[Federal Register Volume 64, Number 18 (Thursday, January 28, 1999)]
[Proposed Rules]
[Pages 4379-4382]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-1907]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 239
[FRL-6226-2]
RIN 2050-AD03
Subtitle D Regulated Facilities; State Permit Program
Determination of Adequacy; State Implementation Rule--Amendments and
Technical Corrections
AGENCY: Environmental Protection Agency.
ACTION: Proposed rule.
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SUMMARY: The Environmental Protection Agency (EPA) is taking direct
final action to modify the State Implementation Rule (``SIR rule'').
This modification changes the withdrawal of state permit programs
provision in Sec. 239.13 of the SIR rule so that Agency
[[Page 4380]]
withdrawals of an approved state municipal solid waste landfill (MSWLF)
or conditionally exempt small quantity generator (CESQG) permit program
would only apply to the entire approved program.
The SIR, which was published on October 23, 1998, set forth a
flexible framework for modifications of approved programs, established
procedures for withdrawal of approvals (including withdrawal of a part
or parts of a state program), and confirmed the process for future
program approvals so that standards that safeguard human health and the
environment are maintained (63 FR 57026). Withdrawal of a part or parts
of a state program will no longer apply.
EPA is also making some technical corrections to the withdrawal
provision of the SIR rule.
Elsewhere in the Final Rule Section of today's Federal Register,
EPA is taking direct final action to modify the SIR rule. This direct
final rule will make these amendments and technical corrections
effective in sixty (60) days unless relevant adverse comment is
received on this rule within thirty (30) days. We are taking this
direct final action because we view this amendment and the corrections
to the SIR rule as being non-controversial. Thus, we anticipate no
adverse comments. A detailed rationale for the changes to the
withdrawal provisions of the SIR rule are provided in the preamble to
the direct final rule.
If no relevant adverse comment is received in response to this
rule, no further activity is contemplated regarding this proposal. If
EPA receives relevant adverse comment, EPA will withdraw the direct
final rule and address comments in a subsequent final rule. EPA will
not provide additional opportunities for comment. If we receive
relevant adverse comment, we will publish a timely withdrawal in the
Federal Register informing the public that this rule will not take
effect. If we receive relevant adverse comment on any amendment,
paragraph, or section of this rule, only those amendments, paragraphs,
or sections of the rule will be withdrawn; all other amendments,
paragraphs, and sections of the direct final rule will go into effect
within the time frame specified in that direct final rule notice (sixty
(60) days).
DATES: Comments must be submitted on or before March 1, 1999.
ADDRESSES: Commenters must send an original and two copies of their
comments referencing the docket identification number F-1999-ST2F-FFFFF
to the RCRA Information Center (RIC), Office of Solid Waste (5305G),
U.S. Environmental Protection Agency, 401 M Street, SW, Washington, DC
20460. Hand deliveries of comments should be made to the RIC at Crystal
Gateway I, First Floor, 1235 Jefferson Davis Highway, Arlington, VA.
Comments may also be submitted electronically by sending electronic
mail through the Internet to: rcra-docket@epamail.epa.gov. Comments in
electronic format should also be identified by the docket number F-
1999-ST2F-FFFFF. All electronic comments must be submitted as an ASCII
file avoiding the use of special characters and any form of encryption.
Commenters should not submit electronically any confidential
business information (CBI). An original and two copies of CBI must be
submitted under separate cover to: RCRA CBI Document Control Officer,
Office of Solid Waste (5305W), U.S. EPA, 401 M Street, SW, Washington,
DC 20460.
The RIC is open from 9 a.m. to 4 p.m., Monday through Friday,
excluding federal holidays. To review docket materials, it is
recommended that the public make an appointment by calling 703-603-
9230. The public may copy a maximum of 100 pages from any regulatory
docket at no charge. Additional copies cost $0.15 per page.
FOR FURTHER INFORMATION CONTACT: For general information contact the
RCRA Hotline, Office of Solid Waste, U.S. Environmental Protection
Agency, 401 M Street SW, Washington, DC 20460; 800-424-9346; TDD 800-
553-7672 (hearing impaired); in the Washington, DC metropolitan area,
the number is 703-412-9810; TDD 703-486-3323.
For more detailed information on specific aspects of this
rulemaking, contact Karen Rudek, Office of Solid Waste (5306W), U.S.
Environmental Protection Agency Headquarters, 401 M Street SW,
Washington, DC 20460; 703-308-1682, rudek.karen@epamail.epa.gov.
SUPPLEMENTARY INFORMATION:
I. Authority
The U.S. Environmental Protection Agency (EPA or the Agency) is
proposing these amendments to the SIR rule under the authority of
sections 2002(a)(1) and 4005(c) of the Resource Conservation and
Recovery Act of 1976 (RCRA or the Act), as amended by the Hazardous and
Solid Waste Amendments of 1984.
Subtitle D of RCRA, at section 4005(c)(1)(B), requires each state
to develop and implement a permit program or other system of prior
approval to ensure that facilities that receive household hazardous
waste or conditionally exempt small quantity generator (CESQG)
hazardous waste are in compliance with the federal revised criteria
promulgated under section 4010(c) of Subtitle D of RCRA. Section
4005(c)(1)(C) further directs EPA to determine whether state permit
programs are adequate to ensure compliance with the revised federal
criteria. Section 2002(a)(1) of RCRA authorizes EPA to promulgate
regulations necessary to carry out its functions under the Act.
II. Regulated Entities
Regulated entities include state governments requesting full or
partial approvals of permit programs or other systems of prior
approval, or revisions to existing fully or partially approved
programs.
III. Background
The background of the RCRA Subtitle D federal revised criteria and
the SIR rule are set forth elsewhere in the Final Rule Section of
today's Federal Register. This proposed rule incorporates that
background and historical information.
IV. Proposed Changes to the SIR Rule
A. Partial Withdrawal of State Permit Programs
EPA is proposing to amend the SIR rule so that section 239.13,
which pertains to the withdrawal of state permit programs, would only
apply to the entire approved program and not to part or parts of a
state program. The reasons for this change are set forth in the
preamble of the direct final rule published elsewhere in the Final
Rules Section of today's Federal Register. Those reasons are hereby
incorporated into this proposed rule.
B. Technical Corrections
In addition to this amendment to the SIR rule, we are proposing two
technical corrections to errors which the Agency discovered in the
language of Sec. 239.13. First, in Sec. 239.13(g)(3), both the proposed
and final rule had stated that the Regional Administrator would hold a
public hearing on a tentative withdrawal determination if such a
hearing would ``clarify issues involved in the tentative adequacy
determination'' (63 FR 57044, Oct. 23, 1998; 61 FR 2605, Jan. 26,
1996). As reflected in both the title of this section of the SIR rule
(``Criteria and procedures for withdrawal of determination of
adequacy'') and in the preamble to the proposed rule (61 FR 2509), it
is clear that the Agency intended this language in Sec. 239.13(g)(3) to
allow the Regional
[[Page 4381]]
Administrator to hold a public hearing to clarify issues involved in
the tentative ``withdrawal'' determination and not the tentative
``adequacy'' determination. The Agency is proposing to modify the SIR
rule to reflect this intention.
Second, in the first sentence of both Sec. 239.13(f) and (g), we
propose inserting the word ``the'' in the phrase ``withdrawal of
determination of adequacy'' to read ``withdrawal of the determination
of adequacy.'' We believe that these corrections will merely clarify
the language without altering the intent of the two provisions.
V. Regulatory Assessments
A. Executive Order 12866: Assessment of Potential Costs and Benefits
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether any proposed or final regulatory action
is ``significant,'' and, therefore, subject to OMB review and the
requirements of the Executive Order. The order defines ``significant
regulatory action'' as one that is likely to result in a rule that may:
(a) 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;
(b) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(c) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs, or the rights and obligations of
recipients thereof; or
(d) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
It has been determined that this proposed rule is not a
``significant regulatory action.'' Thus, EPA has not submitted this
action to OMB for review under E.O. 12866.
B. Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.,
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996) whenever an agency is required to publish a notice of
rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effect of the rule on small entities (i.e., small
businesses, small organizations, and small governmental jurisdictions).
However, no regulatory flexibility analysis is required if the head of
an agency certifies the rule will not have a significant adverse
economic impact on a substantial number of small entities.
SBREFA amended the Regulatory Flexibility Act to require Federal
agencies to provide a statement of the factual basis for certifying
that a rule will not have a significant economic impact on a
substantial number of small entities. The following discussion explains
EPA's determination.
The Agency has determined that today's proposed rule will not have
a significant economic impact on a substantial number of small
entities, since the rule has direct effects only on state agencies.
Therefore, no regulatory flexibility analysis has been prepared. Based
on the foregoing discussion, I hereby certify that this proposed rule
will not have a significant adverse economic impact on a substantial
number of small entities.
C. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (``UMRA''),
Pub. L. 104-4, establishes requirements for federal agencies to assess
the effects of their regulatory actions on state, local, and tribal
governments and the private sector. Under ``202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``federal mandates'' that
may result in expenditures to state, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, ``205 of UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule. The provisions of UMRA ``205 do
not apply when they are inconsistent with applicable law. Moreover,
UMRA ``205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative, if the
Administrator publishes with the final rule an explanation of why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed,
under ``203 of UMRA, a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
EPA has determined that this proposed rule does not contain a
federal mandate (under the regulatory provisions of Title II of the
UMRA) that may result in expenditures of $100 million or more for state
and local governments in the aggregate, or for the private sector in
any one year. Thus, there is no obligation to prepare a written
statement, including a cost-benefit analysis, under ``202 of UMRA. For
the same reasons outlined in part V.B above, EPA has determined that
this proposed rule to amend the SIR rule will not significantly or
uniquely affect small governments (UMRA ``203).
