[Federal Register Volume 63, Number 87 (Wednesday, May 6, 1998)]
[Rules and Regulations]
[Pages 24963-24969]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11376]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 261 and 279
[FRL-5969-4]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Recycled Used Oil Management Standards
AGENCY: Environmental Protection Agency (EPA).
ACTION: Direct final rule.
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SUMMARY: Today's direct final rule eliminates errors and clarifies
ambiguities in the used oil management standards. Specifically, this
rule clarifies when used oil contaminated with polychlorinated
biphenyls (PCBs) is regulated under the used oil management standards
and when it is not, that the requirements applicable to releases of
used oil apply in States that
[[Page 24964]]
are not authorized for the RCRA base program, that mixtures of
conditionally exempt small quantity generator (CESQG) wastes and used
oil are subject to the used oil management standards irrespective of
how that mixture is to be recycled, and that the initial marketer of
used oil that meets the used oil fuel specification need only keep a
record of a shipment of used oil to the facility to which the initial
marketer delivers the used oil. Today's rule also amends three
incorrect references to the pre-1992 used oil specifications in the
provisions which address hazardous waste fuel produced from, or oil
reclaimed from, oil bearing hazardous wastes from petroleum refining
operations.
The U.S. Environmental Protection Agency (EPA) is issuing this
regulation as a direct final rule. In the Proposed Rules section of
today's Federal Register, EPA is proposing identical amendments and
soliciting public comment on them. For more information on the direct
final rulemaking process, see the SUPPLEMENTARY INFORMATION section of
this document.
DATES: This direct final rule will become effective on July 6, 1998
unless EPA is notified by May 20, 1998 that any person intends to
submit relevant adverse comment and such comment is submitted by June
5, 1998. If the Agency receives such comment, it will publish timely
notification in the Federal Register withdrawing the amendment(s) that
was the subject of adverse comment.
ADDRESSES:
Intent To Submit Comments
Persons wishing to notify EPA of their intent to submit adverse
comments on this action should contact Alex Schmandt by mail at Office
of General Counsel (2366), U.S. Environmental Protection Agency, 401 M
Street, SW, Washington, DC 20460, by phone at (202) 260-1708, by fax at
(202) 260-0584, or by Internet e-mail at schmandt.alex@epamail.epa.gov.
Submitting Comments
Commenters must send an original and two copies of their comments
referencing docket number F-98-CUOP-FFFFF to: RCRA Docket Information
Center, Office of Solid Waste (5305G), U.S. Environmental Protection
Agency, 401 M Street, SW., Washington, DC 20460. Hand deliveries of
comments should be made to the Arlington, VA, address below. Comments
may also be submitted electronically through the Internet to: docket@epamail.epa.gov. Comments in electronic format should also be
identified by the docket number F-98-CUOP-FFFFF. All electronic
comments must be submitted as an ASCII file avoiding the use of special
characters and any form of encryption.
Commenters should not submit any confidential business information
(CBI) electronically. An original and two copies of CBI must be
submitted under separate cover to: RCRA CBI Document Control Officer,
Office of Solid Waste (5305W), U.S. Environmental Protection Agency,
401 M Street, SW, Washington, DC 20460.
Viewing Docket Materials
Public comments and supporting materials are available for viewing
in the RCRA Information Center (RIC), located at Crystal Gateway I,
First Floor, 1235 Jefferson Davis Highway, Arlington, VA. The Docket
Identification Number is F-98-CUOP-FFFFF. The RIC is open from 9 a.m.
to 4 p.m., Monday through Friday, excluding federal holidays. To review
docket materials, 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 $0.15/
page. The index and some supporting materials are available
electronically. See the SUPPLEMENTARY INFORMATION section for
information on accessing them.
FOR FURTHER INFORMATION CONTACT:
RCRA Hotline. For general information, contact the RCRA Hotline at
(800) 424-9346 or TDD (800) 553-7672 (hearing impaired). In the
Washington, DC metropolitan area, call (703) 412-9810 or TDD (703) 412-
3323.
