Federal Register / Vol. 75, No. 148 / Tuesday, August 3, 2010 / Rules and Regulations 45489 

Federal requirements. For that reason, 

this action: 

• Is not a ‘‘significant regulatory 

action’’ subject to review by the Office 

of Management and Budget under 

Executive Order 12866 (58 FR 51735, 

October 4, 1993); 

• Does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act 

(44 U.S.C. 3501 et seq.); 

• Is certified as not having a 

significant economic impact on a 

substantial number of small entities 

under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq.); 

• Does not contain any unfunded 

mandate or significantly or uniquely 

affect small governments, as described 

in the Unfunded Mandates Reform Act 

of 1995 (Pub. L. 104–4); 

• Does not have Federalism 

implications as specified in Executive 

Order 13132 (64 FR 43255, August 10, 

1999); 

• Is not an economically significant 

regulatory action based on health or 

safety risks subject to Executive Order 

13045 (62 FR 19885, April 23, 1997); is 

not a significant regulatory action 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001); 

• Is not subject to requirements of 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (15 U.S.C. 272 note) because 

application of those requirements would 

be inconsistent with the CAA; and 

• Does not provide EPA with the 

discretionary authority to address, as 

appropriate, disproportionate human 

health or environmental effects, using 

practicable and legally permissible 

methods, under Executive Order 12898 

(59 FR 7629, February 16, 1994). 

In addition, this rule does not have 

tribal implications as specified by 

Executive Order 13175 (65 FR 67249, 

November 9, 2000), because it will not 

impose substantial direct costs on tribal 

governments or preempt tribal law. 

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 action 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). 

Under section 307(b)(1) of the Clean 

Air Act, petitions for judicial review of 

this action must be filed in the United 

States Court of Appeals for the 

appropriate circuit by October 4, 2010. 

Filing a petition for reconsideration by 

the Administrator of this final rule does 

not affect the finality of this action for 

the purposes of judicial review nor does 

it extend the time within which a 

petition for judicial review may be filed, 

and shall not postpone the effectiveness 

of such rule or action. Parties with 

objections to this direct final rule are 

encouraged to file a comment in 

response to the parallel notice of 

proposed rulemaking for this action 

published in the proposed rules section 

of today’s Federal Register, rather than 

file an immediate petition for judicial 

review of this direct final rule, so that 

EPA can withdraw this direct final rule 

and address the comment in the 

proposed rulemaking. This action may 

not be challenged later in proceedings to 

enforce its requirements. (See section 

307(b)(2)). 

List of Subjects in 40 CFR Part 81 

Environmental protection, Air 

pollution control, National parks, 

Particulate matter, Wilderness areas. 

Authority: 42 U.S.C. 7401 et seq. 

Dated: July 21, 2010. 

Keith Takata, 

Acting Regional Administrator, EPA Region 

IX. 

[FR Doc. 2010–19061 Filed 8–2–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 272 

[EPA–R02–RCRA–2010–0249; FRL–9178–8] 

New York: Incorporation by Reference 

of State Hazardous Waste Management 

Program 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Direct final rule. 

SUMMARY: The Solid Waste Disposal Act, 

as amended, commonly referred to as 

the Resource Conservation and 

Recovery Act (RCRA), allows the 

Environmental Protection Agency (EPA) 

to authorize States to operate their 

hazardous waste management programs 

in lieu of the Federal program. EPA uses 

the regulations entitled ‘‘Approved State 

Hazardous Waste Management 

Programs’’ to provide notice of the 

authorization status of State programs 

and to incorporate by reference those 

provisions of the State regulations that 

will be subject to EPA’s inspection and 

enforcement. This rule does not 

incorporate by reference the New York 

hazardous waste statutes. The rule 

codifies in the regulations the prior 

approval of New York’s hazardous 

waste management program and 

incorporates by reference authorized 

provisions of the State’s regulations. 

DATES: This regulation is effective 

October 4, 2010, unless EPA receives 

adverse written comment on this 

regulation by the close of business 

September 2, 2010. If EPA receives such 

comments, it will publish a timely 

withdrawal of this direct final rule in 

the Federal Register informing the 

public that this rule will not take effect. 

The Director of the Federal Register 

approves this incorporation by reference 

as of October 4, 2010 in accordance with 

5 U.S.C. 552(a) and 1 CFR part 51. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–R02– 

RCRA–2010–0249, by one of the 

following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the on-line 

instructions for submitting comments. 

• E-mail: infurna.michael@epa.gov. 

• Fax: (212) 637–4437. 

• Mail: Send written comments to 

Michael Infurna, Division of 

Environmental Planning and Protection, 

EPA, Region 2, 290 Broadway, 22nd 

Floor, New York, NY 10007. 

• Hand Delivery or Courier: Deliver 

your comments to Michael Infurna, 

Division of Environmental Planning and 

Protection, EPA, Region 2, 290 

Broadway, 22nd Floor, New York, NY 

10007. Such deliveries are only 

accepted during the Regional Office’s 

normal hours of operation. The public is 

advised to call in advance to verify the 

business hours. Special arrangements 

should be made for deliveries of boxed 

information. 

Instructions: Direct your comments to 

Docket ID. No. EPA–R02–RCRA–2010– 

0249. EPA’s policy is that all comments 

received will be included in the public 

docket without change, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov, or e-mail. The 

Federal http://www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 


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45490 Federal Register / Vol. 75, No. 148 / Tuesday, August 3, 2010 / Rules and Regulations 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an e-mail 

comment directly to EPA without going 

through http://www.regulations.gov, 

your e-mail address will be 

automatically captured and included as 

part of the comment that is placed in the 

public docket and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties, 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters or any form 

of encryption, and be free of any defects 

or viruses. (For additional information 

about EPA’s public docket, visit the EPA 

Docket Center homepage at http:// 

www.epa.gov/dockets/). 

Docket: All documents in the docket 

are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy. 

You can inspect the records related to 

this codification effort in the EPA 

Region 2 Library by appointment only. 

To make an appointment please call 

(212) 637–3185. 

FOR FURTHER INFORMATION CONTACT: 

Michael Infurna, Division of 

Environmental Planning and Protection, 

EPA Region 2, 290 Broadway, 22nd 

Floor, New York, NY 10007; telephone 

number: (212) 637–4177; fax number: 

(212) 637–4377; e-mail address: 

infurna.michael@epa.gov. 

SUPPLEMENTARY INFORMATION: 

I. Incorporation By Reference 

A. What is codification? 

Codification is the process of 

including the statutes and regulations 

that comprise the State’s authorized 

hazardous waste management program 

into the CFR. Section 3006(b) of RCRA, 

as amended, allows the Environmental 

Protection Agency (EPA) to authorize 

State hazardous waste management 

programs. The State regulations 

authorized by EPA supplant the federal 

regulations concerning the same matter 

with the result that after authorization 

EPA enforces the authorized 

regulations. Infrequently, State statutory 

language which acts to regulate a matter 

is also authorized by EPA with the 

consequence that EPA enforces the 

authorized statutory provision. EPA 

does not authorize State enforcement 

authorities and does not authorize State 

procedural requirements. EPA codifies 

the authorized State program in 40 CFR 

part 272 and incorporates by reference 

State statutes and regulations that make 

up the approved program which is 

federally enforceable. EPA retains the 

authority to exercise its inspection and 

enforcement authorities in accordance 

with sections 3007, 3008, 3013 and 7003 

of RCRA, 42 U.S.C. 6927, 6928, 6934 

and 6973, and any other applicable 

statutory and regulatory provisions. 

B. What is the history of the 

authorization and codification of New 

York’s hazardous waste management 

program? 

New York initially received final 

authorization for its hazardous waste 

management program, effective on May 

29, 1986 (51 FR 17737) to implement its 

base hazardous waste management 

program. Subsequently, EPA authorized 

revisions to the State’s program effective 

July 3, 1989 (54 FR 19184), May 7, 1990 

(55 FR 7896), October 29, 1991 (56 FR 

42944), May 22, 1992 (57 FR 9978), 

August 28, 1995 (60 FR 33753), October 

14, 1997 (62 FR 43111), January 15, 

2002 (66 FR 57679), March 14, 2005 (70 

FR 1825, as corrected on April 5, 2005 

(70 FR 17286)) and August 31, 2009 (74 

FR 31380). EPA codified New York’s 

authorized hazardous waste program 

effective September 30, 2002 (67 FR 

49864) and May 25, 2007 (72 FR 14044). 

In this action, EPA is revising Subpart 

HH of 40 CFR part 272 to include the 

recent authorization revision actions 

effective August 31, 2009. (Note: Both 

the Federal and State requirements for 

the NY State Public Utilities Project XL, 

which were authorized effective August 

31, 2009, will, unless extended, expire 

on May 24, 2011.) 

C. What decisions have we made in this 

action? 

This action codifies EPA’s 

authorization of revisions to New York’s 

hazardous waste management program. 

This codification reflects the State 

program in effect at the time EPA 

authorized revisions to the New York 

hazardous waste program in a final rule 

dated July 1, 2009 (74 FR 31380). The 

rule incorporates by reference the most 

recent version of the State’s authorized 

hazardous waste management 

regulations. This action does not reopen 

any decision EPA previously made 

concerning the authorization of the 

State’s hazardous waste management 

program. EPA is not requesting 

comments on its decisions published in 

the Federal Register notices referenced 

in section B of this document 

concerning revisions to the authorized 

program in New York. 

EPA is incorporating by reference the 

authorized revisions to the New York 

hazardous waste program by revising 

Subpart HH to 40 CFR part 272. 40 CFR 

272.1651 previously incorporated by 

reference New York’s authorized 

hazardous waste regulations, as 

amended effective September 5, 2006, as 

well as selected provisions as found in 

the New York regulations dated January 

31, 1992. Section 272.1651 also 

references the demonstration of 

adequate enforcement authority, 

including procedural and enforcement 

provisions, which provide the legal 

basis for the State’s implementation of 

the hazardous waste management 

program. In addition, § 272.1651 

references the Memorandum of 

Agreement, the Attorney General’s 

Statements and the Program 

Description, which were evaluated as 

part of the approval process of the 

hazardous waste management program 

under Subtitle C of RCRA. 

D. What is the effect of New York’s 

codification on enforcement? 

EPA retains the authority under 

statutory provisions, including but not 

limited to, RCRA sections 3007, 3008, 

3013 and 7003, and other applicable 

statutory and regulatory provisions to 

undertake inspections and enforcement 

actions and to issue orders in all 

authorized States. With respect to 

enforcement actions, EPA will rely on 

Federal sanctions, Federal inspection 

authorities, and Federal procedures 

rather than the State analogs to these 

provisions. Therefore, the EPA is not 

incorporating by reference New York’s 

inspection and enforcement authorities 

nor are those authorities part of New 

York’s approved State program which 

operates in lieu of the Federal program. 

