[Federal Register Volume 74, Number 125 (Wednesday, July 1, 2009)]
[Rules and Regulations]
[Pages 31380-31385]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-15543]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

[EPA-R02-RCRA-2009-0346; FRL-8916-7]


New York: Final Authorization of State Hazardous Waste Management 
Program Revision

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

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SUMMARY: New York State has applied to EPA for final authorization of 
changes to its hazardous waste program under the Solid Waste Disposal 
Act, as amended, commonly referred to as Resource Conservation and 
Recovery Act (RCRA). EPA has determined that these changes, with 
limited exceptions, satisfy all requirements needed to qualify for 
final authorization, and is authorizing the State's changes through 
this immediate final action. EPA is publishing this rule to authorize 
the changes without a prior proposal because we believe this action is 
not controversial and do not expect comments that oppose it. Unless we 
receive written comments which oppose this authorization during the 
comment period, the decision to authorize New York's changes to its 
hazardous waste program will take effect as provided below. If we 
receive comments that oppose this action, we will publish a document in 
the Federal Register withdrawing this rule, or the portion of the rule 
that is the subject of the comments, before it takes effect and a 
separate document in the proposed rules section of this Federal 
Register will serve as a proposal to authorize the changes.

DATES: This final authorization will become effective on August 31, 
2009 unless EPA receives adverse written comment by July 31, 2009. If 
EPA receives such comment, it will publish a timely withdrawal of this 
immediate final rule or those paragraphs or sections of this rule which 
are the subject of the comments opposing the authorization in the 
Federal Register and inform the public that only the portion of the 
rule that is not withdrawn will take effect. (See Section E of this 
rule for further details).

ADDRESSES: Submit your comments, identified by EPA-R02-RCRA-2009-0346, 
by one of the following methods:
    <bullet> Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="620b0c0417100c034c0f0b010a03070e224c0712034c050d14">[email protected]</a>.
    <bullet> Fax: (212) 637-4437.
    <bullet> Mail: Send written comments to Michael Infurna, Division 
of Environmental Planning and Protection, EPA, Region 2, 290 Broadway, 
22nd Floor, New York, NY 10007.
    <bullet> 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-
2009-0346. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available on-line 
at http://www.regulations.gov, 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 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/epahome/dockets.htm).
    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

[[Page 31381]]

materials are available either electronically in http://www.regulations.gov or in hard copy. You can view and copy New York's 
application during business hours at the following addresses: EPA 
Region 2 Library, 290 Broadway, 16th Floor, New York, NY 10007, Phone 
number: (212) 637-3185; or New York State Department of Environmental 
Conservation, Division of Solid and Hazardous Materials, 625 Broadway, 
Albany, NY 12233-7250, Phone number: (518) 402-8730. The public is 
advised to call in advance to verify the business hours of the above 
locations.

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: <a href="/cdn-cgi/l/email-protection" class="__cf_email__" data-cfemail="e58c8b8390978b84cb888c868d848089a5cb809584cb828a93">[email protected]</a>.

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, consistent with, and no less stringent 
than the Federal program. As the Federal program changes, States must 
change their programs and ask EPA to authorize the changes. 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 40 Code of Federal Regulations (CFR) parts 124, 
260 through 268, 270, 273 and 279.

B. What Decisions Have We Made in This Rule?

    We conclude that New York's application to revise its authorized 
program meets all of the statutory and regulatory requirements 
established by RCRA. Therefore, we grant New York final authorization 
to operate its hazardous waste program with the changes described in 
the authorization application. New York has responsibility for 
permitting Treatment, Storage, and Disposal Facilities (TSDFs) within 
its borders (except in Indian Country) and for carrying out the aspects 
of the RCRA program described in its revised program application, 
subject to the limitations of 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 
take effect in authorized States before the States are authorized for 
the requirements. Thus, EPA will implement those requirements and 
prohibitions in New York, including issuing permits if necessary, until 
the State is granted authorization to do so.

