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Rhode Island: Final Authorization of State Hazardous Waste Management Program Revisions

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: December 11, 2007 (Volume 72, Number 237)]
[Rules and Regulations]
[Page 70229-70234]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11de07-5]

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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 271
[EPA-R01-RCRA-2007-0999; FRL-8504-4]

Rhode Island: Final Authorization of State Hazardous Waste
Management Program Revisions

AGENCY: Environmental Protection Agency (EPA).
ACTION: Immediate final rule.

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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: biscaia.robin@epa.gov.
    • Fax: (617) 918-0642, 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: (617) 918-1990; 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: (401) 222-6822.

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: (617) 918-1642; fax number:
(617) 918-0642, e-mail address: biscaia.robin@epa.gov.

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

[[Page 70230]]

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

[[Page 70231]]

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 Sec. Sec.  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

[[Page 70232]]

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

[[Page 70233]]

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.

[[Page 70234]]

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 (59 FR 22951,
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.
[FR Doc. E7-23946 Filed 12-10-07; 8:45 am]
BILLING CODE 6560-50-P

 
 

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