[Federal Register Volume 83, Number 82 (Friday, April 27, 2018)]
[Rules and Regulations]
[Pages 18436-18441]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-08431]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 272

[EPA-R02-RCRA-2018-0034; FRL-9974-06--Region 2]


New York: Incorporation by Reference of State Hazardous Waste 
Management Program

AGENCY: Environmental Protection Agency (EPA).

ACTION: Direct final rule.

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SUMMARY: The Solid Waste Disposal Act, as amended, commonly referred to 
as the Resource Conservation and Recovery Act (RCRA), allows the 
Environmental Protection Agency (EPA) to authorize States to operate 
their hazardous waste management programs in lieu of the Federal 
program. EPA uses the regulations entitled ``Approved State Hazardous 
Waste Management Programs'' to provide notice of the authorization 
status of State programs and to incorporate by reference those 
provisions of the State regulations that will be subject to EPA's 
inspection and enforcement. This rule does not incorporate by reference 
the New York hazardous waste statutes. The rule codifies in the 
regulations the prior approval of New York's hazardous waste management 
program and incorporates by reference authorized provisions of the 
State's regulations.

DATES: This regulation is effective June 26, 2018, unless EPA receives 
adverse written comment on this regulation by the close of business May 
29, 2018. If EPA receives such comments, it will publish a timely 
withdrawal of this direct final rule in the Federal Register informing 
the public that this rule will not take effect. The Director of the 
Federal Register approves this incorporation by reference as of June 
26, 2018 in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-R02-
RCRA-2018-0034, by one of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the on-line instructions for submitting comments.
     Email: [email protected].
     Fax: (212) 637-4437.
     Mail: Send written comments to Nidal Azzam, Base Program 
Management Section Chief, Hazardous Waste Programs Branch, Clean Air 
and Sustainability Division, EPA, Region 2, 290 Broadway, 22nd Floor, 
New York, NY 10007.
     Hand Delivery or Courier: Deliver your comments to Nidal 
Azzam, Base

[[Page 18437]]

Program Management Section Chief, Hazardous Waste Programs Branch, 
Clean Air and Sustainability Division, 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-
2018-0034. EPA's policy is that all comments received will be included 
in the public docket without change, 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 email. The Federal http://www.regulations.gov 
website 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 email comment directly to EPA 
without going through http://www.regulations.gov, your email 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/dockets).
    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 
at http://www.regulations.gov or in hard copy. You can inspect and copy 
the records related to this codification effort at EPA Region 2 by 
appointment only. To make an appointment please call (212) 637-3703.

FOR FURTHER INFORMATION CONTACT: Nidal Azzam, Base Program Management 
Section Chief, Hazardous Waste Programs Branch, Clean Air and 
Sustainability Division, EPA Region 2, 290 Broadway, 22nd Floor, New 
York, NY 10007; telephone number: (212) 637-3703; fax number: (212) 
637-4437; email address: azzam[email protected].

SUPPLEMENTARY INFORMATION: 

I. Incorporation by Reference

A. What is codification?

    Codification is the process of including the statutes and 
regulations that comprise the State's authorized hazardous waste 
management program into the Code of Federal Regulations (CFR). Section 
3006(b) of RCRA, as amended, allows the Environmental Protection Agency 
(EPA) to authorize State hazardous waste management programs. The State 
regulations authorized by EPA supplant the federal regulations 
concerning the same matter with the result that after authorization EPA 
enforces the authorized regulations. Infrequently, State statutory 
language which acts to regulate a matter is also authorized by EPA with 
the consequence that EPA enforces the authorized statutory provision. 
EPA does not authorize State enforcement authorities and does not 
authorize State procedural requirements. EPA codifies the authorized 
State program in 40 CFR part 272 and incorporates by reference State 
statutes and regulations that make up the approved program which is 
federally enforceable. EPA retains the authority to exercise its 
inspection and enforcement authorities in accordance with sections 
3007, 3008, 3013 and 7003 of RCRA, 42 U.S.C. 6927, 6928, 6934 and 6973, 
and any other applicable statutory and regulatory provisions.

B. What is the history of the authorization and codification of New 
York's hazardous waste management program?

    New York initially received final authorization for its hazardous 
waste management program, effective on May 29, 1986 (51 FR 17737) to 
implement its base hazardous waste management program. Subsequently, 
EPA authorized revisions to the State's 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), March 
14, 2005 (70 FR 1825, as corrected on April 5, 2005 (70 FR 17286)), 
August 31, 2009 (74 FR 31380), January 12, 2010 (75 FR 1617), and May 
10, 2013 (78 FR 15299). EPA codified New York's authorized hazardous 
waste program effective September 30, 2002 (67 FR 49864), May 25, 2007 
(72 FR 14044), and October 4, 2010 (75 FR 45489). In this action, EPA 
is revising subpart HH of 40 CFR part 272 to include the authorization 
revision actions that became effective January 12, 2010 and May 10, 
2013.

C. What decisions have we made in this rule?

    In this rule, the EPA is finalizing regulatory text that includes 
incorporation by reference. In accordance with requirements of 1 CFR 
51.5, EPA is finalizing the incorporation by reference of the New York 
rules described in the amendments to 40 CFR part 272 set forth below. 
EPA has made, and will continue to make, these documents available 
electronically through www.regulations.gov and in hard copy at the 
appropriate EPA office (see the ADDRESSES section of this preamble for 
more information).
    This action codifies EPA's authorization of revisions to New York's 
hazardous waste management program. This codification reflects the 
State program in effect at the time EPA authorized revisions to the New 
York hazardous waste program in final rules dated January 12, 2010 (75 
FR 1617) and May 10, 2013 (78 FR 15299). The rule incorporates by 
reference the most recent version of the State's authorized hazardous 
waste management regulations. EPA has already provided notices and 
opportunity for comments on the Agency's decisions to authorize the New 
York program, and EPA is not now reopening the decision, nor requesting 
comments, on the New York authorizations as published in the Federal 
Register documents specified in Section B of this preamble concerning 
revisions to the authorized program in New York.
    EPA is incorporating by reference the authorized revisions to the 
New York hazardous waste program by revising subpart HH to 40 CFR part 
272. Title 40 CFR 272.1651 previously incorporated by reference New 
York's authorized hazardous waste regulations, as amended effective 
September 5, 2006, as well as selected provisions as found in the New 
York regulations dated January 31, 1992. Section 272.1651 also 
references the demonstration of adequate enforcement authority, 
including procedural and enforcement provisions, which provide the 
legal basis for the State's implementation of the hazardous waste 
management

[[Page 18438]]

program. In addition, Sec.  272.1651 references the Memorandum of 
Agreement, the Attorney General's Statements and the Program 
Description, which were evaluated as part of the approval process of 
the hazardous waste management program under Subtitle C of RCRA.

D. What is the effect of New York's codification on enforcement?

    EPA retains the authority under statutory provisions, including but 
not limited to, RCRA sections 3007, 3008, 3013 and 7003, and other 
applicable statutory and regulatory provisions to undertake inspections 
and enforcement actions and to issue orders in all authorized States. 
With respect to enforcement actions, EPA will rely on Federal 
sanctions, Federal inspection authorities, and Federal procedures 
rather than the State analogs to these provisions. Therefore, the EPA 
is not incorporating by reference New York's inspection and enforcement 
authorities nor are those authorities part of New York's approved State 
program which operates in lieu of the Federal program. Title 40 CFR 
272.1651(c)(2) lists these authorities for informational purposes, and 
because EPA also considered them in determining the adequacy of New 
York's procedural and enforcement authorities. New York's authority to 
inspect and enforce the State's hazardous waste management program 
requirements continues to operate independently under State law.