C. What Is the Effect of Today's Authorization Decision?

    The effect of this decision is that a facility in New York subject 
to RCRA will now have to comply with the authorized State requirements 
instead of the equivalent Federal requirements in order to comply with 
RCRA. New York has enforcement responsibilities under its State 
hazardous waste program for violations of such program, but EPA retains 
its authority under statutory provisions, including but not limited to, 
RCRA sections 3007, 3008, 3013, and 7003. These sections include, but 
may not be limited to, the authority to:
    <bullet> Do inspections, and require monitoring, tests, analyses, 
reports or other actions;
    <bullet> Enforce RCRA requirements and suspend or revoke permits;
    <bullet> Take enforcement actions regardless of whether the State 
has taken its own actions.
    This action does not impose additional requirements on the 
regulated community because the State regulations for which New York is 
being authorized by today's action are already effective, and are not 
changed by today's action.

D. Why Wasn't There a Proposed Rule Before Today's Rule?

    EPA did not publish a proposal before today's rule because we view 
this as a routine program change and do not expect comments that oppose 
this approval. We are providing an opportunity for public comment now. 
In addition to this rule, in the proposed rules section of today's 
Federal Register, we are publishing a separate document that proposes 
to authorize the State program changes.

E. What Happens if EPA Receives Comments That Oppose This Action?

    If EPA receives comments that oppose this authorization, we will 
withdraw this rule by publishing a document in the Federal Register 
before the rule becomes effective. EPA will base any further decision 
on the authorization of the State program changes on the proposal 
mentioned in the previous paragraph. We will then address all public 
comments in a later final rule. You may not have another opportunity to 
comment. If you want to comment on this authorization, you must do so 
at this time.
    If we receive comments that oppose only the authorization of a 
particular change to the State hazardous waste program, we will 
withdraw that part of this rule but the authorization of the program 
changes that the comments do not oppose will become effective on the 
date specified above. The Federal Register withdrawal document will 
specify which part of the authorization will become effective, and 
which part is being withdrawn.

F. What Has New York Previously Been Authorized for?

    New York initially received final authorization effective on May 
29, 1986 (51 FR 17737) to implement its base hazardous waste management 
program. We granted authorization for changes to its 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), 
and March 14, 2005 (70 FR 1825, as corrected on April 4, 2005 at 70 FR 
17286).
    While EPA is not authorizing any new New York State civil or 
criminal statute in this program revision authorization, be advised 
that New York State has revised some of the statutory provisions which 
provide the legal basis for the State's implementation of the hazardous 
waste management program in New York State. On August 26, 2003 New York 
added a new provision to its statutes at Public Officers Law (POL) 
Sec.  89(5)(a)(1-a) that allows requests for records related to 
critical infrastructure information to be excepted from disclosure at 
any time, not just at the time of submission. The new State provision 
is consistent with 40 CFR 2.203(c) which states that ``If a claim 
covering the information is received after the information itself is 
received, EPA will make such efforts as are administratively 
practicable to associate the late claim with copies of the previously-
submitted information in EPA files'' in order to safeguard the 
Confidential Business Information in the submitted documents. Public 
Officers Law Sec.  86.5, defines Critical Infrastructure as ``systems, 
assets, places or things, whether physical or virtual, so vital to the 
state that the disruption, incapacitation or destruction of such 
systems, assets, places or things could jeopardize the health, safety, 
welfare or security of the state, its residents or its economy.'' After 
the events of September 11, 2001, a number of

[[Page 31382]]

records that at one time were publicly available were deemed 
confidential and this new provision is used by the State Agency to 
withhold information at the time it is requested as a matter of public 
safety.

G. What Changes Are We Authorizing With Today's Action?

    On October 27, 2005, December 1, 2005 and October 27, 2006, New 
York submitted three program revision applications, seeking 
authorization of its changes in accordance with 40 CFR 271.21. 
Subsequently, on July 17, 2008, the State submitted signed Attorney 
General Certifications for the three applications. New York's revision 
applications include (1) changes to the Federal Hazardous Waste program 
issued by EPA from October 20, 1999 through January 20, 2002; (2) the 
Project XL Rulemaking for New York State Public Utilities, as published 
on July 21, 1999 (64 FR 37624) and amended May 24, 2005 (70 FR 29910); 
(3) the Uniform Hazardous Waste Manifest Rule, published on March 4, 
2005 (70 FR 10776) and amended June 16, 2005 (70 FR 35034); and (4) 
State-initiated changes. New York made these changes to provisions that 
we had previously authorized, as listed in Section F. The State-
initiated changes make the State's regulations more internally 
consistent, or make the State regulations more like the Federal 
language.
    We now make an immediate final decision, subject to receipt of 
written comments that oppose this action, that except as noted in 
Section H, New York's hazardous waste program revision and State-
initiated changes satisfy all of the requirements necessary to qualify 
for final authorization. Therefore, we grant New York final 
authorization for the following program revisions: (The New York 
provisions are set forth in the Title 6, New York Codes, Rules and 
Regulations (6 NYCRR), Volume A-2A, Hazardous Waste Management System, 
amended effective September 3, 2005 and the July 15, 2006 Supplement, 
effective September 5, 2006.)

