fWday
itovember 29, 4985
EPA/53 O-SW-85-034
Part II
Environmental
Protection Agency
40 CFR Parts 260, 261, 264, 265, 266,
270, 271, and 302
iHazardous Waste Management System;
Used OU; final Rule and Proposed Rules
Recycled/Recyclable
Printed with Soy/Canola Ink on paper that
contains at toast 50% recycled fiber
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49164 Federal Register / Vol. 50. No. 230 / Friday. November 29. 1985. / Rules and Regulations
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Parts 261,264,265,266, and
271
[SWH-FRL 2810-11
Hazardous Wast* Management
System; Burning of Waste Fuel and
Used OU Fuel In Boflers and Industrial
Furnaces
AGENCY: Environmental Protection
Agency.
ACTION: Final rule.
SUMMARY: On January 11.1985. EPA
proposed under Subtitle C of the
Resource Conservation and Recovery
Act'CRCRA) to begin regulation of
hazardous waste and used oil burned
for energy recovery in boilers and
industrial furnaces. The proposal
provided administrative controls for
those persons who market and burn
hazardous waste and used oil fuels.
Most of the requirements are being
finalized as proposed, but some
modifications have been made in
response to comment
The final rule prohibits the burning in
nonindustrial boilers of both hazardous
waste fuel and of used oil that does not
meet specification levels for certain
hazardous contaminants and flash' point
It also provides administrative controls
to keep track of marketing and burning
activities. These controls include
notification to EPA of waste-as-fuel
activities, use of a manifest or. for used
oil. an invoice system for shipments, and
recordkeeping. Hazardous'waste fuels.
including processed or blended
hazardous waste fuels, are also subject
to storage requirements.
DATES: Effective Dater; The effective
dates for the regulations are:
1. Prohibitions. The prohibitions on
marketing and burning of hazardous
waste fuel and off-specification used oil
fuel in nonindustrial boilers in
iS 26&31(a) (2) and (b). and 266.41 (a)
(2) and (b) are effective on December 9,
1685. To implement and enforce the
prohibitions, the following provisions
are also effective on December 9.1S85:
(a] The used oil fuel specification in
1266.40(6}, except for the specification
level for lead which is effective May 29,
1888. •
(b) The rebuttable presumption of
mixing hazardous halogenated wastes
with used oil in §206.40(c); and
(c) The used oil analysis requirements
and attendant record keeping
requirements in §§268.43(b) [1] and [6],
and 266.44 (d) and (e);
2. Storage Control*. The storage
controls for hazardous waste fuels in
—
§§266.34(c) and 266.35(c) are effective
on May 291986; and
3. All Other Provisions. The effective
date for all other provisions of these
regulations (e.g., manifests and, for off-
specification used oil fuel invoice
requirements for shipments; certification
notices to suppliers; and recordkeeping
of manifests or invoices, and
certification notices) is March 31,1986.
At that time, the manifest or invoice
requirements supersede and apply in
lieu of the warning label requirements of
RCRA section-3004{r).
Compliance Dates: The compliance
dates for the regulation are:
. 1. Notification. Marketers and burners
of hazardous waste fuel and off-
specification used oil fuel are required
to notify EPA regarding their waste-as-
fuel activities under § § 266.34(b).
286.35(b). 266.43(b)(3), and 266.44(b).
These persons must so notify either EPA
or States authorized by EPA to operate
the hazardous waste program by
January 29,1986; and
2. Submission of Part A Permit
Applications. All existing marketers and
burners (see provisions in 40 CFR 270.2
and 270.70(a)) who store hazardous
waste fuels and who are not currently
operating pursuant to interim status
(section 3005(e) of RCRA), must file a
notification of their storage activities •
with EPA by January 29,1986 and
submit a Part A permit application to
EPA by May 29.1986.
In addition, marketers and burners
already operating pursuant to interim
status, but who operate existing
hazardous waste fuel storage faculties
newly subject to regulation by today's
rule, must file a notification of their
storage activities with EPA.by January
29.1986 and submit an amended Part A
permit application to EPA (with an
informational copy to the authorized
State) by May 29,1986.
Explanation for these effective dates
and compliance dates is provided in
Part Five, section HI of this preamble.
ADDRESSES: The official record for this
rulemaldng is in Room S-212. U.S.
Environmental Protection Agency, 401M
St. SW., Washington. DC 20460. The
record may be viewed from 9:00 a-m. to
4:00 pjiu. Monday through Friday.
excluding holidays.
POM FURTHER INFORMATION CONTACT:
RCRA Hotline, toll free, at.(BOO) 424-
9348 or (202) 382-3000. For Technical
information, contact Robert Holloway,
Waste Combustion Program. Waste
Management and Economics Division.
Office of Solid Waste, WH-565A, U.S.
Environmental Protection Agency. 401M
St SW, Washington. DC 20460.
Telephone: (202) 382-7917. Single copies
of the final rule can be obtained by
calling the RCRA Hotline number above.
SUPPLEMENTARY INFORMATION:
Preamble Outline
PART ONE: BACKGROUND
L Legal Authority
D. Overview of the Final Rule
m. Nonregulatory Alternatives
PART TWO: MATERIALS THAT ARE
REGULATED
L Overview
IL Determining When • Waste ia Burned for
Energy Recovery
HL Hazardous Waste Subject to Regulation
A. Definition of Hazardous Waste Fuel
B. Consideration of Exemption for
Ignitable-Only Hazardous Waste
C Regulation of Products Derived from
Petroleum Refinery Wastes
1. Petroleum Refineries that Reintioduce
Hazardous Wastes from Petroleum
Refining, Production, and Transportation
to the Refining Process
2. Oil Reclaimed from Petroleum Refining
Hazardous Wastes that is Returned to
the Refining Process
3. Statutory, Conditioned Exemption of
Coke Derived from Indigenous Petroleum
Refinery Wastes
D. Exemption of Coke and Coal Tar
Produced from Coal Tar Decanter Sludge
by the Iron and Steel Industry
E. Status of Gas Recovered from Landfills
F. Request for Exclusion of Cadence
Product 312
IV. Used Oil Subject-to Regulation •
A. Definition of Used Oil Fuel
B. Distinguishing Between Used Ofl and
Hazardous Waste
1. Used Oil Containing Halogenated
Wistes
2. Used Oil Generated by Small Quantity
Generators
3. Used Oil That Exhibits a
Characteristic of Hazardous Waste
C. The Specification for Used Oil Burned in
Noniadustrial Boilers
1. Comments on EPA's Risk Assessment
2. Specification Parameters
3. Specification Levels
D. Comments on Allowing Blending to
Meet the Specification
E. Consideration of Total Ban on Burning
Used Oil in Nonindustrial Boilers
F. Analytical Testing to Demonstrate
Compliance with Specification Levels
IV. Regulation of Combustion Residuals
V. Consideration of Special Requirements for
. De Minima Quantities Burned On-Site
PART THREE: COMBUSTION DEVICES
THAT ARE REGULATED
L Overview
O. Regulation of Boilers
A. Basis for Regulating Boilers by Boiler
Use
1. Conditional Exemption of
Nonindustrial Boilers Burning Hazardous
Waste Fuel
2. Consideration of Other Criteria for
Identifying Boilers Subject to the
Prohibitions
a Definition of Industrial Boiler
C. Definition of Utility Boiler
D. Nonindustrial Boiler
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Federal Register / VoL 80, No. 230 / Friday. November 29,1965 / Rules wad Regulations 49165
E. Marine *nd Diesel Engine*
XQ. Regulation of Industrial Furnace*
IV. Regulation of Used Oil Space Heater*
VAST FOUR: ADMINISTRATIVE AND
' STORAGESTANDARDS
L Administrative Standards
A. Overview
B. Notification Requirements
-C. Transportation Controls
D. Notice and Certification Requirement*
E. Used Oil Analysis Requirement* lor
Marketers
F. Recoidkeeping Requirements
IL Storage Requirements for Hazardous
Waste Fual
m. Examples of How These Regulations
Operate
TART FIVE: ADMINISTRATIVE. '
ECONOMIC. AND ENVIRONMENTAL
IMPACTS, AND LIST OF SUBJECTS
L State Authority
A. Applicability of Rules m Authorized
States
•B. Effect on State Authorizations
B. Regulatory Impacts
A. Results of Regulatory Impacts Studies
1. Economic Impacts on the Regulated
Community
2. Regulatory Flexibility Act
», Paperwork Reduction Act
B. Impacts on the Used OH Recycling
Industry
HL Explanation of Compliant^ Dates
IV. List of Subjects ... — .
Today's preamble is organized into
five major section*. Part I contains
.background information that
summarizes major provisions of the rule.
It also describes how the rule fits into
the Agency's strategy for regulating
other types of used oil recycling and
disposal and for regulating the actual
burning of hazardous waste and off-
specification naed oil in industrial
boilers and industrial furnaces. In
addition, this section discusses
nonregulatory approaches to the
problems considered by EPA.
Part n-describes when a waste is
burned for energy recovery and
identifies those hazardous wastes and
used oils subject to this regulation. It
also discusses the basis for exempting a
number of waste-derived fuels and for
not exempting others. In addition, it
describes the test for distinguishing
between used oil and hazardous waste
fuels. Further, this section defends the .
risk assessment used to identify used oil
constituents included in the
specification, and explains the basis for
the final specification. Finally, this
section responds to a number of
comments regarding allowing the
blending of used oil fuel to meet the
specification, availability of analytical
procedures for used oil, and the
regulatory status of combustion
residuals.
Part in identifies those boilers and
industrial furnaces subject to this
regulation and explains the basis for
•egulating nonmdnstrial boilers
immediately. It also discusses how
-nonindustrial boilers can continue to
bum hazardous waste under permit
standards for hazardous waste
incinerators. Finally, mis section
discusses controls for used oil space
heaters and EPA'c intent to provide
additional controls for these devices in
future rulemakings. ' •
Part IV discusses the administrative
controls on marketers and burners that
provide a tracking system for shipments
•and otherwise provide for
implementation and enforcement of the
prohibitions. This section also discusses
the basis for applying the storage
•standards to all hazardous waste fuels
and general permit procedures. Finally,
this section provides examples of how
the rule operates.
Part V discusses how the rules
operate immediately,-even in states
authorized to operate the hazardous
waste program. This section also
discusses the economic impacts on the
regulated community,-and particularly,
the-used oil recycling industry.
PART ONE: BACKGROUND
L Legal Authority
These regulations are promulgated
today under the authority of sections
1006.2002(a), 3001.3002.3003,3004, 3005,
3007,3010, and 3014 of the Solid Waste
Disposal Act as amended by the
Resource Conservation and Recovery
Act of 1976, the Quiet Communities Act
of 1978. the Solid Waste Disposal Act
Amendments of 1980. the Used Oil
Recycling Act of 1980, and the
Hazardous and Solid Waste
Amendments of 1984.42 U.S.C. 6905.
8912(a), 6921.6922. 6923,6924.6925. S927.
6930, and 6932.
IL Overview of the Final Rule
With today's rulemaking, EPA begins
to regulate those hazardous wastes and
used oil that are marketed and burned
for energy recovery. The chief purpose
of these rules is to prohibit the burning
of hazardous waste and contaminated
used oil in nonindustrial boilers. The
prohibitions are implemented and
enforced by placing administrative
•controls on marketers and burners •
of these fuels.
Today's rulealso establishes a
rebuttable presumption that used oil
that contains more than 1000 ppm total
halogens is mixed with halogenated
hazardous waste and, therefore, is a
hazardous waste. The presumption may
be rebutted by showing the used oil has
not been mixed with hazardous wastes
(e.g., by showing it does not contain
significant levels of halogenated
hazardous constituents). Used oil
presumed to be mixed with hazardous
waste is subject to regulation as
hazardous waste fuel when burned for
energy recovery.
in addition, the rule establishes a
specification for used oil fuel (i.e., used
oil not mixed with hazadous waste) that
isessentially exempt from all regulation
and may be burned in nonindustrial
boilers. The specification sets allowable
levels for designated toxic constituents,
flash point and total halogens.
Burning of hazardous waste fuel and
off-specification used oil fuel in
industrial and utility boilers and
industrial furnaces continues to be
exempt from regulation. The Agency
intends to regulate such burning under .
permit standards to be proposed in, 19B6.
as discussed below.
.Administrative requirements such as
notification, receipt of identification
number, and compliance with manifest
or invoice (for off-specification used oil
fyel) systems are being promulgated
today to enforce the prohibitions on
• burning of hazardous waste fuel and
offspecification used oil in nonindustrial
boilers.
• Today's rule also applies RCRA
.hazardous waste storage standards to
facilities storing hazardous waste fuels.
Such waste-derived fuels have
heretofore been exempt (on an interim
basis) from storage standards when
produced by a person other than the
generator. See Si 266.30(a) and
266.34(c), 50 FR at 667 (January 4,1985).
Several modifications have been
made to the proposed rule in response to
comments. These include: the rebuttable
presumption of mixing hazardous
halogenated solvents with used oil is
based on a total halogen level of 1000
ppm rather than a total chlorine level of
4000 ppm; a specification for total
halogens is added to the used oil fuel
specification at a level of 4000 ppm; and
the effective date of the lead
specification level (set at 100 ppm) is
deferred for six months, while the other
specification parameters are effective
.ten days after promulgation.
The Agency is also developing two
other rulemakings that will regulate the
blending and burning of used oil and
hazardous waste for energy recovery.
EPA will soon be proposing a rule that
would list used oil as hazardous waste
and establish special management
standards for recycled oil, including oil
burned for energy recovery. Those rules
would go beyond today's final rule by
providing standards for used oil
generators and collectors, and by
regulating die transportation and
storage of used oil. Today's final rule
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49166 Federal Register / Vol. 50, No. 230 / Friday, November 29. 1985 / Rules and Regulations
places administrative controls only on
marketers and burners of used oil
burned for energy recovery, and does
not regulate the transportation and
storage of used oil.
In 1686, we are scheduled to propose
permit standards for the actual burning
of hazardous waste and used oil in
boilers and industrial furnaces. Under
those permit standards, hazardous
waste could be burned in any boiler or
industrial furnace, irrespective of
purpose (i.e., hazardous waste could be
burned for energy recovery, material
recovery, or destruction).1 Burning of
contaminated (i.e., off-specification)
nsed oil would be permitted under
•pedal permit-by-mle standards.
HL Nonregulatory Alternatives
EPA carefully examined a number of
nonregulatory strategies for managing
used oil. but failed to identify any that
would be as protective as these
regulations. See 50 FR at 1687 (January
11,1985}._The most promising approach
considered was a tax rebate system.
Under this system, i tax on virgin lube
oil would be rebated to "acceptable"
users of used oil (e.g., rerefiners,
"acceptable" burners). We explained in
the proposal, however, why a tax rebate
system would be ineffective in
protecting human health-and the
environment and impractical to
implement
In response to EPA's discussion on
nonregulatory alternatives, one '
commenter suggested a program
whereby "do-it-yourself" oil changers-
would voluntarily bring their nsed oil to
gas stations to be sold to rerefiners.
While the Agency is strongly in favor of
of rerefining, EPA's objective in
promulgating today's regulations is to
begin to regulate used oil management
to ensure that it is managed in an
environmentally acceptable manner. See
.RCRA section 3014. This provision does
not authorize EPA to determine
preferential recycling approaches and to
direct used oil to those approaches.
provided alternative types of recycling
are conducted in a manner that protects
human health and the environment*
1 Hazardous waste may be trained for
ue* traction, previously and under today'* rule, only
under RCRA hazardous witte incinerator standards
found to 40 CFR Part* 2S4 end 285.
* We believe that today*e regulations will. In fact.
mult in a lubitantlal Increase In uted oil rerefining.
Used oil that does not meet the specification and
that It currently burned for energy recovery In
noolndustrial boiler* muat either be blended to meet
the specifics lion or diverted to industrial or utility
bollen or Industrial furnaces. We expect that •
substantial amount of this oil will find Its way to
rereflnen. We note also that EPA anticipates
prepoilng in Spring IBM Federal procurement
PART TWO: MATERIALS THAT ARE
REGULATED
L Overview
Today's rules apply to hazardous
waote and used oil burned for energy
recovery. When so recycled, these
wastes, and materials that are produced
from or otherwise contain these wastes
as a result of blending, processing, or
other treatment are termed hazardous
waste fuel or used oil fuel. These terms
are defined in this section. We also
discuss how to determine when a waste
is burned for energy recovery and the
applicability of these rules to burning for
materials recovery. In addition, we
discuss when combustion residuals from
boilers and industrial furnaces burning
hazardous waste and used oil are
subject to regulation as hazardous
waste. Finally, we discuss, in response
to comments, our plans to give special
consideration to regulating the on-aite
burning of de minimis quantities of
hazardous waste fuel and off-
specification used oil in the
development of permit standards for
boilers and industrial furnaces
scheduled to be proposed in early 1986.
In defining "hazardous waste fuel".
we discuss the basis for exempting
certain hazardous waste fuels from
these regulations—petroleum refinery
fuel products derived from hazardous
waste produced by refining end
ancillary operations, and coke and coal
tar derived from hazardous waste .
produced by coal coking operations in
the iron and steel industry—and why wa
are rejecting arguments by some
* commenters to exempt or exclude other
hazardous waste fuels.
In defining "used oil fuel", we define
used oil and explain the difference
between used oil and "oily waste." In
addition, we discuss the specification
for used oil that may be burned in
nonindustrial boilers, and explain why
we added total halogens to the proposed
specification at a level of 4,000 ppm and
why PCBs were deleted from the
' proposed specification. We also respond
to comments regarding why other
parameters were not added to the
specification and why certain
specification levels were selected. We
also discuss how to distinguish between
hazardous waste fuel and used oil when
the used oil may have been mixed with
hazardous halogenated solvents, when
used oil may be mixed with small
quantity generator hazardous waste,
and when used oil exhibits a
characteristic of hazardous waste.
Finally, we respond to comments on
allowing blending of used oil to meet the
specification, banning all burning of
. used oil in nonindustrial boilers, and the
availability of analytical testing
procedures to determine confonnance
with the specification,.
IL Determining When a Waste is Burned
for Energy Recovery
Today's regulations apply to
hazardous waste and used oil burned
for "energy recovery." This limitation
raises two questions: how to distinguish
burning for energy recovery from
burning for destruction, and determining
how to regulate if burning is conducted
to recover materials.
In the January 11,1885 proposal (see
SO FR at 1690), we explained that the
Agency had already addressed what is
meant by burning for legitimate energy
recovery. We explained that burning of
low energy hazardous waste as alleged
fuel is not considered to be burning for
legitimate energy recovery, even if the
low energy hazardous waste is blended
with high energy materials and then .
burned. Thus, boilers and industrial '
furnaces burning low energy wastes (i.e.,
having less than 5,000-8,000 Btu/lb
heating value, as generated) * could be
considered to be incinerating them, and
no be subject to regulation as hazardous
waste incinerators.
Although today's rule prohibits the
burning of hazardous waste fuel and off-
specification used oil fuel in
nonindustrial boilers, the principles of
the statement remain in force. We have
indicated, however, that if we were to
apply the Enforcement Policy Statement
to industrial (and utility) boilers and
industrial furnaces, we would seek to
enforce in situations where low energy
hazardous waste adulteration was
deliberate and massive. This is because
we have said that larger industrial
boilers are more efficient at recovering
energy and so could be deemed, more
often, to be burning lower energy wastes
legitimately. (See 48 FR at 11159 (March
16,1983).)
A second question is the scope of
these regulations when burning involves
material recovery. Normally, the
purpose for which a material is burned
makes no difference in environmental
effect Hence, EPA envisions an ultimate
regulatory scheme where regulation of
burning applies (as may be necessary to
protect human health and the
environment) regardless of purpose hi
all situations within the Agency's
Jurisdiction. We now address this
guidelines under authority of RCRA Section 0002
regarding procurement of recycled lubricating oils.
* See Statement of Enforcement Policy issued
Jonuary IB. 1863 (printed at 48 FR 11157 (March 16.
1883)).
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Federal Register / Vol. 50. No. 230 / Friday. November 29. 1985 / Rules and Regulations 49167
question as it applies to bunting in
.boilers, burning for a dual purpose in
industrial furnaces, and burning in
industrial furnaces solely for material
recovery.
We explained in the January 11,1985
preamble that since boilers, by
definition, have as their primary purpose
the recovery of energy, if materials are
also'recovered, this recovery is ancillary
to the purpose of the unit and so does
not alter the regulatory status of the
activity. (See also definition of "boiler" .
in SO FR at 661 (January 4,1985).) We
also explained that the regulations apply
when an industrial furnace burns the
same material for both energy and
material recovery (e.g., when blast
furnaces burn organic wastes to recover
both energy and carbon values).
Today's regulations, however, do not
apply to hazardous wastes burned in
industrial furnaces solely for material
recovery. In large part, this is because
the primary focus of today's regulations
is on waste burning in nonindustrial
settings (apartment buildings, hospitals,
etc.). In addition, as discussed in the
January 4,1985 preamble to the
definition of solid waste and the
preamble to the proposed rule in this
proceeding, there are certain situations
where control of burning for material
recovery in industrial furnaces could
lead to an impermissible intrusion into
the production process and so be
beyond EPA's authority under RCRA.
See 50 FR 830,1690. These situations are
limited, and involve circumstances
where the secondary material being
burned is indigenous to the process in
which the industrial furnace is used, for
example, because the secondary
material contains the same types and
concentrations of constituents
(particularly hazardous constituents
listed in Appendix Vffl of Part 261) as
the raw materials normally burned in
the industrial furnace. Id.* In EPA's
forthcoming regulations establishing
permit standards for burning in boilers
and industrial furnaces, EPA will
establish permit standards for industrial
furnaces burning for material recovery
(as well as for energy recovery or
destruction) in all situations not beyond
EPA's regulatory authority.
DL Hazardous Waste Subject to
Regulation .
A. Definition of Hazardous Waste Kiel
1. Hazardous Waste Fuel. With
certain exceptions discussed below.
these rules apply to hazardous wastes
(and fuels that are produced from or
otherwise contain hazardous waste as a
result of processing, blending, or other
treatment), that are burned for energy
recovery ma boiler or industrial furnace
that is not operating under RCRA
standards for hazardous waste
incinerators.1 Such fuel is termed
"hazardous waste fuel".'
Certain commenters questioned
whether these rules (and by extension
RCRA section 3004(q)) would apply
when energy recovery from burning
hazardous wastes is merely incidental,
or when energy recovery is not the
principal purpose of burning. Today's
rules apply where energy recovery is
significant or purposeful The Agency
stated as long ago as 1983 in a
Statement of Enforcement Policy (48 FR
11159 (March 16.1983)) that ordinarily
burning low energy (lens than 5,000 Bra
Ib.) hazardous waste is not considered
to involve energy recovery, in spite of
incidental energy release. See also 50 FR
at 630 (January 4,1985), and 50 FR 1690
*• If a waste that to hazardous rally because M
•xhibiU a characteristic to used ai an ingredient in
a fuel, and the waite-darived fuel doe* not exhibit a
characteristic. toe waste-derived fuel would not be
considered to b* « hazardous watt*. (See
|2MJ(dHi).) '
• Several cunuaenten suggested that "hazardous
waste fuel" i* an Inappropriate term to BM to
detail* these fuel* ainct it create* a stigma that
will diuonrag* the BM of th* fuel btcauM of the
perceived increased risks associated with
hazardous wait*. tommentera believed that the
negative association of hazardous watt* with the
fuel would cause many man to (top I
4 An example could be a emelting furnace
resmelting one of iti own lilted process residue*, b
ouch situations, the secondary material would not
be a solid wait* at the time of burning in the
industrial furnace even though it is classified as •
solid waste for purposes of storage prior to burning.
Note further that the derived-from rule
(1281.3(c)(2){i)) thus would not apply to wastes
generated by the burning.
fuels and, therefore, depress the business of those
marketing these fuels, particularly used oil mixed
with hazardous waste. Several oommeiitert
suggested mat the Agency use a different term with
leu negative connotation (e.g» "regulated" at
"RCRA-reguleted fuel").
We acknowledge that we-hav* previously (see
8 Z61.8(a)ll). SO FR BBS (January 4. UBS)) termed
hazardous wastes that are recycled as "recyclable
materials". We continue to believe, however, that
hazardous waste burned for energy recovery should
be termed "hazardous waste fuel" for a number of
reasons. The warning label provision of section
SOM(r) of the Hazardous and Solid Waste
Amendments of 1964 (HSWA) requires that an
Invoice or bill of sale for hazardous waste fuel bear
• statement that the fuel contains hazardous wast*.
Although that provision to superseded by the
manifest requirement promulgated today, we
believe mat Congress intended that EPA controls
for such fuels make it clear mat the fuels are. or
contain, hazardous waste. In addition, although the
January 4.1085 promulgation termed recycled
hazardous waste as "recyclable materials", that
tide also provided basic controls for hazardous
waste burned for energy recovery (expanded by
today's rule) and. in fact, first defined such waste as
"hazardous waste fuel". See Subpart D of Part 286.
SOFR807.
(January 11,1985) reiterating this
principle. Thus, if boilers or industrial
furnaces bum hazardous wastes
containing organic constituents thege
rules would not invariably apply.
These rules do apply, however, if
hazardous wastes (viz. any hazardous
secondary material (see S 261.2(c)(2),
January 4,1985 and August 20,1985)) are
burned in industrial furnaces or boilers
both to recover energy (i.e., to provide
substantial, useful heat energy) and for
some other recycling purpose, even if
energy recovery is not the predominant
* purpose of the burning. EPA already has
taken this position in the rules codifying
section 3004(q) of RCRA. 50 FR 28724
(July 15.1985). In addition, as noted
above, the Agency is moving away from •
tests based on purpose because the
purpose of burning normally is unrelated
to its environmental effect Indeed, the
argument that these rules (as well as
RCRA section 3004(q)) should apply
only where energy recovery is the
principal purpose of burning would
resurrect the discredited "primary
purpose" test formerly used by EPA to
distinguish recycling from incineration. -
• As both the Agency and the Congress
have stated, this standard was largely
irrelevant for evaluating environmental
effects of burning, and proved
exceedingly difficult to administer. See
48 FR 14483 (April 4,1983); S. Rep. No.
284, 98th Cong. 1st Seas, at 36 (1983). Nor
is section 3004(q) of RCRA limited to
situations where energy is the principal
purpose of burning, the plain language of
the statute applying to hazardous waste
burned "for purposes of energy
recovery" (RCRA section 3004(q)(l)(B)).
or "burned to recover useful energy"
(RCRA section 3004(q)(2)(B)). The
statute also classifies hazardous waste-
derived petroleum coke as a section
3004(q) fuel (see RCRA section.
S004(q)(2)(A)), even though petroleum
coke is burned for several purposes,
only one of which (and not necessarily
the most important) is energy recovery.
See S. Rep. No. 284, supra at 39.T.
Consequently, these rules apply
where hazardous wastes are burnea in
boilers or industrial furnaces and
provide substantial, useful heat energy.
Such burning is considered to involve a
hazardous waste fuel within the
meaning of RCRA section 3004(q).
2. Eliminating Certain Existing
Regulatory Exemptions for Hazardous
Waste Fuels. These rules expand the
» Section S004(q) also epplim on its face to
cement Idlni burning hazardous waste eveu though
these industrial furnace do not burn wastes for the
sole purpose of energy recovery. RCRA section -
90M(q)l2)[C).
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49168 Federal Register / Vol. SO. No. 230 / Friday. November 29. 1985 / Rules and Regulations
universe of hazardous waste subject to
RCRA regulation when burned for
energy recovery by removing two
exemptions. Although the Agency has
jurisdiction to regulate under RCRA all
•pent materials, sludges, by-products,
and { 261.33 commercial chemical
products, all fuels to which these
materials are added, and all fuels
derived from or otherwise containing
these materials when they are '
transported, stored, and burned for . -
energy recovery (see 50 PR 630 January
4,1935), and 50 FR 33541 (August 20.
1985)), EPA currently regulates the
storage and transportation of hazardous
waste burned for energy recovery only
on a limited basis. Thus, the following
hazardous waste fuels are provisionally
exempt: (1} Spent materials and by-
products exhibiting a characteristic of
hazardous waste; and (2) hazardous
waste fuels produced from hazardous
waste by blending or other treatment by
• person who neither generated the
waste nor bums the fuel (See SS 266.3O
and 26&3C in 50 FR 687 (January 4,
1985).) Under the first exemption, only
listed wastes and sludges (both listed
and characteristic) an currently
regulated.* Thus, nonsludge,
characteristic-only wastes are currently
exempt Under the second exemption.
waste-derived fuels produced by off-
•site, third-party marketers are currently
exempt. Today's rules remove both of
these exemptions so that the1
transportation, storage, and other
controls apply to all hazardous wast*
fuels.
We have also explained why neither
exemption is environmentally
justifiable. See SO FR 1705 (January 11.
1885). There is no general distinction
between potential adverse effects of
burning listed or characteristic
hazardous wastes. Nor is there any
general distinction between hazardous;
waste fuels marketed directly by
generators or by marketers unrelated to-
those generators. These exemptions, in
fact, have always been provisional, and
exist because of the Agency's initial
uncertainty (in 1980) about an
appropriate regulatory regime for
recycled wastes. Id. Although the.
Agency promulgated * regulatory regime.
for many recycling activities on January
4,1985. we decided to remove these-
exemptions in today's rulemaking
dealing solely with burning for energy
* Liilad rrnnmrrcUI chaalod product*. bowr»«R
•re Dot tolld waitei (or hazardous waitei) whin
burotd for energy recovery tf th«y ere themeelv**.
ftialt or normal componanta of commercial fuel*.
Eft4QCTR28L33.50FR2a7uauJjrlMSe3J.All
example 1* plpclin* interim generated from tfc»
tnniport of tolumt. wbtn tbc fatstfita ittaiwd
lor energy recovery.
recovery rather than in the January 4,
rulemaking to avoid confusion or
disruption that would result from
extensive, piecemeal changes of the
current fLe., May 19.1980) rules; See 50
FR 632 (January 4,1985).
B. Consideration of Exemption for
Ignitable-Only Hazardous Waste
In the proposed rule, we solicited
comments on whether wastes that are
hazardous only because of their
ignitability should be exempted from th*
prohibition on burning in nonindustrial
. boilers. (See 50 FR 1701 (January 11.
1985.) We also asked if these "ignitable-
only" wastes should be exempt from aU
controls (including storage and
transportation), or just the prohibition
on burning in nonindustrial boilers.
We reasoned that burning such
wastes would not pose any greater'
danger of fires or explosions than
commercial fuel oils if me minimum
flash point was limited to 100* F.
However, we also noted that Ignitable-
only wastes may actually contain
significant levels of toxic compounds
because the Agency has not completed
its listing of wastes that are hazardous
because of their toxidty. Therefore, we
indicated that as a part of any
exemption scheme those toxic
compounds of concern must be
identified, acceptable concentrations
must be determined, analysis
procedures must be prescribed, and
recordkeeping procedures must be
required.
For a number of reasons, today's rule
does not provide an exemption for
ignitable-only hazardous waste.
Although commenters acknowledged th*
need to ensure that the waste does not
contain significant levels of toxic
constituents, they were not helpful in
suggesting a rational approach for
setting safe levels for the constituents or
an implementation scheme that would
avoid the expense of analyzing
shipments for virtually every compound
on Appendix Vm of Part 261. Several
commenters suggested that the presence
of Appendix Vm compounds that occur
naturally in virgin fuel (e.g., toluene.
xylene, benzene, metals) should be
considered in setting acceptable levels-
for an exemption. For "non-fuel"
compounds, several commenters
suggested a maximum, level of 100 ppm
while one commenter suggested 1 ppm;
and another suggested that acceptable
levels be based on assessment of risk,
As we indicated in the proposal, 100
ppm may be an appropriate level for
some constituents while a lower level.
perhaps 1 ppm, would be appropriate Cor
the more toxic constituents.
Commenters provided nj insight on how
acceptable levels would be assigned to
the various compounds of concern.
Moreover, even if it were assumed that
acceptable levels for all Appendix Vm
compounds could be determined.
commenters did not focus on the
analytical burden they would face to
endure that shipments met the
conditional exemption.
We have concluded that a conditional
exemption would be very difficult to
develop and very expensive to the
regulated community to implement.
Moreover, it is not clear that a
substantial amount of hazardous waste
would even be eligible for an exemption
conditioned on the presence of only very
low levels of the Appendix Vm
constituents not normally present in
virgin fuel oiL
We note, however, that we are
considering whether special permit
standards would be appropriate for
ignitable-only wastes under the Phase H
permit standards for boilers and
industrial furnaces to be proposed in
1986. Such special standards could be
fashioned after the current standards for
burning ignitable-only waste in
incinerators. See § i 264.340(b) and (c).
Under the incinerator standards, site-
specific factors such as quantity of
waste and location of die facility may
be used to determine if measurable, but
low, levels of Appendix Vm compounds
may pose a hazard to public health or
the environment. Wastes found to be
ignitable-only with insignificant level*
of Appendix Vm compounds are exempt
from the performance and operating
standards for incinerators. Although
waste analysis is required, the analytic
burden is minimized by considering only
the Appendix Vm compounds that could
reasonably be expected to be found in
the waste. Thus, consideration of an
exemption on a case-by-case basis as
part of a permit proceeding provides a
rational approach to consider the
significance of low levels of Appendix
Vffl compounds and allows for cost-
effective (Len limited) waste analyses.
C. Regulation of Fuels Derived from
Petroleum Refinery Waste
1. Petroleum Refineries that
Reintrodace Hazardous Wastes Front
Petroleum Refuting, Production, and
Transportation to the Refining Process.
EPA solicited comment on the status of
fuels from petroleum refineries that
reintroduced oil-bearing hazardous
wastes from petroleum refining,
production and transportation to the •
refining process. See 50 FR 1689-1690.
Although we proposed to define these -
materials as hazardous waste fuet we
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Federal Register / VoL SO. No. 230 / Friday. November 29, 1985 / Rules and Regulations 49169
solicited comment on the extent to
which the hazardous waste
• contaminants are removed by the
refining process, or are so diluted by the
process that they do not significantly
increase the level of contaminants
present in fuel. Id. If this is the case,
EPA believes it has the ultimate
authority to exclude the derived fuels
from being solid wastes, since the more
waste-derived fuels from a.process are
like products from the same process
produced by virgin materials, the less
likely EPA is to classify the waste- .
derived fuel as a waste. (It is dear,
however, that EPA possesses
jurisdiction under RCRA to make these
determinations. See RCRA section
3004(r).] The American Petroleum
Institute (API) submitted relevant data
on these points which EPA noticed for
public comment on June 26.1985.50 FR
26389.
These data, though limited, seem to
indicate that at large, sophisticated
refineries, these recycling practices do
not significantly contribute to metals
levels in the refined fuels. However,
EPA cannot as yet determine whether
this is due to the refining process itself,
or whether the amounts of waste
reihtroduced into the process are so low
as to be diluted. In particular, API's data
indicated that less than one percent of
hazardous waste (As, chiefly oil
reclaimed from hazardous wastes) is
reintroduced into the refining stream at
a crude petroleum refinery. Based on
these data, they show that the increase
in metals content In the final product is
minimal. For example, cadmium levels
increased from 0.11 ppm to 0.12 ppm
while lead levels increased from 0.89
ppm to 0.91 ppm. (See Table 3, p~16 of
API's submission on comments on
reopening of comment period dated June
12,1985.) Thus, when only a small
percentage of waste is reintroduced
back into the refining process, it does
.not appear to appreciably effect metals
levels in the final refined products.
However, the Agency is concerned that
if contaminants are simply being diluted,
then if there were a significant increase
in the amount of hazardous waste feed,
resulting fuels could be significantly
contaminated since the wastes being
reintroduced contain concentrations of
toxic metals far greater than those in
most crude oils. In fact, the Agency has
some preliminary data from its
petroleum refining industry study which
indicates that for at least some metals-
arsenic and cadmium—the distillation
process does not necessarily remove the
metals from the fuels.
The Agency is considering an
approach which would indicate-that if
the amount of hazardous waste that was
reintroduced back into the petroleum
refinery was minimal (i.e.. less than one
percent), the fuel produced at the
refinery would be excluded (i.e.. would
not be a solid waste). In the short term
there are certain implementation
difficulties with this idea, particularly
the difficulties of determining
compliance for each batch since refining
is a continuous process. The Agency is
continuing to evaluate this possibility,
however.
Rather. EPA believes that more time is
needed to study these questions. In
particular, EPA intends to examine
further the question of whether removal
.actually occurs as a result of refining.
This would have bearing not only on the
question of whether regulation is
justified, but also on the question of
whether resulting fuels should be
classified as products or as wastes. EPA
particularly wishes to examine the
extent to which these wastes can
influence the composition of fuels from
smaller, less sophisticated refineries
which may remove fewer metals from
the wastes, and also may use a higher
percentage of wastes as feed-stocks.
At present, however, since there is no
persuasive evidence that reintroduction
of these indigenous hazardous wastes
into the refining process actually
contributes significant concentrations of
metals to the resulting fuels. EPA is
leaving in place the existing exemption
for such fuels contained in
i 261.6{a)(3)(v).BSee 50 FR 33542
(August 20,1985). Another factor
influencing continuation of the
exemption is that fuels produced only
from virgin crude oil can have higher
levels of toxic metals than fuels partially
produced from these hazardous
wastes.M See 50 FR 1695 (January 11,
1985).
Thus, fuels produced from refining of
indigenous, oil-bearing hazardous
wastes at a petroleum refining facility
will continue to be exempt By
"petroleum refining facility" EPA means
to include any facility that produces
hydrocarbon products (e.g. gasoline,
kerosene, distillate fuel oils, residual
fuel oil, etc.) from crude oil or its
•At explained in d*UU In the preamble to the
proposed rule, this provision doe* nor exempt the
hazardous wastes before they ire reintroduced into
the refining process (SO FR at 1669).
"EPA also considers the*a wasta-derived fuel* to*
remain petroleum, rather than hazardous
substances, for purpose* of Ihc comprehensive
Environmental Response. Compensation, and
Liability Act (CERCLA). See CERCLA section
101(14) (excluding petroleum from definition of
hazardous substances). In light of the widespread
nature of these recycling practices, to do otherwise
would potentially read the exclusion for petroleum
out of CERCLA. In addition, there is no indication
that Congress meant for these waste-derived fuels
to be considered hazardous substances when it
added sections 30O4(r) (2) and (3) to RCRA (which
provisions indicate that such fuels remain
hazardous wastes).
immediate fractionation products
through straight distillation of crude oil
or other intermediate products (e.g., gas
oils, naphtha, etc.] (This is the definition
of the Petroleum Refining Standard
Industrial Classification (SIC 2911).). For
these hazardous wastes to be
considered to be refined, they must be
inserted into a part of the process
designed to remove contaminants in the
normal operation of the refining process.
See 50 FR 28725 (July 15,1985). As we
explained there, this would mean
insertion of the wastes prior to
distillation or catalytic cracking. (The
distillation process is used to split the
feedstock into fractions based on the
various boiling points of the feedstock
components. The data submitted by API .
indicates that most of the metals
concentrate in the heavier (high boiling
point) fractions. Many times these
fractions are not used for fuels but
rather to produce asphalt or petroleum
coke. Therefore, there is a significant
probability of contaminant removal from
many fuel fractions if there is distillation
in the process.) In addition, without
distillation or insertion of the wastes
into another part of the process
designed to remove contaminants, there
will be no removal of contaminants at
all, and Congress regarded some
removal as one of the prerequisites for
exemption. See RCRA sections 3004
(r)(2)(B) and (r)(3)(A). and 50 FR at 28725
(July 15,1985). Consequently, if a facility
takes an oil-bearing hazardous waste
and processes it without distillation to
produce a fuel, the resulting fuel is not
covered by this exemption and so could
be subject to regulation. Similarly, if a
refinery inserts the waste into a part of
the process after distillation or catalytic
cracking (as explained above), resulting
fuels are not automatically exempt"
Under EPA's proposal, such fuels (i.e.,
fuels derived from petroleum refining
wastes which fuels are produced by
processes not using distillation, or the
fuels resulting when petroleum refining
waste are inserted into the refining
process after points at which any
contaminant removal can occur) were
classified as hazardous waste fuel
(assuming they were derived from listed
refinery wastes, or exhibit a hazardous
"Incidentally, certain used oil-baaed processes
produce used oil fuel from processes that use
distillation. These processes are not refining
operations (in spite of the use of distillation)
because they do not produce fuelt from crude oil.
Fuels from such a process thus an not
automatically exempt from regulation, but would be
If they meet the specification for used oil fuel. If this
type of processor should also use oilbearing
petroleum refining hazardous waste as a feed
material the resulting fuels would be exempt if they
meet the used oil fuel specification, since the
operation is comparable to those described in the
following paragraph in the text
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49170 Federal Register / VoL 50, No. 230 / Friday, November 29, 1885 / Rules and Regulations
waste characteristic} subject to all the-'
regulatory requirements for such fuel*.
EPA has modified this position in the
final rule so that such fuels are not
subject to regulation if they meet the
. same specification applied to fuels
produced from processing used oil—a
very similar operation. (In fact, the
Agency is aware of operations that
blend petroleum refining hazardous
wastes and" used olL) We have added an
exemption to §261.6{a)(3] to make this -
point This will ensure that the resulting,
fuels will pose no greater environmental
hazard than the virgin fuels that would '
be burned in their place.1* 1S EPA thus
believes this is the proper means of
controlling this potential problem. If the
waste-derived fuel should exceed the
fuel specification, it would be subject to
all of the rules applicable to hazardous
waste fuels. (As a hazardous waste fuel
which li not completely derived from
used oil. the fuel is not eligible to be
regulated under the special standards
reserved for used oiL See RCRA section
3014. This position is consistent with the
one taken in the proposed rule.)
2. OH Recovered from Petroleum
Refining Hazardous Wastes that is
Returned to the Refining Process. A
related question is the status of oil that
is recovered from hazardous wastes
generated during normal petroleum
refining, production, or transportation
practices. The recovered'Oil is usually
returned to the refining process as a
substitute for crude oil but can also be-
burned directly as a fuel Under
amended f 2613(c)(2) {see SO FR 664
(January 4,1985] and 50 FR (August 20.
1985)), such oil remains in the hazardous
waste system (if it is to be used to
produce fuel or is burned for energy
recovery). EPA solicited additional
comment on this issue on May 13,1885
(50 FR 19956).
EPA is not yet able to amend the rules
io state under what circumstances-
reclaimed oil might not be considered to
be a waste. This is largely because
11 SM prtambk Metloo IV-C of Part Two foe
dlKwulon on biting th* used oU fix! specification
leveli for metal* on level* found in virgin fuel oils. It
should be noted that th« specification lcv«l for lead
if higher thin lcv«l» found la Tiffin fu«L EPA U
subjecting nonexempt foils derived from petroleum
industry waste* to th* higher lead specification, at
!«•!! at is interim meinm. becitiM msny of the
facilities potentially affected abo procaaa used oil.
For Ih* moment, therefor*. EPA will apply all of the
tuid oil full specification to the resulting fuala. The-
Agency, however, U studying this question further
la preparing Iu Phaaa B rules.
" EPA could not normally apply this logic to fue!»
derived from natardooa wastes because the types of
hazardous constituents potentially prevent an much-
mon numeatts. and could b« presot to mca>
hisher coactatrationa, thaa those found hi oil-
bearing wastes from petroleum refining. pcodocUna.
and transportation (or in used oil). SM 50 FR ion
n.14. Hezardoos consUtuteata in other waster alao-
would not correspond to hazardous *
virgin fuels.
available data (which are limited) show
that the oil can contain higher metals
levels than virgin fuel oiL14 EPA thus
needs to study further the particular
means of oil recovery from these
wastes, and the composition of the
resulting oils in relation to composition
of virgin fuels.1'
EPA is prepared, however, to continue
the existing exemption (in
S 261.6(a)(3)(vi}) for these recovered oils,
and for fuels from petroleum refining
which are partially produced from these
recovered oils.. The data submitted by
API appear to show that the recovered
oil does not contribute significant levels
of metals to the refined fuels. (The
Agency is continuing to investigate
whether this is due to dilution or
removal incident to refining.) Nor does
the Agency believe it appropriate at this
time to regulate the recovered oil prior
to reintroduction to the refining process
in light of the incomplete
characterization of the oil's composition;
the likelihood of similar handling
practices for recovered oil as for crude
oil. and the possibility of
disproportionate impact of such
regulation on off-site facilities
recovering oil from these wastes vis-a-
vis refineries recovering oil from their
own wastes (which recovered oil is
almost invariably piped directly back to
the refining process and-so would not be
regulated under current EPA rules." .
However, if the recovered oil is to be
burned directly as a fuel EPA has
determined that the oil should be
regulated as a hazardous waste fuel
unless the oil meets the specification for
used oil fuel The situation is exactly-
analogous to hazardous waste fuels
14 Sec comments from American Petroleum
Institute CTabla 3. p. IB) dated June 12.1885.
" EPA solicited comment on the applicability of
the variance for closed-loop processss contained IB
amendtd 128041(b). It is possible that a parrallal
varianc* (to be applied on an industry-wide basis if
appropriate) for materials that arc reclaimed but
must ba reclaimed further before final recovery-
(128O31(c)) U appropriate. The Agency also is
continuing to assess the relationship of these
situations to RCRA section 3OD4(r) (2) and (3). Other
comments to the Agency's notice (parttcolarly mas*
on the existing regulatory status of recovered oil
and on whether then is any difference in fuels
"produced from" or "containing1* hazardous waste)
were answered fa the Agency's August 20 notice
Sm SO FR 33541.
>• An noted above, hazardous wastes from which-
oil b recovered are regulated until the poin» of oil
recovery. Distinguishing between recovered oil and*
listed hazardous wastes (i.e., API Separator Sludge,
Slop Oil Emulsion Solids, etc.) will not always ba an-
easy decision. In making this distinction, the
Agency will consider a number of factors, including
water content solids content and. in SCUM case*
metals content Thus, wastes with high water or
solids content will generally be perceived as-
hazardous wastes subject to regulation and not as
recovered oiL For example, if an oily waste is sent
ofT-slts to ba dewatered. this material would not be
considered a recaverd oil (exempt from regulation)'
but a waete subject to regulation, if this material
were also hazardous.
produced by processing (rather than
refining) these oil-bearingwastes. We
have explained above why it ia
appropriate to apply the fuel
specification to these waste-derived
fuels, rather than (as at proposal) to
regulate them as hazardous waste fuels
regardless of composition. We also are
including an exemption in 8 2B1.6(a)(3)
for recovered oil burned directly that
meets the used oil fuel specification.
4. Statutory, Conditioned Exemption
•of Coke Derived from Indigenous
Petroleum Refinery Wastes. The
petroleum refining industry also
produces coke from refinery process
wastes. If the coke is produced from or
contains listed hazardous waste, the
coke produced from such wastes is a
hazardous waste. The Hazardous and
Solid Waste Amendments (HSVVA) of
1984, however, exempted from
regulation as hazardous waste fuel such-
derived coke provided: (1) The
Hazardous waste used to produce the
coke is indigenous to petroleum refining;
(2) the coke is produced at the same
facility that generated the hazardous.
waste; and (3) the coke does not exhibit
G characteristic of hazardous waste.
(See section 3004(q)(2)(A). This statutory
exemption is codified at 9 266£l(b)(2) "
and is redesignated in today's rale as
i 266.1(a)(3)(ix).
D. Exemption of Coke and Coal Tar
Produced From Coal Tar Decanter
Sludge by the Iron and Steel Industry
EPA indicated hi the proposed rule
that it would consider granting an
exemption to coke produced from coal
tar decanter sludge [EPA Hazardous
Waste K087] if commenters provided
data that demonstrate that hazardous
contaminant level* in the coke are not
appreciably increased by recycling the
tar sludge. (See 50 FR 1690.) Today's rule
exempts such waste-derived coke (a
hazardous waste fuel even though not
burned exclusively or necessarily
primarily for energy recovery (see
section m.A.1 above)) from regulation
as hazardous waste and also excludes;
coal tar produced from coal tar decanter
sludge.
Tar decanter sludge is- generated
during the recovery of a coal tar by-
product produced during the production
of coke from cdaL The sludge is listed as
hazardous waste because of high level*
(about 1%) of phenol and naphthalene.
The sludge ia frequently recycled by
mixing it with coal before it is charged
to a coke oven to produce coke. The
coke product is typically used as- a fuel
in steel blast furnaces. In addition, the
sludge is sometimes-mixed back into the
coal tar by-product, which is also
" Se»"SO FR 2B731 (July15.1985);
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/
federal Kegbter f Vol. SO. No. X3Q 4 ftiday. November 29. 1885 f Hules and Regulations 49171
frequently and as a fuel Both of these
waste-derived fuels are -exempted from •
toddy's mles frr the .reasons discussed
ibefow,
The -American Iron -and Steel Institute
{AISI) and Koppers Company. lac.
provided comments -yyplflfofaip rtu»
•coking operation and how tar riff ranter
sludge is recycled. In particular, when
the sludge is mixed with coal before it is
charged to the coke even. fl»«» Hffwrrlpw*
ynrrptftut""** in flie sludge (phenol and
nlcno) are tdri ven off during 4hc
process along with ether vblatfle
compounds formed by the thermal
cracking of organic c-nrnpnunfla in *^**
coal.These volatile compounds are
condensed to recover a coal-lar "by-
product TRie tar decanter sludge is
produced during recovery of the coal tar
and consists of coal tar and "inert
carbonaceous material carried overirom
the coking operation". {See AISI
comments, page 3.J AIS and Koppers
provided analyses of the waste-derived
coke product indicating that phenol and
naphthalene were not detected in the
coke at detectable levels ranging from
less than 1 ppm to as nigh as 20 ppm.
We conclude that phenol and
naphthalene are not present in such
coke at levels that would pose
. substantial risk to 'human health and the
•environment, .particularly considering
that the cokeis burned as fuel and that
any trace levels of these compounds
would be readily combustible.
AISI -also indicates that the same
principle (i.e., if recycling a -waste does
mot increase levels of toxic constituents
IB • waste-derived product, the product
vhould be exempt from regulation)
should be -applied to coal tar mixed with
tar decanter sludge. A3SI states that
when tar decanter stodge is mixed back
into the coal tar f after passing through a
ball mill to produce a uniform material},
the phenol and naphthalene content -of
me coal tar by-product is not
.significantly affected. AISI argues that
coal tar itself contains significant levels
of these hazardous compounds
^typically 1% phenol and 10%
naphthalene), and that tar decanter
sludge it simply a mixture of coal tar
and carbonaceous material. Further, 4ae
sludge is mixed with the -coal tar in
small volumes representing about IS of.
the coal tar by-product "We, therefore,
conclude that such recycling does not
increase levels of phenol and '.
oapthalene hi the coal tar by-product
and the coal tar should be exempt from
today's rules when burned lor energy
zecovery.
These exemptions apply wily to the
waste-derived products, and -only when
derived from tar decanter kludge. Thus,
tar decanter -sludge is subject to luD
RCRA regulation prior to recycling, and
ats exemption docs -not -extend lo coke
sir coal4ar»deiivBd fromztazardous
waste je£* spent solvent*) other than
tar decanter aindge designated as£PA
Hazardous Waste KO67-.
E. Status dfCaa Recovered from
Landfills
We are fndicati&g that today's £nal
rules on hazardous waste fuels do not
apply to jas recovered from landfills
that is burned for «nergy recovery in
•boilers or industrial furnaces. Although
it isJn«ttb«tanUa1 improvement in furnace
operations and, thus, oonttitutet a ii>ono//cte.(l j,
aaceasaiy) Injredient .given that.it U not common
•practice to Inject-cnterine-bearing material* in a
blut furnace.
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49172 Federal Register-/ Vol. 50. No. 230 / Friday. November 29. 1985 / Rules and Regulations
product. In fact releases substantial.
useful heat energy to « blast furnace
and, thus, is burned partially for energy
recovery within all reasonable
understanding of the term. Although we
agree that energy recovery is not the
sole purpose for burning Cadence
product in a blast furnace, the fact that
substantial, useful energy is recovered
subjects Cadence product to regulation
as hazardous waste fuel (See discussion
above in section IILA.1 where we
, explain that regulation of burning for *
energy recovery does not turn on the
sole or primary purpose of burning.)
a. General Description of Bleat
Furnace Operations. Iron blast furnaces
are used to smelt iron ores to produce
crude iron (pig iron) suitable for
steelmaldng. The iron blast furnace is a
large, shaft (vertical) reactor. Iron ores
along with coke and fluxes such as
limestone and dolomite are charged Into
the top of the reactor. A large volume of
air preheated to 2000 *F (termed "hot
blast") is injected into the bottom of the
furnace to bum the coke to produce the
heat and reducing gas needed to drive
furnace reactions. Temperatures hi the
combustion zone at the bottom of the
furnace range from 3700-3900 *F. The
coke provides both the primary source
of heat and the primary source of carbon
used to produce the reducing gas carbon
monoxide. The-carbon monoxide
reduces the iron ore by (net) energy
absorbing reactions to produce pig iron.
About 1000 Ibi of coke are required to
produce a ton ofpig iron. Gases drawn
off the top of the furnace contain excess
carbon monoxide to give me gas a
heating value of about 90 B hi/ft*. About
one third of this furnace gas is used as a
fuel in stoves to preheat the combustion
air (Le* the hot blast). The remainder of
the furnace top gas is used as a fuel in a
boiler plant or in other heating
applications within the steel plant
Melted iron and liquid slag are drawn
off from the bottom of the furnace.
b. Modem Method* of Reducing Coke
Rates, Coke has become Increasingly
expensive since the early 1960's because
of the rising price of metallurgical coals
needed to produce suitable coke and the
rising cost of coking operations because
of environmental and other concerns.
Reducing coke rates is also
advantageous because furnace
productivity is increased by increasing
the iron ore to coke volume ratio
charged to the furnace (i.e., coke can be
replaced by iron ore, thus increasing
iron output).
The two principle methods of reducing
coke rates are to increase hot blast ,
temperatures and to inject fuels '*.
through tuyeres (i.e.. firing nozzles) into
the combustion zone at the base of the
furnace. Both approaches generally are
employed together because fuel
injection enables operators to control.
flame temperatures in the combustion
zone (raised by increasing hot blast
temperatures] to optimum levels. In
addition, the injection of hydrocarbon
fuels replaces the carbon in the
displaced coke and ensures that
appropriate furnace gas composition
conducive to iron ore reduction is
maintained. The heat energy of the
hydrocarbon fuels also replaces the heat
• energy of the displaced coke. Given that
coke is both the primary fuel and the
primary source of reducing gas (carbon
in the coke is converted to the reducing
gas carbon monoxide], when the coke
rate is decreased substantially (I.e., by
increasing hot blast temperature and
using fuel injectants) the heat energy
and source of reducing gas supplied by
the displaced coke must be provided by
some other source.*0 ** This source is
the tuyere-injected fuels like the
Cadence product
c. Although Fuel Injectants Cool
Flame Temperatures, They Provide
Substantial. Useful Heat Energy. Before
we explain how liquid fuel injectants
with substantial heating value like No. 6
fuel oil or Cadence product contribute
substantial heat energy to a blast
furnace, we will explain how they, at the
same time, actually cool flame
temperatures in the combustion zone.
Combustion zone temperatures are
maintained at 3700-3900' F by the
combustion of coke in the presence of
the 2000 * F hot blast (Le., preheated
combustion air). The net reaction of
injected fuels is endothermic (heat
absorbing) in this zone, Injected liquid '
fuels first undergo endothermic
vaporization, then exothermic
combustion to (ideally) carbon dioxide
and water where sensible heat is
released, and finally, endothermic
dissociation** and reducnpn in the
'• Ccdence's terminology notwithstanding.
tnyen-mjected materials with substantial heating
value in invariably tanned fuels in the technical
literatim. (
'• "The tarn* •tomi of eufaon «ra involved In
motions that generate the baat for tht furnace as
are involved aa tht reducing agent (aa carbon
monoxide) to convert the on to metallic Iron."
Statement by John Elliot In reference to bif review ,
of an EPA internal, deliberative, draft document •
Mr. Elliot's commentf an contained in
corretpondenee from counsel to Cadence, to
Winston Porter. Assistant Administrator for the
Office of Solid Waste and Emergency Response.
dated October 31.1965. (Release of this internal.
post comment period EPA document was not
intended.)
si stoem had been a popular (nonfuel) injeetant In
the IBOffs because it wee relatively cheap and
presence of excess carbon provided by
the coke to form the reducing gases
carbon monoxide and hydrogen.
Cadence argues that these liquid fuel
injectants are not burned for energy
recovery because tuyere-injected fuels
undergo net endothermic (Le., heat-
absorbing) reactions in the combustion
zone which reactions actually cool
flame temperatures, and that any heat
energy released from subsequent
reactions is incidental and unavoidable.
Cadence's argument ignores the fact that
fuel injectants first behave as bonafide
fuels by combusting to (ideally) carbon
dioxide and water. The amount of
sensible heat released during this
combustion phase is measured by a fuel
injectant's heating value in Btu/lb.
Immediately after the fuel is combusted,
the combustion products act as
ingredients to furnace reactions by being
converted to the reducing gases carbon
monoxide and hydrogen during
endothermic reactions. The fact that fuel
injectants release substantial heat
energy while providing hydrocarbons for
reactions enables operators to reduce
coke rates.** (As noted above, coke is
both the primary fuel and primary
source of carbon to the blast furnace.)
The hsat energy released from
subsequent (Le., outside the combustion
zone) reactions of fuel injectant
hydrocarbons is in fact substantial.
intentional, and useful contrary to
Cadence's claim that it is incidental and
unavoidable. As discussed above,
furnace top gas is used as fuel in stoves
to heat thct hot blast in a boiler plant, or
in other heating applications within the
steel plant The excess reducing gas
contained in the top gas that was not
used to reduce the iron ore gives the top
gas substantial heating value. The
excess reducing gas is contributed by
readily available, and It introduced hydrogen for
reduction. (Hydrogen supplement* carbon monoxide
ae a reducing gas in the furnace.) The use of steam
aa an mjectant however, consumne coke in the
combustion zone thereby reducing the overall
effectiveness of any increase in blast temperature.
Foil oil Injection, however, not only acts as •
coolant allowing the use of higher blast
temperatures, but also replaces a portion of the)
coke. Source; "Fuel-Oil Injection Into Bleat
Furnaces: A Literature Review1*, Journal of the
Institute of Fuel voL 49, n 388, June 1870, p. 73.
at At the 3700-3900 * F temperatures in the
combustion zone, a fraction of the carbon dioxide
and water vapor is thermally dissociated to form
carbon monoxide* hydrogen* and oxygen. See
Babcock and Wilcox. Steam. II* Generation and
Vn, 1878, p. 8-7.
""Injection of hydrocarbons through the tuyeres
of a blest furnace is carried oat (•) to replace coke
by cheaper sources of fuel and reductions; (b) to
increase (by lowering the proportion of coke In the
charge) the amount or Iran on in the furnace shaft"
Saute*; Peacey. J.G. and Davenport, W.G, The /ran
Blcmt Aunace. p. 140, Included in comments
submitted by Cadence on October 25,1986.
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.Federal Register ./ Vol. *0, No. 230 / Friday, November 28,1985 / Rules -and Regulations 49173
Jfixe coke and fuel injactants, roughly in
proportion to the amount of
hydrocarbons each provides to the
furnace. Aaahown in the table below,
furnace tap gas is a mbatantial fuel
source in that onjy about one-third of
the iuel.gas is used to heat the hot blast
while two-thirds i» available for other
•uses.
Empirical demonstration that burning
fcjel injectsnts supplies substantial
energy to blast furnaces is provided by
standard literature references. The table
•below shows an energy balance for •
.modern 28-foot diameter hearth furnace
•Derating at a hot blast temperature of
2000 * F with a coke rate of 870 Ib/tonof
•hot metal (Le. pig iron) and using fuel
oil injected at a rate of 170 Ib/ton of hot
metal. The fuel injectant provides about
22% of the beat input to the furnace, the
amout of coke needed towapply mis
energy (and reductonts) to a furnace
producing 4.000 tons per day of hot
metal would be more than 300 tons per
day. Thus, it is clear that fuel injeotants
provide substantial, useful heat to the
furnace.
BLAST FURNACE •ENERGY BALANCE
CtfdftCMh*
Top gaa
MM lop ga*
i«aet tor oh
ti »i«n>mi blaal «fr-_
awBl*l*i tor ottMr UM.
acHona. heat toe*. and
'MMoncol
Baipertin
•
mt
S.1
•*»«
•TUB
• AS
IBS
HUB
'Energy'
I tameoke did tutf of «n tie torn of
odd* and lytoaan) and parta»> i«cy
' Sour* Baaed on AM *) -Kkk-Olnmr
Chemical Tectmotogy. * 1S.-B. W. (19S1).
Injectants ihatiave no heating value
like steam, or .minimal .heating value,1!4
provide no or minimal heat energy to the
furnace and. thus, are not considered to
be fuel injectants. Thus, injectants with
no or minimal heating value are not
considered to be burned for energy
recovery.
Cadence's argument in fact proves too
much. It is clear that net furnace
reactions are endothermic—heat from
the coke and fuel injectants is required
to drive reactions that reduce iron -ore to
metallic iron. Under Cadence's logic-that
a material involved in an endothermic
reaction is .not a fuel irrespective of its
heating value, the coke would not be a
fuel. Yet it is the primary fuel source to
the furnace. The fact is that both coke
and fuel injeotants like the Cadence
•woduct-serve a dual purpose of
. providing aubstantial needed energy and
reductants.
d. Use of Cadence Product as a Tuel
hyectaat 'Cadence product is blended
with No. U fuel oil in a volume ratio of
•stout SO/50 for use as a fuel injectant
Cadence product is a fuel injectant
rrf&er than a-nonfnel injectant (e.g.,
steam), because it has a heating value
fey «pecffication of 10.500 to 1*,QOO Btu/
Ib, •which is comparable to the heating
value of coke and coal. Cadence
product 'like -other liquid fuel injectants,
Cools flame temperatures in the
combustion zone, it also provides
hydrocarbons for conversion to the
seducing gases carbon monodde »nA
hydrogen, provides gubstantial useful
heat energy to the blast furnace, and
thus enables operators to reduce the
colcerate,**
IB addition, we note that Cadence
itself has informed the Agency, the
' Congress, and the public on many
occasions that Cadenoe product is
burned by blast furnaces .(at least
partially) as a fuel Cadence's President
Mr. Reese so stated hi testimony to
Congress. Cadence's comments to the
Agency In the definition of solid waste
rulemaking {Cadence comments dated
August 1,1983, p. 16) refer to the product
•a* "CHEM-FUEL" and stressed this
•point: . > *
material and an wtsegymoune -when toed in
the blast fumaca. Its principal components
an hydrocarbons which provide the
msential carbon and hydrogen for ore
reduction vnd energy generation. (Emphasis
original} '
Cadence's licensees also stressed this
yoint when dealing with EPA's
enforcement officials, making the
emphatic point that high Btu hazardous
wastes were utilized so that the-burning
legitimately recovered energy.
Cadence's patent application states (hat
"fee material is used to support
combustion in "blast furnaces. Even in
the present rulemaking, a number of
Cadence's suppliers indicated that the
Cadence product (to which their
.hazardous wastes contributed) "is used
as a fuel by steel producers . . ,".
(Comments of Detroit Edison, March H,
1985; to the same effect see comments
37.73. and 87 to this rulemaking.)
Indeed, the Cadence material was
marketed for years under the tradename
"CHEM-FUEL". The Agency thus
M Ibe Agncgr ahnqv
• minimum heating value of WMO-MOO Btu/lb te b«
• boaafide fuel See Motion D in the text.
** There It no quettkmthif Cadence Product 812
••di to the Mnible ht«t of the heat and material
balance of the proceti ind that tnenori*
«oovered."Soun»: Nickel MeirtnE. "Commnti
oti-the tej«otion of Auxiliary FueU-in-fteTuyenw of
the Iron Blatt Furnace", September SO. 1885. p. 4
(unpubluhed report).
believes that 'fee company's own
pronouncements, as well as those of its
licensees and customers, indicate
strongly that Cadence product is burned
(partially) lor energy recovery.
2. Cadence Product Is the Type of
Recycled Material Over Which EPA has
furifdiotion.'Steppwg back for the
moment from the intricacies of blast
fcmace operations, it is apparent to the
Agency thai the Cadence product is the
type of material EPA is empowered to
evaluate and regulate if necessary to
•BKrtect human health and the
•environment due to (he nature of the
Cadence product its similarity to other
waste-derived fuels concededly within
EPA's authority, and the nature of the
ead recycling practice. Cadence product
is produced by Cadence's licensees
essentially by the simple blending oT
hazardous solvent still-bottoms and
other hydrocarbon-based hazardous
Wastes to meet a specification for
parameters of concern to blast furnace
operators, including heating value and
chlorine content Some of the hazardous
wastes are collected from generators
while other hazardous wastes (e.g.,
folvent recovery still-bottoms) are
generated by the licensee. The
specification limits heating value of
Cadence product to 10,500-14,000 Btu/lb
and chlorine content to 1-5%. Thus,
Cadence product is similar (or,
according 1o companies in the blending
business, identical) in production and
oentent to hazardous waste fuels burned
m •other industrial furnaces like cement
kilns.
<™? that:
the waste-derived materials used to
•Buutnfactnre Cadence Product 312 are not
suitable lor direct use in blast furnaces: they
fjnt must be analyzed and then fully
^recessed to finished good* specifications in
a Csde&ce manufacturing facility. The
production of Cadence Product 312 is
completely analogous to many well-
recognized manufacturing operations.
These unsupported assertions overstate
the sophistication of the Cadence
'"manufacturing process". In fact we
understand that other than simple
blending, the only processing that is
sometimes used at facilities that
produce Cadence product is the
distillation of spent solvents to recover
solvent This process, wholly unrelated
to the "manufacture" of Cadence
-product generates still bottoms that are
blended with other petroleum-based
wastes to produce the product Although
Cadence licensees conduct analyses of
waste feedstocks and blended product
to ensure conf ormance with
specifications, other waste blenders that
market hazardous waste fuels (e.g., for
ose in cement kilns) also conduct
analyses of feedstocks and fuel product
-------
49174 Federal Register / Vol. 50, No. 230 / Friday, November 29, 1985 / Rules and Regulations
to meet a specification. Thus, the
blending of wastes to produce Cadence
product Is similar to other waste-derived
fuel operation*.
Cadence's operations thus raise the
troubling question of what degree of
processing can transform a waste into a
product The Cadence process involves
relatively minimal processing. No
significant resources are recovered from
the Cadence product until it actually is •
burned. The Agency always has been .
leery of the notion that minimal
processing of hazardous wastes prior to
recovery of resources from them (in this
case, energy) transforms wastes into
products. It was for this reason that EPA
amended § 261.3{c) (2) on January 4,
3985 to state that materials reclaimed
from hazardous wastes remain
hazardous wastes when burned for
energy recovery, and indicated in the
same rule that hazardous wastes that
are partially but not fully reclaimed
remain hazardous wastes (see
{ 260.30{c).) These provisions illustrate
the general principle that minimal
processing before final recovery does
not ordinarily transform a hazardous
waste into a product Cadence's process
appears to raise-analogous problems of
using a relatively minimal processing
step as a means of insulating hazardous
waste recycling from RCRA jurisdiction,
When this fact is coupled with the fact
that the form of-end recycling of the
Cadence product closely resembles
incineration (in the sense that hazardous
wastes are burned by controlled flame
combustion), it is apparent to the
Agency that RCRA jurisdiction over the
burning exists.
Even more fundamentally, EPA does
not believe that the-question of
jurisdiction over the Cadence product
(or other similar waste-derived
materials) need rum narrowly on the *
question of whether it is burned
partially for energy recovery. Cadence
product is composed of toxic chlorinated
solvent still bottoms which (on a
nationwide basis) are typically disposed
of or incinerated. These still bottoms are
not similar to raw materials customarily
used in the iron-making process (Le..
toxic chlorinated solvents are not a •
typical feed or energy source to the iron-
making process). The recycling practice,
as well as prior transportation and
storage has the potential to cause
substantial harm to human health and
the environment if conducted
Improperly.1*
EPA believes that recycling of
hazardous secondary materials that are
so different from the raw materials
customarily utilized in the process is a
prototypical situation it is empowered to
control under RCRA Subtitle C This is
particularly true in this case because the
recycling involves burning (viz.
controlled flame combustion), and so
resembles incineration. The recycling
activity also is not part of a continuous
industrial process, but rather involves
unrelated parties and processes (Le., the
hazardous waste generators who
generate spent solvents and hazardous
still bottoms, intervening processors
(who cot only process but add
additional hazardous still bottoms to the
mixture), and the steel mill), in addition
to involving secondary materials
normally unrelated to the ironmaking
process. For these reasons, EPA is .
prepared to exercise its authority to •
designate Cadence product and all
similar materials, as solid wastes
pursuant to i 281.2(d) when recycled via
controlled thermal combustion hi
processes not customarily utilizing
chlorinated toxicants as a fuel or raw
material should this ever prove
necessary. In light of the Agency's
judgment that Cadence product is
burned partially for energy recovery and
so is subject to regulation as hazardous
waste fuel, it is unnecessary to exercise
this authority at the present time.**
** Preliminary rciults of EPA'i emissions tsst far
* Will furnace burning Cadence material indicate
that these device* may be abli to destroy w.90% of
toxic organic constituents in tb* material. If
confirmed, thia meant that there devices may be
able to safely bum toxic organic waatta under
appropriate condition*. Thia does not mean.
however, that these device* could alway* be
expected to achieve W.99% destruction efficiency.
absent regulatory control* on operating condition*.
Storage of Cadence Product also ha* the potential to
cs,nsa substantial harm. Aa discussed in the text in
section n of Part Four, the fact that •hazardous •
waits fuel i* being stored ase commodity 1*
insuffidont to prevent tubitantial risk.
*T There i* another point in Cadence's
presentation that i* deeply troubling to the Agency.
. Cadence i* arguing that when they blend and
process chlorinated hazardous waste*, the resulting
processed material ia • product excluded Cram
RCRA so long a* then are specifications (such aa
for total chlorine) on the end "product" and so long
a* all component* of that "product" are put to
beneficial use when burned. This argument applies
with equal force if the chlorinated hazardous '
wastes being processed were dloxin or
chlorophenoxy pestidde wastes (rather than
carcinogenic solvents): the blended product would
still be used a* a reducing agent in iron-making.
toxic organic compounds would provide
hydrocarbons to the iron*making process, and
chlorine would remove accumulated wall scale
within the furnace. Although these types of
hazardous wastes are not blended into Cadence
product to our knowledge, the point ia that their
argument does not preclude auch use. Cadence's
argument would in fact be identical. It thus seems to
the Agency that Cadence'a argument prove* far too
much, and seeks to preclude EPA bom exercising
authority well within the Agency's purview. '
3. Conclusion. In closing on this issue,
EPA stresses that it is not finding that
Cadence is engaging in an unsafe or
undesirable recycling practice. Quite the
opposite—Cadence has found a means
of utilizing resources in wastes, coupled
with destruction of the wastes toxic
constituents, that appears to be
environmentally beneficial What EPA is
finding in this proceeding is that the
Agency is empowered—that is, has the
jurisdiction—to evaluate the potential
risks posed by this recycling activity
and to prescribe regulatory standards if
the Cadence product managed
improperly (see RCRA section 1004(5)},
could pose a substantial hazard to
human health and the environment This
ia how EPA always has read its
overriding statutory duty to regulate
hazardous waste management "as may
be necessary to protect human health
and the environment" It may be that
due to the mechanics of blast furnace
operation, substantially tailored (or
even no standards) are needed to ensure
waste destruction. EPA is investigating
thin question as part of its Phase fi
rulemaking on burning hazardous
wastes. EPA is asserting here that it has
jurisdiction to make this evaluation.
IV. Used Oil Subject to Reguktkn -
A, Definition of Used Oil Fuel
These rules apply to used oil, and
fuels produced by processing, blending,
or other treatment of used oU, that are ,
burned for energy recovery in a boiler or
industrial furnace that is not operating
under RCRA standards for hazardous
waste incinerators. "Used oil" means
any oil that has been refined from crude
oil, used, and, as a result of such use,
contaminated by physical or chemical
impurities. See RCRA section 1004(38}."
Used oils include the following: (1)
Spent automotive lubricating oils
(including car and truck engine oil),
•transmission fluid, brake fluid, and off-
road engine oik (2) spent industrial oils,
including compressor, turbine, and
bearing oils, hydraulic oils,
metalworldng oils, gear oils, electrical
oilo, refrigerator oils, and railroad
drainings; and (3) spent industrial
process oils.
These rules apply only to used oil and
not necessarily to "oily waste". Oily
wastes, such as bottom clean-out waste
from virgin fuel oil storage tanks, or
virgin fuel oil spill clean-up, are not used
oilo because the oil was never "used"
for its intended purpose. Thus, oily
waste is not subject to these rules
10 The Agency will soon be proposing to modify
the definition of used oil in the Used Oil Listing and
Management Standards rulemaking.
-------
Federal Register / Vol. SO, No. 230 / Friday, November 29, 1985 / Rules and Regulations $9175
(provided it is not mixed with used oil
and that it is not a hazardous waste).
Today's rule marks the first time the
' Agency has used the regulatory
authorities created by die Used Oil
Recycling Act of 1980 (UORA). (UORA
is codified substantially as sections 1( 04
(36H39) and 3014 of RCRA.) UORA
requires the Agency to establish
"performance standards and other
requirements as may be necessary to
protect public health and die
environment from hazards associated
with recycled oiL" See RCRA section
3014(a). Burning used oil for energy
recovery—the subject of this rule—4s an
example of recycling. See RCRA, section
1004 (37).
The regulation of used oil fuels raises
the legal question of how the provisions
of UORA are to be integrated with other
RCRA provisions. As we stated at
proposal EPA believes that UORA
authorities may be used independent of.
or as a supplement to. Subtitle C of
RCRA. If recycled used oil (called
"recycled oil" under RCRA section 1004
(37)) is not also a hazardous waste, it is
subject to regulation under the
provisions of section 3014 rather than
sections 3001-3006,3008. and 3010. As
noted at proposal, this has significant
implications. For example, permits are
not necessarily required to manage
recycled oil, the criminal enforcement
provisions of'section 3008(d) do not
apply, and the regulatory program
cannot be dele?; Led to the States under
section 3006.1 »>r e Part Five of this
preamble for a discussion of the impact
of this rule on authorization of State
programs.)
If recycled >:••' is also a hazardous
waste, many of -.he Subtitle C
regulations fo: cir.er hazardous wastes
(40 CFR Parts 262-286) may apply.
•Section 3014. as amended by the
Hazardous and Solid Waste
Amendments of 1984, provides detailed
guidance on regelating recycled oil that
is a hazardous waste.
Today's rule- establishes a
specification for used oil that is
substantially excluded from •
regulation " ard that may be burned
without restriction in nonindustrial
boilers or any other boiler or industrial
fumace.Used oil exceeding any of the
specification levels for toxic metals,
flash point or total halogens is termed
"off-specification used oil" and is
subject to regulatory controls. The
" The pcnon who fint claims used oil burned for
energy recovery meets the specification ii subject to
notification, used oil analysis, and recordkeeping
requirement*. In addition, be nuit keep recordi of
the name and address of the facility receiving each
shipment the date of delivery, and quantity
delivered. See { 286.43(b] (1) and (6). '
specification and issues pertaining to
implementing the specification are
discussed below.
Of major importance is how to
distinguish between used oil and
hazardous waste given that used oil has
been frequently found to contain
hazardous halogenated spent solvents
and given that hazardous waste fuel is
regulated differently than used oil under '
today's rule (as weU as under the RCRA
statutory scheme). For example. '
hazardous waste fuel is not subject to .
the specification and so may not be
burned in nonindustrial boilers (unless
the boiler operates under RCRA
hazardous waste incinerator standards),
and hazardous waste fuel is subject
under today's rules to storage
. controls.80 " .
Issues pertaining to distinguishing
between used oil and hazardous waste
are discussed below.
B. Distinguishing Between Used Oil and
Hazardous Wastes
A number of commenters took issue
with EPA's discussion of how it intends
to distinguish between hazardous waste
and used oil (or if used oil is listed as a
hazardous waste, between used oil and
other hazardous wastes). See 50 FR
1690-1693. EPA indicated that there are
situations where it is difficult to tell if a
waste is used oil or a hazardous waste.
The difficulty is in determining whether
a used oil was mixed with a hazardous
waste, or whether the oil became
contaminated during its (the oil's) use.
The legislative history of the Used Oil
Recycling Act indicates clearly that
used oil that is contaminated during use
is to be classified as used oil and. if
recycled, be subject to regulation under
section 3014. See RR. Rep. No. 96-1415
ate.
We noted in the proposed rule that the
Agency is delegated discretion in
determining how to classify these
situations, and set out the general
principles that will guide the Agency's
exercise of discretion. These are: (1)
Where possible, clear, objective tests
should be used to classify hazardous
waste and used oil; (2) the Agency '
should not adopt a scheme whereby
most used oil is classified as a
hazardous waste ineligible for
regulation under the Section 3014
standards; and (3) any objective test
should ensure that massively
adulterated used oils are classified as
hazardous waste. See 50 FR 1691.
The Agency adheres to this analysis
in today's final rule, and indeed, this
position had the support of most of the
commenterar Several commenters
argued, however, that EPA's approach
showed an unwarranted bias against
regulating used oil as hazardous waste,
and so would lead to situations where
used oil is not regulated adequately to
protect human health and the
environment because most of the RCRA
Subtitle C standards would not apply.
One commenter even went so far as to
suggest that the Agency was misreading
its legal mandate under the HSWA to
regulate used oil as a hazardous waste.
These commenters misapprehend both
the law and EPA's stated approach. In
the first place, RCRA as amended draws
clear distinctions between hazardous
waste and used oiL The statute contains
a separate provision dealing with used
oil as a distinct class and authorizes
separate standards for its management.
(See RCRA section 3014.) Nor does the
statutory directive that EPA decide
whether to list used oil as a hazardous
waste (RCRA section 3014(b)) obliterate
this distinction. Even if EPA lists used
oil as a hazardous waste (and the
Agency intends to propose such action
later this year), used oil would still be
subject to regulation under different
standards than apply to other hazardous
wastes. See RCRA sections 3004(a) and
3014(c), (d). Thus, it remains necessary
to distinguish between used oil and
other hazardous waste.
It also is dear that EPA has discretion
on how to make these distinctions. The
legislative history to the 1984
amendments is explicit on this point
See S. Rep. No. 98-284.98th Cong. 1st
Sess. at 36,38; see also the Conference
Report H. Rep. No. 98-1133.98th Cong.
2d Sess., which speaks of used oil
contaminated with hazardous waste as
used oil to be regulated under Section
3014 (Le., as a ueed oil, not as a
hazardous waste).*1
EPA takes sharp issue with the
commenters' assumption that its
proposed (and now final) exercise of
discretion in classifying used oil leads to
a reduction in environmental protection.
With respect to During used oil, the rule
promulgated today establishes a used
oil fuel specification that regulates as
necessary to protect human health and
the environment within the meaning of
RCRA section 3014, when the used oil is
bumed in nonindustrial boilers. (See
••As noted at proposal, a Hazardous watte fuel
specification Is not a feasible option becsuse of the
hundreds of hazardous constituents thst would have
to be addressed and the difficulties of analyzing for
•11 of these constituents.
11 Specific comments that EPA exercised its
discretion improperly with regard to used oil
containing halogenated hazardous substances and
used oil from small quantity generators are
addressed in the preamble sections dealing with
these issues.
-------
•
40178 Federal Register / VoL 5ff> No. 230 / Friday, November 29» I§8S / Rules and Reguhtfong
section IV.C above.} With respect to
other management standards for
recycled used oil, EPA will soon be
proposing cradle to grave management
standards for such oil consistent with
Section 3014. EPA is not doing so in this
rulemaklng because the Agency wishes
to avoid piecemeal regulation of the
used oil management community
wherever possible." The commenters-
are incorrect however, that this
temporary deferral will lead to an
ultimate reduction in environmental
protection.
We discuss below how we apply the
principles for distinguishing between
used oil and hazardous waste to: Used
oil containing halogenated wastesftued
oil containing hazardous waste
generated by small quantity generators;
and used oil that exhibits a
characteristic of hazardous waste.
1. Uted OH Containing Halogenated
Wastes. Today'* rule, like the proposed
rule, reiterates the principle found in
i 251 J{a){2) of the existing regulation*
that a hazardous waste mixed with a
solid waits is a hazardous waste. Thus,
under this rule, mixtures of hazardous
waste and used oQ ordinarily are
classified as hazardous waste. It is not
always possible, however, to prove—or
even to be sure—that such tnim'ng has
occurred, particularly when no one has.
observed the act of mixing. Used oil
containing small amounts of hazardous
halogenated compound* is an example
where there may be uncertainty..
Since hazardous halogenated'
compounds—many of them hazardous
waste—are frequently found in used oil
(see Table 1 in the proposal (50 FR
1680}}, the Agency believes (and
virtually all commenten agreed) that a
simple, objective test is needed to
determine when used oil has been
mixed with hazardous spent
halogenated solvents (or other
halogenated hazardous waste) in order
to avoid case-by-case confusion as to
when mixing has occurred, and to aid in
consistent enforcement of the regulation.
To this end. EPA proposed, and i*
adopting today a rebuttable
presumption as to when mixing with
hazardous wastes has occurred.
a. The Rebuttable Presumption: The.
Standard and Mean* of Rebuttal,
Today's rule establishes a rebuttable
presumption that used oil p
been mixed with hazardous spent
halogenated solvents (i.e.. EPA
Hazardous Waste No's. FOOT and F002]
or other hazardous halogenated wastes
and, therefore, is a hazardous waste
under provision of the "mixture rule" of
40 CFR 281.3 (i.e., a mixture of a listed
hazardous waste and other material fs a
.hazardous waste unless delisted under
provisions of 40 CFR 260.20)*
In response to comment that EPA
clarify the available means of rebutting
this presumption, the final rule states
that the presumption can be rebutted by
demonstrating .to enforcement officials
that the oil is not mixed with hazardous
waste. One such approach in making
. this demonstration is to show that the
used oil does not contain significant
levels of halogenated hazardous
constituents. See 5 288.40(c). Thus, the
presumption can be rebutted
successfully even if some hazardous
halogenated compounds are present in
the oiL We believe thai oil containing
less man on the order of 100 ppm of any
individual hazardous halogenated
compound listed as a hazardous spent
solvent (i.e., EPA Hazardous Waste
Numbers F001 and F002) should not be
presumed to be mixed with spent
solvent As the Agency stated at
proposal (50 FR 1691} and as confirmed
by a number of comments, when these
compounds are present at such low
levels, it is difficult or impossible to
pinpoint the source of the
contamination. Such low levels found at
the generator's site certainly do not
indicate deliberate mixing with
solvents.3* Both used ofl and hazardous
halogenated solvents are frequently
generated by 'the same facility, and
some incidental: contamination is>
probably inevitable. It should be noted
that burning used oil with such levels of
solvent will not pose significant risk
from emissions of either incompletely
burned solvents or hydrochloric acid.*4
Presence of a compound listed as a
hazardous halogenated spent solvent at
levels between 100 and 1000 ppm may
indicate mfadng with spent solvent
depending on circumstances specific to
individual cases. For example, if the
used oil in question is from a large tank
at a processing facility where ofl from a
number of generators has been mixed.
more than 1,000 ppm tqtal halogens ha*
" EPA U adopting the used oil fuel specification
for norUndvit trial boiler* in advance of other rules
for recycled oil to meet the most pressing
environmental concern with mpect to recycled off
sum* jement end because the prohibition* on
hazardous watte burning would have little practical
significance unless coupled with control* on buminm,
recycled oil*
•• For example, if MO ppat of • lolveat te detected
in 200 gallon*, of u*ed oil (th« quantity frequently
generated over* month by « service itattoiL. prior to.
pick up by a collector), only 0.002 gallon*, or OJS
ounce* of solvent have been mixed. Such smell
amount* could not possibly represent the monthly
quantity of spent solvent from degraatinf
operation* at trie service station.
•• PEDCO. Environmental btc-A Kit
Auenment of Watte Oil Burning ia Boiler* oaf
Space Heater*. August 1964. pp. 5-1 through 5-8.
even low solvent levels may be
indicative of adulterative mixing. Used
oil mixed with significant levels of
solvent by a generator may have been
diluted with unadulterated oil from,
other generators, oe spent solvent
collected from a generator may have
been mixed (illegally] into the used oil
by a collector or the processor.
Mixing of used oil with nonsolvent
halogenated hazardous waste, however,
could be indicated by the presence of
hazardous constituents at levels lower
than 100 ppm. For example, if a waste is
not typically cogenerated with used oil,
incidental contamination is not likely.
Other factors include whether the
hazardous constituents could be added
ot formed during use of the oil Thus, if a
used oil contains greater than 1000 ppm
total halogens, and some of the halogen*
are (for example) chlorophenoxy
pesticides, the presumption of mixing-
would not necessarily be overcome by
showing that the pesticide i* present at
levels less than 100 ppm.
b. Explanation of Changes in the
Rebuttable Presumption Between
Proposal and Final Rule. The rebuttable
presumption of mining hazardous *
halogenated solvents with used oil
promulgated today differ* from the
proposal in two respects: total halogen*
rather than total chlorine is used as the
basic indicator, and the indicator level
has been lowered from 4000 ppm to 1000
ppm. Total halogens are used as- the
indicator because commentera noted
that common chlorine test* actually
measare total halogens reported as total
chlorine. The change, thus, is essentially
a technical correction because the used
oil analyse* available to the Agency and
used to support the rule already
reported presence of total halogens as
total chlorine
.We lowered theindicator level from*
400Oppm to 1000 ppm because many
commenters argued that the higher level
would allow and even encourage
significant mixing of hazardous
halogenated solvent* with used oit
(contravening one of EPA's enumerated
principles). More importantly, this level
correlates sufficiently well with
presence of significant levels of
hazardous halogenated spent solvents
as to justify use of a presumption, as
discussed below. The 1000 ppm tota!
halogen level was in fact recommended'
by a number of commenters, including
the State of New York which ha*
substantial experience with mis issue.
We have reviewed the more than
eleven hundred used oil analyse*
available in the record for the proposed
rule and the additional data submitted
by commenters and conclvded that used
-------
Federal Register / Vol. 50. No. 230 / Friday. November 29. 1985 / Rules and Regulations 49177
qi! will generally contain less than 1000
ppm of total halogens unless it is mixed
with hazardous chlorinated solvents or
is metalworking oil containing
chlorinated additives.** Eighty-seven
percent (87%) of the samples from a
wide range of sources—generators,
processors, distributors, burners—that
contain more than 1000 ppm total
chlorine (halogens) also contained
significant levels of hazardous
chlorinated solvents (e.g., more than 100
ppm of any particular solvent).14 *»
Some of the 13% of the samples
containing more than 1000 ppm total
chlorine but no chlorinated solvents are
known to be metal-working oils (either
because they were obtained from
generators known to be involved in
metal-working or because of their
extremely high chlorine content)
containing nonhazardous chlorinated
additives. Others may be mixed with
these highly chlorinated metalworking
oils such that chlorine levels are greater
than 1000 ppm but lower than typical for
metalworking oils, or the chlorine may
be from some other source.'** Based on
•Some metalworking oils contain extreme
pressure additives that are nonhazardous highly
chlorinated paraffinic compounds. Thus, used
metalworking oils may contain halogen levels
higher than 1000 ppm even though they ire not
mixed with hazardous halogenated solvents. See
discussion In text regarding application of the
teb'uttablc presumption to these metalworking oils.
••Based on review of analyses in Franklin
Associates Ltd. Composition of Used Oil Appendix
A. Of the more than 1100 used oil analyses. 311
samples contained more than 1000 ppm of halogens
and were analyzed for balogenated solvents. Eighty-
seven percent of those samples contained
significant levels of solvent. We presumed that
samples with high lead levels, no halogenated
solvents, and low halogen levels (but more than
1000 ppm of halogens) would contain less than 1000
ppm halogens when lead is phased out of gasoline,
because chlorine or bromine is added to gasoline
only to scavenge lead tram engine components.
Thus, halogen levels will fall as lead is phased out
of gasoline. Thus. 28 such samples are excluded
from the samples containing more than 1000 ppm of
halogens.
"The Texas Air Control Board submitted
comments on the proposed rulemaking that included
• report entitled. Analysis of Fuel Oils and Waste
Oils for Sulfur. Organochlorides, and Lead. August
1984. Date in Table VI of that report indicate that
77% of used oils (27 of 35 samples) containing more
•than 1000 ppm total halogens also contained
significant levels of hazardous halogenated
solvents.
*• Although used oil samples have been found to
contain hazardous halogenated compounds listed in
Appendix VHI of Part 261 (e.g., dichloroethane.
tetrachloroethane) that are are not listed as F001 or
F002 hazardous halogenated solvents, these
sample! invariably also contain significant levels of
the FOOT or Fore solvents. See Table VI of the Texas
Air Control Board report referenced in note 27. and
data in CCA Corporation. The Fate of Hazardous
and Nonhazardous Wastes in Used Oil Disposal
and hecycJsng. October 1883. p. 43.
these data showing a high percentage of
correlation, and on the supporting
comments, it is EPA's opinion that the
1000 ppm total halogen level is a valid
indicator for-presence of mixing with
listed halogenated hazardous waste.
EPA expressed concern at proposal
that certain used oils might contain
levels of inorganic halogens greater than
1000 ppm, and therefore, that a higher
level was appropriate for the
presumption. The Agency no longer
believes this to be a valid concern. The
Agency stated at proposal that used oil,
particularly crankcase oil from leaded
gasoline engines, could occasionally
contain up to 3000 ppm inorganic
chlorine (or bromine) levels **• *° and
that die higher level of 4000 ppm would
indicate mixing with chlorinated
solvents. Chlorine or bromine are added
to leaded gasoline to "scavenge" lead
from engine components and, thus,
reduce wear and improve engine
performance. The chlorine or bromine
form inorganic lead compounds, some of
which end up in crankcase oil from
engine blow-by. Commenters suggested,
however, that little used oil has levels of
these inorganic halogens exceeding 1000
ppm. As further corroboration, EPA's
own data on used oil sampled at
generators' sites (including both
crankcase and industrial oil, but
excluding highly chlorinated
metalworking oil or oil adulterated with
hazardous halogenated solvents)
indicates that the oil contained less than
1000 ppm total halogens in 32 of 38
cases.41- "In addition, as lead is phased
out of gasoline, chlorine and bromine
additives also will be lowered, thus
reducing inorganic halogen levels. EPA
consequently believes that very few
used oils will trip the presumption due
"MBS Technical Note 1130—rest Procedures for
Recycled Oil Used as Burner Fuel August 1880.
p. 51.
•Franklin Associates, Ltd. Composition of Used
Oil Appendix A.
41 Based on review of used oil analyses in
Franklin Associates. Ltd. Composition of Used Oil
Appendix A. We should note that 3 crankcase oil
sample* contained 1000 to 1500 ppm total halogens
(and no halogenated solvents). We presume the
halogens wen attributable to leaded gasoline
additives because those oils had high lead levels—
1000 to 3000 ppm. We presume that those oils would
in the future contain less man 1000 ppm total
halogens as lead is phased out of gasoline
(beginning July 1885), and. concurrently and
necessarily, halogen gasoline additives are also
reduced. Therefore, we believe it is reasonable to
exclude these 3 samples form the total halogens so
that 35 of Sfl unadulterated, nonmetalworking
samples contianing more than 100 ppm total
halogens.
"Data in CCA Corporation. The Fate of
Hazardous and Nonhaxardout Wastes in Used Oil
Disposal and Recycling, October 1883. p. 43. also
indicate that used oil generally contains less than
1000 pra total halogens.
to inorganic halogen content of over
1000 ppm. Moreover, as just discussed,
there Is a strong correlation between
halogen levels of 1000 ppm and high
levels of hazardous halogenated
solvents, even in EPA's present data
base which does not reflect the lead
phasedown.
Nor do most used oils contain high
levels of organic halogens without also
containing high levels of halogenated
spent solvents. The only used oils that
might are metalworking oils, which
comprise a small segment of the used oil
fuel market See 50 FR at 1692 (January
11,1985). Metalworking oils can contain
extreme pressure additives that are
nonhazardous chlorinated paraffinic
compounds that can result in organic
chlorine levels of several percent These.
organic chlorinated compounds are not
toxic (i.e., they are not listed as
constituents of hazardous waste in
Appendix VUI of Part 261). and. thus, the
hazard from incomplete combustion of
these compounds is not of concern.4*
The issue here is application of the
presumption to these oils.
We believe that the rebuttable
presumption of mixing halogenated
solvents, with used oil should still apply
to persons who manage highly
chlorinated metalworking oils. In the
first place, these oils can still be mixed
with hazardous halogenated solvents (as
confirmed both by data and by
comments on the proposed rule).
Metalworking operations often use large
quantities of degreasing solvents.
Second, metalworking oils also can be
adulterated with halogenated hazardous
wastes after leaving the site of
generation. Finally, persons managing
used metalworking oils that are not
adulterated should have readily
available means of rebutting the
presumption.44
c. Additional Response to Comment
on the Rebuttable Presumption. (1)
Basis for Not Setting the Halogen
Indicator Level on Risk. Some
commenters maintained that the
chlorine level for the presumption of
mi-ring should be based on risk posed by
the solvent/oil mixture, rather than on
the basis of mixing, per se. These
«• We are. however, concerned about the acid-
forming potential of these compounds when
combusted, and the resultant emissions of
Hydrochloric add and the effects of accelerated
corrosion on boiler parts and any emission control
equipment These oils will fail the used oil fuel
specification for total halogens and are subject to
regulation as off-specification used oil (see section
IV.Coftext).
•" As noted earlier, the final rule indicates that
one way the presumption may be rebutted is by
showing that the oil does not contain significant
levels of halogenated hazardous constituents.
-------
49178 Federal Register / Vol. 50. No. 230 / Friday. November 29. 1985 / Rules and Regulations
comment* mistake the Agency's
purpose: to distinguish used oil from
hazardous waste. As EPA pointed out in
the preamble to the proposed rule, the
basis of the presumption is not a new
concept. Section 281.3(b) saya that when
a solid waste is mixed with a hazardous
waste, the mixture is a hazardous waste*
unless it does not exhibit a
characteristic of hazardous waste, or, if
the hazardous waste was a listed waste"
(like many halogenated solvents), unless
the mixture Is delisted under petitioning
provisions of 40 CFR 260.20 and 260.22.
The rebuttable presumption merely
provide* a simple, objective test for
when the Agency will presume such
mixing hat occurred. The risks posed by
burning both hazardous waste
(including adulterated used oil) and off-
specification used oil are addressed in
today's rule with respect to burning in
nonlndustrial boilers and will be
addressed further by the permit
standards for burning such fuels in
industrial boilers and industrial
furnaces.
. We note further that a number of
commenter* erred by considering the
rebuttable presumption level for total
halogens to fix the level at which used
oil containing halogens would be subject
to regulation (assuming no other source
of adulteration): The rebuttable
presumption is not a measure of when
regulation is necessary, but a measure of
when mixing can be presumed to have
occurred. Used oil containing halogens.
at less than the presumption level could
still be regulated at hazardous waste,
but the burden would be on EPA to-
prove that such used oil is a hazardous
waste by virtue of mixing with a listed
hazardous waste. See 50 FR1692. n. 22.
EPA's burden would not automatically
be satisfied by showing evidence of
halogen levels hi the used oil.
(2) Organic Versus Total Halogens aa
the Indicator Level. Several commenters
• suggested that organically-bound
chlorine (or, more correctly, halogens)
rather than total chlorine should be used
for the presumption of mixing because it
avoids the problems with inorganic
halogens discussed above (i.e., some oils
with insignificant hazardous
1 alogenated solvent levels may contain
more than 1000 ppm total halogens
because of presence of inorganic
chlorine). After serious consideration,
we have decided to base the
presumption on total halogen levels due-
to the problems of implementing a
standard based on organic halogens.
We know of no quick, simple method
for determining organically-iound
halogen levels hi used oiL The sample
« ust be "washed" to remove inorganic
halogens before determining organic
halogen levels. Moreover, we have only
just recently investigated techniques for
washing to remove inorganic halogens
from used oil and are not yet ready to
recommend a procedure. Even if an
acceptable technique were available,
washing would add substantially to the
time required to determine halogen
levels. (See discussion of analytical
procedures in section IV-F of Part Two
of this preamble.) The need for washing
also would raise analytical costs
unnecessarily.
In addition, organic halogens would
be a more accurate measure of presence
of hazardous halogenated solvents than
total halogens only if used oil often
contains more than 1000 ppm of
inorganic halogens. We have discussed
above, however, that the data indicate
that inorganic halogen levels are
generally lower than 1000 ppm. Finally,
use of organic halogens rather than total
halogens does not avoid the problem of
occasional false-positives caused by
nonhazardous organic chlorine additives
found in metalworking oils.
In summary, a presumption based on
organic halogen levels offers few
advantages and has serious problems.
2. Used Oil Containing Hazardous
Waste Generated by Small Quantity
Generators. EPA proposed that used oil
containing hazardous waste generated -
by small quantity generators be
regulated as used oiL 50 FR 1682. The
Agency reasoned that in exercising its.
discretion as to how to classify used oil
(i.e., as used oil or as hazardous wasteJ.
EPA should avoid a scheme whereby
most used oil was classified as
hazardous waste ineligible for
regulation under the special standards
for used oil EPA was concerned that
this might result if small quantity
generator hazardous waste-used oil
mixtures were classified as hazardous. ,
waste. Id. At the same time, EPA
solicited comments on alternative
approaches, including regulating such
mixtures as hazardous waste or
classifying only automotive ofl
containing small quantity generator
waste as used oiL Id. at n. 24.
Comments were divided. Although
tome commenters supported tha
Agency, others were critical
maintaining that EPA's proposal could
encourage adulteration of used oil, and
lead to significant enforcement
problems.
EPA has decided to modify its-
proposal, hi part due to the public
comments. More importantly, however.
our re-evaluation of available dattf
indicates that few small quantity
generators are presently mixing
hazardous waste with used oil.
Analyses indicate that fewer than 15%
of the generators of crankcase oil (who
are presumed to be small quantity
generators), and fewer than 12% of the
generators of industrial oils (some of
whom may have been small quantity
generators), generate used oil mat is
mixed with significant levels of
halogenated hazardous solvents.45 In
addition, the average vehicle
maintenance shop or service station,
according to EPA's data, «• produces an
average of 50 kg/month of hazardous
waste in the form of spent solvents, and
500 kg/month of used oiL Intentional •
mixing would yield a contamination rate
of 10%, or 100,000 ppm. The data in the
following table show that actual
contamination at the generator site, with
few exceptions, is orders of magnitude
lower and so probably results from
inadvertent, and perhaps unavoidable,
contamination during use of the oil oc
handling of.used oiL*7
«* Analysis of 21 samples of erankcase oil known
to b« obtained from the generator (e.g, service,
citations, auto repair (hop*, truck 'dealer.
construction equipment facility), and thai not
adulterated with solvent* by collectors or
processors, revests that only 3 contain significant
level* of hazardou* halogenated solvent*. Analyst*
of 28 samples of induitrial oii known to be obtained.
from the generator, indicate only 3 contain
significant level* of hazardous talogenated
tolvenU. Analysis of data in Franklin Axiodates,
ltd. Competition of Uttd Oil Appendix A.
*• Industrial Economics. Inc., Draft Regulatory
Analyst* far Propotad Regulation* Under RCRA for
Small Quantity Generator* of Hazardous Waste.
February 1965. Draft Report, Exhibit 3-1.
4T Several commenters mistakenly criticized
EPA's statement at proposal (50 FR 1692) that small
quantity generators do not massively adulterate
their used oil. They reasoned that because most
used oil come* from small quantity generators, and
much is adulterated, that the generator* are doing-
the adulteration. In fact all dat* indicate tha*
col/tctor* and processor* are the principal touree of
baxardons wa*t> contamination. Companion of
used oil sampling data from generators and from
processing facilities in the table below shows a
dramatic increase in halogenated solvent levels at
wad oil processing facilities.
Servant Connanlrationa- Inmate Dtamatknlly a*
Used. Oil MOTW Fran the det&nfcv t» 1
InsFadlHiac
OH tamplur at ftamtor tttr.
Automaton -"
oa
Acuity:
uoipM at pracMBV fc.
Sohmit Coi
tovrli)
Solvant
A>
X500
Sdrat
B>
Sofeul
C»
flJUO
taso
TrldiloRMlhyltn*.
•TatnehkUMlhyim
Sourca: Fnnkltn AaMdan*, U*. COifeatiim of End
OH pp. S-U to t-ae.
-------
Renter / Vol. SO. No, 230 / Friday, November 29, 19B5 / Rules and Regulations 49179
TABLE 1.—SOLVENT CONCENTRATIONS m USED
OIL AT GENERATOR FAOUTJES
Type et generator
nmn>iHu». pp
(90th penentle toy**)
A>
16
93
a*
11
c«
" 1.1.1-Tl
•Tftehloroetbylene
•TatrachdoroelMene
Sourc*. Frankln
pp 3-33103-36.
IM, Cmpoftan of l**t Ol,
Consequently, it does not appear that*
classifying small quantity generator
waste-used oil mixtures as hazardous
waste would result in classifying large
percentages of used oil as ordinary
hazardous waste. AB a factual matter,
EPA's stated concern at proposal thus
does not appear to be present
The final rule thus states that this type
of mixture is to be classified as a
hazardous waste. (But as explained
below, at least for purposes of this
rulemaking, these mixtures are subject
to regulation as used oil fuel when
burned for energy recovery.) We have
decided, however, at least for die time
being to regulate-this (usually exempt)
small quantity generator waste
regardless of the quantity generated
when it is mixed with used oil as part of
a waste-derived fuel. EPA is taking this
step for a number of reasons. To do
otherwise would create the very
situation feared by the commenters
whereby the rules would create an
incentive to adulterate and be much
more difficult to enforce. This is because
if small quantity generator waste could
be mixed with otherwise-regulated used
oil and the mixture was exempt from
regulation, people undoubtedly would
take advantage of the opportunity to
escape regulation, or raise the issue of
mixing as a defense in enforcement
actions. Potentially large volumes and
percentages of recycled used oil could
go unregulated, in derogation of
Congressional intent.4* Thus, the final
«• The Agency to also of the initial view thil ff
used oil ii listed as • huenious waste then -
unmixed recycled died oil should continue to be
regulated, regardless of quantity generated.
(Regulation probably would begin once used oil is
aggregated.) EPA's reasoning for regulating this type
of hazardous waste differently from other small
quantity generator hazardous wastes will be set out
more fully in the soon-to-be-proposed regulation!
listing used oil as a hazardous waste and proposing
management standards for recycled oil. but in
summary:
• Exempting small quantity generator used oil
(used oil generated in quantities of 0-100 kg per
month! would exempt approximately 8 per cent of
all used oil generated. In contrast the exemption for
small quantity generator hazardous wane
(hazardous waste generated in monthly quantities
of 0-100 kg per month) exempts only O.CKi" percent
of all hazardous waste. EPA does not believe such «
rule contains an amendment to § 281.5
indicating that small quantity generator
hazardous waste-used oil mixtures are
not exempt from regulation when
burned for energy recovery but are
•object to Subpart E of Part 266.
This means that at least on an interim
basis, such mixtures can be burned in
nonindustrial boilers if they meet the
fuel specification. These mixtures also
are subject to the administrative
controls for off-specification used oil
fuels should they fail to meet the fuel
specification. Generators of these
mixtures would not be subject to
regulation unless they are also
marketers of used oil fuel (See Part Four
below.)
EPA has not reached a final decision
on which controls should apply to this
type of hazardous waste: We also wish
to examine further, and seek comment
on, the impacts on small businesses
should all of these hazardous wastes be
• regulated at various levels of control.
See RCRA section 3001(d). Because we
believe further comment on an ultimate
regulatory regime is appropriate, we
have decided to retain as an interim
.measure the regulatory scheme initially
proposed whereby this type of small
quantity generator waste remains
subject to all of the controls applicable
to used oil fuel This will ensure that
there is no outright exemption while the
Agency evaluates an ultimate resolution
in its consideration of comment on the
comprehensive rules for recycled oil
soon to be proposed.
3. Used Oil that Exhibits a
Characteristic of Hazardous Waste,
Used oil itself might be a hazardous
waste if it exhibits a characteristic of
hazardous waste. The most likely
mult consistent with Coagressimai intent mat
recycled oil be regulated as necessary to protect
human health and the environment, particularly in
light of statements of evident legislative intent that
crankeaee oil (which ii generated by small quantity
generators) be regulated. See RCRA section 3014(b)i
HJt Rep. SB-MIS at 6.-
• The total volume of recycled used oil generated
by small quantity generators is significantly greater
than that of all other small quantity generator
hazardous wastes combined: 540.000 tons/year vs.
180,000 tons/yean
• Unregulated small quantity generator used ofl
could have greater potential for coming into direct
human contact than other small quantity generator
wastes because such a large volume is burned in the
residential market.
Thus, the Agency sees important distinctions
between small quantity generator used oil and other
small quantity generator hazardous waste. Thii
reasoning alio applies to regulating recycled oil in
today's final rule—prior to recycled oil being a
hazardous waste—without regard for quantity
generated. (The Agency is not reaching the questloa
of whether, assuming there was no difference
between small quantity generator used oil and other
small quantity generator hazardous waste, other
hazardous waste generated in volumes of 0-100 kg
per month should ba regulated.)
possibility is ignitability."-" As
discussed at proposal (see 50 FR at
1683), EPA intends that used oil that is a
hazardous waste solely because it
exhibits a characteristic of hazardous
waste be regulated as used oil fuel
(where so recycled), provided that it is
not mixed with a hazardous waste.*1
Ignitable used oil is regulated as used oil
under today's rule and is prohibited
from burning in nonindustrial boilers
when its flash point is less than that of
commercial fuel (Le., 100 *F).
We have considered whether a low
flash point serves as a presumptive
indication of mixing with hazardous
waste, and therefore, that such mixtures
should be regulated as hazardous
wastes ineligible for regulation under
section 3014 standards for used oil. We
conclude that low flash point is not an
indicator of mixing for a number of
reasons and that such oil should be
regulated as used oil.
Low Hash point may not be indicative
of mixing with hazardous waste because
the low flash point may be attributable
to benzene, toluene, or xylene added to
crankcase oil from engine blow-by
(these compounds are constituents of
gasoline) rather than as spent solvent
Low flash point could also be
attributable to mixing gasoline from
tank drainings at auto service and repair
shops with used oil. Gasoline is a
commercial chemical product exhibiting
a characteristic of hazardous waste.
When gasoline (or any commercial
chemical product) is discarded, it is
subject to regulation as hazardous
waste. But when a commercial chemical
fuel is recycled (e.g., mixed with used oil
and burned for energy recovery), it is
not discarded (within the meaning of the
role) and so is not a hazardous waste.
See S 26143 (July IS, 1985) and 50 FR 618
(January 4,1985).
In addition, today's rule for burning
low flash point used oil (or any off-
** Although most used oils have a flash point
greater than 200 *F. 28% of the used oil samples had
a flash point lass than 140 T. Source: Franklin
Associates Ltd, Composition of U*ed Oil. p. 3-56.
*® Although used oil may contain high levels of
lead, arsenic, cadmium, chromium, or barium, oil
don not often exhibit the characteristic of EP
Toxldty for these metals, in addition, these metals
are present in used oil almost invariably as a result
of the oil's use. not as a result of adulteration with
hazardous waste. Nevertheless, since these metals
can pose a hazard when used oil is burned for
energy recovery, the specification for used oil that
may be burned in nonindustrial boilers limits leveli
of arsenic, cadmiu. chromium, and lead. Barium
levels an not considered to pose a substantial
health hazard and. thus, barium is not included in
the specification. (Sac section IV.C in the text.)
si Bxcept that mixtures of small quantity
generator hazardous waste and used oil are suuject
to regulation as used oil. as discussed above.
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49180 Federal Register / Vol. 50, No. 230 / Friday, November 29, 1985 / Rules and Regulations
specification used oil) provides a level
of environmental protection analogous
to that provided by the rules for burning
hazardous waste fuels. Neither
hazardous waste fuel nor off-
specification used oil fuel may be
burned in nonindustrial boilers. The
only area where the classification as
used oil results in less regulation is with
respect to storage and transportation of
off-specification used oil Although not
regulated by today's rule, storage and
transportation of off-specification used
oil is addressed in the Used Oil Listing/
Management Standards soon to be
proposed. The purpose of today's rule is
to begin regulation of blending and
burning activities by prohibiting burning
of hazardous waste and contaminated
used oil in nonindustrial boilers. Other
rulemakings will propose
comprehensive regulations under
section 3014 for storage and
transportation of used oil and for the
actual burning of off-specification used
oil and hazardous waste fuels in
industrial boilers and industrial
furnaces. Thus, the primary purpose of
today's final rule is met by regulating
low flash point oils as off-specification
used oil rather than as hazardous waste,
while decisions on appropriate controls
(and impacts) for storage and
transportation'of off-specification used
oil are left to the rulemaking specific to
used oil that will be proposed under
section 3014.
Commenters asked whether used oil
known to be mixed with a characteristic
hazardous waste is regulated as used oil
fuel or hazardous waste fuel if the
mixture exhibits •"characteristic. As
discussed above, used oil mixed with
hazardous waste is regulated as
hazardous waste fuel** It is only when
we are uncertain that mixing has
occurred that we-give the benefit of
doubt (e.g.. low flash point used oil and
used oil containing less than 1000 ppm
total halogens) and do not presume that
mixing has occurred. Thus, when used '
oil has been mixed with a characteristic
hazardous waste, the mixture is
regulated as hazardous waste fuel if it
continues to exhibit a characteristic. If
the resultant mixture no longer exhibits
« characteristic of hazardous waste, it is
' regulated as used oil.** This is merely a
*' Except that mixtures of small quantity
gentrstor hazardous wutt and u*ed oil are subject
oo «n Interim b*ib to regulation as used oil
(although classified « hazardous waita fuel).
••It should b* noted that mixing • characteristic
hazardous wait* with another material to render '
the waste nonbazsrdous constitutes treatment of
hazardous waste subject to applicable standarda
aid w 40 CFR Parts 204-285 and 2701 and the
no Uflcs Uoa requirements ofssction 3010 of RCRA.
statement of the "mixture rule" in
1261.3.
Some used oils may exhibit a
characteristic of hazardous waste but
meet the specification for used oil fuel
exempt from regulation.*4 Examples are
used oil fuel with a flash point less than
140 *F, the hazardous waste
characteristic, but greater than 100 *F,
the specification level, and (much less
frequently) used oil fuel with metals
levels (particularly lead) greater than
the EP toxic characteristic levels, but
less than the specification levels.
• Although such used oils are exempt
from regulation and may be burned in
nonindustrial boilers, the specification
ensures that such burning would not
pose significantly greater risk than
burning virgin fuel oiL
C. The Specification for Used Oil That
May Be Burned in Nonindustrial Boilers
The Agency has developed a
specification for used oil fuel that may
be burned without regulation (i.e..
burned without regulation in
nonindustrial boilers as well as other
boilers or industrial furnaces). Given
that oil meeting specification parameters
may be burned in nonindustrial faculties
like apartment and office buildings, the
specification is intended to be protective
under virtually all circumstances.
In this section of the preamble, we
discuss comments on EPA's risk
assessment, the basis for selecting
specification parameters and levels, and
explain the changes made in the
specification hi response to comments.
We also explain why we rejected
certain cominenters' arguments that off-
specification used oil should not be
blended to meet the specification and
that all burning of used oil in
nonindustrial boilers should be
prohibited. Finally, we provide guidance
on analytical procedures and testing
frequency to determine confonnance
with the specification and the rebuttable
presumption of mixing hazardous
halogenated solvents.
1. Comments on EPA 'a Risk
Assessment EPA considered regulating
any contaminant typically found in used
oil in higher concentrations than in-
virgin oil, and which also was
determined to pose a significant risk to
human health and the environment
when burned. Some commenters argued
that EPA's risk assessment approach is
overly conservative resulting in
unnecessarily stringent regulations,
while others argued that the assessment
did not adequately consider all risks.
The Agency believes the PEDCo risk
assessment ** adequately indicates the
potential for substantial risk from
burning used oil in uran areas. The risk
aosessment, with one exception, is used
to indicate potential risk, not to actually
set specification levels based on some
qualification of risk.*8We used the risk
assessment to identify those
constituents that may pose increased
risks at levels that are cause for concern
given the large number of exposed
individuals hi urban areas. When those
constituents are typically found in used
oil at levels greater than in virgin fuel
oils (i.eM the 95th percentile level in
No's. 2-6 fuel oils), they were included
hi the specification at their 95th
percentile levels in virgin fuel oils. We
reasoned that higher levels could pose
substantial risk, and levels lower than
found in virgin fuel oil would not
provide protection of human health and
the environment if used oil is replaced
(as it would be) by virgin oiL
The PEDCo risk assessment is fully
documented hi a published report, a
copy of which is hi the public docket
The assessment is also summarized in
" some detail hi the proposal See 90 FR
1693-1700. The primary-input* to the
emissions models were actual data (e.g.,
composition of used oil based on
hundreds of analyses; emissions were
modeled for the New York City urban
area considering actual meteorological
conditions and projections of used oil
burning based on actual density and
location of multi-family dwelling units).
Boiler emissions were projected
assuming 97% destruction of organics '
and a 75% emission rate for metals. The
Agency considers the 97% destruction .
efficiency for organics reasonable but
conservative given that test burn data
indicate that very small boilers can
achieve 99% to 99.99% destruction
efficiency for hard-to-burn chlorinated
compounds.87Although data on metals
emissions rates are. very limited, the
available data indicate that metals
emissions rates average 31 to 75%, with
chromium having the lowest rate and
lead the highest** We thus consider a
** Wo have noted above that the rule provides
the tame level of protection for burning hazardous
waste fuel and for burning used oil exhibiting a
characteristic of hazardous waste that also is off-
specification used oil fuel This is because neither
hazardous waste fuel nor off-specification used oil"-
fuel may be burned in nonindustrial boilers.
*• PEDCo Environmental Inc. A Risk Assessment
of Waste Oil Burning in BoUer* and Space Heaters.
August 1964.
•• For lead, the risk assessment Is need to
estimate the high end of die proposal specification
range. See SO FR 1007-1688 (January 11.1865).
•' CCA Corp* Environmental Charocteraation of
Watte Oil Combustion. May 19M. pp. U and 20.
** PEDCo Environmental Inc. Risk Assessment of
Waste Oil Burning. January IBM, pp. 9-17 and 3-20.
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Federal Register / Vol. 50. No. 230 / Friday, November 29, 1985 / Rules and Regulations 49181
75% emissions rate for metals to be a
realistic, but reasonably conservative
assumption.
» 'The two air dispersion models used to
estimate ground level concentrations of
contaminants are routinely used by EPA
for that purpose. Estimated ambient
levels were used to project the increased
risk from carcinorganic compounds and
to determine whether levels of other .
compounds that have a safe or threshold
level of exposure (i.e., thershold
compounds) would be likely to cause
substantial advene health effects. The
compounds considered to be
carcinogenic and their potency factors
were obtained from EPA's Carcinogen
Assessment Group. To determine
whether chronic exposure to the
estimated ambient levels of threshold
compounds would pose a health
hazard. Environmental Exposure Limits
(EEL's) were calculated. EEL's are based
primarily on workplace threshold limit
values (TLV's) published by the
American Conference of Governmental
Industrial Hygienists. The TLV's are'
adjusted mathematically for use in
assessing enviromental exposure by
considering a number of factors
including: exposure duration, population
susceptibility, and the nature and
conditions of the experimental health
effects data. TLVs are typically used by
the. Agency to project safe levels of
exposure when more appropriate animal
health effects data are not available.
The limitations of using TLV's to
determine EEL's are well documented
by PEDCo".
Although some assumptions were
necessary as with any risk assessment
and it can be argued that those
assumptions were too conservative or
too lenient, the Agency does not believe
(and commenters did not show) mat the
use of alternate, but reasonable,
assumptions would affect the outcome
of the assessment
Specific comments on particular
aspects of the risk assessment are
discussed below.
2. Specification Parameters. As
discussed above, EPA identified typical
contaminants of used oil and proposed
specification levels for those compounds
found in higher concentrations in used
oil than in virgin refined fuel oil and
which could also pose a significant
health risk when burned! (See Table 2
below.) We did not propose
specification levels for compounds foud
in used oil at the same or lower levels
than are found in virgin refined fuel oil
because users could simply switch to
virgin oil to replace the recycled product
without any environmental benefit
We have added total halogens and
deleted PCBs from the specification, as
discussed below. We also respond
below to comments that a number of
other constituents should be added to
the specification.
TABLE 2.—USED On. FUEL SPECIFICATION1
CwwttsMm/ Proposal atoMM* final •*
S ppw inejuinum..
2 ppm muoRium.
10 ppm f
10-100 ppm
50 pom
MOT
t ppm maximum.
10 ppm mnanam.
100 ppm maximum.
4000 ppm fflodnm.
100 T mnmuat
'The specification ipcAm only to UMd oil th«t is not
••trad wim hazardous waste etrw then smal quantity oanar-
Hoi hazardous wist*.
•EPA proposed to • Mlwl towl frem the range ol 10 M
100 ppm for prorauigalion. Lead • fatted to 100 ppm by
today's (ral nil*.
a. Total Halogens. We have added
total halogens to the specification
because burning fuels with high chlorine
levels can have direct and indirect
effects on human health and the
environment As noted in background
documents to the proposed rule, and as
observed by a number of commenters,
hydrogen chloride emissions from
burning such fuels can increase ambient
levels of hydrochloric acid and
contribute to acid rain. Equally
significant, the chlorine can also
accelerate corrosion of boiler
components which could decrease
combustion efficiency resulting in
increased emissions of incompletely
burned combustion products. Corrosion
of any air emissions control equipment
could also be accelerated, reducing
control efficiency and directly
increasing emissions of pollutants. (See
also H.R. Rep. 9&-19B at 42 noting this
concern.)
We selected a specification level of
4.000 ppm for total halogens *° based on
halogen levels in high chlorine coal. We
believe that limiting halogen levels to
the highest levels found in fossil fuels
will ensure that burning used oils with
equivalent or lower halogen levels will
not accelerate corrosion rates."
" PEDCo Environment*! Inc. A Kill Atteument
ef Waste Oil Bunting, pp. E-2 through E-15.
"It is only by coincidence that this n the time
level originally proposed for the rabuttable
presumption. The specification parameters apply
only to used oil fuel after it has been determined
that the used oil is not mixed with hazardous waste
(e.g., by applying the presumption of mixing). Thus,
the total halogen specification level is based on
different principles and is used for different
purposes than the total halogen level for the
presumption of mixing.
"Boiler manufacturers become concerned about
excessive corrosion rates when coal chlorine levels
exceed Z500 ppm. A boiler burning used oil
containing about 4.000 ppm chlorine would be
Although used oil normally replaces
virgin fuel oil that has very low halogen
levels (less than 100 ppm), we do not
believe burning used oil with halogen
levels found in coal will substantially
increase corrosion rates. In fact many
boilers burning fuel oil were originally
designed to burn coal and were •
converted to oil burning to meet air
emissions standards.
Used oil fuel (not mixed with
hazardous waste) can contain high
levels of halogens from two sources. As
discussed above metalworking oils are
sometimes processed to produce fuel.
These metalworking oils can contain
extreme pressure additives that are
highly chlorinated, but nonhazardous,
organic compounds. Total chlorine
levels in these used oils can be several .
percent.
In addition, "light ends" from the
distillation (e.g., rerefining) of used oil
can contain high levels of halogenated
compounds. Although the used oil
feedstock entering the distillation
process contains less than 1000 ppm of
total halogens and is not presumed to be
a hazardous waste, the oil can contain
insignificant levels of volatile,
halogenated compounds (e.g., less than
100 ppm of halogenated compounds
listed as hazardous spent solvents). The
light ends produced from such oil will
contain much higher levels of
halogenated compounds due to the
concentrating effect of the distillation
process. These light ends are a by-
product of used oil rerefining to produce
recycled lube oil and are often burned
on-site as fuel. These light ends are
regulated as used oil rather than as
hazardous waste even though their total
halogen content exceeds 1000 ppm and
they contain substantial levels of
halogenated compounds listed as
hazardous spent solvents. This is
because the halogenated compounds are
present in significant levels as a "result
of processing (i.e., they are
concentrated), not as a result of mixing
with halogenated hazardous waste.82
When light ends containing less than
4000 ppm total halogens (but perhaps up
to 4000 ppm of halogenated compounds
that are listed as hazardous spent
solvents) are burned, emissions of
exposed to the same quantity of chlorine per hour
as It would be if it were burning coal containing
2.SOO ppm chlorine. This is because the heating
value of used oil is higher than that of coal (16,500
vs. 11XJCO Btu/lb) and, thus, less used oil is required
to provide a given boiler heat input
" Although low levels of halogenated compounds
(e.g.: less than 100 ppm of tetrachloroethylene) in
the used oil feedstock to the distillation process
may aomatirata result from mixing with hazardous
spent solvents, the levels are too low to pretume
such mixing has occurred.
-------
49182 Federal Register / Vol. 50, No. 230 / Friday, November 29, 1985 / Rules and Regulations
hydrogen chloride or incompletely
-burned halogenated compounds will not
pose a substantial risk to human health
«nd the environment"* Light ends with
more than 4000 ppm total halogens are
regulated under today's rule as off-
specification used oil, and as such,
cannot be burned in nonindustrial
boilers. We are developing permit
standards for burning such oil
(scheduled to be proposed in 1988) that
would consider the hazard posed by the
presence of hazardous halogenated
constituents. (Permit standards for
burning such used oil may in fact be
similar to the standards for burning
hazardous waste fuels.)
b. PCBs. EPA included polychorinated
byphenyls (PCBs) in the proposed
specification only as a reference to the
Agency's rules regulating PCBs. PCBs
are regulated under the Toxic
Substances Control Act (TSCA) and the
rules are codified at 40 CFR Part 761.
Those rules include controls for the use
and disposal of materials containing
PCBs.
PCBs are not included in the final
specification promulgated today,
however, because commenters indicated
that the crossreference caused
confusion. Specifically, commenters.
were concerned that setting a
specification level could encourage
dilution of PCBs in an attempt to avoid
regulation under TSCA.~Dilution to
avoid regulation is expressly prohibited
under the TSCA rules. See i 7Bl.l(b).
If used oil fuel contains PCBs and also
does not meet the used oil fuel • *
specification provided by.today's rules,
then it is subject to the more stringent of
the applicable TSCA PCS rules and
today's used oil fuel rules.
c. Other Constituent*. Commenters
suggested that other used oil
constituents should be included in the
specification notwithstanding our
arguments that these constituents either
are not likely to pose substantial health
risk or that they are not present in used
oil at significantly greater levels than
virgin oil (and lower specification levels
could result in a virgin product
displacing the recycled product with no
environmental benefit).
(1) Barium and Zinc. Although we
found that barium and zinc are present
in used oil in concentrations 10-100
times greater than in virgin fuel oil, the
Agency's risk assessment indicated that
the resulting increased levels of barium
and zinc would produce insignificant
.risks to human health and the
environment
Several commenters expressed
concern over what they considered the
serious health impacts of high levels of
barium and zinc, and argued that EPA
should err on the overprotective side by
prescribing specifications for these
metals. EPA continues to believe that
the presence of these metals in used oil
does not pose significant risk for the
reasons discussed below.
EPA'a risk assessment indicates that
maximum ambient levels of zinc from
burning used oil could represent about
2% of the Environmental Exposure Limit
(EEL).14 Thus, zinc does not have a
serious impact on air quality near single
or multiple sources, or in high-density
urban areas.
Although the case is less clear with
barium, the Agency concludes that
barium likewise does not pose a serious
health risk. The PEDCo risk assessment
indicates that maximum ambient levels
of barium could represent 80% of the
EEL (Id). Given that the inhalation of
barium can cause toxic effects
(primarily an increase in muscle
excitability, particularly in the cardiac
muscle), the Agency specifically asked
for comment on whether barium should
be added to the specification.
For a number of reasons, however, the
PEDCo risk assessment overstates the
risk posed by barium. The PEDCo
analysis used an early survey of used oil
analyses to determine barium levels in
used oils. The most recent and
expanded data base includes 752 barium
analyses compared to the 400 analyses
in the data base used by PEDGo. The
90th percentile barium levels used in the *
risk assessment (based on the 400
analyses) was 485 ppm, while the 90th
percentile barium level in the expanded
data base is only 251 ppm, about 50%
lower. Given that composition data
based on the expanded data base are"
considered more representative, the
PEDCo analyses overstates ambient
barium levels by a factor of two.
In addition, the PEDCo assessment
estimates a safe level for lifetime
exposure to airborne barium based
primarily on the workplace threshold
limit value (TLV). This safe level is
called an Environmental Exposure Limit
(EEL). See discussion above on vm^
The barium ELL calculated for the risk
assessment is more than 50% lower than
the safe level calculated from the
interim Acceptable Daily Intake set by
EPA." The ADI-based safe exposure
level is considered more appropriate
than the TLV-based vs*. because the
ADI is based on a comprehensive
review of pertinent toxicologic and
environmental data. EBT-« are commonly
used for risk assessments only when
ADI's have not been determined (or
cannot be determined because of
inadequate data). Thus, the risk posed
by barium has been overstated by more
than a factor of two for this reason as
well
In summary, the PEDCo assessment
overstates the risk posed by barium by
more than a factor of four. When these
factors are considered, the mnyimunft
ambient levels (assuming clustered
boilers with overlapping emission
plumes, another conservative
assumption] would be 0.18 fig/m* while
the ADI-based safe level for chronic
exposure is 1 pg/m8.** When
background ambient barium levels are
added to the maximum levels from used
oil burning, total ambient barium levels
could range from 0.18 to 0.43 fig/m*.*7
As with lead emissions discussed
elsewhere, ambient barium levels thus
would not be expected to pose
significant risk except in extreme and
unique "hot spot" situations (e.g., where
boilers are clustered together, and
receptors are located directly
downwind, very close to the boilers, and
at the centerline of the emissions
plume), which would occur only very
rarely.
(2) PNAs. A few commenters
indicated the need to set specification
levels for polynuclear aromatic
compounds (PNAs].** A major
environmental commenter was critical
of EPA's risk assessment in general, and
was particularly concerned with EPA's
conclusion that specification levels were
not needed for PNAs. The commenter
argued that data cited by the Agency did
" At dUcuned above. even very small boilm
can addeveS« to 69.80* destruction efficiency for .
nilogtnaled compound!.
•« PEDCo Environmental Inc. A Xitk Attettaiant
of Waste Oil Burning, p. 5-2.
•• EPA Environmental Criteria and Assessment'
Office, Health Effect* A**eameat for Barium. June.
1884. p. 13 (Draft), and Peer Consultants, Inc.
Health Effect* and Ambimt Data for Barium.
October 1864. p. 9 (Unpublished Report).
«Thi« comparison still overstates the risk
because tht PEDCo asMssmtat calculates
maximum ambient levels for the month of January
when used oil burning ia greatest. The ADI-based
safe level of exposure, however, assumes constant
exposure over a lifetintB. Thus, avenge arrnual
ambient levels (Including summer months when
little ustd oil is burned) should actually be used for
comparison to the ADI-baesd safe exposure level
• •» Op C1L. Peer Consultants, Inc. p. 4. It should be
noted however, that it ia not clear to what extent
the background barium levels already include
barium from used oil burning. Thus, adding the so-
called background levels to levels from used otl
homing also may overstate the risk.
•• PNAs are a subset of organic compounds
known as polyaromatic hydrocarbons (PAHs).
PNAs are of particular concern because some are
known eardnogans. PAHs are compounds with two
or more benzene rings, the basic structure that
separates aromatic or "ringed" compounds from
aliphatic or "chain" compounds. PNAs are
compounds with two benzene rings fused together
so that they share two carbon atoms.
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Federal Register / Vol. 50. No. 230 / Friday. November 29. 1985 / Rules and Regulations 49183
• not show, as the Agency indicated at
proposal," that PNA levels in used oil
and virgin fuel oil are comparable, and
that PNA emissions from burning used
oil and virgin fuel oil are comparable.
We have reviewed the data used to
support our decision at proposal and
continue to believe that the risk posed
by PNAs from burning used oil and
virgin fuel oil is comparable. The
following data (Table 3) show that '
levels of benzo(a)anthracene and
benzo(a)pyrene. the PNAs typically of
concern due to their cannnogenicity. in
used oil and virgin fuel oil are
comparable:
TABLE 3.—PNA LEVELS m USED OIL AND
VIRGIN FUEL OIL
Concxiund
ConeenM-
ton in used
oil (ppfn)
I90m
PWMMM
40
16
Concentra-
tion In niigin
MOD
(pom)
Iranori
18-07
»-44
Soar* frm+fn AM"""-. UA, Cm***** ef U*q OL
pp. J-12 and 5-8.
Although PNA levels in distillate virgin
fuels (e.g.. No. 2 oil) are much lower than
in residual No. 6 oil it is reasonable to
compare used oil levels in No. 6 oil
because used oil frequently (indeed.
most-often] displaces No. 6 oil.
In addition both Recon and GCA 70
reported that they could not find
detectable levels of benzo(a)pyrene
(BaP) in used oil emissions during a total
of 13 test burns. The BaP detectable
levels ranged from 6-8 jig/m* for the
GCA tests. Further, emissions of total
PNAs from burning used oil and virgin
oil appear comparable. Emissions of
PNAs, mostly naphthalene compounds,
measured by GCA during a number of
test burns at each of six sites averaged
82 fig/hr TI. If virgin fuel oil had been
burned rather than used oil and if total
PNA emissions were 48 pg/btu, as
reported by PEDCO (See PEDCO, Risk
Assessment of Waste Oil Burning, p. D-
7) as typical for residual fuel oil boilers
with capacities less than 250X10 • btu/
hr, PNA emissions from virgin oil
•• See SO PR UBS (January 11.1985).
" Recon System*. Inc. and ETA System*. Inc.
Uted OH Burned a* Fuel. 1980, p. 4-« and GCA
Corp. Environmental Characterization of Watte
Oil Combustion, pp. 19.120,128.132.138.144. and
ISO. Both of theae report* wen part of the Agency'*
record at proposal.
* > Test* an cited in previous note. One test at
one site had S time* the average PNA emissions at
that site during unstable combustion condition*.
(The contractor deliberately induced the*e
condition* a* part of the teit program.) Results from
that test an not included to calculating the 92 fig/
hr. average. When the results tram that test are
included, the average PNA emission* increase to
106 »ig/hr. See CCA Corp. p. 120.
burning for those 6 test sites would have
averaged about 96 pg/hr. .
Given that it appears that the
concentration of PNAs of primary
concern are comparable in used oil and
virgin fuel oil, and that total PNA
emissions from burning used oil and
virgin fuel oil are comparable, we have
not set specification levels for PNAs.
(3) Benzene. Toluene and.
Naphthalene. One commenter argued
that EPA did not adequately consider
the risk posed by emissions of benzene,
toluene, and naphthalene. The PEDCo
risk assessment concluded that ambient
levels of toluene and naphthalene would
be less than 1% of the Environmental
Exposure Limit (EEL) considering
emissions from point sources of various
sizes, from point sources clustered very
closely together, and multiple point
sources located in high density urban
areas." PEDCo also concluded that
ambient levels of the carcinogen,
benzene, would pose an increased risk
to the most exposed individual of
2.7X10-" (1:37,000,000)." It should be
noted that PEDCo's risk assessment is
considered conservative in some
respects, including the assumption that
boilers burning used oil will achieve a
destruction efficiency of only 97%
although test burn data indicate that
even very small boilers when operated
properly appear to achieve 99 to 99.99%
destruction efficiency. Nonetheless, the
commenter suggested that the Agency
consider conducting the •o-cnlled "hot
spot" exposure analysis for those
compounds similar to the analysis
conducted for lead.74
The hot spot analysis considers what
may be considered truly "worst case"
situations where two sources are
located close together, and the receptor
(exposed person) is located directly
downwind from the sources, very close
to the sources (i.e., 25-50 meters from
the source), and elevated to the height of
the emission plume (i.e., as though the
emission plume were blowing into the
air intake of a building's ventilation
system). We have used this scenario to
project ambient levels of benzene,
toluene, and naphthalene in those
situations. Even under those extreme
and very rare situations, and
conservatively assuming 97%
destruction efficiency, ambient levels of
toluene and naphthalene still do not
exceed 1% of the EEL for those
compounds. Ambient levels of benzene
do not exceed levels that would pose an
increased risk of 1X10'' (1:100.000). If
the destruction efficiency of benzene
were assumed-more realistically to be
89% rather than 97%, the increased risk
would be less than 4X10~* (1:250,000).
Given the remote likelihood that the
modeled situations would occur, and
that risks are still not very high even
under these worst case conditions, we
conclude that presence of these
compounds does not pose a significant
health risk when used oil is burned for
energy recovery.7*
As a final note, although we do not
have data on benzene, toluene, and
naphthalene levels in virgin fuel oils, we
would expect to find high levels of
volatile benzene and toluene in distillate
oils (e.g.. No. 2) and high levels of
naphthalene in residual oils (e.g.. No. 6).
Given that used oil and used oil blends
are substituted for all grades of oil (i.e.,
No's 2-6), the levels of these compounds
in used oil are likely to be comparable
to levels in virgin oil.
(4) ASTM Specifications. A few
commenters suggested that EPA include
specification parameters such as
viscosity anil bottom sediment and
water set by the American Society for
Testing and Materials (ASTM) to ensure
proper boiler operation. ASTM
specifications vary according to fuel oil
grade (e.g.. No. 2 distillate oil though No.
6 residual oil). Commenters argued that
the ASTM specifications were needed to
ensure optimum boiler operation and,
thus, optimum combustion of used oil
which would minimize emissions of
incompletely burned toxic compounds
.(e.g., PNAs as discussed above).
We understand the issue commenters
are raising but do not believe it is, in
fact a frequent problem. We presume
that burners purchase fuel, including
used oil and blends of virgin oil and
used oil, specified by the standard fuel
oil grade that their boilers are designed
to bum. Further, we presume that fuel
oil, whether virgin or containing used
oil must meet the ASTM specifications
for the designated grade or be in breach
of contract Thus, the marketplace
already should ensure application of the
ASTM specification. We will, however.
reconsider this point if during
implementation of today's rule
enforcement officials determine that
misrepresented used oil is frequently
being sold and existing laws are
inadequate to prevent abuses and we
ts PEDCO Environmental Inc. Rink Auettment
of Watte OH Burning, p. 8-2.
"Id-p.S-8.
14 Id, pp. 4-39 tnrough'4-43.
'• Although believe that the level* of toluene,
benzene, and naphthalene do not preaent a hazaru
when u»ed oil I* burned (and thu* specification
level* an not needed), then toxicant* may still
pment a significant hazard when Died oil is stored
and transported. We therefore, consider these
hazards when we wi.i soon propose to list used oil
a* a hazardous waste.
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49384 Federal Register / Vol. 50. No. 230 / Friday. November 29. 1985 / Rules and Regulations
determine that the practice can result in
substantial increases in emissions of
toxic compounds at levels that pose a
significant risk to human health and the
environment
Another reason we are not addressing
this potential problem in today's rule is
that there does not appear to be a
simple remedy. We cannot require that
all used oil meet the ASTM
specifications for a particular fuel oil
grade because different boilers are
designed to burn different grades. To
address the problem, the responsible
burner must simply now that the used
oil (or virgin/used oil blend) he is
purchasing meets the grade his boiler is
designed to bum. This could be
accomplished, perhaps, by requiring that
the invoice or bill of sale indicate the
grade of fuel, and if necessary, a
statement that the oil meets the ASTM
specifications for that grade. On the
other hand, the burner who is trying to
save on his fuel costs may try to bum
lower grade (or ungraded] used oil
provided that his increased maintenance
. costs do not off-set his fuel savings. He
is not concerned about emissions of
incompletely burned compounds. If this
were the problem, a solution would be
to require that the marketer determine
the grade of his oil by ASTM
specification arid sell the'used oil only
to a burner with a boiler designed to
bum that grade of oil. Similar
requirements could be placed on burner*
(i.e., they could bum only that fuel ofl
grade the boiler is designed to bum). We
believe that it is dear that the •
implementation and enforcement of
provisions such as these would be a
massive undertaking and would intrude
substantially on the marketing and use
of what is essentially a commercial
product—used oil meeting the
specification established in today's rule.
Before seriously considering any such
remedies, we would need to much better
define the "problem".
. W-Other Compounds. A few
commenters suggested that the following
compounds also be included in the
specification: nickel, beryllium, mercury,
sulfur, nitrogen, and phosphorous. None
of these compounds are included for the
reasons discussed below.
Nickel is not included in the
specification because the 90th percentile
nickel level in used oil is lower than the
level found in virgin residual fuel oil (40
ppm).7« Although limited, data OB
'• Sourottt Franklin Associates Ltd. Caapaa'tiaa
of Vied OIL Appendix A: TOW Environmental
Engfn*«rlng DivUlon. Emissions Attetuneat of
Conventional Stationary Combuition Systems:
volume lit. External Combustion Source* for
Electricity Generation. Novemba 1060, p. 134; US
beryllium in virgin fuel oils indicate that
beryllium levels average much less than
1 ppm. while analyses of 263 used oil
samples indicate that the 90th percentile
beryllium level in used oil is less than
a3 ppm. (Ibid.) Similarly, limited data on
mercury indicate that levels can range
from 0.005 to 0.4 ppm in virgin fuel oils
and are less than 0.1 ppm in used oils.
(Ibid.) Clearly, beryllium and mercury
are not found in used oils at levels of
concern, and nickel emissions (and any
health risk posed) or lower from burning
used oil than virgin fuel oil
Levels of sulfur and nitrogen are
somewhat higher in virgin fuel oil than
in used oil" Thus, sulfur and nitrogen
oxide emissions from burning used oils
would not be higher. Although we do not
have data on phosphorous levels hi used
oils and virgin fuel oils, phosphorous it
neither a designated hazardous waste
constituent on Appendix VTO of Part 281
nor does it interfere with boiler
efficiency at the levels found in used oil
3. Specificaton Levels. A number of
commenters provided suggestions on
specification levels for the metals for
which EPA proposed a specification
level and for flash point The basis for
the specification levels for these
parameters is discussed below.
«. Lead, EPA proposed to select •
specification level for lead from the
range of 10-100 ppm. and specifically
requested comments on an appropriate
level. As discussed in the preamble to
the proposal (see 50 FR1697-1699
(January 11.1985)), levels higher man
100 ppm could result in ambient lead
levels exceeding the National Ambient
Air Quality Standard (NAAQS) for lead
in densely populated areas where
boilers are clustered together and
receptors may be close to the sources.
Although 100 ppm appears to be'
protective with respect to the NAAQS.
that level may not be protective because
health effects data available since the
lead NAAQS was established indicate
that lead causes serious, but apparently
noncancerous. health effects at any level
of exposure (i.e.. lead appears to be a
"nonthreshold" pollutant). EPA is
considering these new health effects
data in its current efforts to determine
whether the existing lead NAAQS is
adequately protective. In addition.
EPA. Lifting Wane Oil A* Hazardous Waste—
Report to Congreif, Jimmy igei (SW-909); Yen.
T.F, The Role of Trace Metal* in Petroleum. Ana
Arbor Science Publishers. Ann Arbor. Michtan.
UTS. P. 107; Valkovic. Vlado, Trace Element! la
Petroleum. Petroleum Publishing Company. 1890, p.
91; and American Petroleum Institute, Task Fore*
on Utilization of Wotta Lubricating Oil*, October
1875. pp. 21-33.
" PEOCO Environmental Inc. A Rmit
Assessment of Watte Oil Burning, p. a-is.
because of the new hearth effects data
EPA believes that it is resonabie to
reduce preventable source* of lead
exposure. This policy led to the
Agency's phasedown of lead in
gasoline—by January 1,1986, lead levels
in "leaded" gasoline must be reduced to
less than 10% of the levels previously
allowed. For these reasons, we believe
that a lead specification level should be
considered that is lower than that which
ensures the current NAAQS would not
be exceeded. Thus, we proposed a level
of 10 ppm at the low end of the range,
which is the 95th percentile lead level in
virgin fuel oil A lower level was not
proposed because used oil could be
displaced with virgin oil with higher
lead levels with no environmental
benefit
We also discussed in the proposal our
concern that a specification level lower
than 100 ppm could result in used oil
currently burned as fuel being diverted
to incineration, or perhaps being
dumped, because the cost of blending
used oil to meet a stringent specification
could be prohibitive and because of the
difficulty of finding new industrial (and
utility) markets for oil that exceeds the
specification. If lowering the lead
specification level below 100 ppm
diverted used oil currently burned as a
fuel to incineration, the environmental
benefits of that policy are questionable.
It is not clear mat metals emissions from
incineration would be adequately
controlled given that many hazardous
waste incinerators use wet scrubbers
that may not control lead emission
efficiently.™
We therefore indicated that in
considering a specification level lower
than 100 ppm, the benefits from reduced
lead emissions from used oil burned as
fuel must be balanced against the
probability of (and adverse effects from)
dumping and the diversion of used oil .
from use as a fuel to incineration.
We also specifically solicited
comments on three other points (in
addition to an appropriate specification
level): (1) Whether factors other than
those we considered need to be
considered in determining the lead level
that would ensure that the lead NAAQS
is not exceeded; (2) whether a two-
tiered specification, with a lower limit
for more populous areas and a higher •
level for less urban locations, would be
" The. Agency inlands to control ratals
emissions from boilers and industrial furnaces
burning off-specification usad oil and hnirdmis
waste under tha narmit standards to ba proposed !•
19SB, Once that "•'""-'•ilng j, initiated. the Agency
intends to consider whether metals —nitnmii Iran
hasardoua waste mdnaraton arc adequately '
controlled.
-------
Federal Register / Vol. 50, No. 230 / Friday, November 29. 1985 / Rules and Regulations 49185
appropriate; and (3) whether
specification levels for arsenic,
, {•adrninm, and chonnium would be
necessary if a low level is promulgated
because used oil that fails the.
specification levels for these other
metals would also be expected to
exceed a low lead specification level.
A large number of comments were '
received concerning the lead
specification. They are discussed below.
(1) Selecting a Level from the
Proposed Range. Most commenters
argued that EPA's proposed range of 10
to 100 ppm is too stringent Commenters
stated that it would be difficult for used
oil to pass a lead specification of less
than 100 ppm. which, they asserted,
would not only severely restrict used oil
burning, but lead to illegal dumping. It
was also suggested (by a State
eommenter with substantial experience
hi regulating used oil burning) that a
lead specification of 100 ppm would be
unlikely to cause an exceedance of the
lead NAAQS.
Some commenters concurred with
EPA's selected range, favoring the high
end of the range. A specification of 100
ppm should be acceptable in all but the
most densely populated areas, according
to these commenters.
Selection of a relatively low level
from the range, such as 10 or 20 ppm,
was recommended by a few
commenters. Some opposed allowing
any lead at all in used oil. except in de
minimi's quantities.
(2) Phase-in a Lower Specification
Level as Gasoline Lead Levels are
Lowered. The majority of commenters
recommended that EPA set an initial
specification for lead at a relatively high
level, and then phase in lower levels in
incremental steps, tied to the EPA
mandated lowering of lead
concentration in gasoline which was
promulgated on March 7.1985 (see SO FR
8386 and 9400). Commenters argued that
it would be illogical and unfair for EPA
to require lead to pass low
specifications hi used oil, since most of
the lead in used oil originates from the
lead in gasoline. Suggested initial levels
ranged from the lead in gasoline.
Suggested initial levels ranged from 500-
1.000 ppm. Commenters also suggested
that EPA build a time-lag into such a
phasedown program, in which a certain
minimum time after the effective date of
the March 7,1985 standards would be
allowed to elapse before EPA would
effect a lower level for used oil. Such a
time-lag would accommodate the delay
between the actual use of the lowered
lead in gasoline being sold and burned
hi automobiles, and changing of the oil.
(3) Risk-Based Specification Level.
Several commenters urged EPA to base
its specification for lead primarily, if not
solely, on health effects data and risk
irom lead exposure, rather than on the •
current lead NAAQS or die 95th
percentile concentration hi virgin fuel
oil. These commenters argued that
regardless of typical contamination
levels of lead in virgin fuel oil, EPA is
not justified hi allowing the burning of
used oil with lead levels that may cause
serious health effects. Raised blood lead
levels in young children and the danger
of lead poisoning to pregnant women
were cited. Commenters emphasized
that lead is bioaccumulative, meaning
that repeated intake over time results in
additive levels hi the body.
(4) Two-Tiered Approach. Only a few
commenters addressed the suggested
two-tiered approach to regulating lead.
Commenters stated that it would only
cause cleaner, nonurban areas to
become more polluted.
(5) The Need to Regulate Arsenic,
Cadmium, and Chromium if a,Low Lead
Specification Level is Selected. Most
commenters recommended that arsenic,
mriminm, and rhrpmhiTn be regulated,
even if a low lead level is promulgated.
In general, commenters argued that it
has not been shown that the level of
these metals varies proportionately with
lead. Used oil could conceivably have a
low concentration of lead, but higher
levels of one or more of these three
metal*. Restrictions for arsenic,
cadmium, and chromium were suggested
as a safeguard.
(6) Response to Comments. After
evaluation of these comments, we have
decided to promulgate a lead
specification of 100 ppm, but to delay
the effective date by six months. (The
other specification parameters are .
effective 10 days after the date of
publication.) As discussed at proposal,
we believe that this level will ensure
that nonindustrial boilers do not cause
ambient levels to exceed the current
NAAQS except in unique and truly
extreme scenarios. See 50 FR at 1698
(January 11,1985). Moreover, we are
concerned that promulgation of a level
lower than 100 ppm at this time could
cause major disruptions to the used oil
recycling industry resulting hi diversion
of oil or dumping with uncertain and
potentially adverse environmental
trade-offs. (Similar concerns were raised
by the House Energy and Commerce
Committee in their report on the RCRA
amendments. See H.R. Rep. No. 98-198
at 66.)
The 100 ppm lead specification level
promulgated today is intended as an
interim measure. The Agency believes
that this lead level may not be as
protective as reasonably possible given
the new health effects data mentioned
above. On the other hand, until we
know more about the impacts of the
other two rules- affecting management of
used oils (the soon-to-be proposed
recycled oil management standards and
the permit standards for boilers and
industrial furnaces that will be proposed
hi 1986) on the used oil industry and,
ultimately, on used oil flows, we are
concerned that a lower level may cause
impacts that could result hi dumping or
incineration of used oil with uncertain
environmental trade-offs. Therefore, the
Agency will evaluate the risks and costs
of a lower lead level hi conjunction with
the third rule of the series—permit
standards for boilers and industrial
furnaces—scheduled to be proposed in
1986. Thus, the Agency's final position .
on the lead specification will be
Included hi the permit standards
mlemaking.'*
In response to commenters' concerns
that a lead specification level as low as
100 ppm could cause major disruptions
of the industry and could result in
dumping, the effective date of the lead
specification is delayed six months. By
that time, the, Agency's gasoline lead
phase-down standards will result hi
lowered lead levels hi used crankcase
oil so that a major disruption of the
industry will be avoided, as discussed
below.
On March 7,1985, EPA promulgated
standards restricting lead levels in
gasoline (see 50 FR 9386 and 9400). The
standards require that lead be reduced
from the previous limit of 1.1 grams/
gallon to 0.5 g/gal by July 1985, and to
0.1 g/gal by January 1986. This reduction
of lead in gasoline should result hi a
**We note th«t the Regulatory Impact Analyiis
(RIA) developed to tupport the recycled oil •
management standards aoon to be proposed
includes a preliminary analysis of the cost and
benefits of lower lead levels. The analysis was
initiated before the Agency decided to select 100
ppm as an interim lead specification and to make its
final decision on the lead specification in the permit
aUndards rulemaking. In addition, that RIA
attempts to predict used oil flows, and thus
regulatory impacts of the proposed rule, assuming
all three rulemakings are in place. Thus, the RIA
makes the best assumptions possible at the time on
the cost of compliance with anticipated controls for
boilers and industrial furnaces burning off-
specification used oil fuel. Nonetheless, that
preliminary analysis appears to indicate that lead
specification levels lower that 100 ppm would be
cost-effective. The Agency intends to review that
analysis, op-date assumptions on permit standards
and "flow" changes as necessary, and to include a
comprehensive analysis of the cost and benefits of
lower lead specification levels in the RIA for the
permit standards rulemaking. In the interim, the RIA
. for the recycled oil management standards will be
in the public docket for that rulemaking once it is
proposed. Comments received on that portion of the
RIA dealing with cost and benefits of lower lead
specification levels will be considered in developing
the Agency's position on this issue in the permit
standards rulemakinu.
-------
49186 Federal Register / Vol. 50, No. 230 / Friday. November 29. 1985 / Rules and Regulations
concomitant reduction in lead levels in
used oil We-have analyzed the potential
impacts of imposing the 100 ppm
•pacification either immediately along
with the other specification parameters
or in the Spring of 1988, roughly six
months after promulgation.1* Using a
data base of 143 used oils sampled in
1983. we extrapolated resulting lead
concentrations to the 1985-86 and 1986-
87 heating seasons. Based on the July •"
1885 reduction of lead in leaded gasoline
to 03 g/gal, we assumed an average
lead concentration (for leaded and
unleaded gasoline) of O2 g/gal for
gasoline affecting used oil to be burned
in the 1985-68 heating season. Similarly,
based on the January 1988 reduction of
lead in leaded gasoline to 0.1 g/gal, we
assumed an average lead concentration
[for leaded and unleaded gasoline) of
0.05 g/gal for gasoline affecting used oil
that would be burned in the 1986-87
heating season. The average lead levels
in gasoline were estimated assuming a
ratio of 4095 leaded to 60% unleaded
gasoline consumption for the 1985-66
heating season, and a ratio of 37.5% F
leaded to 62J9S unleaded gasoline
consumption for the 1986-87 heating
season. (We also assumed that lead
levels in all used oils would decrease
because of the gasoline lead * -
phasedown.) - - •
This analysis demonstrates mat delay'
of the implementation of the
specification will provide time for the
lead phasedown In gasoline and,
consequently, in used oiL Significantly
more used oil can pass the lead'
specification in May 1986 than today. ,
The table below illustrates the drop in
lead levels in used oil as the lead is
reduced in gasoline.
TABLE 4.—PROJECTED CHANGES IN LEAD CON-
CENTRATION IN USED On. AS LEAD Is RE-
DUCED m GASOLINE (PPM)
r9tQtf&Mt
•«
a\
ff,
•M
•ft
M
1M3
114
177
4*0
ese
•40
1.417
Let*
iess
M
115
217
337
3S7
54»
1%
at
44
fl7
ts
104
2U
Sown: FranUn AMOCUIM LM, Elttctt ot OtHy t> t»
In&taiHKMixsa ot t Lfta Sptctictnon on e» Atilfr of Una
OftaPtutnt SpKttcism Jur»4.1965.
As shown, only about 40% ot the used
oil can pass the lead specification of 100
ppm now. Delay for six months
increases the total quantity passing the
lead specification to about 60%.
Delaying; the effective date of the lead
specification has a corresponding effect
on the amount of used oil that can pass
the specification levels for all of the
metals (i.e.,-lead, arsenic, cadmium, and
chromium). As shown in the table
below, we estimate that the amount of
unblended used oil that can meet the
metals specification levels more than
doubles if the effective date of the lead
specification is delayed six months to.
May 1986 (i.e., 20% vs. 46%).
TABLE 5.—EFFECTS OF DELAYING THE EFFEC-
TIVE DATE OF THE LEAD SPECIFICATION ON
.THE PERCENT OF SAMPLES THAT PASS THE
. SPECIFICATIONS FOR ALL METALS
Picon* of umpta* pmlng curtate
»p«c»c»Son« ttuming—
75 pet Virgin/as pet UMd oi-
90 pel Virgin/10 pet UMd ot-
Nov.
1M6
4S
M
SourOKl
Tnmldln Auodites. Ud, Effect* of a Delay la
the Implementation of a l*ad Specification on tkt .
Ability oft/tea Oil to Pat* the Specification. ]ua* 4,
1KB.
I AnocfetOT. Ltt. SRpe* ol t OH? * •»
Impltmtnuiion ef • L»ua SfMtMiatian en tt» Atmr ol Utft
Oi lo P*st tot Sptofcttcn Jurm 4.1985.
• Although the effect of delaying the * •
lead specification is much less
significant when used oil is blended
with virgin oil (e.g., 59% of used oil
blended 75%/25% with virgin oil (75%
virgin oil) could meet the metals
specification in November 1985 while
69% could pass in May 1986), the Agency
is uncertain whether substantial
quantities of used oil will be blended
with high percentages of virgin oil in the
future. We believe that "virgin oil"
distributors historically hdve done much
of the blending at the higher ratios (e.g.,
90% virgin and 10% used oil) in order to
sett the mixture to the nonindustrial
market as virgin oil It is not .clear,
however, whether these distributors will
continue to handle used oil given that
they would have to comply with the
notification (and other) requirement(s)
of today's rules,, which would make their
used oil management activities public
knowledge. Although blending used ofl .
with high percentage's of virgin oil to
meet today's specification may be •
economical in the future in some cases,
especially by persons currently
considered primarily used oil
processors, we are concerned that it
may take some time for these heretofore
(primarily) processors to increase their
blending capacity and to find markets
for used oil blended with high
percentages of virgin oil (Such
"processors" would essentially become
fuel oil distributors as well.) Thus,
substantial quantities of used oil may
.not be blended with high percentages of
virgin oil in the near term (if ever).
Consequently, delaying the effective
date of the lead specification is
expected to substantially increase the
quantity of used oil that can meet the
metals specification levels.
In summary, we believe that a six-
month delay in implementing the lead
opecification is more responsible than
making it effective immediately, and
may, hi fact result in greater
environmental benefit than immediate
implementation.
With regard to other lead
opecification issues, we have decided
against development of a two-tiered
lead specification level for urban versus
rural areas in this rulemaking.
Commenters did not support the
approach, it would be difficult to
develop, support, and implement, and it
would encourage burning of dirty fuels
in areas with clean air.
Specification levels for arsenic,
cadmium, and chromium are also
retained. As stated in the proposal, we
are concerned that once lead levels in
used oil begin to drop, oil will
increasingly fail the specification
because of one of these other metals.
Without the lead specification, burning
of these oils would not be controlled.
b. Arsenic, Cadmium, and Chromium.
In the preamble to the proposal, EPA
ntated that widespread, unrestricted .
burning of used oil in boilers can result
in a substantial increase in ambient
levels of the metals arsenic, cadmium.
and chromium since 30-75% of the
metals in the fuel can be emitted.
Because these metals are carcinogenic,
and thus, have no known threshold or
oafe level of exposure, these increased
ambient concentrations would cause an
increased risk of cancer to exposed
individuals. Specification levels were
based on levels of these metals found in
dirty virgin fuel oil (Le, 95th percentile
metals levels) because we argued that:
(1) Higher levels could result in
substantial risk (i.e., 1(T4) given that
large numbers of persons in urban areas
ore exposed to emissions from
nonindustrial boilers: and (2) lower
levels could result in dirty virgin fuel oil
displacing used oil without
environmental benefit (See 50 FR at
1697 (January 11.1986).)
Several comments specifically
questioned EPA's rationale for setting
opecification levels based on the 95th
percentile level of those contaminants in
virgin fuel oil. A few commenters stated
that because these metals can cause
serious health problems, specification
levels should be based directly on risk
to health rather than on concentration in
virgin oil. Other commenters (including
a major environmental group), however.
supported our decision to use the 95th
percentile of virgin fuel oil as a
reference point A few respondents
-------
Federal Register / Vol. 50. No. 230 / Friday, November 29, 1985 / Rules and Regulations 49187
argued that the specification levels
•elected on the basis of die 95th
percentiie in virgin oil were too
* stringent, and that EPA was being
overly conservative in assuming that
there are no safe levels of exposure for
these metals. Workplace threshold limit
values (TLVs) and safe drinking water .
standards were cited as more
reasonable for use as specification
levels.
These arguments are unperauaaive.
For the reasons discussed in the •
preamble to the proposed rule and
summarized above, we continue to
believe that limiting levels of these
metals to 95th percentiie levels in virgin
fuel oil is appropriate.
Several commenters also disagreed
with the assumptions used to assess risk
from chromium (i.e., that all chromium is
emitted in its carcinogenic, hexavalent
state and, thus, can cause increased
cancer risk to exposed individuals).
These comxnenten protested EPA's
assumption that chromium is emitted in
the hexavalent form following
combustion. Comments ranged from
assertions that EPA had no data or
infonntion to make such an assumption
to theoretical arguments mat when
combusted, bivalent chromium would
not be converted to hexavalent
chromium. In general, these commenters
suggested that EPA deferspecifying a
level for chromium until the Agency
conducts studies to definitively
determine what happens to chromium
when bunted in boilers.
We agree that only the hexavalent
form of chromium has been proven to be
carcinogenic, although it is a very potent
carcinogen. The data are inadequate to
classify the trivalent chromium
compounds as to their carcmogenidty.*0
However, we believe that assuming all
chromium compounds emitted from
burning used oil in boilers are .
hexavalent chromium is a conservative,
but reasonable assumption. Ibid.
Although it is likely that a mixture of the
two forms is emitted, information is not
adequate to specify the form or the
relative quantities of each. Ibid. EPA has
initiated an extensive study to better -
understand the amount of hexavalent
chromium and total chromium being
emitted from major sources including
coal and oil fired boilers and municiple
incinerators. In addition, EPA has
formally called for information on issues
pertinent to the risk posed by airborne
chromium emissions including: (1) Are
there adverse health effects associated
with exposure to trivalent chromium?;
(2) does trivalent chromium transform in
the atmosphere or in the environment to
hexavalent chromium and vice versa?;
and (3) what is the relative quantity of
hexavalent and trivalent chromium
emitted from chromium sources? Ibid.
.The Agency, however, cannot
postpone regulatory action, given
especially that used oil contains
significantly higher chromium levels
than virgin fuel oil. Until more
information is available on these issues,
the. Agency will therefore continue to
assume that chromium emissions are in
the hexavalent form.*1
c. Flash Point Used oankcase oils
can be contaminated with highly
ignitable constituents of gasoline such
as benzene, toluene, and xylene from
* engine blow-by. Used oils can also be
mixed after use with gasoline or other
highly ignitable nonhalogenated
solvents such as xylene. Even low levels
of contamination with these low flash ,
point compounds can reduce the Bash
point of used oils, normally greater than
200*F, to levels lower than 100*F. Nearly
7% of 650 used oil samples had a flash
point below 100T."
EPA proposed a specification of 100T
because it is the American Society for .
Testing and Materials' (ASTM)
minimum flash point specification level
for virgin fuel oils. EPA reasoned that
burners are not accustomed to handling
such fuels and so used oils with a lower
flash point may present significant
hazards during handling and storage.
Thus, such low flash point oils need to
be controlled. EPA specifically
requested comment on whether such
low flash point used oils should be
regulated as off-specification used oil
fuel as proposed, or as hazardous waste
fuel
One eommenter argued that low flash
point used oil should be subject to
regulation as hazardous waste fuel to
provide adequate controls during
storage and transportation. While share
the commenter's concerns, we have
decided that low flash point oil should
be regulated as off-specification used
oil, not hazardous waste fuel. This final
rule is therefore the first step in the
Agency's efforts to regulate the blending
and burning of hazardous waste and
used oils fuels. Storage and
transportation controls for used oil,
including off-specification used oil
burned for energy recovery, are soon to
be proposed and controls (i.e., permit
•• S«« EPA's public notice of Intent to Li»t
Chromium or HeuvaUnt Chromium •* •
HiTinioui Air Pollutant (SO FR 24317-18 Qua* 1ft
19651).
•» SM «lio: US. EPA. The Air Toxic* Problem in
the United State*: Aa Anolysit of Concfr Ritk*For
Selected Pollutants, Miy 19S5.
" FranJcHn AwodatM LSd_ Composition ofUted
O/Z Appendix A.
standards) on the actual burning of
hazardous waste and off-specification
used oil fuels are scheduled to be
proposed in 1986. Thus, we believe it
may be confusing to the regulated
community and may preempt regulatory
options in these future rulemakings to
subject in piecemeal fashion used oil
off-specification only for flash point to
regulation as hazardous waste fuel. As a
matter of fact, the recycled oil
management standards propose that
used oil, including off-specification used
oil fuel, be subject to the same
substantive storage and transportation
controls for hazardous waste in many
situations.
As a final note on this point, low flash
point used oil cannot be presumed to be ,
hazardous waste under the mixture rule
(i^M because the oil is mixed with
ignitable hazardous waste). As
explained in section TV JB.3 above, the
low flash point may be attributable to
low flash point constituents of gasoline
(e.g.. benzene, toluene, or xylene) added
to crankcase oil during use.
Several commenters argued that a
specification level of 100 "F is
inconsistent with the definition of
ignitable'hazardous waste that uses a
flash point of 140 "F or below to define
ignitability. See 40 CFR 261.21. We
explained at proposal the basis for the
difference. See 50 FR 1699. n. 58. The 140
•p flash point limit defining an ignitable
waste was based primarily on the
hazard posed during land disposal.
Given that virgin fuel oils can have a
flash point as low as 100 *F, we believe
that used oils with flash points of 100 *F
to 140 *F pose no greater hazard than
virgin fuels (provided they meet the
other specification limits).
D. Comments on Allowing Blending to
Meet the Specification
The Agency received a large number
of comments for and against allowing
blending of used oil to meet the used oil
fuel specification. Operators of used oil
rerefineries and some State
environmental officials argued against
allowing blending primarily because: (1)
Blending does not reduce the total.
quantity of metals emitted from used oil
burning in en urban area—blending
limits the emissions from individual
sources but allows (in theory) a larger
number of sources to bum blended oil so
that the same quantity of used oil is
burned annually in a given area (and the
same quantity of metals are emitted);
and (2) allowing blending creates an
economic disincentive to remove metals
from used oil by rerefining to produce
lube oil (and A low-metal content fuel
-------
49188 Federal Register / Vol. 50, No. 230 / Friday. November 29, 1985 / Rules and Regulations
by-product)** because blending for
marketing a* fuel is often more
profitable than substantial processing.
On the other hand, processors and
blenders argued that blending should be
allowed because it results in a used oil
fuel product that, in general, poses no
greater health risk than virgin fuel oils.
They argued further that grossly
contaminated used oil cannot be
economically blended to meet the
specification and will go to rerefiners for
production of lube oil or to industrial
boilers and industrial furnaces for use
as a fuel"
Processors and blenders also argued.
that without blending, alternate markets
may not be available to handle the used '
oil diverted from burning potentially
leading to adverse environmental effects
(see section IV.C.3 above). Industrial
boilers and industrial furnaces may not
be able or willing to burn off-
specification used oil given the Agency's
plans to regulate such burning
(beginning with the notification and
other administrative controls provided
» by today's rule). Further, rerefiners
cannot be presumed to be an unlimited
outlet for used oh. Although many
rcrefineries are opera .ing oeiow
capacity today, and could perhaps
double their capacity within' a few years
to handle the increased supply if
blending were prohibited, profitability of
rcrcfining depends on more than an
available supply of used oil Marketing
factors such as demand for recycled
lube products and price fluctuations in
virgin lube products (resulting from
fluctuations in crude'oil prices or other
factors) are also criHcal. These
marketing factors may have played as
large a role historically in limiting the
viability of used oil rerefining as has the
problem of inadequate supply of used oil
feedstock due to competition from the
largely unregulated used oil fuel market
Thus, processors and blenders believe
that without blending, neither the
industrial fuel market nor the rerefining
market would be able to handle the used
oil that would exceed the specification.
The Agency agrees with points made
by both sides. The rule does potentially
encourage blending, blending creates a
disincentive to remove metals by
rerafining, and blending perse does not
" One* toed oil it processed to remove metal*, tt
l« considered more profltible to further process the
oH lo produce lube oil rather than to market It a*
fuel oil
*• Potential hazards posed by burning of oft-
specification used oil in these devices should be
temporary. The Agency intend* to propose permit
standards for burning off-specification used oil fuel
(and hazardous waste fuel) that will require that the
owners and operators of aU boiler* aid industrial •
furnaces burning these fuels limit metal emission*.
reduce (in tiieory) mass emissions of
metals in an urban area. However, we
believe that some highly contaminated .
used oils cannot be economically
blended and will go to rerefining or to
industrial boilers or industrial furnaces
that control metal emissions (either
currently, or eventually under rules the
Agency will propose in 1986). In
addition, as discussed above, it is not
clear that rerefineries and the industrial
fuel market would have the capacity to
handle the used'oil exceeding the
specification if blending were not
allowed. In that case, used oil diverted
would be incinerated or dumped, with
uncertain environmental trade-offs [i.e.,
compared to allowing blending).
Although blending does not reduce (in
theory) mass-emissions in an urban
area, blending of used oil to meet the
specification reduces the risk to the
most exposed individuals. Finally, and
most significantly, we believe that
blending results in a product that can
pose no greater hazard than dirty virgin
fuel oiL
For these reasons, today's final rule
allows blending. It should be noted,
however, that this rule is only the first of
three rules that will significantly affect
the used oil recycling industry. As we
develop these rules, we will examine
"flow changes" caused by the
regulations (e.g., increase in rerefining,
decrease in road oiling, etc.). At that
point, we will be better able to
determine whether our rules only serve
to promote dilution versus removal of •
metals (e.g., by rerefining or by burning
in devices with adequate emissions
control equipment). We cannot, at this
time, conduct such an assessment, and
for the reasons cited above, can find no
basis to prohibit blending.
E. Consideration of a Total Ban on
Burning Used Oil in Nonindtatrial
Boilers
At proposal, EPA requested comments
on whether all used oil burning in
nonindustrial boilers should be banned.
See 50 FR1693-84. EPA was primarily
concerned that used oil could be mixed
with hazardous waste and illegally
marketed as used oil fuel meeting the
specification.
Several commenters argued for
banning all used oil burning in
nonindustrial boilers. These commenter*
were concerned that used oil would be
illegally adulterated with hazardous
waste once the used oil is outside the
regulatory system (i.e., once a collector,
processor, or blender documents the
used oil meets the specification). These
' commenters reasoned that illegal •
adulteration is inevitable given the
current practice, particularly in the
Northeast of mixing hazardous spent
solvents with used oil for marketing as
virgin fuel oil (usually after blending
with virgin oil),1* given the nature of the
used oil and waste management
industry (again, particularly in the
Northeast)," and given the profitability
of illegal adulteration. It should be noted
that the issue these commenters raise
here is whether the proposed regulatory
scheme (i.e., allowing burning of
unregulated used oil meeting the •
specification in nonirfHustrial boilers)
can be adequately enforced, not'
whether the specificatior itself, in
conjunction with the rebi. able
presumption of mixing halogenated .
wastes, is protective per se.
Other commenters opposed an
outright ban on burning used oil in
nonindustrial boilers. These commenters
were concerned that a ban could lead to
illegal dumping or incineration of used
oil with adverse or uncertain
environmental trade-offs. For reasons
ciscussed above, rerefinery capacity
and the industrial fuel market may be
Inadequate to handle .used oil diverted
from noninduatrial boilers under a ban.
Today's rule therefore allows burning
of used oil meeting the specification in
nonindustrial boilers (or any other boiler
or industrial furnace) for a number of
reasons. We continue to believe that the
specification, in conjunction with die
rebuttable presumption of mixing, will
detect and control used oil illegally
adulterated with hazardous waste. See
SO FR 1693, a. 28. In addition, these rale*
have been developed with an
understanding of the current practices o«
the industry and should result in cost-
effective enforcement Specifically, the
controls are focused primarily on the
several hundred marketers of these fuelr
rather than the potentially thousands of
burners. These marketers must
determine whether they are handling
'hazardous waste fuel, off-specification
used oil, or unregulated used oil that
meets the specification, and must
manage the fuel accordingly. The
rebuttable presumption of mixing
hazardous chlorinated waste with used
oil, and the use of oil fuel specification
will enable both marketers and
M National Enforcement Investigations Cautar,
US. EPA. Summary of Wait* Oil Recycling Facility
Invuttisations, October 1S83.
• Proceeding* of On New York Slat* Assembly
Standing Committee on Environmental
Conservation Public Hearing on the Unlawful
Disposal of Solid and Haxardatu Waste*:
Saptember 24-28.1984 at the New York Chamber of
Commerce and Industry. New York (Volumes t tt
m a and m Cl, and September 19-21.1864 at the
Orange County Government Center, Ccaban, New
York (Volume L H. and HI).
-------
Federal Regfotes / Vol. BO. No. 230 ] Friday. November 29, 1985 / Rules and Regulations 49189
enforcement officials to make a, clear.
objective determination of the type of
fuel in question, and thus, the applicable
controls. Further, the tracking system for
fuel shipments, used oil analysis
requirements, and recordkeepuig
requirements are intended to foster
efficient and effective enforcement
It should be noted that, in response to
commenters* concerns about .
enforceability and tracking of used oil
that meets the specification, today's rule
expands the recordkeeping requirements
for used oil meeting the specification. In
addition to records of analysis required
by the proposed rule, the person who
first claims used oil fuel meets the
specification must also keep a record of
pertinent information regarding the
shipment of the used oil including: name
and address of the receiving facility.
date of shipment, and quantity shipped.
See { 286.43(b)(8)(i). This will enable
enforcement officials to track
movements one step beyond the initial
marketer. We considered applying
recordkeepuig requirements to all
subsequent marketers (e.g., distributors)
until the used oil fuel is ultimately
burned. We decided not to, however.
given mat die used oil fuel poses no
greater risk man virgin fuel oil and, once
it enters the commercial fuel oil market
should not be regulated differently than
virgin fuel oil (We note, however, that
subsequent adulteration with hazardous
waste or off-specification used oil
makes specification used oil subject to
regulation as either hazardous waste
fuel or off-specification used oil fuel.)
Moreover, in response to commenters'
concerns discussed above, we reasoned
that hazardous waste could be Illegally
mixed with virgin fuel oil, as well as •
with used oil fuel, and sold to
nonindustrial boilers. (Comments of the
State of New Jersey illustrate that this
type of illegal mixing is presently
occurring.) Thus, the risk of adultering
legitimate fuels with hazardous waste is
not unique to used oiL In light of these
considerations, there is no compelling
reason to further regulate specification
used oil fuel by additional
recordkeeping or by a ban on burning in
nonindustrial boilers.
F. Analytical Testing to Demonstrate
Compliance with Specification Levels
and the Rebuttable Presumption
At proposal EPA indicated that
general guidance on sampling and
analysis is provided in EPA, Test
Methods for Evaluating Solid Waste,
July 1982, SW-846 (U.S. GPO). See 50 FR
1705. EPA indicated further that the
Agency is revising digestion procedures
recommended by SW-846 for organic
liquids prior to determination of metals
concentrations. We were aware mat the
digestion procedures specified by
.Methods 3030 and 3050 do not result in
good recovery of metals in some oily'
matrices. Finally, EPA indicated at
proposal that it was verifying the
accuracy and precision of two field tests"
for total chlorine that are quick and
inexpensive—on adaptation of the
Beilstein flame colormetric test and a
field test kit using chemical colormetric
procedures.
A number of commenters requested
that EPA specify acceptable analytical
procedures for halogens, metals, and
Sash point and to prescribe acceptable
testing frequency. Several commenters,,
also indicated that the Beilstein chlorine
test is neither quantitative nor reliable
(because of interferences with ."
contaminants) and, thus, not a useful
test ,
The following sections specify
recommended analytical procedures and
discuss the Agency's position on
Campling procedures.
1. Chlorine. EPA's test methods
manual, SW-846, does not include an
analytical technique for determining
total halogens (reported as total
chlorine) in oil. Until a total halogen
technique for oils is formally added to
SW-846 as an approved test EPA
recommends the broadly accepted
ASTM D808-81 method {i.e., oxygen
bomb followed by titrimetric halogen
determination.
The Agency is also evaluating
automated halogen determinaton and
believes that they may prove to be
acceptable in many situations. In
addition, the Agency is continuing to
evaluate the flame and chemical
colormetric field tests and believes that
the chemical colormetric test in
particular may prove to be acceptable in
many situations.
The Agency anticipates it win
formally propose in early 1986 to add
the ASTM D808-81 chlorine
determination method to SW-846 as an
approved test The Agency will also
decide at that time whether information
is adequate to propose to add either
field test or the automated
determinaton to SW-846 as approved
tests.
2. Metals. EPA is aware that digestion
procedures specified by SW-846 for
sedimentaceous oils prior to metals
determinations (i.e., methods .3030 and
3050) do not result hi complete digestion
and release of metals in some oily
matrices. EPA is evaluating revised
digestion procedures and anticipates
proposing revisions to the procedures in
early 1986. In the interim, EPA
recommends using digestion method
3050 followed by the determination
method appropriate for specific metals
(see Table 6). For non-sedimentaceous ,
oils, however, the solvent dissolution
procedures of method 3040 may be used
in lieu of digestion method 3050.
TABLE 6.—^COMMENDED ANALYTICAL
PROCEDURES
To«ll»loo«n»_^
Fiun ponl««ww_
1010
3040*/30SO
J040V3050
SMO*/J090
3040V3050
7060
eoio
7131
7131
8010
7181
7191
•310
7410
7421
Source
ASTM.
SHt-846*nS
Evtlutting
Set* Mutt".
PropoffdTtsI
UtttadtlO! .
SoMWtttt'.
Co.
Da
Do.
dcrly tor non at&ntrOMaiota oils.
•SW-tt
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49190 Federal Register / Vol. 50. No. 230 / Friday. November 29. 1985 / Rules and Regulations
Jtot lessen the burden to rebut the
presumption of mixing if in fact the used
oil were found, for example by EPA
enforcement officials, to contain more
than 1000 ppm of total halogens. Given
the profitability of mixing hazardous
waste with used oil (i.e.. charging
generators for waste disposal and
selling the waste, after blending with oil
as a fuel), the nature of the industry [see
note 85), and past practices of illegal
mixing of hazardous waste with used*oil
(see note 84). the Agency will not
necessarily accept any claim or
certification from any party. Nor would-
such an approach be consistent with
other long-established hazardous waste
rules. See, e.g., 40CFR282.il
(generators must determine if their •
wastes are hazardous and are in
violation of regulations if their
determination is erroneous). We think
that the rebuttable presumption
promulgated today provides an
objective means of distinguishing
between used oil and hazardous waste
whenever a question exists and we plan
to use the presumption routinely during
inspections of used oil facilities.
When a person first claims used oil
fuel meets the specification, today's rule
requires that he obtain an analysis or
other information to support the claim.
Thus, testing is not specifically required
to demonstrate'compliance with the
specification. (Ordinarily, however, we
expect that testing will be used to '
demonstrate compliance.) The "other
information" could include personal,
special knowledge of the source and
composition of the used oil •• or a
certification from a generator to the
processor claiming the oil meets the
_ specification. As explained above, '
however, if a person who claims used oil
fuel meets the specification based on
"other information" and the
determination is found to be erroneous
(i.e., if testing reveals that the oil fails
the specification), he is in violation of
the'regulations.
• It should be noted further that if a
marketer claims used oil fuel meets the
specification when In fact it does not
when analyzed by EPA or State
enforcement officials at any point until
ultimately burned, it is not a defense
that the "recipient (or subsequent
recipients) reasonably believed the oil
"Repealed telling may not be warranted fa
every situation. For example, a generator who trama
on-»lle mi u*«d oil that letting shows meet* the
specification may elect to eliminate or reduce the
frequency of letting it. for example, the proceuc*
thai generate the oil do not change. In thii caie. the
generator U using "other information" to Ueu of
Inline. Nonetheless, if his determination ie
erroneous, he Is to violation of the regulations, as
explained In the text. ••
met the specification. (Again, this
approach is identical to that used for
hazardous waste.)
EPA and State enforcement officials
also have the authority under RCRA
section 3007 to enter the premises of a
person believed to be handling used oil
fuel (including trucks in the process of
transport) and to collect samples of fuel
oil irrespective of whether the person
reasonably believes his used oil fuel •'
meets the specification, for the purposes
of determining compliance with the
marketing requirements of today's rule.
Thus, a person may not deny access
because he believes the used oil fuel he
manages meets the specification and is
no longer subject to regulation.
b. Frequency of Testing. The
frequency of testing necessary to ensure
conformance with today's rules will
vary from situation to situation
depending on factors including: (1) Type
of, and changes in. sources of used oil;
(2) historical results of tests; (3) tank
filling and drawdown practices; and (4)
tank capacities. Although today's rule
does not necessarily require that each
incoming shipment of used oil be
analyzed for conformance with the
presumption of mixing, or that each
outgoing shipment of specification used
oil fuel be analyzed for conformance
with the specification (or that testing be
conducted at all), the marketer must be
satisfied that each such shipment so
conforms. In short, testing must be
conducted as often as necessary, and
the burden is necessarily on the
marketer to determine how often is
often enough. (This is comparable to a
generator's responsibility to determine
whether the wastes he generates are
hazardous. See 40 CFR 282.22.)
Therefore, we believe it is not
practicable to prescribe a testing
frequency that is appropriate for all '
situations.
IV. Regulation of Combustion Residuals
Some commenten asked whether
residuals (e.g., fly ash, bottom ash) from
burning hazardous waste or used oil for
energy recovery are subject to
regulation as hazardous waste. Unless
specifically excluded from regulation as-
hazardous waste as discussed below,
such residuals are hazardous waste if.
(1) The residuals (from burning either
hazardous waste or used oil) exhibit a
characteristic of hazardous waste; or (2)
the residuals result from burning listed
hazardous waste and the residual has
not been "delisted" under petitioning
procedures of 9 280.20 (see i 261.3(c}(2)).
These are not new requirements (and
are not being revised in any manner by
today's rules). These residuals have
been subject to regulation" as hazardous
waste since the RCRA standards were
promulgated in 1980. Although the
actual burning for energy recovery is a
type of recycling currently exempt from
RCRA regulation, the exemption does
not extend to solid waste generated by
recycling.
RCRA Section 3001 temporarily
excludes specific combustion residuals
from regulation as hazardous waste. The
exclusion is codified at 9 261.4(b](4) and
applies to residuals from combustion of
primarily fossil fuels. The Agency has '
temporarily interpreted this exclusion to
mean that the following solid wastes are
not hazardous wastes: "fly ash, bottom
'ash, boiler slag and flue gas emission
control wastes resulting from (1) the
combustion solely of coal oil or natural
gas, (2) the combustion of any mixture of
these fossil fuels, or (3) the combustion
of any mixture of coal and other fuels,
including hazardous waste or used oil
fuels, up to a SO percent mixture of such
other fuels." Thus, until the boiler and.
industrial furnace rules address this*
•issue in 1988, residuals from burning the
fossil fuels oil or gas with any quantity
of hazardous waste fuel or used oil fuel
are not excluded from regulation under
§ 261.4(b)(4). Residuals from burning
coal and up to 50% hazardous waste
fuel however, are excluded.*7- •••"••
itpondenc* bom Guy N.
at Taken from CU.I..KUIIUCUU> mnu \xuy n.
Dietrich. Associate Deputy Assistant Administrator
for Solid Waste, EPA to Paul Emler. Jr. Chairman;
Utility Solid Waste Activities Group, dated January
13,1961. Mixtures of coal and up to SOX of other
fuels are excluded from regulation (at this time)
because any contaminants from the other fuels (e.g»
hazardous waste) would be largely diluted by the
coal combustion residuals. This may not be the ease
with oil or gas combustion given the low volumes of
bottom and Oy ash generally produced from
combustion of these fuels.
•• Theie residuals may in fact contain only
minimal levels of toxic organic compounds in
situations when boilers (and industrial furnaces)
•re operated to achieve ™««
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Federal Register /Vol. 50. No. 230 / Friday. November 29, 1985 / Rules and Regulations 49191
EPA also is providing that residues
from burning hazardous waste fuels that*
are exempt from regulation under.
§ 261.6(a)(3)(v)-(ix] (i.e. hazardous waste
fuels derived from petroleum industry
wastes, petroleum coke derived from
certain petroleum industry hazardous
waste, and coke and coal tar derived
from steel industry decanter tank tar
sludge) are not covered by the derived
from rule. With respect to burning
petroleum industry fuels derived from
petroleum industry wastes, these fuels
may be no different in composition than
• virgin fuels (at least when low volumes
of wastes are introduced into the
refining process). See sections m.C.1
and 2 above. Under these
circumstances, wastes from burning
these fuels also would be no different
than from burning virgin fuels, so the
derived-from rule should not apply.
EPA is exempting from the derived-
from rule wastes from burning
petroleum coke to further Congressional
intent that the coke is subject to
regulation only if it exhibits a
characteristic of hazardous waste.
RCRA section 3004(q)(2)(A). Thus,
consistent with 5 261.3 (c)(2) and (d)(l),
wastes from burning the coke should
only be considered hazardous when
they exhibit a hazardous waste
characteristic. With respect to the iron
and steel coke and coal tar. EPA has
found that these waste-derived fuels are
not significantly different than the virgin
fuels for which they substitute (and that
the organic toxicants in these fuels are
likely destroyed by burning as well).
Thus, the derived-from rule should not
apply to the wastes from burning, which
also would be comparable to the wastes
from burning virgin coke and coal tar.
V. Consideration of Special
Requirements for De Minimis Quantities
Burned On Site
Several commenters suggested that
EPA establish a demiaimis quantity-of
off-specification used oil fuel and
hazardous waste fuel that could be
burned without regulation. Although
commenters suggested various quantity
levels to qualify foe an exemption, the
majority recommended a limit of 0.5-1%
of the total fuel consumption- of the
boiler or industrial furnace. Some
commenters also urged EPA to institute
a permit-by-rule program for facilities
burning small quantities of hazardous
waste fuel or off-specification used oil
fuel that are generated on-site.
Section 30Q4(q)(2)(B) of RCRA
explicitly allows EPA to exempt
facilities that burn de minimi's quantities
of waste as fuel, provided that the
wastes are generated on-site, are burned
for energy recovery, and are burned in a
device with sufficient destruction and
removal efficiency not to present a
significant risk to human health and the
environment EPA is presently
examining the issue of de minimi's
burning in developing the Phase II
permit standards for owners and
operators of boiler? and industrial
furnaces. Although we may propose to
exempt de minimi's quantities from the
Phase n permit standards, the basic
administrative controls promulgated
today (e.g., notification) would probably
still apply to on-site burning.*0
Therefore, today's rule does not provide
a de minimi's quantity fxemption since,
for industrial burners, the rule only
addresses these administrative controls.
. A few commenters argued that
hazardous waste fuel and off-
specification used oil fuel burned on-site
should not be subject to regulation
irrespective of quantity. These
commenters argued that storage of
hazardous waste fuels is adequately
controlled by State and local
governments and that burning of either
hazardous waste fuels or off-
specification used oil fuel is adequately
controlled by State or local air pollution
-permits. We find these arguments
without merit The hazards posed by"
handling and burning hazardous waste
fuels and off-specification used oil fuels
are substantial and essentially the same
irrespective of whether the fuels were
generated at that site. EPA has made
this finding for years with respect to-
other hazardous wastes, and no
arguments have been presented
distinguishing hazardous waste fuels
from all other hazardous wastes
managed on site. The commenters'
argument also was rejected in the
legislative history to the HSWA. See S.
Rep. 98-284,98th Cong. 2nd Sess. at 38. .
Moreover, the storage of hazardous
waste fuels and the burning of either
hazardous waste fuel or off-specification
used oil fuels can pose much greater risk
to human health and the environment
than storage and burning of virgin fossil
fuels. State and local controls on storage
and burning of virgin fuels are not
intended to provide the level of control
of releases of toxic constituents from
storage facilities or from boilers or
industrial furnaces that EPA's
regulations will provide, starting with
today's final rule.
*B It ihould be noted that today'i nil* does not
regulate storage of uod oil fuel. Although (forage of
hazardous w««te fuel if regulated by todiy'i rule,
•pedal (I.e- reduced) standards arc already
provided for on-»lte storage in tank* and container!
of hazardous waste by generators (see 1282J4).
Further, small quantity generators are already
exempt from storage standards under f 281A
PAR'T THREE: COMBUSTION
DEVICES THAT ARE REGULATED
L Overview -.
In this section, we identify boilers and
industrial furnaces subject to regulation
and distinguish between nonindustrial
boilers and industrial or utility boilers.
We also explain the basis for regulating
nonindustrial boilers immediately in
advance of controls for industrial boilers
and industrial furnaces. In addition, we
discuss how these nonindustrial boilers
can continue burning hazardous waste
when they operate under permit
standards for hazardous waste
incinerators. Finally, we discuss
controls for used oil space heaters and
EPA's intent to provide additional
controls for these devices in the
rulemaking proposing permit standards
for burning in boilers and industrial
furnaces scheduled for 1986.
H. Regulation of Boilers
A. Basis for Regulating Boilers by Boiler
Use
Today's rule prohibits the burning of
hazardous waste and off-specification
used oil fuel in nonindustrial boilers
(e.g., located in apartment and office
buildings, schools, hospitals) and. for the
time being, continues to allow burning of
such fuels without substantive controls
in industrial and utility boilers (and
industrial furnaces). As EPA stated at
proposal, the rule singles out
nonindustrial boilers because burning
hazardous waste fuels and off-
specification used oil fuels in these
boilers can pose the most significant
and immediate health risks. See 50 FR
1687-1688 and 1701, n. 63. Nonindustrial
boilers are typically very small and may
not achieve complete combustion of
toxic organics (e.g., 99.99% destruction)
because of inadequate controls to
maintain optimum combustion
conditions when firing fuels the boiler is
not designed to burn. Further, virtually
'no nonindustrial boilers are equipped
with emissions control equipment that
would control (at least to some extent)
metals emissions, while many industrial
furnaces and some industrial boilers are
so equipped. The risks from emissions of
incompletely burned toxic organic
compounds and toxic metals from
nonindustrial boilers is compounded
because these boilers are typically
located in urban areas where sources
are frequently clustered closely togethei.
Thus, emission plumes from numerous
sources can overlap and increase
ambient concentrations of toxic
compounds. Further, individuals can be
exposed to high ambient levels of
emitted toxicants because they can be
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49192 Federal Register / Vol. SO, No. 230 / Friday, November 29. 1985 / Rules and Regulations
located close to tka sources and
exposed to the even higher toxicant
levels above-ground (e.g., if the
individual is exposed to above-ground
air through a window in a multi-story
apartment or office building).
EPA also stated at proposal that there
may be many situations where
industrial (and utility) boilers and
industrial furnaces can bum hazardous
waste fuel or off-specification used oil
fuel without posing significant risks. See
50 FR1688. For example, large boilers or
industrial furnaces may be operated by
trained operators and equipped with
combustion controls sophisticated
enough to maintain peak combustion
efficiency when burning fuels the unit is
not designed to bum.
Further, many industrial furnaces and
. some boilers are equipped with
particulate control equipment that may
adequately control emissions from
metal-bearing waste fuels. The Agency
has recently completed a testing
program to determine under what
operating conditions boilers and
industrial furnaces can bum waste fuels
without posing significant health risks.
• As a result of that effort. EPA plans to
propose technical, permit standards for
burning hazardous waste fuels and off-
specification used oil fuels in boilers
and industrial furnaces in 1886 taking
into account when and ho.w these
wastes can be burned safely in these
devices.
One commenter questioned whether
burning hazardous waste fuels in a
nonindustrial boiler is prohibited if the
boiler can comply with the permit
standards for hazardous waste
incinerators. Other commenters
suggested that criteria other than boiler
use (e.g., boiler size) should be used to
identify those boilers subject to the
prohibition. These issues are discussed
below.
1. Conditional Exemption for
Nonindustrial Boilers Burning
Hazardous Waste Fuel EPA explained
at proposal that there may be particular
nonindustrial boilers that may bum
hazardous waste fuels (we know of one
location) effectively due to the unit's
operating conditions, type1 of hazardous
waste fuel, etc. To allow such burning to
continue, EPA said that the owner or
operator must comply with the
hazardous waste incinerator standards
of Subpart O of 40 CFR Parts 284 or 285.
See 50 FR 1688. The owner or operator
must also comply with the requirements
for burners'in today's rule (e.g.. storage
standards). See § 268.35. We are making
a conforming amendment to Subpart O
to make clear that this possibility exists.
Owners and operators of "
nonindustrial boilers currently burning
hazardous waste fuel are eligible for the
interim status incinerator standards of
Part 285 because they first become
subject to those regulations today.
Those interim status standards will
reduce the hazards posed by these
operations by prohibiting burning during
start-up and shut-down and by applying
the general facility standards (e.g.,
closure, financial requirements) for
hazardous waste management facilities.
The Regional Administrator has the
discretion to permit these faculties
under Part 284, Subpart O (and
applicable storage provisions) by calling
ill their Part B permit applications. We
do not expect however, that
nonindustrial boilers that continue to
bum hazardous waste fuel under the
interim status standards of Subpart O of
Part 285 will be formally permitted
under Part 284, except in exceptional
circumstances. Rather, we expect that
any such nonindustrial boilers would be
ultimately permitted under the permit
standards for boilers and industrial
furnaces to be proposed hi early 1888.
Those permit standards will likely
control emissions of toxic organic*,
toxic metals, and hydrogen chloride. We
believe the standards would be
protective when applied to any device—
e.g., industrial or nonindustrial boilers.
Moreover, those boilers and industrial
furnace standards will be equally or
more protective than the incinerator
standards under Subpart O of Part 264
(e.g., the Agency may propose direct
control of metals emissions from boilers
and industrial furnaces while particulate
controls are used for incinerators to
indirectly control metals).
2. Consideration of Other Criteria for
Identifying Boilers Subject to the •
Prohibitions. At proposal, EPA
explained why the prohibitions on
burning hazardous waste fuel and off-
specification used oil fuel would apply
to boilers based on boiler use—the
prohibitions would apply to
nonindustrial boilers. Burning these
fuels hi nonindustrial boilers can pose
substantial and immediate risks for the
reasons discussed above. EPA
explained further that it plans to
propose permit standards in 1888 for'
industrial and utility boilers and
industrial furnaces. Nonetheless, EPA
specifically requested comments on
whether small industrial boilers should
also be prohibited from burning
hazardous waste and off-specification
used oil fuels, given that very small
boilers, whether industrial or
nonindustrial. may typically be
equipped with less sophisticated
combustion controls and may be less
rigorously operated and maintained to '
achieve peak combustion efficiency.
, Many commenters said that large
nonindustrial boilers can burn
hazardous waste fuel as efficiently as
large industrial boilers and should not
be prohibited from doing so. These
commenters apparently did not
understand that EPA said as much in the
preamble to the proposal and said that
these boilers may continue burning
hazardous waste fuel if they comply
with the standards for. hazardous waste
incinerators, until we promulgate permit
standards for boilers as discussed
above. We believe that it is reasonable
to require such nonindustrial boilers to
comply with the incinerator standards
now and postpone regulation of
industrial boilers until we promulgate
permit standards for boilers because
nonindustrial boilers as a class are
likely to pose greater risks because they
are more likely to be located within
densely populated areas. (Although
industrial boilers are frequently located
hi urban areas, nonindustrial boilers are
almost always so located.)
Many commenters argued for and
against prohibiting burning small
industrial boilers using the issues EPA
discussed in the preamble to the
proposal See 50 FR at 1700-1701.
Today's rule does not prohibit burning
in small industrial boilers. Although it
can be argued that nonindustrial and
industrial boilers of the same size'are .
likely to burn hazardous waste fuel with
similar destruction efficiency, we
believe that nonindustrial boilers as a
class pose a greater hazard for the
reasons given above. Thus, as discussed
above and at 50 FR 1687-1688. it is
reasonable to require nonindustrial
boilers to comply with the incinerator
standards now and postpone regulation
of industrial boilers until we promulgate
permit standards for boilers.
Several commenters recommended
that EPA prescribe design and operating
conditions, or performance standards, or
consider boiler location rather than
prohibiting burning hi particular devices.
The permit standards for boilers that we
plan to propose hi 1888, hi fact, would
use performance standards, or
alternative operating conditions, to
permit burning of hazardous waste fuel
hi any boiler. However, until those
standards are promulgated,
nonindustrial boilers wiH be subject to
the conditional prohibition for the
reasons given above.
Boiler location has been considered in
supporting immediate regulation of
nonindustrial boilers—they are typically
located within highly populated areas.
Persons hi less densely populated areas
would have a lower exposure; thus, we
could use site-specific risk assessments
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Federal Register / Vol. 50. No. 230 / Friday. November 29. 1985 / Rules and Regulations 49193
to support alternative, reduced controls.
Given the complexity of quantitative
risk assessments (Le., assessments that
are-used to support particular controls
for particular facilities) and the number
of boilers that burn off-specification
used oil fuel and hazardous waste fuel
a regulatory program based on site-
specific risk assessment would be
difficult to implement with current and
foreseeable resources. Titus, we have
not included a variance procedure based
on risk assessment in today's rule.
B. Definition of Industrial Boiler
Today's rule, like the proposal, uses
the terms industrial boilers, utility
boiler, and industrial furnace to identify
combustion devices'that are not
nonindustrial boilers subject to the
prohibition. We believe it is less
confusing to define the devices that are
not subject to the prohibition than to
attempt to define and identify the
various types of nonindustrial boilers
(e.g., residential, commercial,
institutional).
EPA defined the term "industrial
boiler" at proposal as any boiler that
produces electric power, steam or
heated or cooled air, or other gases or
fluids for use in a manufacturing
process. Further. EPA has defined
"boiler" as an enclosed device using
controlled flame combustion and having
specific characteristics including* (1)
The combustion chamber and primary
energy recovery section must be of
integral design (e.g., waste heat recovery
boilers attached to incinerators are not
boilers); (2) thermal energy recovery
efficiency must be at least 60% and (3) at
least 75% of recovered energy must be
"exported" (i.e., not used for internal
uses like preheating of combustion air or
fuel, or driving combustion air fans or
feedwater pumps). See 50 FR at 661 (Jan.
4,1985).
Some commenters requested that EPA
include in the definition of industrial
boiler those boilers which are physically
located on the premises of a
manufacturing facility but which recover
energy solely for space heating rather
than manufacturing. Commenters argued
that these boilers are often the same
size and are operated no differently than
other boilers at the facility producing
energy used for actual manufacturing.
Further, such boilers are often located in
industrially zoned areas, thus reducing
the probability of large numbers of
persons being close to the source and
being exposed to above-ground level
concentration as would be typical of
many nonindustrial boilers. Thus,
commenters argued that since the
burning characteristics and risks are
similar for all boilers located at
manufacturing facilities, the boilers
should be regulated in the same manner.
EPA agrees and has amended the
regulations accordingly. Section
266.31(b)(2)(i} has been modified from
proposal to define an industrial boiler as
any boiler located on the site of a
manufacturing facility.
Although we believe this definition of
industrial boiler will enable the vast
majority of boiler owners and operators
to clearly catagorize their boilers, there
may be situations where it is not so
clear. If an owner or operator is not sure
whether his boiler meets today's
definition of industrial boiler, he should
contact the Regional Administrator for a
determination.
C. Definition of Utility Boiler
EPA defined utility boilers at proposal
as boilers used to produce electric
power, steam, heat or cooled air, or
other gases or fluids for sale. Owners
and operators of utility boilers are
burners regulated in the same way as
owners and operators of industrial
boilers.
We identified utility boilers
separately from industrial boilers only
as an indirect means of identifying
nonindustrial boilers subject to the
prohibitions (i.e.. it is less confusing to
identify boilers not subject to the
prohibitions than to define nonindustrial
boilers subject to the prohibitions).
Clearly, utility boilers are not
nonindustrial boilers and have never
been identified as such.
A few commenters requested that
EPA distinguished between industrial
and utility boilers on the basis that
utility boilers achieve good combustion
efficiency and have emission control
equipment thereby leading to safe and
efficient burning of off-specification
used oil fuel. The commenters, however,
did not specify what practical regulatory
distinctions should be made.
Any special design, operation, or
emissions control features that utility
boilers may have that will reduce risk
posed by burning used oil will be
considered during development of the
permit standards for burning hazardous
waste fuel and off-specification used oil
fuel in boilers and industrial furnaces
scheduled to be proposed in 1986. EPA
can see no reason why utility boilers
should not be subject to the rules
promulgated today.
D. Nonindustrial Boilers
In the proposal, EPA explained that
nonindustrial boilers include those
located at: (1) Single or multifamily
residences: (2) commercial
establishments such as hotels, office
building, laundries, or service stations;
and (3) institutional establishments such
as colleges, hospitals, and prisons,. To
avoid the problem of providing a clear,
encompassing, and unambiguous
definition of nonindustrial boiler, we
have identified and defined those
devices not subject to today's
prohibition: industrial boilers, utility
boilers, and industrial furnaces.
£ Marine and Diesel Engines
Used oil may be burned in other
devices such as diesel or marine
engines. These devices may not meet the
definition of a boiler and are not listed
as industrial furnaces under { 260.10.
See 50 FR at 661 (January 4,1985). Used
crankcase oil from diesel engines is
frequently blended with virgin diesel
fuel and burned in diesel engines (e.g.,
tractor-trailer engines). In addition, used
oil is sometimes used as fuel for ship
engines. Although such burning is for the
purpose of energy recovery (i.e., the
used oil provides substantial, useful
heat energy, and in fact replaces virgin
fuels), the burning of used oil in these
devices was not considered during
development of the proposed rule. Given
that it is not clear that diesel and marine
engines meet the definition of a boiler,
that EPA has not taken comment on
whether such devices meet the
definition, and that today's rules apply
to used oil that is burned in a boiler (or •
industrial furnace) for energy recovery,
today's rules do not apply to marketers
and burners of such used oil. Thus, the
used oil fuel specification and the
invoice and certification recordkeeping
system do not apply to such used oil.* *
With respect to notification
requirements, we have determined that
owners and operators of these devices'
need not notify the Agency (this type of
exemption if expressly allowed under
Section 3010(a)). We do not think it
serves any practical purpose for owners
and operators of marine engines (many
of which are under foreign ownership)
or other diesel engines such as the
thousands of diesel trucks " to notify of
•i It ihould be noted that if » peraon market! off-
ipecification u»ed oil fuol exempt from today1* rules
because tt is burned in marine diesel engines, that
person has the burden of proof to demonstrate that
in fact such exempt used oil will be burned in those
-devices. See 50 FR 1682 (January 11.1B85) and SO FR
642 (January 4.19SS). Ordinarily, invoices that track
• shipment of off-specificatioo used oil to the end
user (i.e.. marine or diesel engine owner or operator)
will be required to carry thi§ burden.
•* Further, even if such used oil burned in diesel
trucks were subject to today's used oil fuel
specification, the oil would not likely exceed the
specification as burned. As will be discussed in
some detail in the used oil listing/management
standards ruiemaking that will soon be proposed.
used diesel crankcase oil is typically mixed with
Continued
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49194 Federal Register / Vol 50. No. 230 / Friday. November 29. 1985 / Rulea and Regulations
their used oil burning activities at this
time, and EPA does not need such
Information to assess what rules may •
ultimately be appropriate.
Marketers of used oil that is burned in
marine or diesel engines, on the other
hand, must comply with the notification
requirement EPA needs to know who
these marketers are to be able to
investigate whether these marketers are
mixing hazardous waste with used oiL.:
Hazardous waste,' including used oil
mixed with hazardous waste, cannot be
burned in maring or diesel engines
unless the devices are permitted as '
hazardous waste incinerators. (Devices
that bum hazardous waste by means of
controlled flame combustion and that
are neither boilers nor industrial
furnaces are considered to be
incinerators for regulatory purposes. See
§260.10 in 50 FR 661 (January 4,1985).)
Thus, used oil marketed for use as fuel
in marine and diesel engines is (like
other used oils) subject to the '
presumption of tniving hazardous waste
established by today's rule.)
It should also be noted that although
* the used oil fuel specification and the
invoice and certification recordkeeping
system established by today's rule do
not apply to used oil marketed for use as
fuel in marine or diesel »";fo»n, such
* used oil would be subject to the
transportation and storage controls for
recycled oil that will soon be proposed.
When promulgated, those controls will
supersede today's rules for used oil fuels
and will apply to all recycled oils.
m. Regulation of Industrial Furnaces
EPA has defined "industrial furnace"
as those devices specifically listed by
the Administrator as enclosed device*
that are integral components of a
manufacturing process and that use a
controlled flame to accomplish recovery
of materia's or energy. See 50 FR 661
(January 4.1985). The Agency has also
identified criteria for listing other
devices as industrial furnaces. To date.
the liit of industrial furnaces includes
cement kilns, lime kilns, aggregate kilns
(including asphalt kilns], blast furnaces,
and smelting, melting and refining
furnaces.
Owners and operators of these
industrial furnaces are subject to today's
rules for burners (see 5 266.35) when
they burn hazardous waste or off-
specification used oil for energy
recovery or for both energy recovery
63% virgin dle*el fuel before use as a diesel fuel
The blended fuel Is likely to meet the used oil fuel
specification. Thus, owners and operators of such
engine* would be burning a used oil that meets the
specification and that would be exempt from
tejulaUon.
and another recycling purpose (see
section n of this preamble).
IV. Regulation of Used Oil Space
•Hutsrs
As proposed, today's rule provides a
conditioned exemption from the
prohibition on burning off-specification
used oil fuel in used oil space heaters.
EPA stated at proposal (see 50 FR at
1700) that it is deferring regulation of
these devices until it better understands
the risk they pose and evaluates
regulatory options to address any such
hazards. EPA stated further mat it
would address regulation of these
devices in future rulemakinga. In the
interim, these space heaters may
continue to bum off specification used
oil fuel provided that they vent the
heater to the outdoors and burn only
used oil they generate or receive from
do-it-yourself oil changes.**
As EPA explained at proposal used
oil space heaters are very small heaters
frequently used in service stations and
auto repair shops. The units typically
burn 1 to 2 gallons of used crankcase oil
per hour. Ninety percent (90%) of the
heaters are the vaporization type where
the oil Is vaporized from a pan at the
base of the heater while metals and
heavy, low volatility compounds remain
in the pan (and are cleaned out
periodically). The other heaters are the
atomization type where the oil is
sprayed into the combustion chamber.
Vaporization units appear to have low
metals emissions rates—5 to 15% of the
metals are emitted. This is comparable
to (or lower than) the metals emission
rate from larger boilers (industrial flr
nonindustrial). Atomization units,
however, appear to have relatively high
metals emissions rates—7595 to 95%.
EPA concluded that vaporization unite
probably do not pose a health risk while
it is not clear whether atomization unite
pose significant risks given the small
size of the unite.
Most commenters supported the
exemption and believed that no further.
regulation is necessary. Supporters
argued that vaporization unite comprise
90% of the unite in operation and emit
only low levels of metals. Supporters of
the exemption were silent with respect •
to atomization units.
Opponents to the exemption used
various arguments and proposed various
regulatory alternatives. Many
commenters were concerned that the
risk from metals and toxic organic
emissions could be significant given that
these space heaters are'frequently
operated in residential areas. They
argued that it would be premature to
grant an exemption until further risk
assessment is conducted.*4 Some
opponents suggested that atomization
heaters be banned entirely and others
suggested application of emissions
standards to both atomization and
vaporization units. In addition, some
commenters suggested that an
exemption would actually cause a
proliferation of space heaters since they
could be viewed as a cheap, easy
method of providing heat as well as
getting rid of used oil. Thus, EPA should
consider "grandfathering" existing space
heaters rather than granting a blanket
exemption. Commenters were also
concerned that space heaters could
provide a loophole for disposal of
hazardous waste generated at service
. stations and auto repair shops by mixing
with the used oil to be burned.
EPA continues to believe that
atomization space heaters may pose
significant risk hi unique situations (e.g..
where multiple atomization unite
burning used oil with high levels of
metals are clustered together, and
persons are located close to the sources)
while the much more prevalent
vaporization units probably do not pose
significant risks. Thus, we do not believe
there is a compelling reason to take the
extreme measure at this time of virtually
banning the use of these devices which
would result if they were not exempted
from the prohibition on burning off-
specification used oil fueL We intend to
include regulations for these devices, as
deemed necessary, when we propose
permit standards for all boilers and
industrial furnaces in 1986. Thus, we can
ensure that controls on burning in these
devices are consistent with controls,
particularly for metals emissions, on
other boilers and industrial furnaces. In
addition, by that time, we will have
proposed the comprehensive
management standards for recycled oil
which would regulate generators and
collectors, as well as the marketers and
burners (except for permit standards for
burning) regulated by today's rule. At
that time, we can consider the
regulatory impact on generators, as
" The exemption It aba conditioned on the unit
having a capacity of leu than OS million Btu/hr.
Thii encompaiie* all used oil ipace beaten in us*
today and prevents operaton of larger boilen from
claiming they operate uied oil ipace heaten.
•4 Harvard University submitted Information
about research they have been conducting regarding
the effect of emissions from used oil on mammalian
lung tissue. Various dosages were applied in a
short-term inhalation study utilizing hamsters.
Harvard reported results showing lung damage from
metals and other toxic eomHtoents from both •
vaporization and atomization Iieaten. and
recommended further study to develop rational risk
estimates.
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Federal Register / Vol. 50, No. 230 /Friday, November 29. 1985 / Rules and Regulations 49195
required by RCRA section 3014(c), of
regulating used oil space heaters in
conjunction with the entire regulator}'
scheme for recycled oil
As a final note, a few commenters
suggested that proposed I 266.41(b)(4)(i)
be revised to conform with explicit
preamble language that allows the
owners or operators of exempted space
heaters to burn used oil received from
"do-it-yourself* oil changers as well as
used oil they generate. We agree and
have modified that provision in the final
rule at 5 266.41{b)(2)(iii).
PART FOUR: ADMINISTRATIVE AND
STORAGESTANDARDS
L Administrative Standards
A. Overview
Hazardous waste fuels and off-
specification used oil fuels are subject to
certain administrative requirements,
including a one-time notification to
identify waste-as-fuel activities and to
obtain a U.S. EPA Identification
Number. Even if an individual has
previously notified the Agency, and
already has a U.S. EPA Identification
Number he must renotify to identify his
. waste-as-fuel activities (although his
Identification Number remains the
same). Other administrative
requirements include compliance with a
manifest system (for hazardous waste
fuels), or an invoice system (for off- *
specification used oil fuel) and
recordkeeping. In addition, persons
receiving shipments of hazardous waste
fuel or off-specification used oil fuel
must certify to the shipper that they
have notified EPA of their waste-as-fuel
activities, and that they may legally
burn the fuel These controls make it
possible to administer and enforce the
prohibitions against burning in
nonindustrial boilers, end provide for
proper tracking of the materials. .
The administrative requirements
apply to both marketers and burners of
hazardous waste fuel and off- .
specification used oil fuel. Generators of
hazardous waste or used oil who send
their waste directly to an individual who
bums those wastes are considered to be
marketers and are subject to these
controls. Conversely, generators who
send their hazardous waste or used oil
to an individual who does not burn the
waste for energy recovery are not
considered to be marketers, even if the
waste is burned later for energy
recovery by another person. (Such
generators of hazardous waste.
however, are subject to 40 CFR Part 262
as ordinary hazardous waste
generators.)
Hazardous waste fuel transportation
it, subject to the full set of Part 263
requirements. This rule regulates for the
first time transporters of hazardous
waste fuel that is neither a listed waste
nor a sludge. These hazardous wastes
are currently exempt from regulation
under § 266.36 (see 50 FR 687 (January 4,
S985}), a provision that is superseded by
today's new Part 286 standards. Used oil
transportation is exempt from the
administrative requirements in order to
avoid piecemeal regulation of used oil
transporters.'* If used oil fuel
transporters are regulated while other
used oil transporters are not
transporters could avoid complying by
claiming that the used oil is intended for
other purposes. EPA will address
regulation of transporters hi its recycled
oil management standards scheduled to
be proposed later this year.
The following table summarizes the
controls required under today's rule:
TABLE 7.—CONTROLS FOR WASTE FUELS
Part 2*2*
MRN.PMCAS
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49196 Federal Register / VoL SO. No. 230 /Friday. November 29. 1985 / Rules and Regulations
used oil generator* and transporters
. (unless they also market directly to a
burner)."
Notification abo does not apply to
owners and operators of boilers or
furnaces, including but not limited to
nonindustrial boilers, who burn used oil
fuel that meets the specification.
3. Use of the Hazardous Waste
Notification Form. Persons required to
file notifications (or renotify) with EPA
or authorized States because of their -'
wasters-fuel activities may use EPA
Form 8700-12 (revised 11/85):
"Notification of Hazardous Waste
Activity." See the appendix to today's
regulation. This form is a revision of the
existing notification form which was
modified to include waste-as-fuel
notification requirements. The Agency
made minor changes to the proposed
form to make it clear that persons who
first claim that the used oil fuel they
market meets the specification are
subject to the requirements (including
notification, used oil analysis, and
recordkeeping) provided under §286.43.
See preamble discussion in section IVJ5
of Part Two.
• The revised notification form provides
EPA with the number and location of
facilities involved in processing,
blending, marketing, and distributing of
waste fuels, and the number, type, and
location of burners. These.data will be
used to develop a general profile of the
waste fuel industry and assist in future
regulatory development
Several commenters suggested
revisions to the proposed notification
form. One commenter argued that
language requiring the signer of the form
to be personally familiar with and
responsible for the veracity of the
responses places an undue burden on
managers of facilities who may not be
aware of all operations of their facility
on a day-to-day basis. This requirement
has been in place since the notification
form was first used for the RCRA
hazardous waste program in 1980. It is
not a special requirement pertaining to
notification of waste-as-fuel activities.
EPA sees no compelling reasons to
modify its longstanding position that
one person must ultimate take
responsibility for a facility's operation
and compliance with federal regulations.
** As noted it proposal, however (u« 50 FR1702.
n. M), u»cd oil groentori and transporters who
•erultiaed oil to marketers that burn aorae used oft
are lurtoraldcrcd to be marketing used oil fuel
directly to a burner for purposes of today's rule.
Thai. the** generators and transporter* are not
regulated (and not required to notify) a* markets™.
Thla U because the burning at the marketer*' facility
If considered Incidental to the primary function of
the marketer*' facility: processing and marketing of
uitd oil fuel „
Another commenter suggested that the
reference to "listed infectious waste" on
the proposed form be dropped, since no
such category exists. This was an
oversight on EPA's part, and has been
deleted from the final form.
£ Notification Procedures and
Implementation. As EPA indicated at
proposal, it estimates that there are, at
most, 20,000-30.000 persons that may be
required to file notifications. While EPA.
does not intend to carry out a mass
mailing to potentially affected parties,
the Agency will widely announce the
notification requirements of these rules
through the press and trade journals. •
Persons required to notify under
today's rule should consider this Federal
Register notice their final notice to
submit a notification. To obtain-a
notification form, you should contact
your authorized State hazardous waste
agency or your U.S. EPA Regional
Office. Each requester will receive a
complete notification package, including
a form and accompanying instructions.
to assist him in filing his notification.
EPA will return to each notifier an
acknowledgment of receipt of the
notification, and will issue a U.S. EPA
Identification Number if one was not
previously assigned. This
acknowledgement in no way constitutes
an endorsement by EPA of the adequacy
of the notification or of the notifier's
business practices: rather, it serves as a
confirmation that EPA received the
notification.
5. Legal Significance of Notification.
EPA is promulgating the notification
requirement for hazardous waste fuels
and off-specification used oil fuels under
the authority of Section 3010(a) of
RCRA, as amended. The notification is a
prerequisite for RCRA interim status
(see RCRA section 3005(e)(2)) for
owners and operators of hazardous
waste fuel storage facilities. See RR.
Rep. No. 98-198 at 41, likewise
specifying that notification of
management of hazardous waste fuels
serves as a prerequisite for interim
status.) '
C Transportation Controls
As proposed; EPA is adopting today a
system to track movement of hazardous
waste fuel and off-specification used oil
fuel from the initial marketers (e.g..
processors, blenders, distributors, or
generators who market to burners
through intermediaries (e.g.,
transporters, distributors) to the
industrial users who burn the fuel for
energy recovery.'* This tracking system
allows regulatory officials to track a
hazardous waste fuel or pff-specification
used oil fuel from point of processing,
blending, or other treatment to point of
burning, thus making the prohibition on
burning in nonindustrial boilers
enforceable. Equally important the
tracking document (either a manifest or
an invoice) alerts persons who handle
these materials that they are receiving a
hazardous waste or off-specification
used oil.
Consequently, EPA today is finalizing
its proposal that all shipments of
hazardous waste fuel be accompanied
by a manifest Hazardous waste fuel
marketers are subject to the
transportation (and pre-transport)
requirements of 40 CFR Part 262 and
transporters are subject to the
requirements of 40 CFR Part 283.
We are requiring a slightly different
system for off-specification used oil fuel.
whereby marketers (e.g.. processors,
blenders, distributors, and generators
who market to burners) offering off-
specification used oil fuel for sale must
prepare and send an invoice to the fuel
buyer, but do not have to have the
invoice physically accompany each
shipment (Transporters thus will not
have to comply with any invoice
requirement) This distinction (Le»
invoice in lieu of a manifest) is needed
. to avoid piecemeal regulation of used oil
transporters, as explained at proposal
See 50 FR 1704 n. 76.
The invoice must include the shipment
initiator's name, address and
identification number, the receiving
facility's name, address, and
identification number and the quantity
of off-specification used oil fuel shipped.
All of this information is currently
required in the standard EPA hazardous
waste manifest
'As EPA stated at proposal, in a
situation where an off-specification used
oil fuel goes from a processor or blender
. to an intermediate distributor, the
distributor must reinstitute a new
invoice to accompany any fuel it sells
that is produced from or otherwise
contains the used oil (unless the used oil
fuel now meets the specification). This
requirement is consistent with those
found in other parts of the RCRA .
regulations whereby intermediate.
storage facilities must reinitiate a
manifest See. e.g, 4O CFR 264.71(c) and
282.10{fl.
••The system Is already in place for certain
hazardous waste fuela—namely listed wastes and
sludges when sent directly from the generator to •
burner. See Subpart D of Part 288 in SO FR 667
(January 4.1965). Today's rule axpands the system
to .a/7 hazardous waste fuels managed by all
' marketers and burners, except those specifically .
exempted under 12tn.O(aH3)«a revised in today, a
rule.
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Federal Register / Vol. SO, No. 230 / Friday, November 29. 1985 / Rules and Regulations 49197
As described in the proposal, the
Hazardous and Solid Waste
Amendments of 1984 amended RCRA to
require producers, .distributors, and
marketer! of hazardous waste fuels to
include a warning label on the invoice
or bill of sale for the fuel. The
requirement became effective in
February 1985, but is superseded by
today's rule. The Agency believes that
the requirement for an invoice or a
manifest achieves the same purposes as
a warning label—to alert the user or
distributor that he is receiving
hazardous waste fuel. The manifest also
notifies the transporter that he is
handling hazardous waste because the
manifest must accompany the shipment
No comments disagreed with the
Agency's conclusion that an invoice or
manifest is an adequate replacement for
the statutory warning label.
Several comments were received on
the proposed invoice/manifest
requirement Commenters suggested that
transfer of waste fuels from site to site
within the same company should be
exempt from the invoice and
manifesting requirements. Commenters
pointed out that such transfers are
routine; thus, they reasoned that
invoices or manifests are unnecessary.
At the very least Commenters requested
that EPA consider a simplified manifest
or invoice for such transactions.
EPA believes that the manifest
requirement for hazardous waste fuels
serves essentially the same purpose as
the current manifest requirement for
other hazardous waste—to alert
transporters (and emergency response
officials) as well as facility operators __'
(e.g., burners) of the fire and explosion "
hazards posed by the shipment and to
establish a paper trail that will enable
enforcement officials to implement and
enforce the regulations. Given similar
purposes and that off-site, but
intracompany, shipments of other
hazardous waste are subject to full
manifest requirements, EPA sees no
compelling reason to modify manifest
requirements specifically for hazardous
waste fuel. See also 50 FR 28724-28725
(July 15,1985) where the Agency
adopted the same position with regard
to the warning label required by RCRA
section 3004(r)(l).
D. Notice and.Certification
Requirements
To enforce the prohibition on burning
hazardous waste fuel and off-
specification used oil fuel in
nonindustrial boilers, the prohibition
applies not only to the boiler owner and
operator, but also to the waste fuel
marketer. Thus, a marketer (a processor.
ble ider, distributor, or a generator
marketing directly to a burner) may not
sell hazardous waste fuels or off-
specification used oil fuel to a person
who burns it in a nonindustrial boiler
but must ensure that they market these
fuels only to persons in (and, thus,
aware of) the regulatory system: persons
who have notified EPA of their waste-
as-fuel activities. In addition, marketers
are responsible for determining whether
their waste fuel is subject to regulation
(i.e., whether their product fuel contains
hazardous waste or is off-specification
used oil).
As EPA explained at proposal, to
comply with these requirements,
marketers need to know whether the
person receiving a shipment of
hazardous waste fuel or off-specification
used oil fuel has notified EPA of his
waste-as-fuel activities and whether he
intends to burn the fuel only in a utility
boiler or industrial boiler or industrial
furnace. Thus, the rules include a
provision requiring that a marketer of
hazardous waste fuel or off-specification
used oil fuel receive a certification from
the fuel purchaser stating that the
purchaser has notified EPA of his waste-
as-fuel activities and will bum the fuel
only in unrestricted boilers or furnaces.
This certification is a one-time notice
and is required before sending the initial
shipment Similarly, the purchaser is
required to send the certification before
receiving the first shipment from a
marketer. This will ensure that the
recipient is aware of the regulations
applicable to waste fuels and of his
responsibilities as a burner (or
intermediary). Hazardous waste and
used oil generators (and transporters
receiving waste from generators) who
market their waste to a person who is
not a burner are not subject to this (or
any other) requirement for marketers
and a recipient of the generator's
hazardous waste or used oil is not
required to provide the generator with a
certification notice. (Hazardous waste
generators and their transporters are,
however, subject to regulation as
ordinary hazardous waste generators
and transporters under 40 CFR Parts 262
and 263 respectively.)
E. Used Oil Analysis Requirements for
Marketers
Marketers who first claim used oil
meets the specification and is
essentially exempt from, further
regulation 10° must document by
>» As discussed in the text in Part Two. Motion
JV.E. such rairketen mint keep records of the initial
shipment of specification used oil Also, as
discussed in section IV.F. EPA and State
enforcement officials have the authority to enter the
premises of a person believed to be handling used
oil fuel and to collect samoles of fuel oil.
analyses or other information that the
oil in fact meets the specification.
Although the proposal required testing
for documentation, the final rule allows
the use of other information to show
that the oil meets the specification. See
previous discussion in Part Two, section
IVJF. This is consistent with a
generator's requirements under 40 CFR
262.11(c) to use testing or other
information to determine whether his
solid waste is hazardous waste.
Ordinarily, however, we expect that
testing will be used to demonstrate
compliance. If a person's determination
that used oil meets the specification is
found to be erroneous, he is in violation
of the regulations regardless of intent
Persons required to obtain analyses
(or other information) to demonstrate
that their used oil fuel meets the
specification include processors and
blenders (and burners) who treat used
oil known to be off-specification to
produce specification used oil fuel and
persons who market or bum as
specification used oil fuel used oil
received directly from generators or
collectors. (Used oil received directly
' from generators or from collectors who
receive oil from generators is presumed
to be off-specification unless
demonstrated otherwise.) EPA
explained at proposal that such
analyses and recordkeeping are required
'to enable the Agency to enforce the
prohibitions on those persons who firs
claim that used oil fuel meets the
specification.
Persons who obtain analyses of used
oil to demonstrate compliance with the
specification must ensure that
representative samples are obtained an i
that appropriate analytical procedures
are used. Sampling and analysis of used
oil is discussed above in section IV.F.
F. Recordkeeping Requirements
The recordkeeping requirements are
limited requirements designed primarily
to keep track of the movement of
hazardous waste fuels and off-
specification used fuels. The substantive
prohibitions as well as the various
administrative requirements would not
be enforceable without these
recordkeeping requirements. As
proposed, marketers and burners must
•keep a copy of the manifest or invoice
(for used oil) mat accompanies or that
applies to each fuel shipment In
addition, marketers and burners are
irrespective of whether die person reasonably
believes his used oil fuel meets the specification, for
the purposes of determining compliance with
today's rule.
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49198 Federal Register / Vol. 50. No. 230 / Friday.. November 29. 1985 / Rules and Regulations
required to retain copies of certification.
notion that they initiate or receive.
EPA also proposed that marketers of
used oil fuel who first claim the oil
meets the specification are-required to
obtain analyses of their used oil fuel
product to document that it meets the
specification. Copies of the analyses
must be retained for three years. As
discussed above, today's final rule
allows the use of other information td
document that used oil meets the
specification. Such other information
must also be retained for three yean.
In response to commenten' concerns
about the enforceability of the proposed •
rule, the final rule includes additional
recordkeeplng requirements for persons
who first claim used oil fuel meets the
specification. See section WE of this
preamble. Today's rule requires these •
persons to also keep records on initial
shipments of specification used oil fueL
Subsequent shipments (e.g., by
distributors) are not subject to
regulation.
As proposed, all records must be
retained at the facility for three years.
except that certification notices must be
kept for three years from the date a
person last engages in • waste fuel
marketing transaction with the person
who sent or received the certification
notice. These records must be available .
for inspection by an officer, employee,
or representative of EPA (see RCRA
section 3007).
IL Storage Requirements for Hazardous
Waste Fuel
i
As explained at proposal today's rule
expands existing requirements for
storage so that all storage of all
hazardous waste fuels is subject to
regulation. Under previously existing
provisions of 40 CFR 281.6, and
continued under the solid waste
definition rulemaking at Subpart D of
Part 266 (see 50 FR 667 (January 4.
1985)), hazardous wastes that are listed "
wastes or sludges are subject to the
storage standards of Parts 262,264, and
285. when stored prior to use as a fuel
and prior to use to produce a fuel.
Nonsludge wastes that are hazardous
only because they exhibit a
characteristic of hazardous waste, and
hazardous waste fuel produced by an
off-site marketer by processing,
blending, or other treatment of
hazardous waste, were exempt from
regulation prior to today's rule. All
hazardous waste used to produce fuel
and all hazardous waste fuel so-
produced are subject to today's storage
requirements for the reason? given
below.
A. Which Hazardous Wastes Are
Subject to Storage Requirements
The Agency is today regulating the
storage (and transportation) of any
hazardous waste used to produce a fuel
and of any hazardous waste fuel so
produced. We are thus eliminating the
current distinction between listed
wastes and sludges on the one hand and
unlisted spent materials and unlisted
byproducts on the other. As explained at
proposal, these distinctions are mv
environmentally justifiable, and exist
only because of the Agency's initial
uncertainty (in 1980) about an
appropriate regulatory regime for
. recycled wastes. See 48 FR 14475 (April
4,1983). It is now our view that a
hazardous waste classification as
sludge, by-product or spent material, or
listed vs. unlisted (characteristic)
hazardous waste has no relation to the
type of hazard the waste poses when
stored, and therefore, that storage of all
of these should be regulated uniformly.
Id.
B. Eliminating the Exemption for
Storage of Hazardous Waste Fuel
Produced by Persons Who Did Not
Generate the Waste
As proposed, today's rules subject all
hazardous waste fuels to storage (and
other) controls. This includes storage by
the initial marketer (e.g., processors;
blenders), storage by subsequent
marketers (e.g., distributors), and
storage by burners. (Hazardous waste
storage by ordinary generators whose
waste is destined to be burned for
energy recovery, but who do not market •
directly to burners, is also subject to
regulation.)
The present regulatory regime
provided by Subpart D of Part 266 (see
50 FR 667 (January 4.1985]) whereby
hazardous waste fuel produced by a
person who neither generated the waste
nor bums the fuel is exempt from
regulation was intended only as an
interim measure and cannot be
defended on environmental grounds.
The argument that hazardous waste
fuels function as valuable inventory in a
burner's hands and so will be stored
safely does not appear tenable, and
already has been rejected by the
Agency. See 50 FR 617-618,632.643
(January 4.1985). Hazardous waste fuels
in many cases do not command
substantial economic vaiue; in some
situations, burners are even paid to
accept these materials. In addition, the
fact that a hazardous waste fuel is being
stored as a commodity is insufficient to-
prevent substantial risk. There have
been many damage incidents from
product and raw material storage,
examples being spills from underground
and above-ground product storage
tanks, including fuel storage tanks. See
49 FR 29418 (July 20,1984). Indeed, the
Agency has found that leaks and spills
from hazardous waste tank storage is
very likely, and that this risk is
substantial and requires regulatory
control. See also Section 601 of the
Hazardous and Solid Waste .
Amendments of 1984 requiring EPA to
regulate underground storage tanks
storing products. The Agency also has
been told by State regulatory officials
and used oil fuel dealers that hazardous
waste fuels are suspected of causing a
number of fires in the New York City
and New Jersey areas. Another
' commenter described a "major accident
at a cement kiln using waste-derived
fuels." The Agency thus does not see
any reason to regulate this type of
hazardous waste storage differently
from other hazardous waste storage.
Today's rule subjects all storage of all
hazardous waste fuels to the storage
standards provided by 40 CFR Parts 262
(for short-term accumulation of fuels by
a generator who burns his waste on site
or who markets directly to a burner),
264, and 265, with one exception. As
proposed, we are not subjecting
hazardous waste fuel storage by an
existing burner to the final permitting
standards of 40 CFR Part 264 at this time
for several reasons. Because we intend
to regulate most burning of hazardous
waste fuels in a manner that would
require some form of permitting, we do
not want to issue a permit to a burner
for storage and then have to issue a
second permit in the near future for
burning. We thus plan to delay adopting
final permitting-storage standards for
existing burners until a single permit
proceeding can address both burning
and storage. Thus, existing burners will
be subject only to the storage standards
for tanks and containers contained in
Part 265.
In addition, as proposed, a permit is
not presently required to store off-
specification used oil fuel. EPA is not
jmposing storage requirements on used
oil fuel at this time because the Agency
wishes to avoid the piecemeal
regulation of used oil storage which
would result were we to regulate used
oil fuel storage in advance of other types
of used oil storage. Storage requirements
will be proposed when the Agency
proposes comprehensive regulations for
recycled oil on the next future.
Hazardous waste fuels stored by a
marketer are subject to regulation. Thus.
as explained at proposal, storage of both
incoming hazardous waste and outgoing
hazardous waste fuels are regulated.
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Federal Register / Vol. 50, No. 230 / Friday, November 29, 1985 / Rules and Regulations 49199
Many marketer* are already subject to
regulation as storage facilities because
they store incoming listed wastes and
sludges, and may be operating under
interim status standards. These
marketers need to amend their Part A
storage applications to seek an
authorization to expand their interim
status operations to include the waste
fuel storage area. See 5 270.72.
Numerous comments were xeeeived
on the proposed storage requirements.
Many commenters opposed compliance
with die storage standards for industrial
boiler owners and operators because
they believed they were unnecessary
since industrial" boiler owners and
operators are well aware of the hazards
of storage and handling of hazardous
waste. Compliance with the storage
standards would cause them to incur
large costs for lit tie reason, they argued.
We disagree. We have noted above that
burner storage facilities have been
exempt from regulation only as an
interim measure and die exemption
cannot be defended on environmental
grounds. See also 50 FR 843 (January 4,
1985) where the Agency discussed why
it was unable to eliminate any
requirements from Part 285 (or 264)
storage standards for recycled
hazardous wastes.
Other commenters suggested class
permitting of storage facilities. EPA will
consider issues concerning permitting of
burner storage facilities when the permit
standards for existing burners (and
storage) are proposed in 1988. Today's
rule applies only the interim status Part
265 standards to existing burner storage
facilities (the predominant class of
storage units affected by this rule).
UI. Examples of How These Regulations
Operate
The following hypothetical examples
illustrate how the rules operate:
1. Generator G generates a hazardous
waste and sends it to burner B who
stores it in a tank prior to burning in an
industrial boiler for energy recovery.
G is a hazardous waste fuel marketer
because he markets directly to a burner.
Assuming that G is a large quantity
generator (and EPA is unaware of
situations where small quantity
generators send hazardous wastes
directly to burners), he must comply
with the requirements for marketers.
including the manifest and storage
requirements, and notification as a
hazardous waste fuel marketer. Prior to
sending the first shipment, he must also
obtain a certification from B that B has
notified EPA of his waste-as-fuel
activities and that he will burn the fuel
only in unrestricted units (Le., industrial
boilers, industrial furnaces and utility
boilers). B is a hazardous waste fuel
burner and a RCRA storage facility.
Assuming he already is engaging in
hazardous waste management activities
•s a facility, he must comply with the
interim status standards for storage
(including submitting a Part A permit
application). If B is a new storage
facility (i.e.. is not in existence as a
facility at the time these rules become'
effective), he must obtain a storage
permit prior to storing the hazardous
waste fuel. He must also notify EPA of
his waste-as-fuel activities and provide
G with die certification discussed above
prior to receiving the first shipment B
will have one identification number for
storage and burning.
&A. Generator G, a large quantity
generator, generates a hazardous waste
but sends it to an intermediate
processor P, who mixes it with other
wastes and sells the mixture to a burner
B who stores it in a tank prior to burning
in an industrial boiler for energy
recovery.
G is subject to regulation under Part'
282 as a generator and must comply
with the manifest system and applicable
storage requirements. He is not subject
to the requirements for marketers. P is a
marketer. He must obtain a storage
permit to store the hazardous wastes
received from the generator. The
blended mixture is hazardous waste fuel
and is subject to the storage controls
under Parts 264 and 265. P and B must
notify EPA of their waste-as-fuel
activities, and must comply with the
certification requirements. B is a
hazardous waste fuel burner who has a
RCRA storage facility subject to the
interim status controls of Part 265
(assuming the facility is in existence at
the time the rule is effective).
23. G. a large quantity generator,
generates a hazardous waste and mixes
it with used oil The mixture is sent to P,
who does further blending with used oil.
and then sends the mixture to B where it
is burned as in the previous example.
The controls operate in this situation
just as in the previous example. A
mixture of large quantity generator
hazardous waste and used oil is subject
to regulation as hazardous waste.
2.C. G is a small quantity generator
who generates a hazardous waste and
mixes it with used oil, as in example 2.B.
G sends the mixture to processor P, who
processes the material further and sells
processed oil as fuel The fuel meets the
specification for used oil. It then is sold
to retail fuel dealers and to industrial
and nonindustrial users.
In this situation (i.e., where a small
quantity generator mixes its hazardous
waste with used oil), the mixture is
exempt (for the time being) from
regulation as hazardous waste under the
provisions of 40 CFR 261.5 but (for the
time being) is .subject to regulation as
used oil when obtained by a used oil
fuel marketer, P. Thus, G (who
incidentally is not a marketer) may send
his used oil to P without an invoice. P is
a marketer of used oil fuel He must
notify EPA of his waste-as-fuel activities
and obtain a UJ3. EPA Identification
Number. He also must document with
analyses (or other information) that the
used oil fuel he markets meets the
specification since he receives used oil
from a generator (or from a transporter
who receives oil from a generator) and
markets used oil fuel as specification
used oil fuel In addition, he must keep
records of the shipment and the person
to whom the oil is first sent The used oil
fuel is exempt from further regulation
and may be sent to burners or retail fuel
dealers (i.e., distributors) who do not
have EPA identification numbers, and
who may sell the fuel on an unrestricted
basis.
If, as is more likely, P determines that
the used oil fuel does not meet the
specification, P can only send it to
persons who have certified to him that
they have notified EPA of their waste-
as-fuel activities and will burn the fuel
only in industrial boilers, utility boilers,
or industrial furnaces. P would have to
prepare and send invoices for the off-
specification used oil fuel. The retail fuel
dealers (i.e., distributors) who receive
the off-specification used oil fuel are
marketers and cannot send the fuel to
nonindustrial users unless it is •
processed further to meet the fuel
specification (and they document with
analyses or other information that the
fuel meets the specification and keep '
records of the shipment and the person
to whom die oil is first sent). Marketers
and burners must keep records of
invoices and certifications sent and
received and fuel analyses (or other
information) documenting compliance
with the fuel specification (where
required).
3.A. P is a used oil processor who
receives used oil from a variety of
sources and blends them to make fuels.
The used oil is not mixed with
hazardous waste. The blended fuel that
P produces is off-specification for lead. P
sends this fuel to R, a retail fuel dealer.
R blends the fuel further so that it meets
the lead specification. R then sells the
fuel to industrial and nonindustrial
users.
P is a marketer of used oil fuel.
• Because the used oil fuel is off-
specification, it can be sent only to a
person (e.g., R) who has certified to P
that he has notified EPA of his waste-as-
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49200 Federal Register / Vol. 50. No. 230 / Friday, November 29, 1985 / Rules and Regulations
•fuel activities (and obtained a U.S. EPA
Identification Number), and P must send
an invoice to R. R is also a marketer
because he receives off-specification
used oil fuel. Since R markets the used
oil fuel as specification fuel (by
marketing to industrial boilers without
complying with the invoice, notification.
and other requirements), he must
document with analyses or other
information that the fuel meets the .'
specification. R must also keep records
of the shipment and the person to whom
the specification used oil fuel is firtt
sent Marketers and burners must keep
records as discussed previously.
3 JB. Processor P receives used oil from
different generators, and also receives
spent halogenated solvents that are
Hated as hazardous waste. P blends the
hazardous solvents with the used oil
Some of the spent halogenated solvents
were generated by large quantity
generators. The mixture contains less
than 1000 ppm total halogen* and meets
the specification for all other
constituents and parameters. P sells this
blended fuel to R. as in example 3.A.
P is a marketer of hazardous waste
fuel because he has mixed hazardous
waste with used oil There is no need to
invoke the presumption of mixing with
hazardous waste (based on total.
halogen levels) because it is known on
these facts that hazardous waste and
used oil have been mixed. (As explained
in section IV-B of Part n of this'
preamble, it is not always certain when-
used oil is mixed with hazardous waste.
In those cases, EPA is employing a
rebuttable presumption of mixing with
halogenated hazardous waste when
halogen level* exceed 1000 ppm.)
Finally, the used oil fuel specification
does not apply to hazardous waste and;
thus, does not apply to the mixture.
4LA. Petroleum refinery G generates
API separator sludge (Hazardous Waste
K032) and reintroduces it to the refining
process upstream from distillation.
All resulting fuels (including
petroleum coke) from the refining
process are exempt from regulation at
this time because the API separator
sludge is • hazardous waste from-
petroleum refining which is introduced
to refining process. The API separator
sludge Is not automatically exempt from
regulation until it is reintroduced.
4.B. Petroleum refinery G generated
API separator sludge, and sends it to a
different refinery where H is
reintroduced to the refining process
upstream from distillation.
All resulting rules- are exempt for the •
same reason as in 4.A. The API
separator sludge is not.automatically
exempt until'it is reintroduced.
4.C. Petroleum refinery G generates
API separator sludge and sends it to fuel
processor P who processes the sludge
along with used oil in a process that
accepts crude oil but does not include
distillation as a process step. The
resulting fuels meet the used oil fuel
specification.
The fuels produced by processor P are
not subject to. regulation (aside from P
maintaining a record of the first person
to whom the fuehi are sent). They would
be subject to regulation as hazardous
waste fuels if they failed to meet the fuel
specification. In addition, processor P
needs a storage permit or interim status
to store the API separator sludge.
5.A. Same facts as in 4.A. above,
except that refinery G reclaims oil from
the API separator sludge and
reintroduces the recovered oil to the
refining process.
Both the reclaimed oil (which is to be
refined) and the resulting fuels are
exempt from regulation.
SJB. Same facts as in 4Ji above.
except that reclaimed oil (Le., oil
reclaimed from the API separator
sludge) is sent to the other refinery.
Both the reclaimed oil and the
resulting fuels are exempt from
regulation. ""*
5.C. Same facts as in 4.C. above,
except that reclaimed oil is sent to fuel
processor P.
Here, the reclaimed oil is not -
automatically exempt, because it is not
being refined (since the fuel processor is
not using distillation as a process step).
The resulting fuel is exempt (aside from
a recordkeeping step for P) if it meets
the used oil fuel specification.
6. Processor J1 obtains contaminated .
used oil which it processes via
distillation to produce a fneL Oil-bearing
hazardous wastes -from petroleum
refining are also used hi the process.
The resulting fuel meets the used oil fuel
specification.
The fuel is exempt because it meets
the used oil fuel specification. See
S 281.8(a)(3)(viii){A). If the used oil fuel
did not meet the fuel specification, it
would be considered hazardous waste
fuel and be subject to full regulations
This situation should be distinguished
from one where oil-bearing hazardous
wastes from refining are reintEoduced to
a refining process. The process here is
not considered to be refining, m spite of
the use of distillation, because it does'
not produce products from crude oH.
PART FIVE: ADMINISTRATIVE,
ECONOMIC, AND ENVIRONMENTAL
IMPACTS, AND LIST OF SUBJECTS
L State Authority
A. Applicability of Rules in Authorized
States
Under section 3006 of RCRA, EPA
may authorize qualified States to
administer and enforce the RCRA
program within the State. (See 40 CFR
Part 271 for the standards and
requirements for authorization.)
Following authorization EPA retains
enforcement authority under sections
3008, 7003 and 3013 of RCRA, although
authorized States have primary
enforcement responsibility.
Prior to the Hazardous and Solid ,
Waste Amendments of 1984 (HSWA)
amending RCRA. a State with final
authorization administered Us
hazardous waste program entirely in
lieu of EPA administering the Federal
program in that State. The Federal
requirements no longer applied in the
authorized State, and EPA could not
issue permits for any facilities in the
State which the State, was authorized to
permit When new, more stringent
Federal requirements wen promulgated
or enacted, the State was obligated to
enact equivalent authority within
specified time frames. New Federal
requirements did not take effect in an "
authorized State until die State adopted
the requirements as State law.
In contrast under newly enacted
section 3006(g) of RCRA. 42 U.S.C.
6926(g], new requirements and
prohibitions imposed by the HSWA take
effect in authorized States at the same
time that they take effect to
nonauthorized States. EPA is directed to
cany out those requirements and
prohibitions in authorized States.
including issuing permits; until the State
is granted authorization to do so. While
States must still adopt HSWA-related
provisions as State law to retain final
authorization, the HSWA applies in
authorized States in the interim.
Today's rule, with respect to-
hazardous waste fuels, (40 CFR 286.30-
266.35) is promulgated pursuant to
section 3004(q), a provision added by
HSWA. Thus it is being added to Table
1 hi i 271.1Q) which identifies the
Federal program requirements that are
promulgated pursuant to HSWA and
thus are immediately effective in
authorized States. States may apply for
either interim or final authorization for
the HSWA provisions identified in
Table 1 as discussed in the followuv,
section of mis preamble. . *
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Federal Register / Vol SO. No. 230 /Friday. November 29. 1985 / Rules and Regulations 49201
The used oil fuel standards adopted
today «t 40 CFR 266.40-266.44 also are
applicable in all States, although for a
different reason. Used oil fuel is not
presently regulated as a hazardous
waste under section 3001. Instead,
today's regulations are promulgated
pursuant to the Used Oil Recycling Act
(codified as section 3014(a) of RCRA)
which directs EPA to regulated recycled
used oil even if used oil is not a
hazardous waste. Section 3014(a)
requirements apply in all States as
Federal law and operate .independently
of sections 3001 through 3006. EPA.
however, is about to propose to list used
oil as a hazardous waste pursuant to
authority contained in section 3014(b) of
RCRA. a provision added by HSWA,
Should EPA adopt this listing as a final
rule, all rules regarding management of
recycled used oil thus would be
applicable in all States by virtue of
section 3006(g}*s well as section 3014.
At that point, authorized States would
be required to revise their programs to
adopt these rules as discussed below.
A Effect on State Authorizations -
As noted above, the hazardous waste
fuel rules promulgated today are
effective in all States. Thus. EPA will
implement the standards in
nonauthorized States and in authorized .
States until they revise their programs to
adopt these rules and the revision is
approved by EPA.
A State may apply to receive either
interim or final authorization to
administer and enforce the hazardous
waste fuel rules under section 3006{g)(2)
or 3006(b). respectively, on the basis of
requirements that are substantially
equivalent or equivalent to EPA's. Toe
procedures and schedule for State
program revisions under section 3006(b)
are described in 40 CFR 27L21. See 49
FR at 21678 (May 22.1984). The same
procedures should be followed for
section 3006(g)(2).
Applying $ 27L21(e}[2). States that
haye final authorization must revise
their programs within a year from today
if only regulatory changes are
necessary, or within two years of
promulgation if statutory changes are
necessary. These deadlines can be
extended in exceptional cases (40 CFR
271.21(e)(3)).
States with authorized RCRA
programs already may have
requirements similar to those in today's
rule. These State regulations have not
been assessed against the Federal
regulations being promulgated today to
determine whether they meet the tests
for authorization. Thus, a State is not
authorized to carry out these
requirements in lieu of EPA until a State
program revision is submitted and
approved. Of course, State* with
existing standards may continue to
administer and enforce their standards
as a matter of State law. In
implementing the Federal program EPA
will work with States under cooperative
agreements to tnhitaifam duplication of
efforts. In many cases EPA will be able
to defer to the States in their efforts to
implement their programs, rather than
take separate actions under Federal
authority.
