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[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 to the United

States Environmental Protection Agency

(EPA) for final authorization of changes

to its hazardous waste program under

the Resource Conservation and

Recovery Act (RCRA). On August 1,

2003, EPA published a proposed rule to

authorize the changes and opened a

public comment period. The comment

period closed on September 15, 2003.

Today, EPA has decided that these

revisions to the Idaho hazardous waste

management program satisfy all of the

requirements necessary to qualify for

final authorization and is authorizing

these revisions to Idaho's authorized

hazardous waste management program

in today's final rule.

EFFECTIVE DATE: Final authorization for

the revisions to the hazardous waste

program in Idaho shall be effective at 1

p.m. e.s.t. on March 10, 2004.

FOR FURTHER INFORMATION CONTACT: Jeff

Hunt, WCM-122, U.S. EPA Region 10,

Office of Waste and Chemicals

Management, 1200 Sixth Avenue, Mail

Stop WCM-122, Seattle, Washington,

98101, phone (206) 553-0256.

SUPPLEMENTARY INFORMATION:

A. Why Are Revisions to State

Programs Necessary?

States which have received final

authorization from EPA under RCRA

section 3006(b), 42 U.S.C. 6926(b), must

maintain a hazardous waste program

that is equivalent to and consistent with

the Federal program. States are required

to have enforcement authority which is

adequate to enforce compliance with the

requirements of the hazardous waste

program. Under RCRA section 3009,

States are not allowed to impose any

requirements which are less stringent

than the Federal program. Changes to

State programs may be necessary when

Federal or State statutory or regulatory

authority is modified or when certain

other changes occur. Most commonly,

States must change their programs

because of changes to EPA's regulations

in title 40 of the Code of Federal

Regulations (CFR) parts 124, 260

through 266, 268, 270, 273 and 279.

Idaho's hazardous waste management

program received final authorization

effective on April 9, 1990 (55 FR 11015,

March 29, 1990). EPA also granted

authorization for revisions to Idaho's

program effective on June 5, 1992 (57 FR

11580, April 6, 1992), on August 10,

1992 (57 FR 24757, June 11, 1992), on

June 11, 1995 (60 FR 18549, April 12,

1995), on January 19, 1999 (63 FR

56086, October 21, 1998), and most

recently on July 1, 2002 (67 FR 44069,

July 1, 2002).

Today's final rule addresses a

program revision application that Idaho

submitted to EPA on June 6, 2003, in

accordance with 40 CFR 271.21, seeking

authorization of changes to the State

program. On August 1, 2003, EPA

published a proposed rule announcing

its intent to grant Idaho final

authorization for revisions to Idaho's

hazardous waste program and provided

a period of time for the receipt of public

comments. The proposed rule can be

found at 68 FR 45192.

B. What Were the Comments to EPA's

Proposed Rule?

EPA received one adverse comment

letter during the comment period on the

proposed rule. The comment letter was

submitted by the Environmental

Defense Institute, Keep Yellowstone

Nuclear Free and David B. McCoy,

collectively the commentors. EPA has

taken into consideration the comments

relating to the authorization of revisions

to the Idaho hazardous waste

management program in taking today's

action. The issues raised by the

commentors for purposes of this

revision authorization and EPA's

responses follow below.

The commentors raised issues in the

following areas: (1) The commentors

asserted that EPA is obligated to delay

issuing a final rule for authorization of

these revisions to the Idaho hazardous

waste management program until

completion of an EPA Office of

Inspector General (IG) investigation

based on a petition submitted to the

Office of Inspector General on August 8,

2000; (2) the commentors asserted that

Idaho's intent to move forward with the

closure plan for two high level

radioactive waste (HLW) and mixed

waste tanks at the Idaho National

Engineering and Environmental

Laboratory (INEEL) violates the recent

U.S. District Court ruling in Natural

Resources Defense Council, et a]. v.

