[Federal Register Volume 64, Number 132 (Monday, July 12, 1999)]
[Rules and Regulations]
[Pages 37624-37638]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17347]
[[Page 37623]]
_______________________________________________________________________
Part III
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 9 et al.
Project XL Rulemaking for New York State Public Utilities; Hazardous
Waste Management Systems; Final Rule
Federal Register / Vol. 64, No. 132 / Monday, July 12, 1999 / Rules
and Regulations
[[Page 37624]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 9, 262, 264, 265, and 270
[FRL-6374-8]
Project XL Rulemaking for New York State Public Utilities;
Hazardous Waste Management System
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: Today's rule provides regulatory flexibility under the
Resource Conservation and Recovery Act (RCRA), as amended. It allows
participating New York State Utilities to consolidate hazardous waste,
which they generate at remote locations, at designated Utility-owned
central collection facilities (UCCFs) for up to 90 days subject to
specified requirements. EPA is promulgating this rule to implement an
XL project for Utilities in New York State. The terms of the XL project
are defined in the Final Project Agreement (FPA) which is scheduled to
be signed by the parties on July 12, 1999. The FPA explains the project
in detail, while the promulgation of this federal rule will enable New
York State Department of Environmental Conservation (NYSDEC) to
implement portions of the project requiring regulatory changes . The
requirements of this rule will not take effect in New York State until
it adopts the requirements as state law. For the sake of simplicity,
the remainder of this preamble refers to the effects of this rule,
although it will be the corresponding state law change that will
actually govern this XL project.
In order to qualify for the flexibility that the rule provides New
York State Utilities must initiate and comply with public notice and
participation requirements set forth in the rule regarding the
designation and approval of UCCFs. Subsequent to these public
participation procedures, Utilities must receive approval to
participate in the flexibility provided by this rule. EPA expects this
XL project to result in superior environmental performance in New York
State, while providing cost savings to participating Utilities.
DATES: This final rule is effective on January 10, 2000.
ADDRESSES: A docket containing public comments and supporting materials
is available for public inspection and copying at the RCRA Information
Center (RIC), located at Crystal Gateway, 1235 Jefferson Davis Highway,
First Floor, Arlington, Virginia. The RIC is open from 9:00 am to 4:00
pm Monday through Friday, excluding federal holidays. The public is
encouraged to phone in advance to review docket materials. Appointments
can be scheduled by phoning the Docket Office at (703) 603-9230. Refer
to RCRA docket number F-98-NYSP-FFFFF. The public may copy a maximum of
100 pages from any regulatory docket at no charge. Additional copies
cost 15 cents per page.
A duplicate copy of the docket is available for inspection and
copying at U.S. EPA, Region 2, 290 Broadway, New York, NY 10007-1866
during normal business hours. Persons wishing to view the duplicate
docket at the New York location are encouraged to contact Mr. Philip
Flax in advance, by telephoning (212) 637-4143. Information is also
available on the world wide web at http://www.epa.gov/ProjectXL.
FOR FURTHER INFORMATION CONTACT: Mr. Philip Flax, U.S. EPA, Region 2,
290 Broadway, New York, NY 10007-1866, (212) 637-4143.
SUPPLEMENTARY INFORMATION:
Outline of Today's Document
The information presented in this preamble is organized as follows:
I. Authority
II. Background
A. Overview of Project XL
B. Overview of the NYSDEC XL Project
1. Introduction
2. NYSDEC XL Project Description
3. Environmental Benefits
4. Economic Benefits
5. Stakeholder Involvement
6. Project Duration and Completion
C. Rule Description
III. Response to Public Comments
A. Public Comments Received
1. ConEd Comment
2. USWAG Comment
3. Niagara Mohawk Comment
4. ASLF Comment
a. RCRA Permits
1. Utility-owned Rights-of-Way and Remote Locations
2. Small Quantity Generator Exclusion
3. Quantity Limits
4. Substantive TSDF Requirements
5. Public Participation
b. Need for Flexibility Provided by Rule
1. Transfer Facilities and Other Existing Provisions
2. Utilities Could Obtain Permits
3. Delays in Securing Hazardous Waste Transporters
4. Existence of Delays in Hazardous Waste Removal
5. Streamlined Permits
c. Environmental Benefits
IV. Additional Information
A. Executive Order 12866
B. Regulatory Flexibility
C. Congressional Review Act
D. Paperwork Reduction Act
E. Unfunded Mandates Reform Act
F. RCRA/HSWA
1. Applicability of Rules in Authorized States
2. Effect on New York State Authorization
G. Applicability of Executive Order 13045
H. Executive Order 12875: Enhancing Intergovernmental
Partnerships
I. Executive Order 13084: Consultation and Coordination With
Indian Tribal Governments
J. National Technology Transfer and Advancement Act
I. Authority
These regulations are being published under the authority of
sections 2002(a), 3001, 3002, 3004, 3005, 3006, 3010, and 7004 of the
Solid Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act, as amended, 42 U.S.C. 6912(a), 6921, 6922, 6924, 6925,
6926, 6930, and 6974.
II. Background
A. Overview of Project XL
The FPA sets forth the intentions of EPA and the NYSDEC with regard
to a project developed under Project XL, an EPA initiative to allow
regulated entities to achieve better environmental results at less
cost. The regulation would facilitate implementation of the project.
Project XL--``eXcellence and Leadership'' was announced on March 16,
1995, as a central part of the National Performance Review and the
EPA's effort to reinvent environmental protection. See 60 FR 27282 (May
23, 1995). Project XL provides a limited number of private and public
regulated entities an opportunity to develop their own pilot projects
to provide regulatory flexibility that will result in environmental
protection that is superior to what would be achieved through
compliance with current and reasonably anticipated future regulations.
These efforts are crucial to EPA's ability to test new strategies that
reduce the regulatory burden and promote economic growth while
achieving better environmental and public health protection. EPA
intends to evaluate the results of this and other XL projects to
determine which specific elements of the project(s), if any, should be
more broadly applied to other regulated entities for the benefit of
both the economy and the environment.
Under Project XL, participants in four categories--facilities,
industry sectors, governmental agencies and communities--are offered
the flexibility to develop common sense, cost-effective strategies that
will replace or modify specific regulatory requirements, on the
condition that they produce and demonstrate superior environmental
performance. To participate in Project XL, applicants must develop
alternative
[[Page 37625]]
pollution reduction strategies pursuant to eight criteria: superior
environmental performance; cost savings and paperwork reduction; local
stakeholder involvement and support; test of an innovative strategy;
transferability; feasibility; identification of monitoring, reporting
and evaluation methods; and avoidance of shifting the risk burden. They
must have full support of affected federal, state and tribal agencies
to be selected.
For more information about the XL criteria, readers should refer to
the two descriptive documents published in the Federal Register (60 FR
27282, May 23, 1995 and 62 FR 19872, April 23, 1997), and the December
1, 1995 ``Principles for Development of Project XL Final Project
Agreements'' document. For further discussion as to how the NYSDEC XL
project addresses the XL criteria, readers should refer to the Final
Project Agreement and fact sheet that are available from the docket for
this action (see ADDRESSES section of today's preamble).
Project XL is intended to allow the EPA to experiment with untried,
potentially promising regulatory approaches, both to assess whether
they provide benefits at the specific facility affected, and whether
they should be considered for wider application. Such pilot projects
allow the EPA to proceed more quickly than would be possible when
undertaking changes on a nationwide basis. EPA may modify rules, on a
site- or state-specific basis, that represent one of several possible
policy approaches within a more general statutory directive, so long as
the alternative being used is permissible under the statute.
Adoption of such alternative approaches or interpretations in the
context of a given XL project does not, however, signal EPA's
willingness to adopt that interpretation as a general matter, or even
in the context of other XL projects. It would be inconsistent with the
forward-looking nature of these pilot projects to adopt such innovative
approaches prematurely on a widespread basis without first determining
whether or not they are viable in practice and successful for the
particular projects that embody them. Furthermore, as EPA indicated in
announcing the XL program, it expects to adopt only a limited number of
carefully selected projects. These pilot projects are not intended to
be a means for piecemeal revision of entire programs. Depending on the
results in these projects, EPA may or may not be willing to consider
adopting the alternative approach or interpretation again, either
generally or for other specific facilities.
EPA believes that adopting alternative policy approaches and/or
interpretations, on a limited, site- or state-specific basis and in
connection with a carefully selected pilot project, is consistent with
the expectations of Congress about EPA's role in implementing the
environmental statutes (so long as EPA acts within the discretion
allowed by the statute). Congress' recognition that there is a need for
experimentation and research, as well as ongoing reevaluation of
environmental programs, is reflected in a variety of statutory
provisions, e.g., section 8001 of RCRA.
B. Overview of the NYSDEC XL Project
1. Introduction
Today's rule will facilitate implementation of the FPA (the
document that embodies EPA's intent to implement this project) that has
been developed by EPA, New York State Department of Environmental
Conservation (NYSDEC), New York State Utilities, and other
stakeholders. EPA and NYSDEC are scheduled to sign the final FPA on
July 12, 1999. The FPA is available for review in the docket for
today's action and on the world wide web at http://www.epa.gov/
ProjectXL. The FPA addresses the eight Project XL criteria, and the
expectation of EPA that this XL project will meet those criteria. Those
criteria are: (1) Environmental performance superior to what would be
achieved through compliance with current and reasonably anticipated
future regulations; (2) cost savings or economic opportunity, and/or
decreased paperwork burden; (3) stakeholder support; (4) test of
innovative strategies for achieving environmental results; (5)
approaches that could be evaluated for future broader application; (6)
technical and administrative feasibility; (7) mechanisms for
monitoring, reporting, and evaluation; and (8) consistency with
Executive Order 12898 on Environmental Justice (avoidance of shifting
of risk burden). The FPA specifically addresses the manner in which the
project is expected to produce superior environmental benefits.
