[Federal Register Volume 60, Number 125 (Thursday, June 29, 1995)]
[Rules and Regulations]
[Pages 33912-33915]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-15028]
[[Page 33911]]
_______________________________________________________________________
Part II
Environmental Protection Agency
_______________________________________________________________________
40 CFR Part 110, et al.
Federal Regulatory Review; Final Rules
Federal Register / Vol. 60, No. 125 / Thursday, June 29, 1995 / Rules
and Regulations
[[Page 33912]]
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 110, 259, 261, 266, 267, 270, 271, 300 and 373
[FRL-5224-1]
Solid Waste, Hazardous Waste, Oil Discharge and Superfund
Programs; Removal of Legally Obsolete Rules
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) is removing from the
Code of Federal Regulations (CFR) several sections of the CFR
pertaining to solid waste, hazardous waste, oil discharges and EPA's
Superfund program which are no longer legally in effect. Deleting these
sections from the CFR will clarify the legal status of the Agency's
regulations for both the regulated community and the public.
EFFECTIVE DATE: This final rule takes effect on June 29, 1995.
FOR FURTHER INFORMATION CONTACT: Jim O'Leary (202-260-0724), Office of
Solid Waste, or Jim Fary (703-603-8899), Office of Emergency and
Remedial Response, U.S. Environmental Protection Agency, 401 M Street,
SW, Washington, DC 20460, or the RCRA/Superfund Hotline, phone (800)
424-9346 or (703) 412-9810 in the Washington, DC, metropolitan area.
SUPPLEMENTARY INFORMATION:
I. Introduction
On March 4, 1995 the President directed all Federal agencies and
departments to conduct a comprehensive review of the regulations they
administer and, by June 1, 1995 to identify those rules that are
obsolete or unduly burdensome. EPA has conducted a review of all of its
rules, including rules issued under the Resource Conservation and
Recovery Act (RCRA) (42 U.S.C. 6901 et seq.), the Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA or
Superfund) (42 U.S.C. 9601 et seq.), and the Deepwater Ports Act (DWPA)
(33 U.S.C. 1501 et seq.). Based on this review, EPA is eliminating the
following obsolete RCRA, CERCLA and DWPA rules from the CFR. These
rules are no longer legally in effect because (1) they implement
statutory provisions which have been repealed, (2) they have expired by
their own terms or by the terms of the statute, or (3) they have been
vacated (i.e., declared void and of no effect) by a court.
The removal of these rules from the CFR because they are no longer
legally in effect is not intended to affect the status of any civil or
criminal actions that were initiated prior to June 29, 1995 or which
may be initiated in the future to redress violations of the rules that
occurred when the rules were still legally in effect.
II. Obsolete Rules
Section 110.11 Discharge at Deepwater Ports
Section 18 of the DWPA prohibits the discharge of oil from a
deepwater port and establishes liability for the clean-up of oil
discharges. On April 2, 1987, EPA issued a regulation defining the term
``discharge of oil'' for purposes of Section 18.
On August 18, 1990, Section 18 was repealed by Section 2003(a)(3)
of the Oil Pollution Act of 1990. Accordingly, EPA is removing from the
CFR its definition of ``discharge of oil'' under Section 18.
Part 259--Standards for the Tracking and Management of Medical Waste
The Medical Waste Tracking Act of 1988 (Subchapter J of RCRA)
required EPA to promulgate regulations for tracking and managing
medical waste as part of a two-year Federal demonstration program under
the Act. The required regulations were issued by EPA on March 24, 1989,
and became effective on July 22, 1989.
On July 22, 1991, in accordance with both the Act and the
regulations issued by EPA, the two-year demonstration program expired.
See RCRA Secs. 11001(d) and 40 CFR 259.2(a). All Federal medical waste
regulations also expired at that time, with the exception of
recordkeeping provisions; those provisions required regulated entities
to retain certain records for three years (or longer, if EPA or a State
has initiated an enforcement action). See 40 CFR 259.2(b), Sec. 259.54,
Sec. 259.77, and Sec. 259.83. This three-year record retention period
has now also expired, and EPA is unaware of any pending Federal or
State enforcement action regarding Federal medical waste requirements.
Accordingly, EPA is removing these medical waste regulations from the
CFR.
Section 261.31 Hazardous Wastes From Non-Specific Sources
On February 6, 1991, EPA issued regulations listing certain wood
preserving wastes as hazardous wastes. The Agency was sued on these
listings, and in response, temporarily stayed the effective date of its
listing decision. See Sec. 261.31(a), footnote 1. This stay expired on
May 6, 1992. Accordingly, EPA is removing all references to this stay
from the CFR.
Section 266.104(f) Alternative HC [hydrocarbon] Limit for Furnaces With
Organic Matter in Raw Material
On February 21, 1991, EPA issued standards for boilers and
industrial furnaces (BIFs) burning hazardous wastes. Among other
things, these standards required BIFs to meet one of three alternative
emission standards for carbon monoxide. One of these alternative
standards--set forth in 40 CFR 266.104(f)--was designed to address
situations where organic matter in the non-waste feed to an industrial
furnace made it difficult for the facility to meet one of the other two
alternatives.
On February 22, 1994, in Horsehead Resource Development Co. v.
Browner, 16 F.3d 1246 (D.C. Cir. 1994), cert. denied sub nom. Cement
Kiln Recycling Coalition v. Browner, 115 U.S. 72 (1994), a Federal
appeals court ruled that EPA had failed to follow proper rulemaking
procedures in issuing this standard and vacated it. Accordingly, EPA is
removing this standard and all references to this standard from the
CFR.
Part 267--Interim Standards for Owners and Operators of New Hazardous
Waste Land Disposal Facilities.
RCRA prohibits the treatment, storage or disposal of hazardous
waste without a permit or interim status. RCRA Secs. 3005(a) and
3005(e). Prior to 1984, permits could not be issued for a particular
management practice unless EPA had promulgated permitting standards for
that activity. RCRA Sec. 3005(c)(1).
At the end of 1980, EPA had not yet issued final standards for
permitting hazardous waste land disposal facilities. This meant that
new land disposal facilities, which could not qualify for interim
status 1, could not be authorized to operate. To address this
problem, on February 13, 1981, EPA issued interim permitting standards
for new land disposal facilities that could be used to permit new
facilities pending the development of final standards.
\1\ ``Interim status'' allows existing facilities that make
appropriate filings to continue to operate pending a final permit
decision. See RCRA Sec. 3005(e).
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By their own terms, these interim standards expired on January 26,
1983, when final permitting standards for land disposal facilities
(contained in 40 CFR Part 264, Subparts K-N) became effective. See 40
CFR 267.3.
[[Page 33913]]
Accordingly, EPA is removing these regulations from the CFR.
Various Provisions in Parts 270 and 271 Relating to Interim
Authorization of State Hazardous Waste Programs.
Under RCRA Sec. 3006, States can be authorized to administer the
RCRA hazardous waste program in lieu of EPA. As originally enacted in
1976, RCRA provided for two types of State authorization--interim
authorization and final authorization. RCRA Secs. 3006(b) and (c).
Interim authorization is a temporary authorization and requires that
States demonstrate that their program is ``substantially equivalent''
to EPA's; final authorization is a permanent authorization and requires
that States show that their program is ``equivalent'' to the Federal
program and meets other requirements.
In 1984 Congress amended RCRA to limit the availability of interim
authorization after January 26, 1986 to requirements and prohibitions
mandated by the Hazardous and Solid Waste Amendments of 1984 (HSWA).
RCRA Sec. 3006(c)(1). Accordingly, EPA is removing from the CFR all
references to interim authorization for non-HSWA requirements
(including references to ``Phase I'' and ``Phase II'' non-HSWA interim
authorization).
Part 300--National Oil and Hazardous Substances Pollution Contingency
Plan; Subpart L--Lender Liability Under CERCLA.
On April 29, 1992, EPA issued a rule defining when banks and other
secured creditors would be liable as ``owners'' of contaminated
property under CERCLA. In Kelley v. EPA, 15 F.3d 1100 (D.C. Cir. 1993),
reh. denied, 25 F.3d. 1088 (D.C. Cir. 1994), cert. denied, 115 S. Ct.
900 (1995), a Federal court of appeals ruled that EPA did not have
statutory authority to issue the rule and vacated it. Accordingly, EPA
is removing this rule from the CFR.
Section 373.1 (General Requirement)
Section 120(h)(1) of CERCLA requires Federal agencies that own
property where hazardous substances have been stored or are known to
have been released to notify buyers and lessees of the property. On
April 16, 1990, EPA issued a rule under this section which limited the
notification requirement to situations where the storage or release
took place during the period the property was owned by the Federal
agency.
On July 12, 1991, in Hercules Inc. v. EPA, 938 F.2d 276 (D.C. Cir.
1991), a Federal appeals court held that the Agency had no authority to
impose this limitation and vacated it. Accordingly, EPA is removing
this provision from the rule.
III. Good Cause Exemption from Notice-and-Comment Rulemaking
Procedures.
The Administrative Procedure Act generally requires agencies to
provide prior notice and opportunity for public comment before issuing
a final rule. 5 U.S.C. 553(b). Rules are exempt from this requirement
if the issuing agency finds for good cause that notice and comment are
unnecessary. 5 U.S.C. 553(b)(3)(B).
