[Federal Register: July 30, 2003 (Volume 68, Number 146)]
[Rules and Regulations]
[Page 44659-44665]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30jy03-13]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 261 and 279
[RCRA-1998-0015; FRL-7537-4]
RIN 2050-AF07
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Recycled Used Oil Management Standards
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: Today's final rule eliminates drafting errors and ambiguities
in the used oil management standards. Specifically, this rule clarifies
when used oil contaminated with polychlorinated biphenyls (PCBs) is
regulated under the RCRA used oil management standards and when it is
not; that mixtures of conditionally exempt small quantity generator
(CESQG) waste and used oil are subject to the RCRA 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.
DATES: This final rule will become effective on September 29, 2003.
ADDRESSES: Public comments and supporting materials are available for
viewing in the EPA Docket Center, located at 1301 Constitution Avenue,
NW, Washington, DC. The Docket ID Number is RCRA-1998-0015. The index
and some supporting materials are available electronically. See the
Supplementary Information section for information on accessing them.
FOR FURTHER INFORMATION CONTACT: For general information, contact the
RCRA Call Center 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.
For more detailed information on specific aspects of this
rulemaking, contact Mike Svizzero by mail at Office of Solid Waste
(5303W), U.S. Environmental Protection Agency, 1200 Pennsylvania Avenue
NW., Washington, DC 20460, by phone at (703) 308-0046, or by Internet
e-mail at svizzero.michael@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
EPA has established an official public docket for this action under
Docket ID No. RCRA-1998-0015. The official public docket is the
collection of materials that is available for public viewing at the
OSWER Docket in the EPA Docket Center (EPA/DC), EPA West Building, Room
B102, 1301 Constitution Ave NW., Washington, DC. The EPA Docket Center
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through
Friday, excluding legal holidays. The telephone number for the Public
Reading Room is (202) 566-1744, and the telephone number for the OSWER
Docket is (202) 566-0270.
You may access this Federal Register document electronically
through the EPA Internet under the ``Federal Register'' listings at
http://www.epa.gov/fedrgstr/.
An electronic version of the public docket is available through
EPA's electronic public docket and comment system, EPA Dockets. You may
use EPA Dockets at http://www.epa.gov/edocket/ to view public comments,
access the index listing of the contents of the official public docket,
and to access those documents in the public docket that are available
electronically. Although not all docket materials may be available
electronically, you may still access any of the publicly available
docket materials through the docket facility identified above. Once in
the system, select ``search'' and then key in the appropriate docket
identification number.
Outline of Today's Document
I. Authority
II. Background and Regulatory Amendments
A. Applicability of the Used Oil Management Standards to PCB
Contaminated Used Oil
B. Mixtures of CESQG Waste and Used Oil
C. Clarification of the Recordkeeping Requirements for Marketers
of On-Specification Used Oil
III. State Authority
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
B. Paperwork Reduction Act
C. Regulatory Flexibility Act
D. Unfunded Mandates Reform Act
E. Executive Order 13132: Federalism
F. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
G. Executive Order 13045: Children's Health
H. Executive Order 13211: Energy Effects
I. National Technology Transfer and Advancement Act of 1995
J. Congressional Review Act
V. 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 Regulatory Amendments
Today's final rule reinstates, with some modifications, three
amendments to the RCRA used oil management standards of 40 CFR Part
279. These amendments were issued on May 6, 1998 as a direct final
rule, but were retracted on July 14, 1998 because of adverse public
comment to the amendments (see 63 FR 24963 and 63 FR 25006). One of the
withdrawn amendments, applicability of the used oil management
standards to PCB contaminated used oil, was a clarification of the
applicability of the RCRA used oil management standards to PCB
contaminated used oil. This clarification was undertaken as part of a
settlement agreement to resolve a lawsuit challenging a final rule
promulgated on May 3, 1993, (58 FR 26420) regarding EPA's used oil
regulations. Edison Electric Institute v. U.S. EPA (D.C. Circuit No.