EPA is promulgating today's rule to implement the provisions of
this Project XL initiative that require regulatory changes. However, as
discussed in Section IV.F. below, New York State has received authority
to administer hazardous waste standards for generators that are
equivalent to, or more stringent than, the federal program. Therefore,
the requirements outlined in today's rule will not take effect in New
York State until the State adopts equivalent requirements as State law,
and EPA will not be the primary regulatory agency responsible for
implementing the requirements of this rule. Although today's rule
references ``EPA,'' ``NYSDEC'' will be substituted for ``EPA'' when the
State adopts these requirements as State law. For this reason, this
preamble discussion will use the term ``regulatory agency'' when
referring to the ``EPA'' responsibilities identified in today's rule.
In addition, for the sake of simplicity, the remainder of this preamble
refers to the effects of this rule, although it will be the
corresponding state law change that will actually govern this XL
project.
2. NYSDEC XL Project Description
Utilities maintain rights-of-way, such as oil and gas pipelines,
telephone lines, and electric power distribution systems, in some cases
extending hundreds of miles. Frequently, hazardous waste is generated
at remote locations that are not continuously staffed. The collection
of the hazardous waste is sometimes planned in advance, but often is
not, particularly in cases where there has been a sudden, unexpected
interruption of service. Waste may also be generated as part of routine
service. This waste generally consists of sediments accumulating at
Utility access points.
In the case of electric power and telephone systems, the locations
involved are usually transformer vaults, service boxes, and manholes,
which are most often located in the middle of public roads. In order to
access conduits and service the system, sediment and/or infiltration
water must be removed. These materials commonly fail the Toxicity
Characteristic (TC) for lead and therefore may be hazardous waste. For
electric power systems, polychlorinated biphenyl (PCB) contamination is
also possible. Waste containing PCBs is regulated under the Toxic
Substances Control Act (TSCA). In the case of oil and gas pipelines,
the waste may consist of pipeline condensate which collects in ``drip''
pipes downstream of pressure regulating stations. This waste commonly
exhibits the characteristic of ignitability, commonly fails the TC for
benzene and may contain PCBs.
Generally, hazardous waste may qualify for conditional exemption
under RCRA because it is generated in quantities less than 100
kilograms per calendar month. However, when hazardous waste generated
exceeds 100 kilograms per calendar month, it is subject to applicable
regulations at 40 CFR part 262. In addition, when one kilogram or more
of an acutely
[[Page 37626]]
hazardous waste is generated per calendar month at a remote location,
it is also subject to applicable regulations at 40 CFR part 262.
Utilities are currently allowed to accumulate hazardous waste
without a permit at the remote location where it is generated for up to
90 days (or, under certain circumstances, 180 days) without RCRA
permits prior to transporting it to a permitted treatment, storage and
disposal facility (TSDF) or other designated facility. However, since
remote Utility locations are often unstaffed, it is very difficult to
store hazardous waste and secure against releases resulting from
accidents or vandalism. Arranging to bring hazardous waste directly to
a TSDF may take several days, particularly if the event was unplanned.
To enhance protection of public health, safety, and the environment, it
would be preferable if hazardous waste generated at remote locations
were transported to a secured location as soon as it is collected from
the remote location.
RCRA regulations generally do not allow the shipment to, or
consolidation of, hazardous waste at off-site facilities other than a
permitted or interim status TSDF or other designated facility.
Furthermore, for each remote location that generates more than 1,000
kilograms during any single month, the utility must prepare and submit
a Biennial Report. The RCRA-authorized state processes each report and
enters the data into state databases, and EPA enters it into the
Biennial Report System (BRS) database. As a result, both state and
federal databases include hundreds of ``sites'' which are actually only
drip pipes and/or manholes.
Additionally, utilities must arrange frequent shipments of small
loads of hazardous waste which must be sent directly to a permitted
TSDF, which is often located hundreds of miles from the remote
location. The current handling of hazardous waste at remote locations
may result in unsafe storage and hazardous conditions, additional
paperwork and expenditure of time and labor, and inefficiencies in
transportation, increasing direct costs.
Utilities would prefer to transport hazardous waste immediately
from remote locations to a UCCF so that hazardous waste does not remain
susceptible to releases from the remote locations through accidents or
vandalism. At the secured UCCFs , the Utilities could then safely
combine compatible types of hazardous waste collected from different
remote locations to achieve important efficiencies in transportation
and waste management. By consolidating hazardous waste in this manner,
vehicles transporting waste from a UCCF to a commercial TSDF could then
carry relatively full loads. On the other hand, if hazardous waste must
be transported to a TSDF directly from remote locations, more vehicle
trips, often hundreds of miles away, would be required, each carrying
smaller loads.
This rule is designed to address the problems of unsafe storage,
transportation inefficiencies, and unnecessary paperwork in the
following ways:
a. Hazardous waste generated at a Utility's remote locations can
be consolidated without a RCRA permit for up to 90 days at a UCCF,
so long as the Utility complies with requirements set forth in
today's rule. Each UCCF can only consolidate waste generated at its
remote locations and at the UCCF itself. Hazardous waste generated
at a remote location would be transported from each remote location
immediately following collection of all hazardous waste at the
remote location or when the staff collecting the hazardous waste
leave the remote location, whichever comes first. If wastes arriving
at the UCCF on different dates are consolidated in the same unit,
the 90-day period will run from the earlier of the two dates that
the wastes arrived.
b. Hazardous waste generated at remote locations that is
transported to a UCCF can be accounted for in a combined Biennial
Report, submitted by the Utility, instead of the Utility having to
submit a Biennial Report for each remote location. A separate
Biennial Report must be prepared for hazardous waste sent from a
remote location directly to a permitted TSDF that would ordinarily
require a Biennial Report.
Thus, under the rule a UCCF would be able to consolidate hazardous
waste received from remote locations at the UCCF for up to 90 days,
thereby providing the Utilities with more flexibility to combine
compatible hazardous wastes generated at different remote locations,
prior to having to ship such waste to a treatment, storage, or disposal
facility.
In order to participate in the flexibility provided by the rule,
New York State Utilities must initiate and comply with public notice
and participation requirements set forth in the rule regarding the
designation(s) and approval of UCCF(s). In addition, the regulatory
agency must respond to the comments received regarding the
designation(s) and approval of UCCF(s). Subsequent to these public
participation procedures, Utilities must receive approval to
participate in the flexibility provided by this rule. The regulatory
agency may determine that a Utility or UCCF should not be approved to
participate based on relevant information learned before, during or
after the public notice procedures, including a Utility's compliance
history.
The rule will enhance the protection of public health and the
environment by facilitating and requiring the more immediate removal of
hazardous waste that is difficult to properly secure at remote
locations to staffed and secure UCCFs. Hazardous traffic conditions
that endanger public safety may also diminish. Once hazardous waste is
transported to a UCCF it will be subject to a number of requirements,
including that it must be held in units that are managed in accordance
with specified requirements in 40 CFR part 265. In order to operate a
UCCF under the terms of today's rule, utilities will also have to
comply with personnel training, contingency planning, and other
emergency preparedness and prevention requirements, and they will be
subject to both general and unit-specific closure requirements. In
addition, if the regulatory agency determines that the requirements
identified in this rule may not fully protect human health and the
environment, it may impose additional conditions on the operation of a
particular UCCF.
Utilities should realize considerable savings in direct costs
through efficiencies in transportation by consolidating hazardous
waste. Reducing the number of trips made to often-remote TSDFs by
waste-transporting vehicles also reduces mobile source emissions.
Elimination of the need to complete biennial reports should bring about
a very significant reduction in paperwork and savings in time and
labor, both for Utilities and environmental regulatory agencies, who
can then redirect such resources to other environmental needs.
In addition, the rule requires Utilities to reinvest at least one-
third of the direct savings realized from participation in the XL
project into one or more environmental projects, such as pollution
prevention, that are over and above existing legal requirements and
that were not planned prior to the Utility's receipt of approval to
consolidate hazardous waste pursuant to the rule.
The rule applies only to hazardous waste at a Utility's remote
locations or at a UCCF. This rule does not allow a UCCF to receive
waste from locations other than remote locations that are within the
same right-of-way network as the UCCF. In addition, except as
explicitly provided for in the rule, the rule does not affect any other
requirements pertaining to the storage, transport, and disposal of
waste generated at a Utility's remote locations. For example, a Utility
is still required to
[[Page 37627]]
determine whether waste generated at a remote location is subject to
the land disposal restrictions set forth in 40 CFR part 268 and the
Toxic Substances Control Act and its implementing regulations set forth
in 40 CFR part 761 at the point of generation, prior to any commingling
of waste. In addition, nothing in the rule prohibits a Utility from
treating hazardous waste in a tank or container pursuant to the
provisions set forth in Sec. 262.90 provided the Utility complies with
the requirements for tanks set forth in subpart J of 40 CFR part 265,
except Secs. 265.197(c) and 265.200, and/or the requirements for
containers set forth in subpart I of 40 CFR part 265.
Similarly, it is not the intent of the rule to subject
Conditionally Exempt Small Quantity Generator waste (i.e., hazardous
waste that does not exceed 100 kilograms per calender month) generated
at individual remote locations to increased regulation. Thus, a Utility
may continue to follow the requirements for Conditionally Exempt Small
Quantity Generators (CESQGs) at 40 CFR 261.5 for CESGQ waste generated
at individual remote locations that is not sent to a UCCF. If, however,
a Utility chooses to send CESQG waste generated at individual remote
locations to its UCCF, that waste will be subject to the requirements
of this rule once it is received at the UCCF. The Utility must comply
with 40 CFR 262.34(a)-(c) (requirements for large quantity generators)
for all hazardous waste consolidated at the UCCF regardless of the
total amount of waste generated or consolidated per month at the UCCF.
3. Environmental Benefits
This XL project facilitates the immediate transport of hazardous
waste, generated by Utilities at ``remote'' locations that are not
permanently staffed, to a secured location that is subject to the
enhanced requirements established by today's rule. At the present time,
particularly when the collection of hazardous waste is unplanned, it
may take several days to make arrangements for removal of the material
directly to a TSDF. In the meantime, if the material remains at the
remote location, it may endanger public health and the environment
because it may be difficult for the Utility to provide secure storage
for the material, safe from releases through accidents or vandalism.
