[Federal Register Volume 70, Number 99 (Tuesday, May 24, 2005)]
[Rules and Regulations]
[Pages 29910-29913]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-10196]



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Part IV





Environmental Protection Agency





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40 CFR Part 262



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

  Federal Register / Vol. 70, No. 99 / Tuesday, May 24, 2005 / Rules 
and Regulations  

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 262

[FRL-7916-2]


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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule; change of expiration date.

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SUMMARY: EPA is promulgating today the rulemaking extension proposed 
and published in the Federal Register on January 25, 2005 for the 
Project XL Final Rule for New York State Public Utilities; Hazardous 
Waste Management Systems (XL Rule) (70 FR 3501). The XL Rule was 
published as a final rule in the Federal Register on Monday, July 12, 
1999 and, by its terms, expired, on January 10, 2005. The details of 
the XL Rule can be found in 64 FR 37636 (July 12, 1999). No further 
changes are being made to the XL Rule other than the change in 
expiration date. Because the requirements outlined in the XL Rule do 
not become effective until New York State adopts equivalent 
requirements through a State rulemaking and receives EPA authorization 
for these equivalent State requirements, EPA is extending the XL Rule 
for a period of 72 months from the effective date of today's rule. To 
date, the State has not adopted an equivalent rule and thus the XL 
Project for New York Public State Utilities has not been implemented. 
The XL Rule must be extended to facilitate completion of the New York 
State Public Utilities XL Project.

DATES: This rule is effective on May 24, 2005.

ADDRESSES: The docket containing supporting information used in 
developing this final rule are available for public inspection and 
copying. The docket can be found online through the EPA's EDOCKET Web 
site (http://docket.epa.gov/edkpub/index.jsp). EDOCKET is EPA's online 
public docket and comment system designed to expand access to public 
information. The docket for this rulemaking can be accessed by 
conducting a search for Docket ID RCRA-2004-0021.
    A docket containing public comments and supporting materials from 
the original final rulemaking is available for public inspection and 
copying at the EPA Docket Center (EPA/DC), located at EPA West 
Building, 1301 Constitution Avenue, NW., Room B102, Washington, DC. The 
EPA/DC is open from 8:30 a.m. to 4:30 p.m. Monday through Friday, 
excluding Federal holidays (all materials from this docket are 
available 24 hours a day online through the EDOCKET system with the new 
rulemaking's Docket ID of RCRA-2004-0021). The public is encouraged to 
phone in advance to review docket materials at the EPA/DC. Appointments 
can be scheduled by phoning the Docket Office at (202) 566-2270. Refer 
to RCRA docket number F-98-NYSP-FFFFFF. The public may copy a maximum 
of 100 pages from any regulatory docket at no charge. Additional copies 
cost 15 cents per page.
    A duplicate copy of the docket is available for inspection and 
copying at U.S. EPA, Region 2, 290 Broadway, New York, NY 10007-1866 
during normal business hours. Persons wishing to view the duplicate 
docket at the New York location are encouraged to contact Mr. Philip 
Flax in advance, by telephoning (212) 637-4143. Project materials are 
also available for review on today's action 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: On July 12, 1999, EPA promulgated subpart I 
of 40 CFR part 262 (XL Rule) which sets forth the requirements for 
Project XL for public utilities in New York State. The XL Rule was 
published as a final rule at 64 FR 37624 (July 12, 1999). The XL Rule 
expired on January 10, 2005. Accordingly, EPA is amending the 
expiration date of the XL Rule in 40 CFR 262.90(j). EPA is not 
modifying any other provisions of the XL Rule.
    EPA is amending the expiration date of the XL Rule and providing an 
additional 72 months from the effective date of today's rulemaking. 
This rule is effective upon its publication in the Federal Register 
(rather than six months from promulgation) based on EPA's finding that 
the regulated community does not need six months to come into 
compliance with this regulation. RCRA section 3010(b)(1), 42 U.S.C. 
6930(b)(1). The extension of the expiration date for the XL Rule will 
enable the New York State Department of Environmental Conservation 
(NYSDEC) to implement portions of the project requiring regulatory 
changes. New York State has received authority to administer hazardous 
waste standards for generators that are equivalent to, or more 
stringent than, the federal program. Therefore, the requirements 
outlined in the XL Rule will not take effect in New York State until 
the State adopts equivalent requirements through a State rulemaking and 
receives EPA authorization for these equivalent State requirements. EPA 
will not be the primary regulatory agency responsible for implementing 
the requirements of the XL Rule. EPA expects this XL Project to result 
in superior environmental performance in New York State, while 
providing cost savings to participating Utilities.
    EPA received one comment letter in response to the January 25, 2005 
proposed rulemaking extension Federal Register notice from the Utility 
Solid Waste Activities Group (USWAG), the Edison Electric Institute 
(EEI), the American Public Power Association (APPA), the National Rural 
Electric Cooperative Association (NRECA), and the American Gas 
Association (AGA) (collectively referred to herein as USWAG). The 
letter stated that USWAG strongly supports the six-year extension of 
the XL Rule. The letter reiterated USWAG's belief that the XL Rule will 
promote more efficient and environmentally sound management of 
hazardous wastes by allowing participating New York State utilities to 
consolidate wastes from remote locations at a utility central 
collection facility (UCCF) without requiring the utility to obtain a 
hazardous waste permit. USWAG stated that the XL Rule will result in 
environmental benefits, financial benefits, and reduced paperwork and 
reporting burdens for both the utilities involved and the New York 
State Department of Environmental Conservation. No changes have been 
made to the proposed rulemaking extension based on this comment.

