E7-23946. Rhode Island: Final Authorization of State Hazardous Waste Management Program Revisions

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Immediate final rule.

SUMMARY:

The State of Rhode Island has applied to EPA for final authorization of certain changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). EPA has determined that these changes satisfy all requirements needed to qualify for final authorization, and is authorizing the State's changes through this immediate final action.

DATES:

This final authorization will become effective on February 11, 2008 unless EPA receives adverse written comment by January 10, 2008. If EPA receives such comment, it will publish a timely withdrawal of this immediate final rule in the Federal Register and inform the public that this authorization will not take immediate effect.

ADDRESSES:

Submit your comments, identified by Docket ID No. EPA-R01-RCRA-2007-0999, by one of the following methods:

• http://www.regulations.gov: Follow the on-line instructions for submitting comments.
• E-mail: [e-mail].
• Fax: [phone], to the attention of Robin Biscaia.
• Mail: Robin Biscaia, Hazardous Waste Unit, EPA New England—Region 1, One Congress Street, Suite 1100 (CHW), Boston, MA 02114-2023.
• Hand Delivery or Courier: Deliver your comments to Robin Biscaia, Hazardous Waste Unit, Office of Ecosystem Protection, EPA New England—Region 1, One Congress Street, 11th Floor, (CHW), Boston, MA 02114-2023. Such deliveries are only accepted during the Office's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

Instructions: Identify your comments as relating to Docket ID No. EPA-R01-RCRA-2007-0999. 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 claimed to be 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. For additional information about EPA's public docket visit the EPA Docket Center homepage at http://www.epa.gov/​epahome/​dockets.htm.

Docket: EPA has established a docket for this action under Docket ID No. EPA-R01-RCRA-2007-0999. All documents in the docket are listed on the http://www.regulations.gov Web site. Although it may be listed in the index, some information might 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 following two locations: (i) EPA Region 1 Library, One Congress Street—11th Floor, Boston, MA 02114-2023; by appointment only; tel: [phone]; and (ii) Rhode Island Department of Environmental Management, 235 Promenade St., Providence, RI 02908-5767, by appointment only through the Office of Technical and Customer Assistance, tel: [phone].

FOR FURTHER INFORMATION CONTACT:

Robin Biscaia, Hazardous Waste Unit, EPA New England—Region 1, One Congress Street, Suite 1100 (CHW), Boston, MA 02114-2023; telephone number: [phone]; fax number: [phone], e-mail address: [e-mail].

SUPPLEMENTARY INFORMATION:

A. Why Are Revisions to State Programs Necessary?

States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the Federal program. As the Federal program changes, States must change their programs and ask EPA to authorize the changes. Changes to State programs may be necessary when Federal or State statutory or regulatory authority is modified or when certain other changes occur. Most commonly, States must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 266, 268, 270, 273 and 279.

B. What Decisions Have We Made in This Rule?

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

C. What Is the Effect of This Authorization Decision?

The effect of this decision is that a facility in Rhode Island subject to RCRA will now have to comply with the authorized State requirements instead of the equivalent Federal requirements in order to comply with RCRA. Rhode Island has enforcement responsibilities under its State hazardous waste program for violations of such program, but EPA also retains its full authority under RCRA sections 3007, 3008, 3013, and 7003, which includes, among others, authority to:

• Perform inspections, and require monitoring, tests, analyses or reports.
• Enforce RCRA requirements and suspend or revoke permits.
• Take enforcement actions.

This action does not impose additional requirements on the regulated community because the regulations for which Rhode Island is being authorized by today's action are already effective under State law, and are not changed by today's action.

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

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

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

If EPA receives comments that oppose this authorization, we will withdraw this rule by publishing a document in the Federal Register before the rule becomes effective. EPA will base any further decision on the authorization of the State program changes on the proposal mentioned in the previous paragraph. We will then address all public comments in a later final rule based upon this proposed rule that also appears in today's Federal Register. You may not have another opportunity to comment. If you want to comment on this authorization, you should do so at this time.

