[Federal Register Volume 59, Number 43 (Friday, March 4, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-4818]
[[Page Unknown]]
[Federal Register: March 4, 1994]
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Part V
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 271 and 279
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Recycled Used Oil Management Standards; Final Rule
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 271 and 279
[EPA/530-2-42-011; FRL-4845-2]
Hazardous Waste Management System; Identification and Listing of
Hazardous Waste; Recycled Used Oil Management Standards
AGENCY: Environmental Protection Agency.
ACTION: Final rule.
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SUMMARY: On September 10, 1992, EPA exempted used oil inserted into
crude oil pipelines from the part 279 used oil management standards.
EPA is today clarifying the existing pipeline exemption and expanding
the exemption to other petroleum refinery applications. Today's
document clarifies that the exemption from the used oil management
standards did not intend to exclude used oil mixed with crude oil or
natural gas liquids (hereinafter referred to as ``crude oil'') in pre-
pipeline units (e.g., stock tanks, production separators) prior to
being introduced into the crude oil pipeline. In addition, today's rule
expands the used oil exemption to include transportation and/or storage
of mixtures of small amounts of used oil (i.e., less than 1%) and crude
oil that are destined for insertion into a petroleum refining facility
process at a point prior to crude distillation or catalytic cracking.
Today's rule exempts from the part 279 standards, used oil that is
inserted into the petroleum refining facility process after
distillation or catalytic cracking operations provided that the used
oil meets the used oil specification prior to insertion.
Today's rule also exempts from the part 279 standards used oil that
incidentally enters and is recovered from a refinery's hydrocarbon
recovery system or wastewater treatment system (i.e., process sewer,
storm sewer, or wastewater treatment units), if the recovered used oil
is subsequently inserted into the petroleum refinery process.
In addition, today's rule expands the definition of transfer
facility to allow used oil to be held more than 24 hours but less than
35 days prior to specified activities.
Finally, EPA is today amending the used oil processor standards to
clarify that a specific set of on-site maintenance, filtering, and
separation activities were not intended to be covered under the used
oil processor standards. EPA is also correcting errors in regulations
that appeared in the May 3, 1993, Federal Register.
EFFECTIVE DATE: April 4, 1994.
ADDRESSES: The regulatory docket for this rulemaking is available for
public inspection at room 2427, U.S. Environmental Protection Agency,
401 M 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-94-
UOTA-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, 401 M Street SW., Washington, DC 20460; Telephone (800) 424-
9346 (toll free) or, in the Washington DC, metropolitan area at (703)
920-9810.
For information on specific aspects of this rule, contact Ms. Eydie
Pines, telephone (202) 260-3509, U.S. EPA, 401 M Street SW.,
Washington, DC 20460.
SUPPLEMENTARY INFORMATION: The contents of today's preamble are listed
in the following outline:
I. Authority.
II. Background.
A. Summary of Recent Regulatory Actions Pertaining to Used Oil.
1. Summary of May 20, 1992, Federal Register Notice.
2. Summary of September 10, 1992, Federal Register Notice.
3. May 3, 1993, and June 17, 1993 Correction Notices.
B. Summary of the 1985 Comments.
C. Summary of 1991 Comments.
III. Analysis of New Part 279 Provisions.
A. Summary of Comments from Interested Parties.
B. Definition of petroleum refining facility, used oil re-
refining facility.
C. Used Oil Introduced into Crude Oil Pipelines or Petroleum
Refineries.
1. Used Oil Introduced into Crude Oil Pipelines.
2. Storage and Transportation of Mixtures of Used Oil and Crude
Oil.
3. Used Oil Inserted into the Petroleum Refining Process without
Prior Mixing and Mixtures of Greater Than One Percent Used Oil.
4. Used Oil Inserted Into the Petroleum Refining Process after
Crude Distillation or Catalytic Cracking.
5. Used Oil Captured by the Refinery's Hydrocarbon Recovery
System or Wastewater Treatment System and Inserted into Petroleum
Refining Process.
6. Stock Tank Bottoms.
D. Used Oil Transportation. Definition of Transfer Facility.
E. Used Oil Processing by Generators and Transfer Facilities.
1. Definition of Used Oil Processor.
(A) Reconditioning used oil before returning it for reuse by the
generator.
(B) Separating used oil from wastewater to make wastewater
acceptable for discharge or reuse.
(C) Using oil mist collectors to remove droplets of used oil
from in-plant air to make plant air suitable for continued
recirculation.
(D) Removing used oil from materials containing or otherwise
contaminated with used oil in order to remove excessive oil.
(E) Filtering, separating, or otherwise reconditioning used oil
before burning it in a space heater.
F. Restrictions on transporters who are not also processors or
re-refiners and changes to the definition of transfer facility.
G. Tracking.
H. Correction to the Regulatory Language.
1. Requirements for enforcement authority.
2. Rebuttable Presumption.
3. Characteristic Hazardous Waste.
I. Correction to the Preamble Language.
IV. State Authorization.
V. Executive Order 12866.
VI. Paperwork Reduction Act.
VII. Regulatory Flexibility Act.
VIII. Administrative Procedure Act.
Authority
The regulations promulgated today are issued under the authority of
sections 1004, 1006, 2002(a), 3014, and 7004 of the Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery Act,
and as amended by the Used Oil recycling Act, as amended, 42 U.S.C.
6903, 6905, 6912(a), 6935, and 6974.
II. Background
A. Summary of Recent Regulatory Actions Pertaining to Used Oil
1. Summary of May 20, 1992, Federal Register Notice
On May 20, 1992, EPA published a final listing determination for
used oils that are destined for disposal (see 57 FR 21524). The Agency
determined that used oils destined for disposal did not have to be
listed as a hazardous waste because used oils do not typically and
frequently meet the technical criteria for listing a waste as
hazardous. EPA gave considerable attention, in reaching its
determination, to the current Federal regulations that govern the
management of used oils that are disposed, including the requirement
for used oil that exhibits a characteristic of hazardous waste under
subtitle C of RCRA.
The May 20, 1992, Federal Register notice also included a
categorical exemption from the definition of hazardous waste in
Sec. 261.4 for non-terne-plated used oil filters that have been hot-
drained to remove used oil. EPA based this exemption on data submitted
to the Agency indicating that these filters do not typically and
frequently exhibit the toxicity characteristic.
2. Summary of September 10, 1992, Federal Register Notice
On September 10, 1992, EPA promulgated a final listing decision for
used oils that are recycled and simultaneously promulgated management
standards for used oil, codified at 40 CFR part 279 (see 57 FR 41566).
EPA determined that used oil destined for recycling did not have to be
listed as a hazardous waste because the used oil did not meet the
technical criteria for listing a waste as hazardous, particularly in
light of the new management standards and other federal requirements
which control the risks posed by improper management of used oil. The
standards cover used oil generators, transporters, processors, re-
refiners, off-specification burners and marketers. The standards
included an exemption from the management standards for used oil placed
directly in a crude oil pipeline.
3. May 3, 1993, and June 17, 1993 Correction Notices
On May 3, 1993, EPA published technical amendments and corrections
to the May 20, 1992 and September 10, 1992, Federal Register Notices
(see 58 FR 26421). On June 17, 1993, EPA corrected several errors in
the May 3, 1993, notice (see 58 FR 33341).
B. Summary of the 1985 Comments Regarding Used Oil Mixed With Crude Oil
Destined for Refineries
On November 29, 1985, EPA proposed to list all used oil as a
hazardous waste (50 FR 49248). Commenters responded that used oil mixed
with crude oil be exempt from such regulation because the small
quantities of used oil mixed with crude oil posed no threat to the
environment when refined with crude oil.
C. Summary of 1991 Comments
On September 23, 1991, EPA proposed that the two exemptions from
subtitle C requirements promulgated in 1985 (see 40 CFR 261.6(a)(3)
(v)-(viii)) for oil-bearing hazardous waste and fuels derived from
these wastes, also apply to used oils. (56 FR 48026, 48042) EPA
proposed exemptions from the used oil management requirements (whether
or not EPA ultimately listed used oil as a hazardous waste) for: (1)
Used oils that are reinserted as feedstocks at primary petroleum
refineries; and (2) fuels derived from those used oils.