93-1474). Specifically, 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). The other amendments
reinstated today clarify (1) that mixtures of conditionally exempt
small quantity generator (CESQG) waste and used oil are subject to the
used oil management standards irrespective of how that mixture is to be
recycled and (2) 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.
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 RCRA used oil management standards to used oil containing PCBs.
The amendment clarifies that used oil that contains less than 50 ppm of
PCBs is generally subject to regulation under the RCRA used oil
management standards. However, the amendment notes that the
[[Page 44660]]
Toxic Substances Control Act (TSCA) prohibition against the dilution of
PCB concentrations below regulatory thresholds (40 CFR 761.1(b)(5))
applies to the dilution of PCB-containing used oil. Used oil,
therefore, that contains, or contained prior to dilution, 50 ppm or
greater of PCBs is not subject to regulation under the RCRA used oil
management standards, because the TSCA regulations at 40 CFR Part 761
provide comprehensive management of such used oil.
For used oil that contains PCB concentrations of 2 ppm or greater,
but less than 50 ppm (other than those diluted to below 50 ppm), TSCA
regulates the burning of used oil for energy recovery at 40 CFR
761.20(e). Such used oil is also regulated under the RCRA used oil
management standards at 40 CFR Part 279. 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. 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 (if it has not been diluted) is subject to
record keeping and retention requirements under TSCA (40 CFR
761.20(e)(2), (e)(4)) and is regulated under the RCRA used oil
management standards. TSCA regulations prohibit the burning for energy
recovery of used oil that contains (or contained prior to dilution) PCB
concentrations of 50 ppm or greater (40 CFR 761.20(a)).
Table 1.--Regulation of Used Oil Containing PCBs That Is To Be Burned
for Energy Recovery Under 40 CFR Part 279 (RCRA Regulations) and 40 CFR
Part 761 (TSCA Regulations).
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Does RCRA
regulate this Does TSCA regulate
Range of PCB contamination used oil if it is this used oil if it
levels in used oil (ppm) to be burned for is to be burned for
energy recovery? energy recovery? \b\
\b\
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Demonstrated to contain less Yes (part 279)... Yes (761.20(e)(2),
than 2. (e)(4)).\a\
2 to less than 50............. Yes (part 279)... Yes (761.20(e)).
50 and greater................ No (part 279).... Yes (prohibited)
(761.60).
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\a\ 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. TSCA imposes record keeping and retention
requirements.
\b\ Assumes no dilution. No person may avoid any provision under TSCA
specifying a PCB concentration by diluting the PCBs, unless otherwise
provided. See 40 CFR 761.1(b)(5).
Used oil containing less than 50 ppm PCBs that is recycled in a
manner other than being burned for energy recovery is generally
excluded from TSCA requirements except where: (1) Used oil was diluted
to below 50 ppm PCBs, or (2) the PCB containing used oil or source of
the PCB-containing used oil to be recycled was not legally
manufactured, processed, distributed in commerce or used under TSCA.
See 40 CFR 761.3 (definition of ``excluded PCB products'');
761.20(a)(1); and 761.20(c). However, 40 CFR 761.20(d) of the TSCA
regulations 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 also 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
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, however.
Dilution of PCB-Containing Used Oil
The Agency received comment on the May 6, 1998 proposal (63 FR
24963) related to the applicability of the dilution prohibition of 40
CFR 761.1(b)(5) to used oil that contains PCBs. One commenter raised a
concern that the May 6, 1998 proposal was unclear as to how PCB-
contaminated used oils that have been diluted (below either the 50 ppm
or 2 ppm TSCA PCB regulatory thresholds) are regulated.
