### 11322 Federal Register/Vol. 69, No. 47/Wednesday, March 10, 2004/Rules and Regulations

[FR Doc. 04-4985 Filed 3-9-04; 8:45 am]

BILLING CODE 6560-50-S

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.

SUMMARY: Idaho applied tothe United States Environmental Protection Agency (EPA)for final authorization ofchanges
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 ofthe 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 shallbe effective at 1
p.m. e.s.t. on March 10, 2004.
FOR FURTHER INFORMATION CONTACT: Jeff Hunt, WCM-122, U.S. EPARegion 10, Office ofWaste 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 ofthe 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 ismodified or when certain other changes occur. Most commonly, States must change their programs because ofchanges to EPA's regulations in title 40 ofthe Code ofFederal 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), onJanuary 19, 1999 (63 FR 56086, October 21, 1998), and most recently onJuly 1, 2002 (67 FR 44069, July 1, 2002).

Today's final rule addresses a program revision application that Idaho submitted to EPA onJune 6, 2003, in accordance with 40 CFR 271.21, seeking authorization ofchanges to the State program. On August 1, 2003, EPA published aproposed rule announcing its intent to grant Idaho final authorization for revisions to Idaho's hazardous waste program andprovided

aperiod oftime for the receipt ofpublic
comments. The proposed rule can be found at 68 FR 45192.

B. WhatWere the Comments toEPA's Proposed Rule?

EPA received one adverse comment letter during the comment period onthe proposed rule. The comment letter was submittedby 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 ofrevisions
to the Idaho hazardous waste management program in taking today's action. The issues raised by the
commentors for purposes ofthis revision authorization andEPA's responses follow below.

The commentors raised issues in the following areas: (1)The commentors asserted that EPA is obligated to delay issuing afinal 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 apetition submitted to the Office ofInspector 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 andEnvironmental Laboratory (INEEL)violates the recent U.S. District Court ruling in Natural ResourcesDefense Council,et a].v. Spencer Abraham(NRDCv. Abraham), Case No. 01-CV-413 (July 3, 2003) and requires EPAintervention to ensure enforcement ofthe applicable law, in particular with respect to RCRA "mixed waste;" (3)the commentors asserted that the TankFarm Facility (TFF) "closure planis in violation ofRCRA since the DOE/ID has no INEEL RCRA Part B Permit;" and (4)the commentors asserted thatthe Waste Calcine Facility (WCF) atthe INEEL was improperly closed under RCRAbecause the facility closed with RCRA mixed waste and HLW inplace. 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 thisfacility had program-wide implications.

In preparing itsresponse to these comments, EPA reviewed, among other documents, the comments andtheir attachments, the available files onthe particular permits andunits, including the WCF and the TFF, andthe recent ruling inNRDCv.Abraham,as well as thejoint amicus briefsubmitted bythe States ofIdaho, Washington, Oregon and South Carolina, and the Memorandum ofPoints andAuthorities filed on March 6, 2003 by the United States Department ofJustice on behalfof the Department ofEnergy. The administrative record compiled forthis final rule can be located by contacting the individual listed in the FOR FURTHER INFORMATION CONTACT section ofthis rule.

With respectto the first comment on the proposed rule, EPA does not agree that itis obligated to delay this action until completion ofan IG investigation.' 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 of40 CFRpart 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 oftoday's action, EPA has determined, based on the administrative

1Nor did the IGreach such a conclusion in the FinalEvaluation Report "Review ofEPA's Response
to Petition Seeking Withdrawal ofAuthorization 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 inreaching 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."

HeinOnline -- 69 Fed. Reg. 11322 2004Federal Register/Vol. 69, No. 47/Wednesday, March 10, 2004/Rules and Regulations

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 atthe 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 (withthe exception ofparts ofthe post closure rule), to the already existing hazardous waste program.

EPA does not agree with the second assertion madeby the commentors. The
commentors asserted thatIdaho's intent
to move forward with the closure plan for HLW tanks at the INEEL violated the
recent U.S. District Court ruling in NRDCv.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 ofissue are tanks WM182 and WM-183 located within the TFF at the INEEL. The tanks are subject
to RCRA andthe Department ofEnergy'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, onbehalf ofDOE, has appealed the NRDCv.Abrahamdecision to the Ninth Circuit Court ofAppeals.