E. What State provisions are not part of the codification?

    The public is reminded that some provisions of New York's hazardous 
waste management program are not part of the federally authorized State 
program. These non-authorized provisions include:
    (1) Provisions that are not part of the RCRA subtitle C program 
because they are ``broader in scope'' than RCRA subtitle C (see 40 CFR 
271.1(i));
    (2) Unauthorized amendments to authorized State provisions;
    (3) New unauthorized State requirements;
    (4) State procedural and enforcement authorities which are 
necessary to establish the ability of the State's program to enforce 
compliance but which do not supplant the Federal statutory enforcement 
and procedural authorities; and
    (5) Federal rules for which New York was previously authorized but 
which were later vacated by the U.S. Court of Appeals for the District 
of Columbia Circuit (D.C. Cir. No. 98-1379; June 27, 2014). See 80 FR 
18777 (April 8, 2015).
    State provisions that are ``broader in scope'' than the Federal 
program are not incorporated by reference in 40 CFR part 272. For 
reference and clarity, 40 CFR 272.1651(c)(3) lists the New York 
statutory and regulatory provisions which are ``broader in scope'' than 
the Federal program and which are not part of the authorized program 
being incorporated by reference. This action updates that list of 
``broader in scope'' provisions. While ``broader in scope'' provisions 
are not part of the authorized program and cannot be enforced by EPA, 
the State may enforce such provisions under State law.
    Additionally, New York's hazardous waste regulations include 
amendments which have not been authorized by EPA. Since EPA cannot 
enforce a State's requirements which have not been reviewed and 
authorized in accordance with RCRA section 3006 and 40 CFR part 271, it 
is important to be precise in delineating the scope of a State's 
authorized hazardous waste program. Regulatory provisions that have not 
been authorized by EPA include amendments to previously authorized 
State regulations as well as new State requirements.
    State regulations that are not incorporated by reference in this 
rule at 40 CFR 272.1651(c)(1), or that are not listed in 40 CFR 
272.1651(c)(3) (``broader in scope'') or 40 CFR 272.1651(c)(2) 
(``procedural and enforcement authorities''), are considered new 
unauthorized State requirements. These requirements are not Federally 
enforceable.

F. What will be the effect of Federal HSWA requirements on the 
codification?

    With respect to any requirement(s) pursuant to the Hazardous and 
Solid Waste Amendments of 1984 (HSWA) for which the State has not yet 
been authorized and which EPA has identified as taking effect 
immediately in States with authorized hazardous waste management 
programs, EPA will enforce those Federal HSWA standards until the State 
is authorized for those provisions.
    The codification does not affect Federal HSWA requirements for 
which the State is not authorized. EPA has authority to implement HSWA 
requirements in all States, including States with authorized hazardous 
waste management programs, until the States become authorized for such 
requirements or prohibitions, unless EPA has identified the HSWA 
requirement(s) as an optional or as a less stringent requirement of the 
Federal program. A HSWA requirement or prohibition, unless identified 
by EPA as optional or as less stringent, supersedes any less stringent 
or inconsistent State provision which may have been previously 
authorized by EPA (50 FR 28702, July 15, 1985).
    Some existing State requirements may be similar to the HSWA 
requirement implemented by EPA. However, until EPA authorizes those 
State requirements, EPA enforces the HSWA requirements and not the 
State analogs.

II. Statutory and Executive Order Reviews

    This rule codifies EPA-authorized 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 and Review and 
Executive Order 13563: Improving Regulation and Regulatory Review--The 
Office of Management and Budget (OMB) has exempted this rule from its 
review under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 
13563 (76 FR 3821, January 21, 2011).
    2. Paperwork Reduction Act--This rule does not impose an 
information collection burden under the provisions of the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
    3. Regulatory Flexibility Act--This rule codifies New York's 
authorized hazardous waste management regulations in the CFR and does 
not impose new burdens on small entities. Accordingly, I certify 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.).
    4. Unfunded Mandates Reform Act--Because this rule codifies pre-
existing State hazardous waste management program requirements which 
EPA already approved under 40 CFR part 271, and with which regulated 
entities must already comply, it does not contain any unfunded mandate 
or significantly or uniquely affect small governments, as described in 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4).
    5. Executive Order 13132: Federalism--Executive Order 13132 (64 FR 
43255, August 10, 1999) 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 Federal government and the 
States, or on the distribution of power and responsibilities among the 
various