40 CFR 272.1651(c)(2) lists these 

authorities for informational purposes, 

and because EPA also considered them 

in determining the adequacy of New 

York’s procedural and enforcement 

authorities. New York’s authority to 

inspect and enforce the State’s 

hazardous waste management program 

requirements continues to operate 

independently under State law. 

E. What State provisions are not part of 

the codification? 

The public is reminded that some 

provisions of New York’s hazardous 

waste management program are not part 


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Federal Register / Vol. 75, No. 148 / Tuesday, August 3, 2010 / Rules and Regulations 45491 

of the federally authorized State 

program. These non-authorized 

provisions include: 

(1) Provisions that are not part of the 

RCRA subtitle C program because they 

are ‘‘broader in scope’’ than RCRA 

subtitle C (see 40 CFR 271.1(i)); 

(2) Unauthorized amendments to 

authorized State provisions; 

(3) New unauthorized State 

requirements; and 

(4) State procedural and enforcement 

authorities which are necessary to 

establish the ability of the State’s 

program to enforce compliance but 

which do not supplant the Federal 

statutory enforcement and procedural 

authorities. 

State provisions that are ‘‘broader in 

scope’’ than the Federal program are not 

incorporated by reference in 40 CFR 

part 272. For reference and clarity, 40 

CFR 272.1651(c)(3) lists the New York 

statutory and regulatory provisions 

which are ‘‘broader in scope’’ than the 

Federal program and which are not part 

of the authorized program being 

incorporated by reference. This action 

updates that list of ‘‘broader in scope’’ 

provisions. While ‘‘broader in scope’’ 

provisions are not part of the authorized 

program and cannot be enforced by 

EPA; the State may enforce such 

provisions under State law. 

Additionally, New York’s hazardous 

waste regulations include amendments 

which have not been authorized by 

EPA. Since EPA cannot enforce a State’s 

requirements which have not been 

reviewed and authorized in accordance 

with RCRA section 3006 and 40 CFR 

part 271, it is important to be precise in 

delineating the scope of a State’s 

authorized hazardous waste program. 

Regulatory provisions that have not 

been authorized by EPA include 

amendments to previously authorized 

State regulations as well as new State 

requirements. 

State regulations that are not 

incorporated by reference in this rule at 

40 CFR 272.1651(c)(1), or that are not 

listed in 40 CFR 272.1651(c)(3) 

(‘‘broader in scope’’) or 40 CFR 

272.1651(c)(2) (‘‘procedural and 

enforcement authorities’’), are 

considered new unauthorized State 

requirements. These requirements are 

not Federally enforceable. 

F. What will be the effect of Federal 

HSWA requirements on the 

codification? 

With respect to any requirement(s) 

pursuant to the Hazardous and Solid 

Waste Amendments of 1984 (HSWA) for 

which the State has not yet been 

authorized and which EPA has 

identified as taking effect immediately 

in States with authorized hazardous 

waste management programs, EPA will 

enforce those Federal HSWA standards 

until the State is authorized for those 

provisions. 

The codification does not affect 

Federal HSWA requirements for which 

the State is not authorized. EPA has 

authority to implement HSWA 

requirements in all States, including 

States with authorized hazardous waste 

management programs, until the States 

become authorized for such 

requirements or prohibitions, unless 

EPA has identified the HSWA 

requirement(s) as an optional or as a less 

stringent requirement of the Federal 

program. A HSWA requirement or 

prohibition, unless identified by EPA as 

optional or as less stringent, supersedes 

any less stringent or inconsistent State 

provision which may have been 

previously authorized by EPA (50 FR 

28702, July 15, 1985). 

Some existing State requirements may 

be similar to the HSWA requirement 

implemented by EPA. However, until 

EPA authorizes those State 

requirements, EPA enforces the HSWA 

requirements and not the State analogs. 

II. Statutory and Executive Order 

Reviews 

This rule codifies EPA-authorized 

hazardous waste requirements pursuant 

to RCRA 3006 and imposes no 

requirements other than those imposed 

by State law. Therefore, this rule 

complies with applicable executive 

orders and statutory provisions as 

follows. 

1. Executive Order 12866: Regulatory 

Planning Review—The Office of 

Management and Budget (OMB) has 

exempted this rule from its review 

under Executive Order 12866 (58 FR 

51735, October 4, 1993). 

2. Paperwork Reduction Act—This 

rule does not impose an information 

collection burden under the provisions 

of the Paperwork Reduction Act of 1995 

(44 U.S.C. 3501 et seq.). 

3. Regulatory Flexibility Act—This 

rule codifies New York’s authorized 

hazardous waste management 

regulations in the CFR and does not 

impose new burdens on small entities. 

Accordingly, I certify that this action 

will not have a significant economic 

impact on a substantial number of small 

entities under the Regulatory Flexibility 

Act (5 U.S.C. 601 et seq.). 

4. Unfunded Mandates Reform Act— 

Because this rule codifies pre-existing 

State hazardous waste management 

program requirements which EPA 

already approved under 40 CFR part 

271, and with which regulated entities 

must already comply, it does not 

contain any unfunded mandate or 

significantly or uniquely affect small 

governments, as described in the 

Unfunded Mandates Reform Act of 1995 

(Pub. L. 104–4). 

5. Executive Order 13132: 

Federalism—Executive Order 13132 (64 

FR 43255, August 10, 1999) does not 

apply to this rule because it will not 

have federalism implications (i.e., 

substantial direct effects on the States, 

on the relationship between the Federal 

government and the States, or on the 

distribution of power and 

responsibilities among the various 

levels of government). This action 

codifies existing authorized State 

hazardous waste management program 

requirements without altering the 

relationship or the distribution of power 

and responsibilities established by 

RCRA. 