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 ofthe NWPA or the AEA. The State ofIdaho joined the States of Oregon, South Carolina and Washington in an amicus briefto the Court to discuss the complex issues involved in the case ofNRDCv. Abraham.The jointbriefargued from the States' perspective that the DOE had
to apply the definition ofHLW under the NWPA to determine whether radioactive solid waste met the definition ofHLW. The ruling, which the United States appealed, held that DOE did not have discretion to dispose ofHLW in other than the type of repository required by the NWPA and that a DOE order, which set aDOE 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, thatthe ruling might have implications for how DOE addresses the HLW in the tanks: Judge Winmill's decision did not issue any form ofinjunctive reliefbut advised instead that DOE should nottake actions inconsistent withthe decision. Itmay be possible for DOE to proceed withits planned RCRA closure at Tanks WM-182 and WM-183 without violating any part ofJudge Winmill's order (e.g.ifno HLW as defined bythe NWPA is contained in the tanks). Ifonthe other-hand, it is apparent thatDOE will be unable to complete a portion ofthe RCRA closure plan dueto the legal constraints ofthe NWPA, the Department will askDOE to submit an amendment tothe plan thatprovides for complete RCRA closure, while meeting other appropriate legal requirements. Inthe interim, nothing inJudge Winmill's decision prevents DOE from moving forwardwith the emptyingand cleaning ofother 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 ofwhich 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 itsresponsibilities under the authorized hazardous waste program for "mixed waste." EPA's direct intervention in this matter, which the
commentors request, isnot called for at this time.

The commentors' third assertion was that the closure oftwo HLW tanks at INEEL is in violation ofRCRA since the DOE/ID has no INEEL RCRA Part B Permit. EPA does not agree thatthe closure ofthe first two ofeleven 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 at40 CFR part 265 subpart G, incorporated by reference and authorized in the Idaho hazardous waste program atIDAPA 58.01.05.009.

The commentors' final assertion was that the WCF atthe INEEL facility improperly closed under RCRA because the facility closed with RCRA mixed
waste andHLW 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 byIDEQ pursuant to 40 CFR part 265 subpart G. The WCF closure plan called for capping the WCF with a concrete cap. A draftpartial postclosure permit for the WCF was provided to the public for review and
comment onMay 23, 2003, and a final partial post-closure permit was issued for WCF andbecame effective on October 16, 2003. The concrete cap was a component ofthe post-closure permit. The commentors' allegation relates to the policy challenged in NRDCv. Abraham.The resolution ofthis issue does not reside in the RCRA statute or regulations and cannot be resolved in this authorization. Regardless ofthe ultimate resolution ofthe DOEpolicy challenged in NRDCv.Abraham,the
comment on the WCF is insufficient as

abasis uponwhich to decide the merits ofauthorizing this revision to the Idaho program. The revision andthe program

as a whole meet the requirements for authorization.

C.What Decisions Have We Made in ThisRule?

EPA has made afinal determination that Idaho's revisions to the Idaho authorized hazardous wasteprogram meet all ofthe 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 ofIdaho to operate its hazardous waste program as described in the revision authorization application. Idaho's authorized program willbe responsible for carrying out the aspects ofthe RCRA program described in itsrevised program application, subject to the limitations ofRCRA, including the Hazardous and Solid Waste Amendments of 1984 (HSWA).

New Federal requirements and prohibitions imposed by Federal regulations that EPApromulgates under the authority ofHSWA are implemented by EPA andtake effect in States with authorized programs before such
programs are authorized forthe requirements. Thus, EPA will implement those HSWA requirements and prohibitions in Idaho, including issuing permits orportions ofpermits, until the State is authorized to do so.
D. WhatWill Be the Effect ofToday's Action?