Rulemaking Details. For more detailed information on specific
aspects of this rulemaking, contact Tom Rinehart by mail at Office of
Solid Waste (5304W), U.S. Environmental Protection Agency, 401 M
Street, SW., Washington, DC 20460, by phone at (703) 308-4309, or by
Internet e-mail at rinehart.tom@epamail.epa.gov.
SUPPLEMENTARY INFORMATION:
Direct Final Rulemaking Process
EPA is issuing this regulation as a direct final rule. In the
Proposed Rules section of today's Federal Register, EPA is proposing
identical amendments and soliciting public comment on them. If relevant
adverse comment is received on one or more of the amendments in the
rulemaking, EPA will publish timely notification in the Federal
Register withdrawing the amendment(s) that is the subject of adverse
comment. Any amendments in today's rulemaking that do not receive
relevant adverse comment will become effective on the date set out
above, notwithstanding any adverse comment on other portions of today's
rulemaking. A relevant comment will be considered to be any comment
substantively criticizing an amendment. The accompanying notice of
proposed rulemaking may serve as the basis of a subsequent final rule
if an amendment that is the subject of adverse comment is withdrawn as
described above. For instructions on notifying EPA of your intent to
comment and for instructions on how to submit comments, please see the
ADDRESSES section above.
Internet Availability
This rule and the following supporting materials are available on
the Internet:
Docket Item: Petition for Review.
From: Edison Electric Institute, et al.
To: U.S. Court of Appeals for the District of Columbia Circuit.
Docket Item: Petitioners' Preliminary and Non-binding Statement of
Issues to be Raised on Appeal.
From: Edison Electric Institute, et al.
To: U.S. Court of Appeals for the District of Columbia Circuit.
Docket Item: Letter describing Edison Electric Institute's
outstanding issues and proposals for resolving these issues.
From: Edison Electric Institute, et al.
To: U.S. Environmental Protection Agency.
Docket Item: Letter describing Edison Electric Institute's issues
including a request that EPA issue a technical correction to 40 CFR
279.10(i).
From: Edison Electric Institute, et al.
To: U.S. Environmental Protection Agency.
Docket Item: Letter requesting that EPA resolve outstanding issues.
From: Edison Electric Institute, et al.
To: U.S. Environmental Protection Agency.
Docket Item: Settlement Agreement.
From: Edison Electric Institute, et al, U.S. Environmental
Protection Agency, and U.S. Department of Justice.
To: U.S. Court of Appeals for the District of Columbia Circuit.
Docket Item: Memorandum that describes an abbreviated state
authorization revision application procedure for state rule changes in
response to minor federal rule changes or corrections.
From: Michael Shapiro, Director, Office of Solid Waste.
To: Regional Waste Management Division Directors.
Follow these instructions to access this information
electronically:
[[Page 24965]]
WWW URL: http://www.epa.gov/epaoswer/hazwaste/usedoil/index.htm.
FTP: ftp.epa.gov.
Login: anonymous.
Password: your Internet e-mail address.
Path: /pub/epaoswer.
Note: The official record for this action will be kept in paper
form and maintained at the address in the ADDRESSES section above.
Outline of Today's Document
I. Authority
II. Background and Summary of Rule
III. Regulatory Amendments
A. Applicability of the Used Oil Management Standards to PCB
Contaminated Used Oil
B. Response to Releases of Used Oil
C. Mixtures of CESQG Wastes and Used Oil
D. Reference to the Used Oil Fuel Specification
E. Clarification of the Recordkeeping Requirements for Marketers
of On-Specification Used Oil
IV. State Authority
V. Regulatory Requirements
A. Executive Order No. 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Unfunded Mandates Reform Act
E. Submission to Congress and the General Accounting Office
VI. Effective Date
I. Authority
These regulations are issued under the authority of sections 1004,
1006, 2002(a), 3001 through 3007, 3010, 3013, 3014, 3016 through 3018,
and 7004 of the Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act, and as amended by the Used Oil Recycling
Act, as amended, 42 U.S.C. 6901, 6905, 6912(a), 6921 through 6927,
6930, 6934, 6935, 6937 through 6939 and 6974.
II. Background and Summary of Rule
Today's direct final rule provides technical corrections and
clarifies ambiguities to existing regulatory language concerning used
oil at 40 CFR part 279 and 40 CFR part 261. The clarification of the
applicability of the used oil management standards to PCB contaminated
used oil is undertaken as part of a settlement agreement in response to
a lawsuit challenging EPA's final rule promulgated on May 3, 1993, (58
FR 26420). Edison Electric Institute v. U.S. EPA (D.C. Circuit No. 93-
1474). The May 1993 rule corrected technical errors and provided
clarifying amendments to the used oil management standards promulgated
on September 10, 1992 (57 FR 41566). In addition, the Agency found
several errors and ambiguities during review of the existing regulatory
language concerning used oil. Today's rule eliminates these mistakes
and clarifies ambiguities in the used oil management standards.
These clarifications and corrections are presented in four separate
sections, through which the Agency is (1) clarifying that used oil
containing 50 ppm or greater PCBs is not subject to regulation under
the used oil management standards at 40 CFR Part 279; (2) clarifying
that the response requirements at 40 CFR part 279 for releases of used
oil apply in states without RCRA base program authorization; (3)
clarifying that mixtures of CESQG waste and used oil are subject to the
used oil management standards regardless of how that mixture is to be
recycled; (4) amending the references to the used oil management
standards in 40 CFR Part 261 to make them consistent with the standards
at 40 CFR Part 279; and (5) clarifying that the initial marketer of
used oil that meets the used oil fuel specification need only keep a
record of a shipment of used oil to the facility to which the initial
marketer delivers the used oil.
III. Regulatory Amendments
A. Applicability of the Used Oil Management Standards to PCB
Contaminated Used Oil
Today's rule amends 40 CFR 279.10(i) to clarify the applicability
of the used oil management standards of 40 CFR part 279 to used oil
containing PCBs. The revised language reflects EPA's intent that used
oil that contains less than 50 ppm of PCBs is subject to regulation
under the used oil management standards. Used oil that contains 50 ppm
or greater of PCBs is not subject to regulation under the used oil
management standards, because the TSCA regulations at 40 CFR part 761
provide comprehensive management of such used oil.
Table 1 shows the applicability of the RCRA and TSCA regulations as
they pertain to used oil containing PCBs that is to be burned for
energy recovery. Used oil that contains PCBs in the range of 2 ppm and
greater and less than 50 ppm that is burned for energy recovery is
regulated by both the TSCA regulations at 40 CFR 761.20(e) and the used
oil management standards at 40 CFR part 279. Please note, under the
TSCA regulations at 40 CFR 761.20(e)(2), used oil that is to be burned
for energy recovery is presumed to contain 2 ppm or greater of PCBs
unless shown otherwise by testing or other information. Used oil that
is to be burned for energy recovery and has been shown to contain less
than 2 ppm PCBs is not regulated under TSCA and is solely regulated
under RCRA.
Table 1.--Regulation of Used Oil Containing PCBs That Is To Be Burned for Energy Recovery Under 40 CFR Part 279
of RCRA and 40 CFR Part 761 of TSCA
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Does RCRA regulate this
Range of PCB contamination levels in used used oil if it is to be Does TSCA regulate this used oil if it
oil (ppm) burned for energy recovery? is to be burned for energy recovery?
----------------------------------------------------------------------------------------------------------------
Demonstrated to contain less than 2...... Yes........................ No.*
2 to less than 50........................ Yes........................ Yes.
50 and greater........................... No......................... Yes.
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* Used oil that is to be burned for energy recovery is presumed to contain 2 ppm or greater of PCBs unless shown
otherwise by testing or other information.
Used oil containing less than 50 ppm PCBs that is recycled other
than being burned for energy recovery is not generally subject to the
TSCA requirements. See 40 CFR 761.3 (definition of excluded PCB
products); 761.20(a)(1); and 761.20(c). However, 40 CFR 761.20(d)
prohibits the use of used oil that contains any detectable
concentration of PCBs as a sealant, coating, or dust control agent.