EPA has determined that providing prior notice and opportunity for
comment on the deletion of these rules from the CFR is unnecessary. For
the reasons discussed in Sections I and II, these rules are no longer
legally in effect; thus, withdrawing them from the CFR has no legal
impact and merely codifies the current legal status of the rules.
For the same reasons, EPA believes there is good cause for making
the removal of these rules from the CFR immediately effective. See 5
U.S.C. 553(d).
IV. Analyses under E.O. 12866, the Unfunded Mandates Reform Act of
1995, the Regulatory Flexibility Act and the Paperwork Reduction Act
Because the withdrawal of these rules from the CFR merely reflects
their current legal status and thus has no regulatory impact, this
action is not a ``significant'' regulatory action within the meaning of
E.O. 12866, and does not impose any Federal mandate on State, local or
tribal governments or the private sector within the meaning of the
Unfunded Mandates Reform Act of 1995. For the same reasons, pursuant to
the Regulatory Flexibility Act, I certify that this action would not
have a significant economic impact on a substantial number of small
entities. Finally, because these rules are no longer legally in effect,
their deletion from the CFR does not affect requirements under the
Paperwork Reduction Act.
List of Subjects
40 CFR Part 110
Environmental protection, Deepwater ports, Oil pollution.
40 CFR Part 259
Hazardous materials transportation, Hazardous waste,
Intergovernmental relations, Labeling, Packaging and containers,
Railroad safety, Reporting and recordkeeping requirements, Waste
treatment and disposal.
40 CFR Part 261
Hazardous waste, Wood preserving wastes.
40 CFR Part 266
Boilers and industrial furnaces, Hazardous waste.
40 CFR Part 267
Air pollution control, Hazardous waste, Water supply.
40 CFR Parts 270 and 271
Hazardous waste, Intergovernmental relations, Interim
authorization.
40 CFR Part 300
Hazardous substances, Lender liability, Superfund.
40 CFR Part 373
Federal buildings and facilities, Hazardous substances, Reporting
and recordkeeping requirements, Superfund.
Dated: June 14, 1995.
Elliott P. Laws,
Assistant Administrator, Office of Solid Waste and Emergency Response.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:
PART 110--[AMENDED]
1. The authority citation for part 110 is amended to read as
follows:
Authority: 33 U.S.C. 1321(b)(3) and (b)(4) and 1361(a); E.O.
11735, 38 FR 21243, 3 CFR Parts 1971-1975 Comp., p. 793.
Sec. 110.11 [Removed]
2. Section 110.11 is removed.
PART 259--[REMOVED]
3. Part 259 is removed.
PART 261--[AMENDED]
4. The authority citation for part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922 and 6938.
Sec. 261.31 [Amended]
5. In Sec. 261.31(a), footnote 1 is removed.
PART 266--[AMENDED]
6. The authority citation for part 266 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6924 and 6934.
7. In Sec. 266.103, paragraph (c)(5) is revised to read as follows:
Sec. 266.103 Interim status standards for burners.
* * * * *
[[Page 33914]]
(c) * * *
(5) Special requirements for HC monitoring systems. When an owner
or operator is required to comply with the hydrocarbon (HC) controls
provided by Sec. 266.104(c) or paragraph (a)(5)(i)(D) of this section,
a conditioned gas monitoring system may be used in conformance with
specifications provided in appendix IX of this part provided that the
owner or operator submits a certification of compliance without using
extensions of time provided by paragraph (c)(7) of this section.
* * * * *
Sec. 266.104 [Amended]
8. In Sec. 266.104 paragraph (f) is removed, and paragraphs (g),
(h) and (i) are redesignated as paragraphs (f), (g) and (h),
respectively.
PART 267--[REMOVED]
9. Part 267 is removed.
PART 270--[AMENDED]
10. The authority citation for part 270 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939 and
6974.
11. In Sec. 270.2, the definitions of ``Phase I'' and ``Phase II''
are removed and the definition of ``Interim Authorization'' is revised
to read as follows:
Sec. 270.2 Definitions.
* * * * *
Interim authorization means approval by EPA of a State hazardous
waste program which has met the requirements of section 3006(g)(2) of
RCRA and applicable requirements of part 271, subpart B.
* * * * *
12. In Sec. 270.10, paragraphs (e)(4), (f)(2) and (g)(1) are
revised to read as follows:
Sec. 270.10 General application requirements.
* * * * *
(e) * * *
(4) The owner or operator of an existing hazardous waste management
facility may be required to submit part B of their permit application.
