-Z-J 2-007
Wednesday
May 20, 1992
Part III
Environmental
Protection Agency
40 CFR Part 261
Hazardous Waste Management System;
General; Identification and Listing of
Hazardous Waste; Used Oil; Rule
-------
Federal Register /Vol. 57. No. 98 / Wednesday, May 20, 1992 / Rules and Regulations
21524
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 261
[FRL-530-Z-92-006; 4118-4]
Hazardous Waste Management
System; General; Identification and
Listing of Hazardous Waste; Used Oil
AGENCY: Environmental Protection
Agency.
ACTION: Final rule.
SUMMARY: EPA is today promulgating a
final listing decision for used oils based
upon the technical criteria provided in
the Resource Conservation and
Recovery Act (RCRA) sections 1004 and
3001 and in 40 CFR 261.11 (a)(l) and
(a)(3). EPA has decided not to list used
oils destined for disposal as hazardous
waste based on the rinding that all used
oils do not typically and frequently meet
the technical criteria for listing a waste
as hazardous waste. This rule, therefore,
preserves the status quo for used oil
destined for disposal. EPA today is
promulgating a modification to the
current exclusions from the definition of
hazardous waste in 40 CFR 261.4 to
provide an exemption for certain types
of used oil filters. The Agency today is
also providing public notice of the EPA's
deferral on a decision whether or not to
list residuals from the reprocessing and
re-refining of used oil at this time.
The Agency is not taking final action,
at this time, on a listing determination
and/or management standards for used
oils that are recycled as proposed in
1985 and 1991. The Agency will, in the
near future, make a final decision on
listing of used oil destined for recycling
and appropriate management standards
for used oil handlers under the authority
of RCRA section 3014. If EPA
promulgates additional management
standards, service station dealers may
be eligible to qualify for the
Comprehensive Environmental
Response, Compensation, and Liability
Act (CERCLA) section 114(c) liability
exemption. The Agency also may
propose standards controlling the
burning of used oil in boilers and
furnaces at a later date.
EFFECTIVE DATE: June 19,1992.
ADDRESSES: The docket for this
rulemaking and regulatory decision is
available for pubh'c inspection at room
2427, U.S. Environmental Protection
Agency, 401M Street, SW., Washington,
DC 20460 from 9 a.m. to 4 p.m., Monday
through Friday, except for Federal
holidays. The docket number is F-91-
UOLF-FFFFF. The public must make an
appointment to review docket materials
by calling (202) 260-9327. The public
may copy a maximum of 100 pages from
any regulatory document at no cost.
Additional copies cost $.20 per page.
FOR FURTHER INFORMATION CONTACT:
For general information contact the
RCRA Hotline, Office of Solid Waste,
U.S. Environmental Protection Agency,
401M Street, SW., Washington, DC
20460; Telephone (800) 424-9346 (toll
free) or, in the Washington, DC,
metropolitan area telephone (703) 920-
9810. ,
For information on specific aspects ol
this rulemaking and regulatory decision,
contact Ms. Rajni D. Joglekar (202) 260-
3516 or Ms. Eydie Pines (202) 260-3509,
U.S. EPA, 40l M Street, SW.,
Washington, DC 20460.
SUPPLEMENTARY INFORMATION: The
contents of today's notice are listed in
the following outline:
V. Used Oil Filter Exemption
A. Agency's Decision
B. Response to Major Comments
VI. Used Oil Re-refining and Reprocessing
Residuals
VII. State Authorization
A. Applicability of Rule in Authorized
States
B. Effect on State Authorization
VIII. Regulatory Impact Analysis
IX. Regulatory Flexibility Act
X. Paperwork Reduction Act
I. Authority
This regulatory decision is issued
under authority of sections 1004,1006,
2002, 3001 and 3014 of the Solid Waste
Disposal Act, as amended by the
Resource Conservation and Recovery
Act, as amended by the Hazardous and
Solid Waste Amendments, and as
amended by the Used Oil Recycling Act,
42 U.S.C. 6901 et. seq.
I. Authority ,
n. Background
A. Regulation as a Hazardous Waste
B. Used Oil Recycling Act (UORA)
C. Hazardous and Solid Waste
Amendments (HSWA)
D. November 19,1986, Decision Not to List
Used Oil
E. Recent Agency Activities
F. September 1991 Supplemental Notice
G. Development of Comprehensive Market-
Based Used Oil Recycling Program
ffl. Summary of Comments Relating to Final
Rule
A. Listing Used Oil: Summary of Major
1985 & 1991 Comments
B. Oil Filters: Summary of Major 1985 &
1991 Comments
IV. Final Listing Determination
A. General
B. No List Determination for Used Oil
Destined for Disposal
1. Toxicity of Used Oil
2. Regulations Governing the Plausible
Mismanagement of Used Oil Destined for
Disposal
a. Overview of RCRA Subtitle C
regulations applicable to used oil
destined for disposal
b. Applicability of RCRA Subtitle I
regulations to used oil destined for
disposal
c. Applicability of RCRA Subtitle D
regulations to used oil destined for
disposal
d. CERCLA reportable quantities (RQs) and
used oil destined for disposal
e. Toxic Substances Control Act
regulations and used oil destined for
disposal .
f. Clean Water Act regulations and used oil
destined for disposal
g. Safe Drinking Water Act regulations and
used oil destined for disposal
h. Coast Guard regulations and used oil
destined for disposal
i. Department of Transportation regulations
and used oil destined for disposal
j. Summary of no list decision for used oil
destined for disposal
C. Response to Major Comments
II. Background
A. Regulation as a Hazardous Waste
On December 18,1978, EPA initially
proposed guidelines and regulations for
the management of hazardous wastes as
well as specific rules for the
identification and listing of hazardous
wastes under section 3001 of the
Resource Conservation and Recovery
Act (RCRA) (43 FR 58946). At that time,
EPA proposed to list waste lubricating
oil and waste hydraulic and cutting oil1
as hazardous wastes on the basis of
their toxicity. In addition, the Agency
proposed recycling regulations to
regulate (1) the incineration or burning
of used lubricating, hydraulic,
transformer, transmission, or cutting oil
that was hazardous and (2) the use of
waste oils in a manner that constituted
disposal.2
In the May 19,1980, regulations (45 FR
33084), EPA decided to defer
promulgation of the recycling
regulations for waste oils in order to
consider fully whether waste- and use-
specific standards may be implemented
in lieu of imposing the full set of Subtitle
C regulations on potentially recoverable
and valuable materials. At the same
time, EPA deferred the listing of waste
oil that is destined for disposal so that
the entire waste oil issue could be
addressed at one time. Under the May
19,1980, regulations, however, any
1 The term "waste oil" includes both used and
unused oils that may no longer be used for their
original purpose.
2 "Use in a manner constituting disposal" means
the plapement of hazardous waste directly onto the
land in a manner constituting disposal or the use of
the solid waste to produce products that are applied
to or placed on the land or are otherwise contained
in products that are applied to or placed on the land
now codified at 40 CFR 261.2[c)(l).
-------
fWeralRegister / Vol. 57, No. 98 / Wednesday, May 20, 1992 / Rules and Regulations
I waste oil exhibiting one of the
I characteristics of hazardous waste
• (ignitability, corrosivity, reactivity, and
• toxicity) that was disposed, or
• accumulated, stored, or treated prior to
| disposal, became regulated as a
hazardous waste subject to all
applicable Subtitle C regulations.
B. Used Oil Recycling Act (UORA)
In an effort to encourage the recycling
of used oil, and in recognition of the
potential hazards posed by its
mismanagement, Congress passed the
Used Oil Recycling Act (UORA) on
October 15,1980 (Pub. L. 96-^63). UORA
defined used oil as "any oil which has
been refined from crude oil, used, and as
a result of such use, contaminated by
physical or chemical impurities." Among
other provisions, UORA required the
Agency to make a determination as to
the hazardousness of used oil and report
the findings to Congress 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 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
used oil." These statutory provisions
originally were added as section 3012 of
RCRA by the UORA and subsequently
were amended and redesignated as
section 3014 of RCRA under the
Hazardous and Solid Waste
Amendments of 1984.