Spencer Abraham (NRDC v. Abraham),

Case No. 01-CV-413 (July 3, 2003) and

requires EPA intervention to ensure

enforcement of the applicable law, in

particular with respect to RCRA "mixed

waste;" (3) the commentors asserted that

the Tank Farm Facility (TFF) "closure

plan is in violation of RCRA since the

DOE/ID has no INEEL RCRA Part B

Permit;" and (4) the commentors

asserted that the Waste Calcine Facility

(WCF) at the INEEL was improperly

closed under RCRA because the facility

closed with RCRA mixed waste and

HLW in place. While these comments

focused on a single facility in Idaho and

the decisions made by DEQ regarding

that facility, the commentors, both in

the comment letter and in the numerous

attachments thereto, implied that DEQ's

actions at this facility had program-wide

implications.

In preparing its response to these

comments, EPA reviewed, among other

documents, the comments and their

attachments, the available files on the

particular permits and units, including

the WCF and the TFF, and the recent

ruling in NRDC v. Abraham, as well as

the joint amicus brief submitted by the

States of Idaho, Washington, Oregon

and South Carolina, and the

Memorandum of Points and Authorities

filed on March 6, 2003 by the United

States Department of Justice on behalf of

the Department of Energy. The

administrative record compiled for this

final rule can be located by contacting

the individual listed in the FOR FURTHER

INFORMATION CONTACT section of this

rule.

With respect to the first comment on

the proposed rule, EPA does not agree

that it is obligated to delay this action

until completion of an IG investigation.'

The revisions to authorized hazardous

waste programs are addressed in the

regulations at 40 CFR 271.21. Program

revisions are approved or disapproved

by the Administrator based on the

requirements of 40 CFR part 271 and the

Resource Conservation and Recovery

Act, as amended, (Act). See 40 CFR

271.21(b)(2). The Administrator has the

discretion, among other things, to

decline to approve a program revision as

well as to withdraw approval of an

authorized state program for cause. For

purposes of today's action, EPA has

determined, based on the administrative

1 Nor did the IG reach such a conclusion in the

Final Evaluation Report "Review of EPA's Response

to Petition Seeking Withdrawal of Authorization for

Idaho's Hazardous Waste Program," Report No.

2004-P-00006, February 5, 2004. The IG did

conclude that "Region 10 generally relied on

appropriate regulatory requirements and standards

in reaching its conclusion that evidence did not

exist to commence proceedings to withdraw the

State of Idaho's authority to run its RCRA

Hazardous Waste program."

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record, that authorizing these revisions

to Idaho's hazardous waste management

program meets the requirements for

authorization and continues to ensure

that the authorized program in Idaho

can meet the requirements for

permitting, enforcement, and

environmental protection at the INEEL

facility and throughout the State of

Idaho. The revisions in today's final rule

include the rules in Idaho that add all

delegable federal hazardous waste rules

promulgated between July 1, 1998, and

July 1, 2001 (with the exception of parts

of the post closure rule), to the already

existing hazardous waste program.

EPA does not agree with the second

assertion made by the commentors. The

commentors asserted that Idaho's intent

to move forward with the closure plan

for HLW tanks at the INEEL violated the

recent U.S. District Court ruling in

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 of issue are tanks WM182 and WM-183 located within the

TFF at the INEEL. The tanks are subject

to RCRA and the Department of Energy's

(DOE) authority under the Atomic

Energy Act (AEA), as DOE maintains, or

to the Nuclear Waste Policy Act

(NWPA), as the District Court

concluded. The U.S. Department of

Justice, on behalf of DOE, has appealed

the NRDC v. Abraham decision to the

Ninth Circuit Court of Appeals.

The commentors failed to distinguish

the RCRA "mixed waste" authority and

its application to the tanks from those

radioactive solid waste issues which

may be the subject of the NWPA or the

AEA. The State of Idaho joined the

States of Oregon, South Carolina and

Washington in an amicus brief to the

Court to discuss the complex issues

involved in the case of NRDC v.

Abraham. The joint brief argued from

the States' perspective that the DOE had

to apply the definition of HLW under

the NWPA to determine whether

radioactive solid waste met the

definition of HLW. The ruling, which

the United States appealed, held that

DOE did not have discretion to dispose

of HLW in other than the type of

repository required by the NWPA and

that a DOE order, which set a DOE

policy to make decisions on how to

classify radiological waste, conflicted

with the NWPA and was invalid.