If we receive adverse comments that oppose only the authorization of a particular change to the State hazardous waste program, we will withdraw that part of this rule but the authorization of the program changes that the comments do not oppose will become effective on the date specified above. The Federal Register withdrawal document will specify which part of the authorization will become effective, and which part is being withdrawn.

F. What Has Rhode Island Previously Been Authorized for?

Rhode Island initially received final Authorization on January 30, 1986, effective January 31, 1986 (51 FR 3780) to implement its base hazardous waste management program. We granted authorization for changes to their program on March 12, 1990, effective March 26, 1990 (55 FR 9128), March 6, 1992, effective May 5, 1992 (57 FR 8089), October 2, 1992, effective December 1, 1992 (57 FR 45574) and August 9, 2002, effective October 8, 2002 (67 FR 51765).

G. What Changes Are We Authorizing With This Action?

On April 25, 2007 EPA received Rhode Island's complete program revision application seeking authorization for their changes in accordance with 40 CFR 271.21. The RCRA program revisions for which Rhode Island is seeking authorization address Corrective Action, Used Oil and Mixed Waste requirements. The State is also seeking authorization for various changes it recently has made to its base program requirements. The State's authorization application includes such documents as a Corrective Action Program Description, a Corrective Action Memorandum of Agreement (MOA) between EPA and the RIDEM, a Radioactive Mixed Waste Program Description which also includes a Memorandum of Understanding (MOU) between Rhode Island Department of Health and RIDEM concerning Mixed Waste, a copy of RIDEM's Rules and Regulations for Hazardous Waste Management dated February 14, 2007 and a Supplement to the Attorney General's Statement.

We are now making an immediate final decision, subject to reconsideration only if we receive written comments that oppose this action, that Rhode Island's hazardous waste program revisions satisfy all of the requirements necessary to qualify for final authorization. Therefore, we grant Rhode Island final authorization for the program changes identified below. Note, the Federal requirements are identified by their checklist (CL) number and/or letter and rule descriptions followed by the corresponding state regulatory analog (“Rule”) from Rhode Island's Rules and Regulations for Hazardous Waste Management as in effect on March 4, 2007 or state statutory analog (“R.I.G.L.”) from the Rhode Island General Laws (2001 Reenactment).

First, we are authorizing revised state rules that are analogous to the following Federal rules which relate to EPA's Corrective Action program. CL 17L—HSWA Codification Rule, Corrective Action, 50 FR 28702-28755, July 15, 1985: Rule 2.02(B), 7.01(F), 7.01(G), 8.04(G), 9.03, 16.01(A), 16.01(B); CL 17 O—HSWA Codification Rule, Omnibus Provision, 50 FR 28702-28755, July 15, 1985: Rule 2.02(B), 2.03; CL 44A—HSWA Codification Rule 2, Permit Application Requirements Regarding Corrective Action, 52 FR 45788-45799, December 1, 1987: Rule 2.02(B), 8.01(G), 8.01(K); CL 44B—HSWA Codification Rule 2, Corrective Action Beyond the Facility Boundary, 52 FR 45788-45799, December 1, 1987: Rule 2.02(B), 16.01(A), 16.01(B); CL 44C—HSWA Codification Rule 2, Corrective Action for Injection Wells, 52 FR 45788-45799, December 1, 1987: Rule 7.01(F); CL 121—Corrective Action Management Units and Temporary Units; Corrective Action Provisions Under Subtitle C, 58 FR 8658-8685, February 16, 1993: Rule 2.02(B), 3.00 Definitions, “Disposal,” “Hazardous waste disposal facility,” “Facility,” “Landfill,” “remediation waste” incorporated by reference in introductory paragraph; 7.06(B), 12.00, 16.01(A), 16.03(B); CL 175—Hazardous Remediation Waste Management Requirements (HWIR Media), 63 FR 65874-65947, November 30, 1998: Rule 2.02(B), 3.00 Definitions, “Facility,” “remediation waste” incorporated by reference in introductory paragraph, “Remediation waste management site,” “staging pile” incorporated by reference in introductory paragraph; 8.01(C), 9.12, 12.00, 16.01(A), 16.02, 16.03(B); CL 196—Amendments to the Corrective Action Management Unit (CAMU) Rule, 67 FR 2962-3029, January 22, 2002: Rule 2.02(B), 3.00 Definitions, “remediation waste” incorporated by reference in introductory paragraph, 16.03(B), 16.03(C).

