Federal Register / Vol. 63, No. 87 /Wednesday, May 6, 1998 /Rules and Regulations 24963

material submitted shows the following:

There is genuine and substantial issue

of fact; there is a reasonable possibility

that available evidence identified by the

requestor would, if established, resolve

one or more of such issues in favor of

the requestor, taking into account

uncontested claims or facts to the

contrary; and resolution of the factual

issues in the manner sought by the

requestor would be adequate to justify

the action requested (40 CFR 178.32).

Information submitted in connection

with an objection or hearing request

may be claimed confidential by marking

any part or all of that information as

CBI. Information so marked will not be

disclosed except in accordance with

procedures set forth in 40 CFR part 2.

A copy of the information that does not

contain CBI must be submitted for

inclusion in the public record.

Information not marked confidential

may be disclosed publicly by EPA

without prior notice.

VI. Public Docket

EPA has established a record for this

rulemaking under docket control

number [OPP–300655] (including any

comments and data submitted

electronically). A public version of this

record, including printed, paper

versions of electronic comments, which

does not include any information

claimed as CBI, is available for

inspection from 8:30 a.m. to 4 p.m.,

Monday through Friday, excluding legal

holidays.

The public record is located in Room

119 of the Public Information and

Records Integrity Branch, Information

Resources and Services Division

(7502C), Office of Pesticide Programs,

Environmental Protection Agency,

Crystal Mall #2, 1921 Jefferson Davis

Hwy., Arlington, VA.

Electronic comments may be sent

directly to EPA at:

opp-docket@epamail.epa.gov.

Electronic comments must be

submitted as an ASCII file avoiding the

use of special characters and any form

of encryption.

The official record for this

rulemaking, as well as the public

version, as described above will be kept

in paper form. Accordingly, EPA will

transfer any copies of objections and

hearing requests received electronically

into printed, paper form as they are

received and will place the paper copies

in the official rulemaking record which

will also include all comments

submitted directly in writing. The

official rulemaking record is the paper

record maintained at the Virginia

address in ‘‘ADDRESSES’’ at the

beginning of this document.

VII. Regulatory Assessment

Requirements

This final rule establishes an

exemption from the requirement of a

tolerance under FFDCA section 408(d)

in response to a petition submitted to

the Agency. The Office of Management

and Budget (OMB) has exempted these

types of actions from review under

Executive Order 12866, entitled

Regulatory Planning and Review (58 FR

51735, October 4, 1993).

This final rule does not contain any

information collections subject to OMB

approval under the Paperwork

Reduction Act (PRA), 44 U.S.C. 3501 et

seq., or impose any enforceable duty or

contain any unfunded mandate as

described under Title II of the Unfunded

Mandates Reform Act of 1995 (UMRA)

(Pub. L. 104–4). Nor does it require any

prior consultation as specified by

Executive Order 12875, entitled

Enhancing the Intergovernmental

Partnership (58 FR 58093, October 28,

1993), or special considerations as

required by Executive Order 12898,

entitled Federal Actions to Address

Environmental Justice in Minority

Populations and Low-Income

Populations (59 FR 7629, February 16,

1994), or require OMB review in

accordance with Executive Order 13045,

entitled Protection of Children from

Environmental Health Risks and Safety

Risks (62 FR 19885, April 23, 1997).

In addition, since these tolerances and

exemptions that are established on the

basis of a petition under FFDCA section

408(d), such as the exemption in this

final rule, do not require the issuance of

a proposed rule, the requirements of the

Regulatory Flexibility Act (RFA) (5

U.S.C. 601 et seq.) do not apply.

Nevertheless, the Agency has previously

assessed whether establishing

tolerances, exemptions from tolerances,

raising tolerance levels or expanding

exemptions might adversely impact

small entities and concluded, as a

generic matter, that there is no adverse

economic impact. The factual basis for

the Agency’s generic certification for

tolerance actions published on May 4,

1981 (46 FR 24950) and was provided

to the Chief Counsel for Advocacy of the

Small Business Administration.

VIII. Submission to Congress and the

General Accounting Office

Under 5 U.S.C. 801(a)(1)(A), as added

by the Small Business Regulatory

Enforcement Fairness Act of 1996, the

Agency has 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 this rule in today’s Federal Register.

This is not a ‘‘major rule’’ as defined by

5 U.S.C. 804(2).

List of Subjects in 40 CFR Part 180

Environmental protection,

Administrative practice and procedure,

Agricultural commodities, Pesticides

and pests, Reporting and recordkeeping

requirements.

Dated: April 30, 1998.

Frank Sanders,

Director, Antimicrobials Division, Office of

Pesticide Programs.

Therefore, 40 CFR chapter I is

amended as follows:

PART 180— [AMENDED]

1. The authority citation for part 180

continues to read as follows:

Authority: 21 U.S.C. 346a and 371.

2. Section 180.1197 is added to read

as follows:

§ 180.1197 Hydrogen peroxide; exemption

from the requirement of a tolerance.