Commenters (mainly the primary petroleum refining industry) stated
that if EPA chose to list used oil as hazardous waste, the Agency
should exempt used oil that is reintroduced into the refinery process
from hazardous waste or used oil management standards requirements.
Commenters further stated that if EPA did not adopt this exemption, the
entire refinery process could be subject to hazardous waste management
requirements, including permits. Commenters stated that this would be
unwarranted because the reintroduction of used oil into the refining
process contributes only insignificant concentrations of metals to the
crude oil or finished petroleum product. Other commenters stated that
refiners that handle used oil should be subject to the same
requirements for used oil management as are used oil re-refiners.
Commenters from the primary petroleum refining industry also stated
that EPA should not limit the exemption to those instances where used
oil is inserted before fluid catalytic cracking or distillation, since
other conversion and distillation processes in the refinery would also
remove, alter or immobilize impurities in the oil. They asserted that
limiting the point of insertion could foreclose the future development
of used oil recycling activities. These commenters also stated that
limiting the insertion point could preclude refineries from accepting
DIY oil. Commenters asserted that DIY oil might have to undergo certain
pre-processing at refineries prior to its insertion into the refining
process. They also asserted that under the proposed exemption, this
pre-processing would not be exempt and would be a hazardous waste
activity. Commenters stated that these activities are part of the
refining process.
Commenters from the primary petroleum industry further stated that
EPA should extend the exemption to apply to used oil inserted into the
pipeline at marketing, E&P and pipeline facilities for use in the
refinery process. They asserted that used oil recovered from oil and
gas exploration and production is placed in pipelines and trucks and
returned to the refinery from other petroleum facilities. Commenters
stated that the recovered oils are useful, valuable raw materials that
are reintroduced into the crude stream for their economic value.
III. Analysis of New Part 279 Provisions
On September 10, 1992, EPA promulgated a final listing decision for
used oils that are recycled and simultaneously promulgated standards in
40 CFR part 279 for the management of used oil under RCRA section 3014.
Under Sec. 279.10(g) of part 279, EPA granted an exemption for used
oils introduced directly into crude oil pipelines from part 279
standards at the point at which they are introduced. EPA did not
address the proposed exemptions for used oil inserted into the
petroleum refining facility process either prior to or after crude
distillation or catalytic cracking.
The American Petroleum Institute filed a petition for review of the
September 10, 1992, rule, on December 8, 1992, raising the issue that
EPA had not addressed the proposed exemptions for petroleum refining,
production, and transportation in the September 10, 1992, final rule.
Today's rule responds to comments and addresses outstanding issues
related to used oil and petroleum refining facility processes.
A. Summary of Comments From Interested Parties
Today's rule was distributed in draft form for comment to the
litigants and intervenors concerning the 1992 rule, and other concerned
members of the regulated community, States, and environmental groups.
The primary substantive comments received on the draft and EPA's
responses to those comments are summarized below.
EPA received several comments from the petroleum industry on the
exemption from part 279 for storage and transportation of mixtures of
used oil and crude oil that contain less than 1% used oil and are
destined for insertion into petroleum refining process. These
commenters objected primarily to provisions in the draft final rule
limiting the exemption to mixtures that contain less than 1% used oil.
The commenters also objected to limiting the amount of used oil that
can be directly inserted into the petroleum refining process to 1% of
the crude oil process unit throughput at any given time. EPA has
retained the 1% limit in both cases in today's final rule for reasons
discussed in section III.B.2 of this preamble.
EPA received comments from used oil re-refiners (i.e.,
``secondary'' petroleum industry--a type of used oil processor)
regarding the regulatory status of petroleum refineries that receive
used oil from off-site and store the used oil on-site before mixing it
with crude oil. The draft rule proposed to regulate petroleum refining
facilities as used oil transfer facilities in these circumstances.
Commenters stated, however, that petroleum refiners that receive used
oil from off-site pose the same potential concerns from receipt of
adulterated used oil and improper storage of used oil as re-refiners
and should therefore be subject to the requirements for used oil
processor/re-refiners prior to mixing. EPA agrees and has revised the
draft rule accordingly. These changes are discussed in greater detail
below.
EPA also received numerous comments on provisions clarifying what
constitutes a used oil processor. Provisions contained in the draft
document would have prohibited both on- and off-site burning of used
oil generated from specified activities that EPA is today clarifying
are not subject to the used oil processor standards. Commenters stated
that the used oil generated from these activities would be suitable for
burning in accordance with the part 279, subpart G standards and that
burning should not be further restricted. In response to these
comments, EPA has decided to allow on-site burning of the used oil
generated from these activities but has retained the prohibition
against off-site burning. The basis for this decision is discussed in
section III.C of today's preamble.
B. Section 279.1--Definition of Petroleum Refining Facility
Today's rule establishes a regulatory definition for ``petroleum
refining facility.'' EPA believes it is necessary to define this term
in order to provide a clear distinction between what the Agency
considers to be and regulates as primary petroleum refining facilities
and facilities that EPA considers to be used oil re-refiners for
regulatory purposes. Under today's rule, ``petroleum refining
facility'' is defined as follows:
``Petroleum refining facility'' means an establishment primarily
engaged in producing gasoline, kerosine, distillate fuel oils,
residual fuel oils, and lubricants, through fractionation, straight
distillation of crude oil, redistillation of unfinished petroleum
derivatives, cracking or other processes (i.e., facilities
classified as SIC 2911).
A used oil re-refiner, in contrast, is a facility that processes
used oil to produce lube base stocks and greases, industrial fuels,
asphalt extenders, diesel like fuels, and other products.
EPA is aware that petroleum refiners and used oil re-refiners
employ similar production processes and produce similar products.
Consequently, the Agency has avoided defining these facilities in terms
of the process steps employed to produce a finished product or the type
of products produced. As defined by today's rule, petroleum refining
facilities and used oil re-refining facilities differ primarily in the
material that constitutes the primary initial feed to the process. In
order for a facility to be considered a petroleum refining facility,
the material fed to the front end of the refining process must be
comprised primarily of crude oil. In order to be considered a used oil
re-refiner, the material entering the front end of the process must be
comprised primarily of used oil.
C. Section 279.10(g)--Used Oil Introduced Into Crude Oil Pipelines or
Petroleum Refining Facilities
1. Section 279.10(g)(1)--Used Oil Introduced Into Crude Oil Pipelines
The September 10, 1992, final used oil regulations provided an
exemption at Sec. 279.10(g) from management standards for used oil that
is placed directly into a crude oil pipeline (see 57 FR 41613). Today's
rule replaces Sec. 279.10(g) with Sec. 279.10(g)(1) which clarifies the
original intent of the pipeline exemption. Section 279.10(g) of the
September 10, 1992, final rule provided that ``Used oil that is placed
directly into a crude oil, oil or natural gas pipeline is subject to
the management standards of [part 279] only prior to the point of
introduction into the pipeline. Once the used oil is introduced to the
pipeline, the material is exempt from the requirements of [part 279].''
EPA is concerned that the phrase, ``placed directly into a crude
oil or natural gas pipeline,'' can be literally interpreted to apply
more narrowly than the Agency had intended. EPA understands that it is
standard practice to first mix small amounts of used oil, typically
less than 1%, with crude oil in stock tanks, production separators or
other tank units that are connected via pipeline to the petroleum
refining facility (i.e., pre-pipeline units). It was not EPA's intent
to exclude used oil that is mixed with crude oil in these pre-pipeline
units from the Sec. 279.10(g) pipeline exemption. Rather, EPA intended
to include this practice within the meaning of ``direct insertion.''
Because used oil is typically inserted into the petroleum pipeline
through these pre-pipeline units, to exclude these units from the
pipeline exemption would effectively render the exemption meaningless.
