

[Federal Register: June 21, 2006 (Volume 71, Number 119)]
[Rules and Regulations]               
[Page 35547-35550]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr21jn06-17]                         

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 262

[EPA-R01-RCRA-2006-0391; FRL-8186-3]

 
Extension of Site-Specific Regulations for University 
Laboratories XL Project

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The EPA is taking direct final action to extend the expiration 
date of the New England University Laboratories XL Project (Labs XL 
Project) rule that EPA previously promulgated under the eXcellence and 
Leadership program (Project XL), allowing laboratories at certain 
universities in Massachusetts and Vermont to follow certain alternative 
RCRA generator requirements. In this action, EPA is extending the 
expiration date from September 30, 2006 to a new date of April 15, 
2009. EPA is making no further changes to the Labs XL Project 
regulations other than the change in expiration date.

DATES: This direct final rule will be effective on August 21, 2006, 
without further notice, unless EPA receives adverse written comments by 
July 21, 2006. If EPA receives adverse comments, EPA will publish a 
timely withdrawal notice in the Federal Register indicating that this 
direct final rule has been withdrawn due to adverse comment.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R01-
RCRA-2006-0391, by one of the following methods:
     http://www.regulations.gov: Follow the on-line instructions for 

submitting comments.
     E-mail: biscaia.robin@epa.gov.
     Mail: Robin Biscaia, Hazardous Waste Unit, Office of 
Ecosystems Protection, EPA Region I, One Congress Street, Suite 1100 
(Mail Code: CHW), Boston, MA 02114-2023.
     Hand Delivery: Robin Biscaia, Hazardous Waste Unit, Office 
of Ecosystems Protection, EPA Region I, One Congress Street, Suite 1100 
(Mail Code: CHW), Boston, MA 02114-2023. Such deliveries are only 
accepted during the EPA's normal hours of operation, and special 
arrangements should be made for deliveries of boxed information.
    Instructions: Direct your comments to Docket ID No. EPA-R01-RCRA-
2006-0391. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online 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 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, any form of 
encryption, and be free of any defects or viruses.
    Docket: EPA has established a docket for this action under Docket 
ID No. EPA-R01-RCRA-2006-0391. All documents in the docket are listed 
on the http://www.regulations.gov web site. Although listed in the index, some 

information may not be publicly available, e.g., CBI or other 
information whose disclosure is restricted by statute. Certain other 
material, such as copyrighted material, is not placed on the Internet 
and will be publicly available only in hard copy form. Publicly 
available docket materials are available either electronically through 
http://www.regulations.gov or in hard copy at the EPA New England Library, One 

Congress Street--11th Floor, Boston, MA 02114-2023, business hours 
Monday through Thursday 10 a.m. to 3 p.m., telephone: (617) 918-1990. 
Records in these dockets are available for inspection and copying 
during normal business hours.

FOR FURTHER INFORMATION CONTACT: Robin Biscaia, Hazardous Waste Unit, 
EPA New England, One Congress Street, Suite 1100 (Mail Code: CHW), 
Boston, MA 02114-2023, telephone: (617) 918-1642, e-mail: 
biscaia.robin@epa.gov.


SUPPLEMENTARY INFORMATION:

I. Background

    Previously, on October 21, 2003, the EPA proposed an extension of 
the original expiration date of the Labs XL Project. EPA received no 
negative public comments in response to the proposal, and published a 
final rule on March 12, 2004. EPA is again extending the expiration 
date, this time as a direct final rule, without prior proposal, because 
the Agency views the extension as non-controversial and anticipates no 
adverse comments.
    Unless the EPA gets written comments which oppose this action 
during the comment period, the decision will take effect as provided 
below. If EPA gets comments that oppose this action, EPA will withdraw 
this direct final rule and it will not take effect. EPA will then 
address the public comments in a later final rule, but may not provide 
any further opportunity for comment beyond what is being provided for 
in this document. Any parties interested in commenting on this action 
should do so during the comment period being provided for in this 
action.