Moreover, if the material is left at a street location where it
continues to disrupt normal traffic patterns (vehicular and/or
pedestrian), public safety is threatened, even if there are no
releases. Particularly in urban settings (e.g., New York City), the
disruption of traffic patterns can lead to a substantial risk of
vehicular collisions or vehicle/pedestrian accidents. Leaving the
material at a street location may result in forced merging of high-
volume traffic lanes. This project should help to enhance public safety
and prevent endangerment to human health and the environment.
There should also be direct environmental results to be realized
from the consolidation of compatible waste at UCCFs. By minimizing the
number of vehicle trips that must be made to the often-distant TSDF,
emissions from mobile sources are reduced, as well as vehicular fuel
consumption and the possibility of an accident involving a vehicle
transporting this waste.
Indirect environmental benefits should result from the reduced need
for human resources, time and paperwork. More Utility and regulatory
agency resources would be made available to address higher priority
environmental issues.
In addition, participating Utilities are required to reinvest one-
third of the direct cost savings accrued due to participation in this
project into one or more environmentally beneficial projects that are
above and beyond what is legally required by law and that were not
planned prior to receipt of approval of each UCCF. Participating
Utilities must identify, in annual Progress Reports, the monetary value
of the direct cost savings which they have experienced as a result of
the project and the environmental activities in which one-third of
these direct cost savings have been reinvested.
4. Economic Benefits
Utilities should realize direct cost savings. Through the need for
reduced resources, time and paperwork, they also anticipate indirect
savings. NYSDEC and EPA will realize indirect savings through reduced
resource demands, time saved (including computer time), and reduced
paperwork.
Utilities should realize a variety of direct cost savings. First,
Utilities will not incur expenses for having to store hazardous waste
at remote locations, even temporarily. Second, Utilities will realize
direct cost savings through efficiencies in transportation. By being
able to combine waste at the UCCF that is compatible, fewer vehicle
trips to ultimate destination facilities will be required. These
savings may include: database management for each remote location as an
individual generator, State annual Hazardous Waste Report preparation
costs, Biennial Report preparation costs, and cost savings realized
from consolidation of waste for economical shipment (including no
longer sending waste directly to a TSDF from a remote location.). The
proposed rule explicitly identified as reportable cost savings, cost
savings achieved as a result of not being required to obtain a TSDF
permit or comply with substantive TSDF requirements. It is EPA's
understanding, however, that in the absence of today's rule, utilities
would probably continue to comply with the existing requirements for
hazardous waste generators rather than obtain a permit for a UCCF.
Thus, EPA does not generally expect these savings identified in the
proposed rule to result from this project. Accordingly, EPA has
modified the proposed rule by deleting the explicit references to these
types of savings. Instead Sec. 262.90(h) includes a more general
request for cost savings achieved by a particular utility, thus
ensuring that all cost savings based on any regulatory requirements
which a particular utility is actually relieved from due to compliance
with today's rule will be accounted for in its estimate of cost
savings. EPA believes that this is a more appropriate approach given
that the specific cost savings for each utility are difficult to
precisely anticipate and are based in large part on the operating
decisions a particular utility may make when faced with the options
that still exist in the absence of this XL project.
Utilities will realize indirect savings in resources, time, and
reduced paperwork by not having to submit separate Biennial Reports for
each remote location that generates in excess of 1,000 kilograms of
hazardous waste per calender month. Instead, the hazardous waste
generated at remote locations will be included in the Biennial Reports
of the UCCFs to which they are brought. All such hazardous waste will
still be fully accounted for without increasing the number of Biennial
Reports that the Utility must prepare and submit. EPA and NYSDEC will
also realize indirect savings in human resources, time (including
computer time), and reduced paperwork. Biennial Reports for remote
locations will no longer need to be processed and entered in state and
federal databases. As long as the quantities and types of hazardous
waste from these locations are accounted for, the minimal benefits of
these excess reports do not justify the extra work involved in
preparing and processing the reports.
5. Stakeholder Involvement
NYSDEC and EPA have been involved in the development of this
project, and
[[Page 37628]]
both support it. Bell Atlantic acted as lead for the telephone
industry. Consolidated Edison acted as lead for the electric power
industry, with assistance from the New York State Power Pool. Brooklyn
Union Gas acted as lead for the oil and gas pipeline industry
(intrastate and interstate). Consolidated Edison and the New York State
Power Pool solicited comments from other electric power companies in
New York State which were then funneled through Consolidated Edison.
Brooklyn Union Gas provided the same service to other intrastate and
interstate oil and gas pipelines.
The development of the FPA was accomplished through implementation
of a Public Participation and Outreach Plan, which is included in the
docket for this rulemaking. This Plan provided opportunity for
participation by potential industrial participants, environmental
organizations, the general public and other interested parties. The
rule and FPA also provide for public participation in the designation
and approval of UCCFs.
Finally, the NYSDEC intends to propose and (subject to public
comment) promulgate an equivalent state regulation.
6. Project Duration and Completion
As with all XL projects testing alternative environmental
protection strategies, the term of the NYSDEC XL project is one of
limited duration. The duration of the regulatory relief provided by
this rule is anticipated to be 60 months from the effective date of
this rule. However, a participating UCCF or Utility may be terminated
or suspended at any time for failure to comply with any of the
requirements of the rule.
C. Rule Description
The rule adds a new section to the Standards Applicable to
Generators of Hazardous Waste, 40 CFR 262.90. Paragraph (a) of the rule
defines terms used in the new rule. The definition of remote location
in paragraph (a)(3) is of particular interest because of its importance
in the implementation of the regulation. Paragraph (b) includes the
requirements that a Utility and UCCF will comply with in order to
consolidate hazardous waste for up to 90 days at the UCCF. For example,
under Sec. 262.90(b)(1), the utility is required to use a Uniform
Hazardous Waste Manifest (Form 8700-22) for all shipments of hazardous
waste greater than 100 kilograms being sent from a remote location to a
UCCF. The manifest used to transport hazardous waste from the remote
location to the UCCF will be prepared as follows:
(1) The EPA ID # of the UCCF would be entered on the Manifest Form
in Item 1.
(2) The name and location of the remote location would be entered
in the Generator's Name and Mailing Address block (Item 3).
(3) The transporter's name and EPA ID number would be entered in
the Transporter 1 Company Name box (Items 5 and 6).
(4) The UCCF name would be entered in the Designated Facility Name
and Site Address (Item 9) as the facility which will be handling the
waste described on the manifest.
(5) The DOT description and other information about the waste would
be entered in Items 11 through 14.
(6) The Generator's Certification (Item 16) would be signed.
(7) The Transporters Acknowledgment of Receipt (Item 18) would be
signed.
(8) The person accepting the waste on behalf of the UCCF would sign
the Certification of receipt of hazardous materials covered by this
manifest (Item 20).
(9) A copy of the manifest, signed by all required signatories,
must be retained at the UCCF for a minimum of three years. A copy of
the manifest must also be provided to the transporter, if other than
the utility.
The utility would also complete a new manifest in accordance with
40 CFR 262.20, for all hazardous waste transported to a TSDF from the
UCCF.
EPA has modified the rule to consistently refer to a Utility's
waste handling activities as ``consolidation.'' The proposed rule and
its accompanying preamble interchangeably used the terms ``accumulate''
and ``consolidate'' to refer to Utility waste handling activities. EPA
has modified the rule to uniformly refer to ``consolidation'' because
that term more accurately reflects the range of activities that a
Utility will carry out under this project. The activities that a
Utility will carry out include, collecting hazardous waste from
multiple remote locations, transporting the collected hazardous waste
to a designated UCCF, keeping that hazardous waste at the UCCF for up
to 90 days, and combining, where feasible and appropriate, physically
and chemically similar hazardous waste.
Paragraph (c) of the rule requires public notification of a
Utility's and UCCF's participation. These requirements ensure that
there is adequate public notice and comment on participation. Paragraph
(d) includes items that need to be included in a notification of
participation that would be sent to the regulatory agency. Paragraph
(e) describes the procedures for designating UCCFs, including how
information from the public comments will be incorporated in the
approval process. Paragraph (f) includes requirements for the addition
or deletion of UCCFs from participation. Paragraph (g) includes the
requirement that a participating Utility submit an Annual Progress
Report, including information on the number of remote locations, the
total tonnage of each type of waste handled, and savings reaped from
participation. Paragraph (h) requires a Utility to assess any direct
savings that result from its participation in the project, and sets
forth examples of the direct savings that a Utility may experience as a
result of participation. Paragraph (i) discusses grounds for
termination of a Utility or UCCF's participation. Paragraph (j) sets
forth the expiration date of the rule. Amendments to parts 264, 265,
and 270 clarify that a UCCF operating in accordance with the
requirements of 40 CFR 262.90 is exempt from TSDF and permitting
requirements.
EPA has made several changes to the proposed rule in response to
comments. These are: (1) A clarification regarding when hazardous waste
must be transported from a remote location to a UCCF; (2) a
clarification regarding whether the UCCF may also consolidate hazardous
waste generated at the UCCF under the terms of this rule; (3)
additional requirements applicable to containers of hazardous waste;
(4) additional public notice and public participation requirements; and
(5) an additional reporting requirement for participating utilities.
Each of these changes is discussed in detail in section III below.
III. Response to Public Comments
A. Public Comments Received
On December 7, 1998, EPA requested comments on the proposed rule
and draft Final Project Agreement for the NYSDEC XL project. See 63 FR
67561. As a result of this Federal Register document, EPA received four
comments: one from Consolidated Edison Company of New York, Inc.,
(ConEd), one from the Utility Solid Waste Activities Group (USWAG), one
from Niagara Mohawk, and one from the Atlantic States Legal Foundation
(ASLF) (joined by New York Rivers Unlimited, Great Lakes United, and
the New York Public Interest Research Group).