In January 1981, EPA submitted to
Congress the used oil report mandated
by section 8 of the UORA.3 In the report,
EPA indicated its intention to list both
used oil and unused waste oil as
hazardous under section 3001 of RCRA
based on the presence of a number of
toxicants in crude or refined oil [e.g.,
benzene, naphthalene, and phenols), as
well as the presence of contaminants in
used oil as a result of use (e.g., lead,
chromium, and cadmium). In addition,
the report cited the environmental and
human health threats posed by these
used oils and unused waste oils,
including the potential threat of
rendering ground water non-potable
through contamination.
C. Hazardous and Solid Waste
Amendments (HSWA)
On November 8,1984, the Hazardous
and Solid Waste Amendments (HSWA)
to RCRA were signed into law. In
addition to many other requirements,
HSWA reemphasized that the protection
of human health and the environment
was to be of primary concern in the
regulation of hazardous waste. Specific
to used oil, the Administrator was
required to "promulgate regulation * * *
as may be necessary to protect human
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
consistent with the protection of human
health and the environment." (Emphasis
added to highlight HSWA language
amending RCRA § 3014(a) (see section
242, Pub. L. 98-616).}
: HSWA required EPA to propose
whether to identify or list used
automobile and truck crankcase oil by
November 8,1985, and to make a final
determination as to whether to identify
or list any or all used oils by November
8,1986. On November 29,1985 (50 FR
49258), EPA proposed to list all used oils
as hazardous waste, including
petroleum-derived and synthetic oils,
based on the presence of toxic
constituents at levels of concern during
and after use. Also on November 29,
1985, the Agency proposed management
standards for recycled used oil (50 FR
49212) and issued final regulations,
incorporated at 40 CFR part 266, subpart
E, prohibiting the burning .of off-
specification used oil fuels 4 in non-
industrial boilers and furnaces (50 FR
49164). Marketers of used oil fuel and
industrial burners of off-specification
fuel are required to notify EPA of their
activities and to comply with certain
administrative requirements. Used oils
that meet the used oil fuel specification
are exempt from most of the 40 CFR part
266, subpart E regulations.
On March 10,1986 (51 FR 8206), the
Agency published a supplemental notice
requesting comments on additional
aspects of the proposed listing of used
oil as hazardous. In particular,
commenters to the November 29,1985,
proposal suggested that EPA consider a
regulatory option of only listing used oil
as a hazardous waste when disposed,
while promulgating special management
standards for used oil that is recycled.
The supplemental notice also contained
a request for comments on additional
issues related to the "mixture rule" (40
CFR 261.3(a)(2)(iv)), on test methods for
determining halogen levels in used oils,
and on new data on the composition of
used oil and used oil processing
residuals.
Report to Congress: Listing of Waste Oil as a
Hazardous Waste Pursuant to section [81(21, Pub L
96-163; U.S. EPA, 1991.
4 Used Oil that exceeds any of the following
specification levels is considered to be "off-
specification" used oil fuel under 40 CFR 266.40(e):
Arsenic—5 ppm, Cadmium—2 ppm, Chromium—10
ppm, Lead—100 ppin, Flash Point 100 °F
minimum, Total Halogens—4,000 ppm.
D. November 19,1986, Decision Not To
List Recycled Used Oil
On November 19,1986, EPA issued a
decision not to list as a hazardous waste
used oil that is recycled (51 FR 41900).
At that time, it was the Agency's belief
that the stigmatic effects associated
with a hazardous waste listing might
discourage the recycling of used oil,
thereby resulting in increased disposal
of used oil in uncontrolled manners.
EPA stated that several residues,
wastewaters, and sludges associated
with the recycling of used oil may be
evaluated to determine if a hazardous
waste listing for these residuals was
necessary, even if used oil was not
listed as a hazardous waste. EPA also
outlined a plan that included making a
determination of whether or not to list,
as a hazardous waste, used oil that is
disposed and promulgation of special
management standards for recycled oil.
EPA's decision not to list used oil as a
hazardous waste based on the potential
stigmatic effects was challenged by the
Hazardous Waste Treatment Council,
the Association of Petroleum Re-
refiners, and the Natural Resources
Defense Council. The petitioners
claimed that (1) the language of RCRA
indicated that in determining whether to
list used oil as a hazardous waste, EPA
may consider technical characteristics
of hazardous waste, but not the
"stigma" that a hazardous listing might
involve, and (2) that Congress intended
EPA to consider the effects of listing on
the recycled oil industry only after the
initial listing decision.
On October 7,1988, the Court of
Appeals for the District of Columbia
found that EPA acted contrary to law in
its determination not to list used oil
under RCRA § 3001 based on the
stigmatic effects. (See Hazardous Waste
Treatment Council v. EPA, 861 F.2d 270
(D.C. Cir. 1988) [HWTC I].) The court
ruled that EPA must determine whether
to list any used oils based on the
technical criteria for waste listings
specified in the statute and in EPA's
implementing regulations.
E. Recent Agency Activities
After the 1988 court decision, EPA
began to reevaluate its basis for making
a listing determination for used oil. EPA
reviewed the statute, the 1985 proposed
-------
rule, and the many comments received
on the proposed rule. Those comments
indicated numerous concerns with the
proposed listing approach. One of the
most frequent concerns voiced by
commenters was related to the quality
and "representativeness" of the data
used by EPA to characterize used oils in
1985. Numerous commenters indicated
that "their oils" were not represented by
the data and, if they were represented,
those oils were characterized after being
mixed with other more contaminated
oils or with other hazardous wastes.
Many commenters submitted data
demonstrating that the used oils they
generate, particularly industrial used
oils, did not contain high levels of
toxicants of concern.
In addition, the Agency recognized
that much of the information in the 1985
used oil composition data is several
years old, as most of the information
was collected prior to 1985. Since the
time of that data gathering effort, the
composition of used automotive oil may
have been affected by the phase-down
of lead in gasoline. The Agency also
recognized the need to collect analytical
data addressing specific classes of used
oils as collected and stored at the point
of generation (i.e., at the generator's
facility). ,
Finally, the toxicity characteristic
extraction procedure (EP) (45 FR 33119,
May 19,1980) identified certain used oils
as hazardous. Due to the possibility of
changes in used oil composition
described above and promulgation of
the new toxicity characteristic (TC) rule
(55 FR 11798, March 29,1990), the
Agency recognized that additional data
to characterize the toxicity of used oil
was needed prior to making a final
hazardous waste listing determination.
F. September 1991 Supplemental Notice
On September 23,1991, EPA published
a Supplemental Notice of Proposed
Rulemaking (56 FR 48000). The 1991
Supplemental Notice presented
supplemental information gathered by
EPA and provided to EPA by individuals
commenting on previous notices on the
listing of used oil and used oil
management standards. As discussed
above, numerous commenters on the
1985 proposal to list used oil as a
hazardous waste contended that the
broad listing of all used oils would
unfairly subject them to stringent
regulation because their used oils are
not hazardous. Based on those
comments, the Agency has collected a
variety of additional information
regarding various types of used oil, the
management of these used oils, and the
potential health and environmental
effects posed when these used oils are
mismanaged. The 1991 Supplemental
Notice presented this new information
to the public and requested comment on
the information, particularly on the issue
of whether and how the information
suggests new concerns that EPA should
consider in deciding whether to finalize
all or part of its 1985 proposal to list
used oil as a hazardous waste.
In addition, the 1991 Supplemental
Notice expanded upon the November 29,
1985, proposal (50 FR 49258) to list used
oils as hazardous and a March 10,1986,
Supplemental Notice (51 FR 8206) by
discussing regulatory alternatives not
previously presented in the Federal
Register. Based on the public comments
received relative to these two notices,
the Agency investigated several
important aspects of used oil regulation.
For these aspects, the Agency identified
alternative approaches that were not
presented explicitly in the earlier
notices. Those alternatives were
presented in the 1991 Supplemental
Notice. ' .
The 1991 Supplemental Notice also
discussed the Agency's proposal to
amend 40 CFR 261.32 by adding four
waste streams from the processing and
re-refining of used oil to the list of
hazardous wastes from specific sources.
The Agency noted its intention to
include these residuals in the definition
of used oil in its November 29,1985,
proposal to list used oil as hazardous.
The wastes from the processing and re-
refining of used oil, which are more fully
described later, include process
residuals from the gravitational or
mechanical separation of solids, water,
and oil; spent polishing media used to
finish used oil; distillation bottoms; and
treatment residues from primary
wastewater treatment.
The 1991 Supplemental Notice also
included a description of several
approaches the Agency was considering
for the used oil management standards
(in addition to, or in place of, those
proposed in 1985).
G. Development of Comprehensive,
Market-Based Used Oil Recylcling
Program
In developing management standards,
EPA's efforts will be focused on
avoiding any damage to existing
recycling markets for used oil consistent
with protection of human health and the
environment. At the same time,
however, the Agency is interested in
obtaining the optimal level of used oil
recycling. In the Agency's 1991
Supplemental Notice, EPA identified
several innovative market-based
approaches that it was considering in
the process of developing a used oil
management program that would be
based on a melding of its authorities
under RCRA and the Toxic Substances
Control Act (TSCA). .
EPA has devoted considerable
resources toward the development of
alternative market-based management
programs. The Agency's preliminary
examination indicates that there are
important linkages between possible
section 3014 management standards and
the design of alternative incentive
systems. In general, management
standards that impose significant costs
on used oil handlers may hamper the
effectiveness of market-based programs
because they discourage recycling and
create unintended opportunities for
fraud. Furthermore, management
standards that are compatible with a
particular market-based program (or no
program at all) may be incompatible
with other plausible alternative
programs. The Agency believes that the
success of any market-based program
could be significantly affected by the
design of incentive-compatible
management standards.
Accordingly, when EPA issues its '
rulemaking on recycled used oil, it will
address the issue of market based
approaches. In doing so, the Agency will
consider how market-based approaches
to used oil recycling can complement
management standards, promote
environmentally responsive behavior
and minimize compliance costs.
III. Summary of Comments Relating to
Final Rule
A. Listing Used Oil: Summary of Major
1985 & 1991 Comments-
Many comments were received on the
various aspects of the proposed listing
of used oil. Most commenters opposed
the listing of used oil as a hazardous
waste. The reasons given included that
EPA's sampling was unrepresentative
and flawed, that used oil is no more
hazardous than virgin oil, and the belier
that the levels of constituents EPA found
in used oils do not present a threat to
human health. A large number of
commenters challenged the scope of the
listing and provided a number of
examples where certain used oils should
not be included in the listing because
they do not contain the hazardous
constituents of concern at
concentrations exceeding health-based
levels that would cause the used oil to
be listed.
On November 29,1985 (50 FR 49239),
EPA proposed to list all used oils as
hazardous waste, including petroleum-
derived and synthetic oils, based on the
presence.of toxic constituents at levels
of concern as a result of use or
-------
Federal Register / Vol. 57. No. 98 / Wednesday. May 20, 1992 / Rules and Regulations 2152?
adulteration after use. A sampling and
analysis effort was undertaken by EPA
in 1989 and 1990 to characterize specific
categories of used oil to determine
whether these used oils were hazardous
at the point of generation. EPA's study
was undertaken to address comments
received in response to the November
1985 proposal to list all used oils
wherein commenters claimed that
certain types of used oil were not
hazardous at the point of generation but
rather were adulterated subsequent to
use,
A number of commenters responded
that "their" oil (such as electrical
insulating or metalworking oil) did not
contain toxic constituents of concerns,
as demonstrated by EPA's own data,
and therefore, should not be listed as
hazardous waste. Other commenters
stated that used oil containing toxic
constituents would be adequately
regulated by the existing characteristics
framework, such as the TC. These
commenters believed that used oil
exhibiting the TC and destined for
disposal would be regulated as
hazardous waste, while used oil not
exhibiting the TC should not be
regulated under any circumstances.
Some commenters proposed that only
those used oils that contain certain toxic
constituents, such as lead, arsenic,
cadmium, chromium, 1,1,1-
trichloroethane, tricholorethylene,
tetrachloroethylene, toluene, and
naphthalene, should be included in the
listing. One commenter indicated that
storage tank data rather than point of
generation data should be used to make
a listing determination since most of the
used oil management occurs after
storage. Some commenters asserted that
EPA's concern is not with used oil itself
but the mixing of used oil with other
constituents that may render the used
oil hazardous only because of post-use
adulteration. Therefore, instead of
listing all used oils, commenters
recommended that EPA should list used
oils as hazardous only if other
substances have been added after the
oil's initial use.
The Supplemental Notice of
September 23,1991 (56 FR 448041],
presented three options for identifying
used oil as a hazardous waste. Option
One was to list all used oils as proposed
on November 29,1985 (50 FR 49239).
Option Two was to list categories of
used oil that were found to be "typically
and frequently" hazardous because of
the presence of lead, polyaromatic
hydrocarbons (PAHs), arsenic,
cadmium, chromium, and benzene.
Option Three was to not list used oils as
hazardous, but rely on management
standards developed under RCRA
§ 3014 to control mismanagement of
used oil. The commenters
overwhelmingly supported Option
Three, not to list used oil as a hazardous
waste, but rely on management
standards.
A few commenters stated that as a
result of EPA's program to phase down
lead in gasoline, lead concentations in
used oil have declined. In addition,
some commenters claimed that EPA's
analyses of used oil were based on too
few samples and that these samples
were unrepresentative of actual
conditions. Some commenters expressed
a reluctance to have EPA list used oil as
a hazardous waste, but urged EPA, if
used oil is to be listed, to list only those
used oils that are disposed and not list
used oils that are recycled.
A few commenters supported the
proposal to list all used oils as
hazardous waste. They stated that used
oil has been historically mismanaged
and presents a threat to human health
and the environment.
B. Oil Filters: Summary of Major 1985
and 1991 Comments
Many comments were received on the
various issues raised by EPA concerning
used oil filters. In response to the
November 1985 proposal to list all used
oil as hazardous waste, EPA received
many comments on the effect of such a
listing on used oil filters. Commenters to
the 1985 rule stated that used oil filters
would contain used oil and, thus, would
be classified-as hazardous waste under
the mixture rule at 40 CFR
261.3(a)(2)(iv). Further, commenters
stated that, due to the weight of used oil
filters, small service stations and
automobile repair shops would exceed
the conditionally exempt small quantity
generator defintion because they would
generate greater than 100 kg of
hazardous waste in a calendar month.
Commenters suggested that EPA
exclude used oil filters from the
definition of hazardous waste. Many
suggested that EPA require that used oil
filters be drained prior to disposal and
pass the "Paint Filter Test" (SW-846
Method 9095) to qualify for such an
exclusion.
A few commenters on the 1985
proposal expressed concern with any
exclusion from the definition of
hazardous waste for used oil filters.
These commenters stated that used oil
filters, particularly large filters, could
contain significant quantities of oil.
Further, these commenters pointed out
that contaminants and toxic ' •
constitutents may be concentrated in oil
filters. The commenters suggested that
EPA conduct additional studies on the
environmental and human health risks
associated with the disposal of used oil
filters.
In September 1991, EPA proposed to
exempt, used oil filters from the
definition of hazardous waste if the
filter has been crushed or drained. Thus,
such filters would not have to be
managed as a hazardous waste, even if
individual filters exhibited a hazardous
characteristic.
Most of the commenters supported
EPA's proposal to exclude from the
definition of hazardous waste (40 CFR
261.4(b)) used oil filters that have been
drained and crushed. Commenters to the
September 23,1991 proposal raised the
following two concerns regarding the
proposed exemption:
1. Draining and crushing are not the
only acceptable technologies for
removing used oil from filters and may
not be the best technologies.
2. Used oil filters do not exhibit the
toxicity characteristic and should be
exempt from Subtitle C regulation.
Some commenters suggested that
draining used oil filters for 24 hours was
sufficient and that after this time, period,
crushing was not necessary. This
position was supported by some
commenters that indicated that the cost
of a crusher ranges from $1,000 to
$10,000, which could be prohibitive for
smaller service stations. One commenter
submitted data on 31 used oil filters
from trucks using gasoline (5 filters) and
diesel (26 filters), which had been
gravity drained for four to twenty hours.
The data indicate that none of the filters
exhibited the TC.
