[Federal Register Volume 63, Number 196 (Friday, October 9, 1998)]
[Rules and Regulations]
[Pages 54356-54357]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-26790]
[[Page 54356]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 148, 261, 266, 268, 271, and 302
[FRL-6172-3]
RIN 2050-AD88
Technical Amendments to Hazardous Waste Management System;
Identification and Listing of Hazardous Waste; Petroleum Refining
Process Wastes; Land Disposal Restrictions for Newly Identified Wastes;
And CERCLA Hazardous Substances Designation and Reportable Quantities;
Correction of Effective Date Under Congressional Review Act (CRA)
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; correction of effective date under CRA.
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SUMMARY: On August 6, 1998, (63 FR 42110), EPA published in the Federal
Register a final rule concerning the listing of hazardous wastes from
petroleum refining under the Resource Conservation and Recovery Act,
Reportable Quantity adjustments, promoting recycling of oil-bearing
residuals, and applying universal treatment standards to petroleum
wastes. The rule established an effective date of August 6, 1998, for
certain deregulatory amendments and February 8, 1999, for other
amendments. This document corrects the August 6, 1998, effective date
of the rule to be consistent with sections 801 and 808 of the
Congressional Review Act (CRA), enacted as part of the Small Business
Regulatory Enforcement Fairness Act, 5 U.S.C. 801, 808.
EFFECTIVE DATE: The August 6, 1998, rule (63 FR 42110), is effective
February 8, 1999, except for the amendments to
Secs. 261.3(c)(2)(ii)(B), 261.4(a), 261.6(a)(3)(iv)(C), and
266.100(b)(3) and the removal of Sec. 261.6(a)(3)(v) which are
effective December 8, 1998.
FOR FURTHER INFORMATION CONTACT: Ross Elliott (703) 308-8748.
SUPPLEMENTARY INFORMATION:
A. Background
Section 801 of the CRA states a rule cannot take effect until the
agency issuing the rule submits a rule report, which includes a copy of
the rule, a statement as to whether the rule is a ``major rule,'' and
the rule's proposed effective date, to each House of Congress and to
the Comptroller General of the United States, head of the General
Accounting Office (GAO). If the Administrator of the Office of
Information and Regulatory Affairs at the Office of Management and
Budget (OMB) determines that a rule is ``major'' under section 804(2),
section 801(a)(3) further provides that the rule cannot take effect
until the later of 60 days after the rule is published in the Federal
Register or the rule is submitted to Congress and GAO. Non-major rules
can be effective at any time after they are submitted to Congress and
GAO. Under section 808(2), major rules can take effect sooner than 60
days if the agency makes a ``good cause'' finding.
EPA issued the August 6, 1998, final rule under a schedule
established in a consent decree. OMB completed review of the rule under
Executive Order 12866 on June 29, 1998, and the EPA Administrator
signed the rule on that day to meet the consent decree deadline. As of
the completion of OMB review on June 29, EPA had found no basis in the
rulemaking record that would suggest the rule should be considered
``major'' under the CRA, nor had OMB notified EPA at the conclusion of
Executive Order 12866 review of any determination that the rule was
major. Accordingly, the final rule stated ``[t]his action is not a
major rule as defined by 5 U.S.C. 804(2).'' (63 FR 42182) On July 17,
1998, EPA sent the rule to the Speaker of the House, the President of
the Senate, and the General Accounting Office, in accordance with the
CRA, indicating that it was not a major rule. On July 22, 1998, EPA
sent the rule to the Office of the Federal Register (OFR), which
published it in the Federal Register on August 6, 1998.
OMB wrote EPA on July 24, 1998, after EPA had submitted the rule to
OFR, that OMB had determined the rule is ``major.'' OMB based its
determination on new information submitted by a company in mid-June,
almost a year after the close of the public comment period, while the
rule was being reviewed by OMB under Executive Order 12866, shortly
before the signature date required by the consent decree. After
discussing this matter further with OMB, EPA concluded that, because
OMB made its determination before the final rule was published in the
Federal Register, EPA must resubmit the final rule under the CRA as a
major rule and revise the effective dates accordingly. EPA must do this
because the July submission to Congress and GAO did not identify the
rule as ``major.''
Specific portions of the August 6, 1998, final rule were made
effective February 8, 1999. Those portions are not affected by today's
action. However, the rule had several deregulatory provisions that were
made effective August 6, 1998, the day of publication. These provisions
were amendments to 40 CFR 261.3(c)(2)(ii)(B), 261.4(a),
261.6(a)(3)(iv)(C), and 266.100(b)(3) and the removal of 40 CFR
261.6(a)(3)(v). (In the course of reviewing the August 6th Federal
Register notice to prepare today's action, EPA found a typographical
error in the EFFECTIVE DATES section of that notice. The final rule
amended 40 CFR 266.100(b)(3); however, the EFFECTIVE DATES section
erroneously referred to it as ``261.100(b)(3).'' Section 261.100(b)(3)
does not exist and was not addressed in the August 6th rule. EPA
intended to make the amendment to section 266.100(b)(3) effective along
with the other deregulatory amendments. Accordingly, EPA has amended
the citation in the EFFECTIVE DATES section of today's notice to
correct that error.) Although the rule was promulgated on August 6,
because OMB determined the rule is ``major,'' under section 801 of
SBREFA those deregulatory portions of the rule did not take effect on
August 6. EPA cannot make those provisions effective until the later of
60 days after publication of today's document in the Federal Register
or today's document is submitted to Congress and GAO. To prevent
further delay in the effective date for the deregulatory amendments, in
today's notice EPA is making a good cause finding under 808(2) of CRA
(see below). Accordingly, today's action amending the effective dates
is effective upon today's publication, before completion of the 60-day
period. Both the August 6th rule and today's action already have been
submitted to both Houses of Congress and the GAO. Today's action
changes the August 6th effective date of the final rule to December 8,
1998 to be consistent with the CRA. Through today's action EPA also is
amending the August 6th rule preamble by stating that the August 6th
final rule is a ``major'' rule under the CRA.