This prohibition specifically includes road oiling and general dust
control. Use of used oil as a dust suppressant is prohibited under RCRA
except in a state that has received authorization from EPA to allow use
of used oil as a dust suppressant. Currently no states have
[[Page 24966]]
received such authorization. In the event that a state were authorized
to use used oil as a dust suppressant pursuant to 40 CFR 279.82, the
prohibition in 40 CFR 761.20(d) would still apply.
Used oil that contains PCBs may not be diluted to obtain PCB
concentrations less than 50 ppm. See 40 CFR 761.1(b). PCB-containing
used oils that have been diluted so that their concentrations are less
than 50 ppm are still subject to regulation under TSCA as used oil that
contains PCB concentrations of 50 ppm or greater. These diluted used
oils are subject to comprehensive management under TSCA and, therefore,
are not regulated under the RCRA used oil management standards.
RCRA's used oil management standards have historically applied to
used oil containing less than 50 ppm PCBs and not to used oil
containing concentrations of 50 ppm or greater. Prior to the
promulgation of Part 279 in September 1992, the used oil management
standards applied to used oil that contained less than 50 ppm PCBs
pursuant to 40 CFR Part 266, subpart E. The preamble to the September
1992 rule that recodified the provisions from the old Part 266 clearly
indicates EPA's intent not to regulate PCB-contaminated used oil at
levels of 50 ppm and greater under the RCRA used oil management
standards (see 57 FR 41566, 41569, 41583; September 10, 1992), but the
text of the rule did not reference the 50 ppm standard. Instead, the
regulatory text at 40 CFR 279.10(i) purported to exclude from the used
oil management standards those PCB-contaminated used oils already
``regulated under'' the TSCA PCB regulations at 40 CFR Part 761, which
as explained above is a potentially broader universe of material.
Because the September 10, 1992 RCRA rule excluded PCB-contaminated used
oil already ``regulated under'' the TSCA regulations, it could have
been interpreted as excluding used oil containing PCBs at less than 50
ppm from the RCRA used oil management standards.
The May 3, 1993 RCRA rule (58 FR 26420) sought to clarify that the
Part 279 standards apply to used oils containing less than 50 ppm PCBs,
but did so in a manner that inadvertently created the impression that
the used oil management standards also applied to PCB-contaminated used
oils at levels of 50 ppm and greater. Today's rule clarifies the scope
of the RCRA used oil management standards as EPA has consistently
interpreted them.
B. Response to Releases of Used Oil
Today's rule amends 40 CFR 279.22(d), 279.45(h), 279.54(g) and
279.64(g) to clarify that the response requirements for releases of
used oil apply in states that are not authorized for the RCRA base
program pursuant to RCRA Section 3006, 42 U.S.C. 6926, and, hence, that
are not authorized for the used oil management standards. (Base program
authorization refers to the RCRA program initially made available for
final authorization, reflecting Federal regulations as of July 26,
1982.) At this time, Alaska, Hawaii, Iowa, Puerto Rico, the Virgin
Islands, the Northern Mariana Islands and American Samoa do not have an
authorized RCRA base program.
The text and the 1992 preamble discussion of the four provisions
enumerated above appear to limit the cleanup requirements for a release
of used oil to those states and territories that have an authorized
used oil management program. Specifically, Secs. 279.22(d), 279.45(h),
279.54(g) and 279.64(g) provide that the cleanup requirements apply to
releases of used oil that ``occurred after the effective date of the
authorized used oil program for the State in which the release is
located'' (emphasis added). Furthermore, the preamble discussion of
these provisions state that ``[T]his requirement does not apply to past
releases of used oil that occurred prior to the effective date of the
used oil program within an authorized state in which the facility is
located.'' 57 FR 41566 at 41586, 41592, 41596, 41600, September 10,
1992 (emphasis added).
Notwithstanding any ambiguity in the regulatory text, EPA's intent
in limiting the cleanup requirements--to releases of used oil that
occurred after the effective date of the authorized used oil program
for the State in which the release is located--was to provide a
temporal limitation on when the response to release requirements were
to take effect. The federal used oil management standards incorporated
into Part 279 created for the most part a new regulatory scheme for the
management of used oil. (If these standards were to include cleanup
requirements for spills of used oil it was important to clarify that
such cleanup requirements would only apply to spills that occurred
after the new requirements were in effect.) The language in
Secs. 279.22(d), 279.45(h), 279.54(g) and 279.64(g) provided a temporal
limitation by imposing the cleanup requirements on those releases that
occur ``after the effective date of the authorized used oil program for
the State in which the release is located.'' The 1992 preamble
discussion of the response to releases requirements makes this point
explicitly in stating that ``[T]his requirement does not apply to past
releases of used oil that occurred prior to the effective date of the
used oil program within an authorized state in which the facility is
located.'' 57 FR 41566 at 41586, 41592, 41596, 41600, September 10,
1992. The language, therefore, clarified that the regulation applied
prospectively only and that other authorities would be used for pre-
existing releases.
Today's rule clarifies that the cleanup requirements apply to
releases of used oil that occurred after the effective date of the
recycled used oil management program in effect in the State in which
the facility is located. In states that do not have RCRA authorization,
the recycled used oil management program in effect is the federal
program of used oil management standards at 40 CFR Part 279, which
became effective in these states on March 8, 1993. See 58 FR 26420, May
3, 1993. In authorized RCRA states, only states that are authorized for
the used oil management standards have a recycled used oil management
program in effect; these programs take effect on the effective date of
the final rule that authorizes the state for the used oil management
standards.
C. Mixtures of CESQG Wastes and Used Oil
Today's rule harmonizes the applicability of 40 CFR Part 261 and
Part 279 to mixtures of conditionally exempt small quantity generators
(CESQG) wastes and used oil that are to be recycled. Although CESQG
wastes are not regulated as hazardous wastes, mixtures of CESQG wastes
and used oil that are to be recycled are regulated as used oil under
the used oil management standards. Notwithstanding EPA's regulatory
intent, the CESQG provision, 40 CFR 261.5(j), that references the
applicability of the used oil management standards to mixtures of CESQG
wastes and used oil that are to be recycled, appears to limit the
applicability of the used oil management standards to mixtures that are
to be recycled by burning for energy recovery. Section 261.5(j),
therefore, incorrectly suggests that mixtures of CESQG wastes and used
oil that are to be recycled in a manner other than by burning for
energy recovery, such as by re-refining, would not be subject to the
used oil management standards. Indeed, because CESQG wastes are not
regulated as hazardous wastes, Sec. 261.5(j) would suggest that such
mixtures that are re-refined would not be subject to
[[Page 24967]]
regulation under RCRA Subtitle C or the used oil management standards.
The used oil management standards, however, apply to used oil to be
recycled irrespective of what form of recycling is to be employed. By
its terms, the presumption in 40 CFR 279.10(a) that used oil is to be
recycled (such that used oil is presumptively subject to the used oil
management standards, unless it is disposed or sent for disposal),
encompasses any type of recycling. The recycling presumption does not,
for instance, condition the applicability of the used oil management
standards on whether used oil is recycled by burning for energy
recovery or by re-refining. To the extent that Part 279 applies to used
oil that is to be recycled without regard to how the used oil is to be
recycled, Part 279 applies equally to mixtures of used oil and CESQG
wastes that are to be recycled irrespective of how that mixture is to
be recycled.
The regulatory provisions that address mixtures of CESQG wastes and
used oil to be recycled, Sec. 261.5(j) and Sec. 279.10(b)(3), are both
intended to clarify that mixtures of CESQG wastes and used oil are
subject to the used oil management standards, notwithstanding the
conditional exemption of small quantity generator wastes from
regulation as a hazardous waste. The apparent limitation contained in
Sec. 261.5(j), which would limit the applicability of the used oil
management standards to mixtures to be burned for energy recovery, is
an artifact of the pre-1992 used oil regulations at 40 CFR Part 266,
which only regulated the burning of used oil. When the expanded used
oil management standards were promulgated on September 10, 1992, the
Agency inadvertently failed to amend Sec. 261.5(j) to reflect the
broader scope of the new Part 279. Indeed, the corresponding provision
in Part 279 that addresses mixtures of CESQG wastes and used oil to be
recycled, Sec. 279.10(b)(3), does not contain the apparent limitation
found in Sec. 261.5(j) that would limit the applicability of the used
oil management standards to mixtures to be burned for energy recovery.
Today's rule amends Sec. 261.5(j) as it should have been amended in
1992 to reflect the greater scope of Part 279 and to eliminate any
potential ambiguity over the applicability of the used oil management
standards to mixtures of CESQG wastes and used oil to be recycled.
D. References to the Used Oil Fuel Specification
Today's rule amends 40 CFR 261.6(a)(3)(iv)(A)-(C) to reflect the
recodification of the used oil requirements at 40 CFR Part 279. The
three provisions address hazardous waste fuel produced from, or oil
reclaimed from, oil bearing hazardous wastes from petroleum refining
operations. All three provisions incorrectly reference the pre-1992
used oil fuel specification provision, Sec. 266.40(e), which was
recodified in 1992 at Sec. 279.11. These provisions should have been
amended in 1992.
E. Clarification of the Recordkeeping Requirements for Marketers of On-
Specification Used Oil
Today's rule amends 40 CFR 279.74(b) to clarify that the marketer
who first claims that used oil that is to be burned for energy recovery
meets the fuel specification (on-specification used oil) must only keep
a record of a shipment of used oil to the facility to which the initial
marketer delivers the used oil. The preamble to the November 29, 1985
rule (50 FR 49164 at 49189) clearly describes the agency's intent to
only track on-specification used oil that is to be burned for energy
recovery one step beyond the initial marketer. When these recordkeeping
requirements were recodified at 40 CFR 279.74(b) (57 FR 41566,
September 10, 1992), the regulations required that a marketer must keep
a record of each shipment of used oil to an on-specification used oil
burner. However, the marketer who first claims that used oil that is to
be burned for energy recovery meets the fuel specification might choose
not to market the used oil directly to an on-specification used oil
burner (i.e. a non-industrial oil burner). Instead, the on-
specification used oil might be marketed to a fuel oil distributor for
subsequent sale as fuel oil. In this situation, Sec. 279.74(b) could be
interpreted to require the initial marketer of the on-specification
used oil to keep a record of all subsequent shipments of that used oil
until the on-specification used oil reaches a used oil burner. Today's
rule clarifies that the initial marketer of on-specification used oil
must only keep a record of a shipment of used oil to the facility to
which the initial marketer delivers the used oil. The initial marketer
need not keep a record of any subsequent transfers of this used oil.
For example, the initial marketer would need to keep a record of a
shipment of on-specification used oil to a fuel oil distributor, but
the initial marketer would not need to keep records of shipments of
this used oil from the fuel oil distributor to fuel oil burners or
other fuel oil distributors.
IV. State Authority
Under Section 3006 of RCRA, EPA may authorize qualified States to
administer and enforce the RCRA program within the State. Following
authorization, EPA retains enforcement authority under Sections 3008,
3013, and 7003 of RCRA, although authorized States have primary
enforcement responsibility. The standards and requirements for
authorization are found in 40 CFR part 271.
Today's amendments are not imposed pursuant to the Hazardous and
Solid Waste Amendments of 1984 (HSWA). Therefore, these corrections and
clarifications will become effective immediately only in those States
without interim or final authorization, not in authorized States.
Today's rule corrects and clarifies the scope of certain regulatory
requirements and is, therefore, considered to be no more stringent than
the existing federal standards. Authorized States are only required to
modify their programs when EPA promulgates federal regulations that are
more stringent or broader in scope than the existing federal
regulations. Therefore, States that are authorized for the used oil
management standards are not required to modify their programs to adopt
today's rule. However, EPA strongly urges States to do so.