Those commenters that did not
support the exclusion stated that oil
filters can contain significant quantities
of used oil that draining alone will not
remove. The commenters disagreed as
to what constitutes proper "draining and
crushing." Commenters disagreed as to
what constitutes adequate draining and
whether crushing should be done in
addition to draining. Some commenters
requested that the Agency develop
specifications for crushing. Other
commenters stated that draining alone is
not sufficient, but should be followed by
crushing/dismantling and followed by
recycling. Their rationale was that even
after draining, filters contain 3 to 4
ounces of used oil and thus, 12 million
gallons of used oil would be disposed of
in Subtitle D landfills annually. Those
commenters that did not support a
blanket exclusion for used oil filters
generally stated that the generator
should test the filter with the TCLP.
Based on the results of the test, the
generator should handle the filters
-------
21528
Federal Register / Vol. 57. No. 98 / Wednesday, May 20. 1992 / Rules and Regulations
accordingly, unless the filter will be
reclaimed.
IV. Final Listing Determination
A. General
EPA regulations, based on RCRA
sections 1004(5) and 3001, at 40 CFR
281.11 set forth the technical criteria to
determine whether a solid waste should
be listed as a hazardous waste. EPA
used the technical criteria in 40 CFR
281.11 (a)(l) and (a)(3) in making today's
used oil listing determinations.
Subsection (a)(l) of 40 CFR 261.11
allows the Administrator to list a waste
as hazardous if the waste exhibits any
of the characteristics of hazardous
waste. According to 40 CFR 261.11(a)(3),
a waste shall be listed as hazardous if it
"contains any of the toxic constituents
listed in appendix Vin and, after
considering the following factors, the
Administrator concludes that the waste
is capable of posing a substantial
present or potential hazard to human
health or the environment when
improperly treated, stored, transported
or disposed of, or otherwise managed.
* * *" The factors to be considered in
making this determination include
toxicity, fate and transport, mobility and
persistence, and bioaccumulation
potential of the constitutents in the
waste, as well as plausible
mismanagement scenarios (40 CFR
261.11(a)(3)(vii)) and other federal and
state regulatory actions with respect to
the waste (40 CFR 261.11(a)(3)(x)).
In making a listing determination for
used oil destined for disposal, EPA gave
considerable attention to the current
federal regulations governing used oils.
EPA evaluated the technical criteria for
listing in light of the current regulatory
structure controlling the management of
used oils and concluded that any
plausible mismanagement of used oil
that is destined for disposal is
addressed by current requirements.
As implied in Option Three of 1991
Supplemental Notice, EPA preserved its
ability to maintain the status quo if the
Agency's analysis of existing regulations
showed that actions have been taken to
control the mismanagement of used oil.
EPA finds that the current regulatory
structure controlling the management of
used oil destined for disposal provides
adequate controls so that used oil will
not pose a substantial threat to human
health or the environment.
Current regulations governing the
management of used oils destined for
disposal include: Those of EPA and the
U.S. Coast Guard for oil discharges into
navigable waters; U.S. Department of
Transportation requirements; EPA
regulations for polychlorinated
biphenyls (PCBs) under the Toxic
Substances Control Act, hazardous
waste characteristics applying to used
oil that is disposed under RCRA,
underground storage tank requirements
(UST) under RCRA; Underground
Injection Control (UIC) permits under
the Safe Drinking Water Act; Spill
Prevention, Control and
Countermeasures (SPCC) plans and
National Pollutant Discharge
Elimination System (NPDES) storm
water regulations under the Clean
Water Act; and the phase down of lead
in gasoline under the Clean Air Act. In
combination, application of these
controls imposed by EPA and other
federal agencies prevent the
mismanagement of used oil to such an
extent that used oil destined for disposal
is unlikely to pose a substantial present
or potential hazard to human health and
the environment.
EPA also recognizes that several
states regulate used oil as a hazardous
waste, and some states regulate it as a
special waste. Several states ban the
disposal of used oil in municipal solid
waste landfills (MSWLFs). A used oil
handler must comply with all state
requirements applicable to used oil in
his/her state, in addition to any Federal
requirements that apply.
B. No List Determination for Used Oil
Destined for Disposal
In making the no list determination for
used oil that is destined for disposal,
EPA used the technical criteria
discussed in Section IV.A.
1. Toxicity of Used Oil
In the 1991 Supplemental Notice, EPA
proposed to expand the basis for listing
gasoline-powered engine crankcase
used oil to reflect the presence of three
toxic polynuclear aromatic
hydrocarbons (PAHs): Benzo(a]pyrene,
benzo(bjfluoranthene, and
benzo(k)fluoranthene. EPA based this
expansion on the analysis of two
samples of automotive crankcase used
oil analyzed for benzo(k)fluoranthene
and four samples of automotive
crankcase used oil analyzed for
benzo(a)pyrene and
benzo(b)fluoranthene. With respect to
the presence of PAHs in used oil, EPA
believes that the current regulatory
structure can control the
mismanagement of recycled used oil
containing toxic PAHs.
Based on the 1989/90 sampling and
analysis effort the Agency tentatively
determined that a high proportion of
used oils from gasoline-powered engine
exhibited the TC for lead and benzene.
Other categories of used oil did not
exhibit the TC in such a high proportion
and, in fact, did not meet the criteria for
listing since they did not contain
constituents of concern (constituents of
the TC) at levels that could pose a risk
to human health and the environment.
The phase down of lead in gasoline
under the Clean Air Act has resulted in
subsequent reduction in lead
concentrations in used oil. In addition,
in accordance with the Clean Air
Amendments, additional phase downs
are scheduled to occur, thus further
reducing the lead concentration. The
lowered lead concentrations in used oil
reduce the potential for harm to human
health and the environment from
mismanagement.
2. Regulations Governing the Plausible
Mismanagement of Used Oil Destined
for Disposal
Regulatory programs currently in
place control used oil generators,
transporters, collectors and recyclers.
Since 1985, EPA has promulgated
several regulatory programs that
directly affect the management of used
oil destined for disposal (e.g., the TC,
the UST program, the MSWLF rule, the
NPDES Storm Water program, and the
Land Disposal Restrictions (LDRs). Also,
several other regulatory programs that
were in place even prior to 1985
continue to control some used oil
management practices (e.g., U.S.
Department of Transportation (DOT)
shipping and handling requirements).
After assessing the extent and potential
success of current regulatory programs
and their effect on the disposal of used
oil, the Agency believes that the existing
network of regulations provides
protection from plausible disposal
mismanagement scenerios, as discussed
below.
a. Overview of RCRA subtitle C
regulations applicable to used oil
destined for disposal. Used oils
exhibiting one or more of the
characteristics of hazardous waste and
which are destined for disposal continue
to be regulated as hazardous wastes in
accordance with all applicable subtitle
C regulations, except when stored in
RCRA subtitle I underground storage
tanks as discussed in subsection b. of
this section. Mixtures of used oils and
listed hazardous wastes are listed
hazardous wastes, and used oil mixed
with a characteristic hazardous waste
must be managed as a hazardous waste
if it still exhibits a characteristic.5 Such
6 It should be noted that mixing characteristic
hazardous waste with another material to render
the waste nonhazardous constitutes treatment of
hazardous waste subject to applicable standards
under 40 CFR parts 264-265 and 270, and the
Continued
-------
federal Register / Vol. 57, No. 98 /.Wednesday. May-20. 1992 / Rules and. Regulations 21529
mixtures must be managed in
accordance with all applicable subtitle
C regulations. Those generators
identified in 40 CFR 262.34s and storers
of hazardous used oil destined for
disposal are subject to the tank system
requirements at subpart J of parts 264
and 265. Used oils are also subject to the
corrective action requirements of RCRA
subtitle C, including sections 3004(u) and
3008(h), which apply to solid waste
management units at RCRA treatment,
storage, or disposal facilities.
Further, if used oil exhibits a
characteristic of hazardous waste and is
destined for disposal, facilities that store
such used oil are subject to the tank
system requirements at 40 CFR parts 264
or 265, subparts J. These requirements
are designed to prevent ground water
contamination and other releases to the
environment and include requirements
for daily inspection, tank integrity, and
secondary containment. If used oil
destined for disposal exhibiting a
characteristic of hazardous waste is
stored for greater than 90 days, the
facility must be permitted under RCRA
as a hazardous waste storage facility.
It is important to note that used oils
exhibiting the characteristic of EP
toxicity (prior to its revision] currently
are prohibited from land disposal unless
they meet the applicable treatment
standards. Treatment standards for
these wastes were promulgated with the
Third Third rulemaking on June 1,1990
(55 FR 22520). Used oils exhibiting the
new TC, but not the characteristic of EP
toxicity are not currently prohibited
from land disposal, even if the
constituent causing the waste to exhibit
the TC is also controlled by the EP. LDR
treatment standards for the newly
identified TC wastes (including the 26
newly listed organic constituents) are
scheduled to be promulgated by April
1993. Used oil which is mixed with a
listed hazardous waste must meet the
LDR standard for the listed waste.
I b. Applicability of RCRA subtitle I
I regulations to used oil destined for
I disposal. For USTs located at permitted
hazardous waste facilities subject to .
section 3004(u) of RCRA, the subtitle C
corrective action statutory authorities
I supersede subtitle I corrective action
I requirements to avoid overlap in
I regulatory authority (see 40 CFR 280.60).
I For facilities without a final HSWA
I permit, subtitle I corrective action
I notification requirements of section 3010 of RCRA.
I For example, mixing spent mineral spirits used as a
I solvent (exhibiting the characteristic of ignitability
I or toxicity) with used oil to render the mineral
I spirits nonhazardous constitutes treatment.
6 This regulation identifies regulated generators
I by quantity of waste generated duration of time
I accumulated. ' , .• . ,
standards will apply to releases from all
petroleum and hazardous substance
USTs. UST corrective actions underway
at a facility having interim status under
RCRA subtitle C may be subject to
review by permit writers during the
development of the final HSWA permit.
These ongoing corrective action
activities may be incorporated into the
facility's final RCRA permit (53 FR
37176). •
As discussed in the September 1991
supplemental proposal, EPA presumes
that used oil stored in underground
storage tanks is destined for recycling
and currently exempt from subtitle C (40
CFR 261.6(a)(3)(iii)); thus such tanks are
subject to subtitle I. The Agency
continues to believe that the subtitle I
standards are sufficient to protect
human health and the environment from
the potential releases of used oil from
USTs. In conclusion, the Agency
continues to view subtitle I as
applicable to used oil, with the
exceptions noted in the preceding
paragraph where RCRA subtitle C
authority is in place.
c. Applicability of RCRA subtitle D
regulations to used oil destined for
disposal. Nonhazardous used oil may be
disposed of in an industrial solid waste
landfill or a MSWLF. EPA recently
promulgated final disposal criteria for
MSWLFs (October 9,1991, 56 FR 50978).
The revised criteria were promulgated at
40 CFR part 258 and included location
restrictions, faciltiy design and
operating criteria, ground-water
monitoring requirements, corrective
action requirements, financial assurance
requirements, and closure and post-
closure care requirements. In addition,
many states have design and operating
requirements governing industrial non-
hazardous waste landfills.
d. CERCLA reportable quantitites
(RQs) and used oil destined from
disposal. Any waste identified as a
hazardous waste (either by listing or by
characteristic) under RCRA generally
becomes a hazardous substance under
CERCLA. Such designation subjects the
hazardous waste to the section 103
reporting requirements for releases,
equal to or exceeding the assigned
reportable quantity (RQ) of that
hazardous substance. In addition,
constituents in the used oil that are not
defined as hazardous waste under
RCRA may be designated hazardous
substances under CERCLA (see 40 CFR
part 302). Therefore, in accordance with
§ 302.6(b) concerning mixtures or
solutions, immediate notification is
required when an RQ or more of any of
the hazardous substances are released.
e. Toxic Substances Control Act
regulations and used oil destined for
disposal. Section 6(e) of the Toxic
Substances Control Act (TSCA)
mandates that EPA control the
manufacture (including import), use,
processing, distribution in commerce,
and disposal of PCBs. Because of the
potential hazards posed by the
uncontrolled use and disposal of PCBs,
EPA has established a comprehensive
program to control PCBs from
manufacture to disposal. A primary use
of PCBs, a viscous oil, was as an
insulating material for electrical
equipment (dielectric). PCBs were
almost always mixed with mineral oil,
silicone, or other oily materials when
used as insulating material. TSCA
regulations prohibit the use of waste oils
(including used oils) containing PCBs for
dust suppression. Prohibited.uses
include, but are not limited to, use in
road oiling, use in general dust control,
use as a pesticide or herbicide carrier,
and use as a rust preventative on pipes
(40 CFR 761.20(d)). Used oil applied for
dust suppression must meet the
requirements of both RCRA and TSCA.7
Further, a release of 1 pound of PCBs
into the environment must be reported
immediately to the National Response
Center in accordance with section 103(c)
of CERCLA. Further, under the TSCA
PCB Spill Cleanup Policy, any spill of
material containing 50 ppm or greater
PCBs into sewers, drinking water,
surface water, grazing lands, or
vegetable gardens must be reported
immediately (40 CFR part 761, subpart
G). If a used oil contains PCBs, the most
stringent, applicable reporting
requirement must be followed.
/. Clean Water Act regualtions and
used oil destined for disposal. In
addition to the UST requirements
discussed above, the storage of used oil
at many petroleum-related storage
facilities is subject to SPCC regulations.8
Under section 311(j)(i)(c) of the Clean
Water Act, EPA established the SPCC.
program (38 FR 34165, December 11,
1973) to protect surface waters and
adjoining shorelines from petroleum and
7 Congress banned the use of any hazardous
waste as a dust suppressant under RCRA § 3004(1).
Therefore, as noted above, any used oil that
exhibits one or more of the characteristics (other
than the characteristic of ignitability) of hazardous
waste is banned from use as a dust suppressant.
s The SPCC regulations (40 CFR 112) currently
apply to on-shore and off-shore non-transportation
related facilities that have the potential to discharge
oil into navigable waterways and have underground
storage tank capacities greater than 42,000 gallons
or aboveground storage tank capacities of more
than 660 gallons in a single tank or an aggregate of
greater than 1,320 gallons.
-------
21530
Federal Register / Vol. 57. No. 98 / Wednesday. May 20, 1992 / Rules and Regulations
other oil contamination.9 Facilities
subject to the regulations each prepare
and maintain an SPCC plan, which
includes provisions for appropriate
containment or diversionary structures
to prevent discharged oil from reaching
surface waters and adjoining shorelines.
A major goal of the SPCC plan is to
ensure that SPCC-regulated storage
tanks and storage areas are designed to
protect against releases of petroleum
and other oils to navigable waters and
adjoining shorelines. "Oil", when used
in relation to Section 311 of the Federal
Water Pollution Control Act, means oil
of any kind or in any form, including,
but not limited to, petroleum, fuel oil,
sludge, oil refuse, and oil mixed with
wastes other than dredged spoil.
Concerning used oil, releases of oil to
navigable waters that (1) cause a sheen
to appear on the surface, (2) violate
applicable water quality standards, or
(3) cause a sludge or emulsion to be
desposited beneath the surface of the
water or upon adjoining shorelines, are
reportable under 40 CFR Part 110. EPA
believes that a significant number of
used oil storage facilities will store used
oil in tanks or containers prior to
disposal. The Agency also believes that
the SPCC requirements are designed to
provide a sufficient level of protection to
human health and the environment from
potential releases of used oil to
navigable water and adjoining
shorelines.
Used oil generators, storage, and
disposal facilities may be subject to the
storm water regulations (55 FR 47990,
November 16,1990) promulgated under
the Clean Water Act. The NPDES storm
water regulations at 40 CFR 122.26
provide an additional layer of
environmental protection against used
oil disposal by industrial facilities at
locations where runoff due to storm
events results in releases of used oil-
contaminated runoff to waters of the
United States. Under these regulations,
facilities with point source discharges of
"storm water associated with industrial
activity" to the waters of the United
States, including discharges through
municipal separate storm sewer systems
that ultimately reach the waters of the
United States, must apply for a National
Pollution Discharge Elimination System
(NPDES) permit. "Storm water discharge
associated with industrial activity" is
» On October 22.1991 (58 FR 54612), EPA
proposed revisions to the 40 CFR part 112
requirements. The proposed rule addresses a
number of issues, including the mandatory nature of
most of the requirements, the required procedures
for completion of SPCC Plans, and the addition of a
facility notification provision. If adopted, these
changes would improve the SPCC program's control
of potent!tl releases of used oil.
defined to include runoff, snowmelt
runoff, and surface water runoff that is
discharged and is directly related to
manufacturing, processing, or raw
materials storage at an industrial facility
(40 CFR 122.26(b)(14)).
