Federal Register / Vol. 73, No. 247 / Tuesday, December 23, 2008 / Rules and Regulations 78647 

Electric arc furnace means any designed to capture pollutants at the electrodes and outer edges of the cover 

furnace wherein electrical energy is source, convey them through ductwork, to eliminate air being drawn in under 

converted to heat energy by and exhausts them from a control the cover. 

transmission of current between device. Fugitive emissions include Tapping means the removal of 

electrodes partially submerged in the pollutants released to the atmosphere product from the EAF or other reaction 

furnace charge. through windows, doors, vents, or other vessel under normal operating 

Electrometallurgical operations means building openings. Fugitive emissions conditions, such as removal of metal 

the use of electric and electrolytic also include pollutants released to the under normal pressure and movement 

processes to purify metals or reduce atmosphere through other general by gravity down the spout into the ladle. 

metallic compounds to metals. building ventilation or exhaust systems § 63.11533–63.11543 [Reserved] Fugitive emissions means any not specifically designed to capture 

pollutant released to the atmosphere pollutants at the source. As required in § 63.11530, you must 

that is not discharged through a Sealed EAF means a furnace equipped meet each requirement in the following 

ventilation system that is specifically with the cover with seals around the table that applies to you. 

TABLE 1 TO SUBPART YYYYYY OF PART 63—APPLICABILITY OF GENERAL PROVISIONS 

Citation 

63.11 ..........................................................
 

63.2 ............................................................
 

63.3 ............................................................
 

63.4 ............................................................
 

63.5 ............................................................
 

63.6 ............................................................
 

63.8 ............................................................
 

63.9 ............................................................
 

63.10 ..........................................................
 

63.12 ..........................................................
 

63.13 ..........................................................
 

63.14 ..........................................................
 

63.15 ..........................................................
 

63.16 ..........................................................
 

Subject 

Applicability. 


Definitions. 


Units and abbreviations. 


Prohibited activities. 


Construction/reconstruction. 


Compliance with standards and maintenance. 


Monitoring. 


Notification. 


Recordkeeping and reporting. 


State authority and delegations. 


Addresses of State air pollution control agencies and EPA regional offices. 


Incorporation by reference. 


Availability of information and confidentiality. 


Performance track provisions. 


1 § 63.11524(d), ‘‘Am I subject to this subpart?’’ exempts affected sources from the obligation to obtain title V operating permits. 

[FR Doc. E8–30424 Filed 12–22–08; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 271 

[EPA–R10–RCRA–2008–0588; FRL–8755–9] 

Idaho: Final Authorization of State 

Hazardous Waste Management 

Program Revision 

AGENCY: Environmental Protection 


Agency (EPA). 


ACTION: Final rule. 


SUMMARY: Idaho applied to the 

Environmental Protection Agency (EPA) 

for final authorization of changes to its 

hazardous waste program under the 

Resource Conservation and Recovery 

Act, as amended (RCRA). On September 

30, 2008, EPA published a proposed 

rule to authorize the changes and 

opened a public comment period under 

Docket ID No. EPA–R10–RCRA–2008– 

0588. On October 28, 2008, EPA 

published notification of an extension of 

the comment period for the proposed 

rule. The comment period closed on 

November 20, 2008. EPA has decided 

that the revisions to the Idaho 

hazardous waste management program 

satisfy all of the requirements necessary 

to qualify for final authorization and 

EPA is authorizing these revisions to 

Idaho’s authorized hazardous waste 

management program in this final rule. 

DATES: Effective Date: Final 

authorization for the revisions to the 

hazardous waste program in Idaho shall 

be effective at 1 p.m. EST on December 

23, 2008. 

FOR FURTHER INFORMATION CONTACT: 

Nina Kocourek, Mail Stop AWT–122, 

U.S. EPA Region 10, Office of Air, Waste 

and Toxics, 1200 Sixth Avenue, Suite 

900, Seattle, Washington 98101, phone 

(206) 553–6502. E-mail: 

kocourek.nina@epa.gov. 

SUPPLEMENTARY INFORMATION: 

A. Why Are Revisions to State 

Programs Necessary? 

States which have received final 

authorization from EPA under section 

3006(b) of RCRA, 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 

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 to revisions to Idaho’s 

program effective on: June 5, 1992 (57 

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

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

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

January 19, 1999 (63 FR 56086, October 

21, 1998), July 1, 2002 (67 FR 44069, 

July 1, 2002), March 10, 2004 (69 FR 

11322, March 10, 2004), July 22, 2005 

(70 FR 42273, July 22, 2005) and 

February 26, 2007 (72 FR 8283, 

February 26, 2007). 