1. ConEd Comment
ConEd supports the NYSDEC XL project because it believes that the
[[Page 37629]]
project will achieve better environmental results at less cost. It
believes that these cost savings will result from unnecessary paperwork
reductions, the consolidation of waste, and cost reductions from
allowing UCCFs to operate under certain conditions without obtaining
TSD permits and maintaining TSD facilities. In its comment, ConEd also
extols the environmental benefits of the project which it identifies as
the reinvestment of cost savings in environmentally beneficial
projects, the expedited removal of waste, and the reduction in vehicle
trips through the consolidation of waste. ConEd suggests that EPA
clarify whether UCCFs may handle hazardous waste generated at the UCCF
as well as hazardous waste generated at remote locations. ConEd points
out that, although the proposed rule suggested that a UCCF could handle
both remote location hazardous waste and UCCF generated hazardous
waste, a statement in the preamble to the proposed rule suggested that
each UCCF could only handle waste generated at its remote locations.
EPA agrees that this issue should be clarified. EPA's intent with the
proposed rule was that each UCCF would handle both the hazardous waste
generated at its remote locations as well as hazardous waste generated
at the UCCF. EPA's statement in the preamble to the proposed rule was
not meant to suggest that UCCFs would not be able to handle UCCF-
generated hazardous waste, but rather to clarify that a UCCF would not
be allowed to receive hazardous waste from any off-site location other
than a remote location. EPA has modified Sec. 262.90(b) to clarify that
UCCFs may consolidate, under the terms of this rule, hazardous waste
generated at remote locations and hazardous waste generated at the UCCF
itself. The Utility must comply with the requirements of 40 CFR
262.34(a)-(c) (requirements for large quantity generators), regardless
of the total quantity of waste generated or consolidated each calender
month (see, Sec. 262.90(b)(4)(i)).
2. USWAG Comment
USWAG is an informal consortium of the Edison Electric Institute,
the American Public Power Association, the National Rural Electric
Cooperative Association, and about 80 electric utilities located
throughout the country. In its comment, USWAG states that (1) ``the
current hazardous waste reporting and waste consolidation rules are
inefficient and increase costs when applied to electric utility
individual `remote locations;' '' (2) ``the NYSDEC Project XL will
provide regulatory flexibility and costs savings to electric utilities
by reducing the paperwork burdens and waste consolidation restrictions
under the current hazardous waste rules;'' and (3) ``the NYSDEC Project
XL will not only maintain the same levels of environmental protection
and public safety under existing rules, but will facilitate their
improvement.'' USWAG, like ConEd, requests that EPA clarify that
hazardous waste generated at a UCCF can also be consolidated at the
UCCF in accordance with the terms of this XL rule. As discussed above,
EPA agrees and has clarified Sec. 262.90(b) of the rule accordingly.
USWAG also requests that EPA clarify the meaning of the term,
``generation event.'' USWAG suggests that a ``generation event'' ends
when the utility has completed the removal of the hazardous waste from
inside the manhole, oil or gas pipeline, or other remote location. EPA
agrees that the term ``generation event'' should be clarified. One of
the purposes of this XL project is to improve the existing situation in
which hazardous waste generated at an unstaffed or unsecure remote
location can remain at that site, unsupervised, for extended periods of
time. Thus, EPA's intent with this rule is that waste that is collected
from a manhole or other remote location will not remain at a remote
location where it might be unsupervised prior to being transferred to a
UCCF. In light of this comment, EPA believes that use of the term
``generation event'' is insufficient to indicate when hazardous waste
must be transferred from a remote location to the UCCF. EPA has
modified the rule to clarify that hazardous waste must be transferred
from the remote location to a UCCF immediately following collection of
all hazardous waste at the remote location or when the staff collecting
the hazardous waste leave the remote location, whichever comes first.
This approach will ensure that hazardous waste that is collected at a
remote location is never left unsupervised and that it does not
unnecessarily remain on-site for extended periods of time. For example,
if it takes Utility workers several days to collect all the hazardous
waste at a remote location, but the workers leave the remote location
at the end of each day, the hazardous waste collected during the course
of the day will have to be transported to the UCCF when the workers
leave the remote location. Alternatively, hazardous waste must be
transported to the UCCF once all the hazardous waste at the remote
location has been collected, even if utility staff remain at the remote
location.
In addition, USWAG requests that EPA ``consider eliminating the
requirement that remote locations comply with the identification number
and manifesting requirements in order to further reduce unnecessary,
time-consuming and costly paperwork burdens.'' EPA did not intend that
each remote location would be required to have an individual
identification number under this project. Rather, under this project,
the identification number of the UCCF will also be used by its remote
locations (see, section II.C. above). With respect to the manifesting
requirements, EPA does not consider the manifest requirements of 40 CFR
part 262, subpart B (incorporated by reference in today's rule) to be
unnecessary. Hazardous waste generated at remote locations and
transported to a UCCF will be traveling on public roads, and thus EPA
believes that the tracking and emergency response functions served by
these requirements are still necessary. Moreover, this project is
focused on experimenting with flexibility regarding hazardous waste
consolidation, not flexibility with regard to manifest preparation.
3. Niagara Mohawk Comment
In its comment, Niagara Mohawk supports the initiative proposed by
this rule and asserts that it will provide substantial regulatory
relief to the utility industry while reducing environmental impact.
However, Niagara Mohawk believes that the rule contains two
requirements that are disincentives to participation. First, it
believes that the public notice requirements are excessive.
Specifically, Niagara Mohawk asserts that placing a public notice in a
newspaper of local circulation should be sufficient and that two
additional outreach methods are unnecessary. EPA disagrees. Stakeholder
involvement is one of the criteria for XL projects. The provision of
two methods of public notice in addition to a public notice in the
newspaper will help to ensure that all interested members of the
community will be aware of, and able to participate in the process of
designating UCCFs. Second, Niagara Mohawk requests a utility exemption
from the need to obtain a permit under 6 NYCRR part 364. Niagara Mohawk
is referring to a New York State requirement that a transporter of
hazardous waste obtain a permit. This requirement is a state-only
requirement and can be addressed by NYSDEC. It is not appropriate for
EPA to address this issue in this federal rulemaking.
[[Page 37630]]
4. ASLF Comment
ASLF agrees that the portion of the project pertaining to RCRA
identification numbers and biennial reports will achieve RCRA
objectives in a superior manner while achieving cost savings. ASLF
does, however, raise a number of concerns regarding the consolidation
of remote location hazardous waste at a UCCF.
a. RCRA Permits
ASLF asserts that RCRA section 3005(a) requires that a UCCF obtain
a permit before it can accept waste from a Utility remote location. EPA
disagrees. RCRA section 3005(a) requires treatment, storage, and
disposal facilities (TSDFs) to obtain permits. RCRA section 3002
establishes separate requirements for generators. Thus, the statute
clearly recognizes that generators and TSDFs are separate classes of
regulated entities subject to different regulatory regimes, although it
does not clearly specify where the line between these classes of
regulated entities is drawn. Specifically, it does not identify at what
point a generator's waste handling activities become ``treatment'' or
``storage'' under the statute such that the generator becomes a TSDF.
EPA believes it is clear that some amount of waste handling by a
generator must fall outside the scope of the RCRA TSDF requirements;
otherwise, virtually every generator in the country would also be a
TSDF and the distinction between the two classes of regulated entities
would be meaningless. EPA does not believe that Congress intended that
every entity in the country that generates hazardous waste become a
TSDF subject to the requirement to obtain a RCRA permit.
In the case of hazardous waste generated at Utility remote
locations and consolidated at a central collection facility, EPA
believes it is inappropriate to require a UCCF to obtain a permit
because it is not acting as a TSDF. Rather, the consolidation of remote
location hazardous waste at the UCCF is an activity that is incidental
to the Utility's operations. As discussed previously, the purpose of
consolidating hazardous waste at the UCCF prior to transportation to a
TSDF is to ensure that remote location hazardous waste is not left in
an unsecured, unstaffed location and to achieve transportation
efficiencies. These are issues that the Utilities face as generators of
hazardous waste. For this reason, EPA believes that RCRA does not
prohibit the participating Utilities from consolidating remote location
hazardous waste for up to 90 days at a UCCF without a TSDF permit. In
addition, EPA believes that the procedural and substantive requirements
that participating Utilities will have to comply with in order to
consolidate remote location waste at a UCCF ensure the protection of
human health and the environment. These requirements include that
hazardous waste can only be held at a UCCF for a limited duration (up
to 90 days) and such waste must be held in units that are managed in
accordance with specified technical requirements in 40 CFR part 265, as
well as with additional requirements for closure and secondary
containment of containers. Utilities will also have to comply with
personnel training, contingency planning, and other emergency
preparedness and prevention requirements, and they will be subject to
both general and unit-specific closure requirements. In addition, the
regulatory agency may impose additional conditions on the operation of
a particular UCCF if it determines that the requirements identified in
this rule may not fully protect human health and the environment.
Finally, the designation of a particular UCCF is subject to public
notice and comment (including the opportunity for a public meeting if
the regulatory agency determines such a meeting is warranted) and must
be approved by the regulatory agency. If the regulatory agency believes
that the designation of a UCCF will not ensure protection of human
health and the environment, the UCCF will be rejected as provided for
in Sec. 262.90(e)(4).
This limited exemption is, in fact, necessary in order to provide
utilities with the incentive to more immediately remove hazardous waste
generated at unstaffed remote locations. If permitting were required,
utilities who permitted their facilities would incur high transaction
costs as a result of lengthy permitting procedures and high state
permitting fees. Utilities have not found permitting of these
facilities to be cost-effective, and utilities are thus unlikely to
permit them. As a result, waste is generally sent to non-utility-owned
permitted facilities. Because utilities await authorization from these
TSD facilities prior to transport, the waste remains at the remote
location for several days. EPA is entering into this project to
experiment with ways to avoid this situation and allow waste to be
removed from remote locations faster. In fact, this project idea was
initiated when three utilities independently expressed concern to New
York State that the storage of hazardous waste ``on-site'' at remote
locations was a problem in terms of potential liability, traffic
disruption, accidental releases and attendant environmental damage, and
vandalism.
ASLF also asserts that the Agency has reopened the issue of its
authority to exempt 90-day generator on-site accumulation units from
the RCRA permit requirement. EPA disagrees. EPA has never indicated in
any way that it intended to reconsider the existing regulatory
provisions for the on-site accumulation of hazardous waste. EPA did not
propose to amend or otherwise modify the existing provisions for on-
site accumulation of hazardous waste, nor did the Agency solicit
comment on these provisions. Today's rule is limited to the off-site
consolidation of hazardous waste for a limited class of hazardous waste
generators. It does not in any way affect the existing requirements for
on-site accumulation of hazardous waste.
1. Utility-owned Rights-of-Way and Remote Locations
ASLF states that the rule excludes from ``permitting a storage or
treatment facility simply because it is located along a utility right-
of-way, and would thereby regulate the entire right-of-way as if it
were one onsite individual generation location,'' and concludes that
the rule extends the current provisions for on-site accumulation beyond
their limits. EPA disagrees. Today's rule is not intended to treat a
utility right-of-way as one site (see, e.g., Sec. 262.90(b)(1) which
requires participating utilities to manifest hazardous waste shipments
from a remote location to an off-site UCCF). EPA did not include the
notion of the Utility right-of-way in today's rule for any reason other
than to limit the waste a UCCF may receive. By linking the definition
of ``remote location'' to a Utility's right-of-way network, the rule
ensures that a UCCF may only receive waste generated by that Utility at
predictable and expected locations. Finally, today's rule is not
intended to be an ``extension'' of the existing provisions for on-site
accumulation, rather it is a distinct set of requirements under which
participating Utilities can consolidate remote location waste at off-
site UCCFs.
ASLF further states that some ``rights-of-way may include hundreds
of miles of rural areas where the utility may actually own (or operate)
little or none of the land'' and that concepts of contiguous ownership
inherent in EPA's definition of ``facility'' are disregarded. As
discussed above, today's rule is not intended to treat a Utility right
of way as one site or one facility.
[[Page 37631]]
2. Small Quantity Generator Exclusion
ASLF notes that this rule does not modify the small quantity
generator exclusion threshold for individual remote locations, and
asserts that this is inconsistent with otherwise regulating ``the
entire right-of-way as one collective onsite generator location.'' As
discussed above, this rule does not regulate a right-of-way as one
site. In addition, it is not the intent of the rule to subject
Conditionally Exempt Small Quantity Generator waste (i.e., hazardous
waste that does not exceed 100 kilograms per calender month) generated
at individual remote locations to increased regulation. Thus, a Utility
may continue to follow the requirements for Conditionally Exempt Small
Quantity Generators (CESQGs) at 40 CFR 261.5 for CESGQ waste generated
at individual remote locations that is not sent to a UCCF. If, however,
a Utility chooses to send CESQG waste generated at individual remote
locations to its UCCF, that waste will be subject to the requirements
of Sec. 262.90 (see 40 CFR 262.90(b)).
3. Quantity Limits
ASLF expresses concern that the rule does not include quantity
limits restricting the consolidation of large quantities of waste at
each UCCF, particularly because UCCFs may be located at or near
population centers. EPA agrees that there may be circumstances where it
will be necessary to limit the amount of hazardous waste that may be
consolidated at a particular UCCF; however, EPA does not believe it is
necessary to impose a universal limit on all UCCFs regardless of their
particular circumstances. Instead, the rule provides that such
restrictions may be imposed on a UCCF on a case-by-case basis at the
time the UCCF is approved (see, 40 CFR 262.90(e)(3)). In addition, EPA
has modified the rule to require the inclusion in the utilities' Annual
Report of the total tonnage of each type of hazardous waste handled at
each UCCF. This information will enable EPA to conduct reviews to
determine whether the approach is working. If this experiment is later
extended to the rest of the nation, the collection of this data will
assist EPA in determining whether quantity limits should be imposed.
4. Substantive TSDF Requirements
ASLF voices concern that some of the substantive requirements
applicable to permitted TSDFs would not apply to UCCFs. Specifically,
ASLF highlights that a UCCF would not be subject to the following
standards: (1) Secondary containment for container storage areas; (2)
clean closure of container storage areas; and (3) facility wide
corrective action. At the time of proposal, EPA did not consider
additional requirements for containers because, given the types of
hazardous waste generated at utility remote locations, it is unlikely
that the utilities will be consolidating hazardous waste in containers.
Upon consideration of ASLF's comment, however, EPA agrees that
additional requirements for containers may be appropriate to include as
part of this XL project in the event that containers are used to
consolidate hazardous waste. As a result, EPA has included in today's
rule a requirement for secondary containment of containers that is
based on New York State requirements currently applicable to all
generators (i.e., requirements that are not currently federal
requirements). This requirement is that participating Utilities
operating a UCCF that holds liquid hazardous waste in containers must
provide secondary containment for those containers under two sets of
circumstances: (1) If the UCCF is consolidating 8,800 gallons or more
of liquid hazardous waste at any time; and (2) if the UCCF is
consolidating 185 gallons or more of liquid hazardous waste at any time
and is located in an area designated by New York State that overlays a
sole-source aquifer (this would include, for example, areas in
Brooklyn, Queens, and Long Island). In addition, EPA has incorporated
the closure requirements of 40 CFR 264.178 for containers into today's
rule. EPA does not, however, believe that it is appropriate to require
corrective action because the purpose of today's rule is to provide
flexibility so that utilities will have an incentive to quickly remove
hazardous waste generated at remote locations to a secure location.
Because facility-wide corrective action can be extremely expensive,
imposing such a requirement would likely create a disincentive to the
very behavior the Agency seeks to promote. Overall, EPA believes
today's rule will result in hazardous waste management practices that
provide a benefit of superior protection of human health and the
environment as compared with current practices. In addition, if a UCCF
is not operated in compliance with the terms of today's rule, it may be
deemed a treatment, storage or disposal facility subject to enforcement
or corrective action under RCRA section 3008 or section 3004.
Furthermore, UCCFs participating in this project remain subject to
enforcement or cleanup authorities under RCRA and other environmental
statutes (e.g., RCRA section 7003, CERCLA section 106).
5. Public Participation
ASLF is also concerned that certain procedural rights associated
with permitted facilities may not apply under this rule. In particular,
ASLF expresses concern regarding (1) reduced public notice requirements
at the time a facility is first proposed for designation; (2) lack of
an opportunity to administratively appeal the approval of a facility;
(3) lack of opportunity to review and comment on closure plans; and (4)
no formal opportunity to seek modifications of an approval once it is
issued. With respect to public notice requirements, EPA believes the
types of public outreach required at the time that the UCCF is proposed
are sufficient to ensure that all interested parties will be notified
about a proposed UCCF. However, to further ensure that notice of a
proposed UCCF designation is provided to all interested parties, EPA
has modified the rule to ensure that the parties who commented on the
proposed rule for this XL project are notified by a Utility when that
Utility seeks approval for a particular UCCF. Today's rule also
includes other requirements to ensure public involvement in the
decision process for UCCFs. Utilities are required to respond to all of
the comments that are submitted at the time that the UCCF is proposed.
EPA has also modified the rule to clarify that the regulatory agency
responsible for deciding whether to approve a particular UCCF will also
respond to all of the comments submitted at the time that the UCCF is
proposed, and consider these comments in determining whether or not to
approve the UCCF, impose restrictions on the approval, or hold a site-
specific meeting. EPA has also modified the rule to require that
notification of the decision on whether or not to approve the UCCF be
sent to each party that commented on the proposed designation.
ASLF expresses concerns about the lack of an opportunity to
administratively appeal the approval of a facility. ASLF is correct
that this rule provides no opportunity for administrative appeals
following the regulatory agency's decision regarding designation of a
UCCF; however, as part of this XL initiative there will be an annual
opportunity for public input on the continued operation of a UCCF. As
it does for all XL projects, EPA will be conducting annual evaluations
of this project's progress. At the time of the evaluation, EPA will
solicit public comment on how the project is progressing, and will
contact all persons
[[Page 37632]]
who have expressed an interest in the project as a whole or in
particular UCCFs. Where information provided by the public indicates a
Utility or UCCF is not operating in compliance with today's rule, EPA
may consider taking appropriate enforcement action or terminating or
suspending a Utility or UCCF from the project. In addition, EPA will
consider comments on a UCCF that are submitted at any time during the
project.
ASLF comments that it is unclear whether there will be an
opportunity for judicial review of the regulatory agency's approval of
a particular UCCF. As discussed in section II.B., NYSDEC will be the
primary regulatory authority responsible for implementing the
requirements of this rule and will therefore be the regulatory agency
determining whether or not a UCCF may be approved to participate. Thus,
the right to judicial review of the approval of a particular UCCF would
be governed by the State Administrative Procedures Act.
ASLF expresses concern that there is no formal opportunity to seek
modifications of a UCCF approval once it is issued. ASLF is correct
that this rule will provide no formal opportunity for the public to
request a modification of a UCCF approval. EPA notes, however, that
there is also no formal opportunity for the public to request
modification of a RCRA permit once it is issued. As discussed above, as
part of this XL initiative, there will be an annual opportunity for
public input regarding continued operation of a UCCF. Each year, EPA,
using the annual reports that utilities are required to file with the
regulatory agency as a starting point, will evaluate the progress of
the project. EPA conducts this annual evaluation for all XL projects.
At the time of the evaluation, EPA will solicit public comment on how
the project is progressing. At this point in time, EPA will contact all
persons who have expressed an interest in the project as a whole or in
particular UCCFs. In addition, EPA will consider comments on a UCCF
that are submitted at any time during the project. Where information
provided by the public indicates a Utility or UCCF is not operating in
compliance with today's rule, EPA or NYSDEC may consider taking
appropriate enforcement action or terminating or suspending a Utility
or UCCF from the project.
ASLF is also concerned about the lack of opportunity to review and
comment on closure plans for UCCFs. In response, EPA wishes to clarify
that there is no opportunity for public review on closure plans because
utilities are not required to develop closure plans to participate in
this XL project. Under today's rule, utilities are required to comply
with general and unit-specific closure requirements, but they are not
required to develop closure plans.