The storm water regulations
specifically apply to active and inactive
landfills, land application units, and
open dumps that receive or have
received any industrial wastes [i.e.,
waste from any of the categories of
facilities identified under 40 CFR
122.26(b)(14) (i) to (xi)). The storm water
regulations apply to those facilities that
are subject to both subtitles C and D of
RCRA. Commercial or retail outlets such
as service stations or quick lube shops
are currently excluded from CWA
permit requirements unless EPA or a
State designates a particular facility for
permitting under section 402(p)(2)(E) of
the Clean Water Act.
g. Safe Drinking Water Act
regulations and used oil destined for
disposal. The Underground Injection
Control (UIC) regulations at 40 CFR
parts 144 through 148 were promulgated
pursuant to part C of the Safe Drinking
Water Act and, to the extent that the
regulations address hazardous waste,
RCRA. The UIC program regulates the
underground injection of all fluids
through wells. Under 40 CFR 144.12, "No
owner or operator shall construct,
operate, maintain, convert, plug,
abandon, or conduct any injection
activity in a manner that allows the
movement of any fluid containing any
contaminant into underground sources
of drinking water, if the presence of that
contaminant may cause a violation of
any primary drinking water regulation
under 40 CFR part 142 or may otherwise
adversely affect the health of persons."
While EPA believes it is unlikely, and
not practical technically, for large
volumes of used oil to be disposed into
injection wells, there are cases where
used oil may be mixed with other fluids
(i.e., wastewaters or oil and gas
exploration and production wastes) and
injected into UIC wells. If the presence
of used oil or any constituent causes the
injected fluid to be hazardous, any well
injecting below an underground source
of drinking water (USDW) must be
permitted for hazardous waste injection.
Any other well injecting a hazardous
waste into or above a USDW is banned,
and must be properly plugged and
abandoned.
Finally, as a further measure of
protection, under 40 CFR part 148 the ....
injection of hazardous wastes for which
LDR treatment standards have been
promulgated is prohibited unless the
waste has been treated to meet the
applicable standards in 40 CFR part 268
or an exemption has been granted based
on a petition submitted under 40 CFR
part 148, subpart C.
h. Coast Guard regulations and used
oil destined for disposal. Releases of
used oil to navigable waters and
shipboard management of used oil are
governed by Coast Guard regulations
promulgated pursuant to MARPOL 73/
78.10 Of primary importance to used oil
is the regulation of bilge slop generated
on-board ships. Bilge slop is a residual
liquid that collects through leakage,
seepage, or drainage in the holds of
ships and consists primarily of water
mixed with a small amount of oil. The
regulations prohibit the unrestricted
discharge of oil or oily mixtures into the
sea and require that ships either retain
bilge slop on board or separate the oil
and water and retain the oil on board
until the slop and oil can be discharged
at a licensed shore side reception
facility. Ships more than 12 nautical
miles from land may only discharge oil
or oily mixtures where the undiluted oil
concentration is less than 100 ppm,
provided the ship is not located in an
ecologically sensitive area. Ships within
12 nautical miles of land may not
discharge oil or oily mixtures unless the
undiluted oil concentration is less than
15 ppm. The regulations also address the
on shore management of bilge water at
port reception facilities.
i. Department of Transportation
regulations and used oil destined for .
disposal. The U.S. Department of
Transportation (DOT) regulates the
transportation of hazardous materials in
commerce under the authority of the
Hazardous Materials Transportation
Act (HMTA) (49 CFR parts 171 to 179).
Used oil is classified as a hazardous
material if it meets the definition of
combustible liquid (flash point below
200 °F, but equal to or greater than 100
°F) or flammable liquid (flash point
below 100 °F). Used oil generators
(shippers) and transporters of DOT
hazardous materials have to comply
with any and all applicable DOT
regulations for identification and
classification, packaging, marking,
10 In 1973, the International Conference on
Marine Pollution adopted the International _
Convention for the Prevention of Pollution by Ships,!
1973. This Convention was subsequently modified I
by the Protocol of 1978, adopted by the International
Conference on Tanker Safety and Pollution
Prevention. The 1973 Convention, as modified by
the 1978 protocol, is known as MARPOL 73/78.
MARPOL 73/78 is an international agreement
designed to address the problem of marine pollutioH
from ships on a global scale. It contains five
Annexes, each of which addresses a. different type
of marine pollution. Annex I addresses oil-pollution!
and is currently in effect internationally..
-------
Federal Register / Vol. 57, No. 98 / Wednesday, May 20, 1992 / Rules and Regulations 21531
labeling, and shipping papers. In
addition, used oil transporters (carriers)
have to comply with any and all
applicable DOT regulations for
placarding, use of shipping papers,
recordkeeping, reporting, and incident
response. Used oil that is a hazardous
waste and is destined for disposal is
subject to those DOT regulations,
referenced at 40 CFR part 262, subpart
Li. ....
j. Summary of no list decision for used
oil destined for disposal. For the reasons
discussed above, EPA believes that the
potential scenarios under which used oil
may be released to the environment are
adequately controlled under existing
regulations. According to current
estimates, a relatively small portion of
the used oil generated is disposed (80
million gallons compared to over 800
million gallons being recycled by
burning for energy recovery and re-
refining per year). Based on the existing
regulations, EPA determined that it was
not necessary to categorically list used
oil destined for disposal, but instead will
rely on the comprehensive set of
existing regulatory controls, particularly
the hazardous waste characteristics.
Although the Agency proposed to list
certain used oils in the September 1991
supplemental proposal, most gasoline-
powered engine oils already exhibit the
I TC, and listing these used oils would not
I affect the way these used oils must be
I managed. In other words, the existing
characteristics will adequately capture
I hazardous used oils under Subtitle C
I without a hazardous waste listing. In
I addition, EPA believes that the current
I regulatory framework can control the
I mismanagement of used oil containing
I toxic PAHs destined for disposal.
I Therefore, EPA has determined that
1 used oil from gasoline-powered engine
Icrankcases need not be listed as a
I hazardous waste to ensure its proper
•management. As for other used oils, the
I data collected in support of the 1991
•supplemental notice continues to
•support the conclusion that such oils are
•not typically and frequently hazardous.
[Those oils which may pose a threat on
•disposal are addressed by the current
•regulatory framework, including the
•hazardous waste characteristics!
|C. Response to Major Comments
Most commenters supported a no list
•decision for used oil destined for
•disposal, as existing regulations,
•especially the TC rule, are adequately
•protective. These comments were
pummarized in section III.A., and
responses were incorporated in the
preceding preamble section. A small
number of commenters favored listing
all or some used oil destined for
disposal as hazardous waste. These
commenters cited past mismanagement
of used oil as a primary reason for the
necessity of a listing action. EPA
believes, however, that the
mismanagement incidents cited by EPA
in the September 1991 notice occurred
before implementation of major
rulemakings governing storage of used
oil. EPA believes, upon reevaluation,
that the protective nature of these
regulations is sufficient to guard against
mismanagement of used oil until the
Agency issues a hazardous waste listing
determination for recycled used oil or
promulgates additional management
standards under RCRA section 3014.
In light of the public comments
received regarding listing of gasoline-
powered engine crankcase oils as
proposed in Option 2, EPA believes that
existing regulations prevent
mismanagement of these and other used
oils destined for disposal.
V. Used Oil Filter Exemption
A. Agency Decision
EPA is today finalizing the proposed
exemption for used oil filters at 40 CFR
261.4(b)(13) which identifies solid
wastes that are not hazardous wastes.
Today's rule reduces the burden on
generators to make a hazardous waste,
determination in a case where EPA has
sufficient data to provide a categorical
exemption. This exemption is limited to
non-terne-plated lx used oil filters
which have been drained to remove
used oil. Terne-plated used oil filters are
not included in the exemption because
the terne plating makes the filter exhibit
the characteristic of toxicity for lead. As
a practical matter, if an oil filter is
picked up by hand or lifted by
machinery and used oil immediately
drips or runs from the filter, the filter
should not be considered to be drained.