Clearly this was not EPA's intent. Today's rule revises the language of
the exemption to clarify that used oil may be inserted into the
pipeline via pre-pipeline units (which contain crude oil) exempt from
the requirements of part 279. It should be noted here that the
Sec. 279.10(g)(1) pipeline exemption established by today's rule is
limited to pipelines that convey crude oil from off-site locations to
the petroleum refining facility. The exemption does not apply to
pipelines that convey crude oil from one on-site location within a
petroleum refinery to another. If such on-site piping contains used
oil, it is exempt only if it qualifies under Secs. 279.10(g)(2)-(5)
discussed below. Also, if processing of the used oil is performed prior
to mixing with crude oil in these pre-pipeline units, such processing
remains subject to the part 279, subpart F standards for used oil
processors and re-refiners. Used oil that is generated and stored at
the pipeline is subject to the used oil generator standards prior to
mixing with crude oil. Used oil that is transported to the pipeline and
immediately mixed with crude oil or stored for less than 24 hours prior
to such mixing is subject to all Subpart E transporter standards except
for Sec. 279.45 which applies to transfer facilities. Used oil that is
transported to and subsequently stored at the pipeline for more than 24
hours and less than 35 days prior to mixing with crude oil is subject
to all the part 279, subpart E transporter/transfer facility
requirements.
2. Section 279.10(g)(2)--Storage and Transportation of Mixtures of Used
Oil and Crude Oil
Section 279.10(g)(2) of today's rule expands the used oil
management standard exemption to include: (1) Mixtures of used oil and
crude oil containing less than 1% used oil that are being stored at the
petroleum refining facility or in discrete units remotely located from
the pipeline, as long as the mixture is destined for the refinery and
inserted prior to crude distillation or catalytic cracking; and (2)
mixtures of used oil and crude oil containing less than 1% used oil
that are being transported (via truck, rail, or vessel) to the
petroleum refinery or the pipeline for insertion into the petroleum
refining process prior to crude distillation or catalytic cracking. The
former exemption provided at Sec. 279.10(g) did not apply either to
mixtures of used oil and crude oil that are stored at the petroleum
refinery or in remotely located units, or to the transportation of
mixtures of used oil and crude oil. The previous, more narrow exemption
was based on the assumption that used oil was placed directly into the
pipeline (or into units directly connected to the pipeline as
previously discussed). EPA assumed that the mixing of used oil and
crude oil occurred at the point at which used oil was inserted into the
pipeline. EPA has since learned, however, that mixing frequently occurs
at exploration and production sites that are remotely located from the
pipeline or the petroleum refinery.
For example, used oil generated during on- and off-shore drilling
activities (e.g. from compressors, trucks and other heavy equipment) is
routinely mixed with crude oil in units (e.g. production separators,
seagoing vessels, stock tanks, etc.) located at the exploration and
production site and then transported, as a mixture, to the pipeline or
petroleum refining facility. Depending on the location of the drilling
activities, the mixture of used oil and crude oil may need to be
transported (by vessel, truck, rail, etc.) to a separate location for
introduction into the pipeline or the petroleum refining facility. In
the case of off-shore drilling sites for example, conveyance of the
mixture may involve multiple modes of transportation (i.e., from the
off-shore platform to land by vessel or pipeline and then to the crude
oil pipeline by land-based transport). Today's exemption covers all
modes of transportation of mixtures of used oil and crude or natural
gas liquids, as long as the mixture contains less than 1% used oil and
is destined for insertion into a petroleum refining facility process at
a point prior to crude distillation or catalytic cracking. In addition,
today's exemption covers storage of mixtures of used oil and crude oil,
provided that the mixture contains less than 1% used oil and is
inserted into a petroleum refining facility process prior to crude
distillation or catalytic cracking.
Used oil that is generated at exploration and production sites
continues to be subject to used oil generator standards prior to being
mixed with crude oil such that it is exempt under today's rule. Used
oil that is generated off-site and transported to or stored at an
exploration and production site is subject to the transporter and
transfer facility standards, as applicable, up until the point at which
the used oil is mixed with crude oil such that it is exempt under
Sec. 279.10(g)(2).
EPA is exempting mixtures of used oil and crude oil held in
discrete units at a refinery or at remote locations because the Agency
understands that the amount of used oil contained in these mixtures is
extremely small relative to the large quantities of crude oil. In
developing today's rule, EPA held numerous discussions with petroleum
refinery industry representatives regarding the maximum amount of used
oil contained in mixtures of used oil and crude oil that are destined
for insertion into a petroleum refining process prior to crude
distillation or catalytic cracking. Industry representatives repeatedly
informed the Agency that used oil constitutes less than 1% of these
mixtures. In gathering information for today's rule, EPA held
conference calls with representatives from a number of petroleum
refining companies (e.g., Mobil Oil Corporation and Phillips Petroleum
Inc.,). The Agency also conducted several site visits, including visits
to an Amoco refinery in Whiting, Indiana and a Mobil Oil Corporation
refinery in Paulsboro, New Jersey. In each case, EPA was informed that
used oil does not currently, and will not comprise greater than 1% of
the crude oil/used oil mixture because of the sheer volumes of crude
oil that are continuously being produced and processed relative to the
amount of used oil that is generated at production sites or refineries.
This recent information is consistent with comments submitted in
response to the 1985 Used Oil Proposed Rule in which Exxon Company, USA
stated that the average percentage of used oil in refinery feed stock
streams is less than 0.02% and Texaco, Inc., indicated that used oil
would constitute no more than 0.01% of the refinery input.
EPA does not believe it is necessary to apply the used oil
management standards to the less than 1% fraction of used oil that is
being held temporarily in discrete units or transported from those
units to the pipeline or the petroleum refinery for recycling as part
of a mixture that is composed overwhelmingly of crude oil. In essence,
because of the high ratio of crude oil to used oil, EPA considers the
mixture to be equivalent to crude oil for regulatory purposes. EPA's
part 279 standards were designed to control those particular risks
associated with the management of used oil (e.g., uncontrolled burning,
improper storage practices by used oil handlers) pursuant to section
3014 of RCRA.
The reason for EPA's imposition of a 1% limit on the amount of used
oil contained in mixtures of used oil and crude oil being stored or
transported to a crude oil pipeline or petroleum refinery prior to
insertion into the refining process is that, while we have determined
that the small amounts of used oil that are being added to crude oil
under current practices pose no incremental risk over normal crude oil,
we have not evaluated whether larger amounts of used oil also pose no
incremental risk. Given the information provided to EPA by the
petroleum refining industry regarding the inherent limitations on the
amount of used oil that is or should be contained in mixtures of used
oil and crude oil (i.e., less than 1%), and given that EPA has received
no information, either recently, or in response to previous rulemakings
that provides basis for an alternative limit, the Agency sees no point
in imposing a higher cap. Imposition of a higher cap could have the
effect of encouraging mixing of used oil with crude oil that would not
otherwise occur during the normal course of petroleum refining
operations. Such an incentive might lead to increased incremental risk
from management of large amounts of used oil, exempt from the part 279
standards, at petroleum refineries. EPA also concluded that a less
precise limit (i.e., ``de minimis'' or ``small amounts''), as was
suggested by some commenters from the petroleum refining industry,
would needlessly cause uncertainty, given that EPA was told repeatedly
that amounts currently introduced are far less than 1%.
3. Section 279.10(g)(3)--Used Oil Inserted Into the Petroleum Refining
Process Without Prior Mixing and Mixtures of Greater Than One Percent
Used Oil
As previously stated, under today's rule, mixtures of used oil and
crude oil containing less than 1% used oil that are transported to or
stored at a petroleum refinery, and are introduced prior to crude
distillation or catalytic cracking, are exempt from part 279 standards
under Sec. 279.10(g)(2). It is EPA's understanding, based on
information received from petroleum industry representatives, that used
oil can potentially be inserted directly into the petroleum refining
process prior to crude distillation or catalytic cracking without
either: (1) Mixing the used oil with crude oil feedstocks, or (2) pre-
processing of the used oil to ensure that any contaminants in the used
oil will not interfere with the refining process (e.g., contaminants
fouling a catalyst, etc.). Based on this understanding, today's
exemption also applies to used oil that is introduced directly into the
petroleum refining process at a point prior to crude distillation or
catalytic cracking as long as the used oil comprises less than 1% of
the crude oil feed to a petroleum refining facility process unit at any
given time. Again, because of the high ratio of crude oil to used oil,
EPA considers these mixtures to be equivalent to crude oil for
regulatory purposes. Therefore, the Agency believes that this activity
would pose no significant increase in risk.
Used oil that is inserted directly into the petroleum refining
process (at a volume of less than 1% of the crude oil process unit feed
at any given time) is considered mixed, and therefore exempt from part
279, at the point at which it enters the process. This exemption
applies both to used oil generated at the petroleum refining facility
where the used oil is being inserted, and to used oil generated off-
site that is collected and transported to the petroleum refining
facility for insertion into the refining process prior to crude
distillation or catalytic cracking.
Used oil that is inserted into the petroleum refining process
without first being mixed with crude oil feedstocks (e.g. in crude oil
stock tanks) is subject to part 279 standards prior to insertion. Used
oil that is generated on-site and then stored without prior mixing and
used oil generated on-site that constitutes greater than 1% of a
mixture of used and crude oil continues to be subject to the part 279,
subpart C standards for generators. With the exception of used oil that
is exempt from the part 279 standards because it constitutes less than
1% of a mixture of used oil and crude oil, used oil that is generated
off-site and then transported to or stored at a petroleum refining
facility, continues to be subject to the applicable part 279
requirements i.e., to the requirements for used oil transporters and
transfer facilities while being transported and to the requirements for
used oil processors upon receipt at the petroleum refining facility.
Petroleum refining facilities that receive used oil from off-site for
direct insertion into the petroleum refining process are subject to the
used oil processor standards from the point at which they receive the
used oil up until the point at which the used oil is inserted into the
petroleum refining process. Finally, it is important to reiterate that
the exemptions provided under both Secs. 279.10(g)(2) and 279.10(g)(3)
of today's rule apply at the point of mixing and only to mixtures that
contain less than 1% of used oil.
Although petroleum industry representatives have raised concerns
that a 1% limit on the amount of used oil that can be inserted directly
into the petroleum refining process may be technology limiting, EPA has
not received any information that would support this position, nor has
the Agency received information to support an alternative level. The
Agency believes that by limiting the amount of used oil that can be
introduced directly into the refining process exempt from the used oil
processing standards, it can better ensure against mixing only to avoid
compliance with the part 279 processing standards. If information
becomes available that the 1% limit is inhibiting used oil recycling,
the Agency will consider whether any change to the rules is necessary.
In the draft rule, EPA proposed to regulate petroleum refining
facilities that receive used oil from off-site as used oil transfer
facilities prior to mixing. However, EPA agrees with comments on the
draft rule that petroleum refining facilities that receive used oil
from off-site pose the same potential concerns associated with receipt
of adulterated used oil and improper storage of used oil as used oil
re-refiners. Petroleum refining facilities that receive used oil from
off-site may not have adequate information to ensure that the used oil
has not not been improperly mixed with listed hazardous waste. Also,
the volumes of used oil that may be managed require adequate planning
for dealing with emergency releases. EPA has therefore revised the
final rule to provide that petroleum refining facilities that receive
and store used oil from off-site are subject to the used oil processor
standards prior to mixing. The principal effect of this change is that
petroleum refiners that receive used oil from off-site must prepare a
waste analysis plan to ensure that the used oil has not been mixed with
hazardous waste and must maintain an operating record to document
compliance with the waste analysis plan. In addition, such refineries
will have to adopt or amend emergency contingency plans to address used
oil in accordance with Sec. 279.52 of the used oil management
standards.
4. Section 279.10(g)(4)--Used Oil Inserted Into the Petroleum Refining
Process After Crude Distillation or Catalytic Cracking
Under Sec. 279.10(g)(4) of today's rule, used oil that is inserted
into the petroleum refining process after crude distillation or
catalytic cracking is exempt from the part 279 standards provided that
the used oil meets the used oil specification prior to insertion. Used
oil remains subject to part 279 standards up until its actual insertion
into the petroleum refining process. As previously discussed, used oil
generated on-site must be stored according to part 279, subpart C
standards for used oil generators. Used oil generated off-site must be
transported according to the part 279, subpart E standards for
transporters and transfer facilities and stored according to the part
279, subpart F standards for used oil processor/re-refiners.
EPA's use of the terms ``before'' and ``after'' crude distillation
or catalytic cracking is intended to distinguish between the initial
part of the petroleum refining process where crude oil is the primary
feedstock and is refined by undergoing crude distillation or catalytic
cracking and the latter part of the petroleum refining process where
crude oil residuals constitute the primary feed, and coke and asphalt
are the primary products. Refinery processes that occur after crude
distillation or catalytic cracking do not provide refining to the same
extent as that which occurs as a result of crude distillation or
catalytic cracking. Crude distillation or catalytic cracking is
expressly designed to remove, alter, or otherwise immobilize
contaminants in the normal course of the refining process. EPA has
insufficient information on post-crude distillation or catalytic
cracking units identified by commenters (e.g., asphalt towers,
petroleum cokers), and is concerned about the possible environmental
effects (e.g., air emissions, transfer of inorganics to asphalt or
petroleum coke) of placing large amounts of off-specification used oil
into the petroleum refining process without passing through the crude
distillation or catalytic cracking units. In contrast, on-specification
used oil may be burned in the same manner as virgin petroleum fuel in
other situations, therefore it makes little sense to restrict its use
as a feedstock to the petroleum coker (or in any other process
``after'' crude distillation or catalytic cracking).
It should be noted that if off-specification used oil is inserted
into petroleum refining processes after crude distillation or catalytic
cracking (e.g., a coker), the facility would be subject to the used oil
processing requirements in part 279, subpart F. In addition, petroleum
refining facilities that wish to insert on-specification used oil into
the refining process after crude distillation or catalytic cracking and
that are the first to claim that the used oil is on-specification
(whether generated at the refinery, or at an off-site location), would
be defined as marketers subject to the requirements for used oil
marketers found in part 279, subpart H.
5. Section 279.10(g)(5)--Used Oil Captured by the Refinery's
Hydrocarbon Recovery System or Wastewater Treatment System and Inserted
Into Petroleum Refining Process
Section 279.10(g)(5) of today's rule exempts from the part 279
standards used oil that incidentally enters and is recovered from a
petroleum refining facility's hydrocarbon recovery system or its
wastewater treatment system (e.g., process sewer, storm sewer, or
wastewater treatment units), if the recovered used oil is subsequently
inserted into the petroleum refining process. Oil (that may contain
small amounts of used oil) that has been recovered from a refining
facility's hydrocarbon recovery or wastewater treatment system is
typically used as a feedstock in petroleum refining to produce more
petroleum products. EPA understands that used oil, generated from
routine refinery process operations and that incidentally enters a
refinery's recovery or wastewater treatment system (e.g., drips, leaks,
and spills from compressors, valves, and pumps), represents a small
portion of the total oil that enters (and is then recovered from) the
recovery or wastewater treatment system. Thus, the oil recovered from
the system is more properly characterized as crude feedstock than used
oil. Provided the used oil is inserted into the petroleum refining
process, EPA believes that regulation under part 279 standards is
unwarranted. This exemption from the part 279 standards does not extend
to used oil which is intentionally introduced into a petroleum
refinery's recovery or wastewater treatment system (e.g., pouring
collected used oil into any part of the hydrocarbon recovery system,
storm or process sewer system or into wastewater treatment units). Used
oil may not be introduced to the refinery's hydrocarbon recovery or
wastewater treatment system as a way to avoid meeting the conditions
specified in Sec. 279.10(g)(4).