Finally, EPA notes that the appropriate baseline against which the
environmental benefits of this project should be measured is the status
quo, under which waste is accumulated at remote locations without any
of these public participation opportunities. EPA does not believe that
a comparison to the safeguards provided at permitted facilities is
meaningful, since (with limited exceptions) the utilities have not
chosen to obtain permits and are not required to do so.
b. Need for Flexibility Provided by Rule
1. Transfer Facilities and Other Existing Provisions
ASLF suggests that existing regulatory provisions, such as
requirements for transfer facilities (where hazardous waste may be held
for up to 10 days as part of the normal course of transportation) could
be sufficient to deal with the problem identified in this rulemaking.
ASLF also states that emergency identification numbers are available,
and some utilities are licensed to transport the waste. EPA does not
believe these options are generally sufficient to deal with the
identified problems. First, none of these options help a utility to
remove hazardous waste from a remote location more quickly if the only
place that it can ultimately be transported to is a TSDF. Under current
regulations, prior to transport to a TSDF or a transfer facility, a
utility must complete a manifest, which includes identifying the name
of the TSDF (regardless of whether the waste will be held at a transfer
facility during the course of transportation to that TSDF). The
requirements for holding hazardous waste at a transfer facility include
that the hazardous waste be manifested. Since the waste cannot be taken
to a TSDF or even manifested unless the TSDF grants its permission,
utilities do not, in practice, transport the waste until authorization
from the TSDF is received. Waiting for authorization from the TSDF can
cause a delay of two to three days before the hazardous waste can be
removed from the remote location. By allowing the utility to transport
waste directly to the UCCF, this rule facilitates more immediate
transport of the hazardous waste. Also, while waste may be held at a
transfer facility for up to 10 days, the utilities have not found this
time period to be long enough to provide a meaningful opportunity to
consolidate the hazardous waste generated at remote locations so that
the hazardous waste can be transported to a TSDF in a cost-effective
manner. The reason that 10 days is insufficient is that utilities
cannot predict how much waste will be removed from each remote location
or how the hazardous waste generated at each remote location will
combine to make an efficient load.
2. Utilities Could Obtain Permits
ASLF states that there is no evidence in the rulemaking record that
utilities are unable to obtain a RCRA permit where necessary or
advantageous to do so. ASLF states that utilities can obtain permits
under current regulations so the flexibility provided by this rule is
unnecessary. EPA disagrees with the assertion that the flexibility
provided by this rule is unnecessary. While utilities may obtain
permits for UCCFs under current regulations, in practice they generally
do not because of the high cost of obtaining a permit and paying annual
state permit fees.1 This project is an experiment to
determine if an alternate regulatory approach can create incentives for
utilities to expedite the removal of hazardous waste from remote
locations and to achieve transportation efficiencies. As discussed in
section II.A., the overall purpose of Project XL is to experiment with
untried, potentially promising regulatory approaches. EPA believes that
this approach will accomplish faster removal of hazardous waste and
result in superior environmental performance. The proposed rule was
developed based on EPA's understanding from communications with NYSDEC
and various New York State utilities. Confirmatory information
supporting this final rule that addresses this point has been included
in the rulemaking record.
---------------------------------------------------------------------------
\1\ There are currently five TSDFs operating under a RCRA permit
and owned by a utility in all of New York State. However, not all
utilities currently own or operate a permitted TSDF and of those
that do, the TSDF may not be accessible to all of their remote
locations. Whether a utility already owns or operates a TSDF will be
an issue considered by the regulatory agency when it decides whether
to approve a designation of a particular UCCF.
---------------------------------------------------------------------------
3. Delays in Securing Hazardous Waste Transporters
ASLF expresses concern that, to the extent that securing the
services of a hazardous waste transporter is the cause of the delay in
removing hazardous waste from a remote location, this project will not
solve that problem. EPA has not found that the delay in removing
hazardous waste from the remote locations is generally a result of
[[Page 37633]]
having to secure a licensed transporter, but rather of having to obtain
authorization from the TSDF before that TSDF can be entered on the
manifest (see (4)(b)(2) above). To the extent that securing a
commercial transporter is a problem, this rule will address it because
allowing the Utilities to transport waste to a UCCF will mean that
Utilities could remove the waste immediately with their own licensed
transporters.
4. Existence of Delays in Hazardous Waste Removal
ASLF comments that the rulemaking record does not contain any
evidence that the delay in transporting hazardous waste from remote
locations actually occurs and that there is no analysis of why a delay
should ever occur. For an explanation of why this delay occurs, see
section III. A.4.b.1. Regarding the rulemaking record, the proposed
rule was developed based on EPA's understanding from communications
with NYSDEC and various New York State utilities. Confirmatory
information supporting this final rule that addresses these points has
been included in the rulemaking record.
5. Streamlined Permits
ASLF questions why EPA did not consider an option of a streamlined
permit for UCCFs because streamlined permitting in general is being
considered by EPA's Office of Solid Waste. Under Project XL potential
participants are invited to develop their proposals for common sense,
cost-effective strategies that will replace or modify specific
regulatory requirements and result in superior environmental benefits.
Project XL is intended to allow EPA to experiment with these proposals
to assess whether they provide benefits at the specific facility
affected, and whether they should be considered for wider application.
In this case, several Utilities and NYSDEC proposed this approach to
EPA. This approach provides a commonsense way to ensure the fast
removal of hazardous waste from remote locations. Because of the
hazards involved in leaving the waste at the remote locations, EPA has
determined that this project is beneficial to human health and the
environment and is worth evaluating as an alternative to the existing
system.
c. Environmental Benefits
ASLF also expresses concern over the environmental benefits of the
project. ASLF states that the immediate removal of hazardous waste from
remote locations is not derived from the exemption from permitting
requirements for UCCFs. EPA disagrees. As discussed above, nothing
currently prevents utilities from leaving hazardous waste at unstaffed,
unsecured remote locations. In fact, there is generally, a two to three
day delay in the transport of the hazardous waste from the remote
locations (after all the hazardous waste is collected) because
utilities wait for TSDF authorization prior to listing the TSDF on the
manifest and transporting the waste. While utilities may obtain permits
for UCCFs under current regulations, in practice they generally do not.
This project is an experiment to determine if an alternate regulatory
approach can create incentives for utilities to expedite the removal of
hazardous waste from remote locations and to achieve transportation
efficiencies. ASLF questions the amount of environmental benefits
resulting from the consolidation of waste resulting in fewer vehicle
trips. While EPA does not consider this environmental benefit in of
itself to constitute superior environmental performance, EPA believes
that a reduction in vehicle trips does create some environmental
benefit. EPA considers all of the environmental benefits as a whole
when deciding whether a project achieves superior environmental
performance. ASLF also expresses concern that the utilities may choose
the environmental projects. EPA views this as one of the areas of
experimentation under this project. Because utilities know their
facilities and operations better than EPA, they should know where they
can achieve the greatest environmental benefit. Thus, EPA is
experimenting with giving the utilities discretion to choose the best
environmental projects for their particular facilities. These
environmental projects, as well as the amount of money spent, must be
described in the utilities' annual reports. As discussed above, as in
all XL projects, EPA will solicit public comment on the project when it
evaluates the annual reports. EPA will consider these comments in
determining whether the approval of individual UCCFs and the project as
a whole provide sufficient environmental benefits. In addition, if the
regulatory agency finds that the environmental projects are a sham, the
regulatory agency has the authority to terminate a UCCF's approval or a
utility's participation in this project.
ASLF also expresses concern that the determination of whether an
environmental project is otherwise required by law is subject to
interpretation. EPA believes that the regulatory agencies have the
knowledge and expertise to determine whether a particular environmental
project is otherwise required by law. If a Utility chooses a project
that it is otherwise required to do, the regulatory agency has the
authority to terminate a UCCF's approval or a utility's participation
in this project.
ASLF is concerned that there is no opportunity for public input
into the areas of reinvestment chosen by the utilities. EPA disagrees.
The public may provide suggestions to the utilities about the
environmental projects chosen by the utilities at any time. In
addition, when EPA conducts its annual evaluation of this project, it
will solicit public input on the benefit of the environmental projects
chosen by the utilities. All information received from the public will
be included in EPA's annual evaluation of the project. EPA will also
provide this information to NYSDEC and the relevant utilities.
IV. Additional Information
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993) EPA must
determine whether the regulatory action is ``significant'' and
therefore subject to Office of Management and Budget (OMB) review and
the requirements of the Executive Order. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may:
(1) Have an annual effect on the economy of $100 million or more
or adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety in State, local, or tribal governments or
communities;
(2) Create a serious inconsistency or otherwise interfere with
an action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlement,
grants, user fees, or loan programs of the rights and obligations of
recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
Because the annualized cost of this rule will be significantly less
than $100 million and will not meet any of the other criteria specified
in the Executive Order, it has been determined that this rule is not a
``significant regulatory action'' under the terms of Executive Order
12866, and is therefore not subject to OMB review.
B. Regulatory Flexibility
The Regulatory Flexibility Act (RFA) generally requires an Agency
to conduct a Regulatory Flexibility analysis of any rule subject to
notice and comment
[[Page 37634]]
rulemaking requirements unless the agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities. Small entities include small businesses, small not-for-profit
enterprises, and small governmental jurisdictions. EPA believes that in
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the required analyses is to identify and address
regulatory alternatives ``which minimize any significant economic
impact of the proposed [or final] rule on small entities.'' 5 U.S.C.
603 and 604. Thus, EPA may certify as not having a significant economic
impact on a substantial number of small entities rules that relieve
regulatory burden, or otherwise have a positive economic effect on the
small entities subject to the rule. EPA has concluded that today's rule
will relieve regulatory burden for all types of entities, including any
affected small entities. Further, today's rule does not impose any
requirements on any utility unless the utility opts to participate and
receives approval to participate. Therefore, EPA certifies today's rule
is unlikely to have a significant economic impact on a substantial
number of small entities.
C. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the Agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and the Comptroller General of the United
States. EPA will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication of the rule in the Federal Register. A Major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective January 10, 2000.
D. Paperwork Reduction Act
The Office of Management and Budget (OMB) has approved the
information collection requirements contained in this rule under the
provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and
has assigned OMB control number 2010-0026.
EPA is collecting information regarding the locations and amount of
waste involved as well as the money saved and what the savings was
invested in. EPA plans to use this information to determine whether the
XL project is successful. The success of the project will help
determine whether it should be extended to other areas of the country.