Second, we are authorizing revised state rules that are analogous to the following Federal rules which relate to EPA's Mixed Waste program. MW—Radioactive Mixed Waste, 51 FR 24504, July 3, 1986: Rule 1.01, 1.02, 3.00 Definitions, “hazardous waste,” “mixed waste;” CL 191—Storage, Treatment, Transportation, and Disposal of Mixed Waste, 66 FR 27218-27266, May 16, 2001: Rule 3.00 Definitions, “hazardous waste,” “Low-Level Mixed Waste,” Low-Level Radioactive Waste,” “Mixed Waste,” “Naturally Occurring and/or Accelerator-produced Radioactive Material (NARM),” 14.00 introductory paragraph, 14.02;

Third, we are authorizing revised state rules that are analogous to Federal rules which relate to EPA's Recycled Used Oil program. This includes CL 203—Recycled Used Oil Standards; Clarification, 68 FR 44659-44665, July 30, 2003 and EPA's Special Consolidated Checklist for Recycled Used Oil as of June 30, 2001 which addresses requirements in the following rule checklists: CP—Hazardous and Used Oil Fuel Criminal Penalties, HSWA §§ 3006(h), 3008(d), and 3014, November 8, 1984; CL 112—Recycled Used Oil Management Standards, 57 FR 41566-41626, September 10, 1992; CL 122—Recycled Used Oil Management Standards; Technical Amendments and Corrections, 58 FR 26420-26426, May 3, 1993 as amended on June 17, 1993 at 58 FR 33341-33342; CL 130—Recycled Used Oil Management Standards; Technical Amendments and Corrections II, 59 FR 10550-10560, March 4, 1994; CL 166—Recycled Used Oil Management Standards; Technical Correction and Clarification, 63 FR 24963-24969, May 6, 1998, as amended July 14, 1998, at 63 FR 37780-37782. Note, the corresponding state regulatory or statutory analogs (“Rule” or “R.I.G.L.”) are as follows: R.I.G.L. 23-19.1-18(a) and (h); Rule 2.02(A) and (B), 3.00 Definitions, “Above-ground tank,” “Container,” “Used Oil Collection Center,” “Tank,” “Household used oil,” “Household used oil generator,” “Processing Used Oil,” “Re-Refining Distillation Bottoms,” “Specification Used Oil,” “Tolling Agreement,” “Used Oil,” “Used Oil Aggregation Point,” “Used Oil Burner,” “Used Oil Burning Equipment,” “Used Oil Collection Center,” “Used Oil Fuel,” “Used Oil Generator,” “Used Oil Marketer,” “Used oil generator,” “Used oil Processor or Re-refiner,” “Used Oil Temporary Storage Facility,” “Used Oil Transporter;” 5.00; 15.01(A), 15.01(B)(1)-(3), 15.01(C)-(H), 15.01(I) [partially broader in scope], 15.01(J)-(L); 15.02, 15.02(A)-(H); 15.03, 15.03(A)(1)-(2), 15.03(B)(1)-(3), 15.03(C)(1)-(4), 15.03(D)(1)-(4), 15.03(E), 15.03(F) [partially broader in scope relating to on-spec oil], 15.03(F)(1)-(8) [(F)(5) is partially broader in scope], 15.03(G) [partially broader in scope relating to on-spec oil], 15.04, 15.04(A)-(I); 15.05(A)-(C); 15.06(A)-(D); 15.07(A)-(C), 15.07(D)(1), 15.07(F)-(G), 15.07(H)(1), 15.07(H)(12)-(19) [(H)(16) is partially broader in scope], 15.07(I); 15.08(A), 15.08(K)-(U) [(T)(4) is partially broader in scope], 15.08(W)-(Z); 15.09(A)-(G).

In addition to the regulations listed above, EPA is also authorizing the State for miscellaneous changes it has made to its previously authorized base program rules as follows (note, the analogous state provisions follow the general area of 40 CFR to which the changes relate): 40 CFR 260.10 definitions and related cross references in 40 CFR parts 260 through 273—State has revised and removed numbering of terms in section 3.00 Definitions and has revised related cross references accordingly in Rules 1.00 through 17.00; 40 CFR 262.34 Accumulation time—State has revised provisions at Rule 5.02(A) to require documentation of inspections; No direct Federal analog—State has revised the edition references for 49 CFR and 40 CFR in section 3.00 Definitions; 40 CFR 263.10(b), Scope of Standards Applicable to Transporters of Hazardous Waste—State has added and clarified exemption at Rule 6.00(A) [partially broader in scope]; 40 CFR 263.12, transporter transfer facility requirements and used oil storage at transfer facilities at 40 CFR 279.45—State has revised, added and clarified provisions at Rule 6.14; 6.14(A), (B)(1)-(2), and 6.14(E) [partially broader in scope]; 40 CFR 270.10(b), general RCRA permit requirements—State has revised and clarified Rule 7.01(A); 40 CFR part 270, Standards for Universal Waste Management related to lamps—State has revised and clarified its incorporation by reference in the introductory paragraph of Rule 13.6 and has also revised and clarified Rule 13.04, 13.06(A)(3), 13.06(C)(1)-(2), 13.06(C)(3) removal of “lamps,” 13.06(C)(5) and 13.06(J)(2) changes related to lamps; 40 CFR 273.8 Applicability, household and CESQG waste—State has revised and clarified provisions at Rule 13.06(B)(1)(a)-(c) and (B)(2); 40 CFR 273.9 Definitions—State has revised and clarified provisions at Rule 13.06(C)(1)-(5); 40 CFR 273.32, Notification—State has revised and clarified provisions of Rule 13.06(J)(1)-(3).

The final authorization of new State regulations and regulation changes is in addition to the previous authorization of State regulations, which remain part of the authorized program.

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

The most significant differences between the State rules being authorized and the Federal rules are summarized below. It should be noted that this summary does not describe every difference, or every detail regarding the differences that are described. Members of the regulated community are advised to read the complete regulations to ensure that they understand all of the requirements with which they will need to comply.

1. More Stringent Provisions

There are aspects of the Rhode Island program which are more stringent than the Federal program. All of these more stringent requirements are, or will become, part of the Federally enforceable RCRA program when authorized by the EPA and must be complied with in addition to the State requirements which track the minimum Federal requirements. These more stringent requirements include the following:

(a) Relating to requirements concerning Corrective Action for injection wells at 40 CFR 144.1(h), 40 CFR 144.31(g) and 40 CFR 270.60(b)(3), Rhode Island's hazardous waste program is more stringent in that its rules prohibit hazardous waste disposal by underground injection at Rule 7.01(F);

(b) Rhode Island's administrative requirement relating to Remedial Action Plans (RAPs) at Rule 16.02(I) is more stringent than the analogous Federal requirement at 40 CFR 270.190(c) as it provides a 30-day timeframe by which an informal appeal must be submitted; and

(c) Relating to the Recycled Used Oil Management Standards, a number of Rhode Island's regulatory provisions at Rule 15.00 are more stringent, some of which are as follows: (1) Certain definitions of the terms that apply to the State's used oil program are more stringent than the Federal definitions found at 40 CFR 279.1, e.g., “Used Oil Aggregation Point” does not apply to household used oil and “Used Oil Collection Center” only accepts used oil from households (not from other generators); (2) pertaining to mixtures of used oil and characteristic hazardous waste at 40 CFR 279.10(b)(2), Rhode Island's used oil program at 15.01(C) is more stringent than the Federal program as it only allows mixtures of used oil and hazardous waste that solely exhibit the characteristic of flammability. Mixtures of used oil and listed wastes that were listed solely for the characteristic of ignitability are not allowed under the State regulations. Also, the State criterion for flammability captures more wastes than the Federal characteristic of ignitability and, thus, also excludes more waste; (3) the Federal requirement at 40 CFR 279.10(b)(3) allows mixtures of used oil and conditionally exempt small quantity generator (CESQG) hazardous wastes regulated under 40 CFR 261.5 to be subject to regulation as used oil under 40 CFR part 279; however, as Rhode Island's program does not recognize this CESQG exemption, such mixtures may be regulated as hazardous waste; (4) Rule 15.00 does not provide exemptions of applicability to generators who mix used oil and diesel fuel for use in the generator's own vehicle, as provided in the Federal program at 40 CFR 279.20(a); (5) under the State's used oil program prohibitions, Rule 15.02(C) restricts the burning of off-spec used oil to the site of generation. There is no such restriction under the Federal used oil program. Thus, this requirement is considered more stringent in that it prohibits the offsite shipment of off-spec oil for the purpose of burning for energy recovery that otherwise would be allowed under the Federal program. (Note, shipments of off-spec used oil directed to processors and refiners is allowed at Rule 15.09(B)); (6) also, Rhode Island's provisions are more stringent than the Federal requirements at 40 CFR 279.23 in that they exclude used oil collected from households from being burned by generators in space heaters of less than 500,000 BTUs, and subject burners of household used oil to additional regulation under Rule 15.03(B); (7) Rule 15.08 requires processors and re-refiners to comply with additional requirements related to responding to facility emergencies than those contained in the analogous Federal regulations at 40 CFR 279.52(a); (8) Rule 15.02(B) does not provide the exception to the prohibition of using used oil as a dust suppressant which allows State petition for such use.

2. Partially Broader in Scope Provisions

There are also aspects of the Rhode Island program which are partially broader in scope than the Federal program. The portions of the State requirements which are broader in scope are not considered to be part of the federally enforceable RCRA program. However, they are fully enforceable under State law and must be complied with by sources in Rhode Island. The various changes Rhode Island has made to its used oil regulations and previously authorized base program regulations that are broader-in-scope are discussed below.

(a) Rule 15.07, Used Oil Transporter and Temporary Storage Facility Standards includes broader-in-scope provisions at (1) Rule 15.07(D)(2) which requires transporters to obtain a permit which is not required under Federal requirements for used oil transporters under 40 CFR part 279, subpart E; (2) Rule 15.07(E) requires used oil transporters to maintain liability insurance as required by Department of Transportation regulations at 49 CFR 387.7(d); and (3) Rule 15.07(H)(2) requires a used oil transporter who acts as a used oil temporary storage facility to apply for a Letter of Authorization from the RIDEM, a permit-like document for which a facility must provide details relating to the applicable operation which also includes a fee (15.07(H)(6)).

(b) Rule 15.08, Used oil Processor and Re-Refiner Standards, requires used oil processors and re-refiners to obtain a permit from RIDEM, which is not required under analogous Federal requirements at 40 CFR part 279, subpart F and, therefore, broader in scope. Other requirements include liability insurance, financial requirements, and fees, all of which are broader in scope when compared to the applicable Federal requirements.

(c) The State includes both off-spec and on-spec used oil in its definition of “used oil burner” at section 3.00 whereas the analogous Federal definition at 40 CFR 279.1 references the burning of only off-spec used oil. This difference is significant as it subjects burners of on-spec used oil in Rhode Island to additional requirements as reflected in section 15.03 of the State's regulations, Burning Used Oil for Energy Recovery. Under the Federal program, on-spec used oil destined to be burned for energy recovery is not subject to the restrictions on burning in 40 CFR part 279, subpart G (40 CFR 279.60(c)), and once conditions for on-spec used oil at 40 CFR 279.11 and 40 CFR part 279, subpart H have been met, the on-spec used oil can be handled like any other virgin fuel oil, as long as it has not been contaminated with hazardous waste. Rhode Island, however, continues to regulate the burning and other aspects of on-spec oil under Rule 15.03 beyond that which is subject to regulation under the Federal program as follows. The State regulates burners of on-spec used oil according to category of BTU capacity as well as by unit type, i.e., onsite and offsite, in Rule 15.03(A)-(D). The State's requirements for used oil burners are partially broader in scope in that they set notification requirements upon burners of on-spec used oil in Rule 15.03(B)(4) and (C)(5) and notification and approval requirements under Rule 15.03(D)(5). Various requirements, such as storage, handling, tracking, etc., are also imposed upon these on-spec burners at Rule 15.03(F)-(G) which are generally required for off-spec used oil burners but are broader in scope when applied to on-spec burners (see 40 CFR part 279, subpart G). (Please note, additional requirements which relate to the burning of used oil are also discussed in the following section, Equivalent but Different Provisions.)