Under current RCRA subtitle C
regulations, if a generator is intending to
dispose of a used oil filter, the generator
is required to determine whether the
used oil filter exhibits any of the
characteristics of hazardous waste. This
determination can be made either by
testing or by applying the generator's
knowledge of the waste or process that
generated the waste. EPA issued
guidance on this issue through a
memo 12 which states that the TCLP can
be performed on oil filters by crushing,
grinding, or cutting the filter and its
contents until the pieces are smaller
than one centimeter and will pass
through a 9.5 mm standard sieve. If the
filter exhibits any of the characteristics
of hazardous waste, the generator must
manage it in accordance with subtitle C
requirements.
Oil filters are used in two categories "
of vehicles, light duty and heavy duty.
Light duty vehicles include automobiles,
passenger vans, and light duty trucks, •'•
such as small pickup trucks. Heavy duty"
oil vehicles include buses and
commercial trucks, such as dump trucks,
tractor-trailers, mining, or construction v
vehicles. Oil filters may be classified
into two broad categories of cartridge or
spin-on types.13 The Filter
Manufacturers Council (FMC)
conducted toxicity characteristics
testing on 35 light duty and 11 heavy
duty spin-on oil filters. Prior to the study
being undertaken, EPA reviewed FMC's
sampling and analysis methodology.
In the FMC study, the spin-on filters
were removed from engines at operating
temperatures and either the anti-drain
back valves or the filter dome end was
punctured. Then, the filters were
allowed to gravity drain for a 12-hour
period. According to FMC, hot-draining
used oil filters for 12 hours is standard
industry practice. For spin-on oil filters
from light-duty vehicles, the study found
that none of the 35 filters exhibited the
TC, although lead, chromium, cadmium,
and benzene were detected. For spin-on
oil filters from heavy-duty vehicles, the
study determined that 5 of the 11 filters
exhibited the TC for lead. These were
also the five filters that were terne-
plated. Terne, an alloy of lead and tin,
would account for the high
concentrations of lead found, 12.0-74.5
mg/1 in the waste extract. A blank
(unused) terne-plated oil filter had a
TCLP lead concentration of 30. mg/1.
The remaining six oil filters from heavy
duty vehicles did not exhibit the TC.
FMC later clarified their comments by
writing that it is not possible to identify
any categories of filters or of end uses of
filters (e.g., by engine type, engine class,
end use application, filter size, visual
inspection of filters, etc.) which
comprise exclusively terne-coated
filters.
A 1990 study conducted by the Iowa
Waste Reduction Center at the
1" Terne is an alloy of tin and lead.
12 The memorandum, dated October 30,1990, is
from Sylvia Lowrance, Director of the Office of
Solid Waste, to Robert L. Duprey, Director of the
Hazardous Waste Management Division in EPA
Region VIII, and addresses regulatory
determinations on used oil filters.
13 Cartridge filters are typically a replaceable
pleated paper filter media formed in a cylinder
around a perforated metal centertube. Metal end
caps and nitrile rubber grommets are used to
prevent flow around the filter media. Spin-on filters
are essentially cartridge niters that are assembled
into a filter can or body.
-------
University of Northern Iowa showed
that 44 percent to 55 percent of the used
oil could be removed through draining
and about 88 percent could be removed
through compaction. One commenter
demonstrated, through TCLP analysis,
that light-duty used'automotive oil filters
from which used oil is removed by
pressurized air are nonhazardous. As
much as 8 ounces of used oil can be
removed in seconds by using this
method, according to this commenter.
Based on the data submitted, non-
terne-plated, hot-drained14 used oil
filters do not typically and frequently
exhibit the TC. The source of the hazard
exhibited by the non-terne-plated used
oil filters is the used oil they contain
prior to being drained; thus, as much of
the oil as possible should be removed.
EPA has determined that non-terne-
plated used oil filters that have been
hot-drained of used oil for a minimum of
12 hours after puncturing either the anti-
drain back valve or the dome end do not
appear to exhibit the TC. EPA is thus
recommending a minimum 12-hour hot-
drain time for punctured or pierced used
oil filters, but is not adopting a
regulatory standard in order to allow for
the development of alternate used oil
removal techniques. Similarly, hot-
drained and crushed filters, or
dismantled and drained filters do not
appear to exhibit the TC. In addition,
light-duty automotive used oil filters that
have been subjected to air pressure for
oil removal do not appear to exhibit the
TC.
Terne-plated oil filters are not
included in the exemption; therefore, a
hazardous waste determination must be
made prior to disposal in a landfill. EPA
received inadequate data to make a
determination on other types of filters,
such as fuel filters, transmission oil
filters, or specialty filters (such as cloth
railroad oil filters). Since there is a lack
of quantitative data on these types of
filters, they are not included in the scope
of the exemption being finalized today.
The Agency is recommending that the
recyclable used oil and other recyclable
elements of the oil filter, such as the
canister, gasket, and filter paper, be
separated and recycled. EPA is therefore
requiring that filters qualifying for the
exemption first have the used oil
removed using one of the following
gravity hot-draining methods:
(1) Puncturing the filter anti-drain
back valve or the filter dome end and
hot-draining;
(2) Hot-draining and crushing;
(3) Dismantling and hot-draining; or
[4] Any other equivalent hot-draining
method which will remove used oil.
Then, once the used oil is removed, it
can be recycled (as can the scrap metal).
Finally, EPA encourages
manufacturers of terne-plated filters to
pursue source reduction alternatives to
terne plating. EPA encourages
generators to recycle used oil and used
oil filters. In choosing the used oil
removal technique, it is important to
ensure that the operation is compatible
with the ultimate recycling procedure.
For example, if the filters are destined
for a smelter, hot-draining and crushing
may be appropriate. However, if the
filters will be separated into their
component parts (e.g., used oil, metal,
and filtration media) and recycled
separately, puncturing and gravity hot-
draining may be more appropriate since
crushing may hinder the separation of
the metal from the filtration media. EPA
also encourages steel mills and scrap
metal recyclers to accept used oil filters,
from which oil has been removed, as a
solid waste for scrap feed in steel
production.
14 "Hot-drained" means that the oil filter is
drained near engine operating temperature and
above room temperature (i.e., 60 °F).
B. Response to Major Comments
As discussed above, EPA received
data that indicate that most oil filters .
from which used oil is removed do not
exhibit a characteristic of hazardous
waste, including toxicity. The Agency is
not concerned about the volume of used
oil remaining in the filters subsequent to
draining because, according to
commenter-submitted data, the filters
hot-drained for at least 12 hours do not
appear to be hazardous. EPA has
responded to commenters advocating
various methods of oil removal by
promulgating an exemption for filters
from which used oil has been removed
through gravity hot-draining after
puncturing the filter, hot-draining and
crushing,' or dismantling and draining.
Examples of oil removal methods
include flushing of oil filters with
pressurized air to drain used oil from oil
filters, and spinning of the oil-soaked
filter paper media removed from oil
filters to remove residual oil. Based on
the limited data available, it appears
that both of these methods adequately
remove used oil in order to make oil
filters nonhazardous. No technical
specifications or performance standards
for crushing oil filters have been
developed, although such specifications
were requested, because inadequate
TCLP data were received to support
development of a standard for crushed
filters. No correlation between crushing
force or crushed filter height and TCLP
results could be made from the available
data. Moreover, crushing specifications
could restrict the development of
alternative crusher designs and other oil
removal techniques. Supporters of the
proposed exemption contended that due
to analytical data used, filters that have
been drained for 12 or 24 hours of free
oil will not pose any significant hazards
when disposed of as nonhazardous
waste. Although the comments supplied
by the one commenter indicated that
draining for as little as four hours may
produce a nonhazardous truck filter,
EPA had inadequate data to conclude
that a four-hour hot-drain would be
adequate for all used oil filters.
VI. Used Oil Re-Refining and
Reprocessing Residuals
In the September 23,1991,
Supplemental Notice of Proposed
Rulemaking (56 FR 48027), EPA
proposed to list as hazardous waste four
residuals from the reprocessing and re-
refining of used oil. EPA's consideration
of separate listings stemmed from the
November 1985 proposal to list all used
oil as hazardous waste and the
collection of additional data on
residuals between 1986 and 1988.