Given the minor scope of today's amendments, those States that are
authorized for the used oil management standards may submit an
abbreviated authorization revision application to the Region for
today's amendments. This application should consist of a letter from
the State to the appropriate Regional office, certifying that it has
adopted provisions equivalent to and no less stringent than today's
final rule (see the December 19, 1994, memorandum from Michael Shapiro,
Director of the Office of Solid Waste, to the EPA Regional Division
Directors that is in the docket for today's rule). The State should
also submit a copy of its final rule or other authorizing authority.
Revisions to the revised Program Description, Memorandum of Agreement,
and Attorney General's statement are not necessary because today's rule
merely corrects and clarifies the scope of certain regulatory
requirements (Sec. 271.21(b)(1)). EPA expects that this simplified
process will expedite the review of the authorization submittal for
this rule.
[[Page 24968]]
V. Regulatory Requirements
A. Executive Order 12866
Under Executive Order 12866 (58 FR 51735, October 4, 1993), the
Agency must determine whether this regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant'' regulatory action as
one that is likely to lead to a rule that may:
(1) Have an annual effect on the economy of $100 million or more,
or adversely and materially affect a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlement, grants,
user fees, or loan programs or the rights and obligations of recipients
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the Executive Order.
OMB has reviewed this rule and has determined it to be ``not
significant'' under the terms of the Executive Order.
B. Regulatory Flexibility Act
The Regulatory Flexibility Act, 5 U.S.C. 601-602, requires that
Federal agencies examine the impacts of their regulations on ``small
entities''. If a rulemaking will have a significant impact on a
substantial number of small entities, agencies must consider regulatory
alternatives that minimize economic impact.
EPA believes that today's rule will not impact any small entity
because it does not impose regulatory requirements or otherwise
substantively change existing requirements. Today's rule eliminates
errors and clarifies ambiguities in the used oil management standards
so as to restore the Agency's intended result. Therefore, I certify
pursuant to 5 U.S.C. 601 et seq., that this rule will not have a
significant impact on a substantial number of small entities.
C. Paperwork Reduction Act
Under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq., EPA must
consider the paperwork burden imposed by any information collection
request in a proposed or final rule. This rule will not impose any new
information collection requirements.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.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. When a written statement is needed for any EPA rule, 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, giving
them meaningful and timely input in the development of EPA regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising them on compliance with the
regulatory requirements.
Today's rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments or the private sector because it does not impose regulatory
requirements or otherwise substantively change existing requirements.
Today's rule eliminates errors and clarifies ambiguities in the used
oil management standards so as to restore the Agency's intended result.
Thus, today's rule is not subject to the requirements of sections 202
and 205 of the UMRA. Similarly, EPA has determined that this rule
contains no regulatory requirements that might significantly or
uniquely affect small governments.
E. Submission to Congress and the General Accounting Office
Under 5 U.S.C. 801(a)(1)(A), 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 5 U.S.C.
804(2).
VI. Effective Date
Because the regulated community does not need 6 months to come into
compliance with this rule, EPA finds, pursuant to RCRA section
3010(b)(1), that this rule can be made effective in less than six
months.
List of Subjects
40 CFR Part 261
Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.
40 CFR Part 279
Conditionally exempt small quantity generator (CESQG),
Environmental protection, Hazardous waste, Polychlorinated biphenyls
(PCBs), Solid waste, Recycling, Response to releases, Used oil, Used
oil specification.
Dated: April 20, 1998.
Carol Browner,
Administrator.
For the reasons set out in the preamble, Chapter I of Title 40 of
the Code of Federal Regulations is amended as follows:
PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE
1. The authority citation for Part 261 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935,
6937, 6938, 6939, and 6974.
Sec. 261.5 [Amended]
2. Section 261.5(j) is amended by removing both phrases, ``if it is
destined to be burned for energy recovery''.
Sec. 261.6 [Amended]
3. In Sec. 261.6 paragraphs (a)(3)(iv)(A)-(C) are amended by
revising the reference ``266.40(e)'' to read ``279.11''.
PART 279--STANDARDS FOR THE MANAGEMENT OF USED OIL
4. 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(c) of CERCLA (42 U.S.C. 9601(37) and
9614(c)).