3. Equivalent But Different Provisions

While many State regulations track Federal requirements identically, some differ from the Federal regulation in particular details but have been determined by the EPA to be equivalent to the Federal regulations in providing the same (or greater) overall level of environmental protection with respect to each Federal requirement. There are various Rhode Island regulations which differ from but have been determined to be equivalent to the Federal regulations. These regulations are part of the Federally enforceable RCRA program. These different but equivalent requirements include the following:

(a) Rhode Island's used oil definition is broader than the Federal definition in that it includes used oils which have become unsuitable for their original purpose other than through use (e.g., the State includes used oils that have become contaminated during storage). This generally results in more stringent regulation of oils that mostly would be considered only non-hazardous solid wastes in the Federal program. In a few cases the State regulations might allow such used oils which are characteristic to be handled in the used program rather than as fully regulated hazardous wastes (as they technically would be in the Federal program). The used oils would not be different in composition from those regulated under the Federal used oil program. The State's approach makes environmental sense and is part of a regulation which is overall at least as stringent as the corresponding Federal requirement.

(b) As stated previously, Rhode Island's requirements for burning used oil at Rule 15.03 are broader in scope as they regulate burners of on-spec oil in Rule 15.03(A)-(D), and Rhode Island's provisions are also more stringent in that they only allow on-spec oil to be shipped off-site to be burned for energy recovery. However, the State's used oil requirements are also equivalent but different in transferring the analytical and recordkeeping requirements imposed on used oil marketers of on-spec oil in 40 CFR 279.72 onto on-spec used oil burners at 15.03(B)(1) and (2), (C)(2) and (3) and (D)(2) and (3). Rhode Island regulations are also different but equivalent in allowing on-spec burners to aggregate off-spec used oil with virgin oil or on-spec used oil for burning blended mixtures at Rule 15.03(B)(3), (C)(4) and (D)(4) provided analysis shows it meets specification requirements (aggregation by off-spec used oil burners is allowed at 40 CFR 279.61(b)(2)).

(c) Rhode Island's program is also different in that it has adopted a regulatory approach to address small amounts of used oil that are generated by companies that service oil-fired furnaces that heat buildings. While there is no direct counterpart in the Federal used oil program for this specific scenario, the State's provisions closely track the agency's requirements for off-site shipments of used oil to aggregation points owned by the generator at 40 CFR 279.24(b), a provision for which Rhode Island is also being authorized. Under the Federal provision, EPA allows generators to self-transport up to 55 gallons at a time of used oil (without an EPA I.D. Number) to aggregation points owned by the generator. Rhode Island's used oil program at Rule 15.04(H) allows service companies, upon generation of used oil during service of oil-fired furnaces used to heat buildings, to assume the role of generator and to self-transport up to 5 gallons of used oil to the company's place of business, as long as basic requirements, such as handling, labeling and spill control measures are met. Upon arrival, the used oil must be transferred to appropriate storage containers or tanks on the premises of the service company who is considered the generator of the used oil and subject to all applicable requirements of section 15.00 of Rhode Island's Used Oil Management Standards. Rhode Island has adopted state requirements which tailor a Federal requirement to address a specific activity in which small amounts of used oil are generated at many sites, including households, which can immediately be removed from the site of generation and consolidated at the generator's site of business. By applying this provision in this way, it is likely to be more protective of human health and the environment in assuring small quantities of used oil are managed properly. Thus, we believe the State regulation is legally consistent and equivalent to and perhaps even more stringent than the Federal used oil program.