For the purposes of the exemption in today's rule, the examples
cited in the existing de minimis wastewater exclusion (Sec. 279.10(f))
provide guidance on what types of releases to a refinery's hydrocarbon
recovery or wastewater treatment system would be considered ``routine''
or ``incidental''. The exemption is intended to cover losses from
drippage, minor spillage, etc., that cannot be reasonably avoided. For
example, used oil that has been collected from equipment or vehicle
maintenance activities and intentionally introduced into a refinery's
wastewater treatment system would not be exempt under Sec. 279.1(g)(5)
from the part 279 standards once recovered. Similarly, used oil that is
generated off-site and is brought to the refinery may not be added to
any portion of the refinery's wastewater treatment system (i.e.,
process sewer, storm sewer, or wastewater treatment units), and still
be exempt under Sec. 279.10(g)(5) once recovered; such oil is clearly
not ``incidentally captured'' by the refinery's wastewater treatment
system. In fact, unless specifically exempted under Sec. 279.10(g)(2)
or Sec. 279.10(g)(3) of today's rule, this type of activity would meet
the definition of used oil processing under the existing used oil
management standards (see 40 CFR 279.1).
Today's rule does not preclude intentional introduction of used oil
in to the facility's recovered oil tanks. EPA is aware that used oil
from both on- and off-site is often added directly to the petroleum
refining facility's recovered oil tanks. Mixtures of used oil and
recovered oil that contain greater than 1% used oil are regulated as
used oil. Mixtures of used oil and recovered oil that contain less than
1% used oil and are inserted into the petroleum refining process prior
to crude distillation or catalytic cracking are exempt from the part
279 used oil management standards under Sec. 279.10(g)(2). Mixtures of
used oil and recovered oil that contain less than 1% used oil and are
inserted into the petroleum refining process after crude distillation
or catalytic cracking are exempt from the part 279 standards (under
Sec. 279.10(g)(4)) only if the used oil meets the used oil
specification prior to mixing with recovered oil.
6. Section 279.10(g)(6)--Stock Tank Bottoms
Section 279.10(g)(6) of today's rule exempts tank bottoms from
stock tanks containing exempt mixtures of used oil and crude oil from
the part 279 standards. Like the actual mixtures of used oil and crude
oil, the bottoms from these mixtures are expected to contain
insignificant amounts of used oil. Therefore, the Agency does not
believe that the bottoms from tanks (or other units) containing
mixtures of used oil and crude oil should be subject to the used oil
management standards. The tank bottoms are subject to all other
applicable requirements, i.e., the Sec. 262.11 requirement to determine
if they are hazardous waste.
D. Used Oil Transportation
Section 279.1--Definition of Transfer Facility
Today's rule revises the definition of transfer facility to allow
used oil to be held at a location (i.e., a transfer facility)
temporarily prior to activities that are not subject to the processor
standards as a result of today's rulemaking. In the September 10, 1992
final rule, a transfer facility was defined as a transportation-related
facility where shipments of used oil are held for more than 24 hours
but less than 35 days during the normal course of transportation.
Today's rule expands that definition to allow used oil to be held for
more than 24 hours but less than 35 days during the normal course of
transportation or prior to an activity performed pursuant to
Sec. 279.20(b)(2). Under the amended definition, as discussed below in
section F of this preamble, a site to which used oil from oil-bearing
electrical transformers is transported for filtering prior to reuse
would be considered a transfer facility under today's definition.
E. Section 279.20(b)(2)(ii)--Used Oil Processing by Generators and
Transfer Facilities
Since the promulgation of the September 10, 1992, Used Oil
Management Standards, a number of parties have raised concerns
regarding the definition of used oil processor and the types of
activities that are covered by that definition. The commenters are
concerned that a broad construction of the term processor
inappropriately includes a number of very basic on-site generator
activities that the Agency did not intend to regulate under the used
oil processor standards (e.g. reconditioning/maintenance to extend the
life of used oil, separation of used oil from wastewater discharge,
etc.). EPA agrees that activities such as these, when performed by the
generator, were not intended to be covered under the used oil processor
standards because used oil processing is not their primary purpose, as
explained below in greater detail. In fact, too broad an interpretation
of the processor definition may discourage environmentally beneficial
recycling and waste minimization activities by imposing an unwarranted
regulatory burden on owners and operators that EPA did not intend to
regulate as used oil processors.
Therefore, today's rule revises the used oil management regulations
to clarify the Agency's intent regarding the definition of a used oil
processor by specifying those on-site maintenance, filtering, and
separation activities that are not, and were not intended to be subject
to the used oil processing standards. Under today's rule, generators\1\
who only handle used oil in a manner specified under
Sec. 279.20(b)(2)(ii) are not processors provided that the used oil is
generated on-site and is not being sent directly off-site to a burner
of on- or off-specification used oil fuel. (Section 279.20(b)(2)(ii)
also applies to collection centers and aggregation points since these
entities are regulated as generators.)
---------------------------------------------------------------------------
\1\A used oil generator is any person, by site, whose act or
process produces used oil or whose act first causes used oil to
become subject to regulations. For example, generators include all
persons and businesses who produce used oil through commercial or
industrial operations and vehicle services, including government
agencies, and/or persons and businesses who collect used oil from
households and ``do-it-yourself'' oil changes.
---------------------------------------------------------------------------
Activities that EPA did not intend to include under the definition
of used oil processor are described below. EPA does not believe that
the activities identified in Sec. 279.20(b)(2)(ii) should be subject to
the used oil processor standards because used oil processing is not the
primary purpose of these activities i.e., the primary purpose of these
activities is not to produce from used oil or to make it more amenable
for the production of used oil derived products, and the Agency does
not expect these limited activities will pose the same kinds of
environmental problems that may occur at processor facilities. Instead,
in these cases, the act of mixing, filtering, separating, draining
etc., used oil by the generator constitutes a basic step that is
incidental or ancillary to a primary activity which is distinct from
used oil processing. It is important to note, however, that owners or
operators who generate used oil as a result of any of the activities
specified in Sec. 279.20(b)(2)(ii) are considered used oil generators
and are subject to the generator standards in subpart C.
EPA is allowing on-site but not off-site burning of used oil
generated from designated on-site activities because the Agency
believes that this approach best enables EPA to strike a reasonable
balance between encouraging beneficial on-site reuse and recycling
activities that should pose very limited risks, on one hand, and
ensuring that activities undertaken primarily to make used oil more
amenable for burning (i.e., used oil processing) are adequately
controlled under the more stringent used oil processing standards.
The definition of a used oil processor is based on the purpose for
which used oil is being filtered, separated, or otherwise reconditioned
(i.e., whether the activity is designed to produce used oil derived
products or to make used oil more amenable for the production of used
oil derived products). The Agency is concerned that in situations where
used oil is being filtered, separated or otherwise reconditioned and
then sent to off-site burners, the purpose of the activity may prove
difficult to discern and that consequently, Sec. 279.20(b)(2)(ii)
provisions may be used as a means to avoid compliance with the used oil
processor standards (i.e., by persons who claim not to be used oil
processors under the Sec. 279.20(b)(2)(ii) provisions but whose primary
purpose is to make the used oil more suitable for burning). Therefore,
EPA believes it is necessary to adopt an objective measure of the
purpose of the activity. The Agency believes that a prohibition against
sending used oil generated from specified on-site activities to off-
site burners provides the most practical and effective way to ensure
that activities undertaken only to make used oil more amenable for
burning are subject to the used oil processor standards.
1. Definition of Used Oil Processor
(A) Reconditioning used oil before returning it for reuse by the
generator. Under today's rule facility owners or operators who clean,
separate, or otherwise recondition used oil generated on-site and then
reuse it are not considered used oil processors, provided that the
reconditioned used oil is being reused by the owner or operator who
generated it. Examples of activities covered under this category
include filtering of metalworking fluids for reuse, and filtering and
then replacing oil from oil-bearing transformers and turbines during
routine maintenance.
Most manufacturing facilities have in place central filtration
systems designed to remove contaminants from and extend the life of
water-soluble metal working fluids (e.g., lubricants and coolants),
used in machining, grinding, and boring equipment. These filtration
systems are on-site systems that filter chips, metal fines, dirt,
water, and other contaminants from cutting fluids, drawing lubricants
and coolants used in machining operations. The filtration of these
extraneous materials is designed to extend the life of the reusable
coolants and lubricants and is incidental to the production process.
Today's rule clarifies that this type of filtration activity is not
subject to the used oil processing standards when the generator reuses
the filtered oil.