Used oil that contains PCBs may not be diluted under TSCA to avoid
a particular regulatory requirement unless otherwise specifically
provided by the TSCA regulations. The TSCA PCB regulations at 40 CFR
761.1(b)(5) prohibit the dilution of PCBs to avoid regulatory
requirements. This prohibition is repeated in the definition of
``excluded PCB products'' in 40 CFR 761.3. Accordingly, used oil that
contained PCB concentrations greater than or equal to 50 ppm and that
was subsequently diluted to a concentration of less than 50 ppm PCBs,
is still regulated under TSCA as used oil that contains a PCB
concentration of 50 ppm or greater. This diluted used oil is subject to
comprehensive management under TSCA and, therefore, is not regulated
under the RCRA used oil management standards. Likewise, used oil that
contained a maximum PCB concentration of 2 ppm or greater, but less
than 50 ppm, which is subsequently diluted to a concentration of less
than 2 ppm, is still regulated under TSCA as used oil that contains a
concentration greater than 2 ppm PCBs. (Note, however, that used oils
of unknown concentration can be mixed with other such used oils in a
common container and subsequently tested to determine if it is less
than 2 ppm PCB. See 40 CFR 761.20(e)(2) and 761.60(g)(2)).
The TSCA regulations do allow, however, for the decontamination of
used oil at PCB concentrations of 50 ppm or greater to a concentration
below 2 ppm if specified decontamination methods (e.g., filtering) are
used. Such decontaminated used oil is exempt from most TSCA management
standards (other than 40 CFR 761.20(e)(2), (e)(4) and 761.79(f)) and is
regulated under the RCRA used oil management standards. See 40 CFR
761.79(a)(3) and 761.79(b).
Applicability of the Used Oil Fuel Specification to PCB-Containing Used
Oil
There has been confusion in the regulated community that the
presence of PCBs in used oil is one of the criteria for determining
whether a used oil fuel subject to the RCRA used oil management
standards meets the fuel specification standard such that it may be
burned for energy recovery without further regulation under RCRA. In
fact, one of the comments received in response to the May 6, 1998
proposal implied that used oil that contains PCB concentrations of 2
ppm or greater, but less than 50 ppm is off-specification used oil due
to its PCB content. This is incorrect. As described above, the
concentration of PCBs in used oil is relevant to determining whether a
used
[[Page 44661]]
oil is subject to the RCRA used oil management standards. However, for
those used oils subject to the RCRA used oil management standards, the
presence of PCBs is not one of the criteria for determining whether a
used oil fuel meets the used oil fuel specification.
However, used oil that contains PCB concentrations of 2 ppm or
greater, but less than 50 ppm, and is burned for energy recovery is
also subject to requirements under the TSCA PCB regulations,
specifically 40 CFR 761.20(e). These TSCA requirements incorporate by
reference certain RCRA Part 279 ``off-specification'' used oil
requirements. (See the discussion below for an explanation of the
regulation of PCB-containing used oil that is burned for energy
recovery.)
RCRA Requirements
The RCRA used oil specification criteria are set forth at 40 CFR
279.11. The specification criteria establish which used oil fuels may
be burned in nonindustrial burners without regulation under RCRA. The
used oil fuel specification sets maximum allowable limits for arsenic,
cadmium, chromium, lead, and total halogens, as well as a minimum flash
point. Although the PCB regulations promulgated pursuant to TSCA are
referenced in a note to Table 1 in Sec. 279.11, the presence of PCBs
in used oil is not one of the criteria for determining whether used oil
that is to be burned for energy recovery meets the fuel specification
for purposes of RCRA regulation.
Used oil that is to be burned for energy recovery and that meets
the RCRA fuel specifications of Sec. 279.11 (``on-specification'' used
oil) is not regulated under the authority of Part 279 provided that:
(1) Certain conditions for used oil fuel marketers are met, and (2) the
used oil is not mixed or contaminated with hazardous waste. (Applicable
on-specification used oil fuel marketer requirements can be found at
Sec. Sec. 279.72, 279.73, and 279.74(b).) This is the case,
notwithstanding that a used oil fuel may contain PCBs. Although the
RCRA regulations do not identify the presence of PCBs in used oil as
relevant to the determination of whether the used oil is on- or off-
specification, the presence of PCBs in used oil is relevant for
determining the applicability of the TSCA regulations for the burning
of used oil.
TSCA Requirements
The TSCA rules (specifically, 40 CFR 761.20(e)(2)) establish a
presumption that detectable quantities of PCBs are present in used oils
to be burned for energy recovery. The presumption can be overcome if a
marketer determines through testing or other specified procedures that
the used oil fuel does not contain quantifiable levels (2 ppm) of PCBs.
TSCA rules found at 40 CFR 761.20(a) also prohibit burning for energy
recovery of used oil that contains (or contained prior to dilution)
PCBs at concentrations of 50 ppm and greater. In addition, Sec. Sec.
761.1(b)(5) prohibits dilution to attain PCB concentrations either
below 50 ppm or below 2 ppm. (However, see decontamination provisions
at 40 CFR 761.79(a)(3) and 761.79(b).)
The TSCA regulations establish requirements for the marketing and
burning for energy recovery of used oils containing detectable
quantities of PCBs at concentrations of 2 ppm or greater, but less than
50 ppm (40 CFR 761.20(e)). Some of these requirements are
incorporations by reference of Part 279 requirements for the marketing
and burning for energy recovery of off-specification used oil.
Therefore, by operation of the TSCA rules, used oil that is on-
specification under the RCRA rules may nevertheless be subject to
certain requirements specified in the RCRA rules for off-specification
used oil.
Specifically, for used oil burners, the TSCA rules reference some
of the RCRA off-specification burner requirements of Part 279 Subpart
G, including restrictions on burning, notification requirements,
tracking requirements, certification requirements and record keeping
requirements. (See 40 CFR 761.20(e)(3)-(4)). For used oil marketers,
the TSCA rules, with limited exceptions, restrict marketing to
qualified incinerators, to marketers who market off-specification used
oils, and to off-specification burners as defined in the RCRA Part 279
regulations (See 40 CFR 761.20(e)(1)). The TSCA rules also reference
the RCRA regulatory provisions for marketers in Part 279 Subpart H,
including record retention, notification, tracking, and certification.
The fact that the TSCA rules incorporate by reference these RCRA
standards does not by itself mean that PCB-containing used oil is
regulated under RCRA authority or that such used oil is off-
specification as defined by Part 279.
B. Mixtures of CESQG Waste and Used Oil
Today's rule harmonizes the applicability of 40 CFR Part 261 and
Part 279 to mixtures of conditionally exempt small quantity generator
(CESQG) waste and used oil that are to be recycled. Specifically, the
rule makes clear that mixtures of CESQG waste 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 waste and used oil
that are to be recycled, appears to limit the applicability of the used
oil management standards to mixtures that are to be recycled by burning
for energy recovery. Section 261.5(j), therefore, incorrectly suggests
that mixtures of CESQG wastes and used oil that are to be recycled in a
manner other than by burning for energy recovery, such as by re-
refining, would not be subject to the used oil management standards.
Indeed, because CESQG wastes are not regulated as hazardous wastes,
Sec. 261.5(j) would suggest that such mixtures that are re-refined
would not be subject to 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. Since Part 279 applies to used oil that is
to be recycled without regard to how the used oil is to be recycled,
Part 279 also applies to mixtures of used oil and CESQG wastes that are
to be recycledirrespective of how that mixture is to be recycled.
The apparent limitation contained in Sec. 261.5(j), which would
limit the applicability of the used oil management standards to
mixtures to be burned for energy recovery, is an artifact of the pre-
1992 used oil regulations at 40 CFR Part 266, which only regulated the
burning of used oil. When the expanded used oil management standards
were promulgated on September 10, 1992, the Agency inadvertently failed
to amend Sec. 261.5(j) to reflect the broader scope of the new Part
279. Indeed, the corresponding provision in Part 279 that addresses
mixtures of CESQG wastes and used oil to be recycled, Sec.
279.10(b)(3), does not contain the apparent limitation found in Sec.
261.5(j) that would limit the
[[Page 44662]]
applicability of the used oil management standards to mixtures to be
burned for energy recovery. Therefore, today's rule amends Sec.
261.5(j) as it should have been amended in 1992 to reflect the greater
scope of Part 279 and to eliminate any potential ambiguity over the
applicability of the used oil management standards to mixtures of CESQG
wastes and used oil to be recycled. This amendment does not impose
additional regulatory requirements on this category of CESQG waste.
These wastes have been and continue to be regulated under 40 CFR
279.10(b)(3).
The Agency received one comment opposing this amendment from a
state in response to the May 6, 1998 proposal. The comment stated that
mixtures of conditionally exempt small quantity generator (CESQG) waste
and used oil should only be regulated as used oil if it is to be
recycled by burning for energy recovery. This comment opens up the
merits of the original rule (Sec. 279.10(b)(3)) and that is not the
intent of today's final rule. Today's final rule intends only to make
certain conforming changes to Sec. 261.5(j) to correctly reflect EPA's
original intent in the September 10, 1992 Part 279 used oil management
standards rule. EPA addressed the merits of the original rule in that
previous rulemaking and EPA is not reopening that issue in this final
rule. Even if EPA were to reopen this issue in today's rulemaking and
to address the merits of this issue, EPA would come to the same
conclusion as it did in the previous rulemaking. EPA is not aware of
any reason for distinguishing used oil being burned for energy recovery
from used oil being recycled in other ways, and the commenter did not
provide any. Notwithstanding this clarification of the federal
regulations, the state may regulate mixtures of CESQG waste and used
oil more stringently than the federal used oil management program.
C. Clarification of the Recordkeeping Requirements for Marketers of On-
Specification Used Oil
Today's rule amends 40 CFR 279.74(b) to clarify that the marketer
who first claims that used oil that is to be burned for energy recovery
meets the fuel specification (on-specification used oil) must only keep
a record of a shipment of used oil to the facility to which the initial
marketer delivers the used oil. The preamble to the November 29, 1985
rule (50 FR 49164 at 49189) clearly describes the agency's intent to
only track on-specification used oil that is to be burned for energy
recovery one step beyond the initial marketer. When these recordkeeping
requirements were recodified at 40 CFR 279.74(b) (57 FR 41566,
September 10, 1992), the regulations required that a marketer must keep
a record of each shipment of used oil to an on-specification used oil
burner. However, the marketer who first claims that used oil that is to
be burned for energy recovery meets the fuel specification might choose
not to market the used oil directly to an on-specification used oil
burner (i.e. a non-industrial oil burner). Instead, the on-
specification used oil might be marketed to a fuel oil distributor for
subsequent sale as fuel oil. In this situation, Sec. 279.74(b) could
be interpreted to require the initial marketer of the on-specification
used oil to keep a record of all subsequent shipments of that used oil
until the on-specification used oil reaches a used oil burner. Today's
rule clarifies that the initial marketer of on-specification used oil
must only keep a record of a shipment of used oil to the facility to
which the initial marketer delivers the used oil. The initial marketer
need not keep a record of any subsequent transfers of this used oil.
For example, the initial marketer would need to keep a record of a
shipment of on-specification used oil to a fuel oil distributor, but
the initial marketer would not need to keep records of shipments of
this used oil from the fuel oil distributor to fuel oil burners or
other fuel oil distributors.
The Agency received one comment opposing this amendment from a
state in response to the May 6, 1998 proposal. The commenter was
concerned that the proposed amendment does not require tracking of used
oil that meets the used oil fuel specification to the point to which it
is burned for energy recovery, and thus does not provide adequate
protection. The Agency disagrees with this comment. This comment opens
up the merits of the original November 29, 1985 rule and that is not
the intent of today's rule. As with the issue above discussing mixtures
of CESQG waste and used oil, the Agency is not reopening the merits of
this issue, because the Agency addressed the merits of this issue in
the preamble to the November 29, 1985 rule (50 FR 49164 at 49189).
Today's amendment does not represent a change in the requirements, but
only clarifies the Agency's intent that only the initial marketer of
on-specification used oil must keep a record of each shipment of used
oil to the facility to which it delivers the used oil. In the September
23, 1991 supplemental notice of proposed rulemaking (56 FR 48000), EPA
did not propose to change the tracking requirements or the management
requirements, originally promulgated in 1985 for used oil that meets
the used oil fuel specification. In drafting the 1992 rule, EPA only
intended to recodify the tracking requirements from the now superseded
Part 266. It has always been the Agency's position that used oil that
is to be burned for energy recovery that meets the used oil fuel
specification is a commodity that will be properly handled like any
other fuel. The Agency has always intended that used oil that is to be
burned for energy recovery only be regulated under the Used Oil
Management Standards until it has been determined to meet the used oil
fuel specification. Once it has been determined to meet the fuel
specification and the marketer complies with 40 CFR 279.72, 279.73, and
279.74(b), the used oil is no longer regulated by the Used Oil
Management Standards. If the used oil is not burned for energy recovery
and is recycled by other means or disposed, it is regulated as used oil
under the Used Oil Management Standards. Even if the Agency were to
address the merits of this issue, we would continue to take the
position as we are taking in today's amendment, because, for the
reasons discussed above, the Agency believes that the tracking
requirements would provide adequate protection. The commenter has
provided no new information or arguments that would lead us to change
this long-standing position. Notwithstanding this clarification of the
federal regulations, a state may regulate used oil more stringently
than the federal used oil management program.
III. State Authority
Under section 3006 of RCRA, EPA may authorize a qualified State to
administer and enforce a hazardous waste program within the State in
lieu of the federal program, and to issue and enforce permits in the
State. Following authorization, the state requirements authorized by
EPA apply in lieu of equivalent Federal requirements and become
Federally-enforceable as requirements of RCRA. EPA maintains
independent authority to bring enforcement actions under RCRA sections
3007, 3008, 3013, and 7003. Authorized states also have independent
authority to bring enforcement actions under state law.
A state may receive authorization by following the approval process
described in 40 CFR part 271. Part 271 of 40 CFR also describes the
overall standards and requirements for authorization. After a state
receives initial authorization, new Federal
[[Page 44663]]
regulatory requirements promulgated under the authority in the RCRA
statute which existed prior to the 1984 Hazardous and Solid Waste
Amendments (HSWA) do not apply in that state until the state adopts and
receives authorization for equivalent state requirements. The state
must adopt such requirements to maintain authorization. In contrast,
under RCRA section 3006(g), (42 U.S.C. 6926(g)), new Federal
requirements and prohibitions imposed pursuant to HSWA provisions take
effect in authorized states at the same time that they take effect in
unauthorized States. Although authorized states still are required to
update their hazardous waste programs to remain equivalent to the
Federal program, EPA carries out HSWA requirements and prohibitions in
authorized states, including the issuance of new permits implementing
those requirements, until EPA authorizes the state to do so. Authorized
states are required to modify their programs only when EPA promulgates
Federal requirements that are more stringent or broader in scope than
existing Federal requirements.
RCRA section 3009 allows the states to impose standards more
stringent than those in the Federal program. See also 40 CFR 271.1(i).
Therefore, authorized states are not required to adopt Federal
regulations, either HSWA or non-HSWA, that are considered less
stringent.
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.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review
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 entitlements, 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.
It has been determined that this rule is not a ``significant
regulatory action'' under the terms of Executive Order 12866 and is
therefore not subject to OMB review.
B. Paperwork Reduction Act
This action does not impose any new information collection burden
since it does not represent any change in requirements, but only
clarifies the Agency's intent with respect to certain provisions in the
Used Oil Management Standards. However, the Office of Management and
Budget (OMB) has previously approved the information collection
requirements contained in the existing regulations (40 CFR Part 279)
under the provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et
seq. and has assigned OMB control number 2050-0124 (EPA ICR No.
1286.06).
Copies of the ICR document(s) may be obtained from Susan Auby, by
mail at the Office of Environmental Information, Collection Strategies
Division; U.S. Environmental Protection Agency (2822); 1200
Pennsylvania Ave., NW., Washington, DC 20460-0001, by email at
auby.susan@epa.gov, or by calling (202) 260-4901. A copy may also be
downloaded off the internet at http://www.epa.gov/icr. Include the ICR
and/or OMB number in any correspondence.
Burden means the total time, effort, or financial resources
expended by persons to generate, maintain, retain, or disclose or
provide information to or for a Federal agency. This includes the time
needed to review instructions; develop, acquire, install, and utilize
technology and systems for the purposes of collecting, validating, and
verifying information, processing and maintaining information, and
disclosing and providing information; adjust the existing ways to
comply with any previously applicable instructions and requirements;
train personnel to be able to respond to a collection of information;
search data sources; complete and review the collection of information;
and transmit or otherwise disclose the information.
An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are listed in 40 CFR Part 9 and 48 CFR Chapter 15.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA), as amended by the Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C.
601 et seq. generally requires an agency to prepare a regulatory
flexibility analysis of any rule subject to notice and comment
rulemaking requirements under the Administrative Procedure Act or any
other statute unless the agency certifies that the rule will not have a
significant economic impact on a substantial number of small entities.
Small entities include small businesses, small organizations, and small
governmental jurisdictions.
For purposes of assessing the impacts of today's rule on small
entities, small entity is defined as: (1) A small business as defined
by the Small Business Administration's regulations at 13 CFR 121.201;
(2) a small governmental jurisdiction that is a government of a city,
county, town, school district or special district with a population of
less than 50,000; and (3) a small organization that is any not-for-
profit enterprise which is independently owned and operated and is not
dominant in its field.
After considering the economic impacts of today's final rule on
small entities, I certify that today's rule will not have a significant
economic impact on a substantial number of small entities. Today's rule
will not impact any small entity because it does not impose regulatory
requirements or otherwise substantively change existing requirements.
The rule eliminates drafting errors and ambiguities in the used oil
management standards so as to clarify the Agency's intended result.
Even if the rule were viewed as a change, the rule would result in
lesser regulatory impact than under existing requirements.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private
[[Page 44664]]
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, 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 drafting errors and ambiguities in the used oil
management standards so as to clarify the Agency's intended result.
Even if the rule were viewed as a change, the rule would result in
lesser regulatory impact than under existing requirements. 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. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that have ``substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.'' Under
Executive Order 13132, EPA may not issue a regulation that has
federalism implications, that imposes substantial direct compliance
costs, and that is not required by statute, unless the Federal
government provides the funds necessary to pay the direct compliance
costs incurred by State and local governments, or EPA consults with
State and local officials early in the process of developing the
proposed regulation. EPA also may not issue a regulation that has
federalism implications and that preempts State law unless the Agency
consults with State and local officials early in the process of
developing the proposed regulation.
If EPA complies by consulting, Executive Order 13132 requires EPA
to provide to the Office of Management and Budget (OMB), in a
separately identified section of the preamble to the rule, a federalism
summary impact statement (FSIS). The FSIS must include a description of
the extent of EPA's prior consultation with State and local officials,
a summary of the nature of their concerns and the agency's position
supporting the need to issue the regulation, and a statement of the
extent to which the concerns of State and local officials have been
met. Also, when EPA transmits a draft final rule with federalism
implications to OMB for review pursuant to Executive Order 12866, EPA
must include a certification from the agency's Federalism Official
stating that EPA has met the requirements of Executive Order 13132 in a
meaningful and timely manner.