1. Program Revisions

------------------------------------------------------------------------
   Description of federal requirement       Analogous state regulatory
       (revision checklists \1\)                  authority \2\
------------------------------------------------------------------------
                           RCRA CLUSTER \3\ X
------------------------------------------------------------------------
Land Disposal Restrictions Phase IV--    Title 6 New York Codes, Rules
 Technical Corrections (10/20/99, 64 FR   and Regulations (6 NYCRR)
 56469; Revision Checklist 183).          371.4(c)*, 373-
                                          1.1(d)(1)(iii)(`c')(`5'),
                                          376.1(g)(1)(iii)(`c'),
                                          376.4(a)(10), 376.4(a)/Table,
                                          376.4(k)(3)(i)(`a'),
                                          376.4(k)(3)(i)(`b').
                                         *Broader in scope, see
                                          discussion in Section H.
Accumulation Time for Waste Water        6 NYCRR 373-
 Treatment Sludges (3/8/00, 65 FR         1.1(d)(1)(iii)(`c')(`5'),
 12378; Revision Checklist 184).          372.2(a)(8)(vi) through
                                          (viii).
Organobromine Production Wastes Vacatur  6 NYCRR 371.4(c), 371.4(d)(6),
 (3/17/00, 65 FR 14472; Revision          Appendices 22 and 23,
 Checklist 185).                          376.4(a), 376.4(j).
Petroleum Refining Process Wastes--      6 NYCRR 371.4(b).
 Clarification (6/8/00, 64 FR 36365;
 Revision Checklist 187).
------------------------------------------------------------------------
                             RCRA CLUSTER XI
------------------------------------------------------------------------
Chlorinated Aliphatics Listing and LDRs  6 NYCRR 371.4(c), 376.3(c),
 for Newly Identified Wastes (11/8/00,    376.4(a)/Table, 376.4(j)/
 65 FR 67068; Revision Checklist 189).    Table, Appendices 22 and 23.
Land Disposal Restrictions Phase IV--    6 NYCRR 376.3(h), 376.4(j)/
 Deferral for PCBs in Soil (12/26/00,     Table UTS, 376.4(k)(4),
 65 FR 81373; Revision Checklist 190).    Appendix 37.
Mixed Waste Rule (5/16/01, 66 FR 27218;  6 NYCRR 374-1.9.
 Revision Checklist 191).
Mixture and Derived-From Rules           6 NYCRR 371.1(d)(1)(ii)(`c')
 Revisions (5/16/01, 66 FR 27266;         [reserved],
 Revision Checklist 192A).                371.1(d)(1)(ii)(`d'),
                                          371.1(d)(3)(ii)(`a'),
                                          371.1(d)(6)(i) through
                                          371.1(d)(6)(iii), 371.1(d)(7).
Change of Official EPA Mailing Address   6 NYCRR 370.1(e)(8) note.
 (6/28/01, 66 FR 34374; Revision
 Checklist 193).
------------------------------------------------------------------------
                            RCRA CLUSTER XII
------------------------------------------------------------------------
Mixture and Derived-From Rules Revision  6 NYCRR 371.1(d)(1)(ii)(`d'),
 II (10/3/01, 66 FR 50332; Revision       371.1(d)(6)(iv).
 Checklist 194).
Inorganic Chemical Manufacturing Wastes  6 NYCRR 371.1(e)(2)(xiii),
 Identification and Listing (11/20/01,    371.4(c), 376.3(i), 376.4(a)
 66 FR 58258; Revision Checklist 195).    Table, Appendix 22.
CAMU Amendments (1/22/02, 67 FR 2962;    6 NYCRR 370.2(b)(37),
 Revision Checklist 196).                 370.2(b)(158), 373-2.19(a),
                                          373-2.19(b)(1), 373-2.19(c),
                                          373-2.19(e)(1)(i).
------------------------------------------------------------------------
                             RCRA CLUSTER XV
------------------------------------------------------------------------
Uniform Hazardous Waste Manifest Rule    6 NYCRR 370.2(b)(43),
 (3/4/05, 70 FR 10776; as amended 6/16/   370.2(b)(121), 370.2(b)(122),
 05, 70 FR 35034; Revision Checklist      371.1(h)(2)(i)(`c')(`1') and
 207).                                    (`2'), 372.2(b)(1),
                                          372.2(b)(10), 372.2(a)(6)(ii),
                                          372.2(a)(7), 372.2(a)(8)(ix),
                                          372.3(b)(3) [reserved],
                                          372.3(b)(6)(i), 372.3(b)(7)(i)
                                          [except (b)(7)(i)(`d')],
                                          372.3(b)(4)(ii) and (iii),
                                          372.5(d)(3), 372.5(d)(5),
                                          372.5(j)(3) and (j)(4),
                                          372.7(d)(3), 372.7(d)(4),
                                          Appendix 30*, 373-2.5(a), 373-
                                          2.5(b)(1) [except
                                          (b)(1)(i)(`c') and
                                          (b)(1)(viii)], 373-2.5(b)(2),
                                          373-2.5(b)(3)(ii) [except
                                          (b)(3)(ii)(`d') and (`e')],
                                          373-2.5(b)(4), 373-3.5(a), 373-
                                          3.5(b)(1) [except
                                          (b)(1)(i)(`c') and
                                          (b)(1)(viii)], 373-3.5(b)(2),
                                          373-3.5(b)(3)(ii) [except
                                          (b)(3)(ii)(`d') and (`e')],
                                          373-3.5(b)(4) as amended
                                          effective 9/5/06.
                                         *Broader in scope: Appendix 30,
                                          Instructions for Generators/
                                          Item 8., see discussion in
                                          Section H.

[[Page 31383]]

 
                                         (More stringent: Appendix 30,
                                          General Information,
                                          Distribution; Appendix 30,
                                          Instructions for Generators/
                                          Item 13. Waste Codes,
                                          372.7(d)(4), 373-2.5(a)(1),
                                          373-2.5(b)(1)(i)(`b')
                                          introductory paragraph &
                                          (`b')(`1'), 373-
                                          2.5(b)(1)(i)(`b')(`5'), 373-
                                          2.5(b)(1)(vii), 373-2.5(b)(2),
                                          373-3.5(a)(1), 373-
                                          3.5(b)(1)(i)(`b') introductory
                                          paragraph & (`b')(`1'), 373-
                                          3.5(b)(1)(i)(`b')(`5'), 373-
                                          3.5(b)(1)(vii), 373-
                                          3.5(b)(2)).
------------------------------------------------------------------------
                             PROJECT XL \4\
------------------------------------------------------------------------
Project XL Rulemaking for New York       6 NYCRR 372.2(d), 373-
 State Public Utilities; Hazardous        1.1(d)(1)(xxi).
 Waste Management Systems; Final Rule
 (7/12/99, 64 FR 37624; as amended 5/24/
 05, 70 FR 29910).
------------------------------------------------------------------------
\1\ A Revision Checklist is a document that addresses the specific
  changes made to the Federal regulations by one or more related final
  rules published in the Federal Register. EPA develops these checklists
  as tools to assist States in developing their authorization
  applications and in documenting specific State analogs to the Federal
  Regulations. For more information see EPA's RCRA State Authorization
  Web page at http://www.epa.gov/osw/laws-regs/state/index.htm.
\2\ The New York provisions are set forth in the Title 6 of the New York
  Codes, Rules and Regulations (6 NYCRR), as amended through September
  3, 2005, unless otherwise specified.
\3\ A RCRA ``Cluster'' is a set of Revision Checklists for Federal
  rules, typically promulgated between July 1 and June 30 of the
  following year.
\4\ Note: Both the Federal and State requirements for the NY State
  Public Utilities Project XL will expire on May 24, 2011.

2. State-Initiated Changes

    The State-initiated changes correct typographical and printing 
errors, clarify and make the State's regulations more internally 
consistent, or make the State regulations more like the Federal 
language.
    EPA grants New York final authorization to carry out the following 
provisions of the State's program in lieu of the Federal program. The 
New York provisions are from the Title 6, New York Codes, Rules and 
Regulations (6 NYCRR), Volume A-2A, Hazardous Waste Management System, 
amended through September 3, 2005, unless otherwise specified. For 
clarity, the appropriate effective date is provided in parentheses 
following the provision(s). More stringent provisions are indicated 
with an asterisk (*).
    Part 370--Hazardous Waste Management System--General: Sections 
370.1(e)(1)(xv) and (xvi); 370.1(e)(6)(ii) through (iii); 370.1(e)(2); 
370.1(e)(3)(ii) and (iii) (September 5, 2006); 370.1(f) *; and 
370.2(b)(55), (b)(105), (b)(135), (b)(136), (b)(137) (reserved).
    Part 371--Identification and Listing of Hazardous Waste: Section 
371.1(c)(7) *.
    Part 372--Hazardous Waste Manifest System and Related Standards or 
Generators, Transporters and Facilities: Sections 372.2(b)(1)(i), 
(b)(2) *, (b)(3) *, (b)(6) and (b)(7) (September 5, 2006); 372.3(b)(1), 
(b)(2), (b)(4) and (b)(5) (September 5, 2006); 372.7(d)(2) (September 
5, 2006).
    Part 373, Subpart 373-1--Hazardous Waste Treatment, Storage and 
Disposal Facility Permitting Requirements: Sections 373-1.3(d)(3), 373-
1.8(b), 373-1.10(a)(1), (b)(1) and (c)(1).
    Part 373, Subpart 373-2--Final Status Standards for Owners and 
Operators of Hazardous Waste Treatment, Storage and Disposal 
Facilities: Sections 373-2.5(b)(1)(viii) * and (b)(5) (September 5, 
2006), 373-2.8(a)(3), 373-2.10(g)(4)(i), 373-2.12(g)(2), 373-2.19(d) 
and (e), 373-2.29(e)(3)(i).
    Part 373, Subpart 373-3--Interim Status Standards for Owners and 
Operators of Hazardous Waste Treatment, Storage and Disposal 
Facilities: Sections 373-3.5(b)(1)(viii) * and (b)(5), (September 5, 
2006); and 373-3.15(a)(2).
    Part 376--Land Disposal Restrictions: Sections: 376.1(b)(1)(xi), 
376.1(g)(1)(i) except the reference to ``376.4(f)'', 376.4(g)(1).

H. Where Are the Revised State Rules Different From the Federal Rules?

More Stringent State Rules

    New York hazardous waste management regulations are more stringent 
than the corresponding Federal regulations in a number of different 
areas. The more stringent provisions are being recognized as a part of 
the Federally-authorized program and are Federally enforceable. The 
specific more stringent provisions are noted in Section G and in the 
State's authorization application, and include, but are not limited to, 
the following:
    1. At 370.1(f), New York requires that laboratory tests or sample 
analyses be performed by a State-certified laboratory. The Federal 
program does not contain a lab certification program.
    2. In addition to the demonstration and documentation of claims 
that materials are not solid wastes or are conditionally exempt from 
regulation required by 40 CFR 261.2(f), at 371.1(c)(7), the State 
requires the party claiming the exemption to notify the Department 
before using the exemption.
    3. At 373-2.5(b)(1)(viii) and 373-3.5(b)(1)(viii), New York 
requires treatment, storage and disposal facilities to keep records on 
shipments accepted from small quantity generators who ship hazardous 
waste via a reclamation agreement under 40 CFR 262.20(e). The Federal 
program only has requirements for the generator and transporter of such 
wastes to keep records related to the agreement and/or shipments.
    4. At 373-2.19(c)(1)(iii)(`c'), New York is more stringent than the 
Federal requirement at 40 CFR 264.552(a)(3)(iii) because the State does 
not provide for alternative demonstrations to the department to allow 
placement of non-hazardous liquid waste in a corrective action 
management unit (CAMU).
    5. New York has several requirements related to the Uniform 
Hazardous Waste Manifest that are in addition to or more stringent than 
the corresponding Federal requirement. Such requirements include but 
are not limited to the following:
    a. Unlike 40 CFR 262.20(b) & (c), at 372.2(b)(2)(i) New York 
requires written communication from the designated and alternate 
facility confirming their authorization to accept the manifested 
wastes.
    b. At Appendix 30, General Information/Distribution, New York 
requires the generator to send copies of the forms to the generator 
State and the disposal facility State.
    c. At 372.2(b)(2)(ii), New York requires that the generator know 
and indicate on the manifest the ultimate disposal method of the waste 
that is leaving its facility and provide State waste codes that are to 
be assigned to the ultimate disposal methods and recorded at Item 13 on 
the manifest. This State requirement is repeated