Additional Information

1. Applicability of Rules in Authorized States

    Under section 3006 of RCRA, EPA may authorize qualified states to 
administer the RCRA hazardous waste program within the state. Following 
authorization, the state requirements authorized by EPA apply in lieu 
of equivalent Federal requirements and become Federally enforceable as 
requirements of RCRA. EPA maintains independent authority to bring 
enforcement actions under RCRA sections 3007, 3008, 3013, and 7003. 
Authorized states also have independent authority to bring enforcement 
actions under state law. A state may receive authorization by following 
the approval process described in 40 CFR part 271. 40 CFR part 271 also 
describes the overall

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standards and requirements for authorization.
    After a state receives initial authorization, new Federal 
regulatory requirements promulgated under the authority in the RCRA 
statute which existed prior to the 1984 Hazardous and Solid Waste 
Amendments (HSWA) do not apply in that state until the state adopts and 
receives authorization for equivalent state requirements. The state 
must adopt such requirements to maintain authorization.
    In contrast, under RCRA section 3006(g) (i.e., 42 U.S.C. 6926(g)), 
new Federal requirements and prohibitions imposed pursuant to HSWA 
provisions take effect in authorized states at the same time that they 
take effect in unauthorized states. Although authorized states are 
still required to update their hazardous waste programs to remain 
equivalent to the Federal program, EPA carries out HSWA requirements 
and prohibitions in authorized states, including the issuance of new 
permits implementing those requirements, until EPA authorizes the state 
to do so.

2. Effect on New York State Authorization

    Today's rule is promulgated pursuant to RCRA provisions that 
predate HSWA. New York State has received authority to administer most 
of the RCRA program; thus, authorized provisions of the State's 
hazardous waste program are administered in lieu of the federal 
program. New York State has received authority to administer hazardous 
waste standards for generators. As a result, today's rule will not be 
effective in New York State until the State adopts equivalent 
requirements as State law and receives EPA authorization for those 
equivalent State requirements. EPA may not enforce these requirements 
until it approves the State requirements as a revision to the 
authorized State program.

Statutory and Executive Order Review

A. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993) EPA must 
determine whether the regulatory action is ``significant'' and 
therefore subject to Office of Management and Budget (OMB) review and 
the requirements of the Executive Order. The Order defines 
``significant regulatory action'' as one that is likely to result in a 
rule that may:
    (1) Have an annual effect on the economy of $100 million or more or 
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 Act

    The Regulatory Flexibility Act (RFA) generally requires an Agency 
to conduct a Regulatory Flexibility analysis of any rule subject to 
notice and comment rulemaking requirements unless the agency certifies 
that the rule will not have a significant economic impact on a 
substantial number of small entities. Small entities include small 
businesses, small not-for-profit enterprises, and small governmental 
jurisdictions.
    For purposes of assessing the impacts of today's rule on small 
entities, small entity is defined as: (1) A small business defined by 
the Small Business Administration's (SBA) regulations at 13 CFR 
121.201; (2) a small governmental jurisdiction that is a government of 
a city, county, town, school district or special district with a 
population of less than 50,000; and (3) a small organization that is 
any not-for-profit enterprise which is independently owned and operated 
and is not dominant in its field.
    After considering the economic impacts of today's final rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities.
    This final rule will not impose any requirements on small entities. 
EPA is extending the Project XL Final Rule for New York State Public 
Utilities; Hazardous Waste Management Systems (XL Rule) that was 
published on July 12, 1999, which expired January 10, 2005. No other 
changes are being made to the XL Rule other than to change the 
expiration date by providing an additional 72 months from the effective 
date of today's rulemaking.