The Idaho Department of

Environmental Quality (IDEQ)

explained to the commentors by letter

dated July 29, 2003, that the ruling

might have implications for how DOE

addresses the HLW in the tanks:

Judge Winmill's decision did not issue any

form of injunctive relief but advised instead

that DOE should not take actions inconsistent

with the decision. It may be possible for DOE

to proceed with its planned RCRA closure at

Tanks WM-182 and WM-183 without

violating any part of Judge Winmill's order

(e.g. if no HLW as defined by the NWPA is

contained in the tanks). If on the other-hand,

it is apparent that DOE will be unable to

complete a portion of the RCRA closure plan

due to the legal constraints of the NWPA, the

Department will ask DOE to submit an

amendment to the plan that provides for

complete RCRA closure, while meeting other

appropriate legal requirements. In the

interim, nothing in Judge Winmill's decision

prevents DOE from moving forward with the

emptying and cleaning of other tanks and

other closure activities.

It is clear that Idaho understands the

difference between the state's authority

over RCRA "mixed waste," the

hazardous waste component of which is

addressed by the RCRA-authorized

hazardous waste program in Idaho, and

"HLW," the radiological component of

which may be subject to the AEA, as

DOE maintains, or to the NWPA, as the

District Court concluded. Idaho is

carrying out its responsibilities under

the authorized hazardous waste program

for "mixed waste." EPA's direct

intervention in this matter, which the

commentors request, is not called for at

this time.

The commentors' third assertion was

that the closure of two HLW tanks at

INEEL is in violation of RCRA since the

DOE/ID has no INEEL RCRA Part B

Permit. EPA does not agree that the

closure of the first two of eleven Tank

Farm Facility (TFF) tanks without a

permit violates RCRA. Interim status

units are allowed to close pursuant to a

closure plan approved in accordance

with the Federal regulations at 40 CFR

part 265 subpart G, incorporated by

reference and authorized in the Idaho

hazardous waste program at IDAPA

58.01.05.009.

The commentors' final assertion was

that the WCF at the INEEL facility

improperly closed under RCRA because

the facility closed with RCRA mixed

waste and HLW in place rendering the

facility a "permanent disposal site" for

high-level radioactive waste and mixed

hazardous transuranic waste. The WCF

was closed in accordance with a closure

plan approved by IDEQ pursuant to 40

CFR part 265 subpart G. The WCF

closure plan called for capping the WCF

with a concrete cap. A draft partial postclosure permit for the WCF was

provided to the public for review and

comment on May 23, 2003, and a final

partial post-closure permit was issued

for WCF and became effective on

October 16, 2003. The concrete cap was

a component of the post-closure permit.

The commentors' allegation relates to

the policy challenged in NRDC v.

Abraham. The resolution of this issue

does not reside in the RCRA statute or

regulations and cannot be resolved in

this authorization. Regardless of the

ultimate resolution of the DOE policy

challenged in NRDC v. Abraham, the

comment on the WCF is insufficient as

a basis upon which to decide the merits

of authorizing this revision to the Idaho

program. The revision and the program

as a whole meet the requirements for

authorization.

C. What Decisions Have We Made in

This Rule?

EPA has made a final determination

that Idaho's revisions to the Idaho

authorized hazardous waste program

meet all of the statutory and regulatory

requirements established by RCRA for

authorization. Therefore, EPA is

authorizing the revisions to the Idaho

hazardous waste program and

authorizing the State of Idaho to operate

its hazardous waste program as

described in the revision authorization

application. Idaho's authorized program

will be responsible for carrying out the

aspects of the RCRA program described

in its revised program application,

subject to the limitations of RCRA,

including the Hazardous and Solid

Waste Amendments of 1984 (HSWA).

New Federal requirements and

prohibitions imposed by Federal

regulations that EPA promulgates under

the authority of HSWA are implemented

by EPA and take effect in States with

authorized programs before such

programs are authorized for the

requirements. Thus, EPA will

implement those HSWA requirements

and prohibitions in Idaho, including

issuing permits or portions of permits,

until the State is authorized to do so.

D. What Will Be the Effect of Today's

Action?

The effect of today's action is that a

facility in Idaho subject to RCRA must

comply with the authorized State

program requirements and with any

applicable Federally-issued

requirement, such as, for example, the

federal HSWA provisions for which the

State is not authorized, and RCRA

requirements that are not supplanted by

authorized State-issued requirements, in

order to comply with RCRA. Idaho has

enforcement responsibilities under its

State hazardous waste program for

violations of its currently authorized

program and will have enforcement

responsibilities for the revisions which

are the subject of this final rule. EPA

continues to have independent

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enforcement authority under RCRA

sections 3007, 3008, 3013, and 7003,

which include, among others, authority

to:

* Conduct inspections; require

monitoring, tests, analyses or reports;

* Enforce RCRA requirements,

including State program requirements

that are authorized by EPA and any

applicable federally-issued statutes and

regulations; suspend, modify or revoke

permits; and

* Take enforcement actions regardless

of whether the State has taken its own

actions.

This final action approving these

revisions will not impose additional

requirements on the regulated

community because the regulations for

which Idaho's program is being

authorized are already effective under

State law.

E. What Rules Are We Authorizing

With Today's Action?

On June 6, 2003, Idaho submitted a

complete program revision application,

seeking authorization for all delegable

Federal hazardous waste regulations

codified as of July 1, 2001, as

incorporated by reference in IDAPA

58.01.05.(002)-(016) and 58.01.05.997,

except specific portions of the post

closure rule noted in the paragraphs

below.2 EPA has determined that the

revisions to Idaho's hazardous waste

program satisfy all of the requirements

necessary for final authorization, and

EPA is authorizing the state's changes.

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),

and 40 CFR 265.118(c)(4). These

provisions are described in the Post

Closure rule preamble at 63 FR 56712

section a., Post-closure care under

alternatives to permits.

Idaho is not receiving authorization

for the clause "* * * or in an

enforceable document (as defined in

270.1(c)(7))" in the following sections

which are incorporated by reference

into Idaho's hazardous waste program:

40 CFR 264.90(e), 264.90(f), 264.110(c),

264.112(b)(8), 264.112(c)(2)(iv),

2 Sections of the Federal hazardous waste

program are not delegable to the states. These

sections are 40 CFR part 262, subparts E, F, & H;

40 CFR 268.5; 40 CFR 268.42(b); 40 CFR 268.44(a)-

(g); and 40 CFR 268.6. Authority for implementing

the provisions contained in these sections remains

with EPA.

264.118(b)(4), 264.118(d)(2)(iv),

264.140(d), 265.90(f), 265.110(d),

265.112(b)(8), 265.118(c)(5), 265.140(d),

270.1(c) introduction, and 270.28.

F. Who Handles Permits After This

Authorization Takes Effect?

Idaho will issue permits for all the

provisions for which it is authorized

and will administer the permits it

issues. All permits or portions of

permits issued by EPA prior to final

authorization of this revision will

continue to be administered by EPA

until the effective date of the issuance,

re-issuance after modification, or denial

of a State RCRA permit or until the

permit otherwise expires or is revoked,

and until EPA takes action on its permit

or portion of permit. HSWA provisions

for which the State is not authorized

will continue in effect under the EPAissued permit or portion of permit. EPA

will continue to issue permits or

portions of permits for HSWA

requirements for which Idaho is not yet

authorized.

G. What Is Codification and Is EPA

Codifying Idaho's Hazardous Waste

Program as Authorized in This Rule?

Codification is the process of placing

the State's statutes and regulations that

comprise the State's authorized

hazardous waste program into the Code

of Federal Regulations. EPA does this by

referencing the authorized State's

authorized rules in 40 CFR part 272.

EPA is reserving the amendment of 40

CFR part 272, subpart F for codification

of Idaho's program at a later date.

H. How Does Today's Action Affect

Indian Country (18 U.S.C. Section 1151)

in Idaho?

