[Federal Register Volume 63, Number 87 (Wednesday, May 6, 1998)]
[Proposed Rules]
[Pages 25006-25010]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-11377]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 261 and 279

[FRL-5969-3]


Hazardous Waste Management System; Identification and Listing of 
Hazardous Waste; Recycled Used Oil Management Standards

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: Today's proposal would eliminate errors and clarify 
ambiguities in the used oil management standards. Today's proposal, if 
promulgated, would make clear 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 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 proposal would also amend 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.
    In the Final Rules section of today's Federal Register, the U.S. 
Environmental Protection Agency (EPA) is also publishing a parallel 
direct final rule containing identical amendments which will become 
effective unless relevant adverse comments are received in response to 
this rulemaking. For more information on the direct final rulemaking 
process, see the SUPPLEMENTARY INFORMATION section of this document.

DATES: Comments on this proposed rule must be received on or before 
June 5, 1998 and notice of intent to file adverse comments must be 
received on or before May 20, 1998.

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 <a href="/cdn-cgi/l/email-protection#2457474c49454a40500a4548415c6441544549454d480a4154450a434b52"><span class="__cf_email__" data-cfemail="3c4f5f54515d525848125d5059447c594c5d515d555012594c5d125b534a">[email protected]</span></a>.

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: <a href="/cdn-cgi/l/email-protection#3e4c5d4c5f13345a515d555b4a7e5b4e5f535f5752105b4e5f10595148">rcra-
<span class="__cf_email__" data-cfemail="197d767a727c6d597c697874787075377c6978377e766f">[email protected]</span></a>. 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.

[[Page 25007]]

    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 <a href="/cdn-cgi/l/email-protection#5b2932353e333a292f752f34361b3e2b3a363a3237753e2b3a753c342d"><span class="__cf_email__" data-cfemail="3d4f545358555c4f49134952507d584d5c505c545113584d5c135a524b">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION:

Direct Final Rulemaking Process

    In the Final Rules Section of today's Federal Register, EPA is 
issuing a direct final rule with identical amendments which will become 
effective unless relevant adverse comments are received in response to 
this rulemaking. If relevant adverse comment is received on one or more 
of the amendments, EPA will publish timely notification in the Federal 
Register withdrawing the amendment(s) that is the subject of adverse 
comment. Any amendments in this rulemaking that do not receive relevant 
adverse comment will become effective on the date set out in the 
accompanying direct final rule, notwithstanding any adverse comment on 
other portions of this rulemaking. A relevant comment will be 
considered to be any comment substantively criticizing an amendment. 
This 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 proposed 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:

    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.

Official Record

    The official record for this action will be kept in paper form. 
Accordingly, EPA will transfer all comments received electronically 
into paper form and place them in the official record, which will also 
include all comments submitted directly in writing. The official record 
is the paper record maintained at the address in ADDRESSES at the 
beginning of this document.

Response to Comments

    EPA responses to comments, whether the comments are written or 
electronic, will be in a notice in the Federal Register or in a 
response to comments document placed in the official record for this 
rulemaking. EPA will not immediately reply to commenters electronically 
other than to seek clarification of electronic comments that may be 
garbled in transmission or during conversion to paper form, as 
discussed above.

Outline of Today's Document

I. Authority
II. Background and Summary of Proposed 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. Regulatory Requirements
    A. Executive Order No.12866
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    D. Unfunded Mandates Reform Act

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 Proposed Rule

    Today's proposal would make technical corrections and clarify 
ambiguities to existing regulatory language concerning used oil at 40 
CFR Part 279 and 40 CFR Part 261. The

[[Page 25008]]

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 
proposal would eliminate these mistakes and clarify ambiguities in the 
used oil management standards.
    These clarifications and corrections are presented in four separate 
sections, through which the Agency proposes to (1) clarify 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) clarify 
that the response requirements at 40 CFR Part 279 for releases of used 
oil apply in states without RCRA base program authorization; (3) 
clarify 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) amend 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) clarify 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 proposal would amend 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 proposed 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. The 
history of, and rationale for, this change are discussed in the 
recycled used oil notice in the Final Rule section of today's Federal 
Register.

B. Response to Releases of Used Oil

    Today's proposal would amend 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 history of, and rationale for, these 
changes are discussed in the recycled used oil notice in the Final Rule 
section of today's Federal Register.

C. Mixtures of CESQG Wastes and Used Oil

    Today's proposal would amend 40 CFR 261.5(j) to clarify that the 
regulatory provisions that address mixtures of CESQG wastes and used 
oil that are to be recycled, Sec. 261.5(j) and Sec. 279.10(b)(3), do 
not limit the applicability of the used oil management standards to 
such mixtures. Both provisions are intended to indicate 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 history of, 
and rationale for, this change are discussed in the recycled used oil 
notice in the Final Rule section of today's Federal Register.

D. Reference to Used Oil Fuel Specification

    Today's proposal would amend 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 proposal would amend 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 history of, and 
rationale for, this change are discussed in the recycled used oil 
notice in the Final Rule section of today's Federal Register.

IV. 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 proposal will not impact any small entity 
because it does not impose regulatory requirements or otherwise 
substantively change existing requirements. Today's proposal eliminates 
errors and clarifies ambiguities in the used oil management standards 
so as to restore the Agency's

[[Page 25009]]

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 proposal 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 proposal 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 proposal would eliminate errors and clarifies ambiguities in 
the used oil management standards so as to restore the Agency's 
intended result. Thus, today's proposal is not subject to the 
requirements of sections 202 and 205 of the UMRA. Similarly, EPA has 
determined that this proposal contains no regulatory requirements that 
might significantly or uniquely affect small governments.

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), Hazardous 
waste, Polychlorinated biphenyls (PCBs), Solid waste, Recycling, 
Response to releases, Used oil, Used oil specification.

    Dated: April 20, 1998.
Carol M. Browner,
Administrator.

    For the reasons set out in the preamble, chapter I of title 40 of 
the Code of Federal Regulations is proposed to be 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:


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

[[Page 25010]]

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. 98-11377 Filed 5-5-98; 8:45 am]
BILLING CODE 6560-50-P


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