[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]]

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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.

-----------------------------------------------------------------------

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).
---------------------------------------------------------------------------

    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