[Federal Register Volume 61, Number 126 (Friday, June 28, 1996)]
[Rules and Regulations]
[Pages 33691-33693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16582]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 279
[FRL-5529-1]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Recycled Used Oil Management Standards
AGENCY: Environmental Protection Agency.
ACTION: Final rule, notice of judicial vacatur of administrative stay.
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SUMMARY: On January 19, 1996, the United States Court of Appeals for
the District of Columbia Circuit vacated the Environmental Protection
Agency's (EPA) October 30, 1995, administrative stay of part of the
regulatory provision, known as the ``used oil mixture rule', set forth
in 40 CFR 279.10(b)(2). The provisions of the used oil mixture rule at
issue relate to mixtures of used oil destined for recycling and
characteristic hazardous waste (including waste listed as hazardous
because it exhibits a hazardous waste characteristic). This action
clarifies the regulatory status of mixtures of used oil and the
hazardous wastes destined for recycling described above in light of the
Court's vacatur of the administrative stay and eliminates the
explanatory note to 40 CFR 279.10(b)(2) that was included in the notice
of the administrative stay. In addition it notifies the public as to
the provisions of a recent EPA proposal that may affect such mixtures.
EFFECTIVE DATE: June 28, 1996.
ADDRESSES: EPA does not seek comment on this notice, however any data
the public wishes EPA to consider concerning mixtures of used oil and
characteristic hazardous waste should be submitted to the public
docket. Submissions should include the original and two copies, should
reference docket No. F-96-U2SW-FFFFF, and should be addressed to: RCRA
Docket Information Center, Office of Solid Waste (5305W), U.S.
Environmental Protection Agency Headquarters, 401 M Street, SW.,
Washington, DC 20460. Hand deliveries should be made to the RCRA
Information Center (RIC), located at Crystal Gateway I, First Floor,
1235 Jefferson Davis Highway, Arlington, VA. The RIC is open from 9:00
to 4:00, Monday through Friday, except federal holidays. To review
docket materials at the RIC, it is recommended that the public make an
appointment by calling 703 603-9230. The public may copy a maximum of
100 pages from any regulatory docket at no charge. Additional copies
cost $.15 per page.
FOR FURTHER INFORMATION CONTACT: For general information contact the
RCRA Hotline at 800 424-9346 or TDD 800 553-7672 (hearing impaired). In
the Washington D.C. metropolitan area at 703 412-9810 or TDD 703 412-
3323. For more detailed information on specific aspects of this action,
contact Tracy Bone, Office of Solid Waste (5304w), U.S. EPA, D.C.,
20460 at 703 308-8826.
SUPPLEMENTARY INFORMATION:
Background Information
Legal Challenge to the Used Oil Mixture Rule. On September 10,
1992, EPA promulgated regulations pursuant to section 3014(a) of the
Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6935(a),
governing the management of used oil destined for recycling. 57 FR
41566 (September 9, 1992). These regulations are codified at 40 CFR
Part 279. As part of these regulations, EPA promulgated a used oil
mixture rule, 40 CFR 279.10(b), that specifies when mixtures of used
oil destined for recycling and hazardous waste are regulated as used
oil and when they are regulated as hazardous waste. Among other things,
the used oil mixture rule specifies that mixtures of used oil destined
for recycling and characteristic hazardous waste are regulated as a
hazardous waste under Subtitle C of RCRA only if the resultant mixture
exhibits a hazardous waste characteristic. 40 CFR 279.10(b)(2)(I). If
the mixture does not exhibit a hazardous waste characteristic, it is
regulated under the used oil management standards, and the hazardous
waste regulations (including those relating to land-disposal
restrictions (LDRs)) are inapplicable to the mixture. Further, wastes
which are hazardous solely because they exhibit the characteristic of
ignitability may be mixed with used oil and the mixture regulated as
used oil so long as the mixture does not exhibit the characteristic of
ignitability (despite exhibiting any of the other characteristics). 40
CFR 279.10(b)(2)(ii)-(iii). The hazardous waste regulations and LDR
requirements continue to apply to the hazardous waste prior to mixing
with used oil.