This final rule addresses a program 

revision application that Idaho 

submitted to EPA in June 2008, in 

accordance with 40 CFR 271.21, seeking 

authorization of changes to the State 

program. On September 30, 2008, EPA 

78648 Federal Register / Vol. 73, No. 247 / Tuesday, December 23, 2008 / Rules and Regulations 

published a proposed rule (73 FR 

56775) stating the Agency’s intent to 

grant final authorization for revisions to 

Idaho’s hazardous waste program. EPA 

published an administrative extension 

of the comment period on October 28, 

2008 (73 FR 63917), to extend the public 

comment period from October 30, 2008 

to November 20, 2008. 

B. What Were the Comments on EPA’s 

Proposed Rule? 

EPA received two sets of comments 

on the proposed rule from two separate 

commenters. The first set of comments 

came from a commenter who submitted 

written comments on each proposed 

revision to the authorized Idaho 

hazardous waste program for the past 

several years. The comments submitted 

for this revision restated past arguments 

concerning revisions to the authorized 

Idaho hazardous waste program. The 

commenter objected to EPA’s action to 

revise Idaho’s hazardous waste program 

because the commenter objects to 

certain aspects of how the Idaho 

Department of Environmental Quality 

(IDEQ) carries out the authorized 

program at the Idaho National 

Laboratory (INL) facility. In 2007, the 

same commenter, on the basis of the 

same objections, petitioned the Office of 

the Inspector General (OIG) to initiate a 

formal investigation into EPA’s decision 

to revise the Idaho authorized program 

at that time. The OIG responded to the 

2007 petition on July 13, 2008, by 

closing the case without further action. 

EPA respects the commenter’s 

participation in the public process but 

believes no new concerns are raised in 

the current comments. 

The comments received from the 

second commenter raised numerous 

issues, which are addressed in this 

response. The commenter questioned 

whether EPA impermissibly adopted 

rules promulgated pursuant to nonHSWA authority and rules promulgated 

as ‘‘less stringent’’ under HSWA. 

HSWA, the Hazardous and Solid Waste 

Amendments of 1984 to the Resource 

Conservation and Recovery Act (RCRA), 

changed many aspects of hazardous 

waste management under RCRA. The 

legislative history of HSWA (98 Cong. 

Senate Report 284, HSWA Leg. Hist. 30, 

pages 6–7) explains, in part: 

These amendments also recognize that safe 

disposal, storage and treatment opportunities 

are limited and that the most effective way 

to protect human health and the environment 

is to minimize the opportunities for exposure 

by reducing or eliminating the generation of 

hazardous waste as expeditiously as possible. 

Rather than creating a rigorous regulatory 

program, provisions are included to 

encourage generators to voluntarily reduce 

the quantity and toxicity of all wastes. The 

amendments do not authorize the EPA or any 

other organization or person to intrude into 

the production-process or production 

decisions of individual generators. Taken as 

a whole, the reported bill emphasizes two 

concepts. First, wherever feasible, the 

generation of hazardous waste is to be 

reduced or eliminated as expeditiously as 

possible. Second, waste that is nevertheless 

generated should be treated, stored, or 

disposed of so as to minimize the present and 

future threat to human health and the 

environment. 

After passage of HSWA, EPA 

distinguished rules promulgated by EPA 

pursuant to the new HSWA authority 

from rules promulgated pursuant to the 

authority that pre-dated, but was not 

supplanted by, HSWA; EPA referred to 

the latter as ‘‘non-HSWA’’ rules. The 

issue of which authority, HSWA or nonHSWA, EPA exercises in each EPA 

rulemaking is distinguishable from 

EPA’s determination of whether a new 

rule promulgated by EPA under either 

authority is ‘‘more stringent’’ or ‘‘less 

stringent’’ than the regulations that had 

been promulgated earlier and are being 

revised. EPA explains the authority it is 

using, HSWA or non-HSWA, in each 

rulemaking. That explanation is 

generally found in the Federal Register 

notice for each proposed and final rule 

in the discussion of how the regulatory 

changes will be administered and 

enforced in the State. 

Regulations determined to be ‘‘more 

stringent’’ under HSWA or non-HSWA 

authority are regulations which each 

state must adopt to retain authorization 

for its hazardous waste program. 

Regulations determined to be ‘‘less 

stringent’’ under HSWA or non-HSWA 

authority are regulations which each 

state is encouraged, but not required, to 

adopt to retain its authorized hazardous 

waste program. HSWA regulations are 

not all ‘‘more stringent’’ than the 

regulations promulgated under RCRA 

before HSWA. Nor did Congress require 

all HSWA regulations to be more 

stringent; nothing in the statute, and no 

language in the legislative history, 

directs EPA to promulgate only ‘‘more 

stringent’’ provisions under HSWA 

authority. 

