinc Micronutrient             376.1(b)(1)(viii), 376.1(b)(1)(xiv),
 Fertilizers, Carbamate         376.1(g)(1)(iv)/Table,
 Treatment Standards, and       376.1(g)(2)(iii)(`b')/Table,
 K088 Treatment Standards (5/   376.1(g)(2)(iv)(`d'), 376.1(h)(4)(ii),
 11/99, 64 FR 25408; Revision   376.1(h)(4)(ii)(`a'), 376.4(a)(9) and
 Checklist 179).                (a)(10), 376.4(a)/Table TSHW, (j)(1) and
                                376.1(k)(3)(iii).
Guidelines for Establishing    6 NYCRR 370.1(e)(8)(i) and (vii).
 Test Procedures for the
 Analysis of Oil and Grease
 and Non-Polar Material Under
 the Clean Water Act and
 Resource Conservation and
 Recovery Act (5/14/99, 64 FR
 26315; Revision Checklist
 180).
------------------------------
                             RCRA CLUSTER X
------------------------------------------------------------------------
Hazardous Waste Management     6 NYCRR 370.2(b)(109), 370.2(b)(206),
 System; Modification of the    371.1(j)(1)(ii)-(j)(1)(iv), 373-
 Hazardous Waste Program;       1.1(b)(4)(ii)-(b)(4)(iv), 373-
 Hazardous Waste Lamps (7/6/    2.1(a)(7)(ii)-(iv), 373-3.1(a)(9)(ii)-
 99, 64 FR 36466; Revision      (vi), 374-3.1(a)(1)(ii)-(iv), 374-
 Checklist 181).                3.1(b)(1)(i), 374-3.1(b)(2)(ii) and
                                (iii), 374-3.1(c)(1), 374-3.1(d)(1), 374-
                                3.1(e)-(h), 374-3.1(i)(5) and (6), 374-
                                3.1(i)(9), 374-3.1(i)(11), 374-3.2(a),
                                374-3.2(d)(4), 374-3.2(e)(5), 374-
                                3.3(a), 374-3.3(b)(2)(iv), 374-
                                3.3(c)(2)(v), 374-3.3(d)(4), 374-
                                3.3(e)(5), 374-3.4(a), 374-3.5(a), 374-
                                3.7(b)(1) and 376.1(a)(10)(ii)-(iv).
------------------------------------------------------------------------
\1\ A Revision Checklist is a document that addresses the specific
  changes made to the Federal regulations by one or more related final
  rules published in the Federal Register. EPA develops these checklists
  as tools to assist States in developing their authorization
  applications and in documenting specific State analogs to the Federal
  Regulations. For more information see EPA's RCRA State Authorization
  Web page at http://www.epa.gov/epaoswer/hazwaste/state.
\2\ The New York provisions are from the Title 6 of the New York Codes,
  Rules and Regulations (6 NYCRR), as amended through April 10, 2004.
\3\ A RCRA ``Cluster'' is a set of Revision Checklists for Federal
  rules, typically promulgated between July 1 and June 30 of the
  following year.


[[Page 1829]]

2. State-Initiated Changes

    Except for the changes at 6 NYCRR Sec. Sec.  372.3(a)(5) and 
372.3(a)(7)(i)-(ii), the State-initiated changes correct typographical 
and printing errors, clarify and make the State's regulations more 
internally consistent, or make the State regulations more like the 
Federal language. At 6 NYCRR Sec.  372.3(a)(5) and 372.3(a)(7)(i)-(ii), 
the State was required to remove and revise language as a result of a 
lawsuit in Federal court which determined that New York State could not 
limit the ability of a transporter to mix loads. While this change 
results in making the State provision more like the Federal, it is a 
special case and warranted distinction from the other State-initiated 
changes.
    EPA grants New York Final authorization to carry out the following 
provisions of the State's program in lieu of the Federal program. The 
New York provisions are from the Title 6, New York Codes, Rules and 
Regulations (6 NYCRR), Volume A-2A, Hazardous Waste Management System, 
amended through April 10, 2004.
    Part 370--Hazardous Waste Management System--General: Sections 
370.1(e)(1)(xvii) and 370.4(a)(1) and (b)(1).
    Part 371--Identification and Listing of Hazardous Waste: Sections 
371.1(a)(10), (c)(4) Table 1, (d)(1)(ii)(`a') and Appendix 24, Table 2.
    Part 372--Hazardous Waste Manifest System and Related Standards or 
Generators, Transporters and Facilities: Sections 372.3(a)(5), 
(a)(7)(i) and (ii), 372.5(d)(6), 372.7(b)(3), (c)(1)(ii), 
(c)(1)(iii)(`b')(`2') and (c)(2).
    Part 373, Subpart 373-1--Hazardous Waste Treatment, Storage and 
Disposal Facility Permitting Requirements: Sections 373-
1.1(d)(1)(viii), (d)(2)(i)(`b') and (d)(2)(iii)(`b').
    Part 373, Subpart 373-3--Interim Status Standards for Owners and 
Operators of Hazardous Waste Treatment, Storage and Disposal 
Facilities: Section 373-3.2(j)(4).