(d) Rhode Island has adopted a conditional exemption for oil filters in its Rule 15.01(E) which differs from the Federal exemption of 40 CFR 261.4(b)(13) by allowing cold draining and crushing of the filters whereas the Federal regulation allows only hot draining. The State regulation specifies that any cold draining must include crushing using a mechanical, pneumatic or hydraulic device designed for the purpose of crushing oil filters and effectively removing the oil. This State provision will encourage recycling of used oil by enabling filters from junked vehicles to be managed in accordance with the exemption. Junked vehicles often cannot be started and consequently filters removed from those vehicles cannot meet the hot draining criteria of the Federal regulation. This approach of combining cold draining and crushing used oil filters was adopted by the State of Vermont and authorized by EPA [70 FR 36350, June 23, 2005]. Vermont provided documentation showing that as much or more used oil is removed from used oil filters through cold draining plus crushing than is removed by some of the hot draining methods allowed in the Federal regulation. Thus, while the Rhode Island exemption, like the Vermont exemption, differs from the Federal exemption, the State regulation is at least as stringent as the Federal regulation in requiring the removal of the oil. Note, copies of Vermont's documentation relative to the cold crushing/draining of oil filters has been included in the Administrative Docket to this notice.

Relative to terne-plated filters, the State has also combined the Federal scrap metal exemption at 40 CFR 261.6(a)(3)(ii) as referenced in its definition of hazardous waste at 3.00, with its oil filter exemption at 15.01(E). Rhode Island allows terne-plated filters to be exempt from hazardous waste requirements once they have both been processed to remove excess oil and when the metals are sent offsite for reclamation which is documented. This is equivalent to the combination of the two Federal exemptions.

I. How Does This Action Affect Indian Country (18 U.S.C. 115) in Rhode Island?

Rhode Island is not authorized to carryout its hazardous waste program in Indian country within the State which includes the land of the Narragansett Indian Tribe. Therefore, this action has no effect on Indian country. EPA will continue to implement and administer the RCRA program in these lands.

J. Who Handles Permits After the Authorization Takes Effect?

Rhode Island will issue permits for all the provisions for which it is authorized and will administer the permits it issues. EPA will continue to administer and enforce any RCRA and HSWA (Hazardous and Solid Waste Act) permits or portions of permits which it has issued in Rhode Island prior to the effective date of this authorization until the State incorporates the terms and conditions of the Federal permits into the State RCRA permits. EPA will not issue any more new permits, or new portions of permits, for the provisions listed in this notice above after the effective date of this authorization. EPA will continue to implement and issue permits for any HSWA requirements for which Rhode Island is not yet authorized.

K. What Is Codification and Is EPA Codifying Rhode Island's Hazardous Waste Program as Authorized in This Rule?

Codification is the process of placing the State's statutes and regulations that comprise the State's authorized hazardous waste program into the Code of Federal Regulations. We do this by referencing the authorized State rules in 40 CFR part 272. We reserve the amendment of 40 CFR part 272, subpart UU for this authorization of Rhode Island's program until a later date.

L. Administrative Requirements

The Office of Management and Budget has exempted this action (RCRA State Authorization) from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993); therefore, this action is not subject to review by OMB. This action authorizes State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. 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.). Because this action authorizes pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). For the same reason, this action also does not significantly or uniquely affect Tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action 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 (64 FR 43255, August 10, 1999), because it merely authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001) ) because it is not a significant regulatory action under Executive Order 12866.

Under RCRA 3006(b), EPA grants a State's application for authorization as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. 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. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. 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.).

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 will submit 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. 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 nevertheless will be effective February 11, 2008, because it is an immediate final rule.

List of Subjects in 40 CFR Part 271

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

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

Dated: November 2, 2007.

Robert W. Varney,

Regional Administrator, EPA New England.