EPA's decision to authorize the Idaho

hazardous waste program does not

include any land that is, or becomes

after the date of this authorization,

"Indian Country," as defined in 18

U.S.C. 1151. This includes: (1) All lands

within the exterior boundaries of Indian

reservations within or abutting the State

of Idaho; (2) any land held in trust by

the U.S. for an Indian tribe; and (3) any

other land, whether on or off an Indian

reservation that qualifies as Indian

country. Therefore, this action has no

effect on Indian country. EPA retains

jurisdiction over "Indian Country" as

defined in 18 U.S.C. 1151.

I. Statutory and Executive Order

Reviews

1. Executive Order 12866

Under Executive Order 12866 (58 FR

51735, October 4,1993), the Agency

must determine whether the regulatory

action is "significant", and therefore

subject to OMB review and the

requirements of the Executive Order.

The Order defines "significant

regulatory action" as one that is likely

to result in a rule that may: (1) Have an

annual effect on the economy of $100

million or more, or adversely affect in

a material way, the economy, a sector of

the economy, productivity, competition,

jobs, the environment, public health or

safety, or State, local or tribal

governments or communities; (2) create

a serious inconsistency or otherwise

interfere with an action taken or

planned by another agency; (3)

materially alter the budgetary impact of

entitlements, grants, user fees, or loan

programs, or the rights and obligations

of recipients thereof; or (4) raise novel

legal or policy issues arising out of legal

mandates, the President's priorities, or

the principles set forth in the Executive

Order. It has been determined that this

final rule is not a "significant regulatory

action" under the terms of Executive

Order 12866 and is therefore not subject

to OMB review.

2. Paperwork Reduction Act

The Paperwork Reduction Act, 44

U.S.C. 3501, et seq., is intended to

minimize the reporting and recordkeeping burden on the regulated

community, as well as to minimize the

cost of Federal information collection

and dissemination. In general, the Act

requires that information requests and

record-keeping requirements affecting

ten or more non-Federal respondents be

approved by OPM. Since this final rule

does not establish or modify any

information or record-keeping

requirements for the regulated

community, it is not subject to the

provisions of the Paperwork Reduction

Act.

3. Regulatory Flexibility

The Regulatory Flexibility Act (RFA),

as amended by the Small Business

Regulatory Enforcement Fairness Act

(SBREFA), 5 U.S.C. 601 et seq.,

generally requires federal agencies to

prepare a regulatory flexibility analysis

of any rule subject to notice and

comment rulemaking requirements

under the Administrative Procedure Act

or any other statute unless the agency

certifies that the rule will not have a

significant economic impact on a

substantial number of small entities.

Small entities include small businesses,

small organizations, and small

governmental jurisdictions. For

purposes of assessing the impacts of

today's rule on small entities, small

entity is defined as: (1) A small

business, as codified in the Small

Business Size Regulations at 13 CFR

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part 121; (2) a small governmental

jurisdiction that is a government of a

city, county, town, school district or

special district with a population of less

than 50,000; and (3) a small

organization that is any not-for-profit

enterprise which is independently

owned and operated and is not

dominant in its field. EPA has

determined that this action will not

have a significant impact on small

entities because the final rule will only

have the effect of authorizing preexisting requirements under State law.

After considering the economic impacts

of today's proposed rule, I certify that

this action will not have a significant

economic impact on a substantial

number of small entities.

4. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates

Reform Act (UMRA) of 1995 (Pub. L.

104-4) establishes requirements for

Federal agencies to assess the effects of

their regulatory actions on State, local

and tribal governments and the private

sector. Under section 202 of the UMRA,

EPA generally must prepare a written

statement, including a cost-benefit

analysis, for proposed and final rules

with "Federal mandates" that may

result in expenditures to State, local and

tribal governments, in the aggregate, or

to the private sector, of $100 million or

more in any year. Before promulgating

an EPA rule for which a written

statement is needed, Section 205 of the

UMRA generally requires EPA to

identify and consider a reasonable

number of regulatory alternatives and

adopt the least costly, most costeffective or least burdensome alternative

that achieves the objectives of the rule.