A. Why Is the EPA Extending the Expiration Date of Its XL Project 
Regulations?

    As indicated above, EPA is extending the expiration date of 
September 30, 2006 set forth in 40 CFR 262.108 of the Labs XL Project 
regulations until April

[[Page 35548]]

15, 2009. The original rule implementing the Labs XL Project took 
effect on September 28, 1999 and allowed four years for the colleges to 
demonstrate the beneficial aspects of the new management system 
expiring on September 30, 2003. See 40 CFR 262.108. EPA later 
determined that an extension was appropriate, and published a Federal 
Register on October 21, 2003 (68 FR 60060) proposing a three-year 
extension (until September 30, 2006) of the Labs XL Project 
regulations. EPA received no negative public comments in response to 
the proposal, and finalized the extension on March 12, 2004 (69 FR 
11801). In the meantime, EPA has been developing a national set of 
alternative regulations for academic laboratories that are similar to 
the Labs XL Project regulations. However, since these alternative 
regulations for academic laboratories will not be in place prior to the 
expiration of the current September 30, 2006 Labs XL Project 
regulations, if the Labs XL Project was not extended, there would be a 
period of time in which labs participating in the Labs XL Project would 
have to terminate their participation in the program and would not be 
able to benefit from alternative generator regulations, either under 
the Labs XL Project (since this would have expired) or under the 
National Labs Rule that EPA is developing (since this would not have 
been finalized). For this reason, EPA has decided to extend the 
expiration date of the Labs XL Project to allow time for a national set 
of alternative regulations to be promulgated and for equivalent 
regulations to be adopted by the States. EPA is proposing an extension 
of approximately two and a half years because the Agency believes that 
this would be a reasonable period of time for EPA to promulgate its 
National Labs Rule, and for the States to adopt equivalent regulations. 
Of course, nothing in this rule pre-judges what general Federal and 
State regulations ultimately will be adopted--rather, it simply gives 
an opportunity for alternative general regulations to be adopted before 
the expiration of the Labs XL Project.
    Also, EPA Region I recently has done an analysis of the Labs XL 
Project, which is available in the Docket. Based on this analysis, and 
other oversight of the project, the EPA believes that the continuation 
of the project should provide a superior level of environmental 
protection in comparison to an immediate return by the three covered 
institutions to standard RCRA regulation.
    EPA is publishing this rule without prior proposal because the 
Agency views it as a non-controversial action. The Agency anticipates 
no adverse comments, since none were received during the previous 
comment period to extend the original expiration date. However, in the 
``Proposed Rules'' section of this Federal Register publication, EPA is 
publishing a separate, parallel document that will serve as a proposal 
to extend the current expiration date if the Agency receives adverse 
comments.

B. What Is the University Labs XL Project?

    EPA announced Project XL--``eXcellence and Leadership'' in May 1995 
as a 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 pilot projects to provide regulatory 
flexibility that would result in environmental protection that is 
superior to what would be achieved through compliance with current 
standard regulations and reasonably anticipated future regulations.
    One of the projects that EPA approved under Project XL was the Labs 
XL project. This project was intended to provide certain flexibility 
under RCRA for: (1) The University of Massachusetts--Boston, Boston, 
MA; (2) Boston College, Chestnut Hill, MA; and (3) the University of 
Vermont, Burlington, VT (the ``participating universities''). On 
September 28, 1999, EPA, the participating universities, the 
Massachusetts Department of Environmental Protection and the Vermont 
Department of Environmental Conservation signed the Final Project 
Agreement for the project. That agreement and the related specially 
adopted Federal and State regulations allow the participating 
universities to comply with the terms of their Environmental Management 
Plans (EMPs) for their laboratories in place of certain standard 
requirements for hazardous waste generators, during a trial period. In 
order to allow this experiment, the EPA promulgated certain regulations 
in 1999 which are set forth in 40 CFR 262.10(j) and 40 CFR 262.100--
108. See 64 FR 52380 (September 28, 1999) (final rulemaking) and 64 FR 
40696 (July 27, 1999) (proposed rulemaking). The reasons for 
promulgating these particular EPA regulations are fully set forth in 
those previous rulemaking notices and will not be repeated here. These 
EPA regulations were designed to enable the EPA to authorize as part of 
a State's RCRA authorized program State regulations that were different 
from the standard EPA regulations, in order to implement the Labs XL 
project.
    After EPA promulgated its Labs XL Project regulations, both 
Massachusetts and Vermont promulgated their own state regulations 
establishing equivalent alternative standards for laboratories at the 
participating universities. The Vermont regulations were authorized by 
the EPA and became part of the federally enforceable Vermont RCRA 
program on October 26, 2000. See 65 FR 64164. The Massachusetts 
regulations were authorized by the EPA and became part of the federally 
enforceable Massachusetts RCRA program on March 12, 2004. See 69 FR 
11801.