Petitions for review challenging EPA's used oil mixture rule
subsequently were filed in the United States Court of Appeals for the
District of Columbia Circuit. Petitioners argued, in relevant part,
that the provision of the management standards which governed mixtures
of recycled used oil and characteristic hazardous waste was
inconsistent with the Court's decision in Chemical Waste Management,
Inc. v. EPA, 976 F.2d 2 (D.C. Cir. 1992), cert. denied, 113 S. Ct. 1961
(1993) (``Chem Waste''). Chem Waste, which was issued two weeks after
the management standards were promulgated, held that EPA could not
allow certain wastes exhibiting the hazardous characteristics of
ignitability, reactivity, or corrosivity to be diluted to eliminate the
characteristic and then be land-disposed unless the hazardous
constituents in the waste were adequately treated to minimize threats
to human health and the environment.
On September 12, 1994, petitioner, Safety-Kleen, and EPA filed a
joint motion requesting the Court to vacate the mixture provision and
remand the issue to EPA. Intervenors in the Safety-Kleen litigation
opposed this motion. On September 15, 1994, the Court remanded the
record in this matter to EPA, stating: ``If the EPA determines that its
rule is invalid, [citation omitted], it can proceed accordingly.''
Order (Sept. 15, 1994) (citing American Tele. & Telegraph Co. v. FCC,
978 F.2d 727, 733 (D.C. Cir. 1992)). The Court did not vacate the
mixture rule.
Administrative Stay of the Used Oil Mixture Rule. In 1995, EPA
issued an order staying the used oil mixture rule. The Agency
determined that a stay was necessary to the effective implementation of
the recycled used oil management program, pending the Agency's
completion of a rulemaking on the issue of whether the used oil mixture
rule should be modified or repealed in light of the Court's decision in
Chem Waste. See 60 FR 55202 (Oct. 30, 1995).
On January 19, 1996, the Court, in ruling on a motion filed by the
intervenors, vacated the Administrative stay. The Court explained that
EPA could not suspend a promulgated rule without notice and comment.
The Court further noted that, if EPA determines that the used oil
mixture rule is invalid, it may be able to rely on the good cause
exception, 5 U.S.C. 553(b), to vacate the rule without notice and
comment rulemaking.
Effect of the Court's Vacatur of the Administrative Stay. The
vacatur of the administrative stay reinstates the used oil mixture rule
found at 40 CFR 279.10(b)(2) as part of the federal used oil management
standards. Accordingly, as a matter of federal RCRA law, the regulated
community may mix certain characteristic hazardous wastes and used oil
to be recycled (e.g., mixtures of solvents compatible with the use of
[[Page 33692]]
used oil as fuel) without triggering LDR requirements. Of course,
whether the used oil mixture rule is in effect in a particular state
depends on whether a state is, or is not, authorized to administer and
enforce the RCRA program. Furthermore, whether a used oil mixture
provision is in effect in an authorized state, depends on whether the
state has adopted such a provision under its state law and whether EPA
has authorized the state to administer and enforce such a provision.
The vacatur of the administrative stay only had an immediate impact
on the RCRA requirements for the regulated community in the states and
territories that did not have an authorized state RCRA program at the
time the administrative stay became effective (e.g., Alaska, Hawaii,
Iowa and Puerto Rico). The vacatur immediately reinstated the federal
used oil mixture rule in these four states and territories, because the
regulated community in these states and territories, in the absence of
an authorized state RCRA program, is subject to the federal RCRA
regulations. The regulated community in these states and territories,
therefore, may continue to manage mixtures of used oil destined for
recycling and characteristic hazardous waste as used oil to the extent
allowed under the federal used oil management standards.
The administrative stay of the federal used oil mixture rule, and
its subsequent vacatur, did not affect the legal obligations of the
regulated community in the forty-nine states and territories with an
authorized state RCRA program, because the regulated community in a
state with an authorized RCRA state program is subject to the
applicable state, not federal, regulations. None of the authorized
states revised their programs to incorporate the stay during the three
weeks that the stay was in effect. Accordingly, after the vacatur of
the stay (as well as at the time that the stay was in effect) the
regulated community in the authorized states remains subject to those
state used oil regulations, including any state used oil mixture
provisions, that were in effect prior to the issuance of the
administrative stay. In those states that are authorized for both the
RCRA program and the used oil mixture rule the regulated community may
continue to rely on the state used oil mixture rule applicable in that
state. In those states that are authorized for the RCRA program but not
for the used oil mixture rule, the regulated community cannot use the
used oil mixture rule until a state obtains authorization for the rule
as part of its RCRA program. States not already authorized for the used
oil mixture rule may wish to consider not seeking such authorization
until the validity of the used mixture rule is determined.
