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49164 Federal Register / Vol. 50, No. 230 / Friday, November 29, 1985 / Rules and Regulations

ENVIRONMENTAL PROTECTIONAGENCY

40 CFR Parts 261, 264, 265, 266, and

271

[SWH-FRL 2910-1]

Hazardous Waste ManagementSystem; Burning of Waste Fuel andUsed Oil Fuel in Boilers and IndustrialFurnaces

AGENCY: Environmental ProtectionAgency.ACTION: Final rule.

SUMMARY: On January 11, 1985, EPAproposed under Subtitle C of theResource Conservation and RecoveryAct (RCRA) to begin regulation ofhazardous waste and used oil burnedfor energy recovery in boilers andindustrial furnaces. The proposalprovided administrative controls forthose persons who market and bumhazardous waste and used oil fuels.Most of the requirements are beingfinalized as proposed, but somemodifications have been made inresponse to comment.

The final rule prohibits the burning innonindustrial boilers of both hazardouswaste fuel and of used oil that does notmeet specification levels for certainhazardous contaminants and flash point.It also provides administrative controlsto keep track of marketing and burningactivities. These controls includenotification to EPA of waste-as-fuelactivities, use of a manifest, or, for usedoil, an invoice system for shipments, andrecordkeeping. Hazardous waste fuels,including processed or blendedhazardouswaste fuels, are also subjectto storage requirements.DATES: Effective Dates: The effectivedates for the regulations are:

1. Prohibitions. The prohibitions onmarketing and burning of hazardouswaste fuel and off-specification used oilfuel in nonindustrial boilers in§§ 266.31(a) (2) and (b), and 266.41 (a)(2) and (b) are effective on December 9,1985. To implement and enforce theprohibitions, the following provisionsare also effective on December 9, 1985:

(a) The used oil fuel specification in§266.40(e), except for the specificationlevel for lead which is effective May 29,1986.

(b) The rebuttable presumption ofmixing hazardous halogenated wasteswith used oil in §266.40(c); and

(c) The used oil analysis requirementsand attendant record keepingