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[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 [email protected].

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: rcra-[email protected]. 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 [email protected].

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
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