[[Page 31384]]

within the generator manifest instructions for Item 13 in Appendix 30.
    d. At the following citations, the State program requires that 
manifests be mailed to the appropriate parties within 10 calendar days 
of delivery of the waste to the facility whereas the Federal program 
allows 30 days to send a copy to the generator: 372.2(b)(3), Appendix 
30, General Information/Distribution, 373-2.5(b)(1)(i)(`b')(`5'), 373-
3.5(b)(1)(i)(`b')(`5'), 373-2.5(b)(1)(vii), 373-3.5(b)(1)(vii).
    e. At 373-2.5(a)(1) and 372-3.5(a)(1), New York does not adopt the 
Federal exemption from manifesting for waste military munitions at 40 
CFR 264.70(a) and 265.70(a).
    f. At 373-2.5(b)(1)(i)(`b') introductory paragraph & (`b')(`1') and 
373-3.5(b)(1)(i)(`b') introductory paragraph & (`b')(`1') [analogs to 
40 CFR 264.71(a)(2) and 265.71(a)(2)], the State program requires the 
receiving facility owner or operator to examine the manifest for 
completeness and complete those portions regarding the ultimate 
disposal method in the event they are unfinished.
    g. At 372.7(d)(4), the State requires a copy of the signed and 
dated shipping paper to be sent to the generator if a manifest is not 
received within 15 days, whereas the Federal program, under 40 CFR 
264.71(b)(4) and 265.71(b)(4), allows 30 days from the date of receipt 
of a manifest. Additionally, New York requires the facility to complete 
and submit an unmanifested waste report along with the shipping paper 
if a manifest is not received. Under 40 CFR 264.76(a), the Federal 
program only requires the report if the facility does not receive a 
manifest or a shipping paper.
    h. At 373-2.5(b)(2) and 373-3.5(b)(2), the State program requires 
that an un-manifested waste report be filed with the State within 10 
calendar days of acceptance of the shipment whereas at the introductory 
paragraphs at 40 CFR 264.76(a) and 265.76(a), the Federal provisions 
allow 15 days to send the report to the Regional Administrator.

Broader in Scope Requirements

    We consider the following State requirements to be beyond the scope 
of the Federal program, and therefore, EPA is not authorizing these 
requirements:
    1. At 373-4, New York implements a Household Hazardous Waste 
program and 370.2(b)(92) and (b)(93) contain definitions associated 
with the HHW program. The Federal program excludes household waste from 
regulation as hazardous waste at 261.4(b)(1).
    2. At 371.4(c), New York retains K064, K065, K066, K090 and K091 as 
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).
    3. New York's transporter permit program is broader in scope than 
the Federal RCRA program which does not issue permits to transporters. 
The following New York provisions are broader in scope because they 
include requirements associated with the state's transporter permit 
program: 372.2(b)(5)(ii), Appendix 30 Instructions for Generators/Item 
8, 373-2.5(b)(3)(ii)(`d') & (`e'), and 373-3.5(b)(3)(ii)(`d') & (`e').
    4. New York subjects PCB wastes to regulation as hazardous waste; 
however, these wastes are not considered hazardous wastes under the 
Federal RCRA program. PCB wastes are regulated under the Federal Toxic 
Substances Control Act (TSCA) at 40 CFR part 761. 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).
    Broader-in-scope requirements are not part of the authorized 
program and EPA cannot enforce them. Although you must comply with 
these requirements in accordance with State law, they are not RCRA 
requirements.