[[Page 18439]]

levels of government). This action codifies existing authorized State 
hazardous waste management program requirements without altering the 
relationship or the distribution of power and responsibilities 
established by RCRA.
    6. Executive Order 13175: Consultation and Coordination with Indian 
Tribal Governments--Executive Order 13175 (65 FR 67249, 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, or 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 environmental 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 under Executive Order 12866.
    9. National Technology Transfer Advancement Act--The requirements 
being codified are the result of New York's voluntary participation in 
EPA's State program authorization process under RCRA Subtitle C. Thus, 
the requirements of section 12(d) of the National Technology Transfer 
and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply.
    10. Executive Order 12988--As required by section 3 of Executive 
Order 12988 (61 FR 4729, February 7, 1996), EPA has taken the necessary 
steps in this action to eliminate drafting errors and ambiguity, 
minimize potential litigation, and provide a clear legal standard for 
affected conduct.
    11. Executive Order 12898--This Order (59 FR 7629, Feb. 16, 1994) 
establishes federal executive policy on environmental justice. Because 
this rule codifies pre-existing State rules which are at least 
equivalent to, and no less stringent than existing federal 
requirements, and imposes no additional requirements beyond those 
imposed by State law, and there are no anticipated significant adverse 
human health or environmental effects, the rule is not subject to 
Executive Order 12898.
    12. 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., as amended) 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 June 26, 2018.

List of Subjects in 40 CFR Part 272

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous waste, Hazardous waste 
transportation, Incorporation by reference, Indian lands, 
Intergovernmental relations, Penalties, Reporting and recordkeeping 
requirements, Water pollution control, Water supply.

    Authority: This rule 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: December 27, 2017.
Peter D. Lopez,
Regional Administrator, Region 2.

    Editorial note: This document was received for publication by 
the Office of the Federal Register on April 18, 2018.

    For the reasons set forth in the preamble, 40 CFR part 272 is 
amended as follows:

PART 272--APPROVED STATE HAZARDOUS WASTE MANAGEMENT PROGRAMS

0
1. The authority citation for part 272 continues to read as follows:

    Authority: Secs. 2002(a), 3006, and 7004(b) of the Solid Waste 
Disposal Act, as amended by the Resource Conservation and Recovery 
Act, as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).

0
2. Revise Sec.  272.1651 to read as follows:


Sec.  272.1651  New York State-administered program: Final 
authorization.

    (a) New York State authorization. Pursuant to section 3006(b) of 
RCRA, 42 U.S.C. 6926(b), New York has final authorization for the 
following elements as submitted to EPA in New York's base program 
application for final authorization which was approved by EPA effective 
on May 29, 1986. Subsequent program revision applications were approved 
effective on July 3, 1989, May 7, 1990, October 29, 1991, May 22, 1992, 
August 28, 1995, October 14, 1997, January 15, 2002, March 14, 2005, 
August 31, 2009, January 12, 2010, and May 10, 2013.
    (b) Authorization enforcement. The State of New York has primary 
responsibility for enforcing its hazardous waste management program. 
However, EPA retains the authority to exercise its inspection and 
enforcement authorities in accordance with sections 3007, 3008, 3013, 
7003 of RCRA, 42 U.S.C. 6927, 6928, 6934, 6973, and any other 
applicable statutory and regulatory provisions, regardless of whether 
the State has taken its own actions, as well as in accordance with 
other statutory and regulatory provisions.
    (c) State statutes and regulations--(1) Statutes and regulations 
that are incorporated by reference. The New York regulations cited in 
paragraph (c)(1)(i) of this section are incorporated by reference as 
part of the hazardous waste management program under subtitle C of 
RCRA, 42 U.S.C. 6921 et seq. The Director of Federal Register approves 
this incorporation by reference in accordance with 5 U.S.C. 552(a) and 
1 CFR part 51. You may obtain copies of the New York regulations that 
are incorporated by reference in this paragraph from West Publishing 
Company, 610 Opperman Drive, P.O. Box 64526, Eagan, MN 55164-0526; 
Phone: 1-800-328-4880; website: http://west.thomson.com. You may 
inspect a copy at EPA Region 2, 290 Broadway, 22nd Floor, New York, NY 
10007 (Phone number: (212) 637-3703), or at the National Archives and 
Records Administration (NARA). For information on the availability of 
this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.
    (i) The Binder entitled ``EPA-Approved New York Regulatory 
Requirements Applicable to the Hazardous Waste Management Program'', 
dated May 2013.
    (ii) [Reserved]
    (2) Statutes and regulations that are not incorporated. EPA 
considered the following statutes and regulations in evaluating the 
State program but is not incorporating them herein for enforcement 
purposes:
    (i) Environmental Conservation Laws (ECL), 1997 Replacement Volume, 
as revised by the 2004 Cumulative Pocket Part: Sections 1-0303(18), 3-
0301(1) (introductory paragraph); 3-0301(1)(a), (b), (m), (o), (w), (x) 
and (cc); 3-0301(2) introductory paragraph; 3-0301(2)(a), (b), (d) 
through (j), (l), (m), (q) and (z); 3-0301(4); 19-0301(1) (except 19-
0301(c), (e) and (f)); 19-0303(1) through (3); 19-0304; 23-2305; 23-
2307; 27-0105; 27-0701; 27-0703; 27-0705; 27-0707 (except 27-0707(2-
c)); 27-0711; 27-0900 through 27-0908; 27-0909