The specific wastes resulting from the
reprocessing and re-refining of used oil
that were proposed for listing as
hazardous in the September 1991 notice
are:
K152;—Process residuals from the
gravitational or mechanical
separation of solids, water, and oil for
the reprocessing or re-refining of used
oil, including filter residues, tank
bottoms, pretreatment sludges, and
centrifuge sludges
K153—Spent polishing media from the
finishing of used oil in the
reprocessing or re-refining process,
including spent clay compounds and
spent catalysts
K154—Distillation bottons from the
reprocessing or re-refining of used oil
K155—Treatment residues from oil/
water/solids separation in the
primary treatment of wastewaters
from the reprocessing and re-refining
of used oil
EPA received a number of comments
on these proposed listings. Based on
data and comment received in response
to the proposal, EPA has determined
that further study is required to
adequately characterize residuals from
reprocessing and re-refining of used oil
and is today deferring a decision on its
1991 proposal to list these wastes.
EPA's proposed listing was based on
data gathered from recycling facilities ir
1985 and 1986. Commenters stated that
recycling practices and processes had
changed significantly in the intervening |
five to six years. These commenters
-------
Federal Register / Vol. 57, No. 98 / Wednesday, May 20, 1992 / Rules and Regulations 21533
cited that discontinued use of the acid-
clay treatment process and the
reduction of toxic constituents in the
residuals.
EPA will continue to evaluate data for
residuals from the reprocessing and re-
refining of used oil. EPA will evaluate
the management practices employed at
facilities that generate these residuals to
determine whether such practices pose a
threat to human health and the
environment.
VII. State Authorization
A. Applicability of Rule 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, 30013, and 7003 of RCRA, although
authorized States have primary
enforcement responsibility.
Prior to HSWA, a State with final
authorization administered its
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
I issue permits for any facilities in the
State which the State was authorized to
permit. When new, more stringent •
Federal requirements were promulgated
or enacted, the State was obliged to
enact equivalent authority within
specified time frames. New Federal
requirements did not take effect in an
I authorized State until the State adopted
| the requirements as State law.
In contrast, under section 3006(g) of
I RCRA, 42 U.S.C. 6926(g), new
I requirements and prohibitions imposed
Iby the HSWA take effect in authorized
• States at the same time that they take
•effect in nonauthorized States. EPA is
Idirected to carry out those requirements
land prohibitions in authorized States,
•including the issuance of permits, until
Ithe State is granted authorization to do
Iso. However, any authorized State
[requirement that is more stringent than
L HSWA requirement that is less
stringent than the Federal program for
vhich the State was authorized remains
|authorized and in effect under State law.
Today's rule is promulgated pursuant
[to section 3001(g) of RCRA, a provision
added by HSWA, and pursuant to
[section 3001(b)(l) of RCRA, a non-
ISWA provision. This rule revises and
larrows the scope of definition of
hazardous waste to exclude non-terne-
plated used oil filters that have been
gravity hot-drained of used oil through
puncturing the filter anti-drain back
valve or the filter dome end and hot-
draining, hot-draining and crushing,
dismantling and hot-dfcaining, or any
other equivalent hot-draining method
which will remove used oil. The
exemption from the definition of
hazardous waste being finalized today
for used oil filters narrows the scope of
the TC rule promulgated pursuant to
HSWA authority as well as the
characteristic of EP toxicity regulation
promulgated under non-HSWA
authority. To avoid any confusion
regarding the status of used oil filters,
EPA considers the exemption to be a
HSWA rule, since it, in part, exempts
wastes from a HSWA-promulgated rule.
B. Effect on State Authorizations
Authorized States are only required to
modify their programs when EPA
promulgates Federal standards that are
more stringent or broader in scope than
the existing Federal standards. Section
3009 or RCRA allows States to impose
standards more stringent than those in
the Federal program. For those Federal
program changes that are less stringent
or reduce the scope of the Federal
program, States are not required to
modify their programs. See 40 CFR
271.1(k). The standard promulgated
today is less stringent than or reduces
the scope of the existing Federal
requirements. This provision appears in
40 CFR 261.4(b)(13]. Therefore,
authorized States would not be required
to modify their programs to adopt
requirements equivalent to or
substantially equivalent to the provision
listed above.
Because the rule is promulgated
pursuant to HSWA, a State which
chooses to submit a program
modification 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 modifications for either interim
or final authorization are described in 40
CFR 271.21. It should be noted that all
HSWA interim authorizations will
expire January 1,1993. (See 40 CFR
271.24(c).)
States with authorized RCRA,
programs may already 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 implement these
requirements in lieu of EPA until the
State program modification is approved.
Of course, States with existing
standards may continue to administer
and enforce their standards as a matter
of State law. In authorized States with
more stringent regulations, EPA will
continue to enforce the State's more
stringent regulations. 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'their official
applications for final authorization less
than 12 months after the effective date
of these standards are not required to
include standards equivalent to these
standards in their application. However,
the State must modify its program by the
deadlines set forth in 40 CFR 271.21(e).
States that submit official applications
for final authorization 12 months after
the effective date of these standards
must include standards equivalent to
these standards in their application. 40
CFR 271.3 sets forth the requirements a
State must meet when submitting its
final authorization package.
VIII. Regulatory Impact Analysis
Today's decision not to list used oil
managed for disposal as a hazardous
waste does not impose any new
regulatory compliance requirements or
costs on used oil generators or handlers.
Although a regulatory impact analysis
under Executive Order 12291 is therefore
not required to support this decision,
this section of today's preamble briefly
summarizes the Agency's cost and
general impact analysis for the
previously proposed listing option being
considered prior to today's rulemaking.
Costs of listing disposed used oil were
evaluated in the Economic Impact
Screening Analysis Section of the
September 1991 Supplemental Notice
preamble under the two headings of
"ban on land, disposal," and "ban on
road oiling." with annual cost estimates
of $16.3 and $7.4 million, respectively (56
FR 48068-69).
Costs of the land disposal ban (listing
of disposed oil) are relatively low for
two reasons. First, relatively little used
oil is formally "land managed" in
recognized landfills, and it was assumed
in estimating costs that both household
DIY oil and non-household oil illegally
dumped by either small or large quantity
generators would not be controlled
under the subtitle C management
requirement. In addition, in the
September 1991 cost analysis, it was
-------
21534 Federal Register / Vol. 57, No. 98 / Wednesday, May 20, 1992 / Rules and Regulations
assumed as a best estimate that 75
percent of the land-disposed oil subject
to the listing would be diverted to
recycling at relatively low cost, with
only the remaining 25 percent being
managed at higher cost in a cement kiln
or equivalent Subtitle G technology.
For road oiling, it was similarly
assumed that the oil could be readily
diverted to other recycling at virtually
no additional cost (the cost of the ban
being attributable to the higher cost of
substitute dust suppression agents such
as calcium chloride).
Recycling would have been promoted
somewhat by the listing of used oil
destined for disposal because disposal
would be much more costly than
recycling options. On the other hand,
there would also be a perverse incentive
towards illegal dumping and other
improper land disposal outlets as land
disposal became more costly.
IX. Regulatory Flexibility Act
The agency certifies that, within the
scope of the Regulatory Flexibility Act,
today's decision will not have a
significant impact on a substantial
number of small entities. The regulation
imposes np new regulatory or economic
requirements on small business.
X. Paperwork Reduction Act
This notice contains no information
collection requirements, and therefore
imposes no new paperwork burden.
List of Subjects in 40 CFR Part 261
Hazardous waste, Recycling.
Dated: May 1,1992.
F. Henry Habicht, II,
Deputy Administrator.
For the reasons set forth in the
preamble, title 40 part 261 of the Code of
Federal Regulations is amended as
follows:
PART 261—IDENTIFICATION AND
LISTING OF HAZARDOUS WASTE
1. The authority citation for part 261
continues to read as follows:
Authority: 42 U.S.C. 6905, 6912fa), 6921 and
6922. -••-..-
3. Section 261.4 is amended by adding
paragraph (b)(15) to read as follows:
§261.4 Exclusions
* * ft * *.
[b] * * *
(15) Non-terne plated used oil filters
that are not mixed with waste listed in
subpart C of this part if these oil filters
have been gravity hot-drained using one
of the following methods:
(i) Puncturing the filter anti-drain back
valve or the filter dome end and hot-
draining;
(ii) Hot-draining and crushing;
(iii) Dismantling and hot-draining; or
(iv) Any other equivalent hot-draining
method which will remove used oil.
*****
[FR Doc. 92-11385 Filed 5-19-92; 8:45 am]
BILLING CODE 6560-SO-M
------- |