H. Where Are the Revised State Rules Different From the Federal Rules?

    New York hazardous waste management regulations are more stringent 
than the corresponding Federal regulations in a number of different 
areas. The more stringent provisions are being recognized as a part of 
the Federally-authorized program and are Federally enforceable. The 
specific more stringent provisions are noted on the chart in Section G 
and in the State's authorization application, and include, but are not 
limited to, the following:
    1. At 6 NYCRR Sec. Sec.  373-2.29(c)(3)(iv)(`b') and 373-
3.29(d)(3)(iv)(`b'), New York requires State approval subsequent to 
approval by U.S. EPA of an equivalent treatment method (40 CFR 
264.1082(c)(4)(ii) and 265.1083(c)(4)(ii)).
    2. At 6 NYCRR 373-1.11, New York has adopted and is seeking 
authorization for Remedial Action Plans (40 CFR part 270, subpart H 
(270.79 through 270.230)) introduced by the November 30, 1998, final 
rule (63 FR 65874; Revision Checklist 175). However, the Uniform 
Procedures Act at 6 NYCRR Part 621 implements a permitting process, 
applicable to all RCRA permits including RAPs, that is different and in 
some aspects more stringent than the federal permitting procedure. For 
example:
    a. At 6 NYCRR Sec. Sec.  373-1.11(d)(4)(i)(`b') and (`c'), pursuant 
to the Public notice and comment procedures at 6 NYCRR Sec.  621.6, New 
York requires a permit applicant to complete public notice requirements 
that are assigned to the permitting agency in the Federal program (40 
CFR 270.145(a)(2) and (3)).
    b. The Department may choose to modify, revoke, reissue or 
terminate a final RAP or deny a renewal application for the reasons 
listed at 6 NYCRR Sec.  373-1.11(e)(1)(iii) and the additional reasons 
listed at 6 NYCRR Sec.  621.14 (40 CFR 270.175(a)).
    3. At 6 NYCRR Sec.  373-1.11(f)(3)(i), New York requires the owner 
or operator to submit the request for transferring the Remedial Action 
Plan to a new owner or operator at least 180 days in advance (40 CFR 
270.220(a)).
    We consider the following State requirements to be beyond the scope 
of the Federal program:
    1. New York did not adopt an analog to 40 CFR 261.4(g) that 
excludes certain dredged materials from the State definition of 
hazardous waste (November 30, 1998, final rule, 63 FR 65874; Revision 
Checklist 175). Instead, the State subjects these materials to full 
regulation as hazardous wastes.
    2. New York State regulations do not incorporate the Mineral 
Processing Secondary Materials Exclusion at 40 CFR 261.4(a)(17) 
(originally introduced at 261.4(a)(16)) and the changes affecting 40 
CFR 261.2(c)(3) and (c)(4)/Table, and 261.2(e)(1)(iii) addressed by the 
May 26, 1998, final rule (63 FR 28556; Revision Checklist 167D). Since 
New York did not adopt the exclusion at 40 CFR 261.4(a)(17) the State 
will have a broader in scope program because the effect is to include 
materials that are not considered solid waste by EPA.
    Broader-in-scope requirements are not part of the authorized 
program and EPA cannot enforce them. Although you must comply with 
these requirements in accordance with State law, they are not RCRA 
requirements.
    Finally, at 6 NYCRR 376.4(e) New York has adopted but is not 
seeking authorization for 40 CFR 268.44 which contains two types of 
variances. New York has left the authority with EPA to review and 
approve the non-delegable general treatment standard variances at 40 
CFR 268.44(a)-(g) as well as the delegable site-specific variances at 
40 CFR 268.44(h)-(m). However, New York is more stringent because it 
requires the State to review and approve treatment variances subsequent 
to EPA approval. Note that New York has also adopted, but is not 
seeking authorization for the amendments to both types of treatment 
variances addressed by the December 5, 1997 final rule (62 FR 64504; 
Revision Checklist 162).

I. Who Handles Permits After the Authorization Takes Effect?

    New York will issue permits for all the provisions for which it is 
authorized and will administer the permits it issues. EPA will continue 
to administer any RCRA hazardous waste permits or portions of permits 
which we issued prior to the effective date of this authorization, and 
also to process permit modification requests for facilities with 
existing permits. EPA will not issue any more new permits or new 
portions of permits for the provisions listed in the Table above after 
the effective date of this authorization. Pursuant to Sec.  3006(g)(1) 
of RCRA, EPA may continue to issue or deny permits to facilities within 
the State to implement those regulations promulgated under the 
authority of HSWA for which New York is not authorized.

J. How Does Today's Action Affect Indian Country (18 U.S.C. 115) in New 
York?

    The State of New York's Hazardous Waste Program is not authorized 
to operate in Indian country within the State. Therefore, this action 
has no effect on Indian country. EPA will continue to implement and 
administer the RCRA program in these lands.

K. What Is Codification and Is EPA Codifying New York'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. We do this by referencing 
the authorized State rules in 40 CFR part 272. If this rule takes 
effect,

[[Page 1830]]

or we finalize the companion proposal to authorize the State's changes 
to its hazardous waste program, we may, at a later date, amend 40 CFR 
part 272, subpart HH to codify New York's authorized program.

L. Statutory and Executive Order Reviews

    This rule only authorizes hazardous waste requirements pursuant to 
RCRA 3006 and imposes no requirements other than those imposed by State 
law. Therefore, this rule complies with applicable executive orders and 
statutory provisions as follows.
    1. Executive Order 12866: Regulatory Planning Review--The Office of 
Management and Budget has exempted this rule from its review under 
Executive Order 12866 (56 FR 51735, October 4, 1993).
    2. Paperwork Reduction Act--This rule does not impose an 
information collection burden under the Paperwork Reduction Act (44 
U.S.C. 3501 et seq.).
    3. Regulatory Flexibility Act--After considering the economic 
impacts of today's rule on small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.), I certify that this rule will 
not have a significant economic impact on a substantial number of small 
entities.
    4. Unfunded Mandates Reform Act--Because this rule approves pre-
existing requirements under State law and does not impose any 
additional enforceable duty beyond that required by State law, it does 
not contain any unfunded mandate or significantly or uniquely affect 
small governments, as described in the Unfunded Mandates Reform Act 
(Pub. L. 104-4).
    5. Executive Order 13132: Federalism--Executive Order 12132 (64 FR 
19885, April 23, 1997) does not apply to this rule because it will not 
have federalism implications (i.e., substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government).
    6. Executive Order 13175: Consultation and Coordination with Indian 
Tribal Governments--Executive Order 13175 (65 FR 67240, November 6, 
2000) does not apply to this rule because it will not have tribal 
implications (i.e., substantial direct effects on one or more Indian 
tribes, on the relationship between the Federal government and Indian 
tribes, or on the distribution of power and responsibilities between 
the Federal government and Indian tribes).
    7. Executive Order 13045: Protection of Children from Environmental 
Health & Safety Risks--This rule is not subject to Executive Order 
13045 (62 FR 19885, April 23, 1997) because it is not economically 
significant and it is not based on health or safety risks.
    8. Executive Order 13211: Actions that Significantly Affect Energy 
Supply, Distribution, or Use--This rule is not subject to Executive 
Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant 
regulatory action as defined in Executive Order 12866.
    9. National Technology Transfer Advancement Act--EPA approves State 
programs as long as they meet criteria required by RCRA, so it would be 
inconsistent with applicable law for EPA, in its review of a State 
program, to require the use of any particular voluntary consensus 
standard in place of another standard that meets the requirements of 
RCRA. Thus, section 12(d) of the National Technology Transfer and 
Advancement Act (15 U.S.C. 272 note) does not apply to this rule.
    10. Congressional Review Act--EPA will submit a report containing 
this rule and other information required by the Congressional Review 
Act (5 U.S.C. 801 et seq.) to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication 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 
action will be effective on March 14, 2005.

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: November 23, 2004.
Kathleen C. Callahan,
Acting Regional Administrator, Region 2.
[FR Doc. 05-504 Filed 1-10-05; 8:45 am]
BILLING CODE 6560-50-P