[[Page 18440]]

(except 27-0909(5)); 27-0910 through 27-0922; 27-1105; 70-0101; 70-
0103; 70-0105 (except 70-0105(3) and 70-0105(6)); 70-0107(1) and (2); 
70-0107(3) introductory paragraph; 70-0107(3)(l); 70-0109; 70-0113; 70-
0115 (except (2)(c) and (d)); 70-0117 (except 70-0117(5) through (7); 
70-0119; 70-0121; 71-0301; 71-1719; 71-2705; 71-2707; 71-2709 through 
71-2715; 71-2717; 71-2720; and 71-2727.
    (ii) McKinney's Consolidated Laws of New York, Book 1, Executive 
Law (EL), Article 6: Section 102.
    (iii) McKinney's Consolidated Laws of New York, Book 46, Public 
Officers Law (POL), as amended through 2004: Sections 87 and 89.
    (iv) McKinney's Consolidated Laws of New York, Book 7B, Civil 
Practice Law and Rules (CPLR), as amended through 2004: Sections 1013, 
6301; 6311; and 6313.
    (v) Electronic Signatures and Records Act (ESRA) State Technology 
Law (STL), Article 3, as amended effective August 17, 2009: Sections 
305 and 306.
    (vi) Title 6, New York Codes, Rules and Regulations (6 NYCRR), 
Volume A-2A, as amended effective through September 5, 2006: Sections 
372.1(f); 373-1.1(f) and (g); 373-1.4(b); 373-1.4(d) through (f); 373-
1.6(c); 621.1 through 621.4; 621.5 (except (d)(5), (d)(6)(i), 
(d)(7)(i)(a), (d)(7)(i)(c) and (d)(9)); 621.6 (except (b), (d)(4) and 
(d)(5)); 621.7; 621.8; 621.9 (except (a)(5), (c)(2) and (e)(2)); 
621.10; 621.11 (except (d)); 621.12 through 621.15; and 621.16 (except 
(b), (d) and (e)).
    (vii) Title 9, New York Codes, Rules and Regulations (9 NYCRR), 
Part 540, Electronics Signature and Records Act, as amended effective 
May 7, 2003: Sections 540.1 through 540.6.
    (3) Statutes and regulations that are broader in scope. The 
following statutory and regulatory provisions are broader in scope than 
the Federal program, are not part of the authorized program, are not 
incorporated by reference and are not federally enforceable:
    (i) Environmental Conservation Laws (ECL), 1997 Replacement Volume, 
as revised by the 2004 Cumulative Pocket Part: Sections 27-0301; 27-
0303; 27-0305; 27-0307; 27-0909(5); 27-0923; 27-0925 and 27-0926.
    (ii) Environmental Conservation Laws (ECL), 1997 Replacement 
Volume, as revised by the 2006 Cumulative Pocket Part: Section 27-
1109(6).
    (iii) The following New York provisions are broader in scope 
because the State implements a Household Hazardous Waste program, 
whereas the Federal program excludes household waste from regulation as 
hazardous waste at 40 CFR 261.4(b)(1): Title 6, New York Codes, Rules 
and Regulations (6 NYCRR), as amended effective through September 5, 
2006: Sections 370.2(b)(92) ``Household hazardous waste''; 370.2(b)(93) 
``Household hazardous waste collection facility''; and 373-4.
    (iv) 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).
    (v) In the following provisions of New York's hazardous waste 
regulations, the State cross-references Part 364 ``Waste Transporter 
Permits'' requirements, which sets forth transporter requirements 
regarding permit and financial liability requirements: 372.2(b)(5)(ii), 
372.3(a)(1), 372.3(a)(4), 372.3(b)(6)(iv), 372.3(d)(3), 373-
2.5(b)(3)(ii)(d) and (e), 373-1.7(h)(3), 373-3.5(b)(3)(ii)(d) and (e), 
374-3.4(a)(2), and Appendix 30 Instructions for Generators/Item 8. 
These provisions referencing the Part 364 transporter permit and 
financial liability requirements are broader in scope than the Federal 
program.
    (vi) New York did not adopt an analog to 40 CFR 261.4(g) that 
excludes certain dredged materials from the State definition of 