C. Paperwork Reduction Act

    The Office of Management and Budget (OMB) has approved the 
information collection requirements contained in this rule under the 
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and 
has assigned OMB control number 2010-0026.
    EPA is collecting information regarding the locations and amount of 
waste involved as well as the money saved and what the savings was 
invested in. EPA plans to use this information to determine whether the 
XL project is successful. The success of the project will help 
determine whether it should be extended to other areas of the country. 
Participation in the project is voluntary; however, if a Utility 
decides to participate, EPA requires the filing of a report containing 
pertinent information. These reports will be publicly available. The 
estimated cost burden of filing the annual report is $10,000 and the 
estimated length of time to prepare the report is 40 hours. The 
estimated number of respondents is 15. Burden means the total time, 
effort, or financial resources expended by persons to generate, 
maintain, retain, or disclose or provide information to or for a 
Federal agency. This includes the time needed to review instructions; 
develop, acquire, install, and utilize technology and systems for the 
purposes of collecting, validating, and verifying information, 
processing and maintaining information, and disclosing and providing 
information; adjust the existing ways to comply with any previously 
applicable instructions and requirements; train personnel to be able to 
respond to a collection of information; search data sources; complete 
and review the collection of information; and transmit or otherwise 
disclose the information.
    An Agency may not conduct or sponsor, and a person is not required 
to respond to a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations are listed in 40 CFR part 9 and 48 CFR Chapter 15. EPA 
amended the 40 CFR part 9 table of currently approved ICR control 
numbers issued by OMB for various regulations to list the information 
requirements contained in the XL Rule. The table lists the CFR 
citations for EPA's reporting and recordkeeping requirements, and the 
current OMB control numbers. This listing of OMB control numbers and 
their subsequent codification in the CFR satisfy the requirements of 
the Paperwork Reduction Act and OMB's

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implementing regulations at 5 CFR part 1320.

D. Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for federal agencies to assess the 
effects of their regulatory actions on state, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``federal mandates'' that 
may result in expenditures to state, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number 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 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.
    Today's 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. As noted above, this final 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 final 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.

E. Applicability of Executive Order 13045

    The Executive Order, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies 
to any rule that (1) is determined to be ``economically significant'' 
as defined under Executive Order 12866, and (2) concerns an 
environmental health or safety risk that EPA has reason to believe may 
have a disproportionate effect on children. If the regulatory action 
meets both criteria, the Agency must evaluate the environmental health 
or safety effects of the planned rule on children; and explain why the 
planned regulation is preferable to other potentially effective and 
reasonably feasible alternatives considered by the Agency.
    This rule is not subject to Executive Order 13045 because it is not 
an economically significant rule as defined by Executive Order 12866, 
and because it does not involve decisions on environmental health or 
safety risks that may disproportionately affect children.

F. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the States, on the relationship between the national 
government and the States, or on the distribution of power and 
responsibilities among the various levels of government.''
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. This rule does not create a 
mandate on State, local, or tribal governments and does not impose any 
enforceable duties on these entities. Thus, Executive Order 13132 does 
not apply to this rule. In the spirit of Executive Order 13132, and 
consistent with EPA policy to promote communications between EPA and 
State and local governments, EPA specifically solicited comment on the 
proposed rule from State and local officials.

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

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

H. Executive Order 13211: Energy Effects

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

I. National Technology Transfer and Advancement Act

    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.

J. 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

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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 May 24, 2005.

List of Subjects in 40 CFR Part 262

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

    Dated: May 17, 2005.
Stephen L. Johnson,
EPA Administrator.

0
For the reasons set forth in the preamble, part 262 of title 40 of the 
Code of Federal Regulations is amended as follows:

PART 262--[AMENDED]

0
1. The authority citation for part 262 continues to read as follows:

    Authority: 42 U.S.C. 6906, 9612, 6922-6925, 6937, and 6938.

Subpart I--[Amended]

0
2. Section 262.90 is amended by revising paragraph (j) to read as 
follows:


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

* * * * *
    (j) This section will expire on May 24, 2011.

[FR Doc. 05-10196 Filed 5-23-05; 8:45 am]
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