6. Executive Order 13175: 

Consultation and Coordination with 

Indian Tribal Governments—Executive 

Order 13175 (65 FR 67249, November 6, 

2000) does not apply to this rule 

because it will not have tribal 

implications (i.e., substantial direct 

effects on one or more Indian tribes, or 

on the relationship between the Federal 

government and Indian tribes, or on the 

distribution of power and 

responsibilities between the Federal 

government and Indian tribes). 

7. Executive Order 13045: Protection 

of Children from Environmental Health 

& Safety Risks—This rule is not subject 

to Executive Order 13045 (62 FR 19885, 

April 23, 1997), because it is not 

economically significant and it is not 

based on environmental health or safety 

risks. 

8. Executive Order 13211: Actions 

that Significantly Affect Energy Supply, 

Distribution, or Use—This rule is not 

subject to Executive Order 13211 (66 FR 

28355, May 22, 2001) because it is not 

a significant regulatory action under 

Executive Order 12866. 

9. National Technology Transfer 

Advancement Act—The requirements 

being codified are the result of New 

York’s voluntary participation in EPA’s 

State program authorization process 

under RCRA Subtitle C. Thus, the 

requirements of section 12(d) of the 

National Technology Transfer and 

Advancement Act of 1995 (15 U.S.C. 

272 note) do not apply. 

10. Executive Order 12988—As 

required by section 3 of Executive Order 

12988 (61 FR 4729, February 7, 1996), 

EPA has taken the necessary steps in 

this action to eliminate drafting errors 

and ambiguity, minimize potential 

litigation, and provide a clear legal 

standard for affected conduct. 


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45492 Federal Register / Vol. 75, No. 148 / Tuesday, August 3, 2010 / Rules and Regulations 

11. Congressional Review Act—EPA 

will submit a report containing this rule 

and other information required by the 

Congressional Review Act (5 U.S.C. 801 

et seq., as amended) to the U.S. Senate, 

the U.S. House of Representatives, and 

the Comptroller General of the United 

States prior to publication in the 

Federal Register. A major rule cannot 

take effect until 60 days after it is 

published in the Federal Register. This 

action is not a ‘‘major rule’’ as defined 

by 5 U.S.C. 804(2). This action will be 

effective October 4, 2010. 

List of Subjects in 40 CFR Part 272 

Environmental Protection, 

Administrative practice and procedure, 

Confidential business information, 

Hazardous waste, Hazardous waste 

transportation, Incorporation by 

reference, Indian lands, 

Intergovernmental relations, Penalties, 

Reporting and recordkeeping 

requirements, Water pollution control, 

Water supply. 

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: April 27, 2010. 

Judith A. Enck, 

Regional Administrator, EPA Region 2. 

■ For the reasons set forth in the 

preamble, 40 CFR part 272 is amended 

as follows: 

PART 272—APPROVED STATE 

HAZARDOUS WASTE MANAGEMENT 

PROGRAMS 

■ 1. The authority citation for part 272 

continues to read as follows: 

Authority: Secs. 2002(a), 3006, and 

7004(b) of the Solid Waste Disposal Act, as 

amended by the Resource Conservation and 

Recovery Act, as amended, 42 U.S.C. 6912(a), 

6926, and 6974(b). 

■ 2. Revise § 272.1651 to read as 

follows: 

§ 272.1651 New York State-Administered 

Program: final authorization. 

(a) Pursuant to section 3006(b) of 

RCRA, 42 U.S.C. 6926(b), New York has 

final authorization for the following 

elements as submitted to EPA in New 

York’s base program application for 

final authorization which was approved 

by EPA effective on May 29, 1986. 

Subsequent program revision 

applications were approved effective on 

July 3, 1989, May 7, 1990, October 29, 

1991, May 22, 1992, August 28, 1995, 

October 14, 1997, January 15, 2002, 

March 14, 2005, and August 31, 2009. 

(Note: Both the Federal and State 

requirements for the NY State Public 

Utilities Project XL, which were 

authorized effective August 31, 2009, 

will, unless extended, expire on May 24, 

2011.) 

(b) The State of New York has primary 

responsibility for enforcing its 

hazardous waste management program. 

However, EPA retains the authority to 

exercise its inspection and enforcement 

authorities in accordance with sections 

3007, 3008, 3013, 7003 of RCRA, 42 

U.S.C. 6927, 6928, 6934, 6973, and any 

other applicable statutory and 

regulatory provisions, regardless of 

whether the State has taken its own 

actions, as well as in accordance with 

other statutory and regulatory 

provisions. 

(c) State Statutes and Regulations. 

(1) The New York regulations cited in 

paragraph (c)(1)(i) of this section are 

incorporated by reference as part of the 

hazardous waste management program 

under subtitle C of RCRA, 42 U.S.C. 

6921 et seq. The Director of Federal 

Register approves this incorporation by 

reference in accordance with 5 U.S.C. 

552(a) and 1 CFR part 51. You may 

obtain copies of the New York 

regulations that are incorporated by 

reference in this paragraph from West 

Group, 610 Opperman Drive, Eagan, MN 

55123, Attention: D3–10 (Phone #: 

1–800–328–9352). You may inspect a 

copy at EPA Region 2 Library, 290 

Broadway, 16th Floor, New York, NY 

10007 (Phone number: (212) 637–3185), 

or at the National Archives and Records 

Administration (NARA). For 

information on the availability of this 

material at NARA, call 202–741–6030, 

or go to: http://www.archives.gov/ 

federal-register/cfr/ibr-locations.html. 