The provisions of section 205 do not

apply when they are inconsistent with

applicable law. Moreover, section 205

allows EPA to adopt an alternative other

than the least costly, most cost-effective

or least burdensome alternative if the

Administrator publishes with the final

rule an explanation why the alternative

was not adopted. Before EPA establishes

any regulatory requirements that may

significantly or uniquely affect small

governments, including tribal

governments, it must have developed

under section 203 of the UMRA a small

government agency plan. The plan must

provide for notifying potentially

affected small governments, enabling

officials of affected small governments

to have meaningful and timely input in

the development of EPA regulatory

proposals with significant Federal

intergovernmental mandates, and

informing, educating, and advising

small governments on compliance with

the regulatory requirements.

This rule contains no Federal

mandates (under the regulatory

provisions of Title II of the UMRA) for

State, local or tribal governments or the

private sector. It imposes no new

enforceable duty on any State, local or

tribal governments or the private sector.

Similarly, EPA has also determined that

this rule contains no regulatory

requirements that might significantly or

uniquely affect small government

entities. Thus, the requirements of

section 203 of the UMRA do not apply

to this rule.

5. Executive Order 13132: Federalism

Executive Order 13132, entitled

"Federalism" (64 FR 43255, August 10,

1999), requires EPA to develop an

accountable process to ensure

"meaningful and timely input by State

and local officials in the development of

regulatory policies that have federalism

implications." "Policies that have

federalism implications" is defined in

the Executive Order to include

regulations that have "substantial direct

effects on the States, on the relationship

between the national government and

the States, or on the distribution of

power and responsibilities among

various levels of government."

This rule does not have federalism

implications. It will not have substantial

direct effects on the States, on the

relationship between the national

government and the States, or on the

distribution of power and

responsibilities among various levels of

government, as specified in Executive

Order 13132. This rule addresses the

authorization of pre-existing State rules.

Thus, Executive Order 13132 does not

apply to this rule.

6. Executive Order 13175: Consultation

and Coordination With Indian Tribal

Governments

Executive Order 13175, entitled

"Consultation and Coordination With

Indian Tribal Governments" (65 FR

67249, November 9, 2000), requires EPA

to develop an accountable process to

ensure "meaningful and timely input by

tribal officials in the development of

regulatory policies that have tribal

implications." This rule does not have

tribal implications, as specified in

Executive Order 13175. Thus, Executive

Order 13175 does not apply to this rule.

7. Executive Order 13045: Protection of

Children From Environmental Health

and Safety Risks

Executive Order 13045 applies to any

rule that: (1) is determined to be

"economically significant" as defined

under Executive Order 12866, and (2)

concerns an environmental health or

safety risk that EPA has reason to

believe may have a disproportionate

effect on children. If the regulatory

action meets both criteria, the Agency

must evaluate the environmental health

or safety effects of the planned rule on

children, and explain why the planned

regulation is preferable to other

potentially effective and reasonably

feasible alternatives considered by the

Agency.

This rule is not subject to Executive

Order 13045 because it is not

economically significant as defined in

Executive Order 12866 and because the

Agency does not have reason to believe

the environmental health or safety risks

addressed by this action present a

disproportionate risk to children.

8. Executive Order 13211: Actions That

Significantly Affect Energy Supply,

Distribution, or Use

This rule is not subject to Executive

Order 13211, "Actions Concerning

Regulations That Significantly Affect

Energy Supply, Distribution, or Use" (66

FR 28355, May 22, 2001) because it is

not a "significant regulatory action" as

defined under Executive Order 12866.

9. National Technology Transfer and

Advancement Act

Section 12(d) of the National

Technology Transfer and Advancement

Act of 1995 ("NTTAA"), Public Law No.

104-113, 12(d) (15 U.S.C. 272) directs

EPA to use voluntary consensus

standards in its regulatory activities

unless to do so would be inconsistent

with applicable law or otherwise

impractical. Voluntary consensus

standards are technical standards (e.g.,

materials specifications, test methods,

sampling procedures, and business

practices) that are developed or adopted

by voluntary consensus bodies. The

NTTAA directs EPA to provide

Congress, through the OMB,

explanations when the Agency decides

not to use available and applicable

voluntary consensus standards. This

rule does not involve "technical

standards" as defined by the NTTAA.