Non-Delegable Federal Rules

    Finally, there are certain non-delegable provisions for which New 
York is not seeking authorization. These provisions include the EPA 
Manifest Registry functions at 40 CFR 262.21 adopted by reference at 6 
NYCRR 372.2(b)(9) and 370.1(e)(3), and the EPA notification 
requirements for exports and imports of hazardous waste adopted at 6 
NYCRR 372.5(j)(5), 372.3(b)(7)(i)(`d'), 373-2.5(b)(1)(i)(`c') and 373-
3.5(b)(1)(i)(`c') [analogs to 40 CFR 262.60(e), 263.20(g)(4), 
264.71(a)(3) and 265.71(a)(3), respectively]. These Federal rules will 
continue to be the applicable requirements.

I. Who Handles Permits After the Authorization Takes Effect?

    New York will issue permits for all the provisions for which it is 
authorized and will administer the permits it issues. EPA will continue 
to administer any RCRA hazardous waste permits or portions of permits 
still in effect which we issued prior to the effective date of this 
authorization, and also to process permit modification requests for 
facilities with existing permits. EPA will not issue any more new 
permits or new portions of permits for the provisions listed in the 
Table above after the effective date of this authorization. Pursuant to 
Sec.  3006(g)(1) of RCRA, EPA may continue to issue or deny permits to 
facilities within the State to implement those regulations promulgated 
under the authority of HSWA for which New York is not authorized.

J. How Does Today's Action Affect Indian Country (18 U.S.C. 115) in New 
York?

    The State of New York's Hazardous Waste Program is not authorized 
to operate in Indian country within the State. Therefore, this action 
has no effect on Indian country. EPA will continue to implement and 
administer the RCRA program in these lands.

K. What Is Codification and is EPA Codifying New York'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. We do this by referencing 
the authorized State rules in 40 CFR part 272. If this rule takes 
effect, or we finalize the companion proposal to authorize the State's 
changes to its hazardous waste program, we may, at a later date, amend 
40 CFR part 272, subpart HH to codify New York's authorized program.

L. Statutory and Executive Order Reviews

    This rule only authorizes hazardous waste requirements pursuant to 
RCRA section 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 has exempted this rule from its review under 
Executive Order 12866 (56 FR 51735, October 4, 1993).
    2. Paperwork Reduction Act--This rule does not impose an 
information collection burden under the Paperwork Reduction Act (44 
U.S.C. 3501 et seq.).
    3. Regulatory Flexibility Act--After considering the economic 
impacts of today's rule on small entities under the Regulatory 
Flexibility Act (5 U.S.C. 601 et seq.), I certify that this rule will 
not have a significant economic impact on a substantial number of small 
entities.
    4. Unfunded Mandates Reform Act--Because this rule approves pre-
existing requirements under State law and does not impose any 
additional enforceable

[[Page 31385]]

duty beyond that required by State law, it does not contain any 
unfunded mandate or significantly or uniquely affect small governments, 
as described in the Unfunded Mandates Reform Act (Pub. L. 104-4).
    5. Executive Order 13132: Federalism--Executive Order 13132 (64 FR 
19885, April 23, 1997) 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 national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government).
    6. Executive Order 13175: Consultation and Coordination with Indian 
Tribal Governments--Executive Order 13175 (65 FR 67240, 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, 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 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 as defined in Executive Order 12866.
    9. National Technology Transfer Advancement Act--EPA approves State 
programs as long as they meet criteria required by RCRA, so it would be 
inconsistent with applicable law for EPA, in its review of a State 
program, to require the use of any particular voluntary consensus 
standard in place of another standard that meets the requirements of 
RCRA. Thus, section 12(d) of the National Technology Transfer and 
Advancement Act (15 U.S.C. 272 Note) does not apply to this rule.
    10. 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.) 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 on August 31, 2009.

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: May 19, 2009.
George Pavlou,
Acting Regional Administrator, Region 2.
[FR Doc. E9-15543 Filed 6-30-09; 8:45 am]
BILLING CODE 6560-50-P


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