[Federal Register Volume 61, Number 126 (Friday, June 28, 1996)]
[Rules and Regulations]
[Pages 33691-33693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-16582]


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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 279

[FRL-5529-1]


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

AGENCY: Environmental Protection Agency.

ACTION: Final rule, notice of judicial vacatur of administrative stay.

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SUMMARY: On January 19, 1996, the United States Court of Appeals for 
the District of Columbia Circuit vacated the Environmental Protection 
Agency's (EPA) October 30, 1995, administrative stay of part of the 
regulatory provision, known as the ``used oil mixture rule', set forth 
in 40 CFR 279.10(b)(2). The provisions of the used oil mixture rule at 
issue relate to mixtures of used oil destined for recycling and 
characteristic hazardous waste (including waste listed as hazardous 
because it exhibits a hazardous waste characteristic). This action 
clarifies the regulatory status of mixtures of used oil and the 
hazardous wastes destined for recycling described above in light of the 
Court's vacatur of the administrative stay and eliminates the 
explanatory note to 40 CFR 279.10(b)(2) that was included in the notice 
of the administrative stay. In addition it notifies the public as to 
the provisions of a recent EPA proposal that may affect such mixtures.

EFFECTIVE DATE: June 28, 1996.

ADDRESSES: EPA does not seek comment on this notice, however any data 
the public wishes EPA to consider concerning mixtures of used oil and 
characteristic hazardous waste should be submitted to the public 
docket. Submissions should include the original and two copies, should 
reference docket No. F-96-U2SW-FFFFF, and should be addressed to: RCRA 
Docket Information Center, Office of Solid Waste (5305W), U.S. 
Environmental Protection Agency Headquarters, 401 M Street, SW., 
Washington, DC 20460. Hand deliveries should be made to the RCRA 
Information Center (RIC), located at Crystal Gateway I, First Floor, 
1235 Jefferson Davis Highway, Arlington, VA. The RIC is open from 9:00 
to 4:00, Monday through Friday, except federal holidays. To review 
docket materials at the RIC, it is recommended that the public make an 
appointment by calling 703 603-9230. The public may copy a maximum of 
100 pages from any regulatory docket at no charge. Additional copies 
cost $.15 per page.

FOR FURTHER INFORMATION CONTACT: For general information contact the 
RCRA Hotline at 800 424-9346 or TDD 800 553-7672 (hearing impaired). In 
the Washington D.C. metropolitan area at 703 412-9810 or TDD 703 412-
3323. For more detailed information on specific aspects of this action, 
contact Tracy Bone, Office of Solid Waste (5304w), U.S. EPA, D.C., 
20460 at 703 308-8826.

SUPPLEMENTARY INFORMATION:

Background Information

    Legal Challenge to the Used Oil Mixture Rule. On September 10, 
1992, EPA promulgated regulations pursuant to section 3014(a) of the 
Resource Conservation and Recovery Act (RCRA), 42 U.S.C. 6935(a), 
governing the management of used oil destined for recycling. 57 FR 
41566 (September 9, 1992). These regulations are codified at 40 CFR 
Part 279. As part of these regulations, EPA promulgated a used oil 
mixture rule, 40 CFR 279.10(b), that specifies when mixtures of used 
oil destined for recycling and hazardous waste are regulated as used 
oil and when they are regulated as hazardous waste. Among other things, 
the used oil mixture rule specifies that mixtures of used oil destined 
for recycling and characteristic hazardous waste are regulated as a 
hazardous waste under Subtitle C of RCRA only if the resultant mixture 
exhibits a hazardous waste characteristic. 40 CFR 279.10(b)(2)(I). If 
the mixture does not exhibit a hazardous waste characteristic, it is 
regulated under the used oil management standards, and the hazardous 
waste regulations (including those relating to land-disposal 
restrictions (LDRs)) are inapplicable to the mixture. Further, wastes 
which are hazardous solely because they exhibit the characteristic of 
ignitability may be mixed with used oil and the mixture regulated as 
used oil so long as the mixture does not exhibit the characteristic of 
ignitability (despite exhibiting any of the other characteristics). 40 
CFR 279.10(b)(2)(ii)-(iii). The hazardous waste regulations and LDR 
requirements continue to apply to the hazardous waste prior to mixing 
with used oil.
    Petitions for review challenging EPA's used oil mixture rule 
subsequently were filed in the United States Court of Appeals for the 
District of Columbia Circuit. Petitioners argued, in relevant part, 
that the provision of the management standards which governed mixtures 
of recycled used oil and characteristic hazardous waste was 
inconsistent with the Court's decision in Chemical Waste Management, 
Inc. v. EPA, 976 F.2d 2 (D.C. Cir. 1992), cert. denied, 113 S. Ct. 1961 
(1993) (``Chem Waste''). Chem Waste, which was issued two weeks after 
the management standards were promulgated, held that EPA could not 
allow certain wastes exhibiting the hazardous characteristics of 
ignitability, reactivity, or corrosivity to be diluted to eliminate the 
characteristic and then be land-disposed unless the hazardous 
constituents in the waste were adequately treated to minimize threats 
to human health and the environment.
    On September 12, 1994, petitioner, Safety-Kleen, and EPA filed a 
joint motion requesting the Court to vacate the mixture provision and 
remand the issue to EPA. Intervenors in the Safety-Kleen litigation 
opposed this motion. On September 15, 1994, the Court remanded the 
record in this matter to EPA, stating: ``If the EPA determines that its 
rule is invalid, [citation omitted], it can proceed accordingly.'' 
Order (Sept. 15, 1994) (citing American Tele. & Telegraph Co. v. FCC, 
978 F.2d 727, 733 (D.C. Cir. 1992)). The Court did not vacate the 
mixture rule.
    Administrative Stay of the Used Oil Mixture Rule. In 1995, EPA 
issued an order staying the used oil mixture rule. The Agency 
determined that a stay was necessary to the effective implementation of 
the recycled used oil management program, pending the Agency's 
completion of a rulemaking on the issue of whether the used oil mixture 
rule should be modified or repealed in light of the Court's decision in 
Chem Waste. See 60 FR 55202 (Oct. 30, 1995).
    On January 19, 1996, the Court, in ruling on a motion filed by the 
intervenors, vacated the Administrative stay. The Court explained that 
EPA could not suspend a promulgated rule without notice and comment. 
The Court further noted that, if EPA determines that the used oil 
mixture rule is invalid, it may be able to rely on the good cause 
exception, 5 U.S.C. 553(b), to vacate the rule without notice and 
comment rulemaking.
    Effect of the Court's Vacatur of the Administrative Stay. The 
vacatur of the administrative stay reinstates the used oil mixture rule 
found at 40 CFR 279.10(b)(2) as part of the federal used oil management 
standards. Accordingly, as a matter of federal RCRA law, the regulated 
community may mix certain characteristic hazardous wastes and used oil 
to be recycled (e.g., mixtures of solvents compatible with the use of

[[Page 33692]]

used oil as fuel) without triggering LDR requirements. Of course, 
whether the used oil mixture rule is in effect in a particular state 
depends on whether a state is, or is not, authorized to administer and 
enforce the RCRA program. Furthermore, whether a used oil mixture 
provision is in effect in an authorized state, depends on whether the 
state has adopted such a provision under its state law and whether EPA 
has authorized the state to administer and enforce such a provision.
    The vacatur of the administrative stay only had an immediate impact 
on the RCRA requirements for the regulated community in the states and 
territories that did not have an authorized state RCRA program at the 
time the administrative stay became effective (e.g., Alaska, Hawaii, 
Iowa and Puerto Rico). The vacatur immediately reinstated the federal 
used oil mixture rule in these four states and territories, because the 
regulated community in these states and territories, in the absence of 
an authorized state RCRA program, is subject to the federal RCRA 
regulations. The regulated community in these states and territories, 
therefore, may continue to manage mixtures of used oil destined for 
recycling and characteristic hazardous waste as used oil to the extent 
allowed under the federal used oil management standards.
    The administrative stay of the federal used oil mixture rule, and 
its subsequent vacatur, did not affect the legal obligations of the 
regulated community in the forty-nine states and territories with an 
authorized state RCRA program, because the regulated community in a 
state with an authorized RCRA state program is subject to the 
applicable state, not federal, regulations. None of the authorized 
states revised their programs to incorporate the stay during the three 
weeks that the stay was in effect. Accordingly, after the vacatur of 
the stay (as well as at the time that the stay was in effect) the 
regulated community in the authorized states remains subject to those 
state used oil regulations, including any state used oil mixture 
provisions, that were in effect prior to the issuance of the 
administrative stay. In those states that are authorized for both the 
RCRA program and the used oil mixture rule the regulated community may 
continue to rely on the state used oil mixture rule applicable in that 
state. In those states that are authorized for the RCRA program but not 
for the used oil mixture rule, the regulated community cannot use the 
used oil mixture rule until a state obtains authorization for the rule 
as part of its RCRA program. States not already authorized for the used 
oil mixture rule may wish to consider not seeking such authorization 
until the validity of the used mixture rule is determined.
    In light of the D.C. Circuit's vacatur of the administrative stay 
of the rule, EPA is deleting the explanatory note added to 40 CFR 
Section 279.10(b)(2) in the notice of the administrative stay, to 
withdraw the notice of the administrative stay. See 60 FR 55202, 55206 
(Oct. 30, 1995).
    Comparable Fuel Provisions of EPA's Revised Standards for Hazardous 
Waste Combustors. On April 19, 1996, the Agency proposed the Hazardous 
Waste Combustion Rule in which the discussion of ``Small Business 
Considerations'' may be of particular interest to used oil handlers (61 
FR 17468). Small businesses may, hypothetically, generate wastes (such 
as mineral spirits used to clean automotive parts) that could meet a 
comparable fuel specification as a class. In this section the Agency 
proposes to consider a petition process through which classes of 
generators could document that a specific type of waste is consistently 
likely to meet the comparable fuel specification. By promulgating such 
a provision, EPA could allow classes of materials from specific small 
businesses to be excluded from RCRA jurisdiction without following the 
detailed implementation requirements that are associated with waste 
stream specific application of the comparable fuels exclusion. Such an 
outcome would need to be supported by data reviewed by the authorized 
regulatory agency and would be the subject of notice and comment 
rulemaking.
    If the Agency granted such a petition through rulemaking, such 
waste would be classified as inherently comparable fuel. As such, the 
generator would not be subject to the proposed implementation 
requirements for the comparable fuel exclusion: notification, sampling 
and analysis, and record keeping. In addition, such inherently 
comparable fuel could be blended, treated, and shipped off-site without 
restriction because they had been excluded from regulation as a 
hazardous waste. Such comparable fuels could then be mixed with used 
oil and burned according to Part 279 without the land disposal 
restrictions or other hazardous waste regulations applying.

Regulatory Requirements

A. Regulatory Flexibility Act

    This action makes a technical amendment to the CFR, and does not 
impose any requirements on regulated entities. Therefore, EPA certifies 
that this action will not have a significant impact on a substantial 
number of small entities.

B. Executive Order 12866 and the Paperwork Reduction Act

    This action is exempt from review by the Office of Management and 
Budget under Executive Order 12866. This action does not impose any 
reporting or record keeping requirements.

C. Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Pub. 
L. 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    Today's technical amendment contains no Federal mandates (under the 
regulatory provisions of Title II of the UMRA) for State, local, or 
tribal governments or the private sector. Thus, today's rule is not 
subject to the requirements of sections 202 and 205 of the UMRA.

[[Page 33693]]

D. Submission to Congress and the General Accounting Office

    Under section 801(a)(1)(A) of the Administrative Procedures Act 
(APA) as amended by the Small Business Regulatory Enforcement Fairness 
Act of 1996, EPA submitted a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives and the Comptroller General of the General Accounting 
Office prior to publication of the rule in today's Federal Register. 
This rule is not a ``major rule'' as defined by section 804(2) of the 
APA as amended.

List of Subjects in 40 CFR Part 279

    Environmental protection, Hazardous waste, Recycling, Used oil.

    Dated: June 20, 1996.
Elliott Laws,
Assistant Administrator.

    For the reasons set out in the preamble, title 40 of the Code of 
Federal Regulations is amended as follows:

PART 279--STANDARDS FOR THE MANAGEMENT OF USED OIL

    1. The authority citation for part 279 continues to read as 
follows:

    Authority: Sections 1006, 2002(a), 3001 through 3007, 3010, 
3014, and 7004 of the Solid Waste Disposal Act, as amended (42 
U.S.C. 6905, 6912(a), 6921 through 6927, 6930, 6934, and 6974); and 
Sections 101(37) and 114<Copyright> of CERCLA (42 U.S.C. 9601(37) 
and 9614(c)).


Sec. 279.10  [Amended]

    2. Section 279.10 is amended by removing the note immediately after 
paragraph (b)(2)(iii).

[FR Doc. 96-16582 Filed 6-27-96; 8:45 am]
BILLING CODE 6560-50-P