C. What Is the Federal Regulation Change in This Rule?

    The Federal regulation change in this direct final rule is to 
extend the expiration date in 40 CFR 262.108 from September 30, 2006 to 
April 15, 2009. EPA is making no further changes to the Labs XL Project 
regulations. The regulation change is set out at the end of this 
document.

II. Statutory and Executive Order Reviews

    The EPA has examined the effects of the change to the Federal 
regulations and reached the conclusions set out below.

A. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency 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 effect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local, or tribal governments or 
communities;
    (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 or the rights and obligations of recipients 
thereof;
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the

[[Page 35549]]

President's priorities, or the principles set forth in the Executive 
Order.
    Because the annualized cost of these actions will be significantly 
less than $100 million and because these actions 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 the Executive Order and is therefore not subject to 
OMB review.

B. Paperwork Reduction Act

    Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., Federal 
agencies must consider the paperwork burden imposed by any information 
request contained in a proposed rule or final rule. The Labs XL Project 
applies to only three universities, and any reporting obligations for 
nine or fewer sources are not subject to the Paperwork Reduction Act. 
Therefore, no information collection request (ICR) was submitted to OMB 
for review under the Paperwork Reduction Act.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601 et seq., generally 
requires an agency to prepare a regulatory flexibility analysis of any 
rule subject to notice and comment rulemaking under the Administrative 
Procedure Act or other statute, 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 organizations, and small governmental jurisdictions.
    In determining whether a rule has a significant economic impact on 
a substantial number of small entities under the Regulatory Flexibility 
Act, the impact of concern is any significant adverse economic impact, 
since the primary purpose of any regulatory flexibility analysis would 
be to identify and address regulatory alternatives ``which minimize any 
significant economic impact of the proposed rule on small entities.'' 5 
U.S.C. 603 and 604. Thus, an agency may certify that a rule will not 
have a significant economic impact on a substantial number of small 
entities if the rule relieves regulatory burden, or otherwise has a 
positive economic effect on all of the small entities subject to the 
rule. The Labs XL Project applies to only three universities. Also, the 
rule increases flexibility--thus relieving the regulatory burden. 
Accordingly, the EPA hereby certifies that this action will not have a 
significant economic impact on a substantial number of small entities 
under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Thus a 
regulatory flexibility analysis is not required to be prepared under 
that Act.

D. 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, the 
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 a EPA rule for 
which a written statement is needed, section 205 of the UMRA generally 
requires the EPA to identify and consider a reasonable number of 
regulatory alternatives and adopts 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 the 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 why that alternative was 
not adopted. In addition, before the 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 about the 
regulatory requirements, enabling officials of affected small 
governments to have meaningful and timely input in the development of 
the EPA regulatory proposals with significant Federal intergovernmental 
mandates, and informing, educating, and advising small governments on 
compliance with the regulatory requirements.
    The EPA has determined that the section 202 and 205 requirements do 
not apply to this action because the rule does not contain a Federal 
mandate that may result in annual expenditures of $100 million or more 
for State, local, and/or tribal governments in the aggregate, or the 
private sector. Costs to State, local or tribal governments and the 
private sector already exist under the State program, and the actions 
will not impose any additional obligations on regulated entities. Thus 
the requirements of section 203 that the EPA develop a small government 
agency plan will not apply to this rule.

E. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires the EPA to develop an accountable process to ensure 
``meaningful and timely input by State and local officials in the 
development of regulatory policies that have Federalism implications.'' 
``Policies that have Federalism implications'' is defined in the 
Executive Order to include regulations that have ``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.''
    This rule does not have federalism implications. It will not have 
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, as 
specified in Executive Order 13132. This rule does not create a mandate 
on State, local, or tribal governments and does not impose any 
enforceable duties on these entities. Thus, Executive Order 13132 does 
not apply to this rule.

F. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 6, 2000), 
requires the EPA to develop an accountable process to ensure 
``meaningful and timely input by tribal officials in the development of 
regulatory policies that have tribal implications.'' ``Policies that 
have tribal implications'' is defined in the Executive Order to include 
regulations that have ``substantial direct effects on one or more 
Indian tribes, on the relationship between the Federal government and 
the Indian tribes, or on the distribution of power and responsibilities 
between the Federal government and the Indian tribes.''
    The actions will not have tribal implications, as defined by the 
Executive Order, because they will have no direct effect in Indian 
Country. None of the three universities participating in the XL project 
are located in Indian Country; therefore, this rule does not 
significantly or uniquely affect the communities of Indian tribal 
governments. Thus, Executive Order 13175 does not apply to this rule.

[[Page 35550]]

G. Executive Order 13045: Protection of Children From Environmental 
Health and Safety Risks

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks,'' applies to any rule that: (1) Is 
determined to be ``economically significant'' as defined under 
Executive Order 12866, and (2) concerns an environmental health or 
safety risk that the 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 Executive Order 13045 because it is not 
an economically significant rule as defined by Executive Order 12866. 
In addition, it does not concern environmental health or safety risks 
that the EPA has reason to believe may have a disproportionate effect 
on children.

H. Executive Order 13211: Actions That Significantly Affect Energy 
Supply, Distribution, or Use

    This rule is not subject to Executive Order 13211 because that 
Executive Order applies only to rules that are ``significant'' under 
Executive Order 12866, and this rule is not a significant regulatory 
action under Executive Order 12866.

I. National Technology Transfer and Advancement Act

    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 the 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 the 
EPA to provide Congress, through OMB, explanations when the Agency 
decides not to use available and applicable voluntary consensus 
standards.
    This rule does not involve technical standards covered by voluntary 
consensus standards. Therefore, EPA did not consider the use of any 
voluntary consensus standards.

J. 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 to the Comptroller General of the 
United States. EPA is submitting a report containing this document 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 in the Federal Register. In addition, 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 in 5 U.S.C. 
804(2). However, it nevertheless will take effect in 60 days in 
accordance with the procedures applicable to direct final rules.

List of Subjects in 40 CFR Part 262

    Environmental protection, Hazardous waste, Reporting and 
recordkeeping requirements.

    Authority: The Federal regulation change is being made under the 
authority of the Resource Conservation and Recovery Act (RCRA) 
sections 2002 and 3002, 42 U.S.C. 6912 and 6922.

    Dated: June 12, 2006.
Robert W. Varney,
Regional Administrator, EPA New England.

0
 For the reasons set forth in the preamble, chapter I of title 40 of 
the Code of Federal Regulations is amended as follows:

PART 262--STANDARDS APPLICABLE TO GENERATORS OF HAZARDOUS WASTE

0
1. The authority citation for part 262 continues to read as follows:

    Authority: 42 U.S.C. 6906, 6912, 6922-6925, 6937, and 6938.

Subpart J--University Laboratories XL Project--Laboratory 
Environmental Management Standard

0
2. Section 262.108 is revised to read as follows:


Sec.  262.108  When will this subpart expire?

    This subpart will expire on April 15, 2009.

[FR Doc. E6-9754 Filed 6-20-06; 8:45 am]

BILLING CODE 6560-50-P
