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

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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.

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           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.

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                 •

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

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           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.

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  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.

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                     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.

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  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.

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           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.

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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

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           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

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  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	
   Part2B3»	
                             Oftcpedteabon
                              laMdoifcMl
                            RRHM'J.CA
                            EOTOL
                            MJHtfJUUR.
  'Hezardaue wasto and used d generator* are net regutt-
 ed as merkeMrs unkns tiey market diractty to a burner.
  •Hazwdou* <
  P r
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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

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            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

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 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:

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           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 
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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

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            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

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  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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 49216
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,

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                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.

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 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

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               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.*

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                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.

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   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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 49230
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.

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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.

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  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

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               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* 
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 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
                                                 Oangtki
                                                lOW ftMTCOTl
                                                   +17
                                                144-20)
                                                           Nunturl
                           318
                            12
                            3
                           o_0
                                                                327
                                                                     Qnngvln
     at n*t
» NC-nc<
                     CNPV) to n
                          RM.
                            (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)

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               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

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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

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               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.

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  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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               Federal Register / Vol.  50,  No. 230  / Friday, November 29, 1985 / Proposed  Rules
                                                                        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.

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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

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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.

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               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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