D. Paperwork Reduction Act
Today's proposed rule does not add new burden as defined by the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The Office of
Management and Budget has previously approved the information
collection in the existing regulations and has assigned OMB control
number 2050-0152, (EPA ICR No. 1608.01).
E. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
Executive Order 13045: ``Protection of Children from Environmental
Health Risks and Safety Risks'' (62 FR 19885, April 23, 1997) applies
to any rule that: (1) is determined to be ``economically significant''
as defined under E.O. 12866, and (2) concerns an environmental health
or safety risk that EPA has reason to believe may have a
disproportionate effect on children. If the regulatory action meets
both criteria, the Agency must evaluate the environmental health or
safety effects of the planned rule on children, and explain why the
planned regulation is preferable to other potentially effective and
reasonably feasible alternatives considered by the Agency. This
proposed rule is not subject to E.O. 13045 because it is not an
economically significant rule as defined by E.O. 12866.
F. National Technology Transfer and Advancement Act
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Pub L. No. 104-113, Sec. 12(d) (15 U.S.C. 272
note) directs EPA to use voluntary consensus standards in its
regulatory activities unless to do so would be inconsistent
[[Page 4382]]
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 standards 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 action does not involve technical standards. Therefore, EPA
did not consider the use of any voluntary consensus standards.
G. Executive Order 12898: Environmental Justice
Under Executive Order 12898, ``Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations,'' as well as through EPA's April 1995, ``Environmental
Justice Strategy, OSWER Environmental Justice Task Force Action Agenda
Report,'' and National Environmental Justice Advisory Council, EPA has
undertaken to incorporate environmental justice into its policies and
programs. EPA is committed to addressing environmental justice concerns
and is assuming a leadership role in environmental justice initiatives
to enhance environmental quality for all residents of the United
States. The Agency's goals are to ensure that no segment of the
population, regardless of race, color, national origin, or income bears
disproportionately high and adverse human health and environmental
effects as a result of EPA's policies, programs, and activities, and
all people live in clean and sustainable communities. To address this
goal, EPA considered the impacts of the final State Implementation Rule
on low-income populations and minority populations and concluded that
the SIR will potentially advance environmental justice causes (63 FR
57039, Oct. 23, 1998). Today's proposed amendments to the SIR will not
affect these beneficial impacts on environmental justice causes.
H. Executive Order 12875: Enhancing the Intergovernmental Partnership
Under Executive Order 12875, EPA may not issue a regulation that is
not required by statute and that creates a mandate upon a state, local
or tribal government, unless the Federal government provides the funds
necessary to pay the direct compliance costs incurred by those
governments. If the mandate is unfunded, EPA must provide to the Office
of Management and Budget a description of the extent of EPA's prior
consultation with representatives of affected State, local and tribal
governments, the nature of their concerns, copies of any written
communications from the governments, and a statement supporting the
need to issue the regulation. In addition, Executive Order 12875
requires EPA to develop an effective process permitting elected
officials and other representatives of state, local and tribal
governments ``to provide meaningful and timely input in the development
of regulatory proposals containing significant unfunded mandates.''
In developing this proposed rule, EPA consulted with various states
and a state organization to enable them to provide meaningful and
timely input in the development of this rule. EPA also worked closely
with state governments in the development of the final SIR (63 FR
57039, Oct. 23, 1998).
Through notice, EPA sought input from small governments during the
SIR rulemaking process. However, today's proposed rule to amend the SIR
will not create a mandate on State, local or tribal governments. The
proposed rule would not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of Executive
Order 12875 do not apply to this proposed rule.
I. Executive Order 13084: Consultation and Coordination With Indian
Tribal Governments
Under Executive Order 13084, EPA may not issue a regulation that is
not required by statute, that significantly or uniquely affects the
communities of Indian tribal governments, and that imposes substantial
direct compliance costs on those communities, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by the tribal governments. If the mandate is unfunded,
EPA must provide to the Office of Management and Budget, in a
separately identified section of the preamble to the rule, a
description of the extent of EPA's prior consultation with
representatives of affected tribal governments, a summary of the nature
of their concerns, and a statement supporting the need to issue the
regulation. In addition, Executive Order 13084 requires EPA to develop
an effective process permitting elected and other representatives of
Indian tribal governments ``to provide meaningful and timely input in
the development of regulatory policies on matters that significantly or
uniquely affect their communities.''
Today's proposed rule does not significantly or uniquely affect the
communities of Indian tribal governments. There is no impact on these
communities. Accordingly, the requirements of section 3(b) of Executive
Order 13084 do not apply to this proposed rule.
List of Subjects in 40 CFR Part 239
Environmental protection, Administrative practice and procedure,
Municipal solid waste landfills, Non-municipal solid waste, Non-
hazardous solid waste, State permit program approval, Adequacy.
Dated: January 19, 1999.
Carol M. Browner,
Administrator.
[FR Doc. 99-1907 Filed 1-27-99; 8:45 am]
BILLING CODE 6560-50-P