In light of the D.C. Circuit's vacatur of the administrative stay
of the rule, EPA is deleting the explanatory note added to 40 CFR
Section 279.10(b)(2) in the notice of the administrative stay, to
withdraw the notice of the administrative stay. See 60 FR 55202, 55206
(Oct. 30, 1995).
Comparable Fuel Provisions of EPA's Revised Standards for Hazardous
Waste Combustors. On April 19, 1996, the Agency proposed the Hazardous
Waste Combustion Rule in which the discussion of ``Small Business
Considerations'' may be of particular interest to used oil handlers (61
FR 17468). Small businesses may, hypothetically, generate wastes (such
as mineral spirits used to clean automotive parts) that could meet a
comparable fuel specification as a class. In this section the Agency
proposes to consider a petition process through which classes of
generators could document that a specific type of waste is consistently
likely to meet the comparable fuel specification. By promulgating such
a provision, EPA could allow classes of materials from specific small
businesses to be excluded from RCRA jurisdiction without following the
detailed implementation requirements that are associated with waste
stream specific application of the comparable fuels exclusion. Such an
outcome would need to be supported by data reviewed by the authorized
regulatory agency and would be the subject of notice and comment
rulemaking.
If the Agency granted such a petition through rulemaking, such
waste would be classified as inherently comparable fuel. As such, the
generator would not be subject to the proposed implementation
requirements for the comparable fuel exclusion: notification, sampling
and analysis, and record keeping. In addition, such inherently
comparable fuel could be blended, treated, and shipped off-site without
restriction because they had been excluded from regulation as a
hazardous waste. Such comparable fuels could then be mixed with used
oil and burned according to Part 279 without the land disposal
restrictions or other hazardous waste regulations applying.
Regulatory Requirements
A. Regulatory Flexibility Act
This action makes a technical amendment to the CFR, and does not
impose any requirements on regulated entities. Therefore, EPA certifies
that this action will not have a significant impact on a substantial
number of small entities.
B. Executive Order 12866 and the Paperwork Reduction Act
This action is exempt from review by the Office of Management and
Budget under Executive Order 12866. This action does not impose any
reporting or record keeping requirements.
C. Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub.
L. 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
Today's technical amendment contains no Federal mandates (under the
regulatory provisions of Title II of the UMRA) for State, local, or
tribal governments or the private sector. Thus, today's rule is not
subject to the requirements of sections 202 and 205 of the UMRA.
[[Page 33693]]
D. Submission to Congress and the General Accounting Office
Under section 801(a)(1)(A) of the Administrative Procedures Act
(APA) as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996, EPA submitted a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives and the Comptroller General of the General Accounting
Office prior to publication of the rule in today's Federal Register.
This rule is not a ``major rule'' as defined by section 804(2) of the
APA as amended.
List of Subjects in 40 CFR Part 279
Environmental protection, Hazardous waste, Recycling, Used oil.
Dated: June 20, 1996.
Elliott Laws,
Assistant Administrator.
For the reasons set out in the preamble, title 40 of the Code of
Federal Regulations is amended as follows:
PART 279--STANDARDS FOR THE MANAGEMENT OF USED OIL
1. The authority citation for part 279 continues to read as
follows:
Authority: Sections 1006, 2002(a), 3001 through 3007, 3010,
3014, and 7004 of the Solid Waste Disposal Act, as amended (42
U.S.C. 6905, 6912(a), 6921 through 6927, 6930, 6934, and 6974); and
Sections 101(37) and 114 of CERCLA (42 U.S.C. 9601(37)
and 9614(c)).
Sec. 279.10 [Amended]
2. Section 279.10 is amended by removing the note immediately after
paragraph (b)(2)(iii).
[FR Doc. 96-16582 Filed 6-27-96; 8:45 am]
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