[Federal Register: July 1, 2009 (Volume 74, Number 125)]
[Rules and Regulations]
[Page 31380-31385]
[DOCID:fr01jy09-11]

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 271

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

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

AGENCY: Environmental Protection Agency (EPA).

ACTION: Immediate final rule.

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

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rule that is not withdrawn will take effect.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

ADDRESSES: Submit your comments, identified by EPA-R02-RCRA-2009-0346,
by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.
     E-mail<EMAIL_ADDRESS>     Fax:<PHONE_NUMBER>.
     Mail: Send written comments to Michael Infurna, Division
of Environmental Planning and Protection, EPA, Region 2, 290 Broadway,
22nd Floor, New York, NY 10007.
     Hand Delivery or Courier: Deliver your comments to Michael
Infurna, Division of Environmental Planning and Protection, EPA, Region
2, 290 Broadway, 22nd Floor, New York, NY 10007. Such deliveries are
only accepted during the Regional Office's normal hours of operation.
The public is advised to call in advance to verify the business hours.
Special arrangements should be made for deliveries of boxed
information.
    Instructions: Direct your comments to Docket ID No. EPA-R02-RCRA-
2009-0346. EPA's policy is that all comments received will be included
in the public docket without change and may be made available on-line
at http://www.regulations.gov, including any personal information
provided, unless the comment includes information claimed to be
Confidential Business Information (CBI) or other information whose
disclosure is restricted by statute. Do not submit information that you
consider to be CBI or otherwise protected through http://
www.regulations.gov, or e-mail. The Federal http://www.regulations.gov
Web site is an ``anonymous access'' system, which means EPA will not
know your identity or contact information unless you provide it in the
body of your comment. If you send an e-mail comment directly to EPA
without going through http://www.regulations.gov, your e-mail address
will be automatically captured and included as part of the comment that
is placed in the public docket and made available on the Internet. If
you submit an electronic comment, EPA recommends that you include your
name and other contact information in the body of your comment and with
any disk or CD-ROM you submit. If EPA cannot read your comment due to
technical difficulties, and cannot contact you for clarification, EPA
may not be able to consider your comment. Electronic files should avoid
the use of special characters or any form of encryption, and be free of
any defects or viruses. (For additional information about EPA's public
docket, visit the EPA Docket Center homepage at http://www.epa.gov/
epahome/dockets.htm).
    Docket: All documents in the docket are listed in the http://
www.regulations.gov index. Although listed in the index, some
information is not publicly available, e.g., CBI or other information
whose disclosure is restricted by statute. Certain other material, such
as copyrighted material, will be publicly available only in hard copy.
Publicly available docket

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

FOR FURTHER INFORMATION CONTACT: Michael Infurna, Division of
Environmental Planning and Protection, EPA Region 2, 290 Broadway, 22nd
floor, New York, NY 10007; telephone number<PHONE_NUMBER>; fax number:
(212) 637-4377; e-mail address<EMAIL_ADDRESS>
SUPPLEMENTARY INFORMATION:

A. Why Are Revisions to State Programs Necessary?

    States which have received final authorization from EPA under RCRA
section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste
program that is equivalent to, consistent with, and no less stringent
than the Federal program. As the Federal program changes, States must
change their programs and ask EPA to authorize the changes. Changes to
State programs may be necessary when Federal or State statutory or
regulatory authority is modified or when certain other changes occur.
Most commonly, States must change their programs because of changes to
EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124,
260 through 268, 270, 273 and 279.

B. What Decisions Have We Made in This Rule?

    We conclude that New York's application to revise its authorized
program meets all of the statutory and regulatory requirements
established by RCRA. Therefore, we grant New York final authorization
to operate its hazardous waste program with the changes described in
the authorization application. New York has responsibility for
permitting Treatment, Storage, and Disposal Facilities (TSDFs) within
its borders (except in Indian Country) and for carrying out the aspects
of the RCRA program described in its revised program application,
subject to the limitations of the Hazardous and Solid Waste Amendments
of 1984 (HSWA). New Federal requirements and prohibitions imposed by
Federal regulations that EPA promulgates under the authority of HSWA
take effect in authorized States before the States are authorized for
the requirements. Thus, EPA will implement those requirements and
prohibitions in New York, including issuing permits if necessary, until
the State is granted authorization to do so.

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

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

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

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

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

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

F. What Has New York Previously Been Authorized for?

    New York initially received final authorization effective on May
29, 1986 (51 FR 17737) to implement its base hazardous waste management
program. We granted authorization for changes to its program effective
July 3, 1989 (54 FR 19184), May 7, 1990 (55 FR 7896), October 29, 1991
(56 FR 42944), May 22, 1992 (57 FR 9978), August 28, 1995 (60 FR
33753), October 14, 1997 (62 FR 43111), January 15, 2002 (66 FR 57679),
and March 14, 2005 (70 FR 1825, as corrected on April 4, 2005 at 70 FR
17286).
    While EPA is not authorizing any new New York State civil or
criminal statute in this program revision authorization, be advised
that New York State has revised some of the statutory provisions which
provide the legal basis for the State's implementation of the hazardous
waste management program in New York State. On August 26, 2003 New York
added a new provision to its statutes at Public Officers Law (POL)
Sec.  89(5)(a)(1-a) that allows requests for records related to
critical infrastructure information to be excepted from disclosure at
any time, not just at the time of submission. The new State provision
is consistent with 40 CFR 2.203(c) which states that ``If a claim
covering the information is received after the information itself is
received, EPA will make such efforts as are administratively
practicable to associate the late claim with copies of the previously-
submitted information in EPA files'' in order to safeguard the
Confidential Business Information in the submitted documents. Public
Officers Law Sec.  86.5, defines Critical Infrastructure as ``systems,
assets, places or things, whether physical or virtual, so vital to the
state that the disruption, incapacitation or destruction of such
systems, assets, places or things could jeopardize the health, safety,
welfare or security of the state, its residents or its economy.'' After
the events of September 11, 2001, a number of

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

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

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

1. Program Revisions

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

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

2. State-Initiated Changes

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

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

More Stringent State Rules

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

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

Broader in Scope Requirements

    We consider the following State requirements to be beyond the scope
of the Federal program, and therefore, EPA is not authorizing these
requirements:
    1. At 373-4, New York implements a Household Hazardous Waste
program and 370.2(b)(92) and (b)(93) contain definitions associated
with the HHW program. The Federal program excludes household waste from
regulation as hazardous waste at 261.4(b)(1).
    2. At 371.4(c), New York retains K064, K065, K066, K090 and K091 as
hazardous wastes while EPA has removed them from the table at 40 CFR
261.32 and no longer regulates them as hazardous wastes (64 FR 56469;
October 20, 1999).
    3. New York's transporter permit program is broader in scope than
the Federal RCRA program which does not issue permits to transporters.
The following New York provisions are broader in scope because they
include requirements associated with the state's transporter permit
program: 372.2(b)(5)(ii), Appendix 30 Instructions for Generators/Item
8, 373-2.5(b)(3)(ii)(`d') & (`e'), and 373-3.5(b)(3)(ii)(`d') & (`e').
    4. New York subjects PCB wastes to regulation as hazardous waste;
however, these wastes are not considered hazardous wastes under the
Federal RCRA program. PCB wastes are regulated under the Federal Toxic
Substances Control Act (TSCA) at 40 CFR part 761. The following New
York provisions are broader in scope because they include requirements
associated with the regulation of PCB waste as a state-only hazardous
waste: 372.1(e)(9) and 376.1(g)(1)(i).
    Broader-in-scope requirements are not part of the authorized
program and EPA cannot enforce them. Although you must comply with
these requirements in accordance with State law, they are not RCRA
requirements.

Non-Delegable Federal Rules

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

I. Who Handles Permits After the Authorization Takes Effect?

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

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

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

K. What Is Codification and is EPA Codifying New York's Hazardous Waste
Program as Authorized in This Rule?

    Codification is the process of placing the State's statutes and
regulations that comprise the State's authorized hazardous waste
program into the Code of Federal Regulations. We do this by referencing
the authorized State rules in 40 CFR part 272. If this rule takes
effect, or we finalize the companion proposal to authorize the State's
changes to its hazardous waste program, we may, at a later date, amend
40 CFR part 272, subpart HH to codify New York's authorized program.

L. Statutory and Executive Order Reviews

    This rule only authorizes hazardous waste requirements pursuant to
RCRA section 3006 and imposes no requirements other than those imposed
by State law. Therefore, this rule complies with applicable executive
orders and statutory provisions as follows.
    1. Executive Order 12866: Regulatory Planning Review--The Office of
Management and Budget has exempted this rule from its review under
Executive Order 12866 (56 FR 51735, October 4, 1993).
    2. Paperwork Reduction Act--This rule does not impose an
information collection burden under the Paperwork Reduction Act (44
U.S.C. 3501 et seq.).
    3. Regulatory Flexibility Act--After considering the economic
impacts of today's rule on small entities under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.), I certify that this rule will
not have a significant economic impact on a substantial number of small
entities.
    4. Unfunded Mandates Reform Act--Because this rule approves pre-
existing requirements under State law and does not impose any
additional enforceable

duty beyond that required by State law, it does not contain any
unfunded mandate or significantly or uniquely affect small governments,
as described in the Unfunded Mandates Reform Act (Pub. L. 104-4).
    5. Executive Order 13132: Federalism--Executive Order 13132 (64 FR
19885, April 23, 1997) does not apply to this rule because it will not
have federalism implications (i.e., substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government).
    6. Executive Order 13175: Consultation and Coordination with Indian
Tribal Governments--Executive Order 13175 (65 FR 67240, November 6,
2000) does not apply to this rule because it will not have tribal
implications (i.e., substantial direct effects on one or more Indian
tribes, on the relationship between the Federal government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes).
    7. Executive Order 13045: Protection of Children from Environmental
Health & Safety Risks--This rule is not subject to Executive Order
13045 (62 FR 19885, April 23, 1997) because it is not economically
significant and it is not based on health or safety risks.
    8. Executive Order 13211: Actions that Significantly Affect Energy
Supply, Distribution, or Use--This rule is not subject to Executive
Order 13211 (66 FR 28355, May 22, 2001) because it is not a significant
regulatory action as defined in Executive Order 12866.
    9. National Technology Transfer Advancement Act--EPA approves State
programs as long as they meet criteria required by RCRA, so it would be
inconsistent with applicable law for EPA, in its review of a State
program, to require the use of any particular voluntary consensus
standard in place of another standard that meets the requirements of
RCRA. Thus, section 12(d) of the National Technology Transfer and
Advancement Act (15 U.S.C. 272 Note) does not apply to this rule.
    10. Congressional Review Act--EPA will submit a report containing
this rule and other information required by the Congressional Review
Act (5 U.S.C. 801 et seq.) to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States prior
to publication in the Federal Register. A major rule cannot take effect
until 60 days after it is published in the Federal Register. This
action is not a ``major rule'' as defined by 5 U.S.C. 804(2). This
action will be effective on August 31, 2009.

List of Subjects in 40 CFR Part 271

    Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous waste, Hazardous waste
transportation, Indian lands, Intergovernmental relations, Penalties,
Reporting and recordkeeping requirements.

    Authority:  This action is issued under the authority of
sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act
as amended (42 U.S.C. 6912(a), 6926, 6974(b)).

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

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