hazardous waste. Instead, the State subjects these materials to full 
regulation as hazardous wastes.
    (vii) New York State regulations do not incorporate the Mineral 
Processing Secondary Materials Exclusion at 40 CFR 261.4(a)(17) and the 
related changes affecting 40 CFR 261.2(c)(3) and (c)(4)/Table, and 40 
CFR 261.2(e)(1)(iii). Since New York did not adopt the exclusion at 40 
CFR 261.4(a)(17) the State has a broader in scope program because the 
effect is to include materials that are not considered solid waste by 
EPA.
    (viii) 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: 371.4(e), 372.1(e)(9), 373-
1.1(d)(1)(x), 374-2.2(a)(9), 374-2.2(b) Table 1 and Footnote 2, 374-
2.5(e)(4), 374-2.6(d)(4), 374-2.7(d)(4), 376.1(g)(1)(i), and 376.4(f). 
PCB wastes are regulated under the Federal Toxic Substances Control Act 
(TSCA) at 40 CFR part 761 rather than under the Federal RCRA program.
    (ix) The New York provision at 373-1.4(c) is broader in scope 
because it includes siting certificate requirements which are not part 
of the Federal program.
    (x) The New York provision at 373-2.15(a)(2) is broader in scope 
because it subjects incinerators to not just limited portions of the 
State's Air regulations in the same manner as the Federal rules, but 
entire programs including air program-specific permits and 
registrations.
    (xi) The New York provisions at 374-2.5(a)(2) and 374-2.6(a)(2) 
cross-reference 360-14.1(a)(4), which sets forth transfer facility and 
processor/re-refiner requirements for these types of facilities co-
located at hazardous waste management facilities. These provisions 
referencing the Part 360 requirements are broader in scope than the 
Federal program because section 360-14.1(a)(4) may require used oil 
transfer facilities and processors/re-refiners managing non-hazardous 
used oil to be subject to State-only Part 360 provisions including 
permit requirements. The Federal program does not have an analogous 
permitting requirement for these types of facilities.
    (4) Vacated Federal rule. New York provisions at 371.1(e)(1)(xvi) 
and 371.4(i) are no longer considered to be part of New York's 
authorized program because the equivalent federal requirements were 
vacated by a federal court. The Federal Requirements ((Hazardous Waste 
Combustors; Revised Standards (HSWA) (40 CFR 261.4(a)(16) and 261.38 
only) were published on June 19, 1998. The New York regulations were 
authorized on January 11, 2005 (effective March 14, 2005). The State's 
authorized program was subsequently codified in 40 CFR part 272 on 
March 26, 2007 (effective May 25, 2007). However, the corresponding 
Federal rules were later vacated by the U.S. Court of Appeals for the 
District of Columbia Circuit (D.C. Cir. No. 98-1379; June 27, 2014). 
Consistent with the Court's vacatur, EPA issued a new final rule 
removing 40 CFR 261.4(a)(16) and 261.38 from the Federal CFR (published 
on April 8, 2015)
    (5) Memorandum of Agreement. The Memorandum of Agreement between 
EPA Region 2 and the State of New York, signed by the Commissioner of 
the State of New York Department of Environmental Conservation on July 
20, 2001, and by the EPA Regional Administrator on January 16, 2002, 
although not incorporated by reference, is referenced as part of the 
authorized hazardous waste management program under subtitle C of RCRA, 
42 U.S.C. 6921 et seq.
    (6) Statement of Legal Authority. ``Attorney General's Statement 
for Final Authorization'', signed by the Attorney General of New York 
in 1985 and revisions, supplements, and addenda to