Similarly, during regularly scheduled maintenance of oil-bearing
transformers and turbines, the oil in the electrical equipment is
removed so that repairs/maintenance can be performed. In some
instances, the oil is filtered prior to replacement. The filtering of
the used oil is done to extend the life of the used oil, not because
the oil is no longer useful, and is therefore ancillary to the
equipment repair and maintenance. While, under today's rule, the owner
or operator would not be considered a processor in these cases, the
draining of the used oil from the transformer constitutes generation of
used oil so that the facility would be considered a used oil generator.
The Agency is aware that not all used transformer oil is drained
and filtered in the field. Instead, the oil-bearing electrical
equipment may be transported to a central location where the oil is
removed, filtered, and replaced. Or, the used oil may be removed from
the transformers or turbines in the field and then transported
separately in a tanker truck to a central location where it is filtered
and put back into electrical equipment. Under today's rule, in cases
where electrical equipment containing used oil is transported to a
central location, the transporter of the oil bearing electrical
equipment would not be considered a used oil transporter. However, the
owner or operator would become a generator at the point at which the
used oil is drained from the equipment (i.e., at the site where the oil
is drained and filtered).
In cases where the used oil is removed from the transformers or
turbines in the field and then transported separately in a tanker truck
to a central location for filtering prior to replacement into
electrical equipment, the owner or operator would become a generator in
the field (i.e., at the point at which the used oil is drained). The
person who then transports the used oil would also be considered a used
oil transporter subject to the transporter standards. In these cases,
the location at which the used oil is filtered would be considered a
used oil transfer facility subject to the transfer facility standards
in Sec. 279.45, provided that the used oil is stored at the site for
more than 24 hours and less than 35 days. If the used oil is filtered
within 24 hours of being drained (i.e., during transport) only the part
279 standards for used oil transporters would apply. This filtering
activity should not raise the kind of environmental concerns that would
be present at used oil processors; essentially, the filtering is
incidental to the transportation and storage and should not change a
facility's regulatory status. As discussed in more detail below,
today's rule provides that transporters of used oil that is removed
from electrical transformers and turbines and filtered by the
transporter or at a transfer facility prior to being returned to the
same use are not subject to the processor or re-refiner requirements in
subpart F. In accordance with Sec. 279.10(e), once the used oil has
been reclaimed to the point where it is ready for reuse without further
processing, it is not subject to regulation as used oil.
(B) Separating used oil from wastewater to make wastewater
acceptable for discharge or reuse. Today's rule clarifies that oil/
water separation activities designed to make wastewater acceptable for
discharge or reuse are not subject to the used oil processor standards.
Facilities often use oil/water separators to remove oil (which may
contain used oil) from oil/water mixtures collected from the facility's
storm sewer, process sewer, sumps and other wastewater containment
areas. These separation systems use chemical and physical methods to
break the oil/water emulsion and recover oil from the wastewater in
order to make the wastewater or storm water acceptable for discharge or
reuse in compliance with local, state and federal regulations.
This type of pretreatment of wastewater containing oil is designed
primarily to ensure that the wastewater meets established limits for
water discharge to streams and POTWs, and not to produce used oil
derived products or to make used oil more amenable for the production
of used oil derived products. This type of oil/water separation
activity is therefore not subject to the used oil processor standards
as clarified under today's rule. It should be noted, however, that any
used oil recovered from separator units would be subject to the used
oil generator standards. It is also important to note that this
provision applies only to used oil that is generated on-site. The
provision would apply, for example, to simple oil water separation
activities conducted (for purposes of wastewater discharge) by a used
oil processor on wastewater which has been generated by that processor.
However, persons who perform oil/water separation activities on oily
wastewater received from off-site would be considered used oil
processors.
(C) Using oil mist collectors to remove droplets of used oil from
in-plant air to make plant air suitable for continued recirculation. As
clarified under today's rule, the act of removing used oil from ambient
air in the workplace is not subject to the used oil processor
standards. At manufacturing facilities, droplets of used oil from
machining operations are often dispersed into in-plant air. Oil mist
collectors physically remove the small droplets of oil present in the
ambient air. This activity is not subject to the used oil processing
standards because it is intended primarily to make plant air suitable
for continued recirculation and not to produce products from used oil
or to make it more amenable for the production of used oil derived
products. However, the oil removed from oil mist collectors is subject
to the used oil generator standards.
(D) Removing used oil from materials containing or otherwise
contaminated with used oil in order to remove excessive oil. Under
Sec. 279.10(c) of the used oil standards, materials containing or
otherwise contaminated with used oil from which the used oil has been
properly drained or removed to the extent possible such that no visible
signs of free-flowing oil remain in or on the material are not used oil
except when burned for energy recovery. Today's rule clarifies that the
Agency does not consider the removal of used oil from materials
containing or contaminated with used oil in order to remove excess oil
in accordance with Sec. 279.10(c) to be used oil processing. The
production of used oil derived products is clearly not the primary
reason for removing used oil from materials containing or contaminated
with used oil. Instead, the activity is conducted primarily to clean
the materials (e.g., machine tools, scrap metal, etc.) prior to reuse,
recycling, or disposal and is therefore not subject to the used oil
processing standards as clarified by today's rule. However, in removing
the used oil from the materials, the owner or operator becomes a used
oil generator subject to the Subpart C used oil generator standards.
(E) Filtering, separating, or otherwise reconditioning used oil
before burning it in a space heater. Under Sec. 279.23 of the used oil
standards, used oil may be burned in a used oil-fired space heater
under specified conditions, and provided that the space heater burns
only used oil that the owner or operator generates and/or used oil
obtained from household DIY oil changers. Prior to burning, the used
oil must often be filtered to remove impurities. Today's rule clarifies
that filtering of used oil for the purpose of removing contaminants
prior to burning the used oil in a space heater is not considered
processing of used oil.
EPA provided a regulatory exemption from the used oil burning
standards for generators who burn used oil in on-site space heaters (in
accordance with Sec. 279.23) because the Agency believes that burning
of small amounts of used oil in space heaters poses insignificant risks
due to the small volume of used oil burned (see 50 FR 49194, Nov. 29,
1985). The Agency believes that, because of the small volumes of used
oil involved, filtering, separating, or otherwise reconditioning used
oil that is generated on-site prior to burning it in a space heater
would also not pose significant risk. Therefore, although the purpose
of the filtering activity in this case is to make the used oil more
amenable for burning, because of the small amounts of used oil being
filtered for this purpose, the Agency does not believe that imposition
of the used oil processor standards is warranted. EPA is therefore
adding a regulatory clarification (Sec. 279.20(b)(2)(ii)(F)) that the
used oil processor standards do not apply to filtering of used oil
prior to burning it in a space heater, provided that the used oil is
generated on-site or obtained from households or ``do-it-yourself'' oil
changes.
F. Section 279.41--Restrictions on transporters who are not also
processors or re-refiners and changes to the definition of transfer
facility.
Today's rule amends Sec. 279.41 to provide that transporters of
used oil that is removed from oil-bearing transformers and turbines and
filtered by a transporter or at a transfer facility before being
returned to its original use are not subject to the used oil processor
and re-refiner requirements. As previously discussed, during routine
maintenance of oil-bearing transformers and turbines (or similar
equipment), the oil in the electrical equipment is removed so that
repairs/ maintenance can be performed. In some cases, the used oil is
removed from the transformers or turbines in the field and then
transported separately in a tanker truck (subject to the used oil
transporter standards) to a central location where it is filtered and
put back into electrical equipment. As discussed above, under today's
rule the filtering of the used oil would not be considered used oil
processing provided that the filtered oil is reused in the same or
similar manner. And, in these cases (i.e., where the used oil is
removed from the equipment and transported to a separate location for
filtering), the location at which the oil is filtered would be
considered a transfer facility provided that the used oil is stored for
more than 24 hours and less than 35 days. If, as sometimes occurs, the
used oil is filtered within 24 hours of being stored at the central
location (i.e., during transport) the only applicable standards would
be the part 279 standards for used oil transporters (i.e., the
Sec. 279.45 requirements for used oil storage at transfer facilities
would not apply).