(i) The Binder entitled ‘‘EPA 

Approved New York Regulatory 

Requirements Applicable to the 

Hazardous Waste Management 

Program’’, dated July 2009. 

(ii) [Reserved] 

(2) EPA considered the following 

statutes and regulations in evaluating 

the State program but is not 

incorporating them herein for 

enforcement purposes: 

(i) Environmental Conservation Laws 

(ECL), 1997 Replacement Volume, as 

revised by the 2004 Cumulative Pocket 

Part: sections 1–0303(18), 3–0301(1) 

(introductory paragraph); 3–0301(1)(a) 

and (b); 3–0301(1)(m); 3–0301(1)(o); 3– 

0301(1)(w); 3–0301(1)(x); 3–0301(1)(cc); 

3–0301(2) introductory paragraph; 3– 

0301(2)(a), (b), (d) through (j), (l), (m) 

and (q); 3–0301(2)(z); 3–0301(4); 19– 

0301(1) (except 19–0301(c), (e) and (f)); 

19–0303(1) through (3); 19–0304; 27– 

0105; 27–0701; 27–0703; 27–0705; 27– 

0707 (except 27–0707(2–c)); 27–0711; 

27–0900 through 27–0908; 27–0909 

(except 27–0909(5)); 27–0910 through 

27–0922; 27–1105; 70–0101; 70–0103; 

70–0105 (except 70–0105(3) and 70– 

0105(6)); 70–0107(1) and (2); 70–0107(3) 

introductory paragraph; 70–0107(3)(l); 

70–0109; 70–0113; 70–0115 (except 

(2)(c) and (d)); 70–0117 (except 70– 

0117(5)–(7); 70–0119; 70–0121; 71– 

0301; 71–1719; 71–2705; 71–2707; 71– 

2709 through 71–2715; 71–2717; 71– 

2720; and 71–2727. 

(iii) McKinney’s Consolidated Laws of 

New York, Book 1, Executive Law (EL), 

Article 6: Section 102. 

(iv) McKinney’s Consolidated Laws of 

New York, Book 46, Public Officers Law 

(POL), as amended through 2004: 

Sections 87 and 89. 

(v) McKinney’s Consolidated Laws of 

New York, Book 7B, Civil Practice Law 

and Rules (CPLR), as amended through 

2004: Sections 1013, 6301; 6311; and 

6313. 

(vi) Title 6, New York Codes, Rules 

and Regulations (6 NYCRR), Volume 

A–2A, Hazardous Waste Management 

System, as amended through September 

5, 2006: Sections 372.1(f); 373–1.1(f) 

and (g); 373–1.4(b); 373–1.4(d) through 

(f); 373–1.6(c); 621.1 through 621.4; 

621.5 (except (d)(5), (d)(6)(i), (d)(7)(i)(a), 

(d)(7)(i)(c) and (d)(9)); 621.6 (except (b), 

(d)(4) and (d)(5)); 621.7; 621.8; 621.9 

(except (a)(5), (c)(2) and (e)(2)); 621.10; 

621.11 (except (d)); 621.12 through 

621.15; and 621.16 (except (b), (d) and 

(e)). 

(3) The following statutory and 

regulatory provisions are broader in 

scope than the Federal program, are not 

part of the authorized program, are not 

incorporated by reference and are not 

federally enforceable: 

(i) Environmental Conservation Laws 

(ECL), 1997 Replacement Volume, as 

revised by the 2004 Cumulative Pocket 

Part: Sections 27–0301; 27–0303; 27– 

0305; 27–0307; 27–0909(5); 27–0923; 

27–0925 and 27–0926. 

(ii) Environmental Conservation Laws 

(ECL), 1997 Replacement Volume, as 

revised by the 2006 Cumulative Pocket 

Part: Section 27–1109(6). 

(iii) Title 6, New York Codes, Rules 

and Regulations (6 NYCRR), Volume 

A–2A, Hazardous Waste Management 

System, as amended through September 

5, 2006: Sections 370.2(b)(92) 

‘‘Household hazardous waste’’; 

370.2(b)(93) ‘‘Household collection 

facility’’; 371.4(e); 372.1(e)(9); 

372.2(b)(5)(ii); 372.3(a)(1); 372.3(a)(4); 

372.3(b)(6)(iv); 372.3(d)(3); 373– 

1.1(d)(1)(x); 373–1.4(c); 373– 

2.5(b)(3)(ii)(d); 373–2.5(b)(3)(ii)(e); 373– 

2.15(a)(2); 373–3.5(b)(3)(ii)(d); 373– 

3.5(b)(3)(ii)(e); 374–3.4(a)(2); and 

376.4(f). 

(iv) At 371.4(c), New York retains 

K064, K065, K066, K090 and K091 as 


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Federal Register / Vol. 75, No. 148 / Tuesday, August 3, 2010 / Rules and Regulations 45493 

hazardous wastes while EPA has 

removed them from the table at 40 CFR 

261.32 and no longer regulates them as 

hazardous wastes (64 FR 56469; October 

20, 1999). 

(v) Throughout New York’s hazardous 

waste regulations, the State crossreferences Part 364, which sets forth 

additional transporter requirements 

including permit and liability 

requirements (for examples, see 6 

NYCRR sections 372.2(b)(8), 373– 

1.7(h)(3), 374–3.3(i)(1) and (2), 374– 

3.4(a), 374–3.6(a)(1) and Appendix 30 

Instructions for Generators/Item 8). The 

transporter permit and liability 

requirements are broader in scope than 

the Federal program. 