The effect oftoday's actionis that a facility in Idaho subject to RCRA must comply with the authorized State
program requirements andwith 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 underits State hazardous wasteprogram for violations ofits currently authorized program and will have enforcement responsibilities for the revisions which

are the subject ofthis final rule. EPA continues to have independent 

### 11323

HeinOnline -- 69 Fed. Reg. 11323 2004

### 11324 Federal Register/Vol. 69, No. 47/Wednesday, March 10, 2004/Rules and Regulations

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 byEPA and any applicable federally-issued statutes and regulations; suspend, modify or revoke permits; and

* Take enforcement actions regardless ofwhether 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 ofJuly 1, 2001, as incorporated byreference in IDAPA 58.01.05.(002)-(016) and 58.01.05.997, except specific portions ofthe post closure rule noted in the paragraphs below.2 EPA has determined that the revisions to Idaho's hazardous waste program satisfy all ofthe requirements
necessary for final authorization, and EPA is authorizing the state's changes.

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, Postclosure requirements for facilities that obtain enforceable documents in lieu of post-closure permits; 40 CFR 265.110(c), and40 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 (asdefined 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),

2Sections ofthe Federal hazardous waste
program are not delegable to the states. These sections are 40 CFRpart 262, subpartsE, F, &H; 40 CFR 268.5; 40 CFR268.42(b); 40 CFR 268.44(a)- (g);and 40 CFR 268.6. Authority for implementing the provisions contained inthese sections remains with EPA. 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 PermitsAfter This Authorization Takes Effect?

Idaho willissue permits for all the provisions for which itis authorized and will administer the permits it issues. All permits or portions of permits issued by EPAprior to final authorization ofthis revision will continue to be administered byEPA until the effective date ofthe issuance, re-issuance after modification, or denial ofa State RCRApermit oruntil the permit otherwise expires or is revoked, anduntil EPAtakes action on itspermit

orportion ofpermit. HSWA provisions for which the State is not authorized will continue in effect under the EPAissued permit orportion ofpermit. EPA will continue to issue permits or portions ofpermits for HSWA requirements for which Idaho isnot yet authorized.
G. WhatIs Codification and Is EPA Codifying Idaho's Hazardous Waste Program asAuthorized in This Rule?

Codification isthe process ofplacing the State's statutes andregulations that comprise the State's authorized hazardous waste program into the Code ofFederal Regulations. EPA does thisby referencing the authorized State's authorized rules in 40 CFR part 272. EPA isreserving the amendment of40 CFR part 272, subpart F for codification ofIdaho's program ata 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 ofthis authorization, "Indian Country," as defined in 18 U.S.C. 1151. This includes: (1)All lands within the exterior boundaries ofIndian reservations within or abutting the State ofIdaho; (2) any land held in trustby the U.S. for an Indian tribe; and (3) any other land, whether on oroffan Indian reservation that qualifies asIndian country. Therefore, this actionhas no effect onIndian country. EPAretains jurisdiction over "Indian Country" as defined in 18 U.S.C. 1151.

I. Statutory and Executive Order Reviews

1.Executive Order12866

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 ofthe Executive Order. The Order defines "significant regulatory action" as one that is likely
to result in a rule thatmay: (1)Have an annual effect onthe 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 ortribal 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 ofrecipients thereof; or (4) raise novel legal orpolicy issues arising out oflegal mandates, the President's priorities, or the principles set forth in the Executive Order. Ithas been determined that this final rule is not a "significant regulatory action" under the terms ofExecutive Order 12866 and is therefore not subject
to OMB review.

2.Paperwork ReductionAct
The Paperwork Reduction Act, 44 U.S.C. 3501, et seq., is intended to minimize the reporting and recordkeepingburden on the regulated community, as well as to minimize the
cost ofFederal 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 ofthe PaperworkReduction Act.

3.RegulatoryFlexibility

The Regulatory Flexibility Act (RFA),

as amended bythe Small Business Regulatory Enforcement Fairness Act (SBREFA), 5U.S.C. 601 etseq., generally requires federal agencies to prepare aregulatory flexibility analysis ofany rule subject to notice and
comment rulemaking requirements underthe 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 ofsmall entities. Small entities include small businesses, small organizations, and small governmental jurisdictions. For
purposes ofassessing 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

HeinOnline -- 69 Fed. Reg. 11324 2004Federal Register/Vol. 69, No. 47/Wednesday, March 10, 2004/Rules and Regulations

part 121; (2)a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population ofless 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 ofauthorizing preexisting requirements under State law. After considering the economic impacts oftoday's proposed rule, I certify that this action will not have a significant economic impact on a substantial number ofsmall entities.