Section 553 of the Administrative Procedure Act, 5 U.S.C.
553(b)(B), provides that, when an agency for good cause finds that
notice and public procedure are impracticable, unnecessary or contrary
to the public interest, an agency may issue a rule without providing
notice and an opportunity for public comment. EPA has determined that
there is good cause for making today's rule final without prior
proposal and opportunity for comment because EPA merely is correcting
the effective date of the August 6 rule to be consistent with the
requirements of the CRA as a matter of law and has no discretion in
this matter.
[[Page 54357]]
Thus, notice and public procedure are unnecessary. EPA finds that this
constitutes good cause under 5 U.S.C. 553(b)(B). Moreover, since
today's action does not create any new regulatory requirements,
relieves restrictions, and affected parties have known of the
underlying rule since August 6, EPA finds that good cause exists to
provide for an immediate effective date pursuant to 5 U.S.C. 553(d)(3)
and 808(2).
The delay in the effective date of the deregulatory provisions
(amendments to 40 CFR 261.3(c)(2)(ii)(B), 261.4(a), 261.6(a)(3)(iv)(C),
and 266.100(b)(3) and the removal of 40 CFR 261.6(a)(3)(v)) of the
August 6, 1998, final rule was caused by OMB's designation of the rule
as ``major'' after EPA had signed the rule and sent it to OFR for
publication and EPA's resulting need to resubmit the rule under the
CRA. Thus, EPA does not believe that affected persons who acted in good
faith relying upon the August 6th effective date stated in the Federal
Register should be penalized if they were complying with the rule as
promulgated from August 6 until today. (This includes persons who may
have properly interpreted the amendment to 40 CFR 266.100(b)(3) to be
in effect in spite of the typographical error in the EFFECTIVE DATES
section of the August 6th rule discussed above.) However, since the
amendments to 40 CFR 261.3(c)(2)(ii)(B), 261.4(a), 261.6(a)(3)(iv)(C),
and 266.100(b)(3) and the removal of 40 CFR 261.6(a)(3)(v) now are not
in effect, and will not be in effect until December 8, 1998, affected
persons must comply with the existing rules until these provisions take
effect on December 8, 1998.
II. Administrative Requirements
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this
action is not a ``significant regulatory action'' and is therefore not
subject to review by the Office of Management and Budget. In addition,
this action does not impose any enforceable duty or contain any
unfunded mandate as described in the Unfunded Mandates Reform Act of
1995 (Pub. L. 104-4), establish any technical standards subject to the
section 12(d) of the National Technology Transfer and Advancement Act,
require prior consultation with State officials as specified by
Executive Order 12875 (58 FR 58093, October 28, 1993) or with officials
of Indian tribal governments as specified by Executive Orders 12875 and
13084 (63 FR 27655, May 19, 1998), involve special consideration of
environmental justice related issues as required by Executive Order
12898 (59 FR 7629, February 16, 1994), or involve special consideration
of children's health and safety risks under Executive Order 13045 (62
FR 19885, April 23, 1997). Because this action is not subject to
notice-and-comment requirements under the Administrative Procedure Act
or any other statute, it is not subject to the regulatory flexibility
provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).
EPA's compliance with these statutes and Executive Orders, as
applicable, for the August 6th rule is discussed in the August 6, 1998,
Federal Register notice.
OMB's designation of the August 6th final rule as ``major'' for
purposes of the CRA does not change EPA's analysis of the rule for
purposes of other statutes and Executive Orders as described in the
August 6th Federal Register. The cost information considered by OMB was
submitted by a company long after the comment period had closed, while
the rule was being reviewed by OMB. The information concerns the cost
of leachate management that may result from the August 6th rule and is
unverified and unsubstantiated. To address the late information, EPA
published a proposed rule, notice of data availability, and request for
comment in the same August 6th Federal Register asking, among other
things, for comment on the information (63 FR 42190). In that notice
EPA stated ``EPA received this information very late in the rulemaking
process'' and pointed out that ``the information is not even part of
the administrative record for the final rule.'' Although EPA is bound
by OMB's determination that the August 6th final rule is ``major'' for
CRA purposes, EPA has no basis to judge whether the recently-submitted
cost information is accurate. Thus, EPA has not changed its cost
estimates presented in the final rule. As noted in the August 6th
proposed rule and notice of data availability, EPA is soliciting
comment on this information and may decide temporarily to defer from
regulation the leachate in question. Refer to that Federal Register
notice for more information.
Pursuant to 5 U.S.C. 801(a)(1)(A), as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office; however, in accordance with 5 U.S.C. 808(2),
this rule is effective on October 9, 1998. Even though today's action
amends the effective date of a ``major rule,'' today's rule is not a
``major rule'' as defined in 5 U.S.C. 804(2) separate from the August 6
rule.
Today's final rule only amends the effective date of the August 6
rule; it does not amend any substantive requirements contained in that
rule. Accordingly, to the extent it is available, judicial review is
limited to the amended effective date. Pursuant to section 7006 of the
Resource Conservation and Recovery Act, challenges to this amendment
must be brought by January 7, 1999.
Dated: September 30, 1998.
Carol M. Browner,
Administrator.
[FR Doc. 98-26790 Filed 10-8-98; 8:45 am]
BILLING CODE 6560-50-P