States that submit Official applications
for final authorization less than 12
months after promulgation of EPA's
regulations may be approved without
including standards equivalent to those
promulgated. However, once authorized, •
a State must revise its program to
include standards substantially
equivalent or equivalent to EPA's within
the time periods discussed above.
IL Regulatory Impacts ,
A. Results of Regulatory Impact Studies
1. Executive Order12291. As defined
by Executive Order 12291, today's
regulation is not a "major rule". ,
Therefore, no Regulatory Impacts
Analysis (RIA) is required. This rule will
not have an annual impact on the
national economy greater than $100
million. The estimated maximum costs
of today's rule are an initial (one-time)
expenditure of $6 million and annual
costs of $20.9 million. The majority of
affected faculties will incur less than
$1000 in additional costs with the ,
Tnnvimnm expenditure for any one
faculty expected to be approximately
$7000 per year. In addition, these
regulations will not significantly affect
competition, employment productivity
or innovation. -
This rule was submitted to the Office
of Management and Budget (OMB) for
review under Executive Order 12291.
2. Regulatory Flexibility Act. We have
determined that today's rule will not
have a significant impact on a
substantial number of small businesses
and mat. therefore, no Regulatory
Flexibility Analysis (RFA) is required
under the Regulatory Flexibility Act
Although a large number of small
businesses managing used oil will be
affected by some parts of the rules, we
estimate that the maximum costs that'
could be imposed will be less than 5% of
product price and will not cause a 5%
closure rate. Cost of compliance data
presented at proposal (see 50 FR 1708-
1712) indicate that the rules may
increase the cost of a marketer's used oil
fuel by 1 to 3 cents per gallon. EPA does
not consider this a significant increase ,
given that generators are paid 15 to 25
cents per gallon for their used oil, and
marketers charge burners 50 to 75 cents
pergallon for used oil fuel.
3. Paperwork Reduction Act. The
requirements of the Paperwork
Reduction Act of 1980 (PRA), 44 U.S.C
3501 et seq.. were considered in
developing these regulations. We
believe that the reporting and
recordkeeping required by today's rules
are the minimum necessary to
implement and enforce the regulations.
> The information collection
requirements contained in this rule have
been approved by the Office of
Management and Budget (OMB) under
the provisions of the Paperwork
Reduction Act of 1980.44 U.S.C. 3501 et
seq. and have been assigned OMB
controlnumbers 2050-0028
(notification), 2050-0009 (storage
permits), 2050-0039 (manifest shipping
papers, and 2050-0047 (invoice shipping
papers, certification, and used oil
analysis).
B. Impacts on the Recycling Industry
1. Used Oil Fuel. In the proposal, we
stated that we did not believe that these
regulations would discourage the
recycling or recovery of used oiL The
rules only restrict used oil entering the
nonindustrial fuel market EPA stated in
the proposal that any used oil not sold
to this market could be sold to industrial
users or used as rerefining feedstock.
Many comments were received on tlie
subject of the impact of the rules, as
proposed, on the used oil industry. Most
of the parties who commented were
concerned that the Agency
underestimated costs and impacts.
Commenters related impacts to
decreased value of used oil and the
absence of viable markets for displaced
used oiL The Agency maintains that the
costs 'and impacts presented in the
proposed rulemaking (50 FR 1707-1714)
are generally complete and reasonable
projections. We predict that today's rule
will have minimal impacts on net
recycling because significant alternative
markets existm
The Agency also received a number of
comments stressing the need to maintain
viable recycling markets, particularly for
used oil. Commenters frequently .
discussed impacts on their particular
industry or practices. EPA maintains
that this proposal will not reduce net
"*II should be noted that the effective date of the
lead epedfication is delayed «ix month* expnssly
to avoid major disruption of die oMd oil recycling
industry that oould raault m dumping. As ihowo in
Table I in tba taxi, delaying the effective date of the
lead specification i» expected to mom than double
the •mount of (unblended) used oil that can meet
the cpeciiication for metals.
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49202 Federal Register / Vol. 50. No. 230 .LFridajkJJovember 29. 1985 / Rules and Regulations
recycling. Thi» proposal does not restrict
combustiofc of hazardous wastes or
recycled oil in industrial devices. Nor
does it restrict other recycling, such as
used oil rerefining and solvent
reclamation. We recognize that the
regulation will cause some market shifts.
but maintain that net recycling will not
decrease. Commenters confused impacts
of this proposal with those of more-
extensive regulations of the Phase 0
standards that include industrial
burners—which this rule does not
address. Many commenten apparently
presumed that recycled oil was banned
from industrial boilers. The Agency may
apply a similar specification to recycled
oil burned in boilers under the Phase H
regulations. The costs and impacts of
that rule, however, will be presented
when that rule is proposed. Those costs
and impacts are not part of today's rule.
We maintain that today's regulation
does not impose major impacts that
require an RIA.
2. Hazardous Waste Fuel.
Commenters suggested that permits for
tmall hazardous waste storage facilities
may cost 525,000, not the $10.000 we
suggested in the proposal *** EPA
estimated a 510,000 expenditure because
we utilized the cost of amending an
existing Part B permit in our cost
estimate, not the cost of obtaining a new
permit The rule requires Part B storage
permits only for facilities marketing
hazardous waste fuels (and for new
hazardous waste fuel burner facilities).
We have assumed virtually all
hazardous waste fuel contains listed
hazardous waste. Thus, the marketer's
feedstock tanks (i.e., tanks for incoming
wastes) are already subject to
regulation, the marketer's facilities
affected by today's rule would already
have RCRA permits.
In the proposal, the Agency applied
unit costs to represent the total
incremental costs of these requirements
above current requirements and '
practices. The costs related to this
regulation are not the total investments,.
revenues, or value of products of.
associated businesses, as some
commenten suggested. We estimate
that this regulation will impose direct
costs of up to $21 million per year
(annualized). This is one of the reasons
why this regulation is not a major rule
and does not require an RIA.
wlt ihould be noted thit theM itonge facility
colt eitlmitn do no< Include the cost of providing
JcconJary containment (or •Itemite equivalent
contrail). * requirement EPA recently pxipoted for
htxardoui wule storage fidllllc*. See 50 PR 20444-
»S«"ine28.1983).
HI. Explanation of Compliance Dates
At proposal (see 50 FR1714), EPA
expressly requested comment on
staggering the compliance dates for the
regulatory requirements to make them
effective as soon as practicable during
the 1985-86 heating season. Although
commenters did not indicate that the
compliance dates were unreasonable,
we have decided that the proposed 30
. - day compliance date for notifications
may not give notifiers enough time to
request'and receive notification
applications from their State hazardous
waste agency, and to complete and
submit the form. Thus, the final rule
allows notifiers two months after today
to notify regarding their waste-as-fuel
activities.
We are making a corresponding
change to the compliance date for the
manifest (or invoice) system. Given that
marketers and burners must include
their OS. EPA Identification Number
(assigned after receipt of notification) on
manifests and invoices, and that it may
take as long as two months after receipt
of an application to apprise a notifier of
his Identification Number, (if he is not
renotifying to identify waste-as-fuel
activities) the compliance date for the
manifest (or invoice) system is four
months after today. (The proposed '•
compliance date was 90 days after
publication.)
Compliance dates for* the prohibitions '
(Le,. 10 days after today) and for the'
storage controls (Le.. six months after
today) are adopted as proposed.
The compliance date for each
regulatory requirement is shown in the
"DATES" section at the beginning of
this preamble.
IV. Ust of Subjects
4O CFR Part 281
Hazardous waste. Recycling.
4O CFR Part 284
Hazardous waste. Insurance.
Packaging and containers. Reporting
and recordkeeping requirements.
Security measures. Surety bonds.
4O CFR Part 265 - -
Hazardous waste, Insurance,
Packaging and containers. Reporting
and recordkeeping requirements,
Security measures. Surety bonds. Water
supply.
4OCFRPart26B
Hazardous waste. Recycling.
40CFRPart271 • ....
Administrative practice and
procedure. Confidential business
information. Hazardous materials
transportation. Hazardous waste, Indian
lands. Intergovernmental relations,
Penalties, Reporting and recordkeeping
requrements, Water pollution control,
Water supply.
Dated: November a, 1985.
Lee M. Thomas, . _ •
Administrator. • '
For the reasons set out in the
Preamble, Title 40 of the Code of Federal
Regulations is amended as follows:
PART 281— IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
1. The authority citation for Part 261
continues to read as follows:
Authority: Sees. 1006, 2002(a). 3001. and
3002, of the Solid Waste Disposal Act as
amended by the Resource Conservation and
Recovery Act of 1976, as amended (42 U.S.C.
6805. eaiz(a). 6821. and 6822).
2. Section 261.3 is amended by adding
to paragraph (c)(2)(ii) the following (B):
5261.3 Definition of h
dous waste.
(B) Wastes from burning any of the
materials exempted from regulation by
l-261.6(a)(3) (rv). (vi). (vii). or (viii).
3. Section 281.5 is amended by
revising paragraph (b) to read as
follows:
82613 Special requlremmte for
hazardous waste generated by emeR
quantity generator*.
« « • •* »
(b) Except for those wastes identified
in paragraphs (e). (f). (g), (h). and (k) of
this section, a small quantity generator's
hazardous wastes are not subject to
regulation under Parts 262 through 266
and Parts 270 and 124 of this chapter.
and the notification requirements of
' Section 3010 of RCRA. provided the
generator complies with the regulations
of paragraphs (f). (g). (h). and (k) of this
section.
4. Section.261.5 is amended by adding
a new paragraph (k) to read as follows:
§2614 SoecMrequteenmiUfor
hazardous wmte generated by amaft
quantity ganantora.
>•••••
(k) If a small quantity generator's
hazardous wastes are mixed with used
oil the mixture is subject to Subparf E of
Part 266 of this chapter if it is destined
to be burned for energy recovery. Any .
material produced from such a mixture
by processing, blending, or other
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Federal Register / Vol. 50, No. 230 / Friday, November 29. 1985 / Rules and Regulations 49203
treatment is also M> regulated if it is
destined to be burned for energy
recovery.
* 5. Section 261.6 is amended by
revising paragraphs (a)(2)[iii), and
(a)(3)(iii), and adding new paragraphs
(a)(3) (viii) and (be). Although only the
above changes are made under this
rulemaking. the entire S 261.6. including
provisions not affected by today's rules,
is printed here for the reader's >
convenience.
nts for iwcyctabl*
f261.6 Requtaf
materials.
(a)(l) Hazardous wastes that are
recycled are subject to the requirements
for generators, transporters, and storage
facilities of paragraphs (b) and (c) of this
section, except for the materials listed in
paragraphs (a)(2) and (a)(3) of this
section. Hazardous wastes that are
recycled will be known as "recyclable
materials.**
(2) The following recyclable materials
are not subject to die requirements of
this section but are regulated under
Subparts C through G of Part 266 of this
chapter and all applicable provisions in
Parts 270 and 124 of this chapter
(i) Recyclable materials used in a
manner constituting disposal (Subpart
C];
(ii) Hazardous wastes burned for
energy recovery in boilers and industrial
furnaces that are not regulated under
Subpart O of Part 264 or 285 of this
chapter (Subpart D);
(in) Used oil that exhibits one or more
of the characteristics of hazardous
waste and is burned for energy recovery
in boilers and industrial furnaces that
are not regulated under Subpart O of
Part 284 or 265 of this chapter (Subpart
E);
.(iv) Recyclable materials from which
precious metals are reclaimed (Subpart
F):
(v) Spent lead-acid batteries that are
being reclaimed (Subpart G).
, (3) The following recyclable materials
are not subject to regulation under Parts
282 through Parts 266 or Parts 270 or 124
of this chapter, and are not subject to
the notification requirements of section
3010 of RCRA:
(i) Industrial ethyl alcohol that is
reclaimed;
(ii) Used batteries (or used battery
cells) returned to a battery manufacturer
for regeneration;
(iii) Used oil that exhibits one or more
of the characteristics of hazardous
waste but is recycled in some other
manner than being burned for energy
recovery;
(iv) Scrap metal;
(v) Fuels produced from the refining of
oil-bearing hazardous wastes along with
normal process streams at a petroleum
refining facility if such wastes result
from normal petroleum refining,
production, and transportation
practices;
(vi) Oil reclaimed from hazardous
waste resulting from normal petroleum
refining, production, and transportation
practices, which oil is to be refined
along with normal process streams at a
petroleum refining facility;
(vii) Coke and coal tar from the iron
and steel industry that contains
hazardous waste the iron and steel
production process;
(viii) (A) Hazardous waste fuel - .
produced from oil-bearing hazardous
wastes from petroleum refining.
production, or transportation practices,
or produced from oil reclaimed from
such hazardous wastes, where such
hazardous wastes are reintroduced into
a process that does not use distillation
or does not produce products from crude
oil so long as the resulting fuel meets the
used oil specification under § 266.40(e)
of this chapter and so long as no other
hazardous wastes are used to produce
the hazardous waste fuel;
(B) Hazardous waste fuel produced
from oil-bearing hazardous waste from
petroleum refining production, and
transportation practices, where such
hazardous wastes are reintroduced into
a refining process after a point at which
contaminants are removed, so long as
the fuel meets the used oil fuel
specification under { 286.40(e) of this
chapter, and
1 (C) Oil reclaimed from oil-bearing
hazardous wastes from petroleum
refining, production, and transportation
practices, which reclaimed oil is burned
as a fuel without reintroduction to a
refining process, so long as the
reclaimed oil meets the used oil fuel
specification under § 266.40(e) of this
chapter; and
(be) Petroleum coke produced from
petroleum refinery hazardous wastes
containing oil at the same facility at
which such wastes were generated,
unless the resulting coke product
exceeds one or more of the
characteristics of hazardous waste hi
Part 261, Subpart C.
(b) Generators and transporters of
recyclable materials are subject to the
applicable requirements of Parts 262 and
263 of this chapter and the notification
requirements under section 3010 of
RCRA, except as provided in paragraph
(a) of this section.
(c)(l) Owners or operators of facilities
that store recyclable materials before
they are recycled are regulated under all
applicable provisions of Subparts A
through L of Parts 264 and 265 and Parts
266,270, and 124 of this chapter and the
notification requirements under section •
3010 of RCRA. except as provided in
paragraph (a) of this section. (The
recycling process itself
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492M__FgderarRegister / Vol. 50. No. 230 / Friday. November 29. 1985 / Rules and Regulations
recycling purpose and elect to be
regulated under this subpart
PART 266—STANDARDS FOR THE
MANAGEMENT OF SPECIFIC WASTES
AND SPECIFIC TYPES OF WASTE
MANAGEMENT FACILITIES
10. The authority citation for Part 268
is revised to read as follows:
Aulhorityt.Sec*. 1008,2002(a). 3004. and '"
3014 of the Solid Waste Disposal Act as
amended by the Resource Conservation and
Recovery Act of 1970, as amended (42 U.S.C.
BOOS, 6812(8), 6924. and 6934).
11. Subpart D is revised to read as
follows:
Subpirt D-Hazarrioua Wast* 8um*d for
Energy Recovery
Sec.
2C0.30 Applicability.
2664H Prohibitions.
26642 Standards applicable to generators of
hazardous waste fuel
28633 Standards applicable to transporters
of hazardous waste fuel
26634 Standards applicable to marketers of
f hazardous waste fuel
283,35 Standards applicable to burners of
hazardous waste foci
•
Subpart D—Hazardous Wast* Burned
for Energy Recovery
S26&30 AppUcsbTOty. -
(a) The regulations of this subpart
apply to hazardous wastes that are
burned for energy recovery in any boiler
or industrial furnace that is not* •
regulated under Subpart Q of Part 264 or
265 of this chapter, except as provided
by paragraph (b] of this section. Such
hazardous wastes burned for energy
recovery are termed "hazardous waste
fuel". Fuel produced from hazardous
waste by processing, blending, or other
treatment is also hazardous waste fueL
(These regulations do not apply,
however, to* gas recovered from
. hazardous waste management activities
when such gas is burned for energy
recovery.)
(b) The following hazardous wastes
are not subject to regulation under this '
subpart:
(1) Used oil burned for energy
recovery that is also a hazardous waste
solely because it exhibits a
characteristic of hazardous waste
Identified in Subpart C of Part 261 of this
chapter. Such used oil is subject to
regulation under Subpart E of Part 266
rather than this subpart: and
(2) Hazardous wastes that are exempt
from regulation under §§ 281.4 and
261.6{a) (3) (vHix) of this chapter, and
hazardous wastes that are subject to the
special requirements for small quantity
generators under $ 281.5 of this chapter.
526&31 Prohibition*.
(a) A person may market hazardous
waste fuel only:
(1) To persons who have notified EPA
of their hazardous waste fuel activities
under section 3010 of RCRA and have a
U.S. EPA Identification Number and
(2) If the fuel is burned, to persons.
who bum the fuel in boilers or industrial
furnaces identified in paragaraph (b) of
this section.
(b) Hazardous waste fuel may be
burned for energy recovery in only the
following devices;
[1] Industrial furnaces identified la •
. ! 260.10 of this chapter;
(2) Boilers, as defined in i 260.10 of
this chapter, that are identified as
follows:
(i) Industrial boilers located on the
site of a facility engaged in a
manufacturing process where
substances are transformed into new
products, including the component parts
of products, by mechanical or chemical
processes; or
(ii) Utility boilers used to produce
electric power, steam, or heated or
cooled air or other gases or fluids for
sale.
(c) No fuel which contains any
hazardous waste may be burned in any'
cement kiln which is located within the
boundaries of any incorporated
municipality with a population greater •
than 500,000 (based on the most recent
census statistics) unless such kiln fully
complies with regulations under this
chapter that are applicable to
incinerators.
I28&32 Standard* applicable to
gansratora of hazardous waste fu*t
(a) Generators of hazardous waste
that is used as a fuel or used to produce
a fuel are subject to Part 262 of this
chapter.
(b) Generators who market hazardous
waste fuel to a burner also are subject to
i 266.34.
(c) Generators who are burners also
are subject to $ 266,35.
§26333 Standard* applicable to
transporters of hazardous waste fueL
Transporters of hazardous waste fuel
(and hazardous waste that is used to
produce a fuel) are subject to Part 263 of
this chapter.
§266.34 Standards applicable to
marketer* of hazardous waste fuel.
Persons who market hazardous waste
fuel are termed "marketers", and are
subject to the following requirements.
Marketers include generators who
market hazardous waste fuel directly to"
a burner, persons who receive
hazardous waste from generators and
produce, process, or blend hazardous
waste fuel from these hazardous wastes,
and persons who distribute but do not
process or blend hazardous waste fuel.
(a) Prohibitions. The prohibitions
under i 266.31(a);
(b) Notification, Notification
requirements under section 3010 of
RCRA for hazardous waste fuel
activities. Even if a marketer has
previously notified EPA of his ,
hazardous waste management activities
and obtained a U.S. EPA Identification
Number, he must renotify to identify his
hazardous waste fuel activities.
(c) Storage. The applicable provisions
of S 262.34, and Subparts A through L of
Part 264, Subparts A through L of Part
285, and Part 270 of this chapter;
(d) Off-aite shipment. The standards
for generators hi Part 262 of this chapter
when a marketer initiates a shipment of
hazardous waste fuet
(e) Required notices. (1) Before a
marketer initiates the first shipment of
hazardous waste fuel to a burner or
another marketer, he must obtain a one-
time written and signed notice from the
burner or marketer certifying that
(i) The burner or marketer has notified
EPA under Section 3010 of RCRA and
identified his waste-as-fuel activities:
and . •
(ii) If the recipient is a burner, the
burner will burn the hazardous waste
fuel only in an industrial furnace or
boiler identified in $ 261 Jlfb).
(2) Before a marketer accepts the first
shipment of hazardous waste fuel from
another marketer, he must provide the
other marketer with a one-time written
and signed certification that he has
notified EPA under section 3010 of
RCRA and identified his hazardous
waste fuel activities; and
(f) Recordkeeping. In addition to the
applicable recordkeeping requirements
of Parts 262,264, and 285 of this chapter,
a marketer must keep a copy of each
certification notice he receives or sends
for three years from the date he last '
engages in a hazardous waste fuel
marketing transaction with the person
who sends or receives the certification
notice.
(The notification requirements contained in
paragraph (b) of this Motion were approved
by OMB under control number 2050-0028.
The storage requirements contained in
paragraph (c) of this section were approved
by OMB under control number 2O5O-0000.
The manifest and invoice requirements
contained in paragraph (d) of this section
were approved by OMB under control
numbers 2050-0039 and 20SO-0047.
respectively. The certification requirement!
contained in paragraph (e) of this section
-------
Federal Register / Vol SO, No. 230 / Friday, November 29. 1985 / Rules and Regulations 4920§
were approved by OMB under control
number 2050-0047. The recordkeeping
requirements contained in paragraph (!) of
'this section were approved by OMB under
control number 2050-0047.)
I26&35
of hazardous waste fust.
Owner* and operators of industrial
furnaces and boilers identified in
5 26&31(b) that bum hazardous fuel are
"burners" and are subject to the
following requirements: *
(a) Prohibitions. The prohibitions
under § 26&31(b);
$>) Notification. Notification
requirements under section 3010 of
RCRA for hazardous waste fuel
activities. Even if a burner has
previously notified EPA of his
hazardous waste management activities
and obtained a U.S. EPA Identification
Number, he must renotify to identify his
hazardous waste fuel activities.
(c) Storage. (1) For short term
accumulation by generators who bum
then- hazardous waste fuel on site, the
applicable provisions of § 28234 of this
chapter;
(2) For existing storage facilities, the
applicable provisions of Subparts A
through L of Part 265. and Parts 270 and
124 of this chapter, and
(3) For new storage facilities, the
applicable provisions of Subparts A
through L of Part A 264. and Parts 270
and 124 of this chapter: -
(d) Required notices. Before a burner
accepts the first shipment of hazardous
waste fuel from a marketer, he must
provide the marketer a one-time written
and signed notice certifying that
(1) He has notified EPA under section
3010 of RCRA and identified his waste-
as-fuel activities; and
(2) He will bum the fuel only in a
boiler or furnace identified in
5 286^1 (b).
(e) Recordkeeping. In addition to the
applicable recordkeeping requirements
of Parts 264 and 265 of this chapter, a
burner must keep a copy of each
certification notice that he sends to a
marketer for three yean from the date
he last receives hazardous waste fuel
from that marketer.
[The notification requirements contained in
paragraph (b) of this section were approved
by OMB under control number 2050-0028.
The storage requirements contained in
paragraph (c) of this section were approved
by OMB under control number 2050-0009.
The certification requirements contained in
paragraph (d) of this section were approved
by OMB under control number 2050-0047.
The recordkeeping requirements contained in
paragraph (e) of this section were approved
by OMB under control number 2050-0047.) «
12. Subpart E is added as follows:
Subpart E-4)Md CM Burned for Emrgy
Recovery
See. - -
286.40 Applicability.
286.41 Prohibitions.
286.42 Standards applicable to generators of
used oil burned for energy recovery.
280.43 Standards applicable to marketers of
used oil burned for energy recovery.
266.44 Standards applicable to burners of
used oil burned for energy recovery.
Subpart E—Used OU Burned for
Energy Recovery
1266.40 AppifcaMWy.
(a) The regulations of this subpart
apply to used oil that is burned for
energy recovery in any boiler or
industrial furnace that is not regulated
under Subpart O of Part 264 or Part 265
of this chapter, except as provided by
paragraphs (c) and (e) of this section.
Such used oil is termed "used oil fuel". .
Used oil fuel includes any fuel produced
from used oil by processing, blending, or
other treatment
(b) "Used oil" means any oil that has
been refined from crude oil, used, and,
as a result of such use, is contaminated
by physical or chemical impurities.
(c) Except as provided by paragraph
(d) of this section, used oil mat is mixed
with hazardous waste and burned for
energy recovery is subject to regulation
as hazardous waste fuel under Subpart
D of Part 266. Used oil containing more
than 1000 ppm of total halogens is
presumed to be a hazardous waste
because it has been mixed with
halogenated hazardous waste listed in
Subpart D of Part 261 of this chapter.
Persons may rebut this presumption by
demonstrating that the used oil does not
contain hazardous waste (for example,
by showing that the used oil does not
contain significant concentrations of
halogenated hazardous constituents
listed in Appendix VHI of Part 261 of
this chapter).
(d) Used oil burned for energy
recovery is subject to regulation under
this subpart rather than as hazardous
waste fuel under Subpart D of this part
if it is a hazardous waste solely because
it: '
(1) Exhibits a characteristic of
hazardous waste identified in Subpart C
of Part 261 of this chapter, provided that
it is not mixed with a hazardous waste;
or
(2) Contains hazardous waste
generated only by a person subject to
the special requirements for small
quantity generators under § 261.5 of this
chapter.
(e) Except as provided by paragraph
(c) of this section, used oil burned for
energy recovery, and any fuel produced
from used oil by processing, blending, or
other treatment, is subject to regulation
under-this subpart unless it is shown not
to exceed any of the allowable levels of
the constituents" and properties in the
specification shown in the following
table. Used oil fuel that meets the
specification is subject only to the
analysis and recordkeeping
requirements under §S 266.43(b) (1) and
(6). Used oil fuel that exceeds any
specification level is termed "off-
specification used oil fuel".
USED' On. EXCEEDING ANY SPECIFICATION
LEVEL is SUBJECT TO THIS SUBPART WHEN
BURNED FOR ENERGY RECOVERY •
Constituent/properly
Annie
Of~"l«"
C>OT__
l/Ttif
R«hB«M
Atowabla Ion)
5 ppm mvrjmum.
2 ppm maximum.
tO ppm miuiinum.
100 ppm mtximum.
100 'F minimum.
4,000 ppm maximum.*
•The apeafcation don not apply to used oi fuel mncct
«ritti • hazardous wist* otter than email quantity generator
hazardout unit*.
•Uted 0* containing mom than 1,000 ppm total halogens
la pnMumed to be a hazardous watta under the rebuttable
preemption provided under |266.40(c). Such used oil it
subject 10 Subpait 0 ot Ma pert «m« man Bw eubpert
•hen turned lor energy recovery tiniest the presumption of
-' n be euceeufuay r ' - •
5266.41 .ProMbKtofu.
(a) A person may market off-
specification used oil for energy
recovery only:
(1) To burners or other marketers who
have notified EPA of their used oil
management activities stating the
location and general description of such
activities, and who have an EPA
identification number; and
(2) To burners who burn the used oil
in an industrial furnace or boiler
identified in paragraph (b) of this
section.
(b) Off-specification used oil may be
burned for energy recovery in only the
following devices:
(1) Industrial furnaces identified in
§ 260.10 of this chapter; or
(2) Boilers, as defined in § 260.10 of
this chapter, that are identified as
follows:
(i) Industrial boilers located on the
site of a facility engaged in a
manufacturing process where
substances are transformed into new
products, including the component parts
of products, by mechanical or chemical
processes;
(ii) Utility boilers used to produce
electric power, steam, or heated or
cooled air or other gases or fluids for
sale; or
(iii) Used oil-fired space heaters
provided that:
(A) The heater burns only used oil
that the owner or operator generates or
used oil received from do-it-yourself oil
-------
49206 Federal Register / Vol. 50. No. 23O-/-Eadayr November 29, 1985 / Rules and Regulations
changers who generate used oil as
household waste;
(B) The heater is designed to have a
maximum capacity of not more than 0.5
million Btu per hour: and
(C) The combustion gases from the
heater are vented to the ambient air.
§ 266.42 Standard* applicable to
Ben*ratofs of used oil burned for energy
recovery.
(a) Except as provided in paragraphs
(b) and (c) of this section, generators of
used oil are not subject to this subpart
(b) Generators who market used oil
directly to a burner are subject to
i 266.43.
(c) Generators who burn used oil are
subject to § 266.44.
f 256.43 Standsrd* applicable to
marketers of used ofl burned for energy
recovery."
(a) Persons who market used oil fuel
are termed "marketers". However, the
following persons are not marketers
subject to this Subpart:
(1) Used oil generators, and collectors
. who transport used oil received only
from generators, unless the generator or
collector markets the used oil directly to
a person who bums it for energy
recovery. However, persons who burn
some used oil fuel for purposes of
processing or other treatm'ent to produce •
used oil fuel for marketing are
considered to be burning incidentally to
processing. Thus, generators and
collectors who market to such incidental
burners are not marketers subject to this
subpart; . *
(2) Persons who market only used oil
fuel that meets the specification under
i 266.40{e) and who are not the first
person to claim the oil meets the
specification (i.e., marketers who do not
receive used oil from generators or
initial transporters and marketers who
neither receive nor market off-
specification used oil fuel).
* (b) Marketers are subject to the
following requirements:
(1) Analysis of used oil fuel. Used oil
fuel is subject to regulation under this
subpart unless the marketer obtains
analyses or other Information
documenting that the used oil fuel meets
the specification provided under
§ 268.40{e).
(2) Prohibitions. The prohibitions
under { 266.41 (a);
(3] Notification, Notification to EPA
stating the location and general
description of used oil management
activities. Even if a marketer has
previously notified EPA of his
hazardous waste management activities
under section 3010 of RCRA and
obtained a U£. EPA Identification -
Number, he must renotiry to identify his
used oil management activities.
(4) Invoice system. When a marketer
initiates a shipment of off-specification
used oil, he must prepare and send the
receiving facility an invoice containing
the following information:'
(i) An invoice number;
(ii) His own EPA identification
number and the EPA identification
number of the receiving facility;
(iii) The names and addresses of the
shipping and receiving facilities;
(iv) The quantity of off-specification
used oil to be delivered;
(v) The date(s) of shipment or
delivery; and
(vi) The following statement "This
used oil is subject to EPA regulation
under 40 CFR Part 266";
Not*.—Used oil that meets the definition of
combustible liquid (flash point below 200 *F
but «t or greater than 100 *F] or flammable
liquid (flash point below 100 *F).!i subject to
Department of Transportation Hazardous
Materials Regulations at 49 CFR Parts 100-
177.
(5] Required notices, (i) Before a
marketer initiate* the first shipment of
off-specification used oil to a burner or
other marketer, he must obtain a one-
time written and signed notice from the
burner or marketer certifying that:
(A) The burner or marketer ha*
notified EPA stating the location and
general description of his used oil
management activities; and
(B) If the recipient is a burner, the
burner will bum the off-specification
used oil only in an industrial furnace or
boiler identified hi § 26&41(b); and
(ii) Before a marketer accepts the first
shipment of off-specification used oil
fromjinother markets? subject to the
requirements of this section, he must
provide the marketer with a one-time
written and signed notice certifying that
he has notified EPA of his used oil
management activities; and
(6) Recordkeeping—(i] Used Oil Fuel
not Meets the Specification. A
marketer who first claims under
paragraph (b)(l) of this section that used
oil fuel meets the specification must
keep copies of analysis (or other
information used to make the
determination) of used oil for three
'years. Such marketers most also record
in an operating log and keep for three
years the following information on each
shipment of used oil fuel that meets the
specification. Such used oil fuel is not
subject to further regulation, unless it is
subsequently mixed with hazardous
waste or unless it is mixed with used oil
so that it no longer meets the
specification.
(A) The name and" address of the
facility receiving the shipment;
(B) The quantity of used ofl feel
delivered;
(C) The date of shipment or delivery;
and
(D) A cross-reference to the record of
used oil analysis (or other information
used to make the determination that the
oil meets the specification) required
under paragraph (b)(6)(i) of this section.
(ii) Off-Specification Used Oil Fuel. A
marketer who receives or initiates an
invoice under the requirements of this
section must keep a copy of each
invoice for three years from the date the
invoice is received or prepared. In
addition, a marketer must keep a copy
of each certification notice that he
receives or sends for three years from
the date he last engages in an off-
specification used oil fuel marketing
transaction with the person who sends
or receives the certification notice.
(The analysis requirements contained in
paragraph (b)(l) of this section wen
approved by OMB under control number
2050-4047. The notification requirement*
contained in paragraph (b)(3) of thi* section
were approved by OMB under, control
number 2050-0028. The invoice requirements
contained in paragraph (bX4) of this Motion
were approved by OMB under control
number 2050-0047. The certification
requirements contained in paragraph (b)(5) of
thi* section were approved by OMB under
control number 20SO-0047. The recordkeeping
requirement* contained in paragraph (b)(6) of
this section were approved by OMB under
control number 2050-0047.)
§266.44 Standards applicable to burners
of used oil burned for energy recovery.
Owners and operators of facilities
that burn used oil fuel are "burners" and
are subject to the following
requirements:
(a) Prohibition. The prohibition under
S 288.41(0);
(b) Notification. Burners of off-
specification used oil fuel must notify
EPA stating the location and general
description of used oil management
activities, except that owners and
operators of used oil-fired space heaters
that burn used oil fuel under the
provisions of S 26&41(b)(2) are exempt
from these notification requirements.
Even if a burner has previously notified
EPA of his hazardous waste
management activities under Section
3010 of RCRA and obtained an
identification number, he most renotify
to identify his used oil management
activities.
(c) Required notices. Before a burner
accepts the first shipment of off-
specification used oil fuel from •
marketer, he must provide the marketer
a one-time written and signed notice
certifying that:
-------
Federal Register / VoL SO, No. 230 / Friday, November 29, 1985 / Rules md Regulations 49207
(1) He has notified EPA stating the
location and general description of his
used oil management activities; and
(2) He will burn the used oil only in an
industrial furnace or boiler identified in
i 286.41(b); and
(d) Uted oil fael analysis. (1) Used ofl
fuel burned by die generator is subject
to regulation under this aubpart unless
the burner obtains analysis (or other
information) ii^M*iiTn^Tyt?nfl that the used
.oil meets the specification provided
under § 266.4O{e).
(2) Burners who treat off-specification
used oil fuel by processing, blending, or
other treatment to meet the specification
provided under § 266.40(e) must obtain
analyses (or other information)
documenting that the used oil meets the
specification.
(e) Recordkeeping. A barner who
receives an invoice under the
requirements of this section must keep a
copy of each invoice for three years
from the date the invoice is received.
Burners must also keep for three years
copies of analyses of used oil fuel as
may be required by paragraph (d) of this
section. In addition, he must keep a copy
of each certification notice that he sends
to a marketer for three years from the
date he last receives off-specification
used oil from mat marketer.
{The notification requirements contained tat
paragraph (b) of thii section were approved
by OMB under control number 2050-0021
The certification requirements contained in
paragraph (c) of this section were approved
by OMB under control number 2050-0047.
The analysis requirements contained in
paragraph (d) of this section were approved
by OMB wider control number 2050-0047.
The rscordkeepinfi nouimnenta contained in.
paragraph (e) of this section were approved
by OMB under contra! number 2050-0047.)
PART 271—REQUIREMENTS FOR
AUTHORIZATION OF STATE
HAZARDOUS WASTE PROGRAMS
12. The authority citation lor Part 271
is revised to read as follows:
Authority: Sees. 1008,2002(a). and 3008 of
the Solid Waste Disposal Act. ss amended by
the Resource Conservation, and Recovery Act
of 1978, as amended (42 U.S.C. 8905.6912(a).
and 0026).
13. Section 271.1(j) is amended by
changing the table heading and by
adding the following entry to Table 1 in
chronological order by date of
publication:
TABLE 1.—REGULATIONS IMPLEMENTING THE
HAZARDOUS AND SOLID WASTE AMEND-
MENTS OF 1984 .
DM e«
CrttoHlH
FEMTUU.
I kr «* UmemM of SpseH.
fc WastM
-------
49208-'' Federal Registeif / Vol. 56, No. 230'/ Friday, November ±9,1985 / Rules'and Regulajtibns'''*
PN>«i% ixmt E PA Notification of Hazardous Waste Activity
Please refer to the Instructions lor
Filing Notification before completing
this form. The information requested
here is required by law (Section
3OIO of the Resource Conservation
end Recovery Actl.
For Official Use Onl
Date. Received
AT. mo. an)
Installation's EPA ID Number
I. Name of Installation
II. installation Mailing Address
Street or P.O. Box
ill. Location of Installation
Street or Route Number
IV. Installation Contact
Name and Title (lest first end job title
phone Number leree code end number!
V. Qwnarshi
A. Name of Installation's Leoal Owner
B. Tvoe of Ownershio tenter cadal
VI. Type of Regulated Waste Activity IMsrk "X" in the aoorooriate boxes. Refer to instructions.
A. Hazardous Waste Aetivitv
B. UuMf On fuet AetivhiM
D 1b. Uss than 1.000 kg/mo.
O la. Generator
D 2. Transporter
O 3. Treater/Storer/DIsposer
O 4. Underground Injection
O 5. Market or Burn Hazardous Waste Fuel
(enter 'X" end merit appropriate boxti belowi
D a. Generator Marketing to Burner
D b. Other Marketer
' D e. Burner
Q 6. Off-Specification Used Oil Fuel •
(enter'X~ end mirk eppropriete boxes belowf .
.' Da; Generator Marketing to Burner
D b. Other Marketer
DC. Burner
1""1 7. Specification Uaad Oil Fuel Marketer
~^~^ (Or On-Site Burner) tt» First dains
the Oil Meets the Specification.
VII. Wasta Fuel Burning: Type-Of Combustion Device (enter.-X" in aUepproprieteboiettcmdlcatetrp* of combustion d*vice(*)m
wtiich htzetoou* wexte fuel or ott-speciffcetion used oil fuel it burned. See inontctiont lor definition* of comoiotton devicei.1
DA. Utility Boiler D B. Industrial Boiler D C. Industrial Furnace
VIII. Mode of Transportation /transporters only — enter 'X' in the appropriate boxfes)
D A, A* D B. Rail DC. Highway D O. Water D E.
X. First or Subsequent Notification
Mark "X' in the appropriate box to indicate whether this is your installation's first notification of hazardous waste activity or a subsequent
notification. If this « not your first notification, enter your installation's EPA IO Number in the space provided below.
D A Firtl Notification D B. Subsequent Notification (complete item C)
C. Installation's EPA ID Number
EPA Form 8700-12 (Rev. 11-85) Previous edition is obsolete.
Continue on
-------
Federal Register / Vol. 50,'No. 230 / Friday. November 29.1985 7 Rules and Regulation* : 49209
\ ID — For Official Us* OKIy
K:
A.)
f
- '
isi 1 1 r.LiJ.j.
T/A
C
1
Description of Hazardous Wastes (continued from front/ IHHIttlHaWESHBilf&&9^9*&BBHBflBAH»^hi
hazardous Waste* f
rom nonspecific aot
1
7
from Nonspecific 1
tree* your installati
iources. Enter the four-digit number from 40 CFR Pan 261.31 for each hsl*d hazardous waste
on handles. Use additional sheets if necessary.
2
•
f
,
3
*
4
10
8
11
6
12
1. Hazardous Waste* from Specific Source*. Enter the four-digit number from 40 CFR Part 261 .32 tor each listed hazardous wast* from
specific sources your installation handle*. Us* additional cheats if necessary.
13
It
25
C. Commercial C
your install* tkx
-
14
20
26
t handles which mi
91
37
43
IS
21
27
.
16
22
26
17
23
29
18
24
30
azardou* Waste*. Enter the four-digit number from 40 CFR Pan 261 .33 for each chemical substance
ly be a hazardous wast*. Use additional sheet* if necessary.
32
•
38
44
33
3*
45
24
40
48
35
41
*
47
D. Liated Infectious Wastes. Enter the four-digit number from 40 CFR Pan 261 .34 for each hazardous wast* from
pitals. or medical and research laboratories your installation handles. Us* additional cheat* if necessary.
E.<
1
4*
-
pour mxtaiiatioi
Di.
t
•0
01
82
63
36
42
48
-
hospitals, veterinary hot-
64
.
of Nonllst»d Hazardous Wast**. Mark "X' in the boxes corresponding to the characteristic* of nonlictad hazardous ^wastes
i» handles. /See 40 CFR P*ru26131 —26U4I .
tanitable O 2. Corrosive D 3. Reactive D 4. Tone
tCOII ID002) 1DOO3I IDOOO)
X. Certification M'lWlilWtp1 FlllfTinil^ililinUlin^^
/ certify under penalty of law that 1 have personally examined and am familiar with the information submitted in
this and all attached documents, and that based on my inquiry of those individuals immediately responsible for
obtaining the information, 1 believe that the submitted information is true, accurate, and complete, lam aware that
there are significant penalties tor submitting false information, including the possibility of fine and imprisonment.
Signature ,
Nam* and Official Thte ftp* or print)
Date Signed
•
EPA Form S700-12 (Rev. 11-86) ftevatae
6«tUMB COPE *HO K> C
-------
49210
Federal Regfater / VoL 50, No. 230 / Friday. November 29. 19B5 / Rules ana-'Regulations
IV. Line-by .lino In*Uuttkju» for Coarpletm*
EPA Fona 1700-12
Type or print in black ink all items except
Item XL "Signature," leaving a blank box
between word*. When typing, hit the ipaca
bar once between character* and three time*
between word*. If you mutt uie additional
sheets, indicate clearly the number of th«
item on the form to which the information on
the separate *heet applies,
Items I-Ul—Nams. Maiting Address, and
Location of Installation:
Complete Item* MIL Please note that the
addreu you give for Item in. "Location of
Installation." must be a physical address, not
a pott office box or mute number. If the
maillns address and physical facility location
are the same, you can print "Sam*" in box for
Item IIL
Item IV—Installation Contact:
Enter the name, title, and business
telephone number of the person who should
b« contacted regarding information submitted
on this form.
/tea V—Ownership:
(A) Name: Enter the name of the legal
owners] of the installation, including tha
property owner. Use additional sheets if
nftceiwry to list more than one owner.
(B) Type: Using the codes listed below.
Indicate the legal status of the owner of the
facility:
FF-Feder*Dy Owned. Federally Operated
FC-F«d*raBy Owned. Operated By A
Private Contractor to the Federal
Government
FP-FcderaUy Owned. Prirataly Operated
PF-Privately Owned. Constructed For Use
By The Federal Government and
Operated By The Federal Government
Pl-Privately Owned. Leased And
Operated By The Federal Government
Pl-Privately Owned. Indian Land
FI-Fcderally Owned. Indian Land
C-County
D -District
M—Munldpal
P-Private
S-State
Item Vt—Type of Regulated Waste Activity:
(A) Hazardous Waste Activity: Mark the
appropriate box(ei) to show which hazardous
waste activities are going on at this
installation.
(1) Generator (a) If you generate a
hazardous waste that i* identified by
characteristic or listed in 40 CFR Part 281.
mark an "X" in this box.
(b) In addition, if you generate lest than
1000 kilograms of non-acutely-hazardous
waste per calendar month, mark an "X"in
this box.
(2) Transporter: If yon move hazardous
waste by air. rail, highway, or water then
mark an "X" in this box. All transporters .
must complete Item VUL Transporter* do not
have to complete Item X of thi* form, but
must sign the certification in Item XL Refer to
Part 203 of the CFR for an explanation of the
Federal regulation* for hazardous waste
transporter*. • . -,
(3) Treater/Storer/DisposenUyou treat.
store or dispose of regulated hazardous
waste, then mark an "X" in this box. Yon are
reminded to contact the appropriate
addressee listed for your State in Section
m(C) of this package to request Part A of the'
KCRA Permit Application. Refer to Parts 264
"^and 205 of the CFR for an explanation of the
Federal regulation* for hazardous waste
facility owners/operators.
(4) Underground Injection: Person* who
generate and/or treat or dispose of hazardous
waste must place an "X" in this box if an
injection well is located at their installation.
An injection well i* defined a* any hole in the
ground, including septic tanks, that is deeper
than it is wide and that is used for the
subsurface placement of fluids.
(5) Market or Bum Hazardous Watte fuel:
If you market or bum hazardous waste fuel
place an "X" in this box. Then mark the .
appropriate boxes underneath to indicate
your specific activity. If you mark "Burner"
you must complete Item Vff—'Type of
Combustion Device,"
Note.—Generators are required to notify
for waste-as-fuel activities only if they
market directly to the burner.
"Other Marketer" is defined as any person,
other than the generator marketing his
hazardous- waste, who markets hazardous
waste fueL
(B) Used Oil fuel Activities: Mark an "X"
in the appropriate box(e*) below to indicate
which used oil fuel activities are taking place
at this installation.
(6) Off-Specification Used Oil fuel- If you
market or bum off-specification used oil.
place an "X" in thi* box. Then mark the
appropriate boxes underneath to indicate
your specific activity. If you mark "Burner"
you mutt complete Item VII—Type of '
. Combustion Device."
Note*—Used oil generators are required to
notify only if marketing directly to the burner.
"Other Marketer" i* defined a* any person.
other than a generator marketing his or her
used oil who market* used oil fuel
(7) Specification Used Oil Fuel: If you are •
tite first to claim that the used oil meet* the
specification established hi 40 CFR Part
2fl6.40{e) and is exempt from further
regulation, you must mark an "X" in this box
Item $U—Waste-Fuel Burning: Type of
Combustion Device: .
Enter an "X" in all appropriate boxes to
indicate type(s) of combustion devices in
which hazardous waste fuel or off-
specification used oil fuel is burned. (Refer to
definition section for complete description of
each device.)
Item Vttl—Mode of Transportation: '
Complete this item only if you are the
transporter of hazardous waste. Mark an "X"
in each appropriate box to indicate the
method(s) of transportation you use.
Item K—first or Subsequent Notification:
Place an "X" in the appropriate box to
indicate whether this is your first or a
subsequent notification. If you have filed a
previous notification, enter your EPA
Identification Number in'the boxes provided.
Note.—When the owner of a facility
changes, the new owner must notify U.S. EPA
of the change, even if the previous owner
already received a VS. EPA Identification
Number. Because the VS. EPA ID Number is
"site-specific." the new owner will keep the
existing ID number. If the facility moves to
another location, the owner/operator must
notify EPA of this change. In this instance a
•new U.S. EPA Identification Number will be
assigned, since the facility has changed
locations.
ItemX—Description of Hazardous Waste:
(Only persons involved in hazardous waste
activity (Item VI(AJ) need to complete this
Item. Transporters requesting a U.S. EPA
Identification Number do not need to
complete this item, but must sign the
"Certification" in Item XL)
You will need to refer to Title 40 CFR Part
281 (enclosed) in order to complete this
section. Part 281 identifies those wastes that
EPA defines as hazardous. If you need help
completing this section please contact the
appropriate addressee for your state as listed
in Section HI(C) of this package.
• Section A—If yon handle hazardous wastes
mat are listed in the "nonspecific sources"
category in Part 281.31. enter the appropriate
4-digit numbers in the boxes provided.
Section S—If yon handle hazardous wastes
that are lilted in the "specific industrial
sources" category in Part 261.32, enter the
appropriate four-digit number* in the boxes
provided.
Section C—If you handle any of the
"commercial chemical products" listed a*
wastes in Part 281.33. enter the appropriate
four-digit numbers in the boxes provided.
Section 0—Disregard, since EPA has not
yet published infectious waste regulation*.
Section E—V you handle hazardous waste*
which are not listed in any of the categories
above, but do posses* a hazardous
characteristic, you should describe these
wastes by their hazardous characteristic. (An
explanation of each characteristic found at
Part 261.21-261.24.) Place an "X" in the box
next to the characteristic of the wastes that
you handle.
Item Xf—Certification:
This certification must be signed by the
owner, operator, or an authorized
representative of your installation. An
"authorized representative" is a person
responsible for the overall operation of the
facility (i.e.. a plant manager or
superintendent or a person of equal
responsibility). All notifications must include
this certification to be complete.
V. Definitions'
The following definitions are included to
help you to understand and complete the
Notification Form:
Act or RCRA—means the Solid Waste
Disposal Act as amended by the Resource
Conservation and Recovery Act of 1976, as
amended by the Hazardous and Solid Waste
Amendments of 1984,42 U.S.C. Section 6901
etseq.
Authorized Representative—-means the
person responsible for the overall operation
of the facility or an operational unit (i.e., part
of a facility), e.g., the plant manager.
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Federal Register / Vol. 50. No. 230 / Friday. November 29. 1985 / Rules and Regulations 49211
superintendent or .person of equivalent
responsibility.
„ Boiler—meant an enclosed device using
controlled flame combustion and having the
•following characteristics:
(1) The unit has physical provisions for
recovering and exporting energy in the form
of steam, heated fluids, or heated gases;
(2) The unit's combustion chamber and
primary energy recovery sectionfs) are of
integral design (i.e., they are physically
formed into one manufactured or assembled
unit):
(3) The unit continuously maintains an
energy recovery efficiency of at least 60 •
percent-calculated in terms of the recovered
energy compared with the thermal value of
the fuel: and
(4) The unit exports and utilizes at least 75
•percent of the recovered energy, calculated
on an annual basis (excluding recovered heat
.used internally in the same unit to, for
example, preheat fuel or combustion air or
drive fans or feedwater pumps).
Burner—means the owner or operator of a
utility boiler, industrial boiler or industrial
furnace that bums waste-fuel for energy
recovery and that is not regulated as a RCRA
hazardous waste incinerator.
Disposal—means the discharge, deposit,
injection, dumping, spilling, leaking, or
placing of any solid waste or hazardous
waste into or on any land or water so that
such solid waste or hazardous waste or any
constituent thereof may enter the
environment or be emitted into the ah* or
discharged into any waters, including ground
waters. - •
Disposal Facility—means a facility or part
of a facility at which hazardous waste is
• intentionally placed into or on any land or
water, and at which waste will remain after
closure. '
EPA Identification (UJ.) Number—means
the number assigned by EPA to each
generator, transporter, and treatment
storage, or disposal facility.
Facility—mean* all contiguous land, and
structures, other appurtenaces, and
improvements on the land, used for treating,
storing, or disposing of hazardous waste. A
facility may consist of several treatment
storage, or disposal operational units (e.g.,
one or more landfills, surface impoundments,
or combinations of them).
Generator—means any person, by site,
whose act or process produces hazardous
waste identified or listed in Part 281 of this
chapter or whose act first causes a hazardous
- waste to become subject to regulation.
Hazardous Waste—meant a hazardous
waste as defined in 40 CFR Part 261.
Hazardous Waste Fuel—means hazardous
waste and any fuel that contains hazardous
waste that is burned for energy recovery in a
boiler or industrial furnace mat is not subject
to regulation as a RCRA hazardous waste
' incinerator. However, the following
hazardous waste fuels are subject to
regulation as used oil fuels:
(1) Used oil fuel that is also a hazardous
waste solely became it exhibits a
characteristic of hazardous waste identified
in Subpart C of 40 CFR Part 261. provided it is
not mixed with hazardous waste; and
(2) Used oil fuel mixed with hazardous
wastes generated by a small quantity
generator subject to 40 CFR Part 281.5.
Industrial Boiler—means a boiler located
on the site of a facility engaged in a
manufacturing process where substances are
transformed into new products, including the
component parts of products, by mechanical
or chemical processes.
Industrial Furnace—means any of the
following enclosed devices that are integral
components of manufacturing processes and
that use controlled flame combustion to
accomplish recovery of materials or energy:
cement kilns, lime kilns, aggregate kilns
(including asphalt kilns), phosphate kilns,
coke ovens, blast furnaces, smelting furnaces.
refining furnaces, titanium dioxide chloride
process oxidation reactors, and methane
reforming furnaces (and other devices as the
Administrator may add to this list).
Marketer—meant a person who markets
hazardous waste fuel or used oil fuel.
However, the following marketers are not
subject to waste-as-fuel requirements
(including notification) under Subparts D and
E of 40 CFR Part 266:
(1) Generators and initial transporters (Le*
transporters who receive hazardous waste or
used oil directly from generators including
initial transporters who operate transfer
stations] who do not market directly to
persons who bum the fuels; and
(2) Persons who market used oil fuel that
meets the specification provided under 40
CFR 286.40(e) and who are not the first to '
claim the oil meets the specification.
Off-Specification Used OH Fuel—meant
used oil fuel that does not meet the
specification provided under 40" CFR
266.40(6).
Operator—means the person responsible
for the overall operation of a facility.
. Owner—meansra person who owns a
facility or parf of a facility, including land
owner.
Specification Used OH Fuel—meant used
oil fuel that meets the specification provided
under 40 CFR 266.40(e).
Storage—means the holding of hazardous
waste for a temporary period, at the end of
which the hazardous waste is treated,
disposed of, or stored elsewhere.
Transportation—means the movement of
hazardous waste by air, rail, highway, or
water.
Transporter—meant a person engaged in
the off-site transportation of hazardous waste
by air, rail, highway, or water.
Treatment—meant any method, technique.
or process, including neutralization, designed
to change the physical, chemical, or
biological character or composition of any
hazardous waste so as to neutralize such
waste, or so as to recover energy or material
resources from the waste, or so as to render
such waste nonhazardous, or less hazardous:
safer to transport store or dispose of; or
amenable for recovery, amenable for storage.
or reduced in volume.
Used Oil—meant any oil mat has been
refined from crude oil. used, and as a result
of such use, is contaminated by physical or
chemical impurities. Wastes that contain oils
that have not been used (e.g., fuel oil storage
tank bottom clean-out wastes) are not used
oil unless they are mixed with used oil.
Used Oil Fuel—meant any used oil burned
(or destined to be burned) for energy
recovery including any fuel produced from
used oil by processing, blending or other
treatment and that does not contain
hazardous waste (other than that generated
by a small quantity generator and exempt
from regulation as hazardous waste under
provisions of 40 CFR 281.5). Used oil fuel may
itself exhibit a characteristic of hazardous
waste and remain subject to regulation as
used oil fuel provided it is not mixed with
hazardous waste.
Utility Boiler—meant a boiler that is used
to produce electricity, steam or heated or
cooled air-for sale.
Waste Fuel—meant hazardous waste fuel
or off-specification used oil fuel
(PR Doc. 85-27903 Filed 11-27-85: 8:45 am]
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49212 Federal Register / Vol. 50. No. 230 / Friday, November 29. 1985 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR PARTS 260,261,26S, 270, and
271
ISWH-FHL 2873-5] '.
Hazardous Waste Management
System; Recycled Used OH Standard*
AQEMCY: Environmental Protection
Agency.
ACTION: Proposed rule.
SUMMARY: Section 3014 of RCRA. as
amended, requires EPA to establish
standards for used oil that is recycled,
or "recycled oiL" Pursuant to this
directive, EPA is today proposing
standards for generators and
transporters of recycled oil, and owners
and operators of used oil recycling
facilities. The standards would include
tracking requirements when used oil is
shipped off-site for recycling, and
facility management requirements when
used oil is stored prior to recycling.
Recycled oil used as fuel would be
subject to certain regulations, except
that fuel meeting a specification for
toxic contaminants and flashpoint
would be exempt from regulation. Uses
of recycled oil that constitute disposal
would be regulated as land disposal but
road oiling would be prohibited outright
This proposal is closely related to the
proposed listing of used oil as a
hazardous waste, also in today's Federal
Register. The rules proposed today for
used oil that is recycled would only
apply to used oil covered by the listing,
(except that household generated used
oil would also be regulated when
aggregated or accumulated for
recycling).
DATES: EPA will accept public
comments on this proposal until January
28.1386. Public hearings will be held to
obtain public comments on this proposal
and the proposal to list used oil as a
hazardous waste (appearing elsewhere
In this Federal Register] on January 8,
10, and 16 of 1986. The locations for the
public hearings are provided below; for
additional information on the public
hearings, see Part Four, Section m of
this preamble.
ADDRESSES: EPA will hold public '
hearings at the following locations: •
* Januarys, 1988—Holiday Inn. North Park
Plaza. 10650 North Central Expressway,
Dallas. Texai 75231 (Phone: 214/373-6000)
• January 1O,1B3S—Ramada Renaissance.
S5 Cyril Magnin Street (One block north of
5th & Market), San Francisco, California
04102 (Phone: 415/302-6000)
• fanuaryie, ISSff—Department of Health
and Human Services. North Auditorium ("C"
Street entrance). 330 Independence Ave., SW,
Washington. DC 20201
Comments on this proposal should be
mailed to the Docket Clerk (Docket No.
3014, Standards of Recycled Oil), Office
of Solid Waste (WH-5B2), ILS.
Environmental Protection Agency, 401M
Street. SW.. Washington. DC 20460.
Comments received by EPA may be
inspected in Room S-212, U.S. EPA. 401
M Street, SW., Washington, DC/from
9:00 tun. to 4:00 pan. Monday through
Friday, excluding holidays.
FOH FURTHER INFORMATION CONTACT:
The RCRA Hotline, call toll free at (800)
424-9346 or at (202) 382-3000. For
technical information, contact Michael
Petruska. Environmental Protection
Specialist Waste Management and
Economics Division. Office of Solid
Waste. (WH-565A), U.S. Environmental
Protection Agency, 401M Street SW..
Washington, DC 20460. Telephone: (202)
382-7917. Single copies of the proposal
may be obtained by calling the RCRA
Hotline at the number above.
SUPPLEMENTARY INFORMATION:
Overview
This preamble discussion is organized
into four major Parts. Part One
summarises the legal authority for
today's proposal, explains how this
proposal follows from previous EPA
rulemaldngs, and includes a statement
as to the general policy EPA has
followed in developing today's proposal
Part Two goes through the proposed
rules section-by-section. For each
section, the provision is explained and
the rationale for the provision is
presented. Part Three summarizes the
impacts of this proposal, if adopted as
proposed today, on State hazardous
waste programs, on the used oil
recycling industry, on the economy in
general and on small businesses. Part
Four includes a general request for-
public comment on this proposal lists .
the titles and where applicable the NT1S
number of the major background
documents used by EPA in developing
the proposal and provides information
on the upcoming public hearings.
Note*—TTiis proposal is one of three
regulatory actions being taken this month by
EPA concerning used oil In today's issue of
the Federal Register, this proposal for
recycled oil is accompanied by a separate
proposal to list used oil as a hazardous
waate. Further, EPA has promulgated in final
form its "Phase I" rules for the burning and
blending of used oil (and hazardous waste)
fuels. [Proposed January 11,1985 at 50 FR
1884.] At this writing, it appears likely that
the final Phase I rule will appear in the same
Federal Register as the proposals for recycled
oil and for listing used oil as hazardous
waste. For that reason, this preamble refers
to the final Phase I rule as-having been
"recently promulgated," but does not refer to
Federal Register pages in the citations.
Preamble Outline
PART ONE—INTRODUCTION AND
BACKGROUND
L Legal Authority
A. General
B. Listing as hazardous waste
C Generation and transportation prior to
recycling
D. Facility standards and permitting for
recyclers
Q. Proceeding Rnlemakings
A. December 16.1978 proposal
B. May 18,1880 rules
C Final "solid waste" rule
D. Burning and blending rules
E. New tank storage requirements
in. EPA's Proposed Policy for Regulating
Used Oil that is Recycled.
PART TWO—DETAILED DISCUSSION OF
CONTROLS PROPOSED FOR USED OIL
THAT IS RECYCLED
L Applicability and Scope of Part 266,
SubpartB
A. Definition of "recycled oil"
1. Scope of activities
2. Mixtures
B. Recycled oil subject to-Port 266, Subpart
1. General
2. Household waste, when aggregated
3. Oil recovered uum waste water
C. Conditional exemptions fot certain
recycled oils
1. Specification fuel
2. Asphalt paving material.
D. Overview of standards and "burden of
proof* issaes
E. Authorization to manage recycled oil
F. Definitions and general provisions
IL Standards for Generators of Recycled Oil
A. Small quantity recycled oil generators
1. Requirements
2. The separate smaB quantity limit for
recycled oil
3. Selection of 1,000 kilograms as the
limit
4. Regulation when collected
B. Large generators
1. Applicability
2. Identification numbers
3. Oil-site management
4. Shipments off-site
5. Reports
HI. Standards for Transporters of Recycled
Oil
A. Applicability
1. General
2. Mixture issues
3. Storage-facilities
B. Identification number*
C Discharges
D. Manifested shipments
E. Shipments without manifests
1. Records of acceptance
2. Delivery
3. Records of delivery
IV. Standards for Owners and Operators 01
Used Oil Recycling Facilities
A. Applicability and general approach to
regulation
B. Waste analysis requirements
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Federal Register / VoL 50. No. £30 / Friday, November 29, 1985 / Proposed Rules
4S213
1. Parameter!
2. Analysis plan*
C Acceptance of recycled oil from off-site
1. Manifested recycled ofl
2. Unnianifested recycled oil
3. Receipt of hazardous waste mixture*
D. Storage in tank*
1.'General
2. Revisions to the tank standards
3. Reclamation in tanks
E. Uses constituting disposal
F. Bunting for energy recovery
1. Facility standards •'
2. Fuel transportation
3. On-site burning of de minimal
quantities
G. Corrective measures
V. Permitting of Used Ofl Recycling Facilities
A. Eligibility for permit-by-rule
1. General exclusions from ihe pennit-by-
ntle
2. Case-by-case exclusions
B. Requirements of the pennit-by-rule
C Modifications to and duration of the
pennit-by-rule
D. Interim Status for Used Oil Recycling
Facilities
1. General
2, Permit applications
3. Alternatives considered
E. Enforcement
VL Proposed effective dates
A. General
B. Prohibition on dust suppression
C Tank system secondary containment
standards * -
PART THREE—ADMINISTRATIVE.
ECONOMIC, AMD ENVIRONMENTAL
IMPACTS
L State Authority
A. Applicability of rales in authorised
States ~
B. Effect on State authorizations •
n. Relationship of today's proposal lo certain
other EPA programs
A. PCB program
0> SPCC program
C NPDES program
III. Regulatory Impact Analysis—Executive'
Order 12291
A. Purpose
B. Methodology
1. Data collection
2. Economic methodology
3. Benefits methodology
4. Umitations
C. Results
1. Macroeconomic impacts
2. Microeconoinic impacts
3. Benefits
IV. Regulatory Flexibility Act
V. Paperwork Reduction Act
PART FOUR—PUBLIC COMMENTS,
BACKGROUND DOCUMENTS. PUBLIC
HEARINGS AND LIST OF SUBJECTS
L Solicitation of Public Comments
11. Availability of Background Documents
in. Announcement of Public Hearings
*V. List of Subjects
PART ONE—INTRODUCTION AND
BACKGROUND
L Legal Authority
A. General
Subtitle C of the Resource
Conservation and Recovery Act (RCRA
or "the Act") as amended by the
Hazardous and Solid Waste
Amendments of 1984, requires EPA to
identify wastes that may pose a
substantial hazard to human health or
the environment, and to regulate
hazardous waste from initial generation
through end disposition.
The Congress, in passing the Used Oil
Recycling Act of 1980 (Pub. L 96-463).
and the Hazardous and Solid Waste
Amendments of 1984 ("the 1984
Amendments"), supplemented the basic
requirements for regulation of hazardous
waste with certain special requirements
for used oil. These requirements are
found in section 3014 of the Act1
Section 3014(a) retains the language of
section 7(a) of the Used Oil Recycling
Act:
. . . The Administrator shall promulgate
regulations. . . as may be necessary to
protect the pubHc health and the environment
from hazards associated with recycled oiL In-
developing such regulations, the
Administrator shall conduct an analysis of
the economic impact of the regulations on the
oil recycling industry. The Administrator
shall ensure that such regulations do not
discourage the recovery or recycling of used
oil. .
Section 242 of the 1984 Amendments
also added the following phrase to the
above paragraph, "consistent with the
protection of human health and the
environment," to make it clear that .
protection is of prime concern under
section 3014, and that certain recycling
practices may-indeed be discouraged by
regulation if necessary to ensure an
adequate level of protection. [See HJL •
Conf, Rep. No. 1133. BBth Cong, 2d Sess.
114(1984).] '
B. Listing aa Hazardous Waste
Section 3014(b) requires the
Administrator to propose whether to list
or identify used crankcase oil as a
hazardous waste under section 3001 of
RCRA by November 8,1985. A final
determination as to listing all used oils
is required a year later. As explained in
detail in the Federal Register notice
accompanying this one, EPA is
proposing that used oil be listed as a
hazardous waste under section 3001 of
the Act
1 Prior to the 1B84 Amendm«aU.
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49214"* Federal'Register / VoL 'SO. No. 230 7 fiiday.' November 29. 1985 / Prbpoaed Rule&-'
listed as a hazardous waste is "deemed
to have a [RCRA] permit" for all such
treatment or recycling (and any
associated tank or container storage).
provided that the owner or operator
complies with the section 3004
standards promulgated by EPA for
hazardous waste facilities. EPA is
authorized to permit oil recycling
facilities individually when deemed
necessary to protect human health or
the environment
n. Preceding Rulemakingi
The following summarizes, for the
reader's convenience, previous EPA
proposals concerning used oil. Persons
*who submitted comments pursuant to
any of these proposals should, if they
wish for EPA to consider the comments,
re-Eubmit them at this time. [Due to the
time that has passed since these
proposals appeared in the Federal
Register and the new supporting data
available for today's proposal, EPA will
not consider comments previously
submitted without re-submittaL]
A. December 18,1978, Proposal
On December 18,1978. EPA proposed
regulations to protect human health and
the environment from the improper
management of hazardous waste (see 43
FR 58948-59028). The proposed
regulations included: (1) Criteria for
identifying and listing hazardous
wastes, and a hazardous waste list; (2)
standards applicable to generators and
transporters of hazardous waste to
ensure proper recordkeeping, reporting,
labeling, containerization. and use of a
transport manifest for these wastes; and
(3) performance, operating, and design
standards applicable to persons who
treat, store, or dispose of hazardous
waste. In the proposed rules, EPA would'
have listed all used oils as hazardous
waste.
The proposed rules contained special
provisions which exempted from
regulation most recycled hazardous
wastes. However, there were two
exceptions from this exemption which .
affected used oiL First, if the material .
being recycled was reused beneficially
in a manner that constitutes disposal
and was either a listed hazardous waste-
or exhibited any of a set of
characteristics (i.e., ignitability,
corrosivity. reactivity, or Extraction
Procedure (EP) toxidty). the material
was subject to the hazardous waste
regulations. This provision would have
subjected to the hazardous waste rules
most used oil applied to the land (e.g.,
used oil used as road oil. dust
suppressant, pesticide carrier, *tc.}. The
second exclusion affecting used oil dealt
with the reuse of certain oils as fuel -
Specifically, the regulations stated that
waste lubricating, waste hydraulic,
waste transmission fluid, and waste
cutting oils when burned or incinerated
as a fuel would also be subject to the
hazardous waste regulations.
B. The May Iff. 198QRules
On May 19,1980, EPA issued final
hazardous waste rules for many of the
- regulations it proposed in 1978.
However, the Agency deferred the
listing of used oil as a hazardous waste,
pending development of standards
specific to the transportation, treatment,
storage, disposal, and recycling of used
oiL [See 45 FR 33094-33095.] Under the
May 19 rules, used oil is a hazardous
waste only if it exhibits one or more of
the characteristics of hazardous waste:
Ignitability. corrosivity, reactivity, or EP
toxidty (see 40 CFR Part 261, Subpart
C). The rules also indicated, however. '
that only listed hazardous wastes and
hazardous sludges would be subject to
the hazardous waste rules when
recycled. The net effect of these
deferrals and exemptions was to subject
to the hazardous waste rules only used
oil that both exhibits one or more of the
above characteristics and is not
recycled (i.e., is disposed of). Because
relatively little used oil meets both of
these conditions, most used oil was not
brought under the control of the federal
hazardous waste program by the May 19
rules.*
C. Final "Solid Waste"Rule '
On January 4.1985. EPA promulgated ,
a final rule to amend its existing
definition of "solid waste" used in
regulations implementing Subtitle C of
RCRA. Among other things, this rule ' '
dealt with the question of which • • ' •
materials are solid and hazardous
wastes .when they are recycled; this rule
also specified general and specific
standards for various types of
hazardous waste recycling activities.
See 50 FR 614-668. The final solid waste
rule is relevant with respect to today's
proposal because, as explained below,
EPA presumes that except as section
• On Much IS. 1883. EPA published enforcement
guidance to halp Implement the May 18. I960 rait*.
ISep 48 FR 11157-11100.] Th« Agency memorandum
that wu published, provided guidance In
determining when • waste being bunwd wu * . •
legitimately a "fuel" and to exempt from
regulations vs. when a watte ii being burned for" '
destruction (disposal), and ao aubfect to the
hazardous waste incineration rales in 40 CFR Part*
284 and 285. Subpart O. This is relevant for used oil
because used oil is sometimes used to mask the
disposal of hazardous spent chlorinated solvent*..
As explained at 48 PR 11150-iiieo. mixtures of . .
spent haiardous chlorinated solvents and used oils
are generally subfect to the hazardous waste roles
wfasn burned, unless each spent solvent in the
mixture has significant energy value (as generated).
3014 provides otherwise, the existing
hazardous-waste standards apply. The
requirements for recycled hazardous
waste (termed "recyclable material") in
40 CFR 281.6, then, are used as a starting
point hi the determination as to what
requirements should apply to recycled
oil .
D. Burning and Blending Rules
Section 3004 (q), (r), and (s) of RCRA
require EPA to establish regulations for
hazardous waste burned for energy
recovery by November 8,1986. Since
section 3014(d) of RCRA provides that
recycled oil must be managed under the
section 3004 standards, EPA has
undertaken an effort to regulate
hazardous waste and recycled oil fuels
simultaneously. [The legislative history
of the "burning and blending"
amendments states that such an
approach was expected. See FLR. Rep.
No. 98-198,98th Cong., 1st Sess., at 39
(1983).]
On January 11,1985, EPA proposes
"Phase I" of its rules for burning and
blending of hazardous wastes and used
oil [See 50 FR 1684-1723.] The rules, as
recently promulgated in final form.
require that anyone burning or
producing a fuel made from used oil
notify EPA of their waste-as-niel
activities. The rule also establishes (he
following fule specification for used oil
fuel .
TABIE t.—USED On. Fua. SPECIFICATION
naetiaelnt.
SppmraerinuK.
10 pom
100 pom mimum.
WOTmHnua
<000
Persons producing used oil fuel
meeting this specification may market
the fuel to any burner or to another
processor, provided that he can
document that the fuel meets the •
specification and he complies with
certain recordkeeping provisions.*
Persons producing fuel not meeting th«
specification are allowed to market the
"off-spedfication" fuel only to owners
and operators of industrial boilers and
furnaces who have complied with the
notification requirement (and certain
other administrative requirements)
described above. Shipments of "off '
specification" fuel have to be
accompanied by an invoice bearing a-
• •Burners or processors who receive only .
specification fuel are not sublet to any of the Phase
I requirement*. .
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Federal Register-/ Vol. 50. No. 230 / Friday. November 29. 1985 / Proposed Rules • 49215
notice that the fuel a subject to EPA
regulations.
Hie Phase I rule is an interim '
. measure. The rules proposed today, and
the "Phase n" burning and blending
rules (scheduled for proposal early next
year) would incorporate parts of and
otherwise expand the Phase! rule to
cover activities besides burning and
blending. Today's proposal would alter
the scope or form of some of the final
Phase I rules, and these proposed
changes are discussed below.
E. New Tank Storage Requirements
EPA's basic storage rules were
promulgated on January 12,1981 at 46
FR 2802-2897. On June 26.1985 EPA
proposed revisions to the tank portion of
the storage rules (50 FR 28444-26504J;
the Agency cited as its basis for the
proposal certain deficiencies in the
current rules. [Id. at 28447-48.] These
proposed requirements are relevant with
respect to today's proposal for recycled
oil because:
• As described above and in more •
detail in later sections of the preamble,
•the general hazardous waste rules are
the proper starting point in determining
what requirements should apply to
recycled oil; and
• Tank storage is the predominant
storage method throughout the used oil
recycling industry. . . •
Therefore, changes in the hazardous
waste storage regulations will have
significant impacts on how EPA
regulates used oil storage.
As described in Section m. Part Three
of this preamble ("regulatory impacts"
section) and in the Regulatory Impacts
Analysis for this proposal (Chapters
VA. and V.B. in particular), the storage
portions of today's proposal account for
a large portion of the total costs of the
rules, but only a relatively small fraction
of the risk reduction or benefits we
expect to achieve. This is partly because
of the great uncertainty inherent in
trying to accurately quantify the many
factors that determine the risk posed by
various storage methods. [See the
Background Document for the
Regulatory Impacts Analysis for a
discussion of uncertainties in the
analysis:] Nonetheless, other parts of the
proposal appear to achieve greater
benefits compared to associated '
compliance costs than do the storage
sections.
EPA has considered whether the
proposed storage rules could be made
more cost-effective. We have, however,
only limited flexibility concerning the
level of regulation we impose. First
RCRA section 3014 requires that in
general used oil recycling facilities are
to be regulated the same as hazardous
waste facilities under section 3004.* The
recently proposed revisions to the
•hazardous waste tank standards [50 FR
26444-28504; June 26,1885] would make
the rules more stringent; the cost of
these new requirements are included in
the cost and regulatory impact studies
accompanying today's proposal and in
fact account for much of the total costs
of today's proposal. We are currently
considering comments received on the
June 26 proposal, and should we
determine that requirements less costly
than we proposed are adequate for
hazardous waste facilities, the rules for
used oil recyclers would be revised
accordingly. Also, the Agency
specifically solicits comments on
whether storage standards for used oil
can be based on the interrelationship
between engineering, location, and
waste-related factors. EPA requested
comment on this type of approach for all
tank storage situations on June 26 [see
50 FR 26452, "alternative regulatory
strategy number 2,"]. We indicated that
we have some administrative concerns
with this type of approach [Id]; but we
remain interested in the possibility of
tailoring requirements to match controls
with hazard-related factors.
Second, under the special RCRA
section 3014(c) authority, EPA has today
proposed a special, reduced set of
storage standards for recycled oil
generators to minimize adverse small
business and recycling impacts. We '
believe that today's proposal
accomplishes the section 3014(c) goal of
protecting human health and the
environment without causing significant
adverse impacts on generators. We
request comment on whether the
between ensuring protectiveness and
minimizing adverse impacts on recycled
oil generators. Further, the reader will
note that in Section 113. of Part Two of
this preamble, we solicit comments on
certain alternatives suggested by the
public pursuant to the June 26 proposal;
we will consider these suggestions and
any submitted per today's proposal to
determine whether sufficient protection
can be achieved in ways les? costly than
we propose today.*
4 Section 3014(c) exempts recycled oil from RCRA
sections S001(d) through 3003, but not from Section
S004. The House Report (HR. Conf. Rep. No. 1133.
8Stl) Cong., 2d Seu. 114 (1884)] states that this was
to ensure that tued oil recycling faculties would be
regulated under the same substantive standards as
other hazardous waste facilities.
* After seeing today's proposal, persons who
submitted comments per the June 28 proposal may
wish to revise and re-submit comments concerning
tued oil tank regulations.
DL EPA's Proposed Policy for
Regulating Used Oil That Is Recycled
EPA's proi ..jied policy and rationale
for regulates used oil that is recycled is
as follows:
• Used oil meets the criteria
established hi 40 CFR Part 261 for listing
a waste as hazardous;
* Certain hazardous waste recycling
activities have been found to pose
hazards and, therefore, need to be
regulated; and
• Absent special considerations, i.e..
the special requirements of section 3014,
used oil that is hazardous and that is
recycled requires the same level of
regulation as other recycled hazardous
wastes.
The Agency's basis and rationale for
listing used oil as a hazardous waste is •
discussed in detail in the Federal
Register notice that accompanies this
one. The next Part of this preamble
discusses the requirements proposed for
used oil that is recycled. The reader
should note that an underlying premise
throughout the discussion to follow is
the last point above; that is, absent
special considerations in Section 3014
(and accompanying legislative history),
recycled used oil is to be regulated as
are other recycled hazardous wastes.
And as a final point EPA has
determined that used oil mixed with
other hazardous waste should not be
eligible for the special Section 3014
standards, but rather should be
regulated under the existing hazardous
waste rules.* This is discussed in more
detail in the next Part of the preamble,
as are means the Agency intends to use
in distinguishing between used oil and
used oil/hazardous waste mixtures.
PART TWO—DETAILED DISCUSSION
OF CONTROLS PROPOSED FOR
USED OIL THAT IS RECYCLED
L Applicability and Scope of Part 268,
Subpart E
Under today's proposal, the standards
for used oil that is recycled would be
placed in 40 GFR Part 266, Subpart E.7
This section explains the applicability
and scope of Part 268. Subpart E.
A. Definition of "recycled oil"
Section 1004(37) of the Act defines
"recycled oil" as:
• This policy would alter the regulatory
requirements for certain mixtures bom the
requirement* recently promulgated in the final
Phase t burning and blending rule: the reasons for
these proposed policy changes are explained in the
next Part of die preamble.
' The term -used oil" is denned and discussed
fully in the Federal Register notice accompanying
this one few the used oil listing proposal.
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Fedora! Register / Vol. 50, No. 230 / Friday, November 29. 1985 / Proposed Ruie«
... any used oil which to nosed following
it* original use. for any purpose (including tht
purpose for which the oil wti originally
used). Such term includes oil which is re-
refined, reclaimed, burned, or reprocessed."
EPA is proposing a regulatory
definition (40 CFR 5260.10} for "recycled
oil" as follows:
"Recycled oil" mean* need oil that is either
burned for energy recovery, used to produce
a fuel, reclaimed (including used oil that is .-
reprocessed or re-refined), or otherwise
recycled, or that is collected, accumulated,
stored, transported, or treated prior to
recycling.
(1) [Reserved to define specific types of
burning considered to be recycling.]
(2) The term include mixtures of recycled
oil and other material, but not mixtures
containing hazardous waste (other than used
oil). Used oil containing more than 1000 ppm
of total halogens is presumed to be mixed
with chlorinated hazardous waste listed in
Part 261, subpart D of this Chapter. Persons
rosy rebut this presumption by demonstrating
that the used oil has not been mixed with
hazardous waste. EPA will not presume
nixing baa occurred if the used oil does not
contain significant concentrations of
chlorinated hazardous constituents listed in
Appendix VHI of Part 261 of mis chapter.
2. Scops c/ac&Vitfes: Tot statutory
and regulatory definitions are similar in
terms of the generic used oil recycling
activities they include. Used oil that is
either re-refined or "reprocessed" is
within the scope of the definition. We
have used the broad term "reclaimed" to
cover all processing or treatment
activities where usable materials such
as fuels or lubricants are recovered from
used oil ["Reclamation" is the term
used in the hazardous waste regulations
to describe such activities. See
128Ll(c){4) and SO FR 633-634; January
4,1985.] Burning used oil for energy
recovery is also within the scope of the
proposed definition. EPA has reserved
"paragraph (1)" in the definition to
define tha specific types of burning that
will be considered recycling. In the
hazardous waste rules, EPA has used a
• tripartite division to classify combustion
units: incinerators, boilers, industrial .
furnaces. [50 FR 625-620; January 4.
1835.] Hazardous waste with significant
energy (Btu) value, as defined in
enforcement guidance published March
16.1983 at 48 FR 11157-11160, is
considered to be recycled when burned
in a boiler or industrial furnace (or used
to produce a fuel bound for such
burning). [See 50 FR 629-633; January 4,
1985.] EPA will be reconsidering this
classification scheme with respect to
used oil in the Phase n burning proposal,
due early next year, because used oil is
often burned in devices that do not
neatly fit into any of the .above three
categories (e.g., diesel engines and space
heaters) and because used oil may often
be burned as a legitimate supplementary
fuel in solid and hazardous waste • -
incinerators. Until we can reconsider
this policy, the general policy (described
above) established for hazardous waste
would apply.
Finally, EPA considers used oil that is
being managed (e.g., collected, stored)
prior to recycling to fall within the scope
of "recycled oiL" EPA has applied this
general principle to hazardous wastes
being recycled [see 50 FR 650-651;
January 4,1985], and we believe
Congress intended a similarly broad
coverage for the term "recycled oiL"'
2. Mixtures. Used oil is often mixed or
blended with other materials during
collection, storage, or processing. EPA's
policy concerning used oil mixtures is
contained in the proposed "paragraph
(2)" of the recycled oil definition and in
certain conforming amendments to Part
281, discussed below. The most
important issue with respect to
classifying mixtures for regulatory
purposes under today's proposal is
whether or not the materials) being
mixed with the used oil is a hazardous
waste.
a. Mixing with materials that are not
hazardous waste: When recycled oil is
mixed with any material that is not a
hazardous waste, e.g., .virgin fuel oil the
resultant mixture is considered, a
recycled oiL Following the general
"mixture rule" policy established for
hazardous waste (see { 28U(a)(2)(iv)
and (c)], mixtures remain subject to
regulation unless and until specifically
excluded.*'[Although the most common
situation covered by this policy would
be blending of used oil with virgin fuel
oil. mixtures of recycled oil and non-
hazardous wastes, or with spill control
materials, would also be considered
recycled oil.]
b. Mixing with hazardous waste:
Congress, as evidenced by legislative
history surrounding Section 3014, is
quite concerned about the problems
' caused by mixing of hazardous wastes
with used oiL [See generally FLR. Rep.
No. 96-1415,96th Cong. 2d Sess., at 4-5.
• Ai evidenc* of Congress's intent for • broad
reading of the term, note that faction 3O14(c)
Include) special requirements for generates* and
traniporten of recycled oil. Obviously, Congratc
intends for EPA to consider used oil to be "recycled
ofl" from the Urns it is generated and stored or
accumulated.
•The reader should note that EPA has proposed'
(in tee listing proposal accompanying this rule) to
amend i 281 J(a)(Z](iv) to exclude wastawater
containing d* minimta amounts of used oil and
certain oily wipers from regulation as hazardous
waste. Also, a* will be discussed below, recycled
oil foe! meeting EPA's specifications would also be
exempt (such fuel would often be a mixture of u*td
oil and viigin oil).
(1980\ and HR. Rep. No. 98-198,-98th
Cong., 1st Seas., at 64-67<1983).] EPA
first dealt with the used oil/hazardous
waste mixture problem in the Phase I
burning and blending proposal [50 FR
1691-1692; January 11.1985.] At that
time, and in the recently promulgated
final Phase I rule, EPA (citing discretion
granted by Congress concerning how
such mixtures should be regulated)
established that certain mixtures are to
be regulated under the used oil fuel rules
while others are regulated as hazardous
waste. [Id.] EPA also explained,
however, that the classification scheme
in the Phase I rule is only intended as an
interim regime, to be revisited hi today's
proposed rulemaking (particularly with
respect to mixtures of used oil and small
quantity generator hazardous waste).
pd.] Today, as explained in detail
below, EPA is proposing that any
mixture of used oil and hazardous waste
is to be fully regulated as hazardous
waste. This is a central principle of the
proposed recycled oil rules, and is based
on the following rationale:
• EPA's proposed rules for recycled
oil were developed to control hazards
associated with recycled oil as a result
of hazardous constituents normally
found in used oiL When hazardous
wastes are mixed with used oiL the
nature and severity of hazards posed
can be changed and are not necessarily
controlled by the proposed recycled oil
rules;
• The policy is simple to understand
and implement EPA is concerned that if
certain hazardous wastes could be
mixed with used oil and others could not
be, both industry and enforcement
officials would be confused and would
hsva to spend a great deal of time trying
to determine what kind of waste was
mixed, eta, and
• EPA reasons that Congress
intended for used oil recyders, who
would benefit from special provisions in
Section 3014 discussed below, to be
involved in legitimate processing and
upgrading of used oil to recover or
produce high quality petroleum
products. Blending and mixing of
hazardous waste with used oil would
not normally improve or upgrade the
used oil and in fact may accomplish the
opposite. [For example, chlorinated
(solvents, which are often detected in
used oiL have Btu value lesa than used
- oil and also make used oil more difficult
to re-refine.]
What follows are discussions of the
various mixtures covered by the
proposed policy and then a discussion of
the Agency's mam mechanism to be
used to detect mixing, the "rebuttable
presumption." Comments are requested
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Federal Register / Vol. SO. No. 230 /
29< 19B5
on the general policy and rationale
described above, as well as the specific
aspects of the policy discussed next
[See proposed §§ 261.50), 261.6(a)(2)(iii).
and 266.40(d). as well as the §260.10 .
definitions of "recycled oil." for the
regulatory language that would
implement this proposed mixture
policy.]
(1) Listed hazardous waste from large
quantity generators. When used oil is
mixed with a waste that is listed in Part
261. Subpart D and generated by a
"large quantity" generator "(/-^ a
generator not subject to the special
requirements of §261.5). the mixture
should be regulated as hazardous waste,
not recycled oil10 Such hazardous
wastes (and associated mixtures) were
already regulated when Section 3014
was passed, and we see no indication
that Section 3014 was meant to reduce
regulatory requirements that already
apply to those wastes.11
(2) Characteristic waste from large
quantity generators. Under the final
Phase I burning rule, used oil mixed with
a waste hazardous only because it
exhibits one of the characteristics of 40
CFR 261.21-281.24 is regulated as
.hazardous waste on/y when the
resultant mixture continues to exhibit
one of the characteristics; otherwise, the
mixture is regulated as used oiL [In die
preamble of the final Phase I rule, see
Part Two. Section IVJB.3.] This policy is
merely a re-statement of
§ 281-3(a){2)(iii). which applies to all ,
mixtures of "characteristic only"
hazardous waste and Jip/i-hazardous
wastes. The proposed listing of used oil
as hazardous waste changes this
situation completely. /.«., §281.3(a)(2){iii)
no longer applies. EPA is today
proposing that mixtures of used oil and
characteristic-only hazardous waste be
regulated as hazardous waste (not as
recycled oil) regardless of whether the
resultant mixture exhibits any of the
characteristics. The Agency believes
that this is a proper approach for the
reasons outlined above and particularly
because the addition of characteristic
hazardous waste to used oil may change
'• The reader should note that on August 1.1865,
per section 30Ol(d) of RCRA. EPA proposed to
•mend 1261.5 to provide that only generator* of
ten then 100 kilograms of hazardous waste per
calendar month would be exempt a* "small quantity
generators.'' ISee SO FR 31288.]
"At one time. EPA was reluctant to classify any
used oil from die automotive service industry as
hazardous waste regulated outside the scope of
Section 3014 because that might render the
legislation meaningless. (See SO FR 1681-1892.
footnotes 16 and 24 in particular. January 11.1965.]
As discussed in the final Phase I rule, however, we
are now convinced that mixing by automotive
generators is quite rare, and so the above-
mentioned concern was unfounded. (In the final
Phase I rule preamble. *ee Part Two. Section IV3.2]
the nature of used oil (by adding
unusual constituents or properties) and
create hazards not adequately
addressed by the recycled oil rules, e.g.,
reactivity.
A related point concerning hazardous
characteristics and used oil is that under
the final Phase I rule and today's
proposal a used oil exhibiting one of the
characteristics of SI 281.21-261.24 but
that has not been mixed with other •
hazardous waste would be (when
recycled) regulated as recycled oil, not •
hazardous waste. For example, some
used oil has a flashpoint below 140 *F
and so ie ignitable hazardous waste; we
would not presume, however, that the
low flashpoint indicates mixing. {See the
discussion of this issue with respect to
used oil fuels at 50 FR 1692-1693 and
1699-1700; January 11.1985, and in the
preamble of the final Phase I rule in Part
Two, Section IVS3.] If, however, EPA
found mat used oil being recycled at a
particular facility exhibited some
characteristic not known to be typically
associated with used oil (e.g.,
corrosivity, reactivity, or EJ>. toxicity for
a metal such as mercury), we might well
begin an investigation to determine
whether hazardous waste was being
illicitly mixed with used oil
. (3) Hazardous waste from small
quantity generators. Under $ 261.5, EPA
exempts hazardous waste from
generators of less than 1000 kilograms
per calendar month of hazardous waste
from most of the Subtitle C
requirements, provided that the § 261.5
conditions are complied with.1* Under
§ 261.5. hazardous waste may be
recycled without regulatory controls and
may be mixed with used oils. In the
Phase I burning and blending proposal,
EPA requested comment on various
approaches for controlling mixtures of
used oil fuel and (the normally exempt)
S 261.5 hazardous waste. [50 £R 1692;
January 11,1985.] In the recently
promulgated final Phase I rule, we
decided to regulate the mixtures as used
oil fuel (not under the full set of
hazardous waste rules) at an interim
measure, pending today's proposal [In
the final Phase I preamble, see Part
Two. Section IV.B.2.]
Today, we are proposing that
mixtures of used oil and § 261.5
hazardous waste be fully regulated as
hazardous waste when recycled. [See
proposed § 261^(j)(2)(ii).J We have
determined, for the following reasons.
that this full level of regulation is
necessary to provide adequate control
over these mixtures:
• Small quantity generators'
hazardous waste may impart unusual
constituents and properties to used oil,
creating hazards not addressed by the
recycled oil rules;
• Congress indicated very strong
concerns over adulteration of used oil
during collection and transportation
". . . Used oil is often heavily
adulterated before it reaches a recycling
facility, and much of his adulteration
results from haphazard mixing during
transit. This provision of the bill {i.e.,
section 3014) expressly gives the Agency
authority to address these situations."
[See HJR. Rep. No. 98-198,93th Cong..
1st Sess., at 67 (1983).]
• EPA studies have documented that
in fact used oil is adulterated after
leaving generators' sites.13 Since so
many used oil generators are "small
quantity" generators under § 261.5,14
regulation of small quantity hazardous
waste is necessary to effectively control
adulteration; and
• As will be discussed below, the
Agency's main enforcement mechanism
to detect when mixing has occurred will
be the "rebuttable presumption," i.e., a
total halogen measurement The
rebuttable presumption only indicates
when yniying has occurred: it cannot
distinguish which types of generators
contributed hazardous waste to the
mixture. Enforcement and industry
officials would be faced with
uncertainty and confusion if small
quantity generator hazardous waste
could be legally added to recycled oil,
while other hazardous waste could not
be.
(4) The "rebuttable presumption" of
mixing. In the final Phase I burning rule.
EPA established that used oil fuel
containing in excess of 1000 ppm of total
halogens would be presumed to be
mixed with chlorinated hazardous
waste. [In the preamble of the final
Phase I rule, see Part Two, Section
IV.B.1.] Today, we are proposing to use
this same indicator (and the same
"rebuttal" procedures) to detect mixing
'* As noted above. EPA has proposed to lower
the exclusion limit from 1000 to 100 kilograms of
hazardous waste per calendar month. This
discussion would apply to any hazardous waste
exempted under 1281& regardless of the quantity
limit ultimately promulgated.
" See the report Composition and Management
of I/serf OH Generated in the U.S, US. EPA,
November 1984. Section 3.4.3.1. Samples taken from
processors an much more contaminated with
solvents than samples taken directly from
generators.
•• An estimated BZSOO Vehicle maintenance
shops, for example, generate on average 50
kilograms per calendar of hazardous waste (not
counting used oil), i«, mostly spent solvents. See
the draft Regulatory Impacts Analysis for Proposal
Regulation* for Small Quantity Generator* of
Hazardous Watte. February 1885. Exhibits 3-1 and
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49218
Federal Register / Vol. 50, No. 230 / Friday. November 29, 1985 / Proposed Rules
in any recycled oil, not just used oil
.being used as fuel. [See proposed
f §261.6{a](2)(iii) and 286.40{d). as well
as the proposed definition of "recycled
piL"J EPA believes extension of this
indicator to all used oils is appropriate
because the data and analyses used to
develop the presumption were based on
samples of all types of recycled oils, not
fust used oil« being used as fuels. That
is, the basic premise of the
presumption—used oil that contains
more than 1000 ppm total halogens has
been mixed with one or more hazardous
chlorinated solvents—holds for all used
oOs."
As discussed in the final Phase I
burning rule, persona may rebut the
presumption by demonstrating to
enforcement officials that the used oil
does not contain "significant levels" of
hazardous chlorinated constituents
identified in Appeidix VUI of Part 281.'•
(See the final Phase I preamble, Part •
Two. Section lV3.1l EPA is today
proposing that this same rebuttal
procedure would apply to all used oils
found to contain more than 1000 ppm
total halogens. EPA believes the
* procedures are appropriate for all used
oils because the question of what
constitutes • "significant level" of a
hazardous constituent (with respect to
indicating whether mixing has occurred)
is independent of the recycling method.
That is. when individual hazardous
solvents are present at very low levels
(such as less than 100 ppm). it is difficult
or impossible to pinpoint the source of
contamination and mixing with .
hazardous waste cannot be, presumed.
[Id.] Higher levels of individual
hazardous solvents (such as 100-1000
ppm), may or may not indicate mixing,
depending on circumstances specific to
individual cases. [Id.] Again, these
factors would seem to apply to all used
oils, not just oil fuels, and this supports
our proposal to extend the rebuttable
presumption (and rebuttal procedures)
_ to all used oils covered by today's.
'proposal, not just used oil fuels.
In summary, EPA is proposing a
mixture policy for used oil as follows:
1 • As dlicutsed in the final Phase I rule. EPA
rteotfnizet that metalworkins oils UK! re-refinery
light ends" may contain high levels of halogen* but
hare not been mixed. [In the preamble of the final
Phase I rule, sec Part Two. Section IV.B.1.) Persons
minaglnj these olli can rebut the preaumption
under the procedure! described in the final Pbaae I
rule (Id,|. lummahzed in this Mction of thla
preamble.
"At atio discussed in the final Phase I rule, if a
re-refiner can show that tb* incoming u*ed oil doe*
not exceed JOOO ppm halogen*, the presumption
would not apply to light ends produced at the
refinery. (Se« the final Phase I preamble. Part Two.
Section IV.Cia.) Thai is. the Agency recognixcs
that certain processes concentrate low boiling point
nuleriali In a light end stream, and the presumption
w<» not developed for this type of recycled 6iL
• Mixtures of recycled oil arid non-
h»zardous wastes or virgin materials
would be regulated as recycled oil; but
• Mixtures of used oil and any
hazardous waste, including hazardous
waste from 5 261.5 small quantity"
hazardous waste generators, would be
fully regulated as hazardous waste, not
as recycled oil. The Agency's main
enforcement mechanism would be the
rebuttable presumption, which uses total
• halogens as an indicator of mixing but
which also allows for case-by-case
rebuttals.
Comments are requested on today's
proposed mixtures policies.
B. Recycled Of! Subject to Part 266.
SubpartE
1. General The requirements for
recycled oil are proposed in Part 286.
Subpart E. The "applicability" section of
Part 266, Subpart E identifies those
recycled oils that would be subject to
the Subpart [See the proposed
S 26S.40(a)(l).] First the Subpart would
apply to recycled oil that is hazardous
waste.11- "Second, the Subpart would
apply to household-generated recycled
oil when aggregated at a collection
center. Third, the Subpart would apply
to recycled oil recovered from
wastewater. The latter two points are
discussed next
2. Household waste, when aggregated
When EPA made final many of its
hazardous waste rules on May 19.1980,
"household wastes" were specifically
excluded from being hazardous wastes.
[See 40 CFR 281.4(a)(l).] EPA concluded
[see 45 FR 33098-33099], based on the
legislative history of RCRA, that Subtitle
C was not intended to control the
management of household refuse, . •
garbage, etc. However, in light of the
subsequent enactment of the Used Oil .
Recycling Act in October 1980, and the
more detailed provisions of Section 3014
enacted in November 1984, EPA is
proposing to modify this exemption to
provide that recycled oil that is
household waste would be subject to
Part 268, Subpart E,'but only when
aggregated or accumulated at "do-it-
yourselfer" collection centers such as
service stations, auto centers, etc. [See
the proposed i 286.40(a)(l)(ii).] EPA is
proposing this special approach for
recycled oil because:
(1) Section 3014(a) directs EPA to
control the hazards of recycled oil
regardless of its origin;
(2) A substantial portion of all of the
used oil that is generated in the U.S.
each year comes from homeowners;"
and
(3) This homeowner-generated used
oil is almost entirely automotive oil.
EPA has a great deal of data showing
that used automotive oil is contaminated
with hazardous constitutents. "This oil
is collected and recycled along with
other automotive oils, and we must
presume it poses similar hazards.
Since the household-generated oil
presents similar hazards, we are
proposing that it be subject to Part 268,
Subpart E which aggreated at collection
centers.
EPA is not proposing that
homeowners themselves be regulated
under the rules proposed today. We are
proposing that household waste/
recycled oil lose its exempt status where
aggregated or accumulated for recycling.
EPA recognizes that improper practices
by homeowners themselves can also
pose environmental problems.*1 The
Agency does not believe, however, that
Congress envisaged Section 3014
applying directly to homeowners. EPA
specifically requests comment on non-
regulatory means that might be used to
encourage homeowner* to take their
used oil to collection centers. For
example, would it be helpful to State
agencies in this field if EPA were to
publish a document summarizing
various educational and informational
programs currently in use in the 133,
(and perhaps abroad) to address this
problem and the relative successes or
problems encountered with the
programs? Are there other roles EPA
could adopt to aid State agencies in
"Today's proposal would amend | 281.8(a)(2J(i«)
to provide that recycled oil would b« not subject to
the fall act of regulations that normally apply to
recydod haxardoua waates li*. 40 CFR Parts 262-
285,] but rather would be subject to Part 286.
Subpart E. As explained in the rest of this put of
the preamble. Part 286. Subpart E would incorporate-
some, but not all, of the requirements in the existing
hazardous waste regulations.
The reader should note that coma racyded oils
(under the statutory definition) u« not solid and
hazardous wastes under today's proposal. Under
12812 materials that have been reclaimed and that
are then used as commercial products (but no/ as •
fuel and not in • manner constituting disposal) art
not solid wastes, and so are-not hazardous wastes.
Examples of recycled oils that are not solid nor
hazardous wastes are reclaimed oils that are not
solid nor hazardous waates an reclaimed lubricants
and asphalt roofing material containing recycled olL
The reader should further note that under i| 29030
and 28031. EPA may grant requests for variance*
bom a material's being classified as a solid waste,
and under ff 2ML20 and 20O2Z. front a solid waste's
being classified aa a hazardous wast*.
"Composition and Management of U»sd Oil
Gonerattdin thf U&. by Franklin Associates. Ltd,
November IBM; p; 1-4. Approximately 200 million
gallons of used oil are generated by "do-it-
yourseUen." e*. hoeaaownta. of the total of 1.2
billion gallons generated each year.
•IA.P.3-Z7.
"A study for th* US. Department of Energy.
Analytic of Potential Uted Oil Recovery from
Individual*, by Market Facts, Inc. July 1981. found
that 40% of homeowners poured their need oil-on In*
ground, while another 21* placed it in the trash.
Only 14* took the oil to a center for recycling. So*
page 42,
-------
Federal Register / Vol. 50. No. 230 / Friday. November 29, 1985 / Proposed Rules 49219
addressing to "do-it-yourselfer"
problem?
3. Oil recovered from wastewater. hi
the listing proposal elsewhere in today's
Federal Register, EPA proposes to
amend the S 261-3 "mixture rule" to
excluse from the definition of hazardous
waste oily wastewaters containing de
minimus amounts of used lubricating,
hydraulic, or transformer oils from
machine drippings, line spillage, etc.**
[See proposed S 261 J(a)(2(iv}(F).] In
order to recover the oil (or to comply
with Clean Water Act discharge limits)
most industrial facilities treat oily
wastewater to separate some portion of
the oil. Used oil recovered from
wastewater is likely to contain
hazardous constitutents at levels
comparable to other used oils, and
therefore to pose similar hazards when
managed (or mismanaged). For this
reason, EPA has proposed to limit the
scope of the exclusion so that used oil
recovered from wastewaters remains a
hazardous waste. ** If this used oil is
recovered for recycling or reuse, tt
would be recycled oil subject to Part
266, Suopart E. A person who recovers
oil from exempt wastewater r-nntaining
used oil (for recycling) would be a
"generator.- subject to either i 266.40(c)
or { 266.41 of today's proposal To make
this point clear, we have proposed
§266,40(a)(i)(iii).
C. Conditional Exemptions for Certain
Recycled Oils
EPA has determined that certain types
of recycled oil should be exempt from
further regulation when specified
conditions are met [The proposed
J266.40(a)(2) identifies the recycled oils
eligible for the exemption and the
proposed f 26&40(b) contains the
conditions.]
1. Specification fuel. Recently, EPA
made final (the final "Phase I" burning
rule) a specification for fuels made from
used oils. [See Table 1, above, and in the
preamble of the final Phase I rule, see
the discussion in Part Two, Section
IV.C.J Fuels meeting this specification
would be exempt from the Phase I
burning rule's notification and tracking
requirements and its prohibition on
burning used oils in non-industrial
boilers. [Id.] EPA is today proposing to '
simply carry forward the exemption for
specification fuel. Based on the
following rationale, we can see no need
to impose regulations on specification
fuel, or to add any new parameters to
'the specification. Comments are
requested on the discussion that follows.
a. Rationale for exemption: EPA
believes mat fuel meeting the
specification would pose hazards not
significantly greater than virgin fuel oil
during handling and when binned and
that therefore regulation of die used oil
would not accomplish any
environmental purpose. [Id.] ** The
specification levels for three of the
constituents, arsenic, cadmium, and
chromium, were, in fact selected to be
equivalent to virgin fuel oil levels.** The
specification selected for lead was 100
ppm. This is about ten times greater
than lead levels found in virgin fuel oils,
but as we explained in the final Phase I
rule, the 100 ppm level is intended only
as interim measure. When EPA proposes
its Phase n burning rules early next
year, we will re-visit the lead
specification for used oil fuels and we
may well establish a more stringent •
level. In the meantime, we do not think
it appropriate to regulate fuels meeting
the 100 ppm specification.*8
* T> minimia.'n eecd in this context to
defined in Ac luting proposal elsewhere to today's
Federal RegMar.
•The reader should note that this discussion only
applies to wastewater contaminated with laedoil.
For example, wmtewaters from petroleum refineries
also contain recoverable oH hot do not necessarily
contain used oil.
•" The reader should note that EPA considers the
fuel specification to constitute a standard under
3004(r) fSr hazardous waste fuels. The specification
to iaiued under the joint authorities of sections 3014
and 30M(q), and as provided by section SOM(r),
supersedes the otherwise applicable labeling
requirement The specification limits the
composition and associated hazards of recycled oil
fuel, and therefore, it in itself fulfills the
informational and waning functions of the label
u Also, the propoeed flashpoint specification. •
minimum of 100 "F is the same as allowed under
ASTM specificaiiQns for commercial ("number 2")
feel oils. Further, the Phase i preamble explained
that we did not propose specifications for certain
canstttoents (such as benzene and toluene) in part
because level* in need oil are likely to be equivalent
to levels found in virgin fuel oils. (See the final
Phase I preamble, part Two. Section IV.CJ.]
«• A preliminary assessment of storage hazards of
used oil containing lead indicates that even with a
specification of 100 ppm. serious hazards from leaks
•re unlikely. A computer simulation of some 8000
storage situations was conducted where lead was
assumed to be released to the environment. (See the
Background Document tat the Regulatory Impact
Anatfiis. EPA Office of Solid Waste. November
1985. Chapter IV.G.] Of the 8000 simulations, only 28
exceeded the lead standard of OOS mg/1
promulgated under the Safe Drinking Water Act
if, less thanl percent of the cases. [This analysis .
to conservative in that many of the cases simulated
assumed a lead coolant higher than the final
specification of 100 ppm.] The reader should note
•that EPA is continuing to improve its methods for
assessing storage risks, and preliminary results
presented here ere simply the best information
currently available. Should new and better
information be developed in the future, we may re-
consider tlu storage ruks posed by specification '
fuel.
The reader may also note that in the
final Phase-I rule EPA declined to set
specification levels for certain toxic
constituents. However, the parameters
for which levels are not established
were either found to be present in used
oils at levels comparable to virgin fuel
oil (and so would pose hazards no
greater than virgin fuel oils when
handled prior to burning] or the
constituents just are not very toxic. Our
conclusions concerning the need for a
specification limit for individual
parameters were of course based
primarily on hazards posed by
inhalation: we have considered whether
specifications should be established for
some parameters of low inhalation
toxitity based on potential storage
hazards. A parameter worthy of this
special additional consideration is
barium. Ten percent of the used oil
analyses reviewed by EPA showed
barium levels at or above 250 ppm.27
. While this is about 100 times greater
than levels found in virgin fuel oil, the
reader should note that it is only two
and one-half times greater than the E.P.
toxicity level of 100 ppm. (|261.24(b),
Table 1. /.e, "D005."] Given that the E.P.
is intended for leachate analysis and
that it is very unlikely that all of the
barium would leach from the oily
matrix we do not expect used oil to
exhibit E.O. toxicity for barium.18 To.
more directly assess the potential for
groundwater contamination by improper
used oil storage, EPA evaluated
numerous storage scenarios.*' In all of
the various scenarios evaluated, the
predicted groundwater concentration of
barium was below l milligram per liter.
the standard established by EPA under
the Safe Drinking Water Act. Therefore
we do not expect significant hazards to
be posed by used oil high in barium,
even if stored improperly, and we have
not proposed any new specification for
barium.
" See the report Composition and Mi:.tagea,e:it
of Vied Oil Generated in the OS., U.S. EPA.
November 1984. p. 1-12. The data base included 712 '
samples analyzed for barium: 8S% of the samples
contained detectable levels of barium.
"Also, barium to an additive used in formulation
used automotive engine oil. It seems unlikely, given
.that automotive oils contain e variety of
contaminants regulated by the specification, that
used oil would meet the specification but yet still
have high barium levels. Ibid at pp. 3-8 to 3-10 and
p. 3-27.
*• See the Background Document for the
Regulatory Impact Analysis, EPA Office of Solid
Waste, November 1BSS. Chapter IV.G. As discuutec.'
above for lead, this analysis included a computer
simulation of some 9000 storage situations.
Although only preliminary analysis, it seems
unlikely that used oil can pose serious sntraga
hazards because of Its barium content.
-------
49220 Federal Register / Vol. 50. No. 230 / Friday. November 29. 1985 / Proposed Rules
Finally, under the approach proposed
today where used oil with over 1000
ppm total halogens is presumed to be
mixed with hazardous waste, the reader
may note that it is conceivable for
specification fuel to contain up to 1000
ppm of a hazardous spent solvent and
yet not "trigger" the rebuttable
presumption. EPA was concerned that
such levels of solvents, although not
hazardous with respect to burning, could
pose groundwater hazards if used oil
was stored improperly. We therefore
conducted a storage assessment for
used oil containing various spent
solvents, i.e., as we did for barium.30
The individual solvent posing the
highest risk level was found to be
tetrachloroathene, with a mean or
average cancer risk level of 7 X 10"4, or
7 cancers per 1 million exposed
population. Risk levels this high can be
considered significant, but EPA notes
that some 96S of the scenarios
evaluated had risk levels lower than
this. Additionally, the storage scenarios
evaluated here concerned all used oils,
while specification fuel is a special
subset of used oil because, by regulatory
definition, it must contain low
concentrations of several toxic
contaminants. We expect that
specification fuel .because it will often
be produced by treatment or blending.
will typically contain solvent levels far
below 1000 ppm; in fact, it is likely that
specification fuel will often contain less
than 100 ppm of any solvent31 Used oil
containing such low levels of, sol vents
would pose risks about one order of
magnitude lower than the levels
discussed above, /.a. the risk of cancer
would generally be less than 1 per 1
million exposed population. Such low .'
risk levels do not appear to warrant
additional controls, and we are
therefore proposing no specification*
levels for individual solvents.
In summary, we are proposing no
changes to the specification and no
additional requirements for the
management of specification fuel
because we do not see the need for
additional controls. Comments on this
proposed policy are requested.
b. Conditions for the exemption.
Persons producing specification fuel
** Id, We a*»c*aed risks posed by used oil •
containing three common de-greasing solvents:
tetrachloroelbenc; l.l.l-trichloro«thane; and
tricMoroelhene.
*' For example, see the report Competition and
Managemtnt of Und Oil Cenetated in the US. EPA.
November 1984. p. 5-15. Concentrations for vuiou*
constituents are pro}ccted for used oil blended at a
10X ratio wilh virgin fuel ott. The avenge
concentration of tetraehloroetbene~here it 121 ppnc
and BO* of the protected cam would containao
more than 170 ppra of that solvent '
would be, under today's proposal,
subject to § 266.40{b)(l). The fuel
producer would have to document
through analysis that the oil meets the
specifications, and that it is used as fuel.
To document the latter point, the person
would have to keep records of the name
and address of the receiving facility, the
quantify of oil shipped, the date of
• "shipment, and a cross-reference to the .
oil analyses performed. These
requirements are carried forward from
the final Phase I burning rule. [They are
currently in 5 26G.43(b)(6); today's
proposal would move the requirements
to S 266.40(b)(l).]
Documentation that the fuel in fact
meets the specification would normally
entail analysis. Sampling and analytical
procedures are part of a facility's
permitting requirements discussed in
later sections of this preamble.3* Of
particular relevance here, the person
producing specification fuel would have
to have a plan at his facility specifying.
the sampling and analysis procedures to
be used in documenting that the oil
meeto the specification. Records of
sales, use, or shipment would have to be
kept at the facility as well. Of course,
EPA reserves the right to inspect
facilities producing specification fuel, to
take samples of the oil, and if necessary,
to check to ensure that the product
produced is actually being burned or is
entering the commercial fuel oil
market3*
c. Diesel crankcase oil: As a final
point concerning the production of '
specification fuel, EPA requests
comment on whether it is necessary to
require a different kind of
documentation (or any documentation at
all) than described above for those
generators that blend used diesel
crankcase oil with diesel fuel for use in
their own vehicles. The data available
to EPA (Table 2) suggest that used diesel
engine crankcase oils are quite low in
contaiminants as-generated. Given our
limited data base, commenters are
invited to submit additional data to
confirm or refute this conclusion.
TABLE 2..CONCENTRATiONS OF.TOXIC METALS
IN USED DIESEL ENGINE CRANKCASE OILS
** An atated above, recycled oil remaina subject
to Part Z86. SubpartE. in Iti entirety until f 288.40(0)
ia fully complied with. In particular. 128&43(b).
discussed below, include* certain aampling and .
analysis requirement* for penona producing
specification fuel
u The burden for determining and documenting
that certain recycled oil ihould be exempt aa
specification fuel falls on the person claiming the.
exemption. When recycled oil is burned, sent off-
site, or otherwise managed, it ia subject to
regulation under Part 288. Subpart E. absent
documentation as discussed above. This proposal
would incorporate the analysis requirements into
the general analytical requirements for used oil
recycling facilities of proposed f 288.43(b).
Metal
CUdfTrfrllil ii.miiii-i.
Qtaymislam
I.--HI
NUfflbBf Of
simple*
Ana.
lynd
5
S
5
S
Con-
taVTsinvN
detect-
ed
1
3
5
4
Concentration nnge
(ppm)
Low
<5J)
<0.5
OS
-------
Federal Register / Vol. 50. Wo. 230 / Friday. November 29. 1983 / Proposed Rules 49221
recycle oilse meet Hie criteria of
i 266£0{b) and therefore are presently
^exempt from regulation:
• Residues (bottoms) from distillation -
re-refining; or
• Air pollution control residue from
fabric filters (is, baghouse daft) where
used oil is burned M a fueL
EPA in currently studying (be practice of
incorporating these materials into
asphalt Preliminary results indicate mat
the recycled oils described here
substitute for virgin materials m asphalt
production (i.e., they add desired ' '
properties to the paving material) and
that at least the bottoms are typically
purchased by asphalt producer* at
prices near those of their nonwaste
("virgin") counterparts.8* Therefore, we
conclude that the incorporation of these
materials into asphalt is a legitimate
recycling practice and not merely a
disposal method for the residues.
EPA is currently assessing the
environmental hazards that may be
associated with these asphalt products
to determine what kinds of centrals, if •
•ay. may be accessary." Eventually,
EPA might establish.standards
pertaining to amounts of recycled oil
that could be in asphalt paving material
(e.g., a fiMMcimiim percentage), or we
might require some form of leaching test
• (similar to the Extraction Procedure in
40 CFR 281.21 and Part 261, Appendix n)
ara demonstration that no adverse
effects are likely. For example, we might
exempt asphalt of which the residues
constitute less than 3% (by weight or
volume}—-this appears to represent
current industry practice—while the use
of asphalt containing greater than mis
amount might be regulated as land
disposal or subject to some type of leach
testing. Under today's rule, however, the
person producing the asphalt product
(and Claiming the exemption) would
only have to maintain adequate
documentation that the recycled oil is
being treated so that it is an inseparable
part of the asphalt product** [See 50 FR
•• Both materials diseased hort are tnidue*
bom beating used oil*. As discussed in the Federal
Register notice that accompanies Ibis one (the
luting proposal), residues derived bom oted oili an
conriderad need oil*. And at discussed above in
this preamble, used oil* (not mixed with hazardous
waste) that are recycled are recycled oil*.
•T See the draft report by Research Triangle
Institute. Uted Oil Recycling Evaluation:
Incorporation of Residue* intoAtphalt and
Atphalt-Coalainiag Product*, iuae 1885, pages 24-
29.
•• Id. Samples of the recycled oils are being
analyzed to measure concentrations of hazardous
constituents (40 CFR Part 281. Appendix VIII)
present, and how those concentrations compare to
the virgin materials they replace. Extraction tasting
for toxic metals is also being conducted.
•• The person incorporating the bottoms or
baghouse dust into the asphalt would be subject to
646-7; January 4,1985, for a discussion
of these terms. Most asphalt products,
we expect would qualify for the
exemption.]
Comments and information are
requested on the hazards and need for
controls for asphalt products ffl?ntn"ii"g
recycled oils. As a final point on mis
subject, we have been unable to identify
• any other recycled oils that meet the
S 266-20(b) criterion for exemption.
Therefore, when other recycled oils
besides the residues and asphalt
mixtures described above are placed on
the ground, the product would be
subject to regulation (discussed below).
Comments are requested on whether
any other recycled oils meet the
S 266.20(b) criterion discussed above,
and that therefore should be included in
the proposed f 266.40{a)(2)(ii).
D. Overview of Standards and "Burden
of Proof" Issues
Sections n, m, and IV of this Part of
the preamble explain the requirements
for generators, transporters, and owners
and operators of facilities that manage
recycled oil. In general:
• A person who generates or
accumulates up to 1000 kilograms per
month would be subject to 5 268.40(e)
but to no other requirements in the
Subpart;
• A person who generates (in a
month) or accumulates over 1000
kilograms of recycled oil would be
subject to S 266.41;
• A person who initiates an off-site
shipment would be subject to
§ 286.41(d);
• A person who transports recycled
oil would be subject to 1266.42:
• An owner or operator of a facility
that recycles or stores recycled oil
would be subject to S 286.43;
• A person who bums recycled oil
would be subject to § 266.44; and
• A person who applies or places
recycled oil (or a product containing
recycled oil) on the ground would be
subject to i 266.23.
As explained above and in the next
sections of the preamble, certain
recycled oils are exempt from regulation
and persons who otherwise fit into a
regulatory category may be exempt from
some generally applicable
requirements.40 The person claiming
such an exemption is responsible for
providing.documentation that the
exemption applies, otherwise. EPA
presumes toe rules apply. This is
consistent with the § 26L2(f) provisions
for recycled hazardous waste and
merely re-states a well-established legal
principle. [See 50 FR 642-643, January 4,
1965, for a full discussion of the
principle and cases where the principle
was apheld.]
E. Authorization to Manage Recycled
Oil
As with any hazardous waste,
recycled oil must be managed at an
"authorized" facility.41 We are using
"authorized" as a term of convenience
to include any of the following [see
proposed S 268.40f.eH3)]:
• A facility permitted to manage
hazardous waste tinder Part 270,
Subpart A-E;4* or
• A facility permitted to manage
hazardous waste by a State with an
EPA-approved hazardous waste
program;** or
. • A facility meeting the special
permit-by-rale requirements proposed
today for used oil recycling facilities
(see proposed § 270.60(d)); or
• A facility in interim status, as
defined by Section 3005(e) of RCRA and
the requirements of Part 270. Subpart
G.44
F. Definitions and General Provisions
Terms used in proposed Part 266,
Subpart E have the same meanings as
provided in 1260.10 and § S 261.1-261.3
of the hazardous waste rules. Also, the
requirements of Part 260 pertaining to
availability and confidentiality of
information, use of number and gender,
references, and rulemaking petitions
apply throughout Part 266, Subpart E.
[See proposed S 266.40(e).]
§ 266.43 of today's proposal, die standards for used
oil recycling facilities, discussed later in this
preamble.
40 A person Bay also fail into more than one
regulatory category, fa mis ease, the person is
subject to more than one set of requirements.
«* As explained in Section LB. above.
specification fuel and asphalt containing certain
recycled oil residues are exempt under
12B6.40(a)(2). provided that the conditions of
i M6.40(b) are complied with. No authorization is
necessary to manage recycled oil exempted under
these provisions.
*« The reader should note mat a facility that has
already been permitted under Part 270. Subparts A-
E can only manage a newly-listed hazardous waste
through a permit modification under II 124.5 and
270.41.
"See 40 CFR Part 271 (and Section I of Part Three
of this preamble) coiu^ming EPA approval of Stele
hazardous waste programs.
"An interim status facility may only accept a
newly-listed hazardous waste under the provisic c
Of 1270.72. p*rt»l"i"B *° changes during interim
status.*
-------
Federal 'Regfete* 7 Vol. 50, No. 230 / Friday, November 29, 1985 / Proposed RluTes'
H. Standards for Generators of Recycled
A "generator" i§ ". . . any person, by
site, whose act or process produces
hazardous waste ... or whose act first
causes a hazardous waste to become
subject to regulation." [See { 280.10.] In
the case of used oil, generators include:
• Service stations, auto repair shops, *
and other establishments that service
vehicles or that accept oil from ("do-it-
yourselfer") households;
• Maintenance garages that service
vehicle fleets;
• Mine and construction operators
where vehicles are serviced in the field:
and
• Industrial facilities such as
metalworking shops, steel mills, eta.
that use oils to cut, grind, or work with
metal or that remove spent hydraulic
fluids or greases from machinery. ,
These are generators olncyded-oil
when they recycle the used oil
^ themselves, or accumulate it for
* shipment to an off-site recycler.
Section 3014(c)[2)(A) requires EPA to
regulate generators of recycled oil
". . . as may be necessary to protect
human health and the environment." In
promulgating these regulations, EPA is
directed to take into account the effects
of regulations on:
• Environmentally acceptable types
of used oil recycling; ' ••
• Small quantity generators; and
• Generators which are small •
businesses.4* «.
The requirements proposed today were
developed using as a starting point the
general standards for hazardous waste
generators issued under Section 3002 of
RCRA. Those requirements were,
however, modified to take into account
the spedal Section 3014 mandate. A .
major similarity between the approach
proposed today and the approach used
by EPA to regulate other generators of
hazardous waste is to distinguish
between the classes of generators by the
amount of waste they generate. The
discussion that follows first centers on
"small quantity recycled oil generators"
subject to special, limited standards and
then on other (large) generators of
recycled oil, who would be subject to
more extensive requirements.
A. Small Quantity Recycled Oil
Generators'
EPA is proposing a limited set of
requirements for generators of up to
1000 kilograms (about 300 gallons) of
recycled oil per month.4' [See the
proposed § 266.40(c).] The requirements
would include:4T
• A prohibition on road oiling;
• Standards pertaining to installation
of storage tanks; and
• A provision that states that if more
than 1000 kilograms is accumulated, the
generator moves into the next
"generator" category for regulatory
purposes.
Generators in the less than 1000
kilogram category are termed "small
quantity recycled oil generators."
The remainder of this section explains
the requirements that would apply; the
proposal that a separate small quantity
limit be established for recycled oil; the
rationale for the 1000 kilogram limit and
the proposed policy under which
recycled oil from these generators would
be subject to more extensive regulation
when collected.
[For the reader's convenience, the
discussion below notes similarities and
differences between 55 286.40(c) and
281.5. The reader should not confuse the
9 266.40(c) regulatory category with -
§ 281.5, which includes special
requirements for hazardous waste
generated by "small quantity
generators." The two regulatory
categories are similar in that the
generators in each category are subject
to only minimal requirements; but there
are important differences, including
different quantity cut-offs and the
regulatory status of waste once it leaves
the generator's site.]
1. Requirements.** Generators of no
more than 1000 kilograms per month of
recycled oil would be exempt from full
regulation under the proposed Part 286,
Subpart E, provided that the generator
either sends the oil off-site for recycling
or recycles it himself under the
following requirements:
• a. On-site management: (1) Road
oiling is prohibited. Section 3004(1) of
RCRA prohibits the use of hazardous
waste as a dust suppressant [See 50 FR-
28718; July 15,1985.] No exemption is
provided for small quantity generators;
the prohibition would become effective
the day the final rule listing used oil as a
hazardous waste becomes effective.
(2) Proper installation of tank
systems. EPA is incorporating into these
«* Section 3014(c)(2){B) contain* specific
direction! on how ofT-sife shipment* are to be
regulated. This It dticuued below.
«• Used oil accepted from households ("do-it-
yourselfer" oil) would be counted in this
determination.
41 Eventually, requirements for cm-site burning
may also be promulgated, but as discussed below
this issue is to be addressed in the Ruse n burning
and blending proposal later this year.
«• The requirements discussed here are proposed
in i 200.40(c). The requirements are very similar, but
not identical to the requirements of 1281.5 (f) and
(g) for small quantity generators of hazardous
waste.
regulations, under the authority of
section 3014, tank installation
requirements similar to those required
by section 9003(g) or RCRA, the latter
termed the "interim prohibition."
Section 9003(g) prohibits any person •
from installing an "underground storage
tank" [as that term ic defined in section
S001(l)] unless the tank and connected
piping satisfy certain requirements,
including that they prevent releases due
to corrosion or structural failure for the
operational life of the tank and that the
lining or construction of the tank and
piping be compatible with the substance
being stored.4*
Congress established this interim
prohibition as the minimum requirement
for underground petroleum tanks
installed after May 7.1985 until EPA can
develop standards as mandated by
section 9003(e) of RCRA. EPA believes
that since the provisions of Subtitle I
apply to "petroleum" (see section
9001(2) of RCRA) and used oil is a
subset of petroleum. Congress intended
for the provisions of Subtitle I (including
the interim prohibition] to apply to used
oil to provide a baseline level of control
for used oil storage. Where the specific
recycled oil provisions of section 3014
result in regulations more stringent than
provided by Subtitle I, we presume that
Congress intended for the-more stringent
requirements to apply.
EPA is proposing tank installation
requirements that amount to a modified
version of the Subtitle I interim
prohibition in the small quantity
generator provisions of today's rule for
two reasons. First, since the interim
prohibition is a minimum standard
already required by Subtitle I, its
inclusion in this rule puts used oil
generators on notice of already
applicable requirements. [This purpose
i» less important with respect to other
parties subject to today's proposal
because they generally would face
requirements more stringent than the
interim prohibition.. As stated above, in
such a case the more stringent
requirement applies.] Second, EPA
believes that the tank installation
requirements proposed today provide a
level of control that reflects the section
3014 mandate to protect human health
and the environment considering the
impacts of regulation on recycled oil
generators.
Finally, the reader should note that
the tank installation requirements we
« Section 8003(g) does provide a limited
exception for the corrosion protection requirements
for tanks installed at site* where soil resistivity is
12.000 ohm-era or more. (These requirements ore
codified in 40.0-1* 280.1 and 2802. See SO FR 28*34-
33; July 15.1984.1
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Federal Register / Vol. SO, No. 230 / Friday. November 29, 1985 / Proposed'Rules
49223
are proposing today for small quantity
recycled oil generators, although based
in substance on the interim prohibition,
would apply Co a broader range of tanks
than would be the case under section
9003(g). The broader applicability of
today's proposal is brought about
because instead of using the term -
"underground storage tank" to define
coverage of the provision [defined in
section 9001(1) and § 280.1], we have
proposed to use the broader, term "tank
system." •• .
We intend for § 286.40(c)(l)(iv) to apply
to all jtank systems, ie., "above-ground,"
"inground," and "underground." [Id.)
EPA believes this broader coverage,
corresponding to the scope of Subtitle C,
is called for by Section 3014. That is,
Section 3O14 directs EPA to regulate the
hazards associated with recycled oil,
and recycled oil is stored in all types of
tanks.91
Comments are requested on EPA's
proposed approach for regulating small
quantity recycled oil generators' tanks,
described above. As a final note on the
subject, as EPA develops controls for
underground storage tanks under
Subtitle I, we will consider whether
additional controls should be applied to
small quantity recycled oil generators'
(3) Accumulation of over 1000
kilograms. If at any time a generator
accumulates over 1000 kilograms of
recycled oil. he would be subject to the
more extensive generator requirements
discussed later in this.section of the
preamble." The reader should note,
however, that recycled oil that is mixed
with nonhazardous waste would
continue-to be subject to the limited
requirements discussed here even if the
1000 kilogram limit is exceeded (as long
as the recycled oil portion of the mixture
does not exceed 1000 kilograms).*' [See
M As proposed on June 28.1085. a "tank system"
if comprised of • Unk(t) «nd ill ancUliary
equipment (e«_ pipes, valves) [See SO FR 20(55].
The section 8001(1) definition of "underground
storage Unk" also includes andlliary equipment
such u pipe*, bat only applies when 10* or mom of
the system is beneath ground surface.
»«The leader should also note that Subtitle 1
includes certain special exemptions (sections
9008(d) and (e)] for residential/farm motor fuel
tanks and heating oil tanks. These exemptions an
not relevant for Subtitle C and we have not
proposed any such exemptions today for recycled
oil. Although we are today proposing to regulate
certain recycled oil tanks, described above, that are
not presently regulated under the section 9003(g)
interim prohibition, we note that the extent of
regulation {in most cases some form of corrasion
protection) would cause insignificant cost impacts.
typically in die range of $200 per affected generator.
(See the EPA report Ettimotad Cost* of Compliance
with Proponed RCRA Regulation* for Htuantmu
Watte Storage. Treatment, and Accumulation Tank
Focilitiet (March 1985). for a cost estimate of
corrosion protection.)
"A similar provision applies to hazardous waste
•mall quantity generators. See I 281.5(f).
the proposed § 266.40(c)(3).] The
-rationale here is that the limits proposed
are meant to apply to recycled oil and
the mixing of recycled oil with non-
hazardous waste does not change the
quantity of, or the hazard associated
with, recycled oil involved.94
(4) On-site burning. The reader will
note that EPA has reserved a paragraph
in proposed § 286.40(c)(l) for controls on
on-site burning. For the most part, this
burning involves use of used oil space
heaters by service stations or blending
of diesel crankcase oU into vehicles'
diesel fuel. The former case has been
• addressed on an interim basis under the
final Phase I burning and blending rule
[See Part Three, Section IV of the final
Phase I preamble.] As we said in that
final rule, we will re-visit the need for
controls on these units in the Phase n
burning rules. [Id.] Any requirements for
space heaters would eventually be
codified in § 286.40(c)(l). At a minimum.
we intend to ensure that space heater
flue gases are properly vented. The case
of diesel blending was discussed in an
earlier section of this preamble
pertaining to specification fuel. As
described in that section, the data
available to EPA indicate that this kind
of blending produces specification fuel.
and we are considering what type of
documentation if any should be
required. Comments are requested on
what documentation, if any, should
apply to small quantity recycled oil
generators who blend diesel crankcase
oil into their own diesel-fueled vehicles.
b. Shipments off-site: Small quantity
recycled oil generators would be
allowed to send recycled oil off-site for
recycling without any formal tracking or
recordkeeping requirements.*' [The
reader should note that, as is discussed
later in this Section and then below in
Section HL'E. 2., transporters who
collect-from small quantity recycled oil
. generators must keep records of pick-
ups and must ensure delivery to an
authorized used oil recycling facility.)
2. The separate small quantity limit
for recycled oil. Under today's proposal,
recycled oil would have its own "small
quantity" limit of 1000 kilograms per
month; that is, recycled oil counting
against the recycled oil limit would not
• also count against the 5 261.S limit for
*• A similar provision applies to hazsrdous waste
•mall quantity generators. See 12ftl-5(h).
•• As described above, a mixture of used oil and
'hazardous waste is not recycled oil and would not
be subject to the requirements discussed here. Such
a mixture would be subject to regulation as
hazardous waste. [See proposed|{ 281^(j)(2)(!i].
281.8(a)[2)(iu), and 26&40(d).}
" We have not proposed any time limit to
accompany the 1000 kilogram accumulation limit. A
time limit seems unnecessary since used oil is
typically picked-up frequently by collectors. H Jt.
Rep. No. 08-186.06th Cong. 1st Sess.. at 67 (1983).)
hazardous waste."'" Therefore, under
our proposed-fipproach, a generator
could be subject to the "small quantity"
provisions o£bdth 40 CFR 261.5 and
266.40(c), or subject to one of the
provisions but not the other one. EPA
believes this approach offers the
following benefits:
(1) Impacts on small quantity
generators and generators who are small
businesses would be reduced. Without
the separate small quantity generator
limits for recycled oil and other
hazardous wastes, a generator of, for
example, small amounts of spent
hazardous solvents could have to
manage his solvents under the 40 CFR
Part 262 standards for hazardous waste
generators because of the recycled oil he
•generates. This seems inappropriate
because, as discussed in this Federal
Register notice, EPA is proposing to
regulate recycled oil under a special set
of Part 266 standards, not the general
hazardous waste standards. It also
would have the effect of subjecting
.perhaps tens of thousands of generators
of recycled oil $o the hazardous waste
rules (for the spall quantities of other
hazardous waste they generate). As
described'throughout this section of the
preamble, EPA is attempting to minimize
the adverse impacts of regulation on
small quantity generators and
generators who are small businesses.
(2) Segregation of wastes would be
encouraged, and this facilitates
recycling. The separate small quantity
limits should provide an incentive for
generators to segregate used oil from
other hazardous wastes they generate
because, as described above, mixtures
of used oil and hazardous waste would
be subject to full regulation as a
hazardous waste, not the special
"recycled oil" standards.5'Segregation
.of used oil away from other hazardous
waste facilitates used oil recycling. In
particular, when used oil is
contaminated with chlorinated solvents.
the resulting mixture:
• Has a reduced BTU content and
correspondingly reduced fuel value; and
" Congress envisaged the possibility of such an
approach, as evidenced by the legislative history oi
Section 3014.
•' See proposed !i 261.8(a)(2)(lii). 1281.5(c) and
1261.5{j)(2)(i). where recycled oil is exempted from
counting towards the | 281J quantity limit for
determining "small quantity generator" status under
the hazardous waste rules.
••Thai it. e generator who segregates his hazardous
waste from his used oil might remain a small
quantity generator under i 281.5. while a -generator
who mixes wastes would thereby lose his small
quantity generator status and become subject to the
Part 282 hazardous waste generator standards for
the entire mixture. (See proposed ! 261.5(j)|2}.]
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49224
FederalRegister /Vol.50,Na230/FMday;Ngveinber 29. 1985 / Proposeogules
• Is difficult to reuse at a lubricant
because the lolvent reduces viacoaity
(Le» "thins" the oil)."
(3) The separate small quantity limits
proposed today would encourage
environmentally acceptable types of
recycling of used oils vs. disposal This
is one of the factors EPA is directed to
consider in regulating recycled oil
generators. Used oil, when disposed of,-"
would count against the § 281.5 limit
•long with a generator's other
hazardous waste. [See proposed
12B1.5(j)(l).] A generator who recycles
his used oil, therefore, would be eligible
for the special, reduced requirements for
small quantity recycled oil generators
while one who disposes of his oil would
be subject to the Fart 282 hazardous
waste generator standards. (For
example, a generator of 500 kilograms of
used oil who sends the oil to land
disposal would exceed the J 281.5(a)
limit and would therefore become
subject to Part 282; however, if that
generator recycled the oil. he would be
covered only by proposed § 268.40(c).]
* EPA requests comment on the
separate small quantity limit approach
described above. Do the separate limits
causa undue confusion that might negate
the benefits identified?
3. Selection of 1000 kilogram as the
limit. EPA has proposed a 1000 kilogram
monthly generation limit «° to define a
"small quantity recycled oil generator."
[See the proposed i 288.40{c).] As Table
3 illustrates, this limit would bring the
majority of the recycled oil generated
* within today's proposed regulatory
system, while most generators would be
small quantity recycled oil generators
and thus exempt from the more
burdensome elements of that system.
Before deciding to propose the 1000
kilogram limit EPA considered limits
that would be both more and less
stringent EPA requests comment on the
range of options discussed below:
a. 10O kilogram limit: EPA considered
a small quantity limit of 100 kilograms.
/.ft, the same limit proposed on August
1,1885 for hazardous waste in general.
[50 FR 31278.] This would establish
regulatory control over the great
majority of the used oil generated
starting at the site of generation [see
Table 3]. As noted above, however,
Section 3014 of RCRA specifically
directs EPA to consider the impact of its
regulations on small quantity
"He-refiners must remove the "light ends"
(solvent* and olhtr low boiling point materials)
during proctiilng. reducing the yield of the
lubricant production operation,
** As described above, the monthly gessntioe
limit would be accompanied by i total
accumulation limit of 1000 kilogram*.
generators, and small businesses, and
on environmentally acceptable means of
recycling. Under a 100 kilogram limit at
least 274.000 generators would be
subject to regulation. EPA is concerned
not only with the unwieldy size of this
universe, but also with the potential
impacts of regulation on the small
establishments within the universe. The
great majority of used oil generators are
small businesses,61, operated in large
part by individuals without the technical
knowledge or financial resources
necessary to operate a waste
management facility of day'
sophistication. Also, since these
establishments do not generate large
amounts of recycled oil. regulatory
requirements can impose
disproportionate costs, i.e., high costs
per gallon. The Agency's main concern
with these small establishments is to
ensure: (1) That they collect the used oil
generated at their sites for recycling and
not let it drain into sewers or otherwise
dispose of it; and (2). that they continue
to accept household-generated used oil.
TABLE 3.—NUMBER OF USED OH. GENERATORS AND QUANTITIES OF USED Ou. GENERATED
ANNUALLY
-
Wb>M>l
MonJnrtBM* .. ... __
Totsl
M~iJ»*— rt*
TnW ,,, .,.
V
NuntMrpf
•fjtnW*sJr»
mams
3S8.000
295,000
833.000
4S8
488
844
<100
258£OO
121,000
379X100
225
242
48,7
»• »— wp... i- itwiwroO pw
monoi)
100-1,000
•78.100
150,000
228.100
84
300
'• 3M
> 1,000
24.300
24,000
48.300
350
184
514
Sounx Theea estknstn «w» dactoad treat the draft report. CtaadMxtfvr of MuttM Und Ot Grant/em by Franklm
. 1694), end tie nwiaamJum from Tempt*. Bwfeir. end Stoena (AuguM 8, 1884) «ttsd "Nun-
da not taOaif 1ST n«ion gdans ot wad ol depoBud at eacA yew by "(to-S^cureaBsr oi ehangen.
2. AddMoraty. en eeaii'mlid 2.« netat (erne
eoma 44 mMtofi geaane ot '^OR-MuMiW
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Federal Raster / Vol. 50. No. 230 / Friday November 29. 1985 / Proposed Rules
49225
generators are presently paid only 10-40
cents per gallon for their used oil, costs
this high would make used oil more of a
burden than a recyclable resource. It is
difficult to quantitatively assess how
generators would respond to regulatory
costs this high, but our studies show the
following to be probable outcomes:
• Price increases in oil-change'
services offered to the public. These
price increases (we estimate an increase
of 10 percent) could lead to an increase
in "do-it-yourselfer" oil changes of
approximately 12 million gallons per
year (an increase of 4 percent);
• A reluctance of service stations and
auto repair shops to accept "do-it-
yourselfer"-generated used oil; and
• Increased sewage disposal by.
generators in areas without strict local
requirements or sewer discharges.
These are the sorts of outcomes that
concerned Congress when it was
considering the issue of recycled oil -
regulation. See. for example, HJt Rep.
No. 98-196,96th Cong. 1st Seas., at 66
(1983):
Many used oil generators, such as service
stations, will be reluctant to collect and
recycle used oil if it means incurring
excessive regulatory responsibilities. Any
regulatory scheme for generators
should ... be structured to avoid mis
result .. ..
For-these reasons. EPA sees a clear
need to establish a small quantity limit
higher man 100 kilograms. A higher limit
would minimize the impacts of
regulation on the smallest
establishments in the generator
universe, and most importantly, would
reduce adverse impacts on
environmentally acceptable types of •
used oil recycling.
b. 2000 kilogram limit: EPA
considered a limit for small quantity
recycled oil generators as high as 2000
kilograms per month (about 600 gallons).
We believe a limit this high would
exempt from full regulation most, if not
all, of the automotive-related
establishments. However, we are
concerned that a limit this high would
not be adequately protective. The same
legislative history as cited above
concerning the need to minimize impacts
on generators goes on to say that EPA's
regulations should:
. . . encourage .. . generators to send used
oil to facilities having permits. {And to] ...
regulate generators in a way that discourages
unacceptable nsed oil recycling practices.
such as unsafe storage, or potentially
hazardous burning or land application. [Id.]
oil storage areas under EPA'« Spill Prevention
Control and Countenneaiure rules at 40 CFR Part
112.
•« As explained below, oil from imall quantity
As Table 3 shows, even with a limit of
1000 kilograms, some 336 million gallons
of used oil per year (nearly hah7 of the
oil in question) would be only minimally
controlled at generators sites. Under a
2000 kilogram Emit, probably all of the
488 million gallons of "non-industrial"
(i.e., automotive] oil and a large portion
of the 456 million gallons of used
industrial oils generated each year
would be only minimally regulated at '
generators' cites. In essence, this would
.be virtually equivalent to not having
generator regulations. In previous
rulemakings concerning (i 201.5) small
quantity generators of hazardous waste,
EPA has only .considered exempting
generators of up to 1000 kilograms per
month; [see the discussions at 43 FR
58969-58971, December 18,1978,' and at
45 FR 33102-33105, May 18,1980], and
EPA sees no indication that Congress
envisaged an exemption for generators
of even larger quantities of recycled oil.
c. JOOO kilogram limit: EPA has
proposed a 1000 kilogram Emit (about
300 gallons) to define small quantity
recycled oil generators. This would
subject approximately 484300 generators
to the regulations discussed later in this
section. Some 514 million gallons (about
55% of the total generated each year, not
counting household-generated oil) would
be subject to Part 286. Subpart E,
starting at the site of generation.*4
Under a 1000 kilogram limit the vast
majority of small establishments such as
family farms, service stations, auto
repair shops, and small industrial
faculties would be subject to the very
limited set of requirements discussed
above. Generators of over 1000
kilograms are auto dealerships,
establishments that offer "quick-lube"
services to the public or that service
large vehicle fleets, and industrial
facilities like steel mills and automotive
„ assembly plants. The establishments in
the over 1000 kilogram group can be, but
certainly are not always small
businesses (e.g., steel and auto plants
usually are not). For many of the
establishments ("quick-lube" services),
lubricant-management (purchase, sale,
etc.) is a central part of the operation. In
these respects the large generators are
unlike small auto shops and service
stations (who are almost always small
businesses and for whom lubricant
management is only a peripheral aspect
of the;r operations), and we believe the
former are in a better position to absorb
regulatory costs."
EPA has determined that the 1000
kilogram limit strikes the best balance
between protectiveness and economic
impact concerns, as mandated by
Section 3014rComments are requested
on the range of options presented.
Comments are also requested on
whether the limit should be expressed in •
gallons (/.a, 1000 kilograms is about 300
gallons of used oil). Would this simplify
compliance for generators?
4. Regulation when collected. EPA is
proposing that when recycled oil from
small quantity recycled oil generators is
collected for shipment to an off-site
facility, the oil would then become
subject to Part 266, Subpart E in its
entirety. This is different than the
approach in 40 CFR 261.5 for hazardous
waste from small quantity generators,
where waste is exempt through
subsequent management What follows
is first the rationale for this proposed
departure from previous EPA policy
regarding "small quantity" hazardous
waste, and then an explanation of how
collectors who service small quantity
recycled oil generators would be
affected by today's proposal
a. Rationale: The reasoning behind
today's proposal is based on the
quantities of waste involved; the
composition and management practices
of used oil vs. other hazardous wastes:
and the Congressional intent in passing
Section 3014. These points are discussed
here.
(1) A significant amount of used oil is
generated in quantities less than 100
kilograms per month (kg/mo). Table 4
contrasts the generation pattern for used
oil and other hazardous wastes.
Table 4.-GENERATTON OF USED Oil. VS. OTHER HAZARDOUS WASTES BY GENERATOR CATEGORY
tin tKMnm* ol ton* pw y«*3
Watt»typa
Hazardou* «ast« cm* than utad oil —
<100
340
ISO
100-1000
1,440
780
>1000
1.827
264.000
Totals
3.707
264.940
3. atoov.. tea*** eow«t«« to torn at 7.5 as p» oaHon o!
wteua Mt»-TI» pn*e*m at SO FS 31285; AuBWt 1, IMS.
••<'oo fcc/mo"
recycled oil generator* would alto be regulated
under today'i proposal when collected for
reclamation or other recycling.
" The requirement*'that would apply to large
recycled oil generators are discussed in the next
•ection. below.
-------
49226
'As Table 4 shows, for uaed oil,
generators of less than 100 kilograms per
month (kg/mo) account for 9%, and
generators of 100-1000 kg/mo for 3995. of
the total generated each year. In
contrast, for other hazardous waste,
generators of less than 100 and 100-1000
kg/mo, respectively, account for only
0.07 and 0.3 percent of the total
generated. The significant difference
ctween used oil small quantity
generators as contrasted to hazardous
waste small quantify generators is also
evident in terms of the absolute volumes
generated by the two groups. For
example, used oil generators of less than
100 kg/mo generate 340.000 tons per
year, or 88% more waste, than their
hazardous waste counterparts (who only
generate 180,000 tons per year].
(2) "Small quantity-generated" used
oil is similar to "large quantity" used oil
in composition and management
practices. Used oil from the less than
100 kg/mo generators is primarily used
automotive oils, and can be expected to
contain the same hazardous constituents
Jat the same levels) as found in any used
automotive oil."Moreover. much of this
small quantity-generated oil is
potentially available for off-site
recycling, such as fuel use. If EPA were
to exempt from regulation used oil .
generated in quantities less than 100 kg/
mo. tens of millions of gallons of
contaminated ua'ed oil could be recycled
each year in unsound ways, such as
being sold as residential heating oil [If
this oil was exempt from regulation, it
would not be subject to the fuel '
specification promulgated itfthe final •
Phase I rule. See Table 1. above, for the
specification. So therefore it could be
contaminated with toxic constituents.]
We believe it is quite conceivable that
tons or even hundreds of thousands of
people could be exposed to elevated
levels of toxic air pollutants if used oil
generated in quantities less than 100 kg/
mo was exempt from regulation.1*"
' (3) Congress provided for recycled oil
**Se«r the EPA report. Compotitioa and
Management of Vied Oil Centratedia the KS.
November 1964. p. 3-33. for competition of ui«d
automotive oils.
"Evm it only one-half of all the used oil from
geiuraton of leu than 100 kg/mo enters tin
commercial fuel oil market (through «n exemption
by EPA similar to { 281.5). Le, about 45 million
gallon* per year, thla ls enoughrfuef forc6oui«ro .
midenttal boiler*. (This la assuming that oo
average,a residential boiler consumes 5 gallona of
oil per hour, for 2190 hour* per year, and the used
oil U burned without blending. In practice, we
believe the used oil would be diluted with virgin
fuel oi' at ratios ranging from 2/1 to 9/1. ao thu
actual Dumber of boiler* potentially affected could
range
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Federal Register / Vol. 50, No. 230 / Friday, November 29, 1985 / Proposed Rules
43227
c. On-site reclamation: EPA hat
proposed no standards for reclamation
of used oil by generators. [On-site
reclamation may precede reuse of used
oil as a lubricant, reuse as a fuel, or
shipment off-site.] Note that EPA does
not presently regulate the actual
reclamation of any hazardous waste,
although facilities that only reclaim
(without storage) are subject to RCRA
Section 3010(a) notification
requirements and. for offcite facilities,
to the 51 265.71.265.72, and 265.76
manifest requirements. [See
S 261.6(c)(2), and 50 FR 652; January 4.
1885.] EPA. however, would tend to
view any claimed "reclamatioa" of used
oil in a surface impoundment to be
storage or even disposal, subject to
regulation as described below. [Id,
footnote 44;". . . impoundments are
rarely considered to be an integral part
of the... recycling process. . ."] This
policy would not. however, apply to
recovery of oil from oily wastewater
containing only de minimus amounts of
oil. because such wastewater would be
exempt from regulation under proposed
S 261.3(a)(2)(iv)(F). As explained above,
a person recovering oil from this exempt
wastewater is considered, by the act of
recovery itself, a generator of used oil
[If the generator then subsequently
further reclaims the recovered oil, he
would then be subject to the policy
proposed above.]
d. On-site storage: EPA is proposing
special standards for generators who
accumulate (store) for a relatively short
time under certain conditions.
Generators who meet these conditions
would not be subject to the storage
facility regulations (discussed in a later
section of this preamble) for used oil
recycling facilities. A generator who
fails to meet any of these conditions
would be regulated as a used oil
recycling facility under the proposed
S 266.43 standards.*4- ™ [See the
proposed § 266.41(c), introductory text]
Each condition is discussed next [See
S 266.41(c) (1) through (6) of the proposal
for the conditions.]
(1) Storage must be in a tank or
container. Recycled oil, because its
value is decreased when contaminated
by water or dirt, is nearly always stored
in a tank or container. Storage in a
surface impoundment poses inherently
greater risks than tank or container
storage, and the greater risks call for full
regulation, not reduced standards.
(2) Accumulation time must not
exceed 90 days. The 00 day time limit
was adopted from the hazardous waste
regulations. [See § 262J4(a).
introductory text] EPA presently has no
information indicating that generators of
recycled oil need a longer period of time
to arrange for recycling of their oil"
Comments are requested on this point
Is the proposed 90 day limit adequate
for recycled oil generators? Are mere
circumstances where a longer time
period is needed17 to facilitate proper
recycling?
(3) Containers and tanks must be
labeled. EPA is proposing that
containers or tanks used to accumulate
or store recycled oil be labeled with the
term "RECYCLED OIL" to clearly
identify the generator's storage area. A
similar provision applies to hazardous
waste generators under 126&34(a)(3).
(4) Container standards. EPA is
proposing most of the same
requirements for recycled oil stored in
containers that apply to generators of
hazardous waste under § 262.34 (which
references Part 265, Subpart I):
* Containers must be m^intflin^d in
good condition; and if a container leaks,
the contents must be removed and
transferred to a good container (or
managed in some other way, according
to the proposed § 266.41 rules);
• Containers holding recycled oil-
must be kept closed, except when it is
necessary to add or remove oil;
• Containers must not be handled in a
way that would cause leaks, spills, or
ruptures;
• The generator must conduct a
weekly inspection of the storage area to
spot signs of leakage or corrosion; and
• Ignitable recycled oil (Le.. recycled
oil with a flashpoint below 140* F) must
be kept at least 50 feet away from the
property line.**
" Hazardous wutc generator* an regulated in •
•imiUr fashion. See the S 262J4 "80 day
accumulator" rule. The rule* propoied for recycled
oil generator* were developed uiing S 262.34 a* a
•Urting point: certain modification* are propoied
pursuant to the (pedal Section 3014 mandate
diicuued above.
'• A generator who conduct* on-lite recycling.
luch as burning or reclamation, i* atill eligible for
lhe«e special storage requirement*.
- "The vast majority of recycled oQ generator!
•ither (tore in drum* or in tank* let* than BOO
gallon* in capacity. [See the report. Watte OH
Storage by Franklin Associates, Ltd., January 1984.
pp. 2-3.) Since the generator* subject to the
requirement* discussed here generate over 1,000
kilogram* (300 gallon*) per month, it seems
apparent that on-iite storage is typically much lei*
than 90 day*.
"Under 128Z34(b} of the hazardous waste
regulation*, the EPA Regional Administrator may
grant an additional 30 day* for "unforeseen.
temporary, and uncontrollable circumstances." If
EPA receive* information indicating that a time
period longer than 90 days i* appropriate for
recycled oil, we would likely specify the alternate
time period in the rule itself (rather than having a
provision for case-by-ca*e extensions) by the
Regional Administrator.
"On June S. 1984, EPA proposed to use portions
of the NFPA code as a more flexible "buffer zone"
EPA. is not proposing that § § 265.172 end
265.177 of the Hazardous waste rules
apply to recycled oil. These sections
deal with hazards related to
compatibility of wastes and materials,
and co-management of incompatible
wastes. Used oil is compatible with
virtually any material so these controls
are not relevant1* EPA has also not
proposed a date marking requirement (to
document compliance with the 90 day
time limit) for recycled oil containers as
is required for hazardous waste
generators under f 262.34(a)(2).
Elsewhere in today's proposal, we
discuss certain recordkeeping
requirements for generators. Basically,
generators would have to record the
date of each off-site shipment of
recycled oil. Since we are attempting to
minimi** the administrative burdens of
today's proposed recycled oil generator
rules, and since most generators (i.e.,
those who ship off-site) would be
subject to this other recordkeeping
requirement, we see no need to
additionally require a date-marking
requirement EPA solicits comments on
its proposal to not include the above
requirements as part of the generator
requirements.
(5) In order to meet the statutory
mandate to effectively regulate recycled
oil while minimizing adverse impacts on
generators, EPA is proposing a tiered
approach for recycled oil tank systems.
[See the proposed S 266.41(c)(5).] First
all tanks would be subject to the Part
265, Subpart I standards that apply to
hazardous waste generators under
S 26Z34(a)(l). These requirements
include:
• A "freeboard" or overflow
protection requirement for open-top
tanks;
• A requirement that continuous-feed
tanks be equipped with a shut-off or by-
pass system;
• Inspection requirements for
drainage, cut-off, and by-pass systems
(daily), for monitoring equipment (if any,
daily), for the visible portions of the
tank (daily) and the area around the
tank (weekly) to detect signs of leakage
or corrosion;
• Buffer zone requirements for when
ignitable (flashpoint below 140 • F) oil is
stored, from the NFPA code; and
-'• Requirements to remove and
property manage oil, residues, and
requirement (See 49 FR 23290.1 We are considering
comment* received. If we do adopt the more flexible
approach, it would of course apply to used oil as
will as other jgnitable wastes.
"If incompatible or reactive hazardous waste
was stored at a generator's site along with used oil.
such waste would of course remain subject to
ii 265.172 and 285.177.
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49228 Federal-Register / VoL 50. No. 230-/-fiaday. November 29. 1985 / Proposed Rulea
contaminated equipment when the tank
is dosed.
These standards have been
established through previous
rulemaklngs as necessary for tank
storage to protect human health and the
environment. [See 46 FR 2802-2896,
January 12,1881.] With respect to
today's proposal, there are two points
requiring some discussion and
clarification. First* the proposed
requirements would apply to recycled
oil "tank systems." This term is broader
than "tank" in that it includes a tank's
ancillary equipment (e.g, valves, pipes,
etc.). [See 50 FR 28455; June.28.1985.]
Second, the Inspection requirement*
[proposed i 288.41{c)(5)(iii) (D) and (E)]
would apply only to abova-groiwd
portions of tank systems. [The current
hazardous waste rules do not make this
explicitly clear (§ 285.194), but we have
indicated that inspections of
underground tanks are not expected.
[See 48 FR 2832; January 12,1981, and 50
FR 28487; June 28,1985.] This is
particularly relevant to the present
'discussion since most recycled oil
generators store in underground
taius.*^ These very basic requirements
would impose costs less than $1,000 per
yi.«r for all affected generators and .
would J*u*e advene impacts on small
businesses or on used oU recycling."
Comments are requested on these
proposed requirements.
Beyond the requirements described * ''
above, EPA is proposing additional
requirements for new tank systems (£A.
tank systems installed after the
regulations become effective) pertaining
to secondary containment systems and
closure and post-closure requirements.
Also. EPA Is proposing special
requirement* for tank systems that are.
found to be leaking or otherwise unfit
for use. The additional requirements
described here are being proposed as
part of the Agency's program to improve
Jts hazardous waste storage regulations.
On June 28,1985 EPA proposed
revisions and additions to the hazardous •
waste tank requirements of § 282£4{a),
Part 264, Part 285, and the corresponding
. .
Office of Solid Wafts. November IMS. Chapter V.
" Ibid. Moit generator! with underground Unki
would Incur virtually no cot ta under this proposal.
Con! of the proposed requirement! fbrgenonton
with above ground tank* would be in the range of 25
centi per gallon of used oil generated and stored.
The reader may note that above. EPA concluded
Out costs in tha range of SlflOO-SZOOO per year for
•tnall quantity recycled oU generator* would be
associated with advene impacta on used oil
recycling. However, tha reader ia reminded that for
the small quantity recycled oil generator* coeta of
SljpCO-ttOOO per year can mean cot la, of SZ.40 to
SUO per gallon of used oil generated and atond.
and these higher coiU per gallon are what concern
£PA (with respect to recycling impacta].
permit requirements of Part 270. [See 50
FR 28444.] As described in the June 26
proposal, EPA has determined that hi
certain respects, the current tank
standards are incomplete and
unworkable. [Ibid, at 28447.] The rinding
was made by EPA that additional
regulations are needed to adequately
. control hazardous waste tank storage.
particularly hazards to ground water.
pd.] For the reasons set forth in the June
28 preamble, EPA proposed new
requirements for generators and owners
and operators storing hazardous waste
in tanks. EPA considered proposing all -
of these same requirements for recycled
oil tank systems. We are not proposing
all of the new requirements for recycled
oil generators,** however, because
pursuant to the section 3014(c) directive
to consider impacts, we have found that
the new requirements would adversely .
affect recycled oil generators who are
small businesses and could discourage
environmentally acceptable types of
used oil recycling.** We estimate that
the new tank system requirements, if
applied in toto, could impose annuitized
costs for generators of about $1.200-
$3,600 per year. For a generator of. for
example, 1100 kilograms per month
(about 3600 gallons, per year), this would
mean cost* as high as $1.00 per gallon of
used oil generated and stored. EPA is .
concerned that costs this high, if
imposed throughout the recycled oil
generator universe, could induce the
following kinds of advene impacts:
• Increased disposal of used oil hi
sewage systems;
• Reluctance by generators to accept
"do-it-younelfer" (household-generated)
used oil; and
0 A price increase in oil-changes
services offered to the public (and a
corresponding increase in do-it-
yourselfer oil changes).
EPA is therefore proposing a gradual,
phased approach, that reduces impacts
on small businesses and on recycling by
requiring stringent controls on tank
systems when they are installed (/.ft,
"new" tanks) and by requiring leaking
tanks to be closed, repaired, or replaced.
with the latter two actions triggering the
new tank requirements.*4
"That is, for those generators who meet tha
proposed 128S.41(c) conditions. For example, if •
generator atons longer than SO days, he would not
be eligible for the special requirement* being
discuued here but rather would be regulated ea •
used oil recycling facility.
"Unless otherwise noted, the discussion here ia
from the Regulatory Impact* Aaalyti*. US EPA.
Office of Solid Wait*. November 1965, Chapter V.
MAI*o. aa described in the preceding section of
the preamble, we are proposing only minimal
requirement* for generators of less than 1000
Since we estimate only about 10% of
generaton* tank systems are presently
leaking **. most generaton would not be
immediately affected by the new,
additional requirements proposed here.
All generaton would, of course, be
affected eventually as they replace old
tanks. •
(a) Standards for new tank systems.
EPA is proposing that new tank systems
(i.e., tanks installed after these rules are
in effect) would have to comply with
basically all of the same standards as
would hazardous waste generaton
under the proposed i 26Z34(a), aa it
would be amended per the June 26
proposal [See 50 FR 26456.] The new
requirements pertain to secondary
containment, closure, and post-closure
of tank systems. We have "reserved"
paragraphs in the proposed
S 266.41(c)(5)(vii) of the recycled oil rule
for the new tank standards. For the
reader's convenience we are presenting
the proposed requirements here in
Figures 1 and 2.
Figure I—Proposed Requirements for New
Tank Systran
Paragraphs (b) and (c) bom the proposed
1285.103. secondary containment; [See 50 FR
28485-88; June 28,1885.)
(b) Pull secondary-containment systems
must be:
(1) Designed, installed, and operated to
prevent any migration of wastes or
accumulated liquid out of the system to the
sail or ground water or to surface water at
any time during the intended life of the took
system; and
12) capable of detecting and collecting any
waste or leak and accumulated liquids until
tha collected material can be removed.
(c) To meet the requirements of paragraph
(b] of this section secondary-containment
systems must be a minimum:
(1) Constructed of or line with materials
that ore compatible with tha wate(s) to b*
placed in the tank system and must have*
sufficient strength and thickness to prevent
failure owing to pressure gradients (including
static head and external hydrological forces),
physical contact with the waste to which it is
exposed, climatic conditions, the stress of
installation, and the stress of daily operation
(including stresses from nearby vehicular
traffic);
(2) Placed on a foundation or base capable
of providing-support to the secondary-
containment system and resistance to
pressure gradients above and below the
system owing to settlement, compression or
uplift;
kilograms per month of recycled oil; i*. we ere
regulating larger generaton more stringently than
smaller once.
" See the Regulatory Impact* Analyiit. EPA
Qffic* of Solid Watii. November 1965, p. IV-iB.
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Federal Register'/ Vol. £6. No. 230 / Friday, November'29. !lba5 / Proposed'Rules'
49229
(3) Provided with a leak-detection system
that i» designed or operated so that it will
detect the presence of any release of
Hazardous waste or accumulated liquid in the
secondary-containment system within 24
noun of entry of the liquid into the
containment system; •
(4) Sloped or otherwiee designed or
operated to drain and remove liquids
resulting from leaks, spills, or'precipitation.
Spilled or leaked waste and accoumulated
precipitation must be removed from the
secondary-containment system in as timely a
manner as is possible but no later than 24
hours after the detection of the release;
(5) Designed or uprated to contain 110
percent of the design capaicty of the largest
tank within its boundary;
(6) Designed or operated to prevent run-on
or infiltration of precipitation into the
secondary-containment system unless the
collection system has sufficient excess
capacity in addition to that required in
paragraph (c)(5) of this section to contain run-
on or infiltration. Such additional capacity
must be sufficient to contain precipitation
from * 25 year. 24 hour rain storm.
Figure a—Proposed Requirements for Maw .
Tank Systems
Paragraphs (a) and (b) from the proposed
i 285.187. closure and post-closure care. [See
50 Fit 28483-84. and 26487: June 28.1985.]
(a) At closure of a tank system, the owner
or operator must remove or decontaminate all
hazardous waste residues, contaminated
containment system components (liners, etc.).
contaminated soil, and structures and
equipment contaminated with waste, and
manage them •* hazardous waste unless '
128l.3(d) of this chapter applies.
(b) If, after removing or decontaminating "
all residues and making all reasonable efforts
to effect removal or decontamination or
contaminated components, soils, structures.
and equipment as required in paragraph (a)
of this secion. the owner or operator finds . •
that not all contaminated soils can be
practicably removed or decontaminated, he
must close the tank system and perform post-
closure care in accordance with the closure
and post-closure care requirements mat
apply to landfills (S 264.310).
The rationale for these proposed
requirements is discussed fully in the
June 28 proposal [See 50 FR 26456 and
26462-82.} We estimate the requirements
in Figures 1 and 2 would impose average
annualized costs of approximately
$1200-3600 per year for a generator
installing a new tank.** Although this
"See the Regulatory Impact Analytit Rule*. EPA
Office of Solid Watte. November 1885. Chapter VA.
This include* the cost of secondary containment
phu. for above-ground tank*, the inspection
requirement* proposed above lor all recycled oO
Unk tyttemi. The reader should also note that
tinder today's proposal the closure requirement* for
new tank systems would be expanded ai per the
June 26 proposal. (SO FR 20483-44.] We do not
diKuu thi* part of the proposal in depth because it
mainly is a conforming change made necenary by
the propoied secondary containment requirement*
•nd because the cost impact* are insignificant; /.fl-
an estimated SSZ at closure for residue removal. (Id.]
would mean costs in the range of $0.35-
$1.00 per gallon, of used oil we do not
think that today's proposal would cause .
significant adverse impacts on
generators, based on the following
rationale:
• • Of the 48,000 generators potentially
subject to the requirements (i.e.,
generators over 1000 kilograms per
month), we expect that about 41,000
would incur annualized costs less than
$1600 per year, that is, less than $0.45
per gallon, and costs this high are not
likely to cause adverse impacts;
• The 7000 or so generators that
would potentially incur larger costs {/.a,
up to $3600 per year) are industrial
operations, and given their overall cost
structures these operations would not be
adversely affected by. costs in this
range;*7 and
• Because the requirements would be
phased-in, generators would have, in
most cases, years to set aside funds for
new tank installation. . '
The last point is of particular
importance. The proposed secondary
containment requirements would require
fairly large initial expenditures (e.gM
about five times greater than the
annualized costs presented above). Most
recycled oil generators are small
businesses and could have difficulty
obtaining financing. Phasing-in the
requirements not only minimizes .
impacts on the generator universe as a •
whole (and therefore on the nationwide
"flow" of used oil) by spreading-out the
impacts over time, but also would allow
each generator to make financing
arrangements suitable to his own cash
flow situation. . . •
. The June 26 proposal also discussed
certain alternatives to secondary
containment that the Agency has
considered, but did not propose. [See 50
FR 26451-53 for a full discussion of these
alternatives.] These include:
• A combination of secondary
containment and ground-water
monitoring;
• National risk-based standards;
• Minimum national standards with a
variance from containment requirements
based upon risk; . .
« Minimum performance standards;
• A ban on underground tanks; and
• Forced retirement of underground
tanks.
The public may comment on these
requirements as they would apply to
recycled oil generators as alternatives to
Figures 1 and 2. Also, with respect to
•standards for new underground tank
systems, EPA considered (in lieu of
today's proposal) application of the
"interim, prohibition" from section
9003(g) of RCRA. As described in the
previous sectionx>f this preamble, this
requirements, which amounts to
corrosion protection, is the
Congressionally-mandated minimum
level of control for underground tank
systems (storing petroleum and other
hazardous substances) and as the
reader will note, we have proposed a
modified version of the interim
prohibition for small quantity recycled
oil generators." The Agency has
concluded, however, that for hazardous
waste tank systems corrosion protection
alone is not as protective as full
secondary containment. [See 50 FR
26450; June 28,1985.] Since, as we
discussed above, EPA intends to require
secondary containment for other
hazardous waste tank systems under
Subtitle C and since the proposal to
phase-in secondary containment
requirements for recycled oil generators
would not cause significant adverse
impacts, we do not see a basis for
proposing less stringent requirements for
recycled oil tank systems within the
framework of section 3014(c).
Comments regarding the adequacy
(i.e., protectiveness) and costs of all of
the options discussed above for new
•tank systems are requested.
(b) Standards for leaking tank
systems. For the reasons described
above (f.e^ adverse impacts), EPA has
not proposed secondary containment
requirements for all recycled oil
generators. Therefore, even under
today's proposal some tank systems will
- fail and leak. EPA has proposed that
(see § 266.41(c](5)(vi) of the proposal) as
soon as a generator is aware that his
tank system is leaking (or otherwise
unfit-for-use), he must take the following
actions: •*
• Stop die Sow of oil into the tank;
• Remove the oil from the tank (to
prevent continued release and allow
inspection);
• Contain visible contamination; and
• Report the event to the Regional
Administrator within 24 hours after
discovering or confirming the release.
Tanks taken out of service as described
here would either have to be closed
(with the removal of contaminated soil
or equipment), repaired, or replaced.
"Ibid. Chapter FV-C. and D.
"Further,** we explained above, the lection
B003(g) interim prohibition currently applie* to all
underground petroleum tank*, including used oil
tank*. (See 40 CFR 280.1 and 280.2.] Thii
requirement will remain in effect until the rule*
proposed today, when promulgated in final form.
become effective.
"These requirements are taken from the
proposed new 1205.192, proposed on June 26, (50 FR
20485) for hazardou* waste tank syitem*.
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Federal Register / VoL 50. No, 230/Friday.November' 29, 1985 / Proposed Rules
When a tank i« repaired or replaced, we
would consider it a "new" tank, subject
to the standards'proposed above
(Figures 1 and 2}. EPA views this latter
aspect of the proposal (/.e., tanks
returned to service being considered as
"new" tanks) to be a crucial aspect of
the proposal to phase-in secondary
containment for recycled oil generators.
In this way, tank systems posing the . -
greatest hazards (i.e., those that are
leaking) would be replaced with tank
systems that are not likely to pose any
significant hazards, and therefore the
hazards posed by the national universe
of generators' tanks would be reduced
overall."
We do not expect the proposal (for
replacement tanks to comply with
secondary containment) to cause
significant adverse impacts for the
following reasons:
• We estimate that nationwide, only
about 1055 of the used oil tanks are
presently leaking, so therefore most of
the recycled oil generator universe
would not be immediately affected by
the proposal;
• Of the approximately 4500
generators thought to have leaking
tanks, we estimate over 3500 would
incur initial costs less than $8,000. and
, annuallzed costs less than $1600 per
yean and
• Generators with leaking tanks
would have the option of closing the
tank system and storing the oil in some
other way, for example in containers.
Finally, the reader may note that we
have not at this time proposed any leak
detection requirements for recycled oil
generator*. That is, the proposed
requirements for leaking tanks have no
"trigger" mechanism. EPA considered
requiring a one-time "assessment and
certification" provision for recycled oil
generators* tank systems similar to the
requirements proposed on Jans 28.1885
for hazardous waste interim, status
facilities. [See 50 FR 28484-85, and
' proposed § 265.191.] This would include.
among other >Mng«, leak testing for the
underground portions of a tank system.
[Id.] We have not proposed this
requirement because we are still
evaluating various leak detection
schemes for petroleum materials, both in
terms of their effectiveness and (as ''
required by Section 3014{c) for recycled
oil) their cost impacts.*1 At this time, the
**Stg the neguhterf trapixt* Anafytft. US EPA .
Office of Send Waste. November 1MB, Chapter V-B.
and the BuUisiutmd Document ht (he- R1A.
November IOCS, Chapter IV, for the diicnulon of '
thft ciivIioiutrcntBl benefits sulxJpatcu uiiuei
today's proposed Xeng* rote*.
"Under today'* proposal. Stile Or local agencies
comld conduct teak letting il genera lor»*«het or
ocrfd specify test method! within their anu of
Agency does wish to specifically solicit
public comment on the following
suggestions made to EPA pursuant to
the June 26,1985 proposal for hazardous
waste tank systems:*1
• Observation weDs (installed in the
backfill material] for both new and
existing tank systems;
• Inventory monitoring.
On the latter point EPA has indicated
that we believe inventory monitoring is,
for several reasons, inaccurate and
largely ineffective. [50 FR 26448-49; June
28,1985.] With respect to recycled oil
we are also concerned that inventory
monitoring would impose time-
consuming and costly administrative
burdens on generators [i.e-., small
amounts of used oil an constantly
added to storage tanks, changing the oil
level with each addition). We continue
to believe inventory monitoring holds
little promise for controlling hazardous
wastes tanks, including used oil tanks.
We welcome, however, any new
information on this point
Observation wells, by contrast may
be more effective. EPA is interested in
the extent to which wells are presently
employed for used oil tanks, the costs of
installation (particularly for retro-
fitting), any technical difficulties
experienced with wells, and sensitivity
of wells as a leak detection mechanism.
Comments are requested on observation
wells and other leak detection schemes.
EPA will continue its evaluation through
the public comment period and we may.
at some later date, propose leak
detection requirements to accompany
the rest of today's proposal
(6) Standards for facility management
EPA is proposing that generators most
comply with the following requirements
pertaining to facility management [see
proposed f 268.41(c)[6)]:
• The eslabUshment would have to
have on-sito B telephone, an appropriate
number and type* of fire extinguishers,
and spill control material (such as saw
dust);
• At all times, an "emergency
coordinator," (E.C.). i.o., someone
familiar with mess requirements, must
be on-site (or on call). The E.C. can.also
designate someone to act m his place;
• The generator must request an
inspection by the local fire department
to make sure the department personnel
furiidlctitm. te any cue, when as • tactual matter •
Ink is detected, the propowd requirements for
Uakfag tank systems Iprepomii I ZflBAUcMSMvTfl
would the* coeat in to play.
" Another sugjiMted approach was to sequin
only cottoiion protection [i*. tht "Interim
prohibition") lot new tank systems in lien of
Mccndny conlainawaL We dianmud thia iaaut at
com length above and so here focua only on
tuggestions concerning leak detection.
know where oil is stored; that the
appropriate type and number of
extinguishers are present etc;
• The generator must post certain
information next to the telephone.
including: the name and phone number
of the E.C.; location of fire extinguishers
and spill control material; and the phone
number of the fire department
• The generator (or the E.C.) would
have to respond to any emergencies that
arise. In the case where an emergency
was serious enough to warrant a visit by
the fire department or where oil reaches
surface water or adjoining shoreline the
generator would have to file a report
with the EPA Regional Administrator;
and
• The generator must ensure that his
employees are familiar with these
requirements*
EPA has determined mat the above
requirements would ensure sound
facility management (or "good
housekeeping"), without adversely
affecting generators. The reader should
make note of certain points concerning
these proposed requirements. First
absorbent materials «oaked with used
oil (e.g., such as machine drippings) and
used oil spill clean-up materials would
both, via the "mixture" policies
discussed above in section LA£. of this
Part Of the preamble, be subject to
RCRA regulation.*1 When such materials
are disposed of. they an subject to full
regulation as hazardous waste under
Parts 281-265.124, end 27D.«* When
recycled, die material would be
considered recycled oil. subject to aD
applicable requirements proposed today
(and if burned for energy recovery, to
the final Phase I burning rale). Second.
when generators train their personnel
regarding the recycled oil requirements
proposed today [proposed
§ 266.41(c)(6)(vi)J, tha Agency would
also expect that employees be made
aware (or reminded) of EPA's Chemical
Advisory on the potential hazards
associated with prolonged skin contact
with used motor oil"
•A generator who uaea absorbent materiali to
cleanup tpiUi or •achlne drippiagt would not dm
to that activitr. loee etigibUtty for the special
reduced requirement* for "BO day" recycled oil
generator*(U, toepropoead i 2B«.«(c)J.
••Note that in the Biting proposal that appnn
elsewhere in tSrft Federal Reglsier. we propone aa
exemption far oerteis ™ufly wipera.
•EPA found that mice dennally exposed to used
motor oil exhibited a significantly increased
incidence of cancer. EPA recommend* that to
prevent cancer. penom»l working with
automobiles should regularly wash with soap sod
water and avoid unnecessary prolonged contact
with used motor ott. See the Noticf of Potential
Riik U^d Motor O»7 [Chemical Advisory, issued .
under the Toxic Substance* Control Act}. February
last.
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Federal Register / Vol. 50, No. 230 / Friday, November 29, 1985 / Proposed Rules
49231
The reader may note that generator!
of hazardous wastes, under S 26&34(a).
must comply with certain requirements
from Part 265 pertaining to general
facility management. These include Part
265, Subpart C (preparedness and
prevention) and Subpart D (emergency
procedures), and 8 265.16 (personnel
training).
These requirements are intended to
ensure that the generator's personnel
are properly prepared to manage waste
and respond to any emergencies that are
likely to arise. EPA considered applying
these same requirements in toto to
generators of recycled oil, but we are
concerned that these requirements are;
(1) Written in a manner designed to
cover the multitude of hazards that may
arise at any kind of generator site {i.e.,
not specific to recycled oil); and (2) that
the requirements are costly (about $1000
per facility) and, when considered along
with the proposed storage requirements
(above), could have adverse impacts on
small businesses and sound recycling
practices. Because of these concerns, we
have developed a simpler set of
•requirements that we believe will be
adequately protective and yet that
would also be less costly and better-
suited to die small business nature of
most recycled oil generators.**
Comments are requested on today's
proposal
C Shipments off-site. Section 266.41(d)
of today's proposal would establish
certain requirements for used oil sent
off-site for recycling.*1- "These
requirements are based on the existing
standards for hazardous waste
generators in 40 CFR Part 262, taking
into account the special requirements of
RCRA Section 3O14(c} (2) and (3) for
recycled oil generators.
"The reader should sole thai oa August 1,1085
EPA proposed standards for generators of between
100-1000 kilogram* of hazardous waote per month.
as required by MCtion aOOl(d) of RCRA. (SO FR
31278.} As explained in the proposal these
hazardous waste generators an predominantly
small businesses. The requirements proposed for
-theie generator* take into account (mall business
impact concern*. (Ibid at 31283-86.] Today'*
proposal for recycled oil generator*, a* described
above, take* into account limilar concern*, and ,
therefore the Btandard* propowd today for recycled
oil generator* are similar to the standard* proposed
for the 100-1000 kg/mo hazardous waste generators.
"A* mentioned above, owner* and operator* of
nsed oil recycling facilities would also have to
comply with this paragraph when sending
shipments off-site, for example when one processor
sends oil to another processor, or when a fuel is
shipped to a burner. For simplicity, ths rest of this
discussion refers only to generators.
"The reader should note that thi* paragraph
would not apply to the marketing of the recycled
oils (specification fuel and certain asphalt products)
conditionally exempted under the proposed i 266.40
(a)(2) and (b).
(1) Pre-transport requirements.
Today's proposal would require that
-recycled oil generators comply with .
certain requirements for packaging
(§ 262.30), labeling [I 262.31), marking
(§ 262.32). and placarding (§ 262.33) that
apply to hazardous waste generators
under 40 CFR Part 262. [See 1286.41(d)
(1) of today's proposal.] These
requirements reference standards of the
U.S. Department of Transportation in 49
CFR Parts 172,173, and 178. Further,
under the proposal generators could
only offer their recycled oil to
transporters with EPA identification
numbers. (See the proposed § 266.41(b).
which references § 282.12 of the
hazardous waste rules pertaining to
"identification numbers."] This is to help
establish a line of accountability for
shipments sent off-site, i.e., to initiate a
tracking system.
(2) Manifest exemption for recycled
oil. Under 40 CFR Part 282, generators of
hazardous waste must initiate a
hazardous waste manifest, which begins
the "cradle to grave" tracking system of
Subtitle C. Congress, however,
mandated a different approach for
tracking recycled oil in section
3014(c)(2)(B). This section of the Act
provides that EPA must not impose
manifest requirements if a generator
meets the following conditions.
• He must make arrangements to
have the used oil collected and recycled
at a permitted facility (either his own
facility or a facility he contracts with).
including those facilities deemed to have
a permit under section 3014(d) of RCRA;
• He does not "»*• other hazardous
waste in with the recycled oil; and
* He complies with whatever
recordkeeping requirements j
promulgated by EPA in lieu of the
manifest requirements.
EPA has proposed these conditions in
S 266.41(d)(2)(i).*»
"EPA has not included the "no mixing" condition
in i 2B6.41(d)(2)(i). A* discussed in detail above.
Part 266. Subpart E applied only to recycled oil. By
definition, recycled oil ha* not been mixed with any
other hazardous watte. Therefore, a similar
provision in i 266.41 would be redundant. Abo. we
consider interim status facilities to be within the
scope of "permitted" facilities in the first condition
because section 3005{e)[l){C) of RCRA states that
EPA should treat theie fadliriea a* having been
blued a permit (until action i* taken regarding their
permit application). See proposed i 280.40
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49232 Federal Register/Vol. SO. No. 230 / Friday, November 29, 1985 / Proposed Rules
A generator who meets the above
conditions iwhas the option of
complying either with the Fart 262
manifest requirements, or the special
alternate requirements described
here.181 (See the proposed
(3) Shipping without a manifest
(a) Required notices. Before a
generator starts sending used oil to a
recycler, he must obtain from the
rccycler a one-time written notice .
certifying that his facility is authorized
to manage recycled oiL The generator
would have to keep records of notices
received from each recycler for at least
three years from the time he last sends a
shipment to the recycler. These
requirements are necessary to ensure
that the recycled oil, in the absence of
the manifest, is being sent to an
authorized facility. [See proposed
5 286.40(e)(3) for the types of
"authorized" facilities.]
(b) Designated facilities. The proposal
[§ 286.41(d)(ii)(B)J would require that
when a generator offers a shipment of
, recycled oil to a transporter, the
generator would have to provide the
transporter with a list of the names,
addresses, and EPA identification
numbers of those facilities who have
provided notices to the generator (see
above). In practice, transporters
collecting from multiple generators are
often associated with (or owned by) a
recycler, so the "designated facility" is
obvious. In other cases, however, an
understanding between the generator
and the transporter as to the receiving •
facility is a crucial part of the regulatory
approach today. That is, to be exempt
from the manifest under this proposal, a
contractual relationship must exist to
provide for recycling at an authorized
facility, so one or more specific facilities
must be designated by the generator as
eligible to receive the generator's
recycled olL
• (c) Records of shipments. Today's
proposal would require that generators
record the following (for example on a
log) each time recycled oil is offered for
off-site shipment:
• The name, address, and EPA
identification number of the transporter
accepting the oil;
• The quantity of recycled oil being
shipped; and
•"A generator who falli to meet any of the
conditions must comply with the manifest
requirement! of 40 CFR Part 282 in its entirety.
•"EPA ii propoilng thii optional approach
because tome generators may actually prefer to us»
the National Uniform Hazardous Waste Manifest
or may be required by a State to.use-lhe manifest In
cither c*ie. wo do not believe a generator should
cave to comply with bath the manifest and the rules
propoied here. The manifest alone if adequate.
• The date of shipment
The generator would have to retain
these records for a minimum of three
years from the date of shipment [See
the proposed § 286.41(d)(2)(ii)(C).]
This recordkeeping requirement
together with the corresponding
requirements for transporters and
receiving facilities (discussed in later
sections of this preamble), would
establish a line of accountability from
the generator through to the receiving
facility. The records required by today's
proposal would include virtually all of
the information required on a hazardous
waste manifest by 40 CFR 262.21. The
approach proposed here is different than
the Part 262 manifest requirements in
that no document need travel with the
shipment and the receiving facility need
not send a copy of the manifest back to
the generator (as required under 40 CFR
264.71 and 264.42 of the hazardous
waste rules), e.g., there is no "return
loop." The recordkeeping requirements
proposed here, together with the
condition that a recycling agreement
exist for a generator to be eligible for the
special, reduced requirements, serves to
ensure that the generator's oil will be
delivered to an authorized facility.10*
5. Reports. EPA requires generators of
hazardous waste to file a report with the
Regional Administrator every even
numbered year, describing the types and
quantities of wastes generated, and the
transporters and faculties used for off-
site shipments, if any, during the
previous calendar year.103 [See 40 CFR
262.41, the biennial report] EPA is
proposing that recycled oil generators be
exempt from the biennial reporting
requirement Due to the section 3014(c)
mandate to consider impacts on small
businesses and on used oil recycling,
EPA has been very careful in today's
proposal to keep "paperwork" to a
minimum. The information that would
be gathered through the biennial report
can be obtained from alternate means.
[For example, in support of today's
proposal, EPA utilized surveys and
contacts with trade associations.] Since
we are able to obtain necessary-data
from alternate means, we have
concluded that burdens on generators.
should be reduced by not requiring the
IDS The reader should note that similar systems
are used in various State regulatory programs. See,
for example, the letter from Missouri dated July 30,
1984. on "waste oil logs."
">• The biennial report was originally intended to«
serve as a summary of manifests from both
generators and facilities that could be used as an
enforcement tool through'comparisons between
generator and facility reports: currently its primary
function is for data collection.
biennial report.104 Comments are
requested on this proposal to not require
the biennial report and all other aspects
of the proposed approach for regulating
generators.
ffi. Standards for Transporters of
Recycled Oil
A. Applicability
1. General. Section 266.42 of the
proposal would establish standards for
transporters of recycled oil. This section
would apply to "collectors" who
transport used oil from generators to
reclaimers, repracessors. and re-refiners,
and to persons who transport recycled
oil between reclaimers and from
reclaimers to users.10* In certain cases,
a transporter would also be subject to
the generator requirements of
§ 268.41.10* First if a transporter brings
used oil into the United States from
another country, he is the generator.
Second, if he mixes recycled oils of
different U.S. Department of
Transportation (DOT) shipping
descriptions, he would be considered a
generator.107
2. Mixture issues. Several situations
could arise where a transporter could
-have problems with mixtures. For
example, generators could add
hazardous waste into their used oil
tanks without telling the collector. As
described in Section LA. of this Part of
the preamble, a mixture of used oil and
other hazardous waste is not recycled
oil, and the generator is responsible for
initiating a manifest for the shipment10*
'" Authorized States may. of course, require
report* from generators within their own
boundaries.
">• Transporters of the recycled oils conditionally
exempted under 126o.«(b) (for example a
transporter of specification fuel) would not be
subject to 1266.42. Further, the transport of
household-generated recycled oil would not be
subject to regulation because, as explained above,.
we have propoied that such oil doea not lose its
exempt ("household") status until aggregated.
«»• Transporters who collect from small quantity
recycled oil generators would also be subject to the
transporter standards proposed here.
">' Under 49 CFR 172.101, used oil, as a petroleum
material, may either be classified as "combustible"
(flashpoint is between 100 '-200 *F) or "flammable"
(flashpoint is less than 100 *F). A transporter who is
placarded for combustible material and then
accepts low flashpoint/flacmiable oil would have to
initiate a new shipping paper under 4B CFR 172.202
and would be subject to the generator requirements
of S 266.41 as well as the transporter requirements
of I 266.42 of this proposal
">* The data available to EPA indicates that most
used oll.being stored at generators' sites is not
adulterated with hazardous waste. With respect to
the three hazardous wastes most commonly mixed
with used oil (l,l.l.-trlchloroethane.
trichloroethylene. and tetrachloroethylene), samples
taken at generator sites do not typically even
contain these constituents, and rarely are the
Continued
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Federal Register / Vol. 50, No. 230 / Friday, November 29, 1985 / Proposed Rules
48233
This problem can often be addressed by
contracts between the transporter {or
• the receiving facility) and the genera-tor
that forbid the generator from adding
hazardous waste to the used oil. The
reader should note that the "rebuttable
presumption" of mixing provision
proposed today for all used oils
(discussed above in Section I. A.4. of this
Part of the preamble) would apply to
used oil being collected. That is, a
truckload of used oil with-a total
halogen content exceeding 1000 ppm
would be deemed to be a hazardous
waste (not recycled oil) unless the
transporter could demonstrate that
mixing had not occurred.10*
Also, some transporters collect and
haul both hazardous waste and used
oils. We have not proposed any rule to
forbid this practice, but the transporter
should be aware that when a container
(vehicle) is used to hold or transport
hazardous waste, any material
subsequently placed in the container is
deemed to be a hazardous waste.110
The exception to this general rule is
when the container is cleaned
("emptied") according to 40 CFR 261.7.
This section of the regulations defines
when a container that has held
hazardous waste may be considered
"empty." and so therefore when the
mixture rule no longer applies.
3. Storage facilities. EPA is proposing
that except Tor two types of "transfer
facilities" discussed here, transporters
who store recycled oil in the course of
transportation would be regulated as a
recycled oil storage facility under the
proposed S 266.43 standards. [The
standards for storage facilities are
discussed in the next section of the
preamble.]
Transporters' transfer facilities "'
meeting the conditions discussed here
would be exempt from the facility
standards.
a. Container facilities: EPA is
proposing that storage of recycled oil at
a transfer facility in containers meeting
the U.S. Department of Transportation
constituents present in excess of 100 ppm. *
Composition and Management of Used OH
Generated in the OS. November 1964, p«gei 3-33 to
>n Transporter* may find it dnirable to conduct
periodic spot checks on generator*, using a simple
chlorine detection test EPA is currently assessing
the reliability of chlorine field tests that collectors
might use. •
""That is. the residue remaining in the container
is barardous. and any material subsequently added
is. via the "mixture rule" in 40 CFR 261.3. also a
hazardous waste, except as 1261.3 or f 281.7
provides otherwise.
111A "transfer facility" is defined in 40 CFR 260.10
as "... any transportation-related facility including
loading docks, narking areas, storage areas, and
other similar areas where shipments. . . are held.
during the normal course of transportation.''
(DOT) packaging requirements of 40
CFR Parts 173,178, and 179 would be
•exempt from the facility regulations.
This exemption is currently provided for
hazardous waste transporters. [See
§5 263.12, 264.1(g)(9), and 265.1(c)(12),
and the discussion at 45 FR 86986-68,
December 31,1980.] We see no basis to
deny recycled oil transporters this
special provision, which was instituted
to accomodate storage incidental to
normal and routine transport and
transfer activities [Id.]
b. Tank facilities: EPA is proposing
that-transfer facilities with tanks
meeting the § 265.193 secondary
containment standards proposed on
June 26,1985 [50 FR 26485-66] would
also be exempt from the facility
requirements. We have "reserved"
paragraphs in the regulation
[5{ 266.42(a)(3)(ii)(B] of the proposal] for
these secondary containment standards.
The proposal standards are presented
for the reader's convenience in Figure 1
of this preamble (above, in the
"generator" discussion). What follows
here are two points relevant to mis
proposed conditional exemption:
(1) There is presently no exemption
for tank transfer facilities in the
hazardous waste regulations. EPA
requested public comment on the need
for such an exemption on December 31.
1980 [see 45 FR 86966-68] but since no
comments were received at that time,
we concluded that the exemption was
unnecessary. EPA has determined,
however, that tank transfer facilities are
in fact the norm within the used oil
recycling industry."1 We therefore
believe an exemption is appropriate for
this portion (used oil recyclers) of the
Subtitle C regulatory universe. In the
preamble of the December 31,1980
proposal. EPA stated its intent to impose
40 CFR Part 265, Subpart} tank
standards as a condition should the tank
exemption be granted. [Ibid at 86967.]
EPA was concerned that the transfer
and short-term storage activities
conducted at transfer facilities could
pose spillage and leakage hazards and
that some requirements should apply.
[Id.] EPA continues to believe some
requirements are necessary for transfer
facilities. We considered proposing the
current Part 265, Subpart J tank
standards for recycled oil tank transfer
facilities. The Agency, however, has
determined that the existing Part 265,
Subpart J tank standards are inadequate
in several respects [50 FR 26447-48: June
26,1985], ari"d as described in the
"generator'rsection above, we have
proposed revisions to that Subpart.
[Some of the proposed revisions are
presented in Figures 1 and 2 above.] We
also considered proposing Part 265,
Subpart J as it would be amended per
the June 26 proposal for recycled oil
tank transfer facilities. We are not
proposing the revised Part 265. Subpart)
in its entirety because we believe the
secondary containment portions of the
proposed rules (Figure 1, above) would
provide adequate protection at transfer
faculties.1"
Comments are requested on applying
the Figure 1 secondary containment
standards to 'tank transfer facilities. '
Comments are also requested on
applying:
• The existing Part 265, Subpart ]
standards;
• Part 265, Subpart ] as it would be
revised per the June 26 proposal, that is,
not only the secondary containment
portions of the proposal but also the
remainder of proposed Subpart J; and
• The alternatives to secondary
containment discussed in the June 26
proposal [50 Fr 26451-531 as they would
apply to recycled oil tank transfer
facilities.
(2) The proposal would adopt the 10-
day time limit in the existing hazardous
waste exemption. As EPA explained on
December 31,1980, the 10-day limit was
selected:
... to allow short term holding of waste fo;
transfer and to account for such things as
scheduling problems, weather delays.
temporary closing and other factors which
might cause unforseen delays." (See 45 FR
The Agency determined that this time
limit was adequate and would not
interfere with normal transportation
activities. [Id.] EPA is concerned,
however, that a 10-day limit might be
unduly restrictive for some used oil
collector operations."4That is, some
'" Waste Oil Storage. Franklin Associated. Ltd..
January 1984. pp. 2-2 through 2-7. A "typical"
collector facility has one or two 5,000 gallon
aboveground tanks. This storage is short term, and
is usually associated with consolidation activities,
i.e., transfer of oil into larger vehicles. EPA has
concluded that this storage is incidental to
transportation.
'"The secondary containment requirements
(Figure 1, above) would provide a le\ e! of control
equivalent to the conditions that containers meet
certain DOT packaging requirements, in the existing
exemption [§ i 263.12.264.1(g;i9). 265.1(c)(12Jl. Thai
is, the existing exemption does not require
compliance with the Part 265. Subpart I conteinT
..atandardi, but rather provides that releases wifi tx
minimized through packaging requirements that
ensure container integrity. Secondary containment
would serve the same purpose for tank facilities.
i.e.. minimize releases through ensuring tank sys'cni
integrity. The remainder of Part 265. Subpsri J,
includes additional requirements necessary for
storage facilities, but not. in our view, necessary fo:
transfer facilities.
"'See the discussion of collector impact issues >n
the Regulatory Impacts Analysis EPA, Office of
Solid Waste. November 1985, Chaptei V.C.
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49234
Federal Register / Vol. 50, No. 230 / Friday. November 29, 1985 / Proposed Rulas
transporter/collectors may not-
accumulate enough recycled oil in 10
days for economical shipment to a
reclamation facility. EPA does not
intend for the 10-day limit to interfere
with normal transport and transfer
operations, and we are concerned that
some small collector operations could
even be forced to close due to a 10-day
limitm We therefore request comment .
on what limit would constitute normal
used oil transport practice, the extent to
which a 10-day limit would restrict
normal practice, and whether a 20 or 30-
day limit would better accommodate
normal practices.
c. General conditions: The proposal
would adopt certain restrictions or
conditions from the existing hazardous
waste exemptions for both tank and
container facilities. These include:
• The exemption would not apply to
reclamation or fuel blending facilities; "•
• Since the recycled oil held at a
transfer facility is considered in transit,
the transporter responsibilities
pertaining to discharge reporting and
clean-up would apply to any releases
* occurring at the transfer facility. [See
§ 266.42(c) of the proposal, which
. references Part 253, Subpart C of the
hazardous waste transporter rules]: and
• The time recycled oil is held at.a
transfer facility counts against the 35-
day period allotted for shipments sent
from generators to receiving facilities.
[See the proposed § 286.42(e){2).
introductory text, for the delivery limit
The 35-day limit applies to hazardous
waste transport under §§ 262.42(a) and
283.21.] . "
; These conditions were explained on
. December 31.1980 [45 FR 86906-68] for
the hazardous waste exemption, and
EPA can see no basis for modifying any
of these requirements for recycled oiL
Comments are requested on the
transfer facility exemption proposed
here and supporting rationale, and the
specific points raised above. The
'requirements for transporters are
discussed next
B. Identification Numbers
Under § 266.42(b) of today's proposal.
transporters would have to comply with
40 CFR § 263.11, pertaining to the need
for an EPA identification number. Under
this requirement transporters would
have to notify EPA and obtain an EPA
"MA
'"A facility could conduct incidental settling of
bottom sediment and water and itlll qualify for the
exemption. |ThI» type of activity ii not considered
•reclamation,"] Alio. different uied oili could of'
course be "blended." /e, placed in a single tank.
Operations that blend used oil wjthtirgin fuel oil.
however, are not within the Intended scope of the
proposed transfer facility exemption.
Identification Number. [Transporters
who already have an EPA ID number
need not re-notify.] The notification and
identification number process helps
establish a line of accountability for the
movement of used oils from generators
to recyclers, and between recyclers.
C. Discharges
Section 266.42{c) of today's proposal
would require transporters to comply
with 40 CFR Part 263, Subpart C. which
requires hazardous waste transporters
to take appropriate actions in the event
of a transportation mishap, including
notifying appropriate authorities and
cleaning-up material discharged. These
requirements are necessary to ensure
public safety as hazardous materials are
transported.
D. Manifested Shipments
Whenever a generator of recycled oil
initiates a manifest transporters would
have to (under 5 266.42(d) of the
proposal) comply with 40 CFR Part 263.
Subpart B, the hazardous waste
manifest rules. This situation could
occur because the generator failed to
meet one of the conditions in
§ 266.41(d)(2)(i) of the proposal, or even
though he may meet the conditions,
company or State policy requires the use
of the National Uniform Hazardous >
Waste Manifest In this situation, the
recycled oil transporter is functioning as
any other hazardous waste transporter
and would be regulated as such.
£ Shipments Without Manifests
As discussed above (in Section II of
this Part of the preamble). EPA has
proposed that generators who meet
certain conditions may. at their option,
comply with the special requirements of
S 288.41(d)(2)(ii) in lieu of the hazardous
waste manifest requirements. Also.
transporters may collect from small
quantity recycled oil generators under
5 266.40(c)(2), and these generators are
not subject to the manifest. In either
instance, the transporter may accept
recycled oil without a manifest and must
comply with the proposed S 266.42(e) in
lieu of Part 263, Subpart B of the
hazardous waste regulations. The
proposed S 266.42(e).requirements for
transporters would be as follows:
1. Records of acceptance. Under . '
§ 266.42(e)(l). the transporter would
have to record (for example on a log)
, certain infonnatiorrat each collection
stop, specifically:
• The name, address, and when
applicable."7The generator's EPA
identification number:
• The quantity of recycled oil
accepted;
• The shipping description required
by the U.S. DOT under 49 CFR Part 172;
and
• The date the oil is accepted.
These records would help establish a
line of accountability for the movement
of the used oil to a recycler. Also, the
shipping description provides certain
information that may be helpful in case
of a transportation accident [In nearly
all cases, the description of recycled oil
would be: "Waste Oil: NA1270"; and
either "combustible liquid" or
••flammable liquid." See 49 CFR Part 172.
If a generator does not know whether
the oil is "combustible" or "flammable,"
the transporter would be advised to
describe the oil as "flammable," (the
more stringent category) to be on the
safe side.] Finally, the transporter would
have to keep these records for at least
three years from the date of acceptance.
2. Delivery. As required'by section
3014(c)(3) of the Act EPA has proposed
in S 266.42(e)(2) that transporters must
deliver all recycled oil collected to a
facility authorized to manage recycled
oil."* Also'(under the proposed
S 266.42(e)(2)(ii)) the transporter would
have to deliver the oil to a facility
, designated by the generator. These
"designated facilities" are those which
have entered into appropriate •
agreements with the generator and who
have notified the generator [under
§ 266.41(d)(2)(ii)(B]] that they are
authorized to accept recycled oil."'
Delivery would have to occur within 35
days of acceptance, the same time limit
as required under §§ 262.42 and 263.21
for manifested shipments of hazardous
waste. The delivery time limit helps
ensure that hazardous waste arrives
promptly at the generator's intended
destination. The Agency determined
that 35 days was an adequate period of
•"Small quantity recycled oil generator* need not
obtain EPA identification numbers under today's
proposal.
'"This would include those facilities perraltted-
by-rule under the special provisions of section
3014(d) of RCRA. {See the proposed S 270.60(4) for
permit-by-rule condition! and requirements.]
Facility permitting is discussed later in thin
preamble. The reader should note that the
transporter may also deliver th» recycled oil to a
facility in interim status under section 300S(e) of
RCRA and 40 CFR 27o; Subpart G. See proposed
! 2M.40(e)(3) for die types of facilities authorized to
manage recycled oil.
"•As discussed above in section D.A.4.
collectors who accept from small quantity recycled.
oil generators would be required (in lieu of the
generator) to ensure the receiving facility ia
authorized to accept recycled oil
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Federal Register / Vol. 50. No. 230 / Friday. November 29. 1985 / Proposed Rules 4Q235
time for normal hazardous waste •
. transport, taking into account storage at
transfer facilities and any minor delays.
EPA believes that since recycled oil
collection and marketing is typically
local or regional in nature, the 35-day
limit would not interfere with normal
recycled oil transportation activities.
However, the Agency solicits comments
on the 35 day time limit: are there
circumstances where a longer time
period, e.g., 45 days, would he-necessary
to ensure efficient transportation of
recycled oil? <"
3. Records of delivery. When the
transporter delivers the oil to the
receiving facility. § 266.42(e)(3) would
require him to record the following
information:
• The name, address, and EPA ID.'
number of the facility:
« The quantity of oil delivered; and
• The delivery date.
These records would have to be
retained for 3 years from the date of
delivery by the transporter, and would
serve to provide another link in the line
of accountability for the oil as it is
recycled.
Comments are requested on all
aspects of the approach proposed for
regulating transporters. ...
IV. Standards for Owners and Operators
of Used Oil Recycling FadUties
A. Applicability and General Approach
to Regulation ' . ' ' '•
Section 266.43 of today's proposal
would apply to owners and operators of
any facility that recycles or stores
recycled oil."0 The kinds of operators
that would be subject to 8 286.43 include
reclaimers, reprocessors, re-refiners,
blenders-, and burners. Facilities subject
to any § 266.43 requirements are knowns
"used oil recycling facilities." With the
exception of those generators who
accumulate recycled oil under the
special "90-day" rule in 8 288.41(c)(2) of
today's proposal generators who store. •
accumulate, or recycle on-site would
also be subject to 8 288.43."' And. as .
discussed above, with the exception of
certain transfer facilities, transporter
storage facilities would be subject to
§ 266.43. Finally, recyclers and
reclaimers who do not store would be '
subject only to identification and notice
requirements (8 8 284.11 and 264.12): to
'"The recder to reminded tint the term "recycled
oik" •• used here does not include list exempted
from regulation. For example, ! 2B6.40(b)
conditionally exempt* specification fuel and certain
asphalt products from Siibpart E. Facilities
accepting only these recycled oils would be subject
to|2S&43.
111 Small quantity recycled oil generators who •
recycle on-site under 128o.«Ofc){l) would also not
be subject to { 286.43.
waste analysis requirements
(8 266.43(b)(lH3)); and to recordkeeping
requirements (8 266.43 (e) and (!)).
discussed below.m (See the proposed
8268.43(a](4).]
This last provision is analogous to
8 281.B(c)(2) of the hazardous waste
regulations. As discussed in the final -
solid waste rule (see 50 FR 652, January
4.1985], at present we do not regulate
the actual process of reclamation. The
proposed 8 266.43(a)(4)(ii) does make it
clear that this exemption does not apply
to facilities processing in an
impoundment Such a facility is not
exempt because as we stated on January
4,1985, surface impoundments are rarely
considered a legitimate recycling device.
(See 50 FR 652.] This is especially true in
the case of used oil. Storage in an open
impoundment allows petroleum loss
through seepage, and water and dirt
contamination. Petroleum products, for
these reasons, are not typically stored or
processed in impoundments. In
summary, the coverage of 8 266.43 is
analogous to the coverage of the
standards for hazardous waste recycling
(and storage] facilities.
Before discussing the requirements of
§ 266.43 in detail, EPA must note that as
a general policy, any facility storing,
treating, or disposing of hazardous
waste is subject to the section 3004
standards, />., the standards for
hazardous waste treatment storage, and
disposal facilities in 40 CFR Parts 264
and 285. Congress did not exempt used
oil recycling facilities from this general
requirement as they did for generators
.and transporters under section
3014(c)(l) with respect to sections
3001(d), 3002. and 3003. [In fact the
Conference Report states that". . .
facilities which recycle used oil will
need to comply fully with the standards
applicable to owners and operators of
any hazardous waste treatment storage,
and disposal facility." See HJL Conf.
Rep. No. 1133.98th Cong.. 2 Sess. at 113
(1984).]
Section 3014(d) also provides that
except for certain lands of facilities.
used oil recycling facilities that comply
with the section 3904 standards are
deemed to have a RCRA permit In other
words, these faculties would not
normally be subject to section 3005 of
the Act nor to section 7004, which
specify procedures for permitting of
hazardous waste facilities. The 5 266.43
standards, therefore, are based on
RCRA section 3004 but are intended to
be implemented through a special
permit-by-rule'procedure. discussed in
the next section of the preamble.
Section 3014(d), however, also grants
EPA the authority to permit used oil
recycling facilities individually under
section 3005(c) if EPA determines that
individual permitting ". . .isnecessary
to protect human health and the
environment." The following kinds of
facilities have been determined by EPA
to be inappropriate for the permit-by-
rule approach, and would be permitted
individually.111
• Facilities where used oil is stored or
treated in a surface impoundment or
used in a manner constituting disposal:
and
• Facilities that manage other
hazardous waste in addition to recycled
oil.
The reasons that these kinds of facilities
have been deemed not eligible for the
section 3014(d) permit-by-rule are
discussed in the "permitting" section of
the preamble, (the section after this
one). A pont that is relevant here is that
these facilities would be subject to 40
CFR Part 270 Subpart G, the
requirements for interim status
hazardous waste treatment storage, and
'disposal facilities as well as proposed
6 266.43. [See proposed
8 266.43(a)(5)(i).]"*"»
What follows is a detailed discussion
of the standard proposed for used oil
recycling facilities in 8 266.43. The
reader is referred to 45 FR 33158-33220,
May 19.1980 for an explanation of the
40 CFR Part 264 and Part 265 standards
for hazardous waste facilities, and to 48
FR 2802-2897, January 12.1981. for
certain additions to Parts 264 and 265.
As discussed above, these standards
would, in general apply to used oil
recycling facilities. However, EPA is
proposing in § 266.43 some variations to
the hazardous waste standards for used
oil recycling facilities and these
differences are discussed here.
Permitting requirements are discussed
in the next section of the preamble.]
These proposed variations would not
substantially change the level of
protection achieved, but rather are
'"The owner or operator may also he subject to
128B.«(b). If he produces one of the conditionally
exempt oils: to 1ZoMlfd). if he ships recycled oil
off-site; to 12A&23 If recycled oil issued in a
manner constituting disposal: and to 12SM4 if he
•boms recycled oil. The latter two practices are
discucaed laler in this section.
"•See 127O80(dKl) of today's proposal.
"•The reader should note that EPA does not
grant interim status. The criteria for determining
interim status eligibility are specified in RCRA
section 900S(e) and 40 CFR Part 270. Subpart G. A
facility that does not qualify for interim status and
does not have a permit is subject to enforcement
action If it continues operation. See f 270.70(b).
"•For a facility that is alraadly permitted, the
permit would have to be modified to allow
management of the newly regulated hazardous
waste (/.*, recycled oil). See 1270.41 and 124 £ for
permit modification pnicadures.
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49236
Federal
° No- 23° /Friday-November 29. 1985 / Proposed Rules
necessary to implement the special
recycled oil permitting (and tracking) .
system mandated by Section 3014.
B. Waste analysis requirements
Under 40 CFR 284.13, owners and
operators of hazardous waste facilities
must comply with a general set of
requirements to ensure that all of the
information needed for proper waste
management is available. Sampling and
analysis parameters and procedures
must be specified in a waste analysis
plan, which becomes part of the
facility's permit EPA has determined
that in the case of used oil recyders,
much of the waste analysis plan can be
specified in the rule itself. The special
analytical requirements for used oil
recyders are proposed in § 266.43(b) (!}-
(3), and would replace the 40 CFR
1264.13 requirements. Hie special
requirements are equivalent to i 284.13
in protectiveness but are more specific; _
this should simplify compliance.13*
1. Parameters. All used oil recyclers
must develop or obtain information
concerning the first two of the
parameters below, and many would
need information on the third. Only
operators of hazardous waste facilities
need be concerned with the fourth group
of parameters.
a. Halogens: As discussed in Section
LA.4. above, we are proposing that any
used oil containing in excess of 1000
ppm total halogens will be presumed to
have been mixed with hazardous waste
(and therefore is nof'recyded. oil")
unless a person successfully rebuts the
presumption. Therefore, the owner or
operator must determine the halogen
content of used oil accepted at the
facility. This does not necessarily mean
that the used oil must be sampled and
analyzed for halogens. Nonetheless, if
used oil with over 1000 ppm halogens is
accepted at the facility, the owner or
operator must either rebut the
presumption of mixing (by showing that
the used oil has not been mixed with
hazardous waste) or manage the oil as
hazardous waste (not recycled oil). If
EPA (or a State agency] samples used
oil at a facility and finds total halogens
exceeding 1000 ppm and the
presumption cannot be successfully
rebutted, the owner or operator must be
in compliance with all applicable Part
284 or 285 hazardous waste
requirements (and the Part 270 permit or
interim status requirements), not today's
proposed recycled oil standards.
Otherwise, the owner or operator is
subject to enforcement action for
violations of applicable Subtitle C
requirements.
EPA expects that some used oil
recyders will on a routine basis, accept
recycled oil that is high in total halogens
but that has not been mixed with •
hazardous waste. The most common
such cases are expected to be
processors of used chlorinated
metalworkingoils and re-refiners. In the
former case, some metalworking fluids
contain high levels of chlorinated
extreme pressure additives that are not
listed as hazardous constituents in 40
CFR Part 261, Appendix VnL These
processors, we expect, will conduct
analysis to document that hazardous
constituents are not present at
significant levels (e.g., generally less
than 100 ppm) in the used oil they
accept, and that therefore the 1000 ppm
total halogen presumption does not
apply. Re-refiners, by contrast, often
produce light end streams high in total
halogens because low boiling point
solvents are present at low levels in
incoming used oil, and distillation or
dehydration concentrates the "low '
boilers" hi the light ends. In this case, if
used oil accepted does not exceed the
1000 ppm total halogen level, the
presumption would not apply to the light
ends produced.
Finally, in either of the above cases,
the reader should note that the recently
promulgated final Phase I established a
specification for used oil fuels of 4000
ppm total halogens. [See the preamble of
the final Phase I rule. Part Two, Sections
IV.B. and IV.C.] When a recyder
establishes that the 1000 ppm
presumption does not apply, he must
nonetheless document compliance with
4000 ppm limit in order to market
(exempt) specification fuel [Id.]
b. Ignitability: Under Part 264, certain
special standards apply to ignitable
hazardous waste.1*7 [See 40 CFR 264.176,
284.198 and 264.229.] The owner or
operator must, therefore, determine if
the oil received exhibits the
characteristic of ignitability.
Alternatively, the owner or operator
could simply manage all recyded oil he
accepts as ignitable waste. In this case,
analysis to determine flashpoint may
not be necessary.
c, Fuel specification: As discussed in
Section LC. of today's proposal EPA has
proposed to carry forward the
exemption for specification fuel (Table 1
above). The owner or operator of a .
facility producing specification fuel
would have to document that in fact the
specification is met [See § 266.40(b)(l)
of today's proposal.] Therefore, analysis
of the specification parameters—
namely, arsenic, cadmium, chromium,
lead, halogens and flashpoint—would be
necessary.
d. Additional parameters: In addition
to* the analytical requirements described
above, the owner or operator of a
facility where other hazardous wastes in
addition to recycled oil are managed
would have to comply with additional
requirements. [See § 266.43(b)(l)(iv) of
today's proposal.] The owner or
operator would have to identify at least
one indicator parameter for each
hazardous waste managed at the
facility. For wastes listed in 40 CFR Part
281, Subpart D, the indicator parameter
would normally be one of the
constitutents identified in Appendix Vn
of Part 261 as a basis for listing. Where
the Appendix Vn constituent is.
however, also a normal contaminant of
used oil, the EPA permit writer may
specify one or more other indicator
parameters.121 Recyded oil managed at
facilities along with other hazardous
wastes would have to be analyzed for
these indicator parameters (along with
total halogens) to help document that
mixtures of hazardous waste and
recyded oil are not being managed
under Part 266, Subpart £."• [Such
mixtures are hazardous waste, subject
to 40 CFR Parts 281-266, Subpart D.] As
an alternative to the special sampling
and analysis requirements discussed
above. EPA considered whether
hazardous waste facilities should simply
be prohibited from handling recyded
oil130 This would simplify enforcement
The Agency is concerned, however, that
many hazardous waste facilities can
properly manage recyded oil without
mixing, and that it would be unfair not
to allow management of both types of
'••Part of the simplification coca* from the fact
thst used oU U • fairly stable liquid. 84, it is not
reactive nor volatile. Alia, used oil u not corrosive.
Therefore. Irx Information oetdeg lo manage tbia
wane I* narrowed u compared to the variety of
hazardous watlei some facilities may manage.
• m An ignitable waste, as defined In 40 CFR
2S1.21. hai a flashpoint of lesa than 140 *F.
Approximately 28* (80 of 289) of the uaed oil
analyses EPA reviewed exhibited thia
characteristic. See Compotition and Managemtmt of
Used Oil Geaerattd in the U.S. by Franklin
Aiioclatet. Ltd. November 1864: p. 3-M.
"• At discussed above*, a facility managing both
recycled oil and other hazardous waste would be
permitted individually, not by-rule. Interaction
between the owner or operator and the EPA permit
writer will therefore be possible in selecting these)
indicator parameters. EPA la. however, concerned
that this provision, because it is not self-
implementing, may not work effectively during,
interim status. This problem U discueaed below.
"•The reader should note that an owner or
operator remains subject to i i 285.13 and 204.13 far
any odtor hazardous waste that he ssanagoa.
"•A similar approach would be far EPA to
presume that any used oil managed at a hazardous
waste facility is mixed with hazardous waste.
Under this kind of approach, a person might or
might not have the opportunity to rebut tfea
presumption through analysis.
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50' No- 23° I Priday. November 29. 1985 / Proposed Rules
49237
materials. EPA requests comment on
this alternative (and cm the variations
- -described in footnote 130, below). EPA
specifically requests comment on
applying the prohibition during interim
status. During this period,
§ 266.43{b)(l)(iv) would not be fully
effective because EPA would not yet
specify indicator parameters and
therefore no direct control beyond the
rebuttable presumption would be in
place to document the "no-mixing" rule.
Should co-management (of recycled oil
and other hazardous wastes) be allowed
only a.1 permitted facilities'! [Under this
approach, the prohibition would
supplement, but not replace the
proposed § 266.43(b)(l)(iv).J
2. Analysis plans. As required for all
hazardous waste facilities under
§ 264.13(b), we are proposing that the
owner or operator of a used oil recycling
facility must develop and follow a
written plan describing his sampling and
analysis procedures.131 Under today's
proposal [§ 268.43(h)(2)(m}], the owner
or operator would have to describe the
following kinds of arrangements made
to comply with the analysis
requirements.
a. Halogens and flashpoint The
owner or operator may obtain
information on halogen content and
flashpoint of the oil he accepts by
obtaining data, information, or samples
fronr generators, and/or by sampling
incoming shipments. The analysis plan
would have to describe these
arrangements. e&, which (if any)
generators would be providing
information on the halogen or flashpoint
content of oil they generate, v«, a
schedule of sampling incoming.
shipments. In either case, it is the
responsibility of the owner or operator
to ensure used oil high in halogen
(exceeding the rebuttable presumption)
is managed as a hazardous waste and to
ensure ignitable used oil is managed
under the special requirements for
ignitable hazardous waste.
b. Specification fuel: The owner or
operator would have to describe at what
point(s) in his fuel production process
the oil would be sampled to document
compliance with the fuel specification.
For example, he could designate certain
tanks "for product only" and test these
tanks when near full or alternately, he
could analyze his incoming used oil and
the virgin fuel oil used for blending and
then blend at a certain ratio designed to
"' Acceptable analytical procedures under the
hazardous waste regulations (including procedures
for oily waste*) are induced in the EPA publication
SW-S4B. Test Methods for Evaluating Solid Waste.
Physical/ChemicalMethod*. Second Edition. 1882.
See 1280.11, "references."
meet the specification. (In this case, he
may not need to analyze the final
product.) In any case, a shipment sent
off-site is subject to S 266.41(d) (of the
generator requirements) of today's
proposal unless the requirements of
§ 286.40{bKl) for specification fuel are
complied with. Whenever a person
initiates a shipment without complying
with § 268.41(4) (or he bums without
complying with I 286.44) because he
claims to have specification fuel he is
responsible for obtaining the necessary
documentation as required by
126S.40(b)(l), including analysis of the
specification parameters.
c. Frequency: For aO of the analyses
described above, the owner or operator
would have to specify in the plan the
frequency of sampling and analysis. The
owner or operator must perform
sampling and analysis on a schedule
that is adequate to meet all applicable
requirements. [See proposed
§ 266.43(b)(l).J EPA considered whether
• some minimi^m frequency should be
specified for the various kinds of
sampling and analysis required under
today's proposal, but we have been
unable to develop a schedule that would
appropriately take into account the
many facility-specific variables that
affect sampling and analysis-frequency.
For example, if weekly sampling and
analysis is specified, different size
facilities would be affected very
differently, e.g", some operations process
100,000 gallons in a weak, and others
only 10,000 gallons. In some operations
where specification fuel is produced, the
owner or operator might use a large tank
to hold the "product" fuel and test only
when the tank is full (which may not
•Man weekly testing). In other
operations, for example where on-site
lab facilities are available, daily testing
may be feasible.
Comments are requested on the need
for a specific sampling and analysis
schedule. To encourage public comment
on this subject. EPA has included in
Table 5 below a schedule adapted from
one used by the State of Rhode Island as
permitting guidance for used oil burners.
Comments are requested on whether
this or a similar schedule should be
specified by-rule for used oil recycling
facilities.
TABLE 5.—EXAMPLE OF A SAMPLING AND AMAL.
• YSIS SCHEDULE TOR USED OH. RECYCLING
FACILITIES (SAMPLES ANALYZED'PER YEAR)
Analysis parameter
Lead (and other
metals)
Facility throughput (gaUans/KMk)
•C2.080
4
4
2-
tooo
12
12
56.000
2B
26
15,080+
52
52
TABLE S.—EXAMPLE OF A SAMPLING AND ANAL-
YSIS SCHEDULE POT USED OIL RECYCLING
FACILITIES -•: (SAMPLES ANALYZED PER
YEAR)—Continued
•«_
fteety trrcughput (gs*ons,'
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49238
Federal Register / Vol. 50. No- 230 < '
November 29. 1985 / Proposed Rules
generator or transporter, and if not able
to do so, to file a report with EPA'a
Regional Administrator; and
• Except as discussed below
(pertaining to special arrangements and
the manifest exemption) § 264.76
requires that when hazardous waste
unaccompanied by a manifest is
accepted the owner or operator must file
a report with the EPA Regional
Administrator.
2. Unmanifestedrecycled oil. As
discussed above in Section USA. of this
preamble, EPA has proposed that under
certain conditions generators may ship
recycled oil without using the
manifest19* Under these circumstances,
the owner or operator would comply
with § 266.43(e)(2) of today's proposal in
lieu of II 264.71 and 284.72.133
Section 268.43(e)[2) would require-
that, for each acceptance, the owner or
operator would have to record the
following: ':
* The name, address, and EPA
identification number of the transporter
who delivered the shipment;
• The name, address, and EPA
identification number of each generator
who contributed to the shipment (The
transporter is required to keep this
information and the owner or operator,
may, for example,*obtain a copy of the
transporter's collection log.]
* The quantity of recycled oil in the
shipment: and
* The date of acceptance.
These records would have to be kept for
a minimum of three years (from the
acceptance date). As discussed,
previously, the recordkeeping
requirements proposed today, in
conjunction with the condition that a
recycling arrangement exists, provides a
tracking system virtually as protective
as the hazardous waste manifest while
still complying with the directive in
section 3014(c)(2)[B) of the Act (to not
impose the manifest).
3. Receipt of hazardous waste
mixtures. EPA is proposing that when an
owner or operator receives a shipment
of used oil that he believes to have been
mixed with other hazardous waste [e.g.,
when it contains total halogens in
excess of 1000 ppm), he must take action
"* At described in Section HA- above. small
quantity recycled oil generator* need to comply
with no requirement! when inltiiting an off-site
shipment [See proposed f 2M.40(c)(2),] Large
generator* may comply with alternate
recordkecpiag requirements in lieu of the manifest if
certain conditions pertaining to recycling contracts
are met (See proposed i i 2«.«(d)(2) and
as described here. [Proposed
S 268.43(e)(3).]
a. Acceptance of shipment: Facilities
may only accept hazardous wastes
specifically described in their RCRA
permits.134 Since mixtures of used oil
and other hazardous waste(s) are not
"recycled oil," a facility receiving such
mixtures would Have to be permitted to
accept both used oil and the other
waste(s) in the mixture (e.g., spent
trichloroethylene, etc.). A facility not
permitted to accept such mixtures must
turn away die shipment13* A facility
permitted to accept the wastes in the
mixture may do so, but the mixture must
be managed as hazardous waste (not as
recycled oil).
b. Unmanifested shipments: In
addition to the requirements described
above pertaining to acceptance of used/
oil hazardous waste mixtures, if the
shipment is not manifested an owner or
operator must comply with S 264.76
pertaining to "unmanifested waste
reporting." That is, the owner or
operator must submit a report to EPA
within 15 days as specified in § 264.76.
D. Storage in Tanks
We discuss here how tanks used to
reclaim or store recycled oil would be
regulated under today's proposal firat in
general, and then taking into account
two on-going EPA rulemakings.
1. General. EPA is proposing that all
owners or operators of used oil recycling
facilities be subject to the tank storage
standards of Part 285, Subpart J, but
only those owners and operators who
must obtain individual permits would be
subject to Part 264, Subpart J.m [See the
proposed S 266.43(h)(2).] EPA is not
proposing to require all owners or
operators to comply with Part 264,
Subpart J because we do not believe
that S 284.191(3], the "shell thickness"
design standard, can be effectively
implemented through a permit-by-rule.1*7
"> And when recycled oil is accepted under
these conditions, the owner or operator would, of
ccune, not be required to file an unmanifested-'
waste report under i 264.76.
"« Facilities in interim status may accept wastes
identified in their "Part A" permit application. [Sea
li 270.71.270.72.] The reader should also note that .
we are today proposing a special pennit-by-rule
[See proposed iZ70.eo(d)] for certain facilities
managing recycled oil.
'"In this case, the transporter must take the
shipment to an alternate facility, if one is
designated by the generator, or return the waste to
the generator. [See i 2oZ20.]
'"As explained above and in the next section of
the preamble, some facilities an not eligible for the
permit-by-rule. [See proposed i 270.60(d)(l).] Also.
some facilities may be required to obtain individual
permits on a case-by-case basis. [See the proposed
1270«Kd)(3).J
117 Except for the shell thickness requirement
Subpart I of Parts 284 and 2S5 are virtually identical
[See 46 FR 2831-32 for a discussion of
the shell thickness rule and the
permitting interaction necessary to
implement the rule.] The Part 265
standards, by contrast, are designed to
be self-implementing and so are more
amenable to a permit-by-rule
approach.1**
2. Revisions to the tank standards.
EPA proposed on June 26,1935 to revise
Part 265, Subpart J, and Part 264.
Subpart J to include requirements for
secondary containment (among other
requirements] for most aboveground,
underground, and in-ground tanks used
for storing hazardous waste. [See 50 FR
26444.] This proposal is relevant to the
present discussion because as stated
above used oil recycling facilities are
subject to Section 3004, L&, to Parts 264
and 265. Therefore, amendments to Part
264 or 265 would apply to used oil
recycling facilities when final Figures 1
and 2 above present some of the
requirements proposed on June 28. The
reader is advised to review the June 26
Federal Register proposal in its entirety
for a full understanding of the proposed
revisions. The public is invited to
comment on the proposed tank rules',
and alternatives presented at 50 FR
26451-53, as they would apply to
recycled oil.1" Commenters should -
consider the following in preparing
comments:
(1) Used oil recycling facilities are,
under Section 3014, to be subject to the
Part 264 and 265 requirements. Any
regulatory distinction made for recycled
oil must be based on technical factors,
not adverse economic impacts.140 Since
used oil is very similar to other
hazardous wastes stored in tanks (i.e., it
ia liquid, it contains toxic and
carcinogenic constituents), we have
proposed that used oil recycling
facilities will be regulated the same as
hazardous waste treatment and storage
facilities. [The reader should note one
important difference. As discussed
above, specification fuel (a recycled oil
low in contaminants) would be exempt
"•EPA considered requiring all facilities to.
comply with Part 284. Subpart I. and to obtain
individual permits.'Since nearly all used oil
recycle™ store in tanks, however, this would
effectively negate the section 3O14(d) permit-by-ruie
Congress envisaged. This would appear contrary to
congressional Intent /.&. the language of section
3014{d) specifically includes "tank and container
storage" within the scope of the permit-by-rule.
"•The Regulatory Impact* Analysis for today'*
proposal includes the costs of the proposed new
standards.
'••This in contrast to the requirements for
recycled oil generators, where the reader will note
that because of RCRA requirements have been
reduced to mitigate adverse impacts on generator*.
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Federal Register / Vol. 50, No. 230 / Friday, November'29, 1985 / Proposed Rules
49239
from all requirements, including the
storage requirements discussed here.]
(2) Some of the proposed new Part 264
standards would require a great deal of
interaction between the permit applicant
and the permitting official.M1 [See, for
example, the proposed 5§ 264.191
pertaining to design of tank systems,
and 264.192(e) pertaining to corrosion
protection.] Therefore, we would not
change the policy proposed above to
require Part 264, Subpart J only for those
facilities that must be permitted
individually. We believe the proposed
Part 265, Subpart J requirements (see
Figures 1 and 2 for some of the
requirements) are self-implementing,
protective, and amenable to a permit-by-
rule approach.
3. Reclamation in tanks. Under 40
CFR 261.6(c), EPA regulates the storage
of hazardous waste prior to (and in
some cases following) reclamation.
Further, the Part 284/285 Subpart J tank
standards apply to treatment tanks;
these standards, however, do not apply
when hazardous waste is actually being
reclaimed in a tank. (See 45 FR 33093.
May 19, I960; and 50 FR 652, January 4,
1985.] Tanks used for "incidental
settling," however, are not meant to be
exempt from the Subpart ] standards.
[Id.]143 EPA recognizes that this policy
requires specific interpretation as it
would apply to used oil recyclers,
because virtually all used oil recycling
facilities perform at least some minimal
amount of reclamation.
First some devices (which may
arguably be "tank-like") such as
distillation columns at re-refineries are
clearly used for recycling and would not
be subject to Subpart ). Many tanks.
however, are used for settling and
blending, and it may not be obvious
whether the tank is used primarily for
storage vs. recycling. EPA currently
addresses this question on a case-by-
case basis. An owner or operator who
claims to be exempt from Subpart J
because the device is used for recycling
bears the burden of proof to document
the claim. [See the discussion at 50 FR
642, January 4.1985, relating to similar
exemptions and variances.] EPA
requests comment on whether specific
criteria should be added to the rules (or
whether detailed guidance should be
provided) to aid owners, operators and
enforcement officials in determining
when a tank may be exempted under the
above-described recycling policy.
E. Uses Constituting Disposal
On January 4,1985, EPA promulgated
40 CFR Part 266, Subpart C for
hazardous wastes used or reused in a
manner constituting disposal [See 50 FR
627-629.) Under § 266.23, hazardous
wastes (or those products which contain
.hazardous waste) applied to or placed
directly on the land are subject to the
land disposal standards of Part 264, '
Subpart A-N, e.g., users of such
"products" are fully regulated as land
disposal facilities.14* Further. Part 266,
Subpart C was recently revised on July
15,1985 to incorporate the statutory
prohibition (section 213(1) of the
Hazardous and Solid Waste
Amendments of 1984) on the use of
hazardous waste as a dust suppressant
[See 50 FR 28718.] Therefore, when EPA
lists used oil as a hazardous waste
(proposed today else where in this
Federal Register), road oiling would be
prohibited.
A used oil recycling facility where
recycled oil is used in a manner
constituting disposal (according to
§ 266.20) would be subject to the same
standards (§ 266^3] as apply to any
hazardous waste used is this manner.144
As described above, recycled oil is not
exempt from section 3004, and the
requirements of 5 266.23 (issued under
section 3004) have been deemed
necessary by EPA, and in the case of the
dust suppression ban, by Congress, for
all hazardous wastes used in this
manner.
F. Burning for Energy Recovery
Today's proposal does not include air
emissions standards pertaining to the
burning of recycled oil as fuel. As
explained in Section n of Part One of .
this preamble, EPA recently
promulgated Phase I of its Section 3004
burning standards and we plan to
'"The reader should note that we have proposed
to delete the { 284.191 -(hell thickness"
requirement (See SO FR 26*56-50; fane 26.1985.]
'"That ii. the tank must actually be an integral
component of a recycling system, not merely a
storage tank in which some settling happens to
occur. The Part 284/285 Subpart) tank standards
apply to storage (and treatment) tanks.
M As explained in Section LC. above. | 266.20{b)
conditionally exempts hazardous wastes
incorporated into commericaJ products (produced
for the general public's use) where the hazardous
waste became inseparable from the product EPA
has identified those recycled oils which meet these
criteria and included the conditional exemption in
the proposed II 28&40(a)(2)(ii) and 2fl6.40(b)|2). The
controls described here would not apply to these
exempt recycled oils. The reader should note the
I 266.40(b)(2) products are the only recycled oils we
have found that meet the 1286.20
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49240 Federal Register / Vol. SO. No. 230 / Friday, November 29. 1985 / Proposed Rules
recycling facilities under
§ 268.43(a)[2)[i5)J are different from the
recently promulgated marketer
standards in the following ways:
(1) Under today's proposal, shipments
of recycled oil would be subject to the
hazardous waste manifest unless the
• conditions of proposed 5 266.41(d)(2)(i)
pertaining to recycling contracts are
met In this case, proposed
1268.41(d)(2Hii) would require notice
and recordkeeping requirements very
similar to the current § 266.43 marketer
standards. As discussed above (in the
"generator" discussion. Section 0. B. 4,
of this Part of the preamble), this
approach is based on Section
3014(c)(2)(B) of the Act The proposal is
different than current 1266.43 in that if
the recycling contract conditions are not
met. the hazardous waste manifest
would apply.
(2j The reader may note that the
current § 266.43(b)(4]{vi) of the marketer
standards requires a statement on the
invoice as follows: "This used oil is
subject to EPA regulation under 40 CFR
Part 266." while today's proposal does
net contain such a requirement We
believe the requirements proposed
today render this label unnecessary.
This is discussed next hi the context of
the RCRA Section 3004(r) labeling -
requirement - - '
b. Labeling of fuel shipments: Section
3004(r) requires that any fuel made from
hazardous waste must bear a warning
label stating that the fuel contains
hazardous waste, and listing the *
contents contained therein. [See 50 FR
28724-25; July 15.1985.] Listing used oil
as hazardous waste (proposed
elsewhere in this Federal Register)
would trigger this labeling requirement
In fact EPA recently promulgated the
Phase I labeling requirement for off-
specification used oil fuel (even though'
used oil is not currently a hazardous
waste) in response to the Congressional
concern with persons unknowingly
receiving contaminated fuels. [See 50 FR
1704: January 11.1985 J We believe, for
the following reasons, today's proposal
renders the warning label requirement
unnecessary by fulfilling the same
functions as would a label1"
(1) For those shipments of off-
specification fuel that are manifested,
clearly a warning label would be
redundant and unnecessary. [Id.]
(2) To be exempt from manifest
requirements, the fuel seller and
purchaser must have a recycling
agreement; further, facilities that receive
off-specification fuel (including burners)
must be authorized to manage recycled
oil and would be subject to the proposed
§ 268.43 requirements for used oil
recycling facilities. In this situation, i.e.,
where the receiving party would be
regulated, a warning label also seems
unnecessary.
. 3. On-site burning ofde minimus
quantities. Section 3004(q)(2)(B)
provides that EPA may exempt on-site .
burning of de minimus quantities of
hazardous waste (to be defined by the
Administrator), provided certain '
conditions are met EPA is currently
considering whether such an exemption
is appropriate for recycled oil
generators. Any exemption of this sort
would be proposed with the Phase II
burning and blending rules early next
year.
G. Corrective Measures
Section 3004(u) of RCRA. as amended.
requires EPA to develop standards
pertaining to corrective action for
releases of hazardous waste or
hazardous constituents'4* from solid
waste units at facilities seeking'permits
under section 3005(c) (including releases
that occurred in the past)."0EPA
amended Parts 264 and 270 to include
provisions to implement this
requirement [50 FR 28711-16; July 15.
1S85.] The requirements are to be
administered during the facility
permitting process. These corrective
action requirements would apply,
therefore, to all used oil recycling
facilities that are required to obtain
individual facility permits under section
3005(c). [See proposed 5 270.60(d)(l),
which would exclude certain faculties
from the pennit-by-rule, and proposed
§ 270.60(d)(3), which specifies criteria
EPA would use in determining on a
case-by-case basis when an individual
permit is necessary.] In fact as
discussed in the next section of the
'"Today's proposed rules for recycled oil ate
litued under the Joint author!tie* of sections 300*
and 3014 of RCRA. Ai such, section 3004[r) allows
EPA to supersede the statutory warning label with
refutation*.
"•See Part 261. Appendix Vm, for the list of
hazardous constituents.
"•The reader should note that releases of oil
and/or hazardous substances trigger certain other
EPA requirements as well Under the
Comprehensive Environmental Response.
Compensation, and Liability Act of 1980 (CERCLA),
• person in charge of a vessel or facility having
knowledge of a release to the environment from that-
vessel or facility of a quantity of a hazardous
substance at or above the importable quantity of
that substance must report that release to the
National Response Center (NRC). In the case of
used oil, EPA Is proposing a raportable quantity of
100 pounds. See the listing proposal elsewhere in
this Federal Register. If the discharge of the used oil
occurs in a navigable waterway and is sufficient to
cause a sheen on the water, then the discharge must
alto be reported to the. NRC pursuant to regulations -
promulgated by EPA undnr section 311 of the Clean
Water /vet [40 CFR Part I1C.)
preamble, one criterion EPA will
consider in determining which facilities
should be individually permitted is the
need for corrective measures at a
facility.
V. Permitting of Used Oil Recycling
Facilities
This section of the preamble discusses
EPA's proposed approach to implement
the permitting provisions of section
3014(d) of the Act Moot used oil
recycling facilities would, under today's
proposal, be pennitted-by-rule; in
contrast most other hazardous waste
facilities are (usually after an "interim
status" period) permitted individually.
This special approach is undertaken due
to the special section 3O14(d) mandate
for recycled oil. We discuss next the
eligibility criteria for this special pennit-
by-rule. the requirements that apply to
facilities permitted-by-rule, the
provisions for modifications to the
pennit-by-rule, and the duration of the
pennit-by-rule. Some facilities would not
be eligible for the permit-by-rule; the
owners or operators of these facilities
would have to obtain individual facility
permits. We do not discuss procedures
for individual facility permitting here as
these procedures have been established
for hazardous waste facilities through
previous rulemaking8.'[See40 CFR Part
270, and 48 FR 14228; April 1,1983.]
Finally, we discuss the issue of interim
status for used oil recycling facilities,
and then some enforcement principles
that would apply to all used oil
recyclers.
A. Eligibility for Permit-by-Rule
Section 3014(d) provides that owners
and operators of used oil recycling
facilities ut are deemed to have a permit
for their recycling activities and
associated tank and container storage,
provided the owner or operator complies
with the standards for hazardous waste
treatment and storage facilities
promulgated by EPA under section
3004.1M EPA is authorized under section
3014(d) to permit used oil recycling
facilities individually as necessary to
protect human health and the
environment EPA has proposed to
exclude certain kinds of facilities from
the pennit-by-rule and has proposed
"'The term "used oil recycling facility- is used
for convenience to describe those facilities subject
. to i 286.43 of today's proposal e.g.. processors, re-
refiners, and burners of off-specification fuel
'"The reader is reminded that used oil being'
disposed of without recycling would be subfect to
full regulation under 40 CFR Parts 202-205 and.
facilities disposing of used oil (or storing or treating
used oil before disposal) would be permitted
individually under Part 270.
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Federal Register / Vol. 50. No. 230 / Friday. November 29. 1985 / Proposed Rules 49241
i.riteria for case-by-case determinations
For when individual permitting is
necessary. .
. 1. General exclusions from the permit-
by-rule. EPA has determined that
permitting-by-rule is inappropriate for
the following kinds of facilities:
• Recycled oil is stored or treated in a
surface impoundment;
• Recycled oil is used or reused in a
manner constituting disposal;
Other hazardous wastes are managed
at the facility in addition to recycled oiL
{See the proposed S 270.60(d)(l).]
a. Surface impoundment storage:
Section 3014(d) provides that treatment.
recycling, and associated tank and
container storage may be permitted-by-
rule. Storage or treatment of recycled oil
in a surface impoundment is not
included in the statutory language, and
the legislative history indicates the
omission was deliberate. [See RR. Rep.
Mo. 96-198,98th Cong., 1st Sess., at 69
(1983). Surface impoundment storage is
•used as an example of an activity meant
to be permitted individually.]
b. Uses constituting disposal: Hie
standards for persons using hazardous
waste in a manner constituting disposal
(§ 286-23, which references Part 264.
Subparts A-N) cannot in EPA's view.
be effectively implemented through a
permit-by-rule,1** but rather must be
implemented through individual facility
permitting.1*4 See.for example, the Part
264. Subpart F ground-water monitoring
requirements. The EPA Regional
Administrator must specify certain
requirements in §5 264.91(b). 284.93(a),
264.94{a).264.94(b).284.95{a).and -
264.9B{a).
c. Hazardous waste facilities: The
third group of facilities that would be
excluded from the permit-by-rule under
today's proposal are facilities that
manage other hazardous wastes in
addition to recycled oiL These facilities
are likely sources of hazardous waste/
used oil mixing,1** and they therefore
'"This problem would also exist for surface
impoundment regulation and permitting.
IM EPA could conceivably require compliance
with Part 286. not Part 2M. for persons using
recycled oil in manner constituting disposal and
perhaps for surface impoundment storage in that the
Part 2B5 standards are meant to be self- •
implementing. This U what we have propoaed for
tanki. (See the diacuiaion in Section IVD. above.)
vVe have not propoaed this approach because
Congreaa has registered a strong concern with land
disposal and surface impoundment storage of
hazardous waste (see section 1002(b)(7) of RCRA.
as amended) indicating a need for maximum
scrutiny of these practices by EPA. ie. individual
facility permitting.
"See the report Composition and Management
of Vted Oil Generated in the i'-S, by Franklin
Associates. Ltd. November ISM. pp. 3-32 through
3-37. U appears obvious that hazardous solvents are
commonly introduced either during collection or at
require the additional scrutiny provided
by individual facility permitting. '•*•IM
Finally, as discussed in Section IV.B.
above, EPA has proposed special
analytical requirements for facilities
managing both recycled oil and other
hazardous wastes [the proposed
S 286.43{b)(l)(iv)]. In general we have
made the analytical requirements self-
implementing, but the special
requirements for facilities managing
both recycled oil and other hazardous
waste require interaction between EPA
and the owner or operator and are best
implemented with the significant
Agency oversight provided by facility
permitting.
2. Case-by-case exclusions. In
§ 270.60{d)(3) of today's proposal. EPA
has included provisions under, which the
Regional Administrator (or the Director
of an authorized State hazardous waste
program) may require the owner or
operator of a used oil recycling facility.
on a case-by-case basis, to apply for an
individual RCRA permit. The basis for
requiring an individual permit would be
the receipt of information (through site
inspection, or other means) indicating
that any of the following situations exist
at the facility."*
• The owner or operator is not fully in
compliance with one of the permitting
requirements of S 270.60{d)(2). discussed
below; or
• The facility, because of the
quantities of recycled oil being managed
or the management methods in use. or
the faculty's location, could pose a
substantial potential hazard to human '
health or the environment; or
facilities during storage or processing. To cite hut
one example, samples of used automotive oil taken
•t generator sites had 80th petcentila values of
trtehloroethane, trichloroelhylene. and
tetrachloroethylene (three hazardous spent
solvents; of 16.11. and 55 ppm. respectively (p. 3-
33). The BOth percentile values of these same
constituents in "automotive oil" samples at
processor faculties or MOO, 800. and 3000 ppm (p. 3-
34). m
"•Since these facilities manage other hazardous
wastes, they are presently subject to individual
permitting under 40 OH Part 270, [The most EPA
could do under Section 301«(d) would be to permit
the recycled oil portion of the facility by-rule.) For
«those facilities that are permitted before today's
rules become effective, a permit modification would
be necessary to allow acceptance of used oil or
recycled oiL See U 1215 and 1270.41 regarding
permit modifications.
"'The reader should note that in Section FV.A_
above. EPA has requested comment on whether we
should prohibit co-management of recycled oil and
other hazardous wasted
*• A State authorized by EPA to manage its awn
hazardous waste program under 40 CFR Part 271
could, by its own regulations, require some or all of
the used oil recycling facilities within the State to
apply for individual RCRA permits. How today's
proposed rules would operate in authorized States
is discussed more fully in the next port of the
preamble.
• There has been a release of
recycled oil, hazardous waste, or a -
hazardous constituent at the facility and
corrective measures taken by the owner
or operator are not adequate to protect
human health and the environment.
In the first situation, an owner or
operator may make a good faith effort to
comply with the permit-by-rule
requirements of S 270.60{d}(2), discussed
below, and believes that he is in
compliance. A site inspection by EPA,
however, may lead to a determination
by EPA that the steps taken by the
owner or operator to comply with
S 270.60(d)(2) are not adequate, and that
additional measures are necessary. In
such cases, EPA would either initiate an
enforcement action to bring the facility
into compliance, and/or could make the
determination that the facility in
question is more appropriately regulated
through an individual permit For
example, a facility may be more
appropriately regulated under an
individual permit where site-specific
conditions exist that require special,
individual consideration. •
The second situation, where the
facility is posting a potential hazard,
also requires explanation. Some
facilities, in the judgment of the
Regional Administrator, may pose at
least a potential hazard even though
"they are technically in compliance with
8 Z70JBO(d](2). An example might be a
facility reclaiming, storing, or burning
large quantities of recycled oil in a
densely populated urban area. In this
case, the Regional Administrator would
not have grounds to cite the facility for
violations of the permit-by-rule
conditions. The potential for a hazard.
however, may be substantial because of
proximity to population centers or to
sensitive population groups, such as
children. In this case, individual
permitting would provide the maximum
scrutiny possible under Subtitle C and
would also allow for public participation
in the permitting and siting process.
Finally, as described above, if the
Regional Administrator determines that
an owner/operator's response to a
release is inadequate, he can require the
owner or operator to apply fpr an
individual permit to institute the
corrective action requirements of Parts
264/270. "•
"•The reader should note that when an owner or
operator is required to obtain an individual permit
under 1 27OSO(d){3]. he must then also comply with
the -corrective measure- provisions of 1264.101.
(See the proposed 12B6.43(a)(S)(iv}.] This is because
section 3004(u) of RCRA requires any permit issued
• by EPA to Include corrective measures requirements
as appropriate.
-------
49242 Federal Register / Vol SO. No. 230 / Friday. November 29. 19fi5 / Proposed Rule*
.Under 1270.60{d)(3)(ii) of tod«y'«
proposal, the Regional Administrator (or
State Director) would notify the owner
or operator of the determination that an
individual RCRA permit i» required: the
owner or operator would then have 180
days to submit "Part B" to the RCRA
permit application.1*
B. Requirements of the Pemut-by-Rule
EPA has proposed requirements for -
the permit-by-rule in i 270.60{d)(2) for *
those facilities not excluded from
eligibility (as described above). These
requirements are based on the statutory
provision [section 3014(d)] that the
facility must be in compliance with
standards promulgated under section
3004."s First, the proposed
{ 270.60{d)(2)(i) provides that the owner
or operator comply with 5§ 266.43 and
288,44, the standards proposed today for
used oil recycling facilities (including
burners). These standards are proposed
under the Joint authorities of sections
3004 and 3014. In the case where these
rules are amended or modified, the
owner or operator would have to comply
with the modified requirement within
the time limit as specified hi the
appropriate Federal Register notice.
[This will be particularly important for
burners. Today, i 286.44 is reserved for
the standards that will apply to -
burners.]
Paragraphs (ii) through (xvi) of the
proposed { 27O60(d)(2) contain
requirements that are necessary to " '
ensure compliance with f 286.43 or
120S.44. These requirements apply to
EPA issued permits (see f 270.30). and
are proposed here under the authority of
section 3014 to implement this special
permit-by-rule. The conditions are
summarized here:
* Paragraph (ii) provides that
noncompliancc with §i 286.43 or 286.44
is allowable only under terms af an
emergency permit issued under i 270.61:
• Paragraph (iii) provides that it shall
not be a defense in an enforcement
action to «1«<™ that it would have been
necessary to halt or reduce « permitted
activity in order to »*>•?"*•<» compliance
with { 260.43 or i 286.44;
• Paragraph (iv) requires that in event
of non-compliance, the owner or •
operator must take all reasonable steps
"•During Ihia tint, the earner or aperator wM A facility is.not pennitted-
by-rule unless it is hi full compliance
with proposed i 270.60{d)(2). [This
requirement is from RCRA secliuii
3014(d).]
With respect to those facilities that
are not in compliance on the effective
date of this regulation. EPA believes
that the permit-by-rule authority of
section 3014(d] should be read m
conjunction with the existing interim
status provisions of section 3005(e).
Pursuant to the terms of these two
sections, used oil recycling facilities that
fail to meet the i 270.80(d)(2)
requirements by the effective date of
this regulation (and thus do not qualify
for the permit-by-rule) become subject
to the section 3005(a) prohibition against
operating without a permit and must
either shut down or seek interim status
authorization under.section 3005(e).
Owners and operators of used oil
"'Because tbt penft-by
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Federal Register / Vol. 50. No. 230 / Friday, November 29. 1985 / Proposed Rules 49243
recycling facilities should note that
under this approach they have a choice.
If a used oil recycling facility meets all .
-the requirements of | 270.60{d}(2) on the
effective date of this regulation, it is
deemed to have a permit under section
3014(d) and, therefore, interim status is
not required. However, if there is some
doubt as to the extent of a facility's
compliance, an owner or operator may
wish to consider taking the steps
necessary to qualify for interim status to
avoid being vulnerable to a'possible
enforcement action for operating
without a permit •
To receive interim status
authorization under section 3005(e), •
facility must meet three requirements.
First the facility must have been in
existence on November 19,1980 or the
effective date of the statutory or
regulatory changes that rendered it
subject to the requirement to have a
permit. Second, it must comply with the
notification requirements of section
3O10(a). And third, it must submit an
application for a permit On the effective
date of this regulation, existing used oil
recycling facilities will, by definition,
meet the first requirement of section
3005(e). With respect to the second
requirement (ia. notification), many
used oil recyclers are presently required
to notify the Agency under the Phase I
burning rule.1" [In the final Phase I
preamble, se&Part Four, Section IB.]
EPA has determined that the third
requirement (for permit applications)
calls for an approach slightly different
than the one that currently applies to
hazardous waste facilities; this is
discussed next
2. Permit applications. EPA is
proposing that the owner or operator of
a used oil recycling facility that seeks
interim status (because he is not in
compliance, or is not sure of whether he
is in compliance with proposed
! 270.60(d)(2)). must inform EPA that
information submitted to the Agency
under the RCRA section 3010(a)
notification requirement is also intended
to fulfill the "permit application"
requirement of RCRA section
3005(e)(l)(C).«" [See proposed
S 270.10(a)(3).J
Tor thoie facilities not subject to the (pedal
"waste-as-fuel" notification of the final Phase I rule,
the reader should note that under f 284.11
(referenced by i 286-«(b), introductory text, of
today's proposal), facility owners and operators
must notify the Agency and obtain EPA
identification numbers. Owners and operators who
file -waste-as-Ttier notifications need not re-notify
under toda/s proposal, except as discussed next
i.e. those facilities who must obtain interim status.
"•This discussion only applies to facilities that
would otherwise be eligible for the pemlt-by-rule,
but are not fully in compliance. Facilities excluded
from eligibility by 127OoO(d)(l) must obtain interim
EPA considered whether owners and
operators should submit full "Part A"
RCRA permit applications, as is
required for all other hazardous waste
facilities under §§ 27O70(a}(2) and
270.10(a)(l). We are not requiring the full
Part A submission because much of the
Part A information is, for used oil
recyclers, not relevant That is, the Part
A submission was intended as the first
step in individual facility permitting.
[See 45 FR 33322-23; May 19.1980.] We
fully expect however, that most used oil
recycling faculties that seek interim
status will eventually come into full
compliance with S 270.60(d)(2), and at
that point they will be deemed to have
a permit Therefore, we see no need to
require additional information beyond
the RCRA section S010(a) notification
requirements. We must require the
special "interim status notification" to
ensure that the RCRA section
300S(e)(l)(C) "permit application" has
been complied with. This special
notification to EPA would ensure mat a
used oil recycling facility, even if subject
to enforcement action for being in
violation of S 270.80(d)(2), would
maintain its legal authorization to
operate.
3. Alternatives considered. As an
alternative to the proposed interim
status approach, EPA considered a
second approach of extending the
permit-by-rule to all recycled oil
facilities, regardless of their compliance
status, on the effective date of these
regulations. Under this approach, the
Agency would pursue case-by-case
enforcement against those facilities later
found to be out of compliance. The
major difficulty with this approach is
that it is inconsistent with the explicit
language of section 3014(d). Congress
specifically provided that an owner or
operator of a used oil recycling facility
"shall be deemed to have a permit under
this subsection for all treatment or
recycling. . .//such owner or operator
comply with the standards promulgated
by the Administrator under section 3004
. . ." (emphasis added). Aa EPA does
not have the information or data on
which to conclude that all used oil
recycling facilities will come into
compliance by the effective date of this
regulation, it lacks an adequate basis for
implementing this approach.
EPA also considered an approach
under which a facility not fully in
compliance with S 270.80(d)(2) on the
effective date of the requirements would
thereby lose eligibility for the permit-by-
rule, and would have to seek interim
status-and a full RCRA individual
facility permit as would any hazardous
waste facility. EPA did not propose this
approach because it could result in
outcomes contrary to Congressional
intent Many owners or operators may
simply be unsure of their compliance
when today's proposed rules become
effective, or may make good faith efforts
to comply but are still not completely in
compliance. To make a blanket
determination that all used oil recycling
facilities must be permitted individually
does not seem in line with
Congressional intent that EPA avoid
discouraging used oil recycling
consistent with protection of human
health and the environment See H.R.
Conf. Rep. No. 1133,98th Cong., 2d Sess.,
at 114 (1984).
Comments are requested on the
Agency's proposed interim status
approach.
E. Enforcement
All used oil recycling facilities would
be, under today's proposal, subject to
S 286.43 (and burners would also be
subject to § 286.44). Whether a facility is
authorized to operate under interim
status, or an individual facility permit
or the proposed permit-by-rule, EPA
may take enforcement actions under
RCRA section 3008 for violations of
applicable requirements. With respect to
those facilities that qualify for the
permit-by-rule and then later are found
in violation of an applicable •
requirement EPA would proceed as it
does against any permitted facility
found in violation. That is, EPA may
issue compliance orders and schedules
under RCRA section 3008, and in some
cases may seek injunction for temporary
or permanent facility closure. Our
reasoning for treating facilities
permitted individually under section
3005(c) and by-rule section 3014(d) in a
similar fashion is that permits issued
under both Sections serve the same
statutory purpose, i.e* implementation
of the Section 3004 standards.1*1
Regulations issued under each section
are designed to provide specific
guidance as to what constitutes
compliance with those standards.
Because of the similarity of these
sections not only in their purpose uu.
also in many of the section 3004
requirements they implement, EPA sees
no reason for treating noncomplying
facilities differently under each
status and apply for a full permit under 40 CFR Part
270. as would any hazardous waste facility.
•* Section 300S(c). however, has a broader scope
than does section 3014(d); for example, section
S004(u) corrective action requirements are
implemented through section SC05{c) permits.
-------
49244 Federal Register / Vol. SO. No. 230 / Friday, November 29. 1985 / Proposed-Rules
section.mThe Agency therefore
believes that since a facility's failure to
comply with a permit condition does not
lead to a loss of authority to operate
under RCRA section 3005(c), it should
not do so under section 3014(d).
VL Proposed Effective Dates
This section discusses when various .
parts of the proposed rules would
become effective. The public is invited
to comment on the proposed effective
dates as well as the substantive
requirements themselves.
A. General
Under RCRA section 3010(b).
hazardous waste regulations are
generally to become effective six
months after final rule promulgate for
good cause. Except as discussed below,
we are proposing that the recycled oil
rules would become effective six months
after the day they are published in final
form in the Federal Register.
B. Prohibition on Dust Suppression
As discussed above in Section IVJZ. of
this Part of the preamble, RCRA section
3004[1) prohibits the use of hazardous
waste for road treatment or dust •
suppression (/Iff- road oiling). As •
discussed elsewhere in today's Federal
Register used oil would become a
hazardous waste six months after the
final listing notice appears in the
Federal Register. Because of the strong
concern Congress has registered against
using hazardous waste for.dust
suppression (i.e.. the passage of section '
3004(1}), EPA considered whether
perhaps the prohibition on road oiling
should become effective either
immediately when, or shortly after (e.g.,
30 days) the final listing notice for used
oil appears in the Federal Register. We
have not proposed this action today
because of the possible confusion that
, could result from an early effective date
for one particular management practice
(/.a. road oiling). Comments are
requested on the issue of an early
effective date for the road-oiling
prohibition.
C. Tank System Secondary Containment
Standardt
EPA proposed that interim status
hazardous waste facilities and "90 day"
generators have one full year, instead of
six months, to comply with tank system
secondary containment requirements.
[See proposed §5 265.193(a) and
261.34(a)(2); June 28.1985.] This same
extended effective date would apply to
all persons subject to tank system
secondary containment requirements
under today's proposed rules. In the
case of the proposed requirements for
recycled oil generators, EPA has
proposed secondary containment only
for "new" tank-systems, including
leaking tanks taken out of and then
returned to service. [See proposed .
§ 266.41(c)(5) (vi) and (vii). discussed in
Section IVA above.] Tanks installed
during the one year period following
publication of the final § 266.41 in the.
Federal Register would not be subject to
the secondary containment
requirements, but would remain subject
to the Section 9003(g) "interim
prohibition" for all petroleum materials
stored in underground tanks. [See
S S 280.1 and 280.2.] After the 1 year
period, generators installing new tanks
would then be subject to the secondary
containment standards, no longer to the
interim prohibition. "•
PART THREE—ADMINISTRATIVE,
ECONOMIC, AND ENVIRONMENTAL
IMPACTS
L State Authority
A. Applicability of Rule* in Authorized
State*
Under section 3008 of RCRA, EPA
may authorize qualified States to
administer and enforce the RCRA
program within the State. [See 40 CFR
Part 271 for the standards and
requirements for authorization.]
Following authorization EPA retains
enforcement authority under sections
3008,7003, and 3013 of RCRA. although
authorized States have primary
enforcement responsibility.
Prior to the Hazardous and Solid
Waate Amendments of 1984 (HSWA)
amending RCRA, a State with final
authorization administered its
hazardous-waste program entirely in
lieu of the Federal program. The Federal
requirements no longer applied in the '
authorized State, and EPA could not
issue permits for any facilities in the
State which the State was authorized to
permit. When new, more stringent
Federal requirements were promulgated
"•Indeed, lines on* of the general objective* of
MCticn 3014 i* to avoid dfccouragement of recycling
consistent witli protection of human health and tht
environment, the Agency believe* that a mult
which inmate* rather than decrease* the burden • -
and «txingency of regulatory requirement* for
recyclir* would generally be consilient with
Congren' ilalcd concern to redact unnecoijary
jnpedtaent* to recycling.
'"Small quantity recycled oil generator! would
be aubfect to the proposed modified venion of the
interim prohibition 6 month* after publication of the
final rule [proposed 1288.40(c)(l)(iv)]i A* with all
petroleum material* in underground tank*, the
•action 9003(s) interim prohibition will continue to '
apply to recycled oil until Part 286, Subpart B
become* effective.
or enacted, the State was obligated to
enact equivalent authority within
specified time frames. New Federal
requirements did not take effect in an
authorized State until the State adopted
the requirements as State law.
In contrast, newly enacted section
3006(g) of RCRA, 42 U.S.C. 8926(g),
provides that new requirements and
prohibitions imposed by the HSWA take
effect in authorized States at the same
time they take effect in non-authorized
States. EPA is directed to carry out
Shose requirements and prohibitions in
authorized States, including the issuance
of permits, until the State is authorized
to do so. While States must still adopt
HSWA-related provisions as State law
to retain final authorization, the HSWA
applies in authorized States in the
interim.
It should also be noted that authorized
States are only required to revise their
programs when EPA promulgates
standards more stringent than the
existing standards. Under Section 3009
of a RCRA, States are allowed to impose
standards more stringent than those in
the Federal program. Under today's
proposal some of the standards for used
oil would be less stringent than the
requirements that would apply to
hazardous wastes in genjeraL Authorized
• States that have already listed used oil
as a hazardous waste and subject used
oil to full regulation under the States'
analogues to Parts 201-266 would not be
required to revise their standards to
conform with the special Part 266.
Subpart E requirements proposed today
(when promulgated in final form).
However, those States must apply to be
authorized for that aspect of the RCRA
program, and after review and
acceptance by EPA, a Federal Register
notice will announce that the State is
authorized to run that part of the
program.
B. Effect on State Authorizations
Today's announcement proposes
standards that would be effective in all
States since the requirements are
imposed pursuant to section 242 of the
Hazardous and Solid Waste
Amendments of 1984 (HSWA). Thus
EPA will implement the standards in
nonauthorized States, and in authorized
States until they revise their programs to
adopt these rules and the revision is
approved by EPA.
A State may apply to receive either
interim or final authorization under
section 3006(g)(2) or 3006(b).
respectively, on the basis of
requirements that are substantially
equivalent or equivalent to EPA's. The
procedures and schedule for State
-------
jtaderal Register / VoL SO. No. 230 / Friday. November 29. 1985 / Proposed Rules
49245
adoption of these regulation* is
described in 40 CFR 271.21. [See 49 FR
21678: May 22.1884.] See also SO FR
28731; July 15.1985.
Applying § 27L21(e)(2). States that
have final authorization must revise
their programs within a year of
promulgation of EPA's regulations if
only regulatory changes are necessary.
or within two yean of promulgation if
statutory changes are necessary. These
deadline* can be extended in
exceptional cases. [See 40 CFR
271Ja(eJ(3).J
States with authorized RCRA
programs may have requirements
similar to those in today's rule. These
State regulations have not been
assessed against the Federal regulations
being proposed today to determine
whether they meet the tests for
authorization. Thus, a State is not
authorized to carry out these
requirements in lieu of EPA until the
State program revision is approved. As a
result, the standard proposed in today's
rule will apply in all States, including
States with existing standards similar to
those in today's rule. States with
existing standards may continue to
administer and enforce their standards •
as a matter of State law. In
implementing the Federal program EPA
will work with States under cooperative
agreements to minimize duplication of
efforts. In many cases EPA will be able
to defer to the States in their efforts to
implement their programs, rather than
take separate actions under Federal
authority.
States that submit official applications
for final authorization less than 12
months after promulgation of EPA's
regulations may be approved without
.including standards equivalent to those
promulgated. However, once authorized,
a State must revise its program to
include standards substantially
equivalent or equivalent to EPA's within.
the time period discussed above.
Finally, we have.proposed to amend
Part 271, the Requirements for
Authorization of State Hazardous Waste
Programs, by amending Table 1 of
! 271.10) to add the citations and the
standards for managment of recycled oil
to the list of regulations implementing
the Hazardous and Solid Waste
Amendments of 1984.
IL Relationship of Today's Proposal to
Certain Other EPA Programs
This section discusses the relationship
of today's proposal to certain other EPA
regulatory programs. This discussion is
for informational purposes only; no new
requirements are proposed here. [Note
that in the listing Federal Register
notice, we propose to alter the CERCLA
"reportable quantity" for used oil.]
A. PCS Program
Under section 6(e) of the Toxic
Substances Control Act (TSCA), EPA
has promulgated regulations on the use,
manufacture, processing, distribution in
commerce, and disposal of PCS items,
including oils containing PCBs. When
the rules proposed today become
effective in their final form, used oil
containing PCBs would be subject to
these rules and the PCB rules at 40 CFR
Part 761. EPA estimates that 18% of the
used oil generated and managed in the
U.S. currently contain some
measureable quantity of PCBs.170 EPA is
currently considering whether, nad how,
the TSCA PCB and RCRA Subtitle C
regulations should be integrated. Until
such a determination is made,
hazardous wastes containing PCBs win
continue to be subject to both sets of
rules. This is necessary for used oil
because the TSCA PCB rules do not
address hazards associated with toxic
metals or flashpoint (as do the rules
proposed today). Where both sets of
rules are applicable, EPA will apply the
more stringent of the two requirements.
& SPCC Program
Under section 311 of the Clean Water
•Act (CWA, also known as the Federal
Water Pollution Control Act 33 U.S.C.
1321{j)(l)(c]}. EPA has promulgated
regulations for the prevention of and
response to oil spills into navigable
water. These rules (40 CFR Part 112),
known as the Spill Prevention Control
and Countermeasure (SPCC)
regulations, apply to non-transportation-
related facilities with underground
storage capacity over 42,000 gallons or
above, ground storage capacity greater
than 1^20 gallons. Because the SPCC
definition of oil includes "oil refuse" (40
CFR 112.2(a)), persons storing used oil
encompassed by today's proposed rule
may already be subject to SPCC
management regulations.
When the rules proposed today
become effective in their final form,
used oil stored in tanks or containers
meeting the SPCC requirements will be
subject to these rules and the SPCC
rules at 40 CFR Part 112.
EPA is currently considering whether.
and how, the SPCC and RCRA Subtitle
C regulations should be integrated. Until
such a determination is made, stored
hazardous waste meeting both SPCC
•'"See the report by Franklin Associates. LTi.
Composition and Meatunment of Used Oil
Generated in the ttSU November 1884. p. l-iz 142
of 753 camples showed tome PCBs present. The
median v«!u« it S ppm, the 80th percentile value is
50 ppm.
and RCRA requirements, will continue
to be subjeqt to both sets of regulations.
C.NPDES Program
Under section 402 of the Clean Water
Act, EPA has promulgated regulations
regarding its issuance of National
Pollution Discharge Elimination System
(NPDES) permits. An important part of
many permits issued under these
regulations is the limit placed on "oil
and grease" discharges. When oil is
collected in greater than de minimis
quantities hi order to comply with
permit requirements, the collected oil
may be subject to the requirements of
today's proposed rule. The general
relationship between the RCRA and
NPDES regulatory programs is discussed
more fully at 45 FR 33096-88 and 33171-
72; May 19, I960.
m. Regulatory Impact Analysis-
Executive Order 12291
A. Purpose
The Agency conducted analyses to
estimate the costs, benefits, and impacts
of the proposed regulations. We
conducted cost and economic impact
studies to determine whether this
proposed regulation is a major rule
(under Executive Order 12291), and
whether this proposed regulation causes
significant small business impacts (as
required by the Regulatory Flexibility
Act). EPA had the additional mandate to
study specifically the effects of used oil
regulations on recycling (section 3014(a)
of RCRA, as amended) and on
generators (section 3014(c)).
EPA has determined that the rules
proposed today (the listing proposal and
the proposed rules for recycled oil,
taken together) are "major." This section
of the preamble is a summary of the
regulatory impact analysis (R1A) .
documented in U.S. EPA, Regulatory
Impact Analysis of Proposed Standards
for the Management of Used Oil,
November 1985. This document is
available in the public docket for this
rulemaking. The Office of Management
and Budget received a copy of the draft
RIA, as required by E.0.12291.
B. Methodology
EPA conducted an assessment of the
costs, benefits, and economic impacts of
this proposal and major regulatory
alternatives."1 We evaluated, for each.
"'In order to provide a more complete, integrated
assessment of the used oil system, the RIA includes
the aggregate effects on not only today's proposals
(i.e.. the listing and management standards), but
also standards for used oil burners (i.e.. proposed
administrative burner standards (50 FR 1684) and
potential technical burner standards (yet to be
proposed)).
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49246 Federal Register /'Vol. 50, No. 230 / Friday, November 29, 1985 / Proposed Rules
costs of requirements, costs to facilities,
Impacts on businesses and used oil'
recycling, and changes in potential risks.
1. Data Collection. Before initiating its
regulatory impact analysis, the Agency
collected data on current used oil
management practices. These efforts
included a survey of used oil handlers
and burners, a site visit program, test
bums of used oil combustion devices, .a
used oil sampling and testing program,
and discussion with many used oil
businesses and experts, including state
program officials. EPA's understanding
of the used oil system is summarized in
U.S. EPA, Composition and
Management of Used Oil Generated in
Hie U.S., (by Franklin Associates)
November, 1984.
2. Economic Methodology. The
economic impact analysis involved the
following steps. We developed model
used oil facilities. We estimated
compliance costs for each model facility.
We conducted a market, or macro.
analysis to estimate changes in prices,
changes in used oil supply and demand,
and aggregate national costs. We also
conducted a financial, or micro, analysis
to estimate changes in profits, and
closure and employment impacts.
To estimate costs and economic
impacts, we first developed thirteen
model facilities to represent the used oil
recycling system which includes-
generators, collectors, processors, and
rerefihers. We also evaluated end user
costs, but did not develop end user
model facilities. Instead we modeled
end users as markets demanding used
oil "products." •
We separated used oil generators into
industrial used oil generators who
produce used oil from maintenance of
machinery and non-industrial used oil
generators who produce used oil from
maintenance of vehicles. We also split
generators by size. Large generators
produce greater than 1000 kilograms
(about 300 gallons) per month.
Collectors purchase used oil from
generators and transport it to processors
and rerefiners. We developed three
sizes of collectors: small collectors who
handle an average of 125.000 gallons per
year, medium collectors who handle
._ 300,000 gallons per year, on average, and
large collectors who handle an average
of one million gallons per year.
We developed model facilities for
used oil processors and rerefiners who
produce used oil "products," such as
fuels and lubricants, for sale to end ,
users.
We also evaluated end use markets
for used oil These included use as fuel
(in boilers and other combustion^
devices), use as rerefining feedstock use
as road oil, miscellaneous non-fuel uses,
and disposal
Next, for each of the model plants
(and end users), we estimated
compliance costs. To estimate these
costs, we conducted engineering studies
of the activities and costs required to
comply with the regulatory provisions.1!1
These estimates included initial, capital,
and annual costs, which we annualized.
For one-time costs, such as many of ,
the capital costs, we assumed that
facilities could amortize these costs over
20 years, at a nominal interest rate of
13%.m This rate corresponded to real
costs of capital, not to an estimate of
social discount rates, or social costs. For
annual and recurring costs, we
converted uneven streams of payments
to annualized present values using
discounted cash flow calculations. We
discounted future costs to current
dollars assuming a six percent annual
inflation rate and a three percent real
discount rate. Finally, we multiplied the
model facility incremental costs by the
total number of facilities to obtain the
national aggregate cost estimates.
Next, for each of the model facilities
and end users, we collected information
on prices in used oil markets; we
estimated costs of production for used
oil collectors, processors, and rerefiners;
and lastly, we estimated flows of used
oil from generators to different end
users. We combined all of this
information into an economic model to
simulate current supply and demand for
used oil, and the macro and micro level
impacts of regulatory costs on supply
and demand. (This model is documented
in detail in U.S. EPA. Background
Document: Regulatory Impact Analysis
of Proposed Standards for the
Management of Used Oil, November
1985.) -
. We first conducted a macroeconomic
impact analysis using our supply and
demand model, and our estimates of
regulatory compliance costs for each
model facility. We used the model to
predict: (1) Changes in supply to and
demand for used oil in end use markets,
(2) changes in flows through
intermediary facilities, and (3) price
changes. We also calculated aggregate
national costs of the regulation.
Secondly, we conducted a
microeconomic impact analysis by
evaluating facility finances, using the
"*Mof t of thete coat et timatea appear In Cent of
Control Optiont for Reducing Watte Oil Handling
Ritli*, Draft (prepared by P.EX. formally PEDCo),
May 1964.
ln We uied 13* to represent the co*t of
borrowing money at the prime rate pluf three
percent (Because few of the regulatory coita an ~
capital coiu. aisumpHoni about Intersil ratet an
not critical to the conclusion!.)
same model facilities (disaggregated
into small, medium, and large faculties),
to predict closures and employment
effects. For each model facility, we
developed income statements using
publicly available financial data and
data on the used oil industry collected
by the Agency. Using these income
statements,, we calculated current cash
flows and net value of the businesses.
To these baseline finances, we then
imposed net regulatory costs, which
included the effect of price changes.
First we estimated how these changes
affected the profitability of firms. Next
we estimated business closures by
comparing the value of the firm after
regulation to the value of selling a firm,
that is, the "salvage value." If a firm's
oalvage value was greater than its value
after regulation, we predicted closure of
that firm.
3. Benefits Methodology. To compare
the benefits of the proposal and
regulatory alternatives, we estimated
the changes in potential health risks
from used oil practices before and after
regulation. We estimated risks of five
types of used oil practices:
—Burning in space heaters, asphalt
plants, and boilers and other
devices;
•—Road oiling; , >
—Disposal in incinerators and landfills;
—Storing in drums, aboveground tanks.
and underground tanks; and
.•-Dumping.
For each practice, we estimated
potential releases of and potential
exposures of people (and the
environment) to constituents in used oiL
We estimated benefits as the reduction
in potential health risks resulting from
management practices after regulation
compared to potential health risks from
current practices.
To estimate national aggregate health
risks from used oil practices, we made a
number of simplifying calculations and
assumptions. First, based on our
aampUng data, we calculated mean
concentrations of hazardous
constituents in different types of used
oils (that is, for used oils recycled in
different ways). We then designed.
model practices to represent average
practices, such as road oiling and
disposal For these practices, we
estimated quantities likely to be
released from routine emissions and
accidental releases. We then calculated
concentrations of hazardous
constituents that would result from
dispersion and degradation of the.
releases. By assuming population
densities, we estimated exposures. We
then estimated health effects using dose-
-------
Federal Register / Vol. 50, No. 230 / Friday, November 29, 1985 / Proposed Rules
49247
response data for individual
constituent!, assuming lifetime (seventy
year) exposures. (The risk analysis is
discussed in detail in the AM
Background Document]
4. Limitations. The economic impact
analysis depended upon our
characterization of current used oil
practices and the responses of facilities
to regulatory costs and constraints. We
presumed that businesses will make
economically rational and legal
decisions. We modeled used oil markets
using accepted macroeconomic
assumptions about supply and demand.
We also assumed that facilities could
finance regulatory compliance
expenditures.
The Agency's benefit analysis of the
regulatory alternatives also depended
upon characterizing model practices. To
estimate die regulatory benefits as
accurately as possible given our data.
we used assumptions, simplified
practices, and representative (or
average) parameters. Therefore, the
benefits results are best used to
compare across the alternatives'
included in the analysis.
Because we recognized variability in
the practices, we analyzed the
variability in the parameters that
determine risks, and changes in risk.
The analysis of variance is discussed in
more detail in the RIABackground
DoeunTent, - "•
The RIA risk analysis did not capture
all benefits of the regulation. In addition
to reducing cancer cases, the proposed
regulation creates other health benefits
(such as reduced lead poisoning) and
environmental benefits.
Because we characterized average
practices in the benefits analysis, we
quantified the health effects of only
typical practices. We estimated the
effects of hazardous constituents
typically found in used oil. When other
hazardous constituents are present in
used oil they may pose additional risks
that we have not quantified—but risks
that the regulation does prevent For
example, in the aggregate analysis we
did not analyze the risks of road oiling
with used oU containing dioxin. The
proposed regulation would, however,
help prevent such risks. The listing
document cite instances of extreme
cases that have caused damages that
are not fully captured by the risk
assessment'
The regulation also produces
environmental benefits that we did not
quantify. Improperly managed used oil
and its hazardous constituents can
create environmental damage.
Constituents in used oil are toxic to .
plants and animals. The physical
properties of oils may also affect
. organisms. Used oil releases can also
degrade environmental media, such as
ground and surface water.
a Results
1. Macroeconomic Impacts. Table S
presents our estimate of the aggregate
annualized national costs of the
proposal. Even though most of the
regulatory requirements fall on the
intermediary faculties that control the.
flow and quality of recycled used oil,
generators and end-users incur high
aggregate costs (almost three quarters of
the total), primarily because of their
large numbers. Although regulated
generator costs average only $650 per
year, they incur in aggregate $31 million
per year. Annualized intermediary costs
range from $4,300 to $356,700 per facility,
and total $36 million per year. End user
costs total $81 million per year. Major
costs by regulatory component include
disposal ($10 million), storage ($67
million), testing ($16 million),
administrative requirements ($10
million), substitute dust suppressants
($26 million); and off-spec pollution
control and test burns ($37 million).
TABLE 6.—AGGREGATE (ANNUAUZEO)
NATIONAL COSTS OF REGULATION
SK>
Mmfctt
SuMMM
AOrinMn
TncUng-
End
Ro-1 el MbMttulM.
Adrr
PoMton oonM and mi bum.
Tew.
tes
4
1
31
IS
4
1
IS
28
2
37
tl
10
165
The Agency evaluated how these
costs (and regulatory constraints) affect
markets and recycling. First we
predicted the effect of the proposed
regulation on supply of and demand for
used oil in different markets—see Table
7. These predicted changes represent
significant changes in recycling. By
establishing fuel specifications, the
proposal changes the reuse of used oil
as a fuel, largely by shifting recycled oil
to controlled burners. Use of used oil as
a dust suppressant (currently 69 million
gallons per year) is banned. The
displaced oil flows largely to use as a
rerefining feedstock, which increases
from 85 to 13% million gallons per year.
We estimate that overall, used oil
recycling will increase by about 100
million gallons per year.
TABLE 7.-£Frccr OF REGULATION ON MARKET
FLOWS OF USED OIL
IMNongOompvyMr]
%
Burning:
Atphift And miwnt M"»
. fin«a*h— *•»
YntalhusMrf
f|«MMfhihin
nwnnsnQi
''•*•«• ,.
float nmflmd) _________
Nan-tart MuttW
n-.f . . .1 ~
• -l-^l
Oliilim
240
94
121
15
34
73
586
59
(85)
96
89
405
1,155
Rcgute-
axy
knout
18S
308
117
16
34
46
70C
101
(135)
40
0
1,155
2. Miaroeconomic Impacts. Table 8
contains our estimates of the annualized
costs of compliance for the model
facilities. These estimates are based on
our characterization of these facilities,
their current practices, and their
responses to regulatory requirements.
Facility costs vary a great deal,
depending on the size of the faility and
the regulatory requirements. Processors
are larger and face more requirements.
Generators and collectors are smaller
and face less extensive regulation. As
the costs per gallon demonstrate, there
are economies of scale for larger
facilities.
TABLE 8.—ESTIMATES OF MODEL AVERAGE
FACILITY COSTS
Mod-Hetty'
Anratacd ragutotoiy
«200 *> 63.700 _
jaoototijoo.
64,300 to n.700_
$8,600 to S16JOO-
628.400.
$17,40010 6356,700.
Dillon
(Mitts)
<«-<505
3-6
3-5
3
3-8
J Mod*
-------
49248
Federal Register / Vol" 50, No. 230 / Friday. November 29. 1985 / Proposed-Rules
their regulatory costs by increasing revenues (by as much as fourteen cents .per gallon).
TABLE 9.-FWCE CHANGES FOR INTERMEDIARIES
(Cwtt pv gtMon}
AtMng* purchiM prio*
PrmgiMxy
21
21-24
Pod
ragutotty
19
1S-22
Chang*
-2
AMrac* """no P*»
PnvraguMory
40
45-65
Port
it>gul»tty
38
55-58
Q*ng>
-4
Net grin
-2
eon/giMn
S
We also predicted closures that might
result from the resulting changes in
profit* (or net present value). For small
collectors, particularly, profits decrease
significantly. Reduced profits may not
cause a business closure, if a facility
choose to continue operating with
reduced profits. Table 10 presents our
estimate of facility closures predicted by
comparing net present value to salvage
value, and considering changes in flows
of used oil implied by the market
changes presented in Table 7. The
discussion below provides a more
detailed explanation of impacts on used
oil generator, collector, and processor
facilities.
TABU 10.—CLOSURES AND CHANGES M AVERAGE SIZE CREATED BY FINANCIAL IMPACTS AND
FLOW CHANGES
RtfbNPW
-2.8-7-t
1.S-&S
*NC
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12
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327
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(or
RMK» IN* ««n em ptdudng ntgnw* ratka) Imply down.
For industrial generators, used oil*
management is generally a very minor
part of their production processes. This
waste provides revenue when sold to a
collector or processor. Once regulated.
larger industrial generators may spend
as much as $3,700 per year (only $310,
on average) to comply with the
proposed requirements. Used oil will
still be sold to collectors and processors.
, but for a lower price. Although net
revenues from used oil will decrease,'
these changes will represent an
Insignificant change in overall ,
production costs for industrial
generators.
For non-industrial (automotive)
generators, however, regulatory costs
are more important Based on
discussions with a number of used oil
generators, we have assumed that
automotive generators pass through
regulatory costs to their customers by
increasing the price of their service—-oil
changes. We have assumed that oil
changes will decrease by the same
percentage, Le« the elasticity of
substitution equals one. fvlore people
will change their own oil. and recycling
will decrease since most homeowners
dump their used oil, according to our
information. Full Subtitle C regulations
cause an increase in these homeowner
oil changes of twelve million gallons per
year. We therefore have tailored used
oil regulations to reduce burdens on
generators.
The regulations will seriously affect
collectors. EPA predicts that it will be
uneconomical for 473 small and medium
collectors to continue operating as
small, independent businesses. Although
these small collectors represent about
fifty percent of the facilities within the
used oil recycling industry, they '
currently handle only about ten percent
of the volume of oil entering the
recycling system. EPA predicts that
these collectors will close because their
annualized regulatory costs will be
between $4,300 and $9,700 per year.
compared to net earnings before
regulation of only $2,500 per year. We
also predict, however, that 155 of these
smaller collectors will grow or become
part of larger businesses, because; (1)
The total quantity of used oil flowing
through collectors will increase and (2)
larger collector (and medium
transporter) businesses will be
economically viable. Larger collectors
will be able to afford the regulations; as
will other used oil businesses that
handle larger quantities of oil. This is
because many costs are fixed,
independent of quantities handled. That
is, there are economies of scale—the
regulatory cost per gallon is three cents
for larger collectors, eight cents for
smalL
Overall the closure rate for today's
proposal is less than one precent That
is, we predict only 327 net closures from
over 50.000 establishments that would
be subject to regulation. It should be
noted mat approximately three million
establishments would be exempt from
regulation under the provision described
in Section D, Part Two of this preamble.
The closure rate of establishments
potentially subject to regulation is
therefore about one one-hundredth of a
percent
3. Benefits. Table 11 presents our
estimates of the health effects (cancers)
in the U.S. potentially caused by used oil
management practices as we have
modeled them before and after the
proposed regulation. The variation
around these point estimates is several
orders of magnitude, particularly for
risks caused by releases to ground
water. The regulation reduces risks by
controlling several practices. Most
importantly, the fuel specification and
burning in controlled devices reduce
combustion risks. Cancer risks from
burning decrease by almost fifty
percent (The prohibition of unvented
space heaters prevents unsafe
exposures to lead, which in the baseline
cause almost 25 health effects per year.)
Requirements for secure disposal of
used oil also significantly reduce risks.
Disposal risks decrease by seventy
percent Overall, the proposal reduces
potential cancer risks by half, in
addition to eliminating lead poisoning
cases from used oil space heaters.
(Calculated without dumping, which the_
regulations don't address, cancer risks
decrease by more than sixty percent)
-------
Federal Register / Vol. 50, No. 230 / Friday. November 29. 1985 / Proposed Rules 49249
TABLE 11.—RIA ESTIMATES OF POTENTIAL
RISKS OF AVERAGE USED On. PRACTICES.*
Dun
Dm
RM»(6iM|»ry«r)
•5
55
110
5
<5
"270
ragutatian
80
55
30
<1
•> 25 OHM Mr vav fin
IV. Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601) requires the Agency to
evaluate the impacts of regulations on
small entities. When a regulation
imposes significant impacts on a
substantial number of small businesses.
the Agency must conduct a regulatory
flexibility analysis to evaluate
regulatory options to reduce impacts on
small entities (consistent with other
mandates, such as protection_of human
health and the environment). Although
today's proposal imposes impacts on
many small businesses, the total
fraction of small, businesses significantly
affected (less than one percent) is not
substantial Nevertheless, to meet the
requirements of section 3014 (to avoid
discouragement of recycling, to reduce
impacts on generators, and to protect
human health and the evironment), the
Agency has reduced regulatory burdens
to the extent possible. These are
documented in the RIA which includes
evaluation of the impacts of full Subtitle
C regulations, in addition to the impact*
of the proposal
In the used oil system, most
establishments are small businesses.
We estimate that approximately ninety
percent (about 680 of 050) of the
intermediary facilities (collectors,
processors, and rerefiners) are small
businesses. These small businesses
employ less than 100 people and have
annual revenues less than $1.5 million.
Most of these businesses are small
collectors employing one or two people.
We predict that (net) 318 collectors will
close. The increased flow of oil through
collectors, however, will mitigate
employment impacts.
The proposed regulation reduces
small business impacts when compared
to Subtitle C requirements. Instead of
full hazardous waste facility standards,
EPA has proposed a special provision
that would expand the transfer facility
exemption in the hazardous waste rules
to include recycled oil transporter tanks
-with secondary containment This
would allow most collectors to avoid
being a RCRA facility, and would
reduce impacts. Costs for small
collectors drop from about $9,700 to'
$4,300 per year—for medium collectors
from $16,300 to $8.500 per year. Without
tailored standards, we predict that an
additional 301 collectors would close.
The tailored requirements reduce
impacts consistent with environmental
protection. <»
We have not proposed any special
requirements to mitigate impacts on
processor facilities because Congress
did not exempt used oil recylcers from
Section 3004. We have proposed to use
the permit-by-rule authorized by
Congress for most recycling facilities.
We estimate that the permit-by-rulfe
reduces costs by $10,000 to $20,000 per
facility.
Like the intermediaries, almost all
used oil generators are small businesses
(based solely on number of employees).
Congress exempted generators who
recycle used oil from Sections 3001(d)
and 3002. and directed EPA to consider
•mall business impacts on generators in
promulgating used oil regulations. The
proposal includes a limited set of
requirements for generators that are less
stringent than the standards that apply
to hazardous waste generators, and that
reduce impacts. Specifically, EPA has
proposed (in lieu of Subparts C, D, and
5 265.16 of Part 285) simplified and
tailored facility management
requirements for recycled oil generators
(see the proposed S 266.41(c)(6)). As
described in section H Part Two of the
preamble, we are proposing these
reduced requirements to reduce impacts
on recycled oil generators (many are
small businesses). Further, we have
proposed: (1) limited secondary
containment requirements for generator
storage tanks, and (2) a conditional
exemption for "small quantity" recycled
oil generators. These provisions
significantly reduce regulatory costs to
generators, and substantially reduce the
number of generators regulated.
Although the intent of these provisions
is primarily to mitigate adverse impacts
on environmentally acceptable
recycling, the reduced standards also
serve to mitigate small business
impacts.
V. Paperwork Reduction Act
The information collection
'requirements in this proposed rule have
been submitted for approval to the
Office of Management and Budget
(OMB) under the Paperwork Reduction
Act of 1880,44 ILS.C. 3501 et seq.
Submit comments on these requirements
to the Office of Information and
Regulatory Affairs; OMB; 726 Jackson
Place, MW., Washington, DC 20503
marked "Attention: Desk Officer for
EPA." The final rule will respond to any
OMB or public comments on the
information collection requirements.
This regulation will require collection
logs or shipping papers, internal
recordkeeping, and facility operation
records, including testing records. Table
12 presents our estimates of the numbers
of shipping forms the regulation will
require.
The purpose of these forms is to bring
more accountability to the system, and
to provide a means for enforcing against
violations. We have reduced the burden
of these requirements by proposing
alternatives to the analogous Subtitle C
requirements of manifesting and full
Part B permits.
TABLE 12.—PAPERWORK REQUIREMENTS
ISWpmanti fMrywr inquiring tracking)
t ,
MfrrnKM* tedktM: 8NpmMU with ootacton
ToWrumbwofrMpr
ha———_
iquMngtradi'
. •19,000.
PART FOUR—PUBLIC COMMENTS.
BACKGROUND DOCUMENTS,
PUBLIC HEARINGS. AND LIST OF
SUBJECTS
This Part provides information that •
should aid interested parties to
understand EPA's rationale and to
prepare comments on today's proposal.
L Solicitation of Public Comments
Today's two notices describe .
regulatory proposals, and therefore the
public may comment on any aspect of or
Issue related to the proposals.
Commenters who have previously
submitted comments pursuant to
previous EPA used oil proposals and
Federal Register notices (such as 50 FR
1684.1/11/85) should re-submit those
comments at this time so they may be
considered in today's proposal. The
Agency will not address comments
submitted pursuant to prior Federal
Register notices unless the comments
are re-submitted.
H. Availability of Background
Documents
EPA relied on the following primary
documents in developing today's
proposal. All documents cited in the
. preamble are available in the public
-------
49250
Federal Register / Vol. 50, No. 230 / Friday, November 29, 1985 / Proposed Rules
docket for thii mlemaking, located at
EPA Headquarters, Room S-212,401
"M" Street. Southwest, Washington. DC,
20460. The docket i» open to the public
from 9:00 «.nu to 4:00 p.m., Monday
through Friday, except on holidays.
Some of the documents listed below are
also available through the National
Technical Information Service (NTIS),
an agency of the U.S. Department of •'
Commerce, located in Springfield.
Virginia (703) 487-4650. (NTIS does
charge a fee per-page for documents
ordered.)
Composition and Management of Used Oil
Gen era ted in the U£.. by Franklin
Associates. Limited. November 1964. NTIS
*PB/es-180-297.
Listing Background Document for Used Oil
US. EPA Office of Solid Waste, November
19S5. .
Regulatory Impact Analyst* of the Proposed
Standards for the Management of Used Oil.
VS. EPA, Office of Solid Waste. November
1985.
TO. Announcement of Public Hearings •
EPA will hold public hearings on the
rules (both the listing and management
standards] proposed today as follows:
• January 8. JS3*—Holldsy Inn. North Fade
Piata. 10650 North Central Expressway.
Dallas, Texas 75231 (Phone: 214/373-6000)
• January 10.1986—Ranwda Renaissance,
SS Cyril Magnin Street (Ona block north of
5th ft Market), San Francisco. California
B4102 (Phone: 415/382-8000)
• January IB, 1980—Department of Health
and Human Services, North Auditorium f C"
Street entrance), 330 Independence Ave., SW,
Washington, DC 20201 .
The hearings will begin at 9:30 ajn.
(registration at 9:00 a.m.) and will end at
4:30 p.m. unless concluded earlier. EPA
encourages all interested persons to
attend one of the public hearings. If you
would like to present an oral statement
at one of the hearings, please notify in
writing Ms. Geraldine Wyer, Office of
Solid Waste (WH-562). U.S. EPA,
Washington, DC, 20480.
Oral and written statements may be
submitted at the public hearings.
Persons who wish to make oral
presentations must restrict their
presentations to 10 minutes and are
encouraged to provide written copies of
their complete comments for inclusion in
the official record.
List of Subjects -v
40 CFR Part 260
Administrative practice and
procedure, Confidential business
Information. Hazardous waste. ,
40 CFR Part 281 *
4iazardous waste. Recycling.
40 CFR Part 266
Hazardous waste, Recycling.
40 CFR Part 270
Administrative practice and
procedure, Confidential business
information, Hazardous materials
transportation, Hazardous waste.
Reporting and recordkeeping
requirements, Water pollution control.
Water supply. .
40 CFR Part 271
Administrative practice and
procedure. Confidential business .
information. Hazardous materials
transportation. Hazardous waste, Indian
lands, Intergovernmental relations.
Penalties. Reporting and recordkeeping
requirements, Water pollution control.
Water supply.
For the reasons set out in the
Preamble, it is proposed to amend 40
CFR Chapter I as set forth below:
Dated: November 8,1985.,
L»eM. Thomas, -
Adminittrator.
PART 260—HAZARDOUS WASTE
MANAGEMENT SYSTEM: GENERAL
1. The authority citation for Part 260
continues to read as follows:
Authority: Sees. 1006,2002(a). 3001
through 3007.3010.3014.3015,3017.3018.
3019, and 7004 of the Solid Waste
Disposal Act, as amended by the
Resource Conservation and Recovery
Act of 1976. as amended [42 U.S.C 6905.
6912(a), 6921 through 6927,6930.6934,
6935.6937,6938,6939, and 6974].
2. In Part 260, a new definition is
added to § 260.10 to read as follows:
f 269.10 Deflnlttons.
• • • • •
"Recycled oil" means used oil that Is
either burned for energy recovery, used
to produce a fuel, reclaimed (including
used oil that is reprocessed or re-
refined), or otherwise recycled, or that is
accumulated, collected, stored,
transported, or treated prior to recycling.
(1) [Reserved to define specific types
- of burning considered to be recycling.]
(2) The term includes mixtures of
recycled oil and other materials, but not
mixtures containing hazardous waste
(other than used oil). Used oil containing
more than 1000 ppm of total halogens is
presumed to be mixed with chlorinated
hazardous waste listed hi Part 261,
Subpart D of this Chapter. Persons may
rebut this presumption by demonstrating
that the used oil has not been mixed
with hazardous waste. EPA will not .
presume mixing has occurred if the used
oil does not contain significant
concentrations of chlorinated hazardous
constituents listed in Appendix Vm of
Part 281 of this Chapter..
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
3. The authority citation for Part 281 is
revised to read as follows:
Authority: Sees. 1006, 2002(a). 3001.3002,
and 3014 of the Solid Waste Disposal Act as
amended by the Resource Conservaton and
Recovery Act of 1978, at amended [42 U.S.C.
8905.0912(8), 8921.6922. and 6934J.
4. In 1261.5. paragraphs (b) and (j) are
revised to read as follows:
52813 Special requirements tor
hazardous wast* generated by small
quantity generator*.
• • * • •
(b) Except as provided by paragraphs
(e), (f), and 0) of this section, a small
quantity generator's hazardous wastes
are not subject to regulation under Parts
262 through 265,270, and 124 of this
chapter, nor to the notification
requirements of section 3010 of RCRA,
provided the generator complies with
paragraph (g) of this section.
• • * • •
fj) Used oil. (1) Used oil that is
disposed of (and not recycled] is.
included in the quantity determinations
of this section and is subject to the
requirements of this section.
(2) Used oil that is recycled is subject
to regulation as follows:
(i) Recycled oil is not included in the
quantity determinations and is not
subject to the requirements of this
Dection, but instead is subject to Part
266, Subpart E of this chapter.
*(ii)(A] When hazardous waste that
would otherwise be conditionally
exempt from full regulation under
paragraph (b) of this section is mixed
with used oil hi die course of recycling
(e.gn during collection or storage) the
resultant mixture is no longer subject to
the reduced requirements of this section
but instead is subject to full regulation
under Parts 262 through 265, Part 266,
Subparts Subparts C and D, and Parts
270 and 124 of this chapter, and to the
notification requirements of section 3010
of RCRA. "
(B) Used oil containing more than 1000
ppm of total halogens is presumed to
•have been mixed with chlorinated
hazardous waste listed hi Part 261,
Subpart D of this chapter. Persons may
rebut this presumption by demonstrating
that the used oil has not been mixed
with hazardous waste. EPA will not
presume mixing has occurred if the used
oil does not contain significant
-------
Federal Register / Vol. SO. No. 230 / Friday, November 29. 1985 / Proposed Rules 49251
concentrations of chlorinated hazardous
constituents listed in Appendix Vm of
Part 261 of this chapter.
5. In 5 261.6, paragraph (a)(2Kiii) is
.revised to read as follows:
J261.6 Requirements for recyctaWe
M"*
(2)**«
(iii) Recycled oil. (Subpart E).
Note.— Mixture* of used oil and hazardous
waste are not recycled oil and when
recycled, are subject to foil regulation under
this section.
PART 266— STANDARDS FOR THE
MANAGEMENT OF SPECIFIC WASTES
AND SPECIRC TYPES OF FACILITIES
6. The authority citation for Part 286
continues to read as foDows:
Authority: Sees. 1000. 2002(a). 3001 and
3014 of the Solid Waste Disposal Act as
amended by the Resource Conservation and
Recovery Act of 1978. as amended [42 U.S.C.
•90S. 6912(a). 0924, and 8934).
7. In Part 266, 5 2oU30fb)(l) is revised
to read as follows:
{266.30 AppfiesMBty. ;
"
(1) Recycled oil is subject to Subpart E
of this Part, not to this Subpart
• * * • •
8. In Part 286, Subpart E is revised to
read as follows:
Subpart E— Standards tor the Management
of Recycled OU
Sees.
28640 Applicability.
266.41 Standards for generators.
266.42 -Standards for transporters.
266.43 Standards for owners and operators
of used oil recycling facilities.
266.44 Standards for burners.
Subpart E— Standard* for the
Management of Recycled OH
5266.40 AppHcaMBty.
. (a) General. (1) This subpart applies
to recycled oil that is:
(i) Hazardous waste, as denned by
§§261.1-261.3 of this chapter; or
Note: Recycled oil is a subset of used oil.
the latter being listed as "F030" in i 261 .31 of
this chapter.
(ii) Household waste, but only when
aggregated or accumulated at service
stations, auto centers, or other "do-it-
yourselfer" collection centers. Hie
owner or operator of a collection center
that accepts household recycled oil is
considered a "generator" for the
purposes of this Subpart, and is subject
either to paragraph (c) of this section or
to { 266.41 of this subpart, as applicable;
or
{iii) Recovered from only wastewatet
exempted from regulation under
1266.3(a) (2) (tv) (F) of this chapter. The
person who recovers the ofl is !
considered a "generator" lor, the
purposes of this Subpart, and is subject
either to paragraph [c) of this section or
to i.266.41 of this subpart, as applicable.
(2) Conditional exemptions. The
following recycled oils, when recycled
in compliance with paragraph (b) of this
section, are not subject to any further
requirements under this subpart:
(i) Fuel meeting the following
specification, to be known as ' .
"specification fuel:"
RECYCLED OH. FUEL SPECIFICATION
CHMfciM/PiBCVty
tntri*
«•*!*••
l*f*
Tool htfoem
MkMbtotottl
SpEnnncnnun.
2 tfm tnvfcnum.
10 ppm nwfeiun.
100 ppm nwdmum.
4000 ppm madmum
lOOppminBdmum.
We***-1!** qweaiotion AM* not cppy to uMd on trim!
«*» l»arto«i ••». Such nouns wet b* mmgid «s
(ii) Asphalt paving material containing
either of the following used oil recycling
residues:
(A) Distillation bottoms from used oil
re-refining; or
(B) Residue (i.e., baghouse dust) from
a fabric filter air pollution control device
used to control emission'from recycled
oil combustion.
(b) Conditions to exempt certain
recycled Oils. Recycled oil is subject to
this Subpart until the conditions of this
paragraph have been complied with:
(1) Specification fuel. In order for fuel
to be exempted from regulation under
paragraph (a) (2) (i) of this section, the
person first claiming the exemption
must:
(i) Document through analysis that the
recycled oil does meet the specification
hi § 288.40(a) (2) (i) of this subpart
Analytical procedures must be specified
in the plan required by § 286.43 (b) (2) of
this subpart; and
(ii) Record the following information •
for each shipment of specification fuel:
(A) The name and address of the
receiving facility;
Note—Since this exemption is lor fuel, the
receiving facility is expected to either bum
the recycled oil or use it to produce fuel.
(B) The quantity of specification fuel
sent;
(C) The date of shipment; and
(D) A cross-reference to analysis
performed under 5 268.43 (b) (2) of this
subpart-(/.e., the documentation that the
fuel meets the specification of pargraph
(a) (2) (i) of this section).
(iii) Maintain records of analyses and
•shipments of specification fuel as part of
the facility's operating record required
under $ 266.43(f) of this subpart.
(2) Asphalt paving material In order
for asphalt paving material to be
exempted from regulation under
paragraph (a) (2) (ii) of this section, a
person must ensure that the distillation
bottoms or baghouse dust that has been
incorporated into the paving material
has undergone a chemical reaction in
the course of producing the material so
as to become inseparable by physical
means.
(c) Small quantity recycled oil
generators. A generator of 1000
kilograms or less of recycled oil per
calender month need not manage the
recycled oil generated in that month
under this Subpart, provided the
following requirements are complied
with. Such a generator is a "small
quantity recycled oil generator."
Requirements:
(1) On-oite management. If the
recycled »il is managed on-eite, the
following requirements apply:
(i) The use of recycled oil for road
treatment, dust suppression, or road
oiling is prohibited;
(ii) [Reserved for controls on burning.}
(iii) Small quantity recycled oil
generators may accumulate and store
recycled oil on-eite. If more than 1000
kilograms is accumulated at any time,
all of the accumulated recycled oil is
subject to the remainder of this subpart,
not to the special requirements of
paragraph (c) of this section. The
generator, when the quantity limitation
is exceeded, becomes subject to the
generator requirments of $ 266.41 of this
Subpart ;
(iv) A small quantity recycled oil
generator must not install a tank system
unless the following installation
requirements are complied with.
Paragraph (c) (1) (iv) (B) of this section
does not apply if soil tests conducted in
accordance with ASTM Standard G57-
78 show that soil resistivity at the site is
12,000 ohm-cm or more. Installation
requirements:
(A) Such tank will prevent releases
due to corrosion or structural failure for
the operational life of the tank; and
(B) Such tank is cathodically
protected against corrosion, constructed
of non-corrosive material, or designed in
a manner to prevent the release of
recycled oil; and
(C) The material used in the
construction or lining of the tank is
compatible with recycled oil.
-------
49252 Federal Register / VoL 50. No. 230 / Friday. November 29. 1985 / Proposed. Rules
Not*.—Steel and fiberglass ate both
compatible with most used oili.
(2) Off-site recycling, (i) A small
quantity recycled oil generator may
lend his recycled oil off-site for
legitimate recycling.
(ii) When a small quantity recycled oil
generator sends oil off-site for recycling,
it becomes subject to the remainder of. -
this subpart upon collection (i.e., when
accepted by the transporter).
Not*.—A person who collects recycled oil
from small quantity recycled oil generators is'
subject to the transporter requirements of
12MA2 of this subpart
(3) Mixing with non-hazardous waste.
A small quantity recycled oil generator
may mix his recycled oil with non-
hazardous waste and remain subject to
paragraph (c) of this section as long as
the recycled oil portion of the mixture
does not exceed 1000 kilograms. .
(d) Used oil mixed with hazardous
waste. (1) Used oil that has been mixed
with hazardous waste, including waste
from generators that would otherwise be
subject to the special requirements of
S 261.5 of this chapter, is not subject to
this Subpart but instead is subject to full
regulation under Parts 262 through 265,
Part 268, Subparis C and D, and Parts
270 and 124 of-this chapier, and to the
notification requirements of section 3010
ofRCRA.
(2) Used oil containing more than 1000
ppm of total halogens is presumed to be
mixed with chlorinated hazardous waste
listed in Part 231. Subpart D of'this
chapter. Persons may rebut this
presumption by demonstrating that the
used oil has not been mixed with
hazardous waste. EPA will not presume
mixing has occurred if the used oil does
not contain significant concentrations of
chlorinated hazardous constituents .
listed in Appendix Vm of Part 261 of
this chapter.
(e) Definition* and other general
' provisions. (1) The terms used in this
Subpart, unless otherwise noted, have
the meanings provided in 55 260.10.
261.1,261.2, and 281.3 of this chapter.
(2) The following general provisions of
Part 260 apply throughout this subpart
Section 2602, availability and
confidentiality of information;'
Section 280.3, use of number and gender;
Section 260.11, references; and
Subpart C, rulemaking petitions.
(3) Authorized facilities. When used
in this Subpart, the term "authorized
facility" means a facility authorized to
manage recycled oil under one of the
following authorities: „
(i) The facility has been permitted by
EPA under Part 270, Subparts A through
E of this chapter; or
(ii) The facility has been pennitted-by-
rule under § 270.60 of this chapter; or
(iii) The facility has been permitted by
a State with a hazardous waste program
approved by EPA under Part 271 of this
chapter; or
(iv) The facility is in interim status
under section 3005(e) ofRCRA and Part
270, Subpart G of this chapter.
§ 263.41 Standards for generators.
(a) Applicability—{!) General. This
section applies to generators of recycled
oil, including persons who aggregate
household-generated recycled oU and
persons who recover used oil from oily
wastewater (for recycling), but not to
small quantity recycled oil generators
who comply with § 286.40(c) of this
subpart.
(2) Owners and operators of facilities
that recycle or store recycled oil are
subject to paragraph (d) of this section
in addition to § 266.43 of this subpart
when they initiate off-site shipments. .
(3) A generator who transports
recycled oil off-site is subject to the
transporter standards of § 266.42 of this
subpart in addition to this section.
(4) A generator who uses recycled oil
on-site in a manner constituting disposal
as defined by § 266.20 of this chapter is
subject to the standards for persons •
using hazardous waste in a manner
constituting disposal of S 266.23 of this
chapter in addition to mis section.
(5) A generator who burns recycled oil
on-site is subject to the burner
standards of S 266.44 of this subpart in
addition to this section.
• (6) A person who collects recycled oil
from small quantity recycled oil
generators under § 266.40(c) of this
subpart is subject to the transporter
standards of i 266.42 of this subpart but
is not subject to this section.
(b) Identification numbers. Generators
must comply with S 262.12 of this
chapter.
(c) On-site storage. Except as
provided by this paragraph a generator
who stores on-site is subject S 266.43 of
this subpart as well as this section.
Generators who meet the following
requirements are not subject to S 266.43
of this subpart:
(1) The generator only stores recycled
oil in either tanks or containers;
(2) Recycled oil is stored on-site no
longer than 90 days;
(3) Tanks and containers must be
clearly labeled with the term
"RECYCLED 0114"
(4) Container standards. Generators
storing in containers must comply with
the following requirements from Subpart
I of Part 265 of this Chapter
Section 265.171, the condition of
containers;
Section 265.173, the management of
containers;
Section 265.174, inspections; and
Section 285.176, special requirements for
ignitable waste.
(5) Standards for tank systems.
Generators storing in tanks must comply
with the following requirements for tank
systems:
(i) Uncovered tanks must be operated
to ensure at least 60 centimeters (2 feet)
of freeboard, unless the tank is equipped
with a secondary containment structure
(e.gn dike or trench) or a diversion
structure (e.g., standby tank) with a
capacity that equals or exceeds the
volume of the top 60 centimeters (2 feet)
of the tank;
(ii). Continuously fed tattles. Where
recycled oil is continuously fed into a
tank, the tank must be equipped with a
means to stop this inflow {e.g- a waste
feed cutoff system or bypass system to a
standby tank);
(iii) Tank system inspection
requirements. The generator must
conduct and document an inspection of
(where present):
(A) Discharge control equipment (e.g.,
waste-feed cutoff systems, bypass
oystems. and drainage systems) at least
once each operating day, to ensure that
it is in good working order;
(B) Data gathered from monitoring
equipment (e.g.. pressure and
temperature gauges) and leak detection
equipment, at least once each operating
day, to ensure that the tank system and
leak detection system (if any) are being
operated according to their design;
(C) For uncovered tanks, the level of
recycled oil in the tank at least once
each operating day;
(D) The aboveground portions of the
tank system, if any, at least once each
operating day, to detect corrosion or
leaking of fixtures, joints, or seams; and
(E) The construction materials of, and
the area immediately surrounding the
externally accessible portion of the tank
aystem and secondary containment
structure (if any) at least weekly to
detect erosion or signs of leakage (e.g.,
oil spots, dead vegetation).
(iv) Closure of tank systems. At
closure, all'recycled oil and associated
residues must be removed from tanks,
discharge control equipment, and
discharge confinement structures (if
present).
Note.—Used oil and associated residues
removed at closure are subject to this subpart
if recycled. If disposed of (or if mixed with
another hazardous waste) the used oil and *
residues are subject to the hazardoun waste
regulations of Parts 261-265 of this chapter.
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Federal Register / Vol. 50, No. 230 / Friday, November 29, 1985 / Proposed Rules
49253
(v) Special requirements for ignitable
recycled oil. A generator who stares .
ignitable recycled oil, as defined by
§ 261.21 of this chapter, must comply
with the buffer zone requirements for
tanks contained in Tables 2-1 through 2-
6 of the National Fire Protection
Association's "Flammable and
Combustible Liquid's Code" 1977 or 1881
[incorporated by reference, see { 260.11
of this chapter].
(vi) Special requirements for tank
systems that are leaking or otherwise
anfit-for-use. A-generator with a tank
system that is leaking or otherwise unfit-
ior-use must comply with the following
in addition to otherwise applicable
paragraphs of this section:
(A) A tank system found to be leaking
must be immediately removed from
service and the generator must satisfy
the following requirements:
(1] The flow or addition of recycled oil
into the tank system must be stopped
immediately;
(2) The remaining recycled oil in the
tank system (or its secondary
containment system, if any) must be
removed as quickly as possible and no
later than 24 hours after detection of the
leak so that no further release of
recycled oil is permitted to occur and .
inspection or repair of the.tank system
can be performed;
(3) Necessary steps must be
immediately taken to contain any visible
contamination resulting from a release
from the tank system that has occurred
or is occurring: and
(4} The Regional Administrator must
be notified within 24 hours after
confirmation of the leak.
(B) Tank systems taken out of service
in accordance with paragraph
(c)(5)(vi)(A) of this section must be (at
the option of the generator) either:
(1) Closed in accordance with
Paragraph (c)(5)(v) of this section; or
(2) Repaired; or
[3] Replaced.
(C) When the generator repairs or
replaces a tank system under paragraph
(c)(5)(vi](B) of this section, he must then
comply with the standards for new tank
systems in paragraph (c](5)(vii) of this
section.
(vii) Special requirements for new
tank systems. A generator who installs a
tank system after {reserved for the
effective date of these regulations] must
comply with the following requirements
in addition to otherwise applicable
paragraphs of this section:
(A) [Reserved for secondary
containment standards]-, and
(B) [Reserved for closure and post-
closure requirements].
(6) Standards for facility
management. Generators must comply
with the following requirements:
(i) Required items. The following
items must be on-site:
(A) A telephone;
(B) An appropriate number and type
of portable fire extinguishers; and
(C) Absorbents (e.g., sawdust) or
other spill control material
Note.—Uted oil spill dean-uptnaterials
and used oil-soaked absorbent* are
hazardous wastes. If recycled, the materials
ai« subject to this Subpart If disposed of, the
material is subject to full regulation as
hazardous waste under Parts 261-265,270,
and 124 of this chapter.
(ii) Emergency coordinator. At all
times there must be at least one
employee either on the premises or on
call [i.e., available to respond to an
emergency by reaching the facility
within a short period of time) with the
responsibility for coordinating all
emergency response measures specified
in paragraph (c)(6)(v) of this section.
This is the emergency coordinator.
(iii) Arrangements with local
authorities. The generator must request
•n inspection by the local fire
department to familiarize the fire
personnel with the layout of the facility,
where oil is stored, and entrances to and
roads within the facility, and to
determine that an appropriate number
and type of fire extinguishers are
present Where the fire department
declines to conduct such an inspection,
the generator must document such
refusal and keep a record of the refusal
«t the facility.
(iv) Posting of information. The
generator must post the following
information next to the telephone:
(A) Name and telephone number of
the emergency coordinator;
(B) Location of fire extinguishers, spill
control materials, and if present, fire
alarm; and
(C) Telephone number of the fire
department, unless the facility has a
direct alarm.
(v) Emergency procedures. Either the
emergency coordinator or his designee
must respond to emergencies as follows:
(A) In the event of a fire, attempt to
extinguish it using a fire extinguisher
and call the fire department;
(B) In the event of a spill, contain the
flow of oil to the extent possible and as
soon as practical clean-up the oil and
any contaminated materials or soil;
(C) When either the fire department
must be summoned or when a spill
reaches surface waters or an adjoining
shoreline the generator must file a report
with the Regional Administrator within
15 days including the following:
[1] The name, address, and EPA
identification number of the generator,
(2) Date, time, and type of incident
(&g^ spill or fire);
(3] Quantity of oil involved in the
•incident;
(4) Extent of injuries, if any; and
(5) Estimated quantity and disposition
of recovered materials.
(vi) Personnel training. The generator
must ensure that all employees are
thoroughly familiar with proper handling
and emergency procedures under
paragraph (c) of this section.
(d) Shipments off-site. A generator or
an owner or operator who initiates a
shipment off-site must comply with the
(1) General, (i) A generator (or owner
or operator) must comply with the pre-
transport requirements of 55 262.30,
262.31,262.32, and 262.33 of this chapter,
and the international shipment
requirements of § 262.50 of this chapter.
(ii) Except as provided by paragraph
(d)(2) of this section, a generator (or
owner or operator) must comply with
the manifest requirements of Part 262,
Subpart B of this chapter, and the
exception reporting requirements of
§262.42 of this chapter.
(2) Special requirements when a
recycling contract exists. When the
conditions of paragraph (d)(2)(i) of this
section are met. the generator (or owner
or operator) may, at his option, comply
with paragraph (d)(2)(ii) of this section
Part 262, Subpart B of this chapter, and
the exception reporting requirements of
S 262.42 of this chapter.
(i) Conditions. The generator (or
owner or operator) must either:
(A) Enter Into a written agreement for
delivery of recycled oil to an authorized
facility. The generator (or owner or
operator) must keep a copy of each
agreement at his site for as long as the
agreement is in effect; or
(B) Manage the recycled oil at a
facility that he owns and that is
authorized to manage recycled oil
Note.—Section Z66.40(e)(3) defines the
types of facilities authorized to manage
recycled oil.
(ii) Requirements—(A) Required
notices. The generator (or owner or
operator), before initiating a shipment
off-site, must obtain a one-time written
and signed notice from the owner or
operator of the receiving facility
certifying that the facility is authorized
to manage recycled oil, and including
the facility's EPA identification number.
The generator (or owner or operator]
must keep each written notice received
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49251 Federal Register / Vol 50, No. 230 / Friday, November 29, 1985 / Proposed Rules
for at least three yean from the date
recycled oil is last sent to the facility.
(BJ Designated facilities. When
offering a shipment of recycled oil to a
transporter, the generator (or owner or
operator) must provide the transporter
with the names, addresses, and EPA
identification numbers of those facilities
who have provided the written notice
required by pararaph (d)(2)(ii)(A) of this
section.
(C) Records of shipments. For each
shipment off-site, the generator (or
owner or operator) must record the
following information. The records must
be retained for at least three years from
the date of shipment Required
information: •
(1) The name, address, and EPA
identification number of the transporter,
(2) The quantity of recycled oil being
shipped; and
(3) The date of shipment
§266.42 Standards f or transporters.
(^Applicability. (l)(i) This section
applies to transporters of recycled oil.
Including persons who collect from
small quantity recycled oil generators
under 1288.40(c)(2) of this subpart;
(it) This section does not apply,to on-
site transportation either by generators
or by owners or operators of facilities.
(iii) This section does not apply to
transportation of the recycled oils • .'
exempted under §| 266.40(a](2) and
2S8.40{b) of this subpart, nor tq
transportation of household-generated
recycled oil from households to •
collection centers.
(2) A transporter is subject to the
tenerator standards of § 266.41 of this
ubpart in addition to this section if he:
(i) Transports recycled oil into the
United States from abroad; or
(il) Mixes recycled oils of different
DOT shipping descriptions by placing
them In the same container.
(3){i) Except as provided by paragraph
(a)(3](ii) of this section, a transporter
who recycles or stores recycled oil at a
facility is subject to the standards for
used oil recycling facilities of 1266.43 of
this subpart .
(ii) Storage of recycled oil at a transfer
facility for a period not exceeding 10
days is exempt from { 286.43 of this
•ubpart and from permitting under Part
270 of this chapter, provided the
following conditions are met:'
(A) Containers used for storage must
meet applicable packaging requirements
of the U.S. Department of
Transportation under 49 CFR Parts 173, "
178, and 178: and 5 '
(B) [Reserved fortank system-
sacondary containment standards.}
(b) Identification numbers.
Transporters must comply with § 283.11
of this chapter.
• (c) Discharges. Transporters must
comply with Part 263, Subpart C of this
chapter.
(d) Manifested shipments. When a
transporter accepts a shipment of
recycled oil accompanied by a
hazardous waste manifest he must
comply with the manifest and
recordkeeping requirements of Part 283,
Subpart B of this chapter.
(e) Shipments without manifests. A
transporter may accept recycled oil from
a generator without a hazardous waste
manifest under the special conditions of
either § 268.40(c)(2) of this subpart
pertaining to small quantity recycled oil
generators or of § 26&41(d)(2)(i) of this
subpart pertaining to recycling
contracts. When so accepting
unmanifested shipments, the transporter
must comply with the following-
requirements in lieu of Part 283, Subpart
B of this chapter.
(1) Record of acceptance. For each
acceptance, the transporter must record
the following information. The record
must be retained for at least three years
from the data of acceptance. Required
information:
(i) The name, address, and (when
applicable] EPA identification number
of the generator (or the owner or
operator) offering the shipment;
(ii) The quantity of recycled oil
accepted;
(iii) The proper shipping name of the
oil under U.S. Department of
Transportation rules in 49 CFR Part 172;
and
(iv) The date the recycled oil is
accepted.
(2) Delivery. Transporters must
deliver all recycled oil accepted within
35 days of acceptance to a facility that
meets the following conditions:
(i) The facility is authorized to
manage recycled oil; and
(ii) Except for recycled oil collected
from small quantity recycled oil
generators under § 268.40(c) of this
subpart. the facility is one of the •
facilities designated according to
5 266.41(d)(2)(ii)(B) of ths subpart; and
(iii) When recycled oil is collected
from small quantity recycled oil
generators under § 268.40(c](2) of this
subpart, the transporter must before
delivering oil to a facility, obtain from
the owner or operator of the facility a
one-time written and signed notice
certifying that the facility is authorized
to manage recycled oil, and including
the facility's EPA identification number.
The transporter must keep each notice
received for at least three years from the
date recycled oil is last delivered to the
facility.
(3) Records of delivery. For each
delivery, the transporter must record the
following information. The records must
be retained for at least three years from
the date of delivery. Required
information:
(i) The name, address, and EPA
identification number of the receiving
facility;
(ii) The quantity of recycled oil
delivered; and
(iii) The date of delivery.
9366.43 Standards f or owmra and
operator* of i»*d oil recycling facllltlw.
(a) Applicability—{!) General, (i) This
section applies to owners and operators
of facilities that recycle or store
recycled oil, including, but not limited
to: Reclaimers, reprocessors. re-refiners,
blenders, and burners. A facility subject
to any paragraph of this section will be
known as a "used oil recycling facility."
(ii) This section does not apply to
facilities that only manage recycling oil
that has been exempted under
55 266.40(a)(2) and 266.40(b) of this
subpart
(2) Generators, (i) Except as provided
by 55 266.40(c) and 266.41(e) this
subpart, generators who recycle or store
recycled oil are subject-to this section as
well as 8 286.41 of this subpart
(ii) Except as provided by the
conditional exemptions 55 266.40(a)(2)
and 28&40(b) of this subpart an owner
or operator who initiates a shipment off-
site must comply with § 266.41(d) of the
generator requirements of this subpart
(3) Transporters. Except as provided
by the special provisions of
§ 266.42(a)(3) of this subpart for transfer
facilities, a transporter who recycles or
stores recycled oil at a facility is subject
to this section as well as § 266.42 of this
subpart
(4) Recyclers without storage, (i)
Except as provided by paragraph
(a)(4)(ii) of this section, the owner or
operator of a facility who recycles but
does not store recycled oil is subject
only to the following requirements from
this part or Part 284 of this chapter, as
applicable:
Section 264.li EPA Identification number?.
Section 264.12, required notices;
Section 2S&23. standards for uses
constituting disposal:
Section 286.41(4), requirements for shipments
sent off-site;
Section 286,43(b)(l), (b)(2), and (b)(3),
analysis requirenunentK
Section 286.43(e), acceptance of recycled oil
from off-site;
Section 266.43(f), recordkeeping and
reporting; and
Section 266.44. the standards for burner*.
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Federal Register / Vol. SO. No: 230 / Friday. November 29. 1985 / Proposed Rules 49255
(ii) The owner or operator of a facility
who recycles used oil in a surface •
impoundment is subject to all applicable
paragraphs of this section, not to the
reduced requirements of paragraph
(a)(4)(l) of this section.
(5) Additional requirements for
certain facilities. In addition to all other
applicable provisions of this Subpart,
the following owners and operators are
subject to additional requirements as
follows:
(i) An owner or operator of any of the
following kinds of facilities must comply
with Part 270, Subpart G of this Chapter
pertaining to requirements for interim
status facilities:
(A) A facility where recycled oil is
stored or recycled in a surface
impoundment; or
(B) A facility where hazardous waste
is managed in addition to recycled oil; .
or
(Q A facility where recycled oil is
managed in a manner constituting
disposal (as defined by § 266.20 of this
Chapter).
Notfe—A facility that hat received a permit
under Part 270 or Part 271 of this chapter is
not eligible for interim status. In order to
manage recycled oil. a facility that has
received a permit must comply with IS 124.5
and 270.41 pertaining to permit modifications.
(ii} As owner or operator who uses
recycled oil in a manner constituting
disposal (as defined in | 286.20 of this
chapter is subject to 9 266.23 of this
chapter.
(iii) An owner or operator who bums
recycled oil for energy recovery is
subject to 8 266.44 of this subpart."
(iv) An owner or operator who is
either excluded from permitting-by-rule
under § 270.60(d)(l) of this chapter, or
who is required to obtain an individual
facility permit under 5 270.60(d)(3) of
this chapter, must comply with § 264.101
of this chapter pertaining to corrective-
measures for releases from solid waste
management units, as applicable.
(b) General facility standards. The
owner or operator must comply with
Part 264. Subpart B of this chapter,
except that in lieu of the analysis
requirements of § 264.13 of this chapter,
the owner or operator must comply with
paragraphs (b)(l) through (b)(3) of this
section.
(1) Analysis requirements. The owner
or operator must perform sampling and
analysis as necessary to comply with
applicable provisions of this Subpart At
a minimum, the analysis must include
the following:
(i) Halogens. The owner or operator
must determine the total halogen
content of used oil managed at the
facility. Used oil containing more than
1000 ppm total halogens is presumed to
be mixed with chlorinated hazardous
waste listed in Part 261, Subpart D of
this chapter. Persons may rebut this
presumption by demonstrating that the
used oil has not been mixed with
hazardous waste. EPA will not presume
that used oil has been mixed with
hazardous waste if it does not contain
significant concentrations of chlorinated
hazardous constituents listed in
Appendix Vffl of Part 281 of this
chapter.
(ii] Ignitability. The owner or operator
must determine whether recycled oil
managed at the facility is ignitable
according to § 261.21 of this chapter,
unless all recycled oil is managed as
ignitable waste under § § 264.17,264.176,
and 264.198 of this chapter;
(iii) Specification fuel. An owner or
operator who produces fuel he claims is
exempt from regulation under
§ 266.40{a)(2) of this subpart
("specification fuel") must analyze the
fuel for arsenic, g»Hmfom, chromium,
lead, total halogens, and flashpoint An
owner or operator who produces
specification fuel is subject to
§ 266.40(b)(l) of this subpart as well as
this section.
(iv) Mixing indicator parameters for
hazardous waste facilities. The owner
or operator of a facility where
hazardous waste is managed in addition
to recycled oil must comply with the
following in addition to applicable the
requirements of paragraphs (b)(l)(i),
(b)(l](ii). (b)(l)(iii) of this section:
(A) For each hazardous waste
managed at the facility, the owner or
operator must identify at least one
indicator parameter that is found in the
hazardous waste but not normally found
in the recycled oil managed at the
facility. For wastes listed in Part 261,
Subpart D of this chapter, the indicator
•parameter would normally be the
' constituent specified in Appendix Vn of
Part 261, Subpart D of this chapter as the
basis for listing; however, the Regional
Administrator may, on a case-by-case
basis, specify one or more alternate or
additional indicator parameters; and
(B) The owner or operator must
analyze the recycled oil managed at the
facility for the parameters identified in
paragraph (b)(l)(iv)(A) of this section to
document that no »»ii«tng of hazardous
waste and recycled oil occurs.
(2) Analysis plan. The owner or
operator must develop and follow a
written-analysis plan describing the
procedures he will use to comply with
paragraph (b)(l) of this section. He must
keep the plan at the facility. At a
minimum, the plan must specify the
following:
(i) The methods used to analyze
recycled oil fpr the parameters specified
in paragraph (b)(l) of this section;
(ii) The sampling method used to
obtain representative samples to be
analyzed. A representative sample may
be obtained using either:
(A) One of the sampling methods in
Appendix I of Part 261 of this chapter; or
(B) A method shown to be equivalent
under SS 260.20 and 260.21 of this
chapter.
(iii) For paragraphs (b)(l)(i) and
(b)(l)(ii) of this section, whether
samples or other information will be
obtained from generators, or
alternatively, whether analyses will be
performed on incoming shipments of
recycled oil;
(iv) For paragraph (b)(l)(iii) of this
section, whether recycled oil will be
sampled and analyzed prior to or after
any blending or treatment in the course
of fuel production; and
(v) For all requirements in paragraph
(b)(l) of this section, the frequency of
sampling to be performed, and whether
• analysis will be performed on-site or off-
site. ,
(3) Analysis records. Records of
analyses conducted to comply with this
paragraph must be maintained at the
facility as part of the facility's operating
record.
(c) Preparedness and prevention. The
owner or operator must comply with
Part 264, Subpart C of this chapter.
(d] Contingency plan and emergency •
procedures. The owner or operator must
comply with Part 264, Subpart D of this
chapter.
(e) Acceptance of recycled oil from
off-site—{!) Manifested recycled oil. (i)
When a shipment of recycled oil
accompanied by a hazardous waste
• manifest is accepted, the owner or
operator must comply with { § 264.71
and 264.72 of this Chapter.
(2) Unmanifestedrecycled oil. (i)
When recycled oil is accepted without a
manifest in compliance with the special
provisions of SS 266.41(d)(2) and
266.42(e) of this subpart, the owner or
operator must record the following
information for each acceptance. The
records must be retained for at least
three years from the date of acceptance.
Required information:
(A) The name, address, and EPA
identification number of the transporter,
(B) The name, address, and (when
applicable) EPA identification number
of each generator who contributed to the
shipment;
(C) The quantity of recycled oil
accepted; and
(D) The date of acceptance.
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49256 Federal Register / VoL 50. No. 230 / Friday. November 29. 1985 / Proposed Rules
(li) When recycled oil is delivered
•without a manifest but arrangements
have not been mada under
SI 2B6.41(d)(2) and 286.42{e) of this
chapter, the owner or operator must
comply with § 264.76 of this chapter
pertaining to unmanifeated waste
reports.
(3) Hazardous waste mixtures. When .
an owner or operator determines
through analysis required by paragraph
(b)(l){i) of this section or other means
that an incoming shipment (that was
expected to be recycled oil but instead]
has been mixed with hazardous waste,-
he must:
(i) Either refuse to accept the
shipment, or accept the shipment and
manage the mixture as hazardous waste
under Parts 262-265, Part 266 Subparts C
and D, and Parts 270 and 124 of this
chapter; and
NoU.—Under if 282,20 and 283.21. when a
shipment ofhazardous waits cannot be
delivered to the generator's designated
facility, the transporter must take the wast*
to an alternate facility or return it to the
generator.
(ii) If the shipment is not manifested,
comply with the requirements of
{ 264.76 of this chapter pertaining to
unmanifested waste reports.
(I) Recordkeeping aiid reporting. In
'addition to the requirements of
paragraphs (b)[3) and (e) of this section.'
the owner or operator must comply with
the following record-keeping and
reporting requirements from Past 264 of
this chapter: ,.
Section 264.73, operating record:
Section 2M.74. availability, retention, and
disposition of records;
Section 284.75. biennial report and
Section 264.77, additional reports.
(g) Closure, post-closure, and
financial requirements, (i) Owners or
operators must comply with Subparts G
and H of Part 285 of this chapter.
, (H) The owners or operator of any of
the facility types excluded from
permitting-by-rule under § 270.60{d)(l)
of this chapter, or who is required to
obtain an individual permit under
§270.60{d)(3) of this chapter, must
comply with Subparts G and H of Part
264 of this chapter as well as Subparts G
and H of Part 265 of this chanter.
(h) Storage requirements—{!)
Containers. An owner or operator who
stores recycled oil in containers is
subject to Part 264, Subpart I of this
chapter.
(2) Tank systems, (i) An owner or
operator who stores recycled oil in
tanks is subject to Part 265, Subpart J of
this chapter. * *
(ii) The owner or operator of any of
the facility types excluded from
permitting-by-rule Under § 270.60(d)(l)
of this chapter, or who is required to
obtain an individual permit under •
S 270.60(d)(3) of this chapter, must
comply with Part 264, Subpart J as well
as Part 265, Subpart J of this chapter.
(3) Surface impoundments. An owner
or operator who recycles or stores
recycled oil in a surface impoundment is
subject to Part 265, Subparts F and K
and Part 264. Subparts F and K of this
chapter.
{260.44 Standards for burner*,
(a) Applicability. (1) General, (i) This
section applies to any person (by site)
who bums recycled oil A person who
bums will be known as a "burner."
(ii) This section does not apply when
the special requirements of
f 266.40(b)(l) pertaining to specification
fuel are complied with.
(iii) This section does not apply to
small quantity recycled oil generators
who bum on-site in compliance with
S 266.40{c)(l) of this subpart.
(2) Generators who bum on-site are
subject to S 266.41 of this subpart in
addition to this section.
(3) Burners are subject to the
standards for used oil recycling facilities
in § 266.43 of this subpart in addition to
this section.
(b) [Remainder of this section
reserved for substantative standards for
burners.]
PART 270—EPA ADMINISTERED
PERMIT PROGRAMS: THE
HAZARDOUS WASTE PERMIT
PROGRAM
9. The authority citation for Part 270 is
revised to read as follows: .
Authority: Sees. 1006.2002(a). 3005,3007,
3014. and 7004 of the Solid Waste Disposal
Act as amended by the Resource
Conservation and Recovery Act of 1870, as
amended [42 U.S.C. 6901,6912(a), 6925.6927.
6934, and 6874] unless otherwise noted.
10. In Part 270, a new definition is
added to S 27U2 to read as follows:
§27112 Deflntllene.
