Federal Register / Vol. 61, No. 126 / Friday, June 28, 1996 / Rules and Regulations 33691

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[FR Doc. 96–16540 Filed 6–27–96; 8:45 am]

BILLING CODE 6560–50–P

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.

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 SafetyKleen 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
33692 Federal Register / Vol. 61, No. 126 / Friday, June 28, 1996 / Rules and Regulations

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 costeffective 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.
Federal Register / Vol. 61, No. 126 / Friday, June 28, 1996 / Rules and Regulations 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 of CERCLA (42 U.S.C. 9601(37) and

9614(c)).

§ 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

48 CFR Part 1552

[FRL–5525–6]

Acquisition Regulation; Coverage on

Information Resources Management

(IRM)

AGENCY: Environmental Protection

Agency

ACTION: Final rule.

SUMMARY: This final rule amends the

Environmental Protection Agency

Acquisition Regulation (EPAAR)

coverage on Information Resources

Management (IRM) by providing

electronic access to EPA IRM policies

for the Agency’s contractors. Electronic

access is available through the Internet

or a dial-up modem. Agency contractors

will be required to review the Internet

or access the dial-up modem when

receiving a work request (i.e. delivery

order or work assignment) to ascertain

the applicable IRM policies. The

intended effect of this rule is to ensure

that contractors perform IRM related

work in accordance with current EPA

policies.

EFFECTIVE DATE: This rule is effective

July 15, 1996.

FOR FURTHER INFORMATION CONTACT:

Edward N. Chambers at (202) 260–6028.

SUPPLEMENTARY INFORMATION:

A. Background

The required EPA Information

Resource Management (IRM) policies

are currently referenced in a clause

contained in all Agency solicitations

and contracts. While this clause

provides for revised and new directives

through attachments to contracts,

because of the rapid changes in the IRM

field, EPA may still be at risk for

requiring compliance with outdated

directives. By providing the references

and the full text of all required IRM

policies on the Internet, or through a

dial-up modem, EPA will be able to

update this information as changes

occur to ensure contractor compliance

with current IRM policies. This effort to

provide electronic access is consistent

with the Federally mandated

Government Information Locator

Service (GILS), a key initiative of the

National Performance Review (NPR).

This regulation was published as a

proposed rule in the Federal Register on

July 11, 1995. No comments were

received.

Minor edits have been made to clarify

the nature and protocols of the

electronic access. While the proposed

rule referenced a dial-up modem

bulletin board service (BBS), EPA has

subsequently decided that this mode of

electronic access does not qualify as a

BBS. Therefore, the final rule drops the

reference to a BBS.

B. Executive Order 12866

This is not a significant regulatory

action under Executive Order 12866;

therefore, no review is required by the

Office of Information and Regulatory

Affairs.

C. Paperwork Reduction Act

The Paperwork Reduction Act does

not apply because this rule does not

contain information collection

requirements that require the approval

of the Office of Management and Budget

(OMB) under 44. U.S.C. 3501, et. seq.

D. Regulatory Flexibility Act

The rule is not expected to have a

significant impact on a substantial

number of small entities within the

meaning of the Regulatory Flexibility

Act, U.S.C. 601 et seq.

The Internet and dial-up modems are

widely available mechanisms to access

information, used commonly in the

conduct of business by both small and

large entities. Compliance with this

requirement will require minimal cost

or effort for any entity, large or small.

E. 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 their regulatory

actions on State, local, and tribal

governments and the private sector.

EPA has determined that this rule

does not contain a Federal mandate that

may result in expenditures of $100

million or more for State, local, and

tribal governments, in the aggregate, or

the private sector in any one year.

Private sector costs for this action relate

to expenditures that are far below the

level established for UMRA

applicability. Thus, the rule is not

subject to the requirements of section

202 and 205 of the UMRA.

F. Regulated Entities

EPA contractors are entities

potentially regulated by this action.

Category Regulated Entities

Industry ..................... EPA contractors.

Questions regarding the applicability

of this action to a particular entity,

should be directed to the person listed

in the preceding FOR FURTHER

INFORMATION CONTACT section.

List of Subjects in 48 CFR Part 1552

Government Procurement,

Specifications, Standards, and other

Purchase Descriptions, Solicitation

Provisions and Contract Clauses.

For reasons set out in the preamble,

Chapter 15 of Title 48 Code of Federal

Regulations is amended as set forth

below:

PART 1552—[AMENDED]

1. The authority citation for 48 CFR

Part 1552 continues to read as follows:

Authority: Section 205(c), 63 Stat. 390, as

amended, 40 U.S.C. 486(c).

2. Section 1552.210–79 is amended by

revising paragraphs (b), (c), and (d); and

by removing paragraphs (e) and (f) to

read as follows:

1552.210–79 Compliance with EPA

Policies for Information Resources

Management.

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