(vi) New York did not adopt an analog 

to 40 CFR 261.4(g) that excludes certain 

dredged materials from the State 

definition of hazardous waste. Instead, 

the State subjects these materials to full 

regulation as hazardous wastes. 

(vii) New York State regulations do 

not incorporate the Mineral Processing 

Secondary Materials Exclusion at 40 

CFR 261.4(a)(17) and the related 

changes affecting 40 CFR 261.2(c)(3) and 

(c)(4)/Table, and 40 CFR 261.2(e)(1)(iii). 

Since New York did not adopt the 

exclusion at 40 CFR 261.4(a)(17) the 

State has a broader in scope program 

because the effect is to include materials 

that are not considered solid waste by 

EPA. 

(viii) At 373–4, New York implements 

a Household Hazardous Waste program, 

whereas the Federal program excludes 

household waste from regulation as 

hazardous waste at 261.4(b)(1). 

(ix) The following New York 

provisions are broader in scope because 

they include requirements associated 

with the regulation of PCB waste as a 

state-only hazardous waste: 372.1(e)(9) 

and 376.1(g)(1)(i), 376.4(f). PCB wastes 

are regulated under the Federal Toxic 

Substances Control Act (TSCA) at 40 

CFR part 761 rather than under the 

Federal RCRA program. 

(4) Memorandum of Agreement. The 

Memorandum of Agreement between 

EPA Region 2 and the State of New 

York, signed by the Commissioner of the 

State of New York Department of 

Environmental Conservation on July 20, 

2001, and by the EPA Regional 

Administrator on January 16, 2002, 

although not incorporated by reference, 

is referenced as part of the authorized 

hazardous waste management program 

under subtitle C of RCRA, 42 U.S.C. 

6921 et seq. 

(5) Statement of Legal Authority. 

‘‘Attorney General’s Statement for Final 

Authorization’’, signed by the Attorney 

General of New York in 1985 and 

revisions, supplements and addenda to 

that Statement dated August 18, 1988, 

July 26, 1989, August 15, 1991, October 

11, 1991, July 28, 1994, May 30, 1997, 

February 5, 2001, April 2, 2004 and June 

13, 2008 (including three certifications), 

although not incorporated by reference, 

are referenced as part of the authorized 

hazardous waste management program 

under subtitle C of RCRA, 42 U.S.C. 

6921 et seq. 

(6) Program Description. The Program 

Description and any other materials 

submitted as supplements thereto, 

although not incorporated by reference, 

are referenced as part of the authorized 

hazardous waste management program 

under subtitle C of RCRA, 42 U.S.C. 

6921 et seq. 

■ 3. Appendix A to part 272, State 

Requirements, is amended by revising 

the listing for ‘‘New York’’ to read as 

follows: 

Appendix A to Part 272—State 

Requirements 

* * * * * 

New York 

The regulatory provisions include: 

Title 6, New York Codes, Rules and 

Regulations (6 NYCRR), Volume A–2A, 

Hazardous Waste Management System, as 

amended through September 5, 2006. 

Please Note: For a few regulations, the 

authorized regulation is an earlier version of 

the New York State regulation. For these 

regulations, EPA authorized the version of 

the regulations that appear in the Official 

Compilation of Code, Rules and Regulations 

dated January 31, 1992. New York State made 

later changes to these regulations but these 

changes have not been authorized by EPA. 

The regulations where the authorized 

regulation is an earlier version of the 

regulation are noted below by inclusion in 

parentheses of January 31, 1992 after the 

regulatory citations. 

Part 370—Hazardous Waste Management 

System—General: Sections 370.1(a) (except 

(a)(3)); 370.1(b) through (d); 370.1(e) (except 

(e)(9)); 370.1(f); 370.2(a); 370.2(b)(1) through 

(b)(15) ‘‘battery’’; 370.2(b)(15) ‘‘bedrock’’ 

(January 31, 1992); 370.2(b)(17) through 

(b)(91); 370.2(b)(94) through (b)(125); 

370.2(b)(127) through (b)(137); 370.2(b)(139) 

through (b)(213); 370.2(b)(215); 

370.2(B)(216); 370.2(b)(217) (except the last 

sentence); 370.2(b)(218) through (b)(221); 

370.3 (except 370.3(c)); 370.4; 370.5 (except 

(b)). 

Part 371—Identification and Listing of 

Hazardous Waste: Sections 371.1(a) through 

(c); 371.1(d) (except (d)(1)(ii)(c) and 

(d)(1)(ii)(e)); 371.1(e) (except 

371.1(e)(2)(vi)(b)(21); 371.1(f)(1) through (7); 

371.1(f)(8) (except the phrase ‘‘or such mixing 

occurs at a facility regulated under Subpart 

373–4 or permitted under Part 373 of this 

Title’’); 371.1(f)(9) and (f)(10); 371.1(g)(1)(i); 

371.1(g)(1)(ii) (except (g)(1)(ii)(c)); 

371.1(g)(1)(iii); 371.1(g)(2) through (4); 

371.1(h) through (j); 371.2; 371.3; 371.4(a) 

and (b); 371.4(c) (except K064, K065, K066, 

K090 and K091 entries); 371.4(d), (f) and (i). 

Part 372—Hazardous Waste Manifest 

System and Related Standards for Generators, 

Transporters and Facilities: Sections 372.1(a) 

through (d); 372.1(e)(2)(ii)(c) (January 31, 

1992); 372.1(e)(2)(iii)(c) (January 31, 1992); 

372.1(e)(3) through (e)(8); 372.1(g) and (h); 

372.2 introductory paragraph through (b)(4); 

372.2(b)(5) (except (b)(5)(ii)); 372.2(b)(6) 

through (b)(8); 372.2(b)(10); 372.2(c); 

372.2(d) 1; 372.3 (except (a)(1), (a)(4), (a)(7)(i), 

(a)(8), (b)(3), (b)(5)(ii), (b)(6)(iv), (b)(7)(i)(d), 

(c)(4) and (d)(3)); 372.5 (except (h) and (i); 

372.6; 372.7(a) and (b); 372.7(c) (except 

(c)(1)(ii)); and 372.7(d). 

Part 373, Subpart 373–1—Hazardous Waste 

Treatment, Storage and Disposal Facility 

Permitting Requirements: Sections 373–1.1(a) 

through (c), 373–1.1(d) introductory 

paragraph through (d)(1)(xx) (except reserved 

paragraphs, (d)(1)(x) and (d)(1)(xviii); 373– 

1.1(d)(1)(xxi) 1; 373–1.1(d)(2); 373–1.1(e); 

373–1.1(h) and (i); 373–1.2; 373–1.3; 373– 

1.4(a); 373–1.4(g) and (h); 373–1.5(a)(1); 373– 

1.5(a)(2) (except (a)(2)(xviii)); 373–1.5(a)(3) 

and (4); 373–1.5(b) and (c); 373–1.5(d) 

through (p) (except reserved paragraphs); 

373–1.6 (except (c)); 373–1.7 through 373– 

1.11. 

Part 373, Subpart 373–2—Final Status 

Standards for Owners and Operators of 

Hazardous Waste Treatment, Storage and 

Disposal Facilities: Sections 373–2.1 through 

373–2.4; 373–2.5(a); 373–2.5(b) (except 

(b)(1)(i)(c), (b)(3)(ii)(d) and (b)(3)(ii)(e)); 373– 

2.5(c) through (g); 373–2.6 through 373–2.11; 

373–2.12 (except 373–2.12(a)(1) and (d)); 

373–2.12(a)(1) (January 31, 1992); 373–2.13; 

373–2.14; 373–2.15 (except (a)(2)); 373–2.19 

(except (e)(1)(ii)); 373–2.23; 373–2.24; 373– 

2.27; 373–2.28; 373–2.29; 373–2.30; and 373– 

2.31. 

Part 373, Subpart 373–3—Interim Status 

Standards Regulations for Owners and 

Operators of Hazardous Waste Facilities: 

Sections 373–3.1 (except 373–3.1(a)(4) and 

the phrase ‘‘or Subpart 374–2 of this Title’’ in 

373–3.1(a)(6)); 373–3.2 through 373–3.4; 

373–3.5 (except 373–3.5(b)(1)(i)(c), 

(b)(3)(ii)(d) and (b)(3)(ii)(e)); 373–3.6 through 

373–3.18; 373–3.23; and 373–3.27 through 

373–3.31. 

Part 374, Subpart 374–1—Standards for the 

Management of Specific Hazardous Wastes 

and Specific Types of Hazardous Waste 

Management Facilities: Sections 374–1.1; 

374–1.3; 374–1.6 (except (a)(2)(iii)); 374–1.7; 

374–1.8(a)(1); 374–1.8(a)(2) (except the 

second sentence ‘‘Such used oil * * * of this 

Title’’ in (a)(2)(i)); 374–1.8(a)(3) through 

(a)(6); 374–1.8(b) through (m) (except 

reserved paragraphs); 374–1.9; and 374–1.13. 

Part 374, Subpart 374–3—Standards for 

Universal Waste: Sections 374–3.1 (except (f) 

and (g)); 374–3.2; 374–3.3; 374–3.4 (except 

(a)(2)); 374–3.5; 374–3.6; and 374–3.7. 

Part 376—Land Disposal Restrictions: 

Sections 376.1 (except (a)(5), (a)(9), (e), (f), 

and (g)(1)(ii)(b)); 376.2; 376.3 (except (b)(4) 

and (d)(2)); 376.4 (except (c)(2), (e)(1)–(7) and 

(f)); and 376.5. 

Appendices: Appendices 19 through 25; 

Appendices 27 through 30; Appendix 33; 

Appendix 37; Appendix 38; Appendices 40 

through 49 and Appendices 51 through 55. 


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45494 Federal Register / Vol. 75, No. 148 / Tuesday, August 3, 2010 / Rules and Regulations 

Copies of the New York regulations that are 

incorporated by reference are available from 

West Group, 610 Opperman Drive, Eagan, 

MN 55123, ATTENTION: D3–10 (Phone #: 

1–800–328–9352). 

Note: Both the Federal and State 

requirements for the NY State Public Utilities 

Project XL, which were authorized effective 

August 31, 2009 (74 FR 31380), will, unless 

extended, expire on May 24, 2011. 

* * * * * 

[FR Doc. 2010–18927 Filed 8–2–10; 8:45 am] 

BILLING CODE 6560–50–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 1 

[WC Docket No. 07–245; GN Docket No. 

09–51; FCC No. 10–84] 

Implementation of Section 224 of the 

Act; a National Broadband Plan for Our 

Future 

AGENCY: Federal Communications 

Commission. 

ACTION: Declaratory ruling. 

SUMMARY: In this Declaratory Ruling, the 

Commission clarifies that 

communications providers have a 

statutory right to use space- and costsaving techniques that are consistent 

with pole owners’ use of those 

techniques. The Commission also 

establishes that providers have a 

statutory right to timely access to poles. 

DATES: Effective September 2, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Jonathan Reel, Wireline Competition 

Bureau, Competition Policy Division, 

202–418–1580. 

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s 

Declaratory Ruling in WC Docket No. 

07–245, GN Docket No. 09–51, adopted 

May 20, 2010, and released May 20, 

2010. This Declaratory Ruling rules on 

issues raised in Implementation of 

Section 224 of the Act; Amendment of 

the Commission’s Rules and Policies 

Governing Pole Attachments, Notice of 

Proposed Rulemaking 73 FR 6879, 

February 6, 2008. 

Synopsis of the Declaratory Ruling 

1. In this Order, the Commission takes 

steps to clarify the statute to lower the 

costs of telecommunications, cable, and 

broadband deployment and to promote 

competition, as recommended in the 

National Broadband Plan. The 

Commission clarifies that 

communications providers have a 

statutory right to use space- and costsaving techniques that are consistent 

with pole owners’ use of those 

techniques. The Commission also 

establishes that providers have a 

statutory right to timely access to poles. 

Background 

2. In 1978, Congress first directed the 

Commission to ensure that the rates, 

terms, and conditions for pole 

attachments by cable television systems 

are just and reasonable when it added 

section 224 to the Act. The 

Telecommunications Act of 1996 (1996 

Act) expanded the definition of pole 

attachments to include attachments by 

providers of telecommunications 

service, and granted both cable systems 

and telecommunications carriers an 

affirmative right of nondiscriminatory 

access to any pole, duct, conduit, or 

right-of-way owned or controlled by a 

utility. However, the 1996 Act permits 

utilities to deny access where there is 

insufficient capacity and for reasons of 

safety, reliability or generally applicable 

engineering purposes. Besides 

establishing a right of access, the 1996 

Act mandates a rate formula for 

telecommunications carriers that differs 

from the rate formula for attachments 

used solely to provide cable service. 

3. The Commission implemented the 

new section 224 access requirements in 

the Local Competition Order. At that 

time, the Commission concluded that it 

would determine the reasonableness of 

a particular condition of access on a 

case-by-case basis. Finding that no 

single set of rules could take into 

account all attachment issues, the 

Commission specifically declined to 

adopt the National Electric Safety Code 

(NESC) in lieu of access rules. The 

Commission also recognized that 

utilities typically develop individual 

standards and incorporate them into 

pole attachment agreements, and that, in 

some cases, federal, state, or local laws 

also impose relevant restrictions. The 

Local Competition Order acknowledged 

concerns that utilities might deny access 

unreasonably, but rather than adopt a 

set of substantive engineering standards, 

the Commission decided that 

procedures for requiring utilities to 

justify the conditions they placed on 

access would best safeguard attachers’ 

rights. The Commission did adopt five 

rules of general applicability and several 

broad policy guidelines in the Local 

Competition Order. The Commission 

also stated that it would monitor the 

effect of the case-specific approach, and 

would propose specific rules at a later 

date if conditions warranted. 

4. In the 1998 Implementation Order, 

the Commission adopted rules 

implementing the 1996 Act’s new pole 

attachment rate formula for 

telecommunications carriers. The 

Commission also concluded that cable 

television systems offering both cable 

and Internet access service should 

continue to pay the cable rate. The 

Commission further held that the 

statutory right of nondiscriminatory 

access includes attachments by wireless 

carriers. The latter two determinations 

were challenged but ultimately upheld 

by the Supreme Court. In particular, the 

Court held that section 224 gives the 

Commission broad authority to adopt 

just and reasonable rates. The Court also 

deferred to the Commission’s 

conclusion that wireless carriers are 

entitled by section 224 to attach 

facilities to poles. 

5. On November 20, 2007, the 

Commission issued the Pole Attachment 

Notice 73 FR 6879, February 6, 2008 in 

recognition of the importance of pole 

attachments to the deployment of 

communications networks, in part in 

response to petitions for rulemaking 

from USTelecom and Fibertech 

Networks. USTelecom argued that 

incumbent LECs, as providers of 

telecommunications service, are entitled 

to just and reasonable pole attachment 

rates, terms, and conditions of 

attachment even though, under section 

224, they do not count as 

‘‘telecommunications carriers’’ and have 

no statutory right of access. Fibertech 

petitioned the Commission to initiate a 

rulemaking to set access standards for 

pole attachments, including standards 

for timely performance of make-ready 

work, use of boxing and extension arms, 

and use of qualified third-party contract 

workers, among other concerns. The 

Pole Attachment Notice focused on the 

effect of disparate pole-attachment rates 

on broadband competition and arrived 

at two tentative conclusions: first, that 

all attachers should pay the same pole 

attachment rate for all attachments used 

to provide broadband Internet access 

service and second, that the rate should 

be higher than the current cable rate, yet 

no greater than the telecommunications 

rate. In addition to the concerns raised 

by USTelecom and Fibertech, the Pole 

Attachment Notice inquired about 

application of the telecommunications 

rate to wireless pole attachments and 

other pole access concerns. 

6. The American Recovery and 

Reinvestment Act of 2009 included a 

requirement that the Commission 

develop a national broadband plan to 

ensure that every American has access 

to broadband capability. On March 16, 

2010, the National Broadband Plan was 

released, and identified access to rightsof-way—including access to poles—as 

having a significant impact on the 

deployment of broadband networks. 


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