The State Director may require submission of part B (or equivalent
completion of the State RCRA application process) if the State in which
the facility is located has received interim or final authorization; if
not, the Regional Administrator may require submission of Part B. Any
owner or operator shall be allowed at least six months from the date of
request to submit part B of the application. Any owner or operator of
an existing hazardous waste management facility may voluntarily submit
part B of the application at any time. Notwithstanding the above, any
owner or operator of an existing hazardous waste management facility
must submit a part B permit application in accordance with the dates
specified in Sec. 270.73. Any owner or operator of a land disposal
facility in existence on the effective date of statutory or regulatory
amendments under this Act that render the facility subject to the
requirement to have a RCRA permit must submit a part B application in
accordance with the dates specified in Sec. 270.73.
* * * * *
(f) * * *
(2) An application for a permit for a new hazardous waste
management facility (including both Parts A and B) may be filed any
time after promulgation of those standards in part 264, subpart I et
seq. applicable to such facility. The application shall be filed with
the Regional Administrator if at the time of application the State in
which the new hazardous waste management facility is proposed to be
located has not received interim or final authorization for permitting
such facility; otherwise it shall be filed with the State Director.
Except as provided in paragraph (f)(3) of this section, all
applications must be submitted at least 180 days before physical
construction is expected to commence.
* * * * *
(g) Updating permit applications. (1) If any owner or operator of a
hazardous waste management facility has filed Part A of a permit
application and has not yet filed part B, the owner or operator shall
file an amended part A application:
(i) With the Regional Administrator if the facility is located in a
State which has not obtained interim authorization or final
authorization, within six months after the promulgation of revised
regulations under part 261 listing or identifying additional hazardous
wastes, if the facility is treating, storing or disposing of any of
those newly listed or identified wastes.
(ii) With the State Director, if the facility is located in a State
which has obtained interim authorization or final authorization, no
later than the effective date of regulatory provisions listing or
designating wastes as hazardous in that State in addition to those
listed or designated under the previously approved State program, if
the facility is treating, storing or disposing of any of those newly
listed or designated wastes; or
(iii) As necessary to comply with provisions of Sec. 270.72 for
changes during interim status or with the analogous provisions of a
State program approved for final authorization or interim
authorization. Revised Part A applications necessary to comply with the
provisions of Sec. 270.72 shall be filed with the Regional
Administrator if the State in which the facility in question is located
does not have interim authorization or final authorization; otherwise
it shall be filed with the State Director (if the State has an
analogous provision).
* * * * *
PART 271--[AMENDED]
13. The authority citation for part 271 is amended to read as
follows:
Authority: 42 U.S.C. 6905, 6912 and 6926.
Sec. 271.3 [Amended]
14. In Sec. 271.3, paragraphs (c), (d) and (e) are removed, and
paragraph (f) is redesignated as paragraph (c).
15. In Sec. 271.20, paragraph (e) is revised to read as follows:
Sec. 271.20 Approval process.
* * * * *
(e) Within 90 days of the notice given pursuant to paragraph (d) of
this section, the Administrator shall make a final determination
whether or not to approve the State's program, taking into account any
comments submitted. The Administrator shall give notice of this final
determination in the Federal Register and in accordance with paragraph
(a)(1) of this section. The notification shall include a concise
statement of the reasons for this determination, and a response to
significant comments received.
Secs. 271.121-271.138 [Removed]
16. Subpart B (Secs. 271.121 through 271.138) is removed.
PART 300--[AMENDED]
17. The authority citation for part 300 continues to read as
follows:
Authority: 42 U.S.C. 9601-9657; 33 U.S.C. 1321(c)(2); E.O.
12777, 56 FR 54757, 3 CFR 1991 Comp., p. 351; E.O. 12580, 52 FR
2923, 3 CFR 187 Comp., p. 193.
Secs. 300.1100 and 300.1105 [Removed]
18. Subpart L (Secs. 300.1100 and 300.1105) is removed.
PART 373--[AMENDED]
19. The authority citation for part 373 is revised to read as
follows:
Authority: 42 U.S.C. 9620.
[[Page 33915]]
20. Section 373.1 is revised to read as follows:
Sec. 373.1 General requirement.
After the last day of the six-month period beginning on April 16,
1990, whenever any department, agency or instrumentality of the United
States enters into any contract for the sale or other transfer of real
property which is owned by the United States and at which any hazardous
substance was stored for one year or more, known to have been released,
or disposed of, the head of such department, agency or instrumentality
must include in such contract notice of the type and quantity of such
hazardous substance and notice of the time at which such storage,
release or disposal took place, to the extent such information is
available on the basis of a complete search of agency files.
[FR Doc. 95-15028 Filed 6-28-95; 8:45 am]
BILLING CODE 6560-50-P