5. Section 279.10 is amended by revising paragraph (i) to read as
follows:
[[Page 24969]]
Sec. 279.10 Applicability.
* * * * *
(i) Used oil containing PCBs. Used oil containing PCBs (as defined
at 40 CFR 761.3) at any concentration less than 50 ppm is subject to
the requirements of this part. Used oil subject to the requirements of
this Part may also be subject to the prohibitions and requirements
found at 40 CFR Part 761, including Sec. 761.20(d) and (e). Used oil
containing PCBs at concentrations of 50 ppm or greater is not subject
to the requirements of this part, but is subject to regulation under 40
CFR part 761.
6. Section 279.22 is amended by revising paragraph (d) to read as
follows:
Sec. 279.22 Used oil storage.
* * * * *
(d) Response to releases. Upon detection of a release of used oil
to the environment that is not subject to the requirements of part 280,
subpart F of this chapter and which has occurred after the effective
date of the recycled used oil management program in effect in the State
in which the release is located, a generator must perform the following
cleanup steps:
(1) Stop the release;
(2) Contain the released used oil;
(3) Clean up and manage properly the released used oil and other
materials; and
(4) If necessary, repair or replace any leaking used oil storage
containers or tanks prior to returning them to service.
7. Section 279.45 is amended by revising paragraph (h) to read as
follows:
Sec. 279.45 Used oil storage at transfer facilities.
* * * * *
(h) Response to releases. Upon detection of a release of used oil
to the environment that is not subject to the requirements of part 280,
subpart F of this chapter and which has occurred after the effective
date of the recycled used oil management program in effect in the State
in which the release is located, the owner/operator of a transfer
facility must perform the following cleanup steps:
(1) Stop the release;
(2) Contain the released used oil;
(3) Clean up and manage properly the released used oil and other
materials; and
(4) If necessary, repair or replace any leaking used oil storage
containers or tanks prior to returning them to service.
8. Section 279.54 is amended by revising paragraph (g) to read as
follows:
Sec. 279.54 Used oil management.
* * * * *
(g) Response to releases. Upon detection of a release of used oil
to the environment that is not subject to the requirements of part 280,
subpart F of this chapter and which has occurred after the effective
date of the recycled used oil management program in effect in the State
in which the release is located, an owner/operator must perform the
following cleanup steps:
(1) Stop the release;
(2) Contain the released used oil;
(3) Clean up and manage properly the released used oil and other
materials; and
(4) If necessary, repair or replace any leaking used oil storage
containers or tanks prior to returning them to service.
* * * * *
9. Section 279.64 is amended by revising paragraph (g) to read as
follows:
Sec. 279.64 Used oil storage.
* * * * *
(g) Response to releases. Upon detection of a release of used oil
to the environment that is not subject to the requirements of part 280,
subpart F of this chapter and which has occurred after the effective
date of the recycled used oil management program in effect in the State
in which the release is located, a burner must perform the following
cleanup steps:
(1) Stop the release;
(2) Contain the released used oil;
(3) Clean up and manage properly the released used oil and other
materials; and
(4) If necessary, repair or replace any leaking used oil storage
containers or tanks prior to returning them to service.
10. Section 279.74 is amended by revising paragraph (b) to read as
follows:
Sec. 279.74 Tracking.
* * * * *
(b) On-specification used oil delivery. A generator, transporter,
processor/re-refiner, or burner who first claims that used oil that is
to be burned for energy recovery meets the fuel specifications under
Sec. 279.11 must keep a record of each shipment of used oil to the
facility to which it delivers the used oil. Records for each shipment
must include the following information:
(1) The name and address of the facility receiving the shipment;
(2) The quantity of used oil fuel delivered;
(3) The date of shipment or delivery; and
(4) A cross-reference to the record of used oil analysis or other
information used to make the determination that the oil meets the
specification as required under Sec. 279.72(a).
* * * * *
[FR Doc. 98-11376 Filed 5-5-98; 8:45 am]
BILLING CODE 6560-50-P