• *.•••
"Recycled oil" means used oil that is
either burned for energy recovery, used
to produce a fuel, reclaimed (including
used oil that is reprocessed or re-
refined), or otherwise recycled, or that is
accumulated, collected, stored,
transported, or treated prior to recycling.
(a) [Reserved to define specific types
of burning considered to be recycling.}
(b) The term includes mixtures of
recycled oil and other materials, but not
mixtures containing hazardous waste
(other than used oil). Used oil containing
more than 1000 ppm of total halogens is
presumed to be mixed with chlorinated
hazardous waste listed in Part 261,
Subpart D of this chapter. Persons may
rebut this presumption by demonstrating
that the used oil has not been mixed
with hazardous waste. EPA will not
presume mixing has occurred if the used
oil does not contain significant
concentrations of chlorinated hazardous
constituents listed in Appendix Vm of
Part 261 of this Chapter.
« • * • •
11. In § 270.10, paragraph (a) is
revised to read as follows:
g 270.10 General appHcatfon
requirements.
(a) Permit application. (1) Any person
.who is required to have a permit
(including new applicants and
permittees with expiring permits) shall
complete, sign, and submit an
application to the Director as described
in this section and SS 270.70 through
270.73.
(2) Persons currently authorized with
interim status shall apply'for permits
when required by the Director.
Except as provided by this paragraph
for used oil recycling facilities, persons
covered by RCRA permits-by-rule
.(§ 270.60) need not apply. The owner or
operator of a used oil recycling facility
who is not excluded from permit-by-rule
eligibility by S 270.60(d)(l) of this part
but who is not in full compliance with
the permit-by-rule requirements of
§ 270.60(b)(2) of this Part as of [insert
effective date of the final rule
§ 270.6O(d)(2j\ must provide written
notice to EPA, by [insert effective date
of the final rule §270.BO(d) (2JJ that
notification information submitted to
EPA pursuant to RCRA section 3010 is
intended to also satisfy the RCRA
eection 3005(e)(l)(C) "permit
application" requirement* for interim
otatua.
(4) Procedures for applications.
issuance, and administration of
emergency permits are found
exclusively in S 270.61.
o * • • •
12. In Part 270, a new paragraph (d) is
added to § 270.60 to read as follows:
J1270JO Pafmttabyruto.
o • • • *
(d) Used oil Recycling Facilities.
Except as provided by paragraph (d)(l)
or (d)(3) of this section, the owner or
operator of a facility that recycles or
stores recycled oil if the owner or'
operator complies with the requiremecta
of paragraph (d}(2) of this section.
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Federal Register / Vol. SO. No. 230 / Friday. November 29, 19B5 / Proposed Rules 49257
(1) Exclusions from the permit-by' '
rule. Owners and operators of the
following kinds of facilities are not
eligible for the permit-by-rule. and are
subject to individual permitting under
this Part:
(i) Recycled oil is stored in* surface
(ii) Recycled oil is used at die facility
in a manner constituting disposal, as
defined by f 26&20 of this Chapter: or
(iii) Other hazardous wastes are
managed at the facility in addition to -
recycled oiL
(2) Requirements, An owner or
operator not excluded from permit-by-
rule eligiblity by paragraph (d)(l) of this
section must comply with the following
requirements:
(i) Standards. The owner or operator
must comply with 50 266.43 and 266.44
of rt"« Chapter, including amendments
or modifications to § 266.43 or f 266.44
of this chapter within time limits as -
specified in the Federal Register:
(ii) Duty to comply. The owner or
operator must comply with all
conditions of 8 266.43 and 266.44 of this
chapter except that the owner or
operator need not comply with the
conditions to the extent and for the
duration such non-compliance is
authorized in an emergency permit as
provided by i 270.61 of this Part Any
non-compliance, except under the terms
of an emergency permit constitutes a
violation of the Act and is grounds for
an enforcement action.
Note.— Whoa there Is a violation of
f 27Oeo(d)(2) of this Pert, the EPA Regional
Administrator may take enforcement action
under section 3008 of RCRA. Such action may
include compliance order* end schedules,
including monitoring schedule*, and including
revocation of authorization to manage
recycled oil, a* appropriate.
(iii) Need to halt or reduce activity not
a defense. It shall not be a defense for
an owner or operator in an enforcement
action that it would have been
necessary to halt or reduce the
permitted activity in order to maintain
compliance with the requirements of
f 266.43 or 8 266.44 of this chapter.
(iv) Duty to minimize. In the event of
noncompliance, the owner or operator
must take all reasonable steps to
minimize releases to the environment
and must carry out such measures as are
reasonable to prevent significant
advene impacts on human health or the
environment
(y) Proper operation and
maintenance. The owner or operator
must at all times properly operate and
maintain all facilities and systems of
treatment and control (and related
appurtenances) which are installed or
used by the owner or operator to
achieve compliance with 8 266.43 or
J 266.44 of this chapter. Proper operation
and maintenance includes effective
performance, adequate funding,.
adequate operator staffing and training,
and adequate laboratory and process
controls, including appropriate quality
assurance procedures.
(vi) Property rights. The permit-by-
rule of this section does not convey any
property rights of any sort nor any
exclusive privilege.
(vii) Duty to provide information. The
owner or operator must furnish to the
Director, within a reasonable time, any
relevant information which the Director
may request to determine whether cause
exists for revocation of permit-by-rule
authorization or for requiring an
individual permit or to determine
compliance with 8 266.43 or 8 266.44 of
this chapter. The owner or operator
must also furnish to the Director, upon
request copies of records required to be
kept by 8 286.43 or 8 266.44 of this
chapter.
(viii) Inspection and entry. The owner
of operator must allow the Director, or
an authorized representative, upon
presentation of credentials and other
documents as may be required by law
to:
(A) Enter at reasonable times upon
the owner or operator's premises where
a regulated facility or activity is located
or conducted, or where records must be
kept under 8 266.43 or 8 266.44 of this
chapter:
(B) Have access to and copy, at
reasonable times, any records that must
be kept under 8 266.43 or 8 266.44 of this
chapter;
(C) Inspect at reasonable times any
facilities, equipment (including
monitoring and control equipment),
practices, or operations regulated or
required under 8 266.43 or 8 266.44 of
this chapter; and
(D) Sample or monitor at reasonable
times, for the purposes of assuring
compliance with 8 266.43 or 8 266.44 or
as otherwise authorized by the Act any
substances or parameters at any
location.
(ix) Representative sampling. Samples
and measurements taken to comply with
8 266.43 or 8 268.44 of this chapter must
be representative of the volume and
nature of the sampled or measured
activity.
(x) Recording of monitoring. The
owner or operator must retain records of
all monitoring information and copies of
all reports required for a period of at
least 3 years from the date of the.
sample, measurement or report
Records of monitoring must include:
(A) The date, exact place, and time of
sampling or measurement;
(B)rThe individual(s) who performed
the sampling or measurements;
(C) The dates analyses were
performed;
(D) The individual(s) who performed
the analyses;
(E) The analytical techniques or
methods used; and '
(F) The results of such analyses.
(xi) Operating record. A written
operating record must be kept at the
facility. The following information must
be recorded as it becomes available and
maintained in the operating record until
facility closure:
(A) A description of and the quantity
of recycled oil managed at the facility;
(B) The location of recycled oil stored
at the facility and the quantity stored at
each location;
(C) Summary reports and details of all
incidents that require implementation of
the contingency plan;
(D) Records and results of inspections
(including the date and nature of any
necessary repairs); and
(E) Results of any monitoring
performed to comply with 5 266.43 or
8 266.44 of this chapter.
(xii) Signatory requirement. All «
reports or information submitted to the
Director must be signed by a responsible
corporate officer [as defined by
8 270.11(a)(l) of this part], by a general
partner, by the sole proprietor, or by the
principal executive officer or ranking
elected official, and must include the
following certification:
I certify under penalty of law that this
•document and all attachment* were prepared
under my direction or supervision in
accordance with a sy*tem designed to assure
that qualified personnel properly gather end
evaluate the information submitted. Based on
my inquiry of the person or persons who
manage the system, or those persons directly
responsible for gathering the information, the
information submitted is, to the best of my
knowledge and belief, true, accurate, and
complete. I am aware that there are
significant penalties for submitting false
information, including the possibility of fine
and imprisonment for knowing violations.
(xiii) Anticipated noncompliance. The
owner or operator must give notice to
the Director of any planned changes in
the facility or activity which may result
in noncompliance with either 5 266.43 or
8 286.44 of this chapter.
(xiv) 24 hour reporting. (A) The owner
or operator must report any
noncompliance which may endanger
human health or the environment orally
within 24 hours from the time he or she
becomes aware of the circumstances,
including:
[1] Information concerning release of
any recycled oil or hazardous
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49258 Federal Register / Vol-50. No.~Z30 / Fricfay. November 29, 1985 / Proposed Rules
constituent thereof that may cause an
endangerment to public drinking water
supplies; and
(2) Any information of a release or
discharge of recycled oil or hazardous
constituent thereof or of a fire or
explosion from the facility, which could
threaten the environment or human
health outside the faculty.
(B) The description of the occurrence •'
and its cause must include:
(i) The name, address, and telephone
number of the owner or operator;
(2) The name, address, and telephone
number of the facility;
(3) The date, time, and type of
Incident;
(4] The name and quantity of
material(s) involved;
(5) The extent of injuries, if any;
(6) An assessment of actual or
potential hazards to human health or the
environment outside the facility, if
applicable; and
(7) Estimated quantity and disposition
of recovered material, if any, resulting
from the incident
. (C) A written submission must also be
provided with in 5 days of the time the
owner or operator becomes aware of the
circumstances. The written submission
must contain • description of the
noncompliance and its cause; the period
of noncompliancs including exact dates
and times, and, if the noncompliance
has not been corrected, the anticipated
time it is expected to continue; and steps
taken or planned to reduce, *»Hm
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Federal Register / Vol. 50, No. 230 / Friday, November 29, 1985 / Proposed Rules
49259
DATES: EPA will accept pnblic
comments on this proposal antfl
28,1986. Public hearings will be held to
obtain public comments on this proposal
and the proposed management
standards for recycled oil (appearing
elsewhere in this Federal Register) on
January 8,10, and 16 of 1986. The
locations for the public hearings are
provided below; for additional
information on the public hearings, see
Part Four, Section 111 of the management
standards preamble.
ADDRESSES: EPA will hold public
hearings at the following locations^.
• Januarys. ISSS—Holiday Inn. North
Park Plaza, 10650 North Central
Expressway, Dallas, Texas 75231
(Phone: 214/373-6000.
• January 20,1986—Ramada
Renaissance, 55 Cyril Magnin Street
(One block north of 5th & Market), San
Francisco, California 94102 (Phone: 415/
392-6000)
• January 18,1986—Department of
Health and Human Services, North
Auditorium ("C" Street entrance), 330
Independence Avenue SW, Washington,
DC 20201.
Comments on this proposal should be
mailed to the Docket Clerk (Docket No.
soot/Listing of Used Oil), Office of Solid
Waste (WH-562), U.S. Environmental
Protection Agency, 401M Street S.W-
Washington. D.Q 20460.'Comments
received by EPA may be inspected in
Room S-212, U.S. EPA, 401M Street
SW.. Washington, DC, from fl:00 ajn. to
4.-00 p.m. Monday through Friday,
excluding holidays.
FOR FURTHER INFORMATION CONTACT:
The RCRA Hotline, call toll free at (800)
424-9346 or at (202) 382-3000. For
technical information, contact Matthew
Straus, Chief. Waste Identification
Branch, Characterization and
Assessment Division. Office of Solid
Waste, (WH-562B), US. Environmental
Protection Agency. 401M Street SW.,
Washington, DC 20460. Telephone: (202)
475-8551. Single copies of the proposal
may be obtained by calling the RCRA
Hotline at the number above.
SUPPLEMENTARY INFORMATION:
Outline of Today's Proposal
L Introduction
A. Background
B. Used Oil Recycling Act (UORA)
C. Hazardoiu and Solid Watte
Amendments of 1984
H Relationship of Used Oil Listing to Section
3014 Management Standards for
Recycled Oil
m. Summary of Proposed Used Oil Listing
IV. Applicability and Scope of Used Oil
LUting
A. Authority to List Used Oil as a
Hazardous Waste
B. Scope of Used Ofl Listing
X. Definition of Used Oil
2. Re-refined Oil
_ ». Mixtures of Used Oil and Other
Materials
a. Existing Mixture Rule
b. Mixtures of Wastewater and Used Oil
c. Oil-Contaminated Industrial Wipers
foilyrags)
C Delisting Procedures for Used Oil
V. Basis for Listing Used Oil as a Hazardous-
Waste
A. Criteria for Listing
B. Summary of Used Oil Universe
C. Toxic Constituents of Concern
D. Waste Constituent Mobility:
Environmental Fate and Transport
E. Waste Mismanagement Potential
VL CERCLA and Clean Water Act Impacts:
Proposal to Adjust Used Oil Reportable
Quantity to 100 Pounds
VTL State Authorization Impacts
VUL Request for Comments
DC. Executive Order 12291
X. Regulatory Flexibility Act
XL Paperwork Reduction Act
Xn. List of Subjects
L Introduction
A. Background
On December 18,1978, EPA initially
proposed guidelines and regulations for
the management of hazardous wastes
and specific rules for the identification
and listing of hazardous wastes under
Section 3001 of RCRA. See 43 PR 58946.
At that time, EPA proposed to list waste
lubricating oil' and waste hydraulic and
cutting oil as hazardous wastes on the
basis of their toxidty. In addition, we
also proposed to regulate used
lubricating, hydraulic, transformer,
transmission, or cutting oil that was
hazardous and was incinerated or
burned as a fuel and waste oUs (again.
that were hazardous) that were used in
a manner constituting disposal* (See
proposed § 250.10 where the Agency
proposed to define the term "other
discarded material" that is used in the
definition of "solid waste.")
A large percentage of commenters on
the 1978 proposal argued that the
Agency should not list waste oil as
hazardous because most waste oil was "*
reused and was, therefore, not a waste;
in addition, they argued that such a
designation would have serious impacts
on the recycling industry. Consequently,
in its May 19,1980 regulations, EPA
decided to defer promulgation of rules
covering the use or recovery of many
•The term "wait* ofl" indud** both o*ed and
•nosed oili which may no longer be nsed for tfaair
origins] purpoie. While the Agency initially
coniidcred lilting the entire watte oil tmivene,
tpday'i proposed ruto apply only to that portion ef
OprtVOQ Ol O98Q OllC*
waste streams, including waste oil, in
order to fully consider whether waste-
and use- specific standards should be
implemented rather than imposing the
full set of Subtitle C regulations on
potentially recoverable and valuable
materials. See 45 FR 33084. EPA stated
in the preamble to those regulations that
it intended to address the reuse and
recovery of waste oil in the Fall of 1980.
Since the Agency had anticipated
controlling the recycling of used oil
within a short time, is also decided not
to list waste oil for disposal in the 1980
regulations in order to deal with the
entire waste oil issue at one time. Under
the May 19,1980 regulations, however,
nsed oil that exhibits any of the
characteristics of hazardous waste [i.e.,
. ignitability, corrosivity, reactivity, or
extraction procedure (EP) toxicity) and
is disposed (or accumulated, stored, or
treated prior thereto] is hazardous and
subject to full regulation under Subtitle
C of RCRA.
B. Use Oil Recycling Act (UORA)
In an effort to encourage the recycling
of used oil, and in recognition of the
hazards posed by its mismanagement,
on October 15,1980, Congress passed
the Used Oil Recycling Act (UORA)
(Pub. L. 96-483). Among other
provisions, the UORA required the
Agency to make a detemmation as to
the hazardousness of used oil and report
such findings to Congress together with
a detailed statement of the data and
other information upon which the
determination was based; in addition,
the Agency was to establish
performance standards and other
requirements under Section 7 of the
UORA as "may be necessary to protect
the public health and the environment
from hazards associated with recycled
oil" as long as such regulations "do not
discourage the recovery or recycling of
nsed oil."
In January 1981, EPA submitted the
Used Oil Report to Congress mandated
by Section 8 of the UORA * indicating in
the report that the Agency intended to
list both used and unused waste oil as
hazardous under section 3001 of RCRA.
The Agency based its intention to list
both used and unused waste oils on the
presence of a number of toxicants that
are present in crude or refined oil (e.g.,
benzene, naphthalene, and phenols) as
well as contaminants which are presen'.
in nsed oil as a result of use (e.g., lead,
chromium, and cadmium).4
the wait* ofl unfrane <
*"U*e in a manner conititntion disposal" means
the placement of hazardou watte directly onto the
land for beneficial recycling or the placement of
products which contain certain hazardou* waits
onto the land for beneficial recycling.
'Report to Congrmx totting of Watts Oil a* a
Hatardota Watt* PurmaM to Sect/on (81(2). Pub. L
ee-463; U.S. EPA. 1881.
•In detailed comment* on the Uied Oil Report to
Congreu lubmitted to the Agency by the American
Continued
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49260
Federal Register / Vol. 50, No. 230 / Friday, November 29, 1985 / Proposed Rules
C. Hazardous and Solid Waste
Amendments of 1984
On November 8,1984, the President
signed the Hazardous and Solid Waste
Amendments of 1984 ("1984
Amendments"). These amendments.
taken along with the provisions of
section 3012 of RCRA (which
incorporated section 7 of the UORA),
establish the requirements for the
regulation of used oil which are now
embodied in section 3014 of Subtitle C of
RCRA.1 Section 3014(a) requires the
Administrator to:
... promulgate regualtioni. . . u may be
necessary to protect the public health and
environment from the hazards associated
with recycled oil In developing such
regulation*, the Administrator shall conduct
an analysis of the economic impact of the
regulations on the oil recycling induitry. The
Administrator shall ensure that such
regulations do not discourage the recovery or
recycling of used oil. consistent with the
protection of human health and the
environment
These amendments alter EPA's
mandate with respect to the regulation
of used oil by stipulating that protection
of human health and the environment is
the prime consideration, even if such
regulation may discourage the recovery
or recycling of used oil. in some cases.
The comprehensive management
standards for recycled used oil
mandated by section 3014 are being •'
proposed today in another section of
today's Federal Register. A more
detailed discussion of the background •
leading to the development of those
management standards is contained in
the notice.
Of specific relevance to today's
proposed listing of used oil as a
hazardous waste is section 3014(b) of
RCRA which requires the Administrator
to propose whether to list or identify
used automobile and track crankcase oil
as a hazardous waste by November 8,
1985, and to finalize that proposal as
well as determine whether other used oil
should be listed or identified as
hazardous by November 8,1988. Today's
proposal reflects the Agency's
determination that petroleum derived
and synthetic used oil should be listed
as a hazardous waste under Section
3001 of RCRA.
Petroleum Institute (API) In December 1061. API
raited several tones relevant to the proposed listing
of both used and unused "waste oils." Since the .
Agency U repropoelng the listing of used oil u a
hazardous waste, the Agency will not respond to
specific comments on previous proposals regarding
used oil. APT* comments, however, are available
for review in the RCRA docket. „
'Prior lo the 1964 Amendments, the used oil
requirements were found In section 3012-ofRCRA.
Since a substantial amount of time
has elapsed since the 1978 proposal and
since the Agency has obtained extensive
additional data on the constituents of
used oil, the Agency has decided to re-
propose the listing of used oil and seek
additional public comment, rather than
publish the listing as a final rule.
Consequently, persons who commented
on the 1978 proposal should resubmit .
their comments or submit new
comments for consideration in this
rulemaking.
U. Relationship of Use Oil Listing to
Section 3014 Management Standards for
Recycled Oil
The management standards being
proposed in another section of today's
Federal Register are being issued under
the authority of sections 3004 and 3014
of RCRA.* Under section 3014 of RCRA,
EPA is required to establish standards
applicable to recycled used oil that will
protect public health and the
environment and, to the extent possible
within that context, not discourage used
oil recycling. Section 3014(c) provides
specific guidance to EPA on the
standards applicable to generators and
transporters of recycled used oil that is
identified or listed as hazardous under
section 3001. Section 3014(d) provides
that the owner or operator of a facility
that recycles used oil is subject to the
Section 3004 hazardous waste standards
but is deemed to have a RCRA permit
provided the recycling facility complies
with those standards. Section 3014(d)
also provides the Administrator with
authority to require such owners or
operators to obtain an individual permit
under section 3005(c) if he determines
that an individual permit is necessary to
protect human health and the
environment
Today's proposed listing of used oil as
a hazardous waste is based simply on
EPA's determination that used oil meets
the criteria for listing under section 3001
of RCRA. (See 40 CFR 2Bl.ll(a)(3).)
Therefore, under today's proposed
listing, disposalT of hazardous used oil
• EPA recently began the process of regulating
med oil burned as a fuel by finalizing the "Phase P
management standards os the actual burning of
used oil and administrative controls on persons who
market and bum hazardous waste fuel and used oil
fuel The management standards for the recycling of
used oil being proposed elsewhere in today's
Federal Register will supplement the Phase I
burning and blending rules as those rules apply to
used oil.
T For purposes of this rulemaldng. the term
"disposal" is simply intended to distinguish
between the management of used oil under the
existing provisions of Sections 3002 thru 30M versus
that used oil which is recycled and subject to the
provisions of Section 3014. It does not reflect a
rethinking of statutory or regulatory concepts of
what constitutes "disposal". • i
will be subject to regulation under 40
CFR Parts 282-265,124. end 270-271,
while recycled used oil that is
hazardous will be subject to the
recycled used oil rules codified in 40
CFR Part 286.
Persons interested in commenting on •
this listing and/or on the 3014 standards
should note that the scope of today's
notice proposing to list used oil as a
hazardous waste is different from that of
the accompanying notice which
' proposes specific standards for the
management of recycled oil under
section 3014. The main issue relevant to
the proposed listing of used oil is
whether used oil meets the criteria for
listing contained in § 261.11 (a)(3).
However, other issues addressed in this
notice that may also be of interest
include the Agency's definition of used
oil, modifications to the mixture rule to
exempt certain oil mixtures from
regulation, and the Agency's proposal to
adjust the statutory RQ of used oil
The second of today's proposals
concerning used oil, on the other hand,
seeks to address the broader issues
concerning the extent of regulation that
should be imposed on used oil recycling
practices in order to protect human
health and the environment and, to a
lesser degree, the specific impacts of
that regulation on the various segments
of the recycling industry. The Agency's
detailed analyses of the used oil
universe, management practices, and
regulatory and economic impacts are,
therefore, to be found in the
accompanying Federal Register proposal
rather than in this notice.
HI. Summary of Proposed Used Oil
Listing
This notice proposes to amend 40 CFR
Part 261, Subpart D, to add used oil to
the list of hazardous wastes. As detailed
in the Basis For Listing Section, below
EPAJjas evaluated used oil against the
criteria for listing hazardous wastes
contained in § 261.11(a)(3) and has
determined that it poses • substantial
present or potential hazard to human
health or the environment when
improperly managed. This determination
is based on analytical data from
approximately a thousand used oil
samples that indicate that a number of
toxic constituents are typically and
frequently present in used oil at levels of
regulatory concern, either as a direct
result of use or subsequent adulteration.
In addition, these toxicants have the
potential to migrate from used oil and
escape into the invironment. This has
been demonstrated in a large number of
damage cases where used oil was
mismanaged and presented a
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Federal Register / Vol. 50. Ho. 230 / Friday. November 29. 1985 / Proposed Rules 4926!
substantial hazard to human health and
the environment.*
- The toxic constituents of concern
identified by the Agency include lead,
three chlorinated aliphatic
hydrocarbons (1.14-trichIoroetnane,
trichloroethyiene, and
tetrachloroethylene), toluene, and
naphthalene. EPA also has identified as
constituents of concern several metals-
cadmium, arsenic, and chromium—
which are typically found ia used oil at
concentrations, which may pose a
significant risk when used oil is burned.
A regulatory definition of used oil is
being proposed today for inclusion in 40
CFR 260.10. The proposed definition of
used oil includes all petroleum-derived
or synthetic oils ' originally used as a
lubricant (including engine oils], as a
hydraulic fluid, as a metal working fluid
(including cutting, grinding, and
machining fluids, and rolling, stamping,
quenching, and tempering oils), and as
an insulating fluid or coolant10 Except
as provided below, the above used oils
will all be considered hazardous wastes
when disposed of, whan recycled, or
when accumulated, treated, stored or
transported prior to disposal or
recycling.
Excluded from the listing of used oil
are crude or fuel oils spilled onto the
land-or water? and wastes from
petroleum refining operations such as
API separator sludge. Today's notice
also proposes to exclude from the used
oil listing re-refined oil used as a
lubricant since the Agency has
determined that re-refined oil that is
used as a lubricant is not a solid waste
and thus is not a hazardous waste. In
addition. EPA is proposing to amend the
mixture rule (§ 261-3(a)(2)) to exclude
from regulatory control: (1) wastewaters
contaminated with small amounts of
used oil; and (2) industrial wipers (i.e.
"oily rags") contaminated with used oil
as a result of being used to clean the
face and hands of the user or wipe or
clean equipment or machinery.
Finally. EPA is proposing an
amendment to 40 CFR Part 302 to list
used oil as a CERCLA hazardous
substance and is proposing to establish
a reportable quantity (RQ) for used oil
of 100 pounds.
*$ee ti* Background Docmmmt for Umd Oil (or
diacuaaioB of damage incidents «1 uaed oil fadlitiem.
•Synthetic oila ere being induded to today1*
listing for the nuaona aet forth in Section IV3.
"In addition, oil derived from pyrolyaii of acnp
tin* would «l»o be covered by the naed oil Bating
efter uae end
IV. Applicability and Scope el Used Oil
I Jilting
A. Authority to List Used Oil as a
Hazardous Waste
Section 3001 of RCRA provides the
Agency with the general statutory
authority under RCRA for identification
and listing of hazardous wastes. The
1984 Amendments to RCRA specifically
pequire EPA to excercise this authority
and propose whether to list or identify
used automobile and truck crankcase oil
M a hazardous waste by November 8,
1985, and to finalize that proposal as
well as determine whether other used oil
should be listed or identified as
hazardous by November 8,1986. (See
section 3014Cb}.)
These amendments also affirm the
Agency's authority to regulate, as a
hazardous waste, used oil that is
recycled, even though such regulation
. may have a discouraging effect on some
recycling. Prior to the 1984 amendments,
the Agency was directed to ensure that
its regulations did not "discourage the
recovery or recycling of used oiL"
However, the 1984 amendments deleted
this language with respect to the listing
decision and modified it for the used oil
management standards by adding the
phrase "consistent with protection of
human health and the environment" By
doing this. Congress clearly intends for
the Agency to regulate recycling
activities sufficiently to assure adequate
protection while reducing, as much as
possible, the impact on the recycling
industry as a whole. The conference
report accompanying the 1984
amendments specifically notes that"
. . . [T]he purpose of the provisions is to
clarify the intent of section 3014 in order
to assure that EPA's regulations in this
area are protective of human health and
the environment... It was never
Congress* intent that protection of
human health and the environment be
subordinated to the continuation of used
oil recycling activities. The Agency can
and should prohibit or control used oil
recycling practices that it determines
will pose a potential hazard to human
health and the environment even though
such regulations would impede
recycling." (See HJL Conf. Rep. No.
1133,98th Cong. 2nd Sess. 113 (1984)).
B. Scope of Used Oil Listing
As discussed earlier in this preamble.
today's proposed listing applies to used
oil when disposed of, recycled, or when
accumulated, stored, or treated prior to
being disposed or recycled. This section
discusses EPA's regulatory definition of
"used oil" as well as the special status
of re-refined oil. Lastly, this section will
explain the amendments to the mixture
rule contained hi S 281.3(a)(2) that will
propose to remove from regulatory
control: (1) Wastewaters that are
contaminated with small amounts of
used oil; and (2) industrial wipers used
to clean up small oil spills and wipe or
dean equipment machinery, or the face
and hands of the user.
1. Definition of Used Oil. EPA is
proposing a definition hi 40 CFR 260.10
for "used oil" as follows:
"Used Oil" to petroleum-derived or
synthetic oil including, but not limited to, oil
which is need si a: i] Lubricant (engine,
turbine, or gear); if) Hydraulic fluid (including
transmission fluid)-, iii) Metalworkmg fluid
(including cutting, grinding, machining,
rolling, stamping, quenching, and coating
oils;] or iv) Insulating fluid or coolant, and
which is contaminated through use or
subsequent management
This definition would include those
used oils that are contaminated with
PCB's. However, it should be noted that
the use of used oils containing any
concentration of PCBs and the disposal
of used oils containing 50 ppm or greater
of PCBs are subject to the TSCA PCS
rules promulgated under 40 CFR Part
761. Under the'current TSCA PCS rules,
the use of used oils containing any
concentration of PCBs is prohibited and
the disposal of used oil containing 50
ppm or greater PCBs ia strictly
controlled. When today's listing
proposal is promulgated, users and
disposers of used oils containing PCBs
will be subject to both the TSCA and
RCRA regulations until the Agency
integrates the PCB rules with the
hazardous waste rales. Where both sets
of regulations are applicable, EPA will
apply the more stringent of the two
requirements. The Agency, however.
solicits information on whether certain
used oils containing PCBs should be
excluded from the listing because they
do not typically contain other toxic
constitutents (e.g. metals).
Examples of petroleum wastes which
are not "used oils" include: crude oil or
virgin fuel oil spilled on the land or
water; oily sludge in the bottom of crude
or fuel oil storage tanks; and wastes
from petroleum refining operations such
as API separator sludge.
This regulatory definition is drawn
partly from the statutory definition of
used oil found at section 1004(36) of
• RCRA. That section defines "use oil" as
any oil which has been:
A. Refined from crude oil
B. Used, and
C As a result of such use,
contaminated by physical or chemical
impurities.
The Agency is interpreting the
definition of used oil contained in the
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'49262 Federal Register / Vol. SO. No. 230 / Friday. November 29.. 1985 / Proposed Rules
•statute to include: (1) Used oils which
are adulterated subsequent to use as
well as those that are contaminated "as
a result of such use" (section 1004(36]);
(2) synthetic oils, including those
derived from coal or shale; and (3)
processing residues from the recycling of
used oil.11
EPA's broad regulatory definition of
used oil is based on a combined
interpretation of sections 1004(36) and'
3014. The proposed definition
incorporates both the specific elements
of section 1004(36} as well as the factors
necessary to meet the related statutory
mandate of section 3014. The specific
language and legislative history of
section 3014 make clear that Congress
passed section 3014 to address the wide
range of troublesome and difficult
problems associated with used oil
recycling activities from generation and
collection, through treatment and
processing, to final end use. This broad
objective is reflected in Congress*
comprehensive mandate to EPA to
"promulgate regulations—as may be
necessary to protect public health and
environment from hazards associated
with recycled oil." Section 3014{a)
(emphasis added). As recycled oil is
defined in terms of used oil, it is
necessary to define used oil in such a
way as to ensure that the Section 3014
regulations cfcraddress the many
hazards that can normally and
reasonably be expected to be associated
with the recycling of used oiL To define
ihe term more narrowly would permit a
number of regulatory loopholes and
create implementation problems that
would run counter to Congress' explicit
intent "to reduce the uncertainty and'the
gaps in the regulatory treatment of used
oil" (See H.R. Conf. Rep. No. 1133.98th
Cong. 2nd Sess. 113 (1984).
With respect to oils adulterated
subsequent to use, the Agency has
concluded, on the basis of extensive
sampling and analyses, that used oil
typically and frequently contains
several contaminants which are found in
used oil as a result of intentional or *
inadvertent mixing subsequent to use
rather than as a direct result of a
particular use. The Agency has found
that under existing mismanagement
practices, used oil is frequently mixed or
blended with other waste liquids which
contain toxic contaminants (many of
them not yet defined as hazardous
under RCRA) either at the generation
site or at used oil processing facilities.
These contaminants, although not
present as a result of actual use, are,
nevertheless, present at levels of
regulatory concern in most used oil
samples tested. Therefore, they are
being listed among the constituents of
concern which form the basis for today's
proposed listing.
The Agency could list these used oils
as hazardous (i.e., those which become
contaminated with non-hazardous
wastes subsequent to use) and not
subject them to the special management
standards, but rather to the Subtitle C
rules. However, we believe that used
oils which contain essentially identical
constituents and pose essentially the
same risk be regulated similarly. In
addressing specifically this issue, the
Senate Committee on Environment and
Public Works, in its report on used oil
stated "Under some circumstances, it
may be difficult to determine if a waste-
derived fuel should be classified as a
used oil fuel or a hazardous waste fuel
For example, used oil contains
contaminants, such as lead, that may be
present either through use of the oil or
through deliberate adulteration. Both
hazardous waste fuel and contaminated
used oil fuel should be regulated in
accordance with these new provisions,
as necessary, to protect human and the
environment The Agency, however, has
some discretion as to how to classify
these types of fuel mixtures." Sen. Rep.-
No. 284,88th Cong., 1st Sess., 38 (1983).
Therefore, we believe the Agency has
discretion to expand the difinition of
used oil as currently defined in RCRA to
include those oils which become
contaminated (with non-hazardous
wastes) subsequent to use and thus, <
subject those used oils that are recycled
to the special management standards.11
As stated earlier, we believe that
Congress intended the Agency to
consider all contaminants typically
found in used oil when it directed the
Agency to protect the public and the
environment from the "hazards
associated with recycled oil" (RCRA
section 3014).
While section 1004(38) of RCRA
appears, on its face,-to limit the
statutory definition of "used oil" to oil
derived from petroleum, we nevertheless
are interpreting the definition of used oil
more broadly to include synthetic oils
derived from shale and coal EPA
believes that in constructing the
definition of used oil. Congress did not
intend to exclude synthetic oils from
control under section 3014, despite the
"This definition expands upon the ragulatoiy
definition ofuied oil contained in the FiuH 1
burning »nd blending nil*.
"As discussed In Section IVJ, when an oil is
adulterated with a hazardous waste (i.e, •
hazardous spent solvent], the mixture would be
fully regulated as a hazardous waste under the
general hazardous waste regulations and would not
be subject to the special standards for recycled used
all.
fact that used oil is defined as being
derived from crude oil'under RCRA. The
Agency's rationale for this position is
based on three points. First, synthetic
oils are used for the same purposes as
petroleum derived oils, are usually
mixed and managed in the same manner
after use, and present as great a hazard
as petroleum-based oils due to the fact
that these oils are just as likely to be
contaminated from use or be
adulterated. To condition a used oil
. regulation on a preliminary
determination of whether a particular
used oil has been derived from crude oil
or whether it is synthetic in origin or
whether and to what extent it has been
mixed would seriously complicate the
Agency's efforts to regulate recycled oil
We do not believe that this is what
Congress intended. Second, such a
distinction would serve no practical
purpose since mixtures of used oil and
synthetic oil would be regulated under
the Subtitle C rule* or the recycled oil
rules in any case as a result of the
mixture rule. Finally, excluding these
oils from the definition of used oil would
necessitate a separate listing of
synthetic used oilavresulting in
regulation of synthetic used oils that are
recycled under the full set of hazardous
waste regulations while petroleum-
derived oik that are recyled would be
regulated under tailored standards
issued pursuant to Section 3014.
Congress clearly did not intend that
used oils which contain essentially
identical constituents and pose
essentially the same risk be regulated
differently.
EPA is also proposing to include in the
definition of used oil residues or sludges
resulting from the atorage or processing
of used oils although these processing
residues are not specifically mentioned
in the statutory definition of used piL
. These processing residues would, in any
case, be hazardous wastes under the
'derived from* rule contained in
i 281 J(c)(2) of the regulations. Under
that rule, any waste which is derived
from a hazardous waste continues to be
a hazardous waste unless and until it
has been demonstrated to be non-
hazardous. Since used oil will be a listed
hazardous waste under today's
proposal residues from the processing
of used oil would still be hazardous
wastes. Thus, if used oil processing
residues were not regulated as used oils
when they are recycled, they would be
subject to the full set of Subtitle C
regulations under the derived-front rule.
EPA believes, however, that since these
residues are similar to used oil in terms
of the hazardous constituents that are
present, these residues should be
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Federal Register / Vol. 50, No. 230 / Friday, November 29, 1985 / Proposed Rules
49263
regulated under the special management
standards for recycled used oil being
proposed under section 3014 of RCRA.
Such an approach would be
environmentally protective and would
allow any person who generates or
manages used oil or these processing
residues to comply with one set of
regulations.
2. Re-refined Oil. Re-refined ofl is
defined in section 1004(39) of RCRA as
"used oil from which the physical and
chemical contaminants acquired through
previous use have been removed
through a refining process." Re-refining
of used oil to produce a lubricant is the
highest form of used oil recyling and, by
definition, produces a product-like oil
that is virtually free of contamination
and essentially the equivalent of virgin
oiL Thus, the Agency believes that used
oil which is used as a lubricant, once it
has been re-refined, no longer meets the
definition of a solid waste contained in
8 261.2, and is not, therefore, a
hazardous waste." Although re-refined
oil is not considered to be a solid and
hazardous waste under today's
proposed listing, the transportation and
storage of used oil prior to the actual re-
refining process is still subject to
regulation under the proposed section
3014 standards. Thus, while the re-
refined oil itself is not a-solid waste,
until .such time-as the oil becomes a*
product* it continues to be recycled ofl
and subject to regulation under section
3014.
The exclusion of re-refined oil from
today's listing is consistent with the
recent amendments to the definition of
solid waste. See 50 FR at 634, January 4,
1985. Under those amendments, most
materials which are reclaimed from
solid wastes and that are used
beneficially are not solid wastes and,
therefore, are not hazardous wastes
provided they are not used as a fuel or
used to produce a fuel or are not placed
on the land for beneficial use.14 Used oil
which is used as a lubricant that has
been re-refined is one such example and
is, therefore, deemed to have been
reclaimed from solid waste and, thus, is
not a solid waste within the meaning of
Subtitle C of RCRA.
3. Mixtures of Used Oil and Other
Materials—a. Existing Mixture Rule.
u Although re-refined oil is not a solid or
hazardous waste under this proposal, re-refined od
would continue to be a aaed oil within the meaning
of section 3014 of RCRA.
** Materials that are reclaimed from a solid waste
can still be a solid and hazardous waste If: (1) The
materials are accumulated speculstively. or (2) the
materials have been processed minimally or the
materials have been partially reclaimed but must be
reclaimed further before recovery is complete (see
SO fR 835, January 4.1885).
Under the existing rule concerning
•mixtures of hazardous wastes and solid
wastes (40 CFR 261.3), when a
characteristic or listed hazardous waste
is mixed with another solid waste, the
entire mixture becomes a hazardous
waste subject to 40 CFR Parts 262-265
except in the following circumstances:
(1) When a waste that is hazardous
solely because it exhibits one of the
characteristics in Subpart C of Part 281
is mixed with another waste such that
the entire mixture no longer exhibits any
of the characteristics; (2) when a waste
that is exempted under S 261.5 (i.e.,
wastes from small quantity generators)
is mixed with another (non-hazardous)
waste, the resultant waste mixture is
generally exempt from regulation; and
(3) when a waste that is hazardous
•because it is listed in Subpart D of Part
261 is mixed with non-hazardous solid
waste, the entire mixture is hazardous
unless it is exempted from regulation
under {§ 260.20 and 260.22."
This general policy concerning
mixtures has been incorporated into the
recycled oil rules (i.e., a mixture of
recycled used oil and another hazardous
waste will be considered a hazardous
waste subject to the full set of the
Subtitle C rules). However, the Agency
is proposing one major change to the
policy described above. In particular,
under the general hazardous waste .
rules, a mixture of small quantities of a
hazardous waste and a non-hazardous
waste would be conditionally exempt
from regulation (i.e., not subject to the
hazardous waste rules). Under today's
proposal, however, a mixture of used ofl
and small quantities of another
hazardous waste (as defined in 8 281.5)
will be fully regulated as a hazardous
waste and not a used oil We believe
this change in policy is necessary in
order to prevent small quantities of
hazardous wastes from being illicitly
disposed of by being mixed with
recycled oil. (See the. proposed
management standards for a more
detailed discussion of the mixture rule
as it applies to used oil.)
Under today's proposed listing, used
oil will be a listed hazardous waste
subject to all applicable requirements
under Parts 262-265 when it is disposed.
Consequently, mixtures of used oU and
other hazardous wastes (including small
quantities of hazardous wastes) will be
hazardous wastes subject to full
regulation under Subtitle C when that
mixture is disposed, except as provided
in Sections b. and c., below.
(b) Mixtures of Wastewater and Used
OiL EPA is today proposing an
amendment to the mixture rule (40 CFR
261.3) in order t6 avoid regulating
certain mixtures as a hazardous waste
or a used oil where the Agency believes
that such regulation would not be
necessary to protect human health and
the environment The Agency is
specifically concerned that under
today's proposed listing of used oil,
otherwise non-hazardous wastewaters
contaminated with very small amounts
of used oil would be subject to
regulation as a hazardous waste under
the existing mixture rule.
The wastewater from many industries
' (e.g., steel manufacturing, railroad
yards, etc.) frequently contains small
amounts of oil which enters the system
from a variety of sources, including
drippings from machinery and other
processes. The contamination of
wastewater with small amounts of oil is
virtually impossible to control. EPA
believes that such small amounts of oil
in wastewater pose no significant
hazard when stored, transported,
treated, disposed, or reused.
Consequently, 4he regulation of such
mixtures as hazardous wastes under
RCRA is unwarranted.
Under the existing Subtitle C system,
however, such mixtures would
nonetheless be considered listed
hazardous wastes. The only mechanism
presently available to handlers of these
mixtures to remove their wastes from •
regulatory control would be to petition
the Agency to exclude (or delist) their
waste under the procedures contained in
40 CFR 260.20 and 260.22. Because of the
large potential numbers of facilities
involved and because the Agency does
not consider such mixtures to be
hazardous, EPA is proposing a different
approach for removing mixtures
containing only small amounts of used
oil from regulatory control under this
listing.1*
. Specifically, EPA is proposing to
amend the mixture rule contained in 40
CFR 281.3 to provide that a mixture of a
non-hazardous wastewater and used oil
caused by a de minimi's loss of
lubricating oil, hydraulic or
metalworking fluids, or insulating fluids
or coolants due to spills or drippings
will not be subject to regulation as a
used oil (and hence, as a hazardous
waste). As noted above, EPA believes
that the concentrations of hazardous
constituents that may be present hi such
'• The Agency also has exempted certain other
mixtures of hazardous and non-hazardous wastes
from the mixture rule. See 40 CFR 281 J(a)(2)(iv); see
•Uo. November 17. Ittl.
"The Agency has made previous modifications to
the mixture rule when such mixtures were not
considered hazardous (see 48 FR SR5S2. November
17.1861).
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49264 Federal Register / Vol SB. No. 230 / Friday. November 29. 1985 / Pmpoaed Hides
* a mixture will be so small MM to psse no.
significant hazard to human health-and
the environment
While the Agency ii not proposing a
specific concentration limit for such
used oil In wastewater, EPA requests
comment on whether .such a limit should
be established, and if so, what that level
should be. This exemption would apply
only to very small amounts of used afl
which are lost in normal operations tir
when small amounts of ofl are lost te (he
wastewater treatment system during
draining or washing operations. The
exemption for mixtures of used ofl and
non-hazardous wastewaters would not
apply, however, if the used oil is
discarded as a mult of abnormal
manufacturing operations, (e.g.. plant
shutdowns or operation malfunctions
resulting in substantial spills, leaks, w
other releases). In addition, EPA is
placing two additional of all used
oil.18
in its petition. Kimberly-Clark argued
4hat industrial wipers da not pose any
significant environmental hazards when
.disposed of as part of the regular, BOB- '
hazardous solid waste stream and that
regulations of ait-contaminated wipers
would not be cost-effective. Specifically,
Kimberly-Clark argued that the actual
amount of used oil likely to be disposed
of at a typical non-hazardous waste
landfill or by incineration is insignificant
and would, likely have a net positive
effect in terms of the wipers' ability -to
absorb additional liquid if placed in a
landfill or to combust more completely
and provide heat value if incinerates]. '
Kimberly-Clark also argued that
requiring users to handle their wipers as
hazardous waste would have"
substantial negative impacts, both
fllly and from an
notations of theJiazardous
constituents so as to pose no significant
hazard to k""""' health and the
environmental standpoint.
We have evaluated the petition
submitted liy Kimberly-Clark and have
decided to propose exempting industrial
wipers from regulatory control under die
mixture rule (/£, we are proposing to
amend the mixture rule to say that a
mixture of a used -oil and an industrial
wiper will not be considered a
hazardous waste). However, this
exemption would not apply to oily rags
which exhibit a characteristic of
hazardous waste pursuant to Subpart C
of Part 261. It should also be noted that
this exemption is not intended to apply
to those industrial wipers used to clean
up oil spills but only to those wipers
used to -clean drips or other incidental
amounts of ofl from machinery or
equipment or the face and hands of the
user. EPA generally believes that these
wipers (although contaminated with
used ofl) would cmfmn relatively small
"The term industrial wipers Include*: SArp
lowelt (is billion wipert annually) which are cloth
wiper* Ihit m generally not discarded but SUB
wuhed and rented: rags (29+ billion wipers
annually) which are generally disposed of m p«rt«f
the user's regular aolid waite stream: mnd
•diipotable wipea (7.8 .billion wipers annually)
which are discarded aa part of the users regular
aolid waite stream.
"Exemption of Oil-Contaminated Industrial
Wipers from Fattbcamins Wasteful Sale* Voder
BCRA. Kimberly-Clark Corporation. lone IS. 18SS.
»SoeKknbwlyX:iaikfefitlan.{Bf detailed -
• calculation.
environment.
EPA is also concerned that regulating
indnstrial wipers contaminated with
used ofl as* hazardous waste will
' implementation of the hazardous waste
program by subjecting several hundred
thousand otherwise unregulated .
establishments to (he hazardous waste
regulations.. EPA does not believe that it
could effectively extend regulation to
this group -of hazardous waste
generators at this time.
The Agency, however, still has a
number of concerns with respect to this
exception. in particular, EPA is
concerned that, based on data submitted
fay Kimberly-Clark, a significant
aggregate amount of used ofl (132
million gallons per year) will be
disposed of in the environment via
industrial wipers. Second, the Agency
believes that establishing a
. concentration Emit for used oil in the
wiper may be desirable (or necessary)
to ensure that significant quantities of
used ofl and its hazardous constituents
are not disposed of intentionally through
an exempted mixture. However, the
Agency has not yet been able to
determine UD, appropriate concentration
level and specifically requests public
comment as to what level, if any, would
be appropriate.
EPA is also requesting public
comment on the issue of exempting oil-
contaminated industrial wipers, in
general, from regulatory control as
hazardous wastes, particularly with
respect to possible adverse impacts
from such an exemption.
C Delisting Procedures for Used Oil
The Agency's procedures for
excluding wastes at a particular site
from the hazardous waste regulations
are contained in 40 CFR 280.20 and
260.22. These roles allow any person to
demonstrate that a specific waste from a
particular generating facility should be
"delisted"{/.tt, not regulated as a
hazardous waste) on the basis that their
waste is fundamentally different from
the waste that was listed in Subpart D
of Part 261. In die past petitioners have
been required to demonstrate that their
waste does not meet any of the criteria
for listing contained in 40 CFR 261.11
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49265
constituents) other than those for which'
the waste was listed, if the
Administrator has a reasonable basis to
believe that such additional factors
could cause the waste to be a hazardous
waste. In addition, the amendments
specifically require the Agency to
provide notice and an opportunity for
public comment before granting a
delisting petition. Under today's listing
proposal, generators or other handlers of
used oil who wish to petition-the Agency
to have their specific used oil delisted
must follow the same delisting
procedures as for any other hazardous
waste (/.e., they must submit sufficient
data so that the Agency can evaluate
their used oil to determine its
hazardousness with respect to any toxic
constituent that may reasonably be
present in the waste).
The Agency recognizes that
significant numbers of used oil handlers
may wish to petition the Agency for a
delisting, especially since non-
hazardous used oil will not be subject to
regulatory control Some generators may
well, due to their generation and
handling procedures, generate relatively
clean used oils. While the Agency has
sought to exclude from the listing or
exempt from regulation under section
3014 those used oils which Jo not pose a
hazard tp the environment, the Agency
is somewhat concerned that a large. .
number of petitions could unnecessarily
overtax the Agency's delisting
resources.
EPA considered an approach that
would involve setting concentration
limits for specific constituents of
concern. Used oil that did not exceed
these concentration limits would be
exempt from regulation as a hazardous
waste. However, this approach poses
several practical problems concerning
the appropriate concentration limits mat
should be set for which constituents
(/.&, used oil can contain any one of the
toxic contaminants listed in Appendix
Vm of Part 261) and problems relating to
implementation. Therefore, the Agency
has concluded that such an approach is •
not feasible at this time and mat any
person who wishes to delist their used
oil will need to submit a petition
pursuant to 40 CFR 260.20 and 260.22.**
The Agency requests public comment
.on the issue of delisting nonhazardous
used oils and is particularly interested
in any particular used oils that should
be specifically excluded from the listing
of used oil as a hazardous waste.
V. Basis for listing Used Oil as a
Hazardous Waste
A. Criteria for Listing
EPA may list as waste as hazardous if
it meets any of the criteria for listing
contained in 40 CFR 261.11. Among
others, § 261.11(a)(3) provides that the
Administrator may list a waste as
hazardous if it contains any of the toxic
constituents listed in Appendix Vffl,
unless, after considering certain factors,
the Administrator determines that the
waste will not pose a substantial
present or potential hazard to human ~
health or the environment when
mismanaged. The factors that can
mitigate such a listing are: (i) The nature
of the toxicity presented by the
constituent, (ii) the concentration of the
constituent in the waste, (iii) its
potential to migrate or persist in the
environment, (iv) the plausible types of
improper management to which the
waste could be subjected, (v) the
quantities of waste generated and the
nature and severity of human health and
environmental damage that has
occurred, and (vi) any other factors that
may be appropriate.
The Administrator has determined
that used oil contains highly toxic
contaminants in" significant quantities,
that these contaminants are mobile and
persistent in the environment, and that
used oil is generated in large quantities.
Thus, these wastes may pose a
substantial present-or potential threat to
human health or the environment when
improperly transported, treated, stored,
recycled, disposed, or otherwise
managed. **
B. Summary of Used Oil Universe
Based on 1982 automotive and
industrial new oil sales of 1,244 and
1,171 million gallons, respectively, it is
estimated that 746 million gallons of
automotive used oil and 402 million
•At • minimum. EPA would expect the petitioner
to demonstrate th*t the used oil: (1) Meets the Pheee
I fuel specifications (SO FR1718. January 11.1865),
end (2) doe* not exhibit any of the hazardous wute
characteristic*. In addition, the petitioner oust
demonstrate that the used oil is not hazardous for
the reason it was listed and must submit sufficient
information for the Administrator to determine
whether the osed oil is hazardous for any other
"Testing of used oil has shown that nearly 20
percent of the samples have flash points below 140*
F, with some samples having flash points as low as
72*F. These low flash points generally result from
contamination with gasoline, which has an initial
boiling point below 100T. In addition to
contamination with gasoline, used oil also contains
many other highly flammable light aliphatics and
aromatics. Thus, used oil may, at times, exhibit the
characteristic of ignitability. However, since only 20
percent of the samples tested exhibited the
ignitability characteristic, we an not Including it as
• basis for listing. Nevertheless, each generator is
nsponsible for determining if hi* waste exhibits
any of the hazardous waste characteristic*.
gallons, of industrial used oil are
generated each year. Approximately 57
percent of the total generated, or about
660 million gallons, are currently
managed by collectors, processors, re-
refiners, and end-users and will be
brought under regulatory control under
the special management standards. The
remaining 43 percent or 488 million
gallons, result from do-it-yourself oil
changers, agricultural and construction
machinery operators, and small
generators of industrial oils who often
dispose of their oils off-site rather than
accumulate them or take them to a point
of accumulation.
C. Toxic Constituents of Concern
As discussed above, the primary basis
for listing used oil as a hazardous waste
under 40 CFR 261.11 concerns the
presence of certain toxic constituents
contained in used oil. Used oil typically
contains a number of toxicants listed in
Appendix Vm in concentrations well
above those necessary to cause
substantial harm. These constituents,
including lead, trichloroethylene,
tetrachloroethylene, 1,1.1-
trichloroethane, naphthalene, and
toluene, have been measured in used
oils in significant concentrations. Based
on the Agency's survey of used oil
samples, the following contaminant
levels were reported at the statistical
90th percentile "for the constituents of
concern.** Lead was reported at 1200
ppm, naphthalene at 990 ppm,
tetrachloroethylene at 1300 ppm, 1,1,1-
trichloroethane at 3100 ppm,
trichloroethylene was reported at 1000
ppm, and toluene at 5000 ppm. The
constituents are, therefore, present in
used oil at levels ranging from 10* to 10'
higher than any health-based standard
(i.e.. Ambient Water Quality Criteria or
Drinking Water Standards). See Table 1,
below. Consequently, only a small
percentage of the toxicants would need
to migrate from the waste and escape
into the environment at levels above the
reported health-based standard to pose
a substantial hazard to human health
and the environment
These toxicants are known to have
carcinogenic, mutagenic, teratogenic, or
other chronic or acutely toxic properties.
In particular, tetrachloroethylene has
been.identified by the Agency's
"At the statistical 90th percentile. 90% of all of
the samples will contain that constituent at that
value or lower. See Background Document for Used
Oil* for mean, median and 75th percentile
concentration* of these constituent* in uied oil
•ample* analyzed.
•Franklin Associates. Ltd. Competition and
Management of Uted Oil* Generated in the United
State*. September IBM.
-------
49266 Federal Register / Vol. 50. No. 230 / Friday. November 29. 1985 / Proposed Rules
Carcinogen-Assessment Group (CAG) as
« possible human carcinogen.14 *• It is a
jnutagen in bacterial assays; it is also
chronically toxic to dogs, causing kidney
and liver damage, and to human*,
causing impaired liver function. In mice
and rats, letrachloroethylene has caused
toxic nephropathy. The Agency's CAG
has also identified trichtoroetnylene as a
potential human carcinogen. In addition,
trichloroBthylene causes some liver aad
kidney damage. 144-Trichloroethane
has been shown, in animal studies, to
produce adverse effects in the central
nervous system, pulmonary system,
heart, kidney, and liver. Results of«
National Cancer Institute (NCI]
cardnogenesis bioasssay also have
indicated that oral administration of
1,1,1-trichloroflthane produced a variety
of neoplasms; however, re-testing of this
compound is in progress since a high
incidence of premature deaths was
observed in this initial study. Toluene is
known to cause central nervous-system
dysfunction and hex been linked to
reproductive effects in humans. Chronic
occupational exposures to toluene also
have resulted in neurologic effects, such
as impaired performance on tests for
intellectual and psychomotor ability and
muscular function. . . ,
TABU: 1.-Ujssj Ot. CONTAMINANT CONCEN-
TRATIONS A* COMPARED TO HEALTH BASED
CRITERIA
Toluene.
1.1J.
UMdOi *
(VOYl
Miotn^V
•eTpprr*
1300
1.300
WWJ
s.180
1X00
J0t»
10
1B4
BUS*
(Long.
Hn*
3NARL)
(PPBlJ
JOS
Ma
Sob-
em* •
ppm
180
S3*
330
RATIO OF CONCENTRATION TO CRITERIA
ton/
AWOCL
1t£909
J90
«an/DWS
V5.000I
1*^00
IWQCL
TK800
Sek>
tftlS
7300
WWO
*"U5. EPA 1BBS. Healtb Aiiesimtnt Document
for litnclilaroatl\yl«aBi ^••^ab^Med IflJ
mphttialena. ""
Naphthalene is a systemic poison
which bioaccumuiates m me skin, liver,
brain, blood, muscle, and heart In
particular, chronic exposure to
naphthalene produces cataracts,
hemorytic anemia, and kidney disease in
humans. Finally, lead is a systemic
toxicant, causing renal damage,
eerebrovascular disease, heart failure. •
electrocardiographic abnormalities,
impaired liver function, impaired thyroid
function, intestinal colic, and'
miscarriages and still births. [For
additional information on the toxicity of
. the hazardous constituents see me
Health and Environmental Effects .
Profile (HEEPsJ. available from the
public docket at the address given
above.]
In addition, it is important to .note that
used oil may rnnjain significant
aggregate concentrations of one or more -
other toxic constituents identified by the
Agency. Table 2 details additional
constituents which have beea found in
used oils.
TABLE 2.—Toxic CONSTITUENTS1 FOUND m
USED OIL MISMANAGEMENT INCIDENTS
barium
b«yMun«
oedmtim"
tad
naphttiakm.
!***«.
PCffe (pelycMorineBd rJphem*)*
•ofcnuoleur aromafe nyd
1.1/l-Mcntanaliana.
Mchtoroeftytene.
•«*<•
'noictta* compoundi that 4he U.S. EPA'e
Oieeeiiiiarn Group (CAG) he* determined to neve evidence
el eeranotentoHy. The weight e* evidence «er carOmageifclly
vtnet. For eome of ttieau rtiiiriraei there e> human «VH
dance (epidemialaaical d*ti)-whle tor ottien only eiaaijnien-
•W animal evidence b avUICDU. Source: The Carcinogen
Gnu?* UM *• Cenewgem.* Juy M, tfiio.
*PCS'KTh«m
•iram, m) u» o« PCB'i to
'
to prehiMMd
FC»-nigU«ti
by TSCA 1 B(«) unlMt
'
JC1. PC8'» >»»» a«on dunenn ,
•nd rcproduetw* »««cU. and onceoanie pdtaMal In anknal
ihidiac. EPA-hn teund ne aytdanca to lyggaat Inat 'PC8'«
ww^d 'M6( tawv lindttt •fMclv end mooovnto solMilM In
humant.
Anomer factor considered by the
Agency as'a basis for listing used oil as
aazardous concerns the fact that they
typically and frequently contain toxic
heavy metals which present a particular
health hazard when burned. Fuel
specifications for the burning of used oil
have been defined for arsenic, cadmium,
chromium, and lead."The rationale for
selecting these constituents is discussed
in *^ft Phase I burning and blending
proposal (50 FR1684-1723). All of these
constituents have been identified in
significant concentrations in used oil
oamples as is evident from the
contaminant levels reported in the
Agency's survey of approximately a
thousand used oil samples. This survey
revealed the folio wing levels at the
utatistical 90th percentile for the
following constituents of concern:
Arsenic at 19 ppm; cadmium at 10 ppnu
chromium at 30 ppm; and lead at 1200
ppm. These levels have been shown to
pose a potential substantial hazard to
human health and the environment
when burned in an incinerator or boiler.
{See Phase I homing and blending
proposal for more detailed discussion.')
CAG has identified both arsenic and
cadmium as having sufficient evidence
of eardnogenicity to categorize them as
potential human •carcinogem.
liexavalent chromium also
demonstrates evidence of carcinogenic
potential Arsenic, cadmium, and
iuxavalent chromium also demonstrate
mutagenic effects and arsenic and
cadmium further show teratogenic
activity.11
D. Waste Constituent Mobility:
Environmental Fate aad Transport
As voted in 40 CFR 261.11. the
Administrator-win consider the mobility
potential, persistence, and potential to >
bioaccumulate of toxic constituents in a
waste in determining whether to Bst a
waste a* hazardous.
1. Mobility Potential. The water
•notability of a given toxic constituent is
indicative of its mobility potential (i.e.
the likelihood that«tyffl be released
. from a •managemeat site and become
dissolved in a water resource of
concern). Many of the used oil ' '
constituents of concern are highly water
eoluble and mas' characterized by a high
mobility potential Their solabiHtiea are
many orders of magnitude .greater than
Iheir respective Ambient Water Quality
Criteria levels ud designated Drinking
•The Pha*« Ifcumfan •adUiaMllns prnpnaiil aUn
" anon*'for tot^alcbiorioeud
.flashpoint
Bad&maul Doouaitml.Apimi\K *. Haahfa and
Environmental Effect* Profile*: October 30.1
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Federal Register / VpL 50, No. 230 / Friday, November 29, 1985 / Proposed Rules
49267
Water Standards. See Table 1. If
improperly managed, these toxicants
can "be expected to migrate from storage
or disposal facilities and to become
dissolved in drinking water resources at
levels exceeding the corresponding
health standards.
For example, trichloroethylene is
soluble in water at concentrations which
exceed the long-term SNARL (Suggested
No Adverse Response Level) by a factor
of approximately 13,000. If improperly
managed, leachate from wastes
containing trichloroethylene could
migrate to water supplies resulting in
concentration levels far in excess of the
corresponding long-term SNARL
Tetrachloroethylene is similarly very
soluble in water at concentrations
exceeding the long-term SNARL by a
factor of 7,500. Furthermore, since the
used oil itself is a liquid, the potential
for these toxicants to migrate from the
waste is enhanced. Therefore, these
toxicants are likely to escape from the
waste and migrate into ground water to
present a substantial hazard to human
health and the environment
2. Persistence. Many of these
constituents are highly persistent in the
environment (e.g., 1,1.1-trichloroethane
has a half-life of 5-9 months in fresh
water and 39 months in sea water and
tetrachloroethylene has a residence time
of several years-or decades in deep soils
and ground water). Metals, such as
arsenic. ggrfTninin, chromium, and lead
will persist in the environment
indefinitely.**
The Agency considers a material to be
persistent if it persists in the
environment long enough to be detected
since it may also result in exposure to
humans in the same period of time. Most
of these constituents have been
repeatedly detected in ground and
surface water surveys conducted by the
Agency which provides a further
indication of their environmental
persistence. For example, in one Agency
survey of 969 water systems, 1.4 percent
of the tapwater samples exceeded the 50
ppb standard for lead. Similarly,
naphthalene has been detected in
natural waters, and in drinking water
supplies.
In nationwide surveys of organic
chemicals in the drinking water of
representative U.S. communities, .
toluene was found to contaminate one
raw and eleven finished water supplies
out of the 133 water supplies surveyed.
Toluene has also been detected in sea
water and fish obtained near petroleum
and petrochemical plants in Japan.
"See SPA report en titled. "Watef-related
Environmental Fate of 123 Priority Pollutant*.'
Januir> 1979, EPA-MO/4-790Z8a).
Fow Federal surveys used to estimate
levels of 1,1,1-trichloroethane in public
_ drinking water supplies in the U.S.
' reported that 3 percent of the ground-
water systems are expected to have
between 0.5-5 ppb of 1,1,1-
txichloroemane, and that most surface
water systems have detectable levels of
1,1,1-trichloroethane. Thus, many of
these constituents, including used oil
itself, have been found to migrate and
present a hazard to human heahh and
the environment at Superfund sites.
The toxicologic properties,
environmental mobility, and persistence
of these toxicants are described in the
corresponding Health and
Environmental Effects Profiles. We note
further, however, that a consideration of
the toxicity of individual waste
constituents is likely to understate
waste toxicity. This understatement
relates to the fact that used oil is a
complex mixture of many hazardous
constituents. Aggregate toxic effects,
whether additive or synergistic, are
likely manifestations of exposure.
3. Bioaccumalation. Another factor
which the Administrator considers in
the decision to list a waste as hazardous
concerns "the degree to which the
constituent or any toxic degradation
product of the constituent
bioaccumulates hi ecosystems."
Bioaccumulation is the tendency Of a
substance to become concentrated in
living tissue. Many of the constituents in
used oil bioaccumulate in the tissues of
living organisms. Naphthalene, for
example, can accumulate in living
tissues at concentrations up to 186 times
those in the contaminated water.
Toluene can accumulate in living tissues
at concentrations 78 times the
concentration in the water. LL1-
Trichlproethane, tetrachloroethylene.
and trichloroethylene also
bioaccumulate at 56 times, 43 times, and
15 times their respective concentrations
in water. Thus, only a small fraction of
the toxicants present in these wastes
need migrate and reach environmental
receptors to pose the potential for
substantial harm to humarl health and
the environment
E. Waste Mismanagement Potential
Used oils are capable of causing
substantial harm to human health or the
environment if managed improperly.
Typical improper management practices
include disposal hi unlined or
inadequately lined land disposal
facilities leading to contamination of
ground water, surface water, and soil,
and improper burning, resulting in
exposure to unbumed toxicants in the
wastes as well as products of
incomplete combustion.
Appendix A of the used oil
background document provides a
summary of approximately 80 major
mismanagement incidents and the cost
implications of cleanup operations
($10,000 to $5,150,000 per site). The
mismanagement issue is not confined to
on-sit'e management of used oil, as
evidenced by the fact that seventy (70)
of these incidents occurred off the
generation site. The media affected
include surface water (35 sites), ground
Water (24 sites), drinking water (17
sites], air (8 sites), and soil (25 sites).
Treatment storage, and disposal of
used oils in tank and container storage
facilities (25 sites), surface
impoundments (36 sites), and other
improper disposal facilities (35 sites),
^burning operations (7 sites), and use of
'waste oil as a dust suppressant (3 sites)
have resulted in the pollution of ground
or surface water with lead, chlorinated
organics, or aromatic organics from '
these wastes.
In summary, the Agency has
determined that used oil typically
contains toxic constituents at
concentrations that are of concern, tiat
these constituents are mobile, persistent.
and bioaccumulative, and capable of
migration in hazardous concentrations,
and, therefore, that .these wastes are
capable of causing (indeed, repeatedly
have caused) substantial harm if
mismanaged. Consequently, the Agency
is proposing to add used oil to the lists
of hazardous wastes.
VI. CERCLA and Clean Water Act
Impacts: Proposal to Adjust Used Oil
Reportable Quantity of 100 Pounds
Today's proposed listing of used oil as
a hazardous waste will, upon final
promulgation, also result in its
classification as a hazardous substance
under Section 101(14) of CERCLA..
Section 103 of CERCLA requires that
persons in charge of vessels or facilities
from which hazardous substances have
been released in quantities that are
equal to or greater than the importable
quantity (RQ) established under
CERCLA section 102 immediately notify
the National Response Center (NRG) of
the release.
Under section 102 of CERCLA, used
oil will be automatically assigned an RQ
of one pound (after it has been listed as
a hazardous waste) until EPA adjusts
the statutory RQ. Thus, until adjusted by
EPA regulations, persons releasing one
pound or more of used oil must notify
the NRC. EPA is today proposing to
adjust the statutory one pound RQ for
used oil to 100 pounds based on the
application of its RQ adjustment
-------
49268
Federal Register / Vol. 50, No. 230 / Friday, November 29, 1985 / Proposed Rules
methodology. See 50 FR13458 (April 4.
1935).
The 100 pound RQ proposed today for
used oil is based upon the toxicity of its
constituents and its ignitability. As a
hazardous waste, used oil is a mixture
of hazardous substances for CERCLA
purposes, and its RQ is based upon the
RQs established for each of its
hazardous constituents. Because the
exact composition of a hazardous waste
is usually unknown, the RQ of the waste
is normally based upon the lowest RQ
established for any of its constituents.
However, the composition of used oil is
sufficiently well characterized to enable
an RQ adjustment to be based upon
calculations at the 90th percentile
concentrations of each hazardous
constituents.
The substances with the lowest RQs
at the 90th percentile concentration are
lead and tetrachloroethylene and,
therefore, the RQ of used oil is based on
the RQs of these substances. Because
the RQs of both of these substances at
that concentration are between 100 and
1000 pounds, the applicable RQ for used
oil has been set at 100 pounds. The
ignitability of used oil also results in an.
RQ of 100 pounds. (See Background
Document for a more detailed
explanation of our basis for setting an
RQ of 100 pounds.)
The CERCLA RQ proposed today
applies to releases of used oil to all ..
environmental media, including1 • •
navigable waters, the contiguous zone,
and ocean waters. EPA has rejected a
media specific RQ approach to avoid
confusion, arbitrariness, and inequity in
release notification. See SO FR 13466-
13467 (April 4,1985). However, under
the Clean Water Act, the oil sheen has
been the RQ for discharges of oil to
navigable waters and the contiguous
zone since 1970.nThe sheen test
"Known M the "ibeen rule," the Ctoan Water
fan (Section 311[b)) prohibition and reporting
requirement for discharges that "may be harmful"
actually include* discharge* of oil that:
(a) Violate applicable water quality standards.
or
(b) CaoM a film or sheen open or discoloration
of the surface of the wattr or adjoining
shoreline* or caui* • sludge or traulilon to bt
deported beneath tb« surface of the wattr or
upon adjoining shoreline*.
Pursuant lo the 1777 amendments to the Clean
Water Act EPA baa proposed lo extend tha shean
tcit beyond the contiguous zona to discharges into
ocean water* "in connection with activities nndep-
the Outer Continental Shelf Lands Act or tha Deep
Water Port Act of 1074. or which may affect
natural resources belonging to, appertaining to, or
under the exclusive management authority of the
United States (Including resources under the
Mignuwra Fishery Conservation and Management
Act]." (Section 33 VS.C. 1321 (b) and (c)). SO FR
6770, (March 11.1865). j *
"Attention should also be given to the reporting
requirements prescribed under The Act to Prevent
provides a non-quantitive reporting
trigger and is not supplanted by today's
proposed CERCLA rulemaking.10
Unlike hazardous substances under
the Clean Water Act, the RQ for oil
" established under that Act is not
automatically altered to correspond to
the adjusted CERCLA RQ. See 50 FR
13473 (April 4,1985). Furthermore, there
are important reasons for retaining the
oil sheen RQ. The sheen test is generally
a more sensitive reporting trigger than
the proposed RQ because a sheen may
be created by a quantity of used oil less
than 100 pounds. The sheen has been a
useful trigger because it is easily
recognized and does not require the
sometimes difficult determination of the
volume of spilled oil. Those who
implement the current regulation have
found it to be successful over the past 15
years in creating an effective early-
warning system for oil spills and in
improving oil handling techniques. Most
importantly, however, it has been
supported by scientific studies which
have concluded that repeated and low
level releases of oil may cause harm to
aquatic environments. Moreover, these
effects may not be adequately measured
by the aquatic toxicity tests used under
CERCLA and the Clean Water Act to
evaluate individual constituents of
hazardous wastes.
Thus, the CERCLA 100 pound RQ for
used oil will apply to all environmental
media, including surface watera. A
release of used oil equal to or greater
than 100 pounds must be reported to the
NRG under CERCLA whether or not an-
oil sheen is produced or the waters
affected are inside the contiguous zone.
If the release of 100 pounds or more is
into navigable waters and the ~
contiguous zone, the release is also
subject to the reporting requirement of
the Clean Water Act but one report to
the NRG will satisfy the notice
requirements of both statutes. Releases
of used oil in amounts less than 100
pounds to navigable "waters and the
contiguous zone will be subject to
reporting requirements under the sheen
rule of the Clean Water Act Such
releases must also be reported to the
NRG, as provided under that Act
VIL State Authorization Impacts
A Applicability of Rules in Authorized
States
Under section 3006 of RCRA. EPA
may authorize qualified States to
administer and enforce the RCRA
Pollution from Ships. 33 V&C. 1901-1011. Those
requirements and their applicability are set forth In
33 CFR 151.15 and 15143. respectively. These -'
requirements would not be affected by today's
proposal.
program within the State.r(See 40 CFR
Part 271 for the standards and
requirements for authorization.)
Following authorization EPA retains
enforcement authority under sections
3008,7003, and 3013 of RCRA. although
authorized States have primary
enforcement responsibility.
Prior to the Hazardous and Solid
Waste Amendments of 1984 (HSWA)
amending RCRA. a State with final
authorization administered its
hazardous waste program entirely in
lieu of the Federal program. The Federal
requirements no longer applied in the
authorized State, and EPA could not
issue permits for any facilities hi the
State which the State was authorized to
permit When new, more stringent
Federal requirements were promulgated
or enacted, the State was obligated to
enact equivalent authority within
specified time frames. New Federal
requirements did not take effect in an
authorized State until the State adopted
the requirements as State law.
In contrast under newly enacted
section 3006(g) of RCRA, 42 U.S.C.
6926(g), new requirements and
prohibitions imposed by the HSWA take
effect hi authorized State at the same
time that they take effect in
nonauthorized States. EPA is directed to
carry out those requirements and
prohibitions in authorized States,
including the issuance of permits, until
the State is granted authorization to do
so. While States must still adopt
HSWA-related provisions as State law
to retain final authorization, the HSWA
applies in authorized States in the
interim.
Today's rule would be added to Table
1 hi S 271.1(j) which identifies the
Federal program requirements that are
promulgated pursuant to HSWA. The
Agency believes that it is extremely
important to clearly specify which EPA
regulations implement HSWA since
these requirements are immediately
effective hi authorized States. States
may apply for either interim or final
authorization for the HSWA provisions
identified in Table 1 as discussed in the
following section of this preamble.
B. Effect on State Authorizations
Today's announcement proposes
standards that would be effective in all
States since the requirements satisfy
EPA obligations under the Hazardous
and Solid Waste Amendments of 1984.
Thus, EPA will implement the standards
in nonauthorized States and hi
authorized States until they revise their.
programs to adopt these rules and the
revision is approved by EPA.
-------
Federal Register / Vol. SO. No. 230 / Friday. November 29, 1985 / Proposed Rules 49269
A State may apply to receive either
interim or final authorization under
section 3006(g)(2) or 3006(b).
'respectively, on the basis of
requirements that are substantially
equivalent or equivalent to EPA's. The
procedures and schedule for State^
program revisions under section 3006(b}
are described in 40 CFR 271.21. See 49
FR 21678 (May 22.1984). The same
procedures should be followed for
section 3006(g)(2).
Applying § 271.21(e)(2), States that
have final authorization must revise
their programs within a year of
promulgation of EPA's regulations if
only regulatory changes are necessary,
or within two years of promulgation if
statutory changes are necessary. These '
deadlines can be extended hi
exceptional cases (40 CFR 271.21(e)(3)}.
States with authorized RCRA
programs may have a listing similar to
that included in today's rule. These
State regulations have not been
assessed against the Federal regulations
being proposed today to determine
whether they meet the tests for
authorization. Thus, a State is not
authorized to implement this listing in
lieu of EPA until the State program
revision is approved. As a result, the
listing proposed in today's rule win
apply in all States, including States with
an existing listing similar to that in
tpday's-rule. States with an existing
listing may continue to administer and
enforce their standards as a matter of
State law. In implementing the Federal
program. EPA will work with States
under cooperative agreements to
minimize duplication of efforts.
States that submit official applications
for final authorization less man 12
months after promulgation of EPA's
regulations may be approved without
including standards equivalent to those
promulgated. However, once authorized,
a State must revise its program to
include standards substantially
equivalent or equivalent to EPA's within
the time periods discussed above.
Vm. Request for Comments
The Agency seeks public comment on
all of the issues discussed in this notice
concerning the listing of used oil as a
hazardous waste. The Agency is
particularly interested in comments on
the proposed amendments to § 261.3 (i.e.
the exemptions for wastewaters
contaminated with small amounts of oil
and for industrial wipers) and on vaious
approaches which may provide practical
relief to used oil recyclers that handle
used oils which are low in
contamination.
Comments concerning the extent of
regulation that should be imposed on
various used oil recycling practices
should, however, be addressed under
the section 3014 proposal.
DC. Executive Order 12291
Under Executive Order 12291, EPA
must determine whether a regulation is
"major" and therefore subject to the
requirement of a Regulatory Impact
• Analysis. The regulatory impact of this
proposal, taken together with the
recycled oil rules, is major and is
addressed in the proposed management
standards for recycled used oil,
appearing elsewhere in today's Federal
Register.
X. Regulatory Flexibility Act
. Pursuant to the Regulatory Flexibility
Act, 5 U.S.C. 601 et sag., whenever an
agency is required to publish a general
notice of rulemaking for any proposed or
final rule, it must prepare and make
available for public comment a
regulatory flexibility analysis that
describes the impact of the rule on small
entities (/.a. small businesses, small
organizations, and small governmental
Jurisdictions). The impact of this rule on
small entities is addressed in the
proposed hazardous waste management
standards for used oil, appearing
elsewhere in today's Federal Register.
XL Paperwork Reduction Act
The reporting or recordkeeping
(information) provisions in this rule will
be submitted for approval to the Office
of Management and Budget (OMB)
under section 3504(b) of the Paperwork
Reduction Act of 1980, U.S.C. 3501 et
aeq. Any final rule will explain how its
reporting or recordkeeping provisons
respond to any OMB or public
comments.
ML List of Subjects
40 CFR Part 280
Administrative practice and
procedure, confidential business
information, hazardous waste
40 CFR Part 261
Hazardous waste. Recycling
40 CFR Part 271
Hazardous materials, Reporting and
recordkeeping requirements, Waste
treatment and disposal, Water pollution
control Water supply.
Intergovernmental relations, Penalties,
Confidential business information.
40 CFR Part 302
Air pollution control, Chemicals,
Hazardous materials. Hazardous
materials transportation, Hazardous
substances. Intergovernmental relations.
Natural resources. Nuclear materials,
Pesticides and pests. Radioactive
materials, Reporting and recordkeeping
requirements, Superfund, Waste
treatment and disposal. Water pollution
control
Dated: November 8, 1985.
LM M. Thomas,
Administrator.
For the reasons set out in the '
preamble, it is proposed to amend Title
40 of the Code of Federal Regulations as
follows:
PART 260-HAZARDOUS WASTE
MANAGEMENT SYSTEM-GENERAL
1. The authority citation for Part 260
continues to read as follows:
Authority: Sees. 1006. 2002(a), 3001 through
3007, 3010. 3014, 3015, 3017, 3018, 3019, and
7004 of the Solid Waate Disposal Act as
amended by the Resource Conservation and
Recovery Act of 1976, a* amended [42 U.S.C.
6905, 6912(a), 6921 through 6927, 6930. 6934,
6935, 6937, 6938. 6939, and 6974].
§260,10
2. Section 260.10 is amended by
adding a new definition for used oil to
appear alphabetically:
• • < • * *
"Used Oil" is petroleum-derived or
synthetic oil including, but not limited
to, oil which is used as a: i) Lubricant
(engine, turbine, or gear); ii) Hydraulic
fluid (including transmission fluid); iii)
Metalworking Quid (including cutting,
grinding, wrh'nirg, rolling, stamping.
quenching, and coating oils;) or iv)
Insulating fluid or coolant and which is
contaminated through use or subsequent
management
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
3. The authority citation for Part 261
continues to read as follows:
Authority: Sect. 1006, 2002(a), 3001, and
3002 of the Solid Waste Disposal Act at
•mended by the Resource Conservation and
' Recovery Act of 1976, at amended [42 U.S.C.
6905,6912(a), 6921, and 6922].
4. Section 261.3 is amended by
revising the introductory text of
paragraph (a)(2)(iv), by adding a new
paragraph (a)(2)(iv)(F); and by adding a
new paragraph (e), to read as follows:
§ 2«1.3 Definition of hazardous waste
• * • • *
(a) • • • .
(2) * • •
(iv) Except as provided in paragraph
(e) of this section, it is a mixture of solid
waste and one or more hazardous
wastes listed in Subpart D and has not
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Federal Register / Vol. 50, No. 230 / Friday,- November 29, 1985 / Proposed Rules
been excluded from this paragraph
under | § 260.20 and 260.22 of this
Chapter; however, the following
mixtures of solid wastes and hazardous
wastes listed in Subpart D are not
hazardous wastes (except by
application of paragraph (a)(2){i) or (ii)
of this section) if the generator can
demonstrate that the mixture consists of
wastewater the discharge of which is "
subject to regulation under either
Section 402 or Section 307(b) of the
Clean Water Act (including wastewater
at facilities which have eliminated the
discharge of wastewater) and:
(F) Used oil caused by a de
loss of lubricating oil, hydraulic oil,
metalworking fluids, or insulating fluid
or coolant. For purposes of this
paragraph, "de minimis" losses include
small spills, leaks, or drippings from
pumps, machinery, pipes, and other
similar equipment during normal
operations or when small amounts of oil
are lost to the wastewater treatment
system during washing or draining
operations. This exception will not
apply if the used oil is discarded as a
result of abnormal manufacturing
operations resulting in substantial leaks.
spills, or other releases or to used oil
recovered from wastewater.
(e) The following mixture of solid ••
waste and hazardous wastes listed in
Subpart D are not hazardous wastes
except by application of paragraph
(1) Industrial wipers contaminated
with small amounts of used oiL The term
industrial wipers includes shop towels,
rags, and disposable wipers.
(2) [Reserved]
5. In § 261.31, add the following waste
in numerical order
§ 261.31 Hazardous waste from non-
specific source*.
taOutty and EPA
luuvdouc v
No.
HK-
Cowrie
.U*cd <*, Inducing •utomo-
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V-/EPA
United States
Environmental Protection Agency
(5305)
Washington, DC 20460
Official Business
Penalty for Private Use
$300
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