[[Page 18441]]

that Statement dated August 18, 1988, July 26, 1989, August 15, 1991, 
October 11, 1991, July 28, 1994, May 30, 1997, February 5, 2001, April 
2, 2004, June 13, 2008 (including three certifications), August 17, 
2009, and May 22, 2012, although not incorporated by reference, are 
referenced as part of the authorized hazardous waste management program 
under subtitle C of RCRA, 42 U.S.C. 6921 et seq.
    (7) Program Description. The Program Description and any other 
materials submitted as supplements thereto, although not incorporated 
by reference, are referenced as part of the authorized hazardous waste 
management program under subtitle C of RCRA, 42 U.S.C. 6921 et seq.

0
3. Appendix A to part 272 is amended by revising the listing for ``New 
York'' to read as follows:

Appendix A to Part 272--State Requirements

* * * * *

New York

    The regulatory provisions include:
    Title 6, New York Codes, Rules and Regulations (6 NYCRR), 
Chapter IV, Quality Services, Subchapter B, Solid Wastes (Volumes A-
2 and A-2A), as amended effective through September 5, 2006.
    Please note: For a few regulations, the authorized regulation is 
an earlier version of the New York State regulation. For these 
regulations, EPA authorized the version of the regulations that 
appear in the Official Compilation of Codes, Rules and Regulations 
dated January 31, 1992. New York State made later changes to these 
regulations but these changes have not been authorized by EPA. The 
regulations where the authorized regulation is an earlier version of 
the regulation are noted below by inclusion in parentheses of 
January 31, 1992 after the regulatory citations.
    Part 360, Subpart 360-14--Used Oil: Sections 360-14.1(b)(7) and 
360-14.1(b)(8).
    Part 370--Hazardous Waste Management System--General: Sections 
370.1(a) (except (a)(3)); 370.1(b) through (d); 370.1(e) (except 
(e)(9)); 370.1(f); 370.2(a); 370.2(b)(1) through (b)(15) 
``battery''; 370.2(b)(15) ``bedrock'', (January 31, 1992); 
370.2(b)(17) through (b)(91); 370.2(b)(94) through (b)(125); 
370.2(b)(127) through (b)(137); 370.2(b)(139) through (b)(221); 
370.3 (except 370.3(c)); 370.4; 370.5 (except (b)).
    Part 371--Identification and Listing of Hazardous Waste: 
Sections 371.1(a) through (c); 371.1(d) (except (d)(1)(ii)(c)); 
371.1(e) (except 371.1(e)(1)(xvi) and (e)(2)(vi)(b)(21)); 
371.1(f)(1) through (7); 371.1(f)(8) (except the phrase ``or such 
mixing occurs at a facility regulated under Subpart 373-4 or 
permitted under Part 373 of this Title''); 371.1(f)(9) and (f)(10); 
371.1(g)(1) (except (g)(1)(ii)(c) and (g)(1)(v)); 371.1(g)(2) 
through (4); 371.1(h) through (j); 371.2; 371.3; 371.4(a) and (b); 
371.4(c) (except K064, K065, K066, K090 and K091 entries); 371.4(d) 
and (f).
    Part 372--Hazardous Waste Manifest System and Related Standards 
for Generators, Transporters and Facilities: Sections 372.1(a) 
through (d); 372.1(e)(2)(ii)(c) (January 31, 1992); 
372.1(e)(2)(iii)(c) (January 31, 1992); 372.1(e)(3) through (e)(8); 
372.1(g) and (h); 372.2 (except (b)(5)(ii) and (b)(9)); 372.3 
(except (a)(1), (a)(4), (a)(7)(i), (a)(8), (b)(3), (b)(5)(ii), 
(b)(6)(iv), (b)(7)(i)(d), (c)(4) and (d)(3)); 372.5 (except (h) and 