An exemption from the requirement

of a tolerance is established for residues

of hydrogen peroxide up to 120 ppm in

or on raw agricultural commodities, in

processed commodities, when such

residues result from the use of hydrogen

peroxide as an antimicrobial agent on

fruits, tree nuts, cereal grains, herbs, and

spices.

[FR Doc. 98–12037 Filed 5–5–98; 8:45 am]

BILLING CODE 6560–50–F

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.

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
24964 Federal Register / Vol. 63, No. 87 /Wednesday, May 6, 1998 /Rules and Regulations

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:

rcra-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:
Federal Register / Vol. 63, No. 87 /Wednesday, May 6, 1998 /Rules and Regulations 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 OnSpecification 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

Range of PCB contamination levels in used oil (ppm) Does RCRA regulate this used oil if it

is to be burned for energy recovery?

Does TSCA regulate

this used oil if it 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.

* 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
24966 Federal Register / Vol. 63, No. 87 /Wednesday, May 6, 1998 /Rules and Regulations

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 PCBcontaminated 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,

§§ 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 §§ 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 preexisting 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, § 261.5(j) would

suggest that such mixtures that are rerefined would not be subject to
Federal Register / Vol. 63, No. 87 /Wednesday, May 6, 1998 /Rules and Regulations 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, § 261.5(j) and

§ 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

§ 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 § 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, § 279.10(b)(3), does not

contain the apparent limitation found in

§ 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 § 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,

§ 266.40(e), which was recodified in

1992 at § 279.11. These provisions

should have been amended in 1992.

E. Clarification of the Recordkeeping

Requirements for Marketers of OnSpecification 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 onspecification used oil burner (i.e. a nonindustrial oil burner). Instead, the onspecification used oil might be marketed

to a fuel oil distributor for subsequent

sale as fuel oil. In this situation,

§ 279.74(b) could be interpreted to

require the initial marketer of the onspecification 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 onspecification 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 (§ 271.21(b)(1)). EPA

expects that this simplified process will

expedite the review of the authorization

submittal for this rule.
24968 Federal Register / Vol. 63, No. 87 /Wednesday, May 6, 1998 /Rules and Regulations

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.

§ 261.5 [Amended]

2. Section 261.5(j) is amended by

removing both phrases, ‘‘if it is destined

to be burned for energy recovery’’.

§ 261.6 [Amended]

3. In § 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:
Federal Register / Vol. 63, No. 87 /Wednesday, May 6, 1998 /Rules and Regulations 24969

§ 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 § 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:

§ 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:

§ 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:

§ 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:

§ 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:

§ 279.74 Tracking.

* * * * *

(b) On-specification used oil delivery.

A generator, transporter, processor/rerefiner, or burner who first claims that

used oil that is to be burned for energy

recovery meets the fuel specifications

under § 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 § 279.72(a).

* * * * *

[FR Doc. 98–11376 Filed 5–5–98; 8:45 am]

BILLING CODE 6560–50–P

FEDERAL EMERGENCY

MANAGEMENT AGENCY

44 CFR Part 206

RIN 3067–AC67

Disaster Assistance; Public Assistance

Program Appeals; Hazard Mitigation

Grant Program Appeals

AGENCY: Federal Emergency

Management Agency (FEMA).

ACTION: Correction of final rule.

SUMMARY: This document corrects the

final rule published on Wednesday,

April 8, 1998 (63 FR 17108). The rule

pertains to review and disposition of

appeals related to Public Assistance

grants and the Hazard Mitigation Grant

Program.

EFFECTIVE DATE: May 8, 1998.

FOR FURTHER INFORMATION CONTACT:

Robert F. Shea, Mitigation Directorate,

Federal Emergency Management

Agency, 500 C Street SW., Washington,

DC 20472, (202) 646–3619, (facsimile)

(202) 646–3104, about HMGP appeals;

or Melissa M. Howard, Response and

Recovery Directorate, Federal

Emergency Management Agency, 500 C

Street SW., Washington, DC 20472,

(202) 646–3053, facsimile (202) 646–

3304, about Public Assistance appeals.

SUPPLEMENTARY INFORMATION: The

Federal Emergency Management Agency

published a final rule on April 8, 1998

that changed from three to two the

number of appeals allowed from

decisions made about Public Assistance

grants and the Hazard Mitigation Grant

Program. As published the final rule

contained two incorrect citations, the

one in the Supplementary Information,

and the other in the rule. In the

Background statement of the

Supplementary Information, the text

read 44 CFR 202.206 and should have

read 44 CFR 206.206. In the rule,

§ 206.206(e)(2) read 44 CFR 206.440 and

should have read 44 CFR 206.206.

Accordingly, the final rule published

as FR Doc. 98–9207 on April 8, 1998, 63

FR 17108, is corrected as follows:

(a) On page 17108, in the third

column, under Supplementary

Information, Background, in the first

paragraph the second sentence is

corrected to read as follows: