[Federal Register Volume 61, Number 59 (Tuesday, March 26, 1996)]
[Proposed Rules]
[Pages 13129-13131]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7276]



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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261

[FRL-5446-3]
RIN 2050-AE31


Identification and Listing of Hazardous Waste; Amendments to 
Definition of Solid Waste

AGENCY: Environmental Protection Agency.

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to correct the text of a regulatory exclusion 
from the regulatory definition of solid waste for recovered oil which 
is inserted into the petroleum refining process. The current text of 
the exclusion contains a factual error inappropriately limiting the 
location in the refining process at which recovered oil can be 
inserted. The result of this error is to restrict legitimate recycling 
of recovered oil. The proposed correction also in fact reflects the 
result EPA initially intended, which was to condition the

[[Page 13130]]
exclusion of recovered oil on that oil being reinserted into the 
petroleum refining process at a point where that process removes or 
will remove contaminants.
    In the final rules Section of today's Federal Register, EPA is 
promulgating this amendment as a final rule without prior proposal 
because EPA views this as a noncontroversial action which corrects an 
unintended mistake, and so anticipates no adverse comments. A detailed 
rationale for the amendment is set forth in the final rule. If no 
adverse comments are received in response to this proposal, no further 
activity is contemplated in relation to this proposed rule. If EPA 
receives adverse comments, EPA will withdraw the final rule and all 
public comments received will be addressed in a subsequent final rule 
based on the proposed rule. EPA will not institute a second comment 
period on this action.

DATES: Comments on this proposed rule must be received on or before 
April 24, 1996, and notice of intent to file adverse comments must be 
received on or before April 9, 1996. An adverse comment will be 
considered to be any comment substantively criticizing the proposal on 
a basis not already provided to EPA in comment.

ADDRESSES: Comments and materials supporting this rulemaking are 
contained in Public Docket No. F-96-SW2P-FFFFF and are located in the 
EPA RCRA docket, Crystal Gateway #1, 1st Floor, 1235 Jefferson Davis 
Highway, Arlington, VA. The docket is open from 9:00 to 4:00, Monday 
through Friday, except for Federal holidays. The public must make an 
appointment to review docket materials by calling (703) 603-9230. The 
public may copy a maximum of 100 pages from any one regulatory docket 
at no cost. Additional copies cost Sec. .15 per page. Persons wishing 
to notify EPA of their intent to submit adverse comments on this action 
should contact Steven Silverman, Office of General Counsel (2366), 401 
M Street, SW., Washington, DC 20460.

FOR FURTHER INFORMATION CONTACT: Steven Silverman, (202) 260-7716, 
Office of General Counsel at the above address.

SUPPLEMENTARY INFORMATION:

Outline of Today's Action

I. Authority
II. Background
III. Additional Information
IV. Regulatory Requirements
    A. Executive Order No. 12866
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    D. Unfunded Mandates Reform Act

I. Authority

    These regulations are being proposed under the authority of 
Sections 2002 and 3001 et seq. of the Solid Waste Disposal Act, as 
amended by the Resource Conservation and Recovery Act, as amended by 
the Hazardous and Solid Waste Amendments of 1984, 42 U.S.C. 6912 and 
6921 et seq.

II. Background

    As set out in detail in the related direct final rule, EPA is 
proposing to correct an error in the text of a regulatory exclusion 
(found at 261.4(a)(12)), regarding the location in a petroleum refining 
process at which recovered oil can be inserted in order to be excluded 
from the authority of RCRA subtitle C. The test for point of insertion 
should be at or before any point in the process that removes 
contaminants from recovered oil.1 The current regulatory text 
limiting insertion to locations before distillation and catalytic 
cracking is too restrictive because there are points in the petroleum 
process downstream of these unit operations (such as fractionation) 
which remove contaminants. The current terms of the exclusion impede 
legitimate recycling of recovered oil without providing any 
corresponding environmental benefit, and moreover are based on a 
factual error. Accordingly, EPA believes the rule should be amended.

    \1\  The issue of whether this should include insertion into 
petroleum cokers is being addressed in a separate rulemaking 
proceeding. 60 FR 57747 (November 20, 1995).
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III. Additional Information

    For additional information, see the corresponding direct final rule 
published in the rules section of this Federal Register.

IV. Regulatory Requirements

A. Executive Order 12866

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), the 
Agency must determine whether this regulatory action is ``significant'' 
and therefore subject to OMB review and the requirements of the 
Executive Order. The Order defines ``significant'' regulatory action as 
one that is likely to lead to a rule that may:
    (1) have an annual effect on the economy of $100 million or more, 
or adversely and materially affect a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities;
    (2) create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    (3) materially alter the budgetary impact of entitlement, grants, 
user fees, or loan programs or the rights and obligations of recipients 
thereof; or
    (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
the Executive Order.
    It has been determined that this amendment to the final rule is not 
a ``significant regulatory action'' under the terms of the Executive 
Order and is therefore not subject to OMB review.

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 this amendment will have negligible impact on any 
small entity because it expands the terms of an exclusion from 
regulation. In addition, the underlying rule itself was deregulatory 
and so did not have significant adverse economic impact on small 
entities. See 59 FR at 38545. Therefore, the Administrator certifies 
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 because 
this amendment reduces the scope of the RCRA subtitle C regulatory 
program.

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 an EPA rule, section 
205 of the UMRA generally requires EPA to identify and consider a 
reasonable number of regulatory

[[Page 13131]]
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 imposes no enforceable 
duties on any of these governmental entities or the private sector. The 
rule merely corrects a factual error in the regulatory text of the 
regulatory definition of solid waste. In any event, EPA has determined 
that this rule does not include a Federal mandate that may result in 
estimated costs of $100 million or more to either State, local, or 
tribal governments in the aggregate, or to the private sector in any 
one year. 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.

List of Subjects in 40 CFR Part 261

    Environmental protection, Hazardous waste, Solid Waste, Petroleum, 
Recycling.

    Dated: March 19, 1996.
Carol M. Browner,
Administrator.

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

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

    1. The authority citation for part 261 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912 (a), 6921, 6922 and 6938.

    2. Section 261.4 in amended by revising paragraph (a)(12) to read 
as follows:


Sec. 261.4  Exclusions.

    (a) * * *
    (12) Recovered oil from petroleum refining, exploration and 
production, and from transportation incident thereto, which is to be 
inserted into the petroleum refining process (SIC Code 2911) at or 
before a point (other than direct insertion into a coker) where 
contaminants are removed. This exclusion applies to recovered oil 
stored or transported prior to insertion, except that the oil must not 
be stored in a manner involving placement on the land, and must not be 
accumulated speculatively, before being so recycled. Recovered oil is 
oil that has been reclaimed from secondary materials (such as 
wastewater) generated from normal petroleum refining, exploration and 
production, and transportation practices. Recovered oil includes oil 
that is recovered from refinery wastewater collection and treatment 
systems, oil recovered from oil and gas drilling operations, and oil 
recovered from wastes removed from crude oil storage tanks. Recovered 
oil does not include (among other things) oil-bearing hazardous waste 
listed in 40 CFR part 261 D (e.g., K048-K052, F037, F038). However, oil 
recovered from such wastes may be considered recovered oil. Recovered 
oil also does not include used oil as defined in 40 CFR 279.1.
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[FR Doc. 96-7276 Filed 3-25-96; 8:45 am]
BILLING CODE 6560-50-P