[Federal Register Volume 68, Number 146 (Wednesday, July 30, 2003)]
[Rules and Regulations]
[Pages 44659-44665]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-19275]


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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 [email protected].

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).
------------------------------------------------------------------------
                                    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\
------------------------------------------------------------------------
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).
------------------------------------------------------------------------
\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 
[email protected], 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