4. UnfundedMandatesReformAct

Title II ofthe 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 ofthe 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 ofthe UMRA generally requires EPAto identify and consider areasonable number ofregulatory alternatives and adopt the least costly, most costeffective or least burdensome alternative that achieves the objectives ofthe rule. The provisions ofsection 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows EPAto adopt an alternative other than the least costly, mostcost-effective

orleast burdensome alternative ifthe Administrator publishes with the final rule an explanation why the alternative

was not adopted. Before EPA establishes any regulatory requirements that may significantly oruniquely affect small governments, including tribal governments, it must have developed under section 203 ofthe UMRA a small government agency plan.The plan must provide for notifying potentially affected small governments, enabling officials ofaffected small governments to have meaningful and timely input in the development ofEPAregulatory 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 (underthe regulatory provisions ofTitle II ofthe UMRA) for State, local ortribal governments or the private sector. It imposes no new enforceable duty on any State, local or tribal governments orthe private sector. Similarly, EPAhas also determined that this rule contains no regulatory requirements that might significantly or uniquely affect small government entities. Thus, the requirements of section 203 ofthe UMRA do not apply
to this rule.

5.Executive Order13132:Federalism

Executive Order 13132, entitled "Federalism" (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure "meaningful and timely inputby State and local officials in the development of regulatory policies thathave federalism implications." "Policies that have federalism implications" is defined in the Executive Order to include regulations thathave "substantial direct effects onthe States, onthe relationship between the national government and the States, or onthe distribution of
power and responsibilities among various levels ofgovernment."

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 ofpower and responsibilities amongvarious levels of government, as specified in Executive Order 13132. This rule addresses the authorization ofpre-existing State rules. Thus, Executive Order 13132 does not apply to this rule.

6.Executive Order13175:Consultation andCoordinationWithIndian 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 inputby tribal officials in the development of regulatory policies thathave 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 Order13045:Protectionof ChildrenFromEnvironmentalHealth andSafetyRisks

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 thatEPA has reason to believe mayhave a disproportionate effect on children. Ifthe regulatory action meets both criteria, the Agency
must evaluate the environmental health

or safety effects ofthe 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 itis not economically significant as defined in Executive Order 12866 andbecause the Agency does nothave reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children.

8.Executive Order13211:Actions That Significantly Affect EnergySupply, Distribution,orUse

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 itis
not a "significant regulatory action" as defined under Executive Order 12866.

9.NationalTechnologyTransferand AdvancementAct
Section 12(d) ofthe National Technology Transfer andAdvancement Act of1995 ("NTTAA"), Public LawNo. 104-113, 12(d) (15 U.S.C. 272) directs EPAto use voluntary consensus standards in itsregulatory 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 EPAto provide Congress, through the OMB, explanations when the Agency decides
notto use available and applicable voluntary consensus standards. This rule does not involve "technical standards" as defined bythe NTTAA. Therefore, EPA is not considering the

use of any voluntary consensus standards.

10.Executive Order12898:Federal Actions ToAddressEnvironmental JusticeinMinorityPopulations andLow IncomePopulations

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 ofits mission by identifying and addressing, as 

### 11325

HeinOnline -- 69 Fed. Reg. 11325 2004

### 11326 Federal Register/Vol. 69, No. 47/Wednesday, March 10, 2004/Rules and Regulations

appropriate, disproportionately high and adverse human health and environmental effects ofitsprograms, policies, and activities on minority populations and low-income populations in the United States and its territories andpossessions, the District ofColumbia, 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 ReviewAct

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 arule report, which includes a copy ofthe rule, to each House ofthe Congress and tothe Comptroller General ofthe United States. EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House ofRepresentatives, and the Comptroller General ofthe United States prior to publication ofthe rule in the FederalRegister. 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 FederalRegister.

List of Subjects in 40 CFRPart271

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

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

Dated: March 3,2004. L.John lani, RegionalAdministrator, Region 10. [FRDoc. 04-5368 Filed 3-9-04; 8:45 am]

BILLING CODE 6560-50-P FEDERAL COMMUNICATIONS COMMISSION

47 CFR Part 54 [CC Docket No. 96-45, DA 03-4070]

Federal-State JointBoard on Universal Service

AGENCY: Federal Communications Commission. ACTION: Finalrule.

SUMMARY: In this document, the Wireline Competition Bureau (Bureau) updates line counts and other input data used in the Commission's forwardlooking economic costmodel for
purposes ofcalculating and targeting non-rural high-cost support beginning January 1, 2004. The Bureau denies a petition filed bythe Maine Public Utilities Commission and the Vermont Public Service Board (Joint Commenters) seeking reconsideration of the Bureau's 2002 Line Counts Update Order. ADDRESSES: The full text ofthis document is available for public inspection duringregular business hours in the FCC Reference Center, Room CY-A257, 445 12th Street, SW., Washington, DC 20554. FOR FURTHER INFORMATION CONTACT: Thomas Buckley, Attorney, Telecommunications Access Policy Division, Wireline Competition Bureau, (202) 418-7400, TTY (202) 418-0484. SUPPLEMENTARY INFORMATION: This is a summary ofthe Bureau's Order and Order on Reconsideration in CC Docket No. 96-45, DA 03-4070 released December 24, 2003.

I. Introduction
1.The Bureau, consistent with action taken in the past, updates line counts and otherinput dataused in the Commission's forward-looking economic cost model for purposes of calculating and targeting non-rural highcost support beginningJanuary 1, 2004. In the Order onReconsideration, the Bureau denies a petition filed by the Maine Public Utilities Commission and the Vermont Public Service Board (Joint Commenters) seeking reconsideration of the Bureau's 2002Line Counts Update Order,67 FR 3118, January 23, 2002.

II. Discussion

A. SwitchedLine Count Updates
2.Consistent with the framework adopted in the Twentieth ReconsiderationOrder, 65 FR 26513, May 8, 2000, and the 2001and2002 Line Counts UpdateOrders,65 FR 81759, December 27, 2000 and 67 FR 3118, January 23, 2002, we conclude thatthe costmodel should use year-end 2002 line counts filed July 31, 2003, as inputvalues for purposes ofestimating average forward-looking costs and determining support for non-rural carriers beginningJanuary 1, 2004. We will adjust support amounts every quarter toreflect the lines reported by non-rural carriers. In addition, we will allocate switched lines to the classes of service used in the model by dividing year-end 2002 lines into business lines, residential lines, payphone lines, and single-line business lines for each wire
center in the same proportion asthe lines filed pursuant tothe 1999Data Request.

3. We disagree with BellSouth that line counts should not be updated unless the Bureau also updates road and
customer location data. Updated line
count data are readily available, whereas updated road and customer location data are not. As we have explained in the past, line count data
mustbe updated toreflect cost changes and economies of scale associated with changes in line counts, consistent with the Commission's forward-looking cost criteria established in the First Report andOrder,67 FR 41862, June 20, 1997. Line count data also shouldbe updated
to avoid increasing the lagbetween such data and the quarterly line count data usedto adjust non-rural high-cost support amounts. We are not persuaded thatupdating line counts is inappropriate because it may fail to reflect certain costs associated with serving new customer locations. The model's use ofroad surrogate data to determine customer locations ensures thatthe structure costs associated with serving new customer locations are reflected in model cost estimates unless such locations are along new roads. BellSouth contends that recent switched line decreases and new housing growth in its service territory undermine the assumption that most new lines are either placed at existing customer locations or along existing cable routes, but it submits no data in support ofthis contention. Switched lines nationwide decreased by 3.3 percent in 2002, and Commission data indicate that households increased by approximately

one percent. Based on these data, we cannot conclude thatthe trends identified by BellSouthjustify not updating line count data. On balance,

we find that updating line count data is the best approach for estimating forward-looking costs and determining non-rural high-cost support amounts for 2004.

4. We also disagree with AT&T's argument that we should use projected

HeinOnline -- 69 Fed. Reg. 11326 2004