Section 279.41(c) of today's rule provides conforming changes to
the used oil transportation standards to allow transporters or transfer
facilities to filter the used oil without being subject to the used oil
processor standards. It should be clearly noted, however, that if the
used oil is stored at a site for more than 35 days, greater
environmental concerns may be present, so the site would no longer be
considered a transfer facility and the processor standards would apply.
In addition, this rule expands the definition of transfer facility
to allow used oil to be held at a location (i.e., a transfer facility)
temporarily prior to activities that are exempt from or performed
pursuant to the part 279 standards as a result of today's rulemaking.
Under today's revised definition, used oil can be held at a transfer
facility for more than 24 hours but less than 35 days prior to an
activity and performed pursuant to Sec. 279.20(b)(2). As a result of
this change, a site where used oil that has been drained from oil-
bearing transformers and turbines is held for more than 24 hours and
less than 35 days prior to being filtered for reuse would be considered
a transfer facility.
G. Section 279.46--Tracking Today's rule revises the Sec. 279.46
tracking requirements as they apply to rail transporters. Under amended
Sec. 279.46, a signature is not required on records of acceptance or
records of delivery of used oil shipments that are exchanged between
rail transporters. The Agency is making this change in response to
comments submitted by the railroad industry regarding the
impracticability of requiring signed receipts when used oil is
transferred from one rail transporter to another. EPA is aware that
rail cars are typically transferred from one railroad company to
another without the face-to-face contact that occurs in, for example,
the motor carrier industry. The Agency also recognizes that, unlike
non-rail transporters, railroads rely on sophisticated electronic
tracking and information systems for recording rail-to-rail transfer of
cargo. Given these unique circumstances, and in light of the fact that
40 CFR 263.20(f) regulations for hazardous waste transporters do not
include signature requirements for intermediate rail carriers, EPA
agrees that the signature requirements are unduly burdensome and
unnecessary when applied to intermediate used oil rail transporters.
EPA is therefore revising the used oil regulations to eliminate the
Sec. 279.46 signature requirements between intermediate rail carriers.
H. Corrections to the Regulatory Language
1. Requirements for Enforcement Authority
The Agency published a correction notice on May 3, 1993, which
amended several sections of the part 279 used oil management standards
that were originally promulgated on September 10, 1992. In the May 3,
1993, correction notice, EPA incorrectly amended regulatory
Sec. 271.16, that addressed the requirements for States to have
adequate criminal enforcement authority for hazardous waste. EPA
amended the regulation to include enforcement authority for used oil
handlers that manage used oil incorrectly, but EPA inadvertently
deleted from Sec. 271.16 enforcement authority for the improper
management of hazardous waste. Therefore, today's rule corrects this
section to include enforcement authority for the improper management of
both hazardous waste and used oil.
2. Rebuttable Presumption
The final used oil regulations published on September 10, 1992,
allow persons to rebut the presumption that used oil containing more
than 1,000 ppm total halogens is a hazardous waste by using an
analytical method from SW-846, Third Edition, to show that the used oil
does not contain hazardous waste. In the regulations, the Agency
provided information on the cost of SW-846, Edition III and how to
obtain it. However, the Agency misquoted the cost of the document. The
actual cost was $319.00 rather than $110.00 as quoted throughout the
September 10, 1992, regulations. To avoid having to amend the
regulations as a result of future changes in the cost of the document,
the Agency is deleting reference to the cost of SW-846, Edition III
from the used oil regulations.
3. Characteristic Hazardous Waste
Today's rule revises Sec. 279.10(b)(2)(iii) by deleting reference
to the listing status (under part 261, subpart D) of a hazardous waste
that is mixed with used oil. This change is necessary to correct a
contradiction in the regulations regarding applicability of the used
oil management standards to mixtures of used oil and hazardous waste
that is listed in subpart D solely because it exhibits one or more of
the characteristics of hazardous waste identified in subpart C. In
technical corrections to the used oil management standards published on
May 3, 1993, (57 FR 26420), EPA amended Sec. 279.10(b)(2) to correct an
error in the September 10, 1992, standards regarding how these mixtures
are regulated. At that time, conforming changes should have been, but
were not made to Sec. 279.10(b)(2)(iii). As amended by today's rule,
Sec. 279.10(b)(2)(iii) correctly provides that mixtures of used oil and
hazardous waste that solely exhibits one or more hazardous waste
characteristic and mixtures of used oil and hazardous waste that is
listed in subpart D solely because it exhibits one or more subpart C
hazardous characteristics are regulated as used oil if the mixture is
of used oil and a waste which is hazardous solely because it exhibits
the characteristic of ignitability and the resultant mixture does not
exhibit the characteristic of ignitability.
IV. State Authorization
As explained in the preamble to the May 3, 1993, Technical
Correction to the September 10, 1992, rule, EPA is treating the
majority of the final used oil management standards in the same manner
as ``non-HSWA'' Subtitle C requirements. The used oil management
standards became effective on March 8, 1993, only in those States and
Territories that do not have RCRA base program authorization and on
Indian lands. States are required to revise their Subtitle C base
programs to adopt the new used oil requirements (including those
promulgated in today's rule) by July 1, 1994, or by July 1, 1995, if a
statutory change is necessary. See 58 FR 26420 and 57 FR 41605.
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 of 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). Except for the amendments
made to Sec. 279.20(b), the standards promulgated today are less
stringent than or reduce the scope of the existing Federal
requirements. The amendments made to Sec. 279.20(b) merely provide
clarification of the existing used oil regulations and are therefore
not considered to be less stringent than the current Federal program.
Therefore, with the exception of the provisions added at
Sec. 279.20(b)(2)(i), authorized States would not be required to modify
their programs to adopt requirements equivalent to or substantially
equivalent to the provision listed above.
V. Executive Order 12866
Under Executive Order 12866, 58 FR 51735 (October 4, 1993) the
Agency must determine whether the regulatory action is ``significant''
and therefore subject to OMB review and the requirements of the
Executive Order. The Order defines ``significant regulatory action'' as
one that is likely to result in a rule that may: (1) Have an annual
effect on the economy of $100 million or more or adversely affect in a
material way the economy, a sector of the economy, productivity,
competition, jobs, the environment, public health or safety, or State,
local, or tribal governments or communities;
(2) Create a serious inconsistency or otherwise interfere with an
action taken or planned by another agency;
(3) Materially alter the budgetary impact of entitlements, grants,
user fees, or loan programs or the rights and obligations of recipient
thereof; or
(4) Raise novel legal or policy issues arising out of legal
mandates, the President's priorities, or the principles set forth in
the ``Executive Order.''
OMB has exempted this regulatory action from E.O. 12866 review.
VI. Paperwork Reduction Act
The reporting and recordkeeping requirements of part 279 have been
approved by OMB and generally assigned the control number 2050-0124
(See 58 FR 34374 (June 25, 1993)), which remains in effect. As today's
rule does not impose any new such requirements, a separate information
collection request was not prepared.
VII. Regulatory Flexibility Act
Today's rule does not impose any new regulatory requirements, and
indeed, decreases the costs of compliance for a number of facilities. I
therefore certify that today's rule will not have a significant impact
or a substantial number of small entities.
VIII. Administrative Procedures Act
Today's rule takes final action on EPA's 1985 and 1991 proposals to
exempt used oil inserted into primary refining processes from the used
oil management standards. EPA did not address these issues in its
September 10, 1992, final rule, and therefore those proposals remained
outstanding until today's rule. Since these issues were fully addressed
in those proposals, further public comment on today's rule is
unnecessary. The other changes being made in today's rule either
correct errors or clarify the language contained in the September 10,
1992 rule. No comment is necessary on these provisions.
List of Subjects
40 CFR Part 271
Environmental protection, Administrative practice and procedure,
Confidential business information, Hazardous materials transportation,
Hazardous waste, Indians--lands, Intergovernmental relations,
Penalties, Reporting and recordkeeping requirements, Water pollution
control, Water supply.
40 CFR Part 279
Petroleum, Recycling, Reporting and recordkeeping requirements,
Used oil.