(i); 372.6; 372.7(a) and (b); 372.7(c) (except (c)(1)(ii)); and 
372.7(d).
    Part 373, Subpart 373-1--Hazardous Waste Treatment, Storage and 
Disposal Facility Permitting Requirements: Sections 373-1.1(a) 
through (c), 373-1.1(d) (except (d)(1)(iii)(b), (d)(1)(iii)(c)(6), 
(d)(1)(iii)(d), (d)(1)(iv)(a) and (b), (d)(1)(x), (d)(1)(xvi), and 
(d)(1)(xviii)); 373-1.1(e); 373-1.1(h) and (i); 373-1.2; 373-1.3; 
373-1.4(a); 373-1.4(g) and (h); 373-1.5(a) (except (a)(2)(xviii)); 
373-1.5(b) and (c); 373-1.5(d) through (p) (except reserved 
paragraphs); 373-1.6 (except (c)); 373-1.7 through 373-1.11.
    Part 373, Subpart 373-2--Final Status Standards for Owners and 
Operators of Hazardous Waste Treatment, Storage and Disposal 
Facilities: Sections 373-2.1 through 373-2.4; 373-2.5(a); 373-2.5(b) 
(except (b)(1)(i)(c), (b)(3)(ii)(d) and (b)(3)(ii)(e)); 373-2.5(c) 
through (g); 373-2.6 through 373-2.11; 373-2.12 (except 373-
2.12(a)(1) and (d)); 373-2.12(a)(1) (January 31, 1992); 373-2.13; 
373-2.14; 373-2.15 (except (a)(2)); 373-2.19 (except (e)(1)(ii)); 
373-2.23; 373-2.24; and 373-2.27 through 373-2.31.
    Part 373, Subpart 373-3--Interim Status Standards Regulations 
for Owners and Operators of Hazardous Waste Facilities: Sections 
373-3.1 (except 373-3.1(a)(4)); 373-3.2 through 373-3.4; 373-3.5 
(except 373-3.5(b)(1)(i)(c), (b)(3)(ii)(d) and (b)(3)(ii)(e)); 373-
3.6 through 373-3.18; 373-3.23; and 373-3.27 through 373-3.31.
    Part 374, Subpart 374-1--Standards for the Management of 
Specific Hazardous Wastes and Specific Types of Hazardous Waste 
Management Facilities: Sections 374-1.1; 374-1.3; 374-1.6 (except 
(a)(2)(iii)); 374-1.7; 374-1.8 (except reserved sections); 374-1.9; 
and 374-1.13.
    Part 374, Subpart 374-2--Standards for the Management of Used 
Oil: Sections 374-2.1 (except (a)(2) ``Adjacent towns or cities'', 
(a)(4) ``Contract'', (a)(10) ``On-premises oil changing operation'', 
(a)(14) ``Retail'', (a)(15) ``Retail establishment'', (a)(16) 
``Service establishment'', (a)(18) ``Total halogens'', (a)(19) 
``Underground used oil tank'', and (a)(27) ``Used oil tank 
system''); 374-2.2; 374-2.3 (except (c)(3) through (c)(6), and (f)); 
374-2.4; 374-2.5 (except (a)(2) and (e)(4)); 374-2.6 (except (a)(2) 
and (d)(4)); 374-2.7 (except (d)(4), (e)(5) and (e)(6)); 374-2.8; 
and 374-2.9.
    Part 374, Subpart 374-3--Standards for Universal Waste: Sections 
374-3.1 (except (f) and (g)); 374-3.2; 374-3.3; 374-3.4 (except 
(a)(2)); and 374-3.5 through 374-3.7.
    Part 376--Land Disposal Restrictions: Sections 376.1 (except 
(a)(5), (a)(9), (e), (f), and (g)(1)(ii)(b)); 376.2; 376.3 (except 
(b)(4) and (d)(2)); 376.4 (except (c)(2), (e)(1)-(7), and (f)); and 
376.5.
    Appendices: Appendices 19 through 25; Appendices 27 through 30; 
Appendix 33; Appendix 37; Appendix 38; Appendices 40 through 49; and 
Appendices 51 through 55.
    Copies of the New York regulations that are incorporated by 
reference are available from West Publishing Company, 610 Opperman 
Drive, P.O. Box 64526, Eagan, MN 55134-0526; Phone: 1-800-328-4880; 
website: http://west.thomson.com.
* * * * *
[FR Doc. 2018-08431 Filed 4-26-18; 8:45 am]
 BILLING CODE 6560-50-P