Participation in the project is voluntary; however, if a Utility
decides to participate, EPA requires the filing of a report containing
pertinent information. These reports will be publicly available. The
estimated cost burden of filing the annual report is $10,000 and the
estimated length of time to prepare the report is 40 hours. The
estimated number of respondents is 15. Burden means the total time,
effort, or financial resources expended by persons to generate,
maintain, retain, or disclose or provide information to or for a
Federal agency. This includes the time needed to review instructions;
develop, acquire, install, and utilize technology and systems for the
purposes of collecting, validating, and verifying information,
processing and maintaining information, and disclosing and providing
information; adjust the existing ways to comply with any previously
applicable instructions and requirements; train personnel to be able to
respond to a collection of information; search data sources; complete
and review the collection of information; and transmit or otherwise
disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR part 9 and 48 CFR Chapter 15. EPA is
amending the 40 CFR part 9 table of currently approved ICR control
numbers issued by OMB for various regulations to list the information
requirements contained in this final rule. The table lists the CFR
citations for EPA's reporting and recordkeeping requirements, and the
current OMB control numbers. This listing of OMB control numbers and
their subsequent codification in the CFR satisfy the requirements of
the Paperwork Reduction Act and OMB's implementing regulations at 5 CFR
part 1320.
E. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for federal agencies to assess the
effects of their regulatory actions on state, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``federal mandates'' that
may result in expenditures to state, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number or regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation 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
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
As noted above, this rule is applicable only to New York State
Utilities. The EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. EPA has also determined that this rule does not contain a
federal mandate that may result in expenditures of $100 million or more
for state, local, and tribal governments, in the aggregate, or the
private sector in any one year. Thus, today's rule is not subject to
the requirements of sections 202 and 205 of the UMRA.
F. RCRA/HSWA
1. Applicability of Rules in Authorized States
Under section 3006 of RCRA, EPA may authorize qualified states to
administer and enforce the RCRA program for hazardous waste within the
state. (See 40 CFR part 271 for the standards and requirements for
authorization.) States with final
[[Page 37635]]
authorization administer their own hazardous waste programs in lieu of
the federal program. Following authorization, EPA retains enforcement
authority under sections 3008, 7003 and 3013 of RCRA.
After authorization, rules written under RCRA provisions that
predate the Hazardous and Solid Waste Amendments of 1984 (HSWA) no
longer apply in the authorized state. New federal requirements imposed
by those rules do not take effect in an authorized state until the
state adopts the requirements as state law.
In contrast, under section 3006(g) of RCRA, new requirements and
prohibitions imposed by HSWA take effect in authorized states at the
same time they take effect in nonauthorized states. EPA is directed to
carry out those requirements and prohibitions in authorized states
until the state is granted authorization to do so.
2. Effect on New York State Authorization
Today's rule is promulgated pursuant to RCRA provisions that
predate HSWA. New York State has received authority to administer most
of the RCRA program; thus, authorized provisions of the State's
hazardous waste program are administered in lieu of the federal
program. New York State has received authority to administer hazardous
waste standards for generators. As a result, today's rule will not be
effective in New York State until the State adopts equivalent
requirements as State law. It is EPA's understanding that subsequent to
the promulgation of this rule, New York State intends to propose a rule
containing equivalent provisions. EPA may not enforce these
requirements until it approves the State requirements as a revision to
the authorized State program.
G. Applicability of Executive Order 13045
The Executive Order, ``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 EO 12866, and (2) concerns an environmental health or
safety risk that EPA has reason to believe may have a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children; and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This rule is not subject to E.O. 13045 because it is not an
economically significant rule as defined by E.O. 12866, and because it
does not involve decisions on environmental health or safety risks that
may disproportionately affect children.
H. Executive Order 12875: Enhancing Intergovernmental Partnerships
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 or EPA consults with those governments. If EPA complies by
consulting, E.O. 12875 requires EPA to 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.''
Today's rule does not create a mandate on State, local or tribal
governments. The rule does not impose any enforceable duties on these
entities. Accordingly, the requirements of section 1(a) of Executive
Order 12875 do not apply to this 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 or EPA consults with those
governments. If EPA complies by consulting, E.O. 13084 requires EPA to
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 officials 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 rule does not significantly or uniquely
affect the communities of Indian tribal governments. Accordingly, the
requirements of section 3(b) of Executive Order 13084 do not apply to
this rule.
J. National Technology Transfer and Advancement Act
As noted in the proposed rule, section 12(d) of the National
Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law
104-113, section 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 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 standard. This rulemaking does not
involve technical standards. Therefore, EPA did not consider the use of
any voluntary consensus standards.
List of Subjects
40 CFR Part 9
Reporting and recordkeeping requirements.
40 CFR Part 262
Environmental protection, Hazardous materials transportation,
Hazardous waste, Packaging and containers, Reporting and recordkeeping
requirements.
40 CFR Part 264
Environmental protection, Hazardous waste, Packaging and
containers, Reporting and recordkeeping requirements.
40 CFR Part 265
Environmental protection, Hazardous waste, Packaging and
containers, Reporting and recordkeeping requirements.
40 CFR Part 270
Environmental protection, Hazardous waste, Recordkeeping
requirements.
[[Page 37636]]
Dated: July 1, 1999.
Carol M. Browner,
Administrator.
For the reasons set forth in the preamble, parts 9, 262, 264, 265,
and 270 of title 40 of the Code of Federal Regulations are amended as
follows:
PART 9--[AMENDED]
1. The authority citation for part 9 continues to read as follows:
Authority: 7 U.S.C. 135 et seq., 136-136y; 15 U.S.C. 2001, 2003,
2005, 2006, 2601-2671; 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33
U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 1321, 1326, 1330,
1342, 1344, 1345 (d) and (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR,
1971-1975 Comp. p. 973; 42 U.S.C. 241, 242b, 243, 246, 300f, 300g,
300g-1, 300g-2, 300g-3, 300g-4, 300g-5, 300g-6, 300j-1, 300j-2,
300j-3, 300j-4, 300j-9, 1857 et seq., 6901-6992k, 7401-7671q, 7542,
9601-9657, 11023, 11048.
2. In Sec. 9.1 the table is amended by adding a new entry in
numerical order under the indicated heading to read as follows:
Sec. 9.1 OMB approvals under the Paperwork Reduction Act.
* * * * *
------------------------------------------------------------------------
40 CFR citation OMB Control No.
------------------------------------------------------------------------
* * * *
* * *
Standards Applicable to Generators of Hazardous Waste
* * * *
* * *
262.90(c), (d), (f), (g)........................... 2010-0026
* * * *
* * *
------------------------------------------------------------------------
PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE
1. The authority citation for part 262 continues to read as
follows:
Authority: 42 U.S.C. 6906, 6912, 6922-6925, 6937, and 6938.
2. Subpart I consisting of Sec. 262.90 is added to read as follows:
Subpart I--New York State Public Utilities
Sec. 262.90 Project XL for Public Utilities in New York State.
(a) The following definitions apply to this section:
(1) A Utility is any company that operates wholesale and/or retail
oil and gas pipelines, or any company that provides electric power or
telephone service and is regulated by New York State's Public Service
Commission or the New York Power Authority.
(2) A right-of-way is a fixed, integrated network of aboveground or
underground conveyances, including land structures, fixed equipment,
and other appurtenances, controlled or owned by a Utility, and used for
the purpose of conveying its products or services to customers.
(3) A remote location is a location in New York State within a
Utility's right-of-way network that is not permanently staffed.
(4) A Utility's central collection facility (UCCF) is a Utility-
owned facility within the Utility's right-of-way network to which
hazardous waste, generated by the Utility at remote locations within
the same right-of-way network, is brought.
(b) A UCCF designated pursuant to paragraph (e) of this section may
consolidate hazardous waste (with the exception of mixed waste)
generated by that Utility at its remote locations (and at that UCCF)
for up to 90 days without a permit or without having interim status,
provided that:
(1) The Utility complies with all applicable requirements for
generators in 40 CFR part 262 (except Sec. 262.34 (d) through (f)) for
hazardous waste generated at its remote locations and at the UCCF,
including the manifest and pretransport requirements for all shipments
greater than 100 kilograms sent from a remote location to a UCCF.
(2) The Utility transports the hazardous waste from the remote
location to a UCCF immediately after collection of all hazardous waste
at the remote location is complete or when the staff collecting the
hazardous waste leave the remote location, whichever comes first.
(3) The Utility complies with all applicable requirements for
transporters in 40 CFR part 263 for each shipment of hazardous waste
greater than 100 kilograms which is sent from remote location to the
UCCF, and all applicable Department of Transportation requirements.
(4) (i) The Utility complies with 40 CFR 262.34 (a) through (c),
regardless of the total quantity of hazardous waste generated or
consolidated at the UCCF per calendar month;
(ii) The Utility complies with 40 CFR 264.178; and
(iii) Secondary containment is provided for all liquid hazardous
waste consolidated in containers if:
(A) The UCCF is consolidating 8,800 gallons or more of liquid
hazardous waste, or
(B) The UCCF is consolidating 185 gallons or more of liquid
hazardous waste and is located in an area designated by New York State
that overlays a sole-source aquifer.
(5) The Utility submits a biennial report in accordance with 40 CFR
262.41 including all hazardous waste shipped from remote locations to
the UCCF. This UCCF biennial report may be submitted in lieu of
submitting a biennial report for each remote location. However, for
hazardous waste generated at a particular remote location that exceeds
1000 kg per calendar month and that is not sent to the UCCF, the
Utility must submit a separate biennial report.
(6) Waste generated at a remote location that is not sent to a UCCF
is managed according to the requirements of parts 260 through 270 of
this chapter.
(7) The Utility maintains records at the UCCF in accordance with
all the recordkeeping requirements set forth in subpart D of 40 CFR
part 262, including 40 CFR 262.40, and maintains records on any PCB
test results for hazardous wastes brought to the facility from remote
locations.
(8) The UCCF obtains an EPA identification number.
(9) The UCCF receives hazardous waste only from its remote
location.
(10) The Utility reinvests at least one-third of the direct savings
described in paragraph (h) of this section in one or more
environmentally beneficial projects, such as remediation or pollution
prevention, that are over and above existing legal requirements and
[[Page 37637]]
that have not been initiated prior to the Utility's receipt of approval
to consolidate hazardous waste pursuant to this section.
(c) Utilities seeking to have UCCFs designated under paragraph (e)
of this section must comply with the following requirements:
(1) Any New York State Utility seeking approval to consolidate
hazardous waste under this section must notify local governments and
communities of the Utility's intent to designate specific UCCFs.
(2) In carrying out paragraph (c)(1) of this section, the Utility
must solicit public comment. In soliciting public comment, the Utility
must use the notice method set forth in paragraph (c)(2)(i) of this
section, as well as at least two of the methods set forth in paragraphs
(c)(2)(ii) through (vii) of this section. Each Utility must also notify
by mail all parties who commented on the proposed rule for this XL
project.
(i) A public notice in a newspaper of general circulation within
the area in which each proposed UCCF is located;
(ii) A radio announcement in each affected community during peak
listening hours;
(iii) Mailings to all citizens within a five-mile radius of
proposed UCCF;
(iv) Well-publicized community meetings;
(v) Presentations to the local community board;
(vi) Placement of copies of this section and the Final Project
Agreement that explains the regulatory relief outlined in this section
in the local library nearest the proposed UCCF, and inclusion of the
name and address of the library in the newspaper notice; and
(vii) Placement of copies of this section and the Final Project
Agreement that explains the regulatory relief outlined in this section
on the Utility's web site, and inclusion of the web site's address in
the newpaper notice.
(3) All outreach efforts made under paragraph (c)(2) of this
section shall be prepared in English (and any other language spoken by
a large number of persons in the community of concern) and at a minimum
shall include the following information:
(i) A brief description of the XL project, the intended new use of
the facility, and a request for comments on the proposed UCCF.
(ii) The name, if any, and address of the proposed UCCF and its
current status under the RCRA Subtitle C program.
(iii) The intended duration of use of the UCCF under the
requirements of this section.
(iv) Names, addresses, and telephone numbers of contact persons,
representing the Utility, to whom questions or comments may be
directed.
(v) Notification of when the comment period of no less than 30 days
will close.
(4) Prior to the solicitation of public comment pursuant to
paragraph (c)(2) of this section, the Utility must submit copies of
each notice, announcement or mailing directly to local governments and
to EPA.
(5) At the close of the comment period, the Utility shall prepare a
Responsiveness Package containing a summary of public outreach efforts,
all comments and questions received as a result of its outreach
efforts, and the Utility's written responses to all comments and
questions. The Utility shall provide copies of its Responsiveness
Package to any citizens that participated in the public notice process,
local governments and EPA.
(d) Upon completion of the public notice procedures described in
paragraph (c) of this section, the Utility must provide written notice
to EPA of its intent to participate. The Notice of Intent must contain
the following information:
(1) The name of the Utility, corporate address, and corporate
mailing address, if different.
(2) The name, mailing address, and telephone number of a corporate-
level contact person to whom communications and inquiries may be
directed.This contact person may be changed by written notification to
EPA.
(3) A list of the names, addresses, and EPA identification numbers,
if applicable, of all Utility-owned facilities in New York State that
are proposed UCCFs and the names and telephone numbers of a designated
contact person at each facility.
(4) A summary of public outreach efforts undertaken pursuant to
paragraph (c) of this section.
(5) A commitment that one-third of the direct cost savings outlined
in paragraph (h) of this section due to project participation will be
reinvested in one or more environmentally beneficial projects which are
over and above existing legal requirements and which have not been
initiated prior to the Utility's receipt of approval to consolidate
hazardous waste pursuant to this section.
(6) An acknowledgment that the signatory is personally familiar
with the terms and conditions of this section and has the authority to
obligate and does obligate the Utility to comply with all such terms
and conditions. The Utility shall comply with the signatory
requirements set forth in 40 CFR 270.11(a)(1).
(e) The procedures for designating UCCFs are as follows:
(1) Subject to paragraphs (e)(2) through (5) of this section, the
Utility and specified UCCF shall receive approval to comply with the
requirements set forth in paragraph (b) of this section upon the
receipt of written acknowledgment from EPA that the Notice of Intent
described in paragraph (d) of this section has been received and found
to be complete and in compliance with all the requirements set forth in
paragraph (d) of this section. This acknowledgment will state whether
the UCCF has been designated under this section and any additional
limitations which have been placed on the UCCF.
(2) Based on information provided and comments received during the
public notice and comment period, EPA shall prepare a response to the
comments received. The response to comments shall be attached to the
acknowledgment described in paragraph (e)(1). Both the acknowledgment
and the response to comments shall be sent to all persons who commented
on the designation of the UCCF(s) that are the subject of the
acknowledgment.
(3) Based on information provided and comments received during or
after the public notice and comment period, designated UCCFs may be
rejected for the proposed use, or, if EPA determines that acceptance
for the proposed use under the conditions of paragraph (b) of this
section may not fully protect human health and the environment based on
the Utility's compliance history or other appropriate factors, the
acknowledgment may impose conditions in addition to those in paragraph
(b) of this section.
(4) If EPA determines that a site-specific informational public
meeting is warranted prior to determining the acceptability of a
designated UCCF, the acknowledgment will so state.
(5) Subsequent to any public meeting, EPA may reject or prohibit
UCCFs from participating in this project based on information provided
or comments received during or after the public notice process or based
on a determination that acceptance for the proposed use under the
conditions of paragraph (b) of this section may not fully protect human
health and the environment based on the Utility's compliance history or
other appropriate factors.
(f) At any time, a Utility may add or remove UCCF designations by
complying with the following requirements:
[[Page 37638]]
(1) A Utility may notify EPA of its intent to designate additional
UCCFs. Such a notification shall be submitted to, and processed by,
EPA, in the manner indicated in paragraphs (d) and (e) of this section.
(2) To have one or more additional UCCFs designated, the Utility
must comply with paragraph (c) of this section.
(3) A Utility can discontinue use of a facility as a UCCF by
notifying EPA in writing.
(g) Each Utility that receives approval to consolidate hazardous
waste pursuant to this section shall submit an Annual Progress Report
with the following information for the preceding year:
(1) The number of remote locations statewide for which hazardous
waste was handled in accordance with paragraph (b) of this section.
(2) The total tonnage of each type of hazardous waste handled by
each UCCF.
(3) The number of remote locations statewide from which 1,000
kilograms or more of hazardous waste were collected per calendar month.
(4) The number of remote locations statewide from which between 100
and 1,000 kilograms of hazardous waste were collected per calendar
month.
(5) An estimate of the monetary value, on a Utility-wide basis, of
the direct savings realized by participation in this project. Direct
savings at a minimum include those outlined in paragraph (h) of this
section.
(6) Descriptions of the environmental compliance, remediation, or
pollution prevention projects or activities into which the savings,
described in paragraph (h) of this section, have been reinvested, with
an estimate of the savings reinvested in each. Any such projects must
consist of activities that are over and above existing legal
requirements and that have not been initiated prior to the Utility's
receipt of approval to consolidate hazardous waste pursuant to this
section.
(7) The addresses and EPA identification numbers for all facilities
that served as UCCFs for hazardous waste from remote locations.
(h) Utilities that receive approval to consolidate hazardous waste
pursuant to this section must assess the direct savings realized as a
result. Cost estimates shall include direct savings based on relief
from any regulatory requirements, which the facility expects to be
relieved from due to compliance with the provisions of this section
including, but not limited to, the following:
(1) Database management for each remote location as an individual
generator;
(2) Biennial Report preparation costs; and/or
(3) Cost savings realized from consolidation of waste for
economical shipment (including no longer shipping waste directly to a
TSD from remote locations).
(i) If any UCCF or Utility that receives approval under this
section fails to comply with any of the requirements of this section,
EPA may terminate or suspend the UCCF's or Utility's participation. EPA
will provide a UCCF or Utility with 15 days written notice of its
intent to terminate or suspend participation. During this period, the
UCCF will have the opportunity to come back into compliance or provide
a written explanation as to why it was not in compliance with the terms
of this section and how it will come back into compliance. If EPA then
issues a written notice terminating or suspending participation, the
Utility must take immediate action to come into compliance with all
otherwise applicable federal requirements. EPA may also take
enforcement action against a Utility for non-compliance with the
provisions of this section.
(j) This section will expire on January 10, 2005.
PART 264--STANDARDS FOR OWNERS AND OPERATORS OF HAZARDOUS WASTE
TREATMENT, STORAGE, AND DISPOSAL FACILITIES
1. The authority citation for part 264 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924, and 6925.
2. Section 264.1 is amended by adding paragraph (g)(12) to read as
follows:
Sec. 264.1 Purpose, scope and applicability.
* * * * *
(g) * * *
(12) A New York State Utility central collection facility
consolidating hazardous waste in accordance with 40 CFR 262.90.
* * * * *
PART 265--INTERIM STATUS STANDARDS FOR OWNERS AND OPERATORS OF
HAZARDOUS WASTE TREATMENT, STORAGE, AND DISPOSAL FACILITIES
1. The authority citation for part 265 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6906, 6912, 6922, 6923, 6924, 6925,
6935, 6936 and 6937.
2. Section 265.1 is amended by adding paragraph (c)(15) to read as
follows:
Sec. 265.1 Purpose, scope, and applicability.
* * * * *
(c) * * *
(15) A New York State Utility central collection facility
consolidating hazardous waste in accordance with 40 CFR 262.90.
* * * * *
PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE
PERMIT PROGRAM
1. The authority citation for part 270 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and
6974.
2. Section 270.1 is amended by adding paragraph (c)(2)(ix) to read
as follows:
Sec. 270.1 Purpose and scope of these regulations.
* * * * *
(c) * * *
(2) * * *
(ix) A New York State Utility central collection facility
consolidating hazardous waste in accordance with 40 CFR 262.90.
* * * * *
[FR Doc. 99-17347 Filed 7-9-99; 8:45 am]
BILLING CODE 6560-50-P