Therefore, EPA is not considering the

use of any voluntary consensus

standards.

10. Executive Order 12898: Federal

Actions To Address Environmental

Justice in Minority Populations and Low

Income Populations

To the greatest extent practicable and

permitted by law, and consistent with

the principles set forth in the report on

the National Performance Review, each

Federal agency must make achieving

environmental justice part of its mission

by identifying and addressing, as

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appropriate, disproportionately high

and adverse human health and

environmental effects of its programs,

policies, and activities on minority

populations and low-income

populations in the United States and its

territories and possessions, the District

of Columbia, the Commonwealth of

Puerto Rico, and the Commonwealth of

the Mariana Islands. Because this rule

addresses authorizing pre-existing State

rules and there are no anticipated

significant adverse human health or

environmental effects, the rule is not

subject to Executive Order 12898.

11. Congressional Review Act

The Congressional Review Act, 5

U.S.C. 801 et seq., as added by the Small

Business Regulatory Enforcement

Fairness Act of 1996, generally provides

that before a rule may take effect, the

agency promulgating the rule must

submit a rule report, which includes a

copy of the rule, to each House of the

Congress and to the Comptroller General

of the United States. EPA will submit a

report containing this rule and other

required information to the U.S. Senate,

the U.S. House of Representatives, and

the Comptroller General of the United

States prior to publication of the rule in

the Federal Register. A major rule

cannot take effect until 60 days after it

is published in the Federal Register.

This action is not a "major rule" as

defined by 5. U.S.C. 804(2). This rule

will be effective on the date the rule is

published in the Federal Register.

List of Subjects in 40 CFR Part 271

Environmental protection,

Administrative practice and procedure,

Confidential business information,

Hazardous waste, Hazardous waste

transportation, Indian lands,

Intergovernmental relations, Penalties,

Reporting and recordkeeping

requirements.

Authority: This action is issued under the

authority of sections 2002(a), 3006 and

7004(b) of the Solid Waste Disposal Act as

amended 42 U.S.C. 6912(a), 6926, 6974(b).

Dated: March 3, 2004.

L. John lani,

Regional Administrator, Region 10.

[FR Doc. 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 Joint Board on Universal

Service

AGENCY: Federal Communications

Commission.

ACTION: Final rule.

SUMMARY: In this document, the

Wireline Competition Bureau (Bureau)

updates line counts and other input data

used in the Commission's forwardlooking economic cost model for

purposes of calculating and targeting

non-rural high-cost support beginning

January 1, 2004. 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 2002 Line Counts Update

Order.

ADDRESSES: The full text of this

document is available for public

inspection during regular 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 of the 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 other input data used in the

Commission's forward-looking

economic cost model for purposes of

calculating and targeting non-rural highcost support beginning January 1, 2004.

In the Order on Reconsideration, 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 2002 Line Counts Update

Order, 67 FR 3118, January 23, 2002.

II. Discussion

A. Switched Line Count Updates

2. Consistent with the framework

adopted in the Twentieth

Reconsideration Order, 65 FR 26513,

May 8, 2000, and the 2001 and 2002

Line Counts Update Orders, 65 FR

81759, December 27, 2000 and 67 FR

3118, January 23, 2002, we conclude

that the cost model should use year-end

2002 line counts filed July 31, 2003, as

input values for purposes of estimating

average forward-looking costs and

determining support for non-rural

carriers beginning January 1, 2004. We

will adjust support amounts every

quarter to reflect 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 as the

lines filed pursuant to the 1999 Data

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

must be updated to reflect 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

and Order, 67 FR 41862, June 20, 1997.

Line count data also should be updated

to avoid increasing the lag between such

data and the quarterly line count data

used to adjust non-rural high-cost

support amounts. We are not persuaded

that updating line counts is

inappropriate because it may fail to

reflect certain costs associated with

serving new customer locations. The

model's use of road surrogate data to

determine customer locations ensures

that the 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 of this

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 that the trends

identified by BellSouth justify 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