This final rule will not have substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government, as specified in Executive Order 13132,
because it does not impose regulatory requirements or otherwise
substantively change existing requirements. Today's rule eliminates
drafting errors and ambiguities in the used oil management standards so
as to clarify the Agency's intended result. Even if today's rule were
viewed as a change, it would result in lesser regulatory impact than
under existing requirements. Thus, the requirements of section 6 of the
Executive Order do not apply to this rule.
F. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000)
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' Today's rule does not have
tribal implications, as specified in Executive Order 13175.
Specifically, today's rule does not significantly or uniquely affect
the communities of Indian tribal governments because it does not impose
regulatory requirements or otherwise substantively change existing
requirements. Today's rule eliminates drafting errors and ambiguities
in the used oil management standards so as to clarify the Agency's
intended result. Even if today's rule were viewed as a change, it would
result in lesser regulatory impact than current requirements. Thus,
Executive Order 13175 does not apply to this rule.
G. Executive Order 13045: Children's Health
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 19885, April 23, 1997) applies to any rule that: (1) Is
determined to be ``economically significant'' as defined under
Executive Order 12866, and (2) concerns an environmental health or
safety risk that EPA has reason to believe may have a disproportionate
effect on children. If the regulatory action meets both criteria, the
Agency must evaluate the environmental health or safety effects of the
planned rule on children, and explain why the planned regulation is
preferable to other potentially effective and reasonably feasible
alternatives considered by the Agency.
This rule is not subject to Executive Order 13045 because it is not
an economically significant rule as defined by Executive Order 12866,
and because it does not involve decisions based on environmental health
or safety risks.
H. Executive Order 13211: Energy Effects
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a
significant regulatory action under Executive Order 12866.
[[Page 44665]]
I. National Technology Transfer and Advancement Act of 1995
Section 12(d) of the National Technology Transfer and Advancement
Act of 1995 (``NTTAA''), Public Law No. 104-113, section 12(d) (15
U.S.C. 272 note) directs EPA to use voluntary consensus standards in
its regulatory activities unless to do so would be inconsistent with
applicable law or otherwise impractical. Voluntary consensus standards
are technical standards (e.g., materials specifications, test methods,
sampling procedures, and business practices) that are developed or
adopted by voluntary consensus standards bodies. The NTTAA directs EPA
to provide Congress, through OMB, explanations when the Agency decides
not to use available and applicable voluntary consensus standards.
This proposed rulemaking does not involve technical standards.
Therefore, EPA is not considering the use of any voluntary consensus
standards.
J. Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the
Small Business Regulatory Enforcement Fairness Act of 1996, generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. EPA will submit 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 United States prior
to publication of the rule in the Federal Register. A Major rule cannot
take effect until 60 days after it is published in the Federal
Register. This action is not a ``major rule'' as defined by 5 U.S.C.
804(2). This rule will be effective September 29, 2003.
V. 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: July 23, 2003.
Marianne L. Horinko,
Acting Administrator.
0
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
0
1. The authority citation for part 261 continues to read as follows:
Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y) and
6938.
Sec. 261.5 [Amended]
0
2. Section 261.5(j) is amended by removing both phrases, ``if it is
destined to be burned for energy recovery.''
PART 279--STANDARDS FOR THE MANAGEMENT OF USED OIL
0
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(c) of CERCLA (42 U.S.C. 9601(37) and
9614(c)).
0
2. 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 unless, because of dilution, it is
regulated under 40 CFR Part 761 as a used oil containing PCBs at 50 ppm
or greater. PCB-containing 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. No person may avoid these provisions by diluting used oil
containing PCBs, unless otherwise specifically provided for in this
Part or Part 761 of this chapter.
0
3. 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. 03-19275 Filed 7-29-03; 8:45 am]
BILLING CODE 6560-50-P