Since the passage of HSWA, EPA has 

been highly selective when designating 

which new regulations will apply 

directly in every State immediately 

upon the effective date of the new 

regulations. New regulations EPA 

characterizes as promulgated under 

HSWA authority and as more stringent 

apply directly in all states, including 

states with authorized hazardous waste 

programs, upon their effective dates and 

are implemented and enforced directly 

and immediately by EPA until the State 

is authorized to implement and enforce 

those regulations. Upon authorization, 

those regulations authorized as a part of 

the State hazardous waste program are 

the federally enforceable requirements 

in that State. 

The commenter questioned whether it 

was permissible for EPA to allow a state 

to adopt rules promulgated by EPA as 

‘‘less stringent than federal 

requirements.’’ EPA exercises 

discretionary authority as provided by 

Congress in section 2002 of RCRA, 42 

U.S.C. 6912, to regulate hazardous waste 

to protect human health and the 

environment and, barring explicit 

language in the statute, nothing in the 

act or amendments thereto prohibits 

EPA from promulgating new regulations 

that are ‘‘less stringent’’ or ‘‘neutral’’ 

relative to regulations that were 

promulgated earlier. If EPA promulgates 

new regulations to replace existing 

regulations, the newer regulations are, 

upon their effective date, the federal 

requirements against which a state 

program is compared when reviewing a 

revision to an authorized state 

hazardous waste program. The ‘‘less 

stringent’’ requirements are the federal 

requirements under RCRA in States 

without authorized hazardous waste 

programs. Those newer regulations 

which are less stringent than former 

regulations, may be, but are not required 

to be, adopted by states to retain an 

authorized hazardous waste program. 

Section 3009 of RCRA, 42 U.S.C. 

6929, bars a state from imposing less 

stringent requirements than those 

authorized under Subchapter III of 

RCRA respecting the same matter 

governed by such regulations. There is 

no bar prohibiting a state from imposing 

more stringent requirements and there is 

no bar prohibiting a state from adopting 

federal requirements which are 

promulgated by EPA as less stringent or 

neutral requirements as compared to 

regulations that were promulgated by 

EPA earlier. If a state adopts and is 

authorized for those ‘‘less stringent’’ 

regulations, the federally enforceable 

RCRA requirements in the State are 

those newly authorized requirements. 

The commenter questioned whether 

EPA was allowing the Attorney General 

(AG) of Idaho to ‘‘circumvent’’ a rule-byrule comparison of the federal 

regulations adopted by Idaho and the 

Idaho Statutes. The Idaho AG did 

submit a rule-by-rule statement citing 

specific statutory authority for each rule 

adopted by Idaho. EPA reviewed this 

statement, which was included in the 

docket for the rule and is Appendix I to 

the Idaho application. The ‘‘Revised 

Attorney General’s Statement for Final 

Authorization of Changes to the Federal 

Federal Register / Vol. 73, No. 247 / Tuesday, December 23, 2008 / Rules and Regulations 78649 

RCRA Program Through July 1, 2007’’ 

amends and supplements the AG 

statements in previous authorization 

applications. The table presented in the 

AG statement and certified by the AG 

contains a rule-by-rule review. EPA 

reviewed each state rule and state 

statute cited in the AG statement. This 

independent EPA review was the basis 

for EPA’s decision to propose 

authorizing the revision to the Idaho 

authorized hazardous waste program. 

Pursuant to 40 CFR 271.1(e), the 

Administrator (or delegated authority, 

in this case, the Regional Administrator) 

shall approve State programs which 

conform to the applicable requirements 

of that rule in Subpart A—Requirements 

for Final Authorization. Based on its 

review of the complete Idaho 

application, EPA concluded that the 

revisions to Idaho’s program conformed 

to the applicable requirements of 

Subpart A. 

The commenter also questioned 

whether optional rules, not required to 

be adopted, must be compared to the 

Idaho Statutes to ensure 40 CFR 271.1 

is met in light of the fact, according to 

the commenter, that the Idaho AG 

claims the State of Idaho must adopt all 

regulations promulgated by EPA, even 

those promulgated which are less 

stringent than existing regulations. EPA 

did not see any language in the AG 

statement, or elsewhere in Idaho’s 

application, indicating that the State of 

Idaho must adopt all regulations 

promulgated by EPA, even those less 

stringent. However, the AG does cite 

directly to Idaho Statute 39–4404 

(Consistency with federal law) in the 

AG Statement and in the rule-by-rule 

comparison. That provision of the Idaho 

Statutes, acknowledging the desire of 

the legislature to avoid the existence of 

duplicative, overlapping or conflicting 

state and regulatory systems, directs the 

Idaho Board of Environmental Quality 

(Board) to promulgate rules which are 

consistent with RCRA and the federal 

regulations adopted by EPA to 

implement RCRA. The Board is barred 

from promulgating any rule that would 

impose conditions or requirements more 

stringent or broader in scope than RCRA 

and the RCRA regulations promulgated 

by EPA. 

There is no statutory language 

directing the Board to immediately 

adopt less stringent rules promulgated 

by EPA to replace earlier, more stringent 

requirements. However, the AG has 

opined that the statutory language acts 

as a directive to the Board to promulgate 

rules which are consistent with RCRA 

and allows and encourages Idaho to 

adopt all less-stringent and optional 

rules promulgated by EPA. In reviewing 

each of Idaho’s rules against the Idaho 

Statutes, EPA agreed with the AG that 

adopting such rules was permissible 

under both Idaho state law and under 

RCRA, as amended by HSWA, and that 

such adoption met the requirements of 

40 CFR 271.1. 

Finally, the commenter questioned 

whether the RCRA Burden Reduction 

Initiative impermissibly removed the 

manifest notification required to be sent 

to each state with the shipment of 

waste-derived fertilizers citing to 

sections 3002 and 3009 of RCRA, 42 

U.S.C. 6922 and 6929. Section 

3002(a)(5) of RCRA, 42 U.S.C. 

6922(a)(5), directs the Administrator to 

promulgate regulations to establish 

standards applicable to generators as 

may be necessary to protect human 

health and the environment regarding 

the use of a manifest system and any 

other reasonable means necessary to 

assure that all hazardous waste 

generated is designated for treatment, 

storage, or disposal in, and arrives at, 

treatment, storage, or disposal facilities 

(except where waste was generated) for 

which a permit was issued. Pursuant to 

section 3009 of RCRA, 42 U.S.C. 6929, 

no regulation adopted under RCRA can 

be construed to prohibit any State from 

requiring the State be provided with a 

copy of each manifest used in 

connection with hazardous waste 

generated in that State or transported to 

a treatment, storage, or disposal facility 

within that State. The Burden Reduction 

Initiative (BRI), which became effective 

as an optional rule on May 4, 2006, 

streamlines EPA’s information 

collection requirements to ensure that 

only information actually needed and 

used to implement the RCRA program is 

collected while retaining the goals of 

protecting human health and the 

environment. 

Changes in manifest requirements 

made to earlier federal requirements by 

the BRI generally concern notice under 

the land disposal regulations at 40 CFR 

Part 268. The BRI does not prohibit any 

State from requiring a copy of a 

manifest. States were not required to 

adopt the BRI and States that do not 

adopt the BRI can require a copy of the 

manifest. A State is not barred from 

adopting the BRI by section 3009 of 

RCRA. 

EPA believes the Agency has the 

necessary authority to promulgate the 

rules in the federal program, including 

those in this revision to Idaho’s 

authorized hazardous waste program. 

Moreover, EPA believes that Idaho has 

the necessary authority to adopt the 

rules that are included in this revision 

of the Idaho authorized hazardous waste 

program. 

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 HSWA. 

New Federal requirements and 

prohibitions imposed by Federal 

regulations that EPA promulgates under 

the authority of HSWA as more 

stringent 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 This 

Action? 

The effect of this 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 more stringent 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 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. 

78650 Federal Register / Vol. 73, No. 247 / Tuesday, December 23, 2008 / Rules and Regulations 

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 This Action? 

In June 2008, Idaho submitted a 

complete program revision application, 

seeking authorization for all delegable 

federal hazardous waste regulations 

codified as of July 1, 2007, as 

incorporated by reference in IDAPA 

58.01.05(002)–(016) and (018). EPA is 

authorizing those rules in this action. 

F. Who Handles Permits After This 

Authorization Takes Effect? 

Idaho will continue to issue permits 

for all the provisions for which it is 

authorized and administer the permits it 

issues. If EPA issued permits prior to 

authorizing Idaho for these revisions, 

these permits would continue in force 

until the effective date of the State’s 

issuance or denial of a State hazardous 

waste permit, at which time EPA would 

modify the existing EPA permit to 

expire at an earlier date, terminate the 

existing EPA permit for cause, or allow 

the existing EPA permit to otherwise 

expire by its terms, except for those 

facilities located in Indian Country. EPA 

will not issue new permits or new 

portions of permits for provisions for 

which Idaho is authorized after the 

effective date of this authorization. EPA 

will continue to implement and issue 

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 (CFR) 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 This Action Affect Indian 

Country (18 U.S.C. 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 

This final rule revises the State of 

Idaho’s authorized hazardous waste 

program pursuant to section 3006 of 

RCRA and imposes no requirements 

other than those currently imposed by 

State law. This final rule complies with 

applicable executive orders and 

statutory provisions as follows: 

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 Executive 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. EPA 

has 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 

This final action does not impose an 

information collection burden under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq., because this 

final rule does not establish or modify 

any information or recordkeeping 

requirements for the regulated 

community and only seeks to authorize 

the pre-existing requirements under 

State law and imposes no additional 

requirements beyond those imposed by 

State law. 

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 in Title 

40 of the CFR are listed in 40 CFR Part 

9. 

3. Regulatory Flexibility Act 

The Regulatory Flexibility Act (RFA), 

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 this 

final rule on small entities, small entity 

is defined as: (1) A small business 

defined by the Small Business 

Administration’s size regulations at 13 

CFR Part 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-forprofit 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 economic impact on 

small entities because the final rule will 

only have the effect of authorizing preexisting requirements under State law 

and imposes no additional requirements 

beyond those imposed by State law. 

After considering the economic impacts 

of this final 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 

This action contains no Federal 

mandates under the provisions of Title 

Federal Register / Vol. 73, No. 247 / Tuesday, December 23, 2008 / Rules and Regulations 78651 

II of the Unfunded Mandates Reform 

Act of 1995 (UMRA), 2 U.S.C. 1531– 

1538 for State, local, or tribal 

governments or the private sector. The 

action imposes no new enforceable duty 

on any State, local or tribal governments 

or the private sector. Therefore, this 

action is not subject to the requirements 

of sections 202 or 205 of the UMRA. 

This action is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. 

Those entities are already subject to the 

regulatory requirements that are 

included in the revisions to the State 

program in this final action. 

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 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 various levels of 

government, as specified in Executive 

Order 13132. This final rule authorizes 

pre-existing State rules. Thus, Executive 

Order 13132 does not apply to this final 

rule. 

6. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

Executive Order 13175, entitled 

‘‘Consultation and Coordination with 

Indian Tribal Governments’’ (59 FR 

22951, 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 because EPA 

retains its authority over Indian 

Country. EPA specifically solicited 

additional comment on the proposed 

rule from tribal officials and no tribe 

commented on this action. Thus, 

Executive Order 13175 does not apply 

to this final rule. 

7. Executive Order 13045: Protection of 

Children From Environmental Health 

and Safety Risks 

EPA interprets EO 13045 (62 F.R. 

19885, April 23, 1997) as applying only 

to those regulatory actions that concern 

health or safety risks, such that the 

analysis required under section 5–501 of 

the EO has the potential to influence the 

regulation. This action is not subject to 

EO 13045 because it approves a state 

program. 

8. Executive Order 13211: Actions That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This final 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 

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 OMB, explanations 

when the Agency decides not to use 

available and applicable voluntary 

consensus standards. This final 

rulemaking does not involve technical 

standards. 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 

Executive Order (EO) 12898 (59 FR 

7629, February 16, 1994) establishes 

federal executive policy on 

environmental justice. Its main 

provision directs federal agencies, to the 

greatest extent practicable and 

permitted by law, to make 

environmental justice part of their 

mission by identifying and addressing, 

as appropriate, disproportionately high 

and adverse human health or 

environmental effects of their programs, 

policies, and activities on minority 

populations and low-income 

populations in the United States. EPA 

has determined that this final rule will 

not have disproportionately high and 

adverse human health or environmental 

effects on minority or low-income 

populations. This final rule does not 

affect the level of protection provided to 

human health or the environment 

because this rule authorizes pre-existing 

State rules which are equivalent to, and 

no less stringent than existing federal 

requirements. 

11. Congressional Review Act 

The Congressional Review Act (CRA), 

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). 

List of Subjects in 40 CFR Part 271 

Environmental protection, 

Administrative practice and procedure, 

Confidential business information, 

Hazardous materials transportation, 

Hazardous waste, Indians—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: December 16, 2008. 

Elin D. Miller, 

Regional Administrator, Region 10. 

[FR Doc. E8–30516 Filed 12–22–08; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 312 

[EPA–HQ–SFUND–2008–0873; FRL–8755–6] 

RIN 2050–AG47 

Amendment to Standards and 

Practices for All Appropriate Inquiries 

Under CERCLA 

AGENCY: Environmental Protection 

Agency (EPA).