Dated: February 25, 1994.
Carol M. Browner,
Administrator.
For the reasons set out in the preamble, title 40, chapter I of the
Code of Federal Regulations is amended as follows:
PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE
PROGRAMS
1. The authority citation for part 271 continues to read as
follows:
Authority: 42 U.S.C. 6905, 6912(a), and 6926.
2. Section 271.16 is amended by revising paragraph (a)(3)(ii) to
read as follows:
Sec. 271.16 Requirements for enforcement authority.
(a) * * *
(3) * * *
(ii) Criminal remedies shall be obtainable against any person who
knowingly transports any hazardous waste to an unpermitted facility;
who treats, stores, or disposes of hazardous waste without a permit;
who knowingly transports, treats, stores, disposes, recycles, causes to
be transported, or otherwise handles any used oil regulated by EPA
under section 3014 of RCRA that is not listed or identified as a
hazardous waste under the state's hazardous waste program in violation
of standards or regulations for management of such used oil; or who
makes any false statement, or representation in any application, label,
manifest, record, report, permit or other document filed, maintained,
or used for purposes of program compliance (including compliance with
any standards or regulations for used oil regulated by EPA under
section 3014 of RCRA that is not listed or identified as hazardous
waste). Criminal fines shall be recoverable in at least the amount of
$10,000 per day for each violation, and imprisonment for at least six
months shall be available.
* * * * *
PART 279--STANDARDS FOR THE MANAGEMENT OF USED OIL
3. The authority citation for part 279 continues to read as
follows:
Authority: Sections 1006, 2002(a), 3001 through 3007, 3010,
3014, and 7004 of the Solid Waste Disposal Act, as amended (42
U.S.C. 6905, 6912(a), 6921 through 6927, 6930, 6934, and 6974); and
sections 101(37) and 114(c) of CERCLA (42 U.S.C. 9601(37) and
9614(c)).
4. In Sec. 279.1 the definition of ``Petroleum refining facility''
is added in alphabetical order and the definition of ``Used oil
transfer facility'' is revised to read as follows:
Sec. 279.1 Definitions.
* * * * *
Petroleum refining facility means an establishment primarily
engaged in producing gasoline, kerosine, distillate fuel oils, residual
fuel oils, and lubricants, through fractionation, straight distillation
of crude oil, redistillation of unfinished petroleum derivatives,
cracking or other processes (i.e., facilities classified as SIC 2911).
* * * * *
Used oil transfer facility means any transportation related
facility including loading docks, parking areas, storage areas and
other areas where shipments of used oil are held for more than 24 hours
and not longer than 35 days during the normal course of transportation
or prior to an activity performed pursuant to Sec. 279.20(b)(2).
Transfer facilities that store used oil for more than 35 days are
subject to regulation under subpart F of this part.
Sec. 279.10 [Amended]
5. Section 279.10(b)(1)(ii) is amended by removing the phrase ``for
the cost of $110.00.''
6. Section 279.10 is amended by revising paragraphs (b)(2)(iii) and
(g) to read as follows:
Sec. 279.10 Applicability.
* * * * *
(b) * * *
(2) * * *
(iii) Regulation as used oil under this part, if the mixture is of
used oil and a waste which is hazardous solely because it exhibits the
characteristic of ignitability (e.g., ignitable-only mineral spirits),
provided that the resultant mixture does not exhibit the characteristic
of ignitability under Sec. 261.21 of this chapter.
* * * * *
(g) Used oil introduced into crude oil pipelines or a petroleum
refining facility. (1) Used oil mixed with crude oil or natural gas
liquids (e.g., in a production separator or crude oil stock tank) for
insertion into a crude oil pipeline is exempt from the requirements of
this part. The used oil is subject to the requirements of this part
prior to the mixing of used oil with crude oil or natural gas liquids.
(2) Mixtures of used oil and crude oil or natural gas liquids
containing less than 1% used oil that are being stored or transported
to a crude oil pipeline or petroleum refining facility for insertion
into the refining process at a point prior to crude distillation or
catalytic cracking are exempt from the requirements of this part.
(3) Used oil that is inserted into the petroleum refining facility
process before crude distillation or catalytic cracking without prior
mixing with crude oil is exempt from the requirements of this part
provided that the used oil constitutes less than 1% of the crude oil
feed to any petroleum refining facility process unit at any given time.
Prior to insertion into the petroleum refining facility process, the
used oil is subject to the requirements of this part.
(4) Except as provided in paragraph (g)(5) of this section, used
oil that is introduced into a petroleum refining facility process after
crude distillation or catalytic cracking is exempt from the
requirements of this part only if the used oil meets the specification
of Sec. 279.11. Prior to insertion into the petroleum refining facility
process, the used oil is subject to the requirements of this part.
(5) Used oil that is incidentally captured by a hydrocarbon
recovery system or wastewater treatment system as part of routine
process operations at a petroleum refining facility and inserted into
the petroleum refining facility process is exempt from the requirements
of this part. This exemption does not extend to used oil which is
intentionally introduced into a hydrocarbon recovery system (e.g., by
pouring collected used oil into the waste water treatment system).
(6) Tank bottoms from stock tanks containing exempt mixtures of
used oil and crude oil or natural gas liquids are exempt from the
requirements of this part.
* * * * *
7. Section 279.20 is amended by revising paragraph (b)(2) to read
as follows:
Sec. 279.20 Applicability.
* * * * *
(b) * * *
(2) (i) Except as provided in paragraph (b)(2)(ii) of this section,
generators who process or re-refine used oil must also comply with
subpart F of this part.
(ii) Generators who perform the following activities are not
processors provided that the used oil is generated on-site and is not
being sent off-site to a burner of on- or off-specification used oil
fuel.
(A) Filtering, cleaning, or otherwise reconditioning used oil
before returning it for reuse by the generator;
(B) Separating used oil from wastewater generated on-site to make
the wastewater acceptable for discharge or reuse pursuant to section
402 or section 307(b) of the Clean Water Act or other applicable
Federal or state regulations governing the management or discharge of
wastewaters;
(C) Using oil mist collectors to remove small droplets of used oil
from in-plant air to make plant air suitable for continued
recirculation;
(D) Draining or otherwise removing used oil from materials
containing or otherwise contaminated with used oil in order to remove
excessive oil to the extent possible pursuant to Sec. 279.10(c); or
(E) Filtering, separating or otherwise reconditioning used oil
before burning it in a space heater pursuant to Sec. 279.23.
* * * * *
8. Section 279.41 is amended by adding paragraph (c) to read as
follows:
Sec. 279.41 Restrictions on transporters who are not also processors
or re-refiners.
* * * * *
(c) Transporters of used oil that is removed from oil bearing
electrical transformers and turbines and filtered by the transporter or
at a transfer facility prior to being returned to its original use are
not subject to the processor/re-refiner requirements in subpart F of
this part.
Sec. 279.44 [Amended]
9. Section 279.44(c) introductory text is amended by removing the
phrase ``for the cost of $110.00.''
10. Section 279.46 is amended by revising paragraphs (a)(5) and
(b)(5) to read as follows:
Sec. 279.46 Tracking.
* * * * *
(a) * * *
(5) (i) Except as provided in paragraph (a)(5)(ii) of this section,
the signature, dated upon receipt of the used oil, of a representative
of the generator, transporter, or processor/re-refiner who provided the
used oil for transport.
(ii) Intermediate rail transporters are not required to sign the
record of acceptance.
(b) * * *
(5) (i) Except as provided in paragraph (b)(5)(ii) of this section,
the signature, dated upon receipt of the used oil, of a representative
of the receiving facility or transporter.
(ii) Intermediate rail transporters are not required to sign the
record of delivery.
* * * * *
Sec. 279.53 [Amended]
11. Section 279.53(c) introductory text is amended by removing the
phrase ``for the cost of $110.00.''
Sec. 279.63 [Amended]
12. Section 279.63(c) is amended by removing the phrase ``for the
cost of $110.00.''
[FR Doc. 94-4818 Filed 3-3-94; 8:45 am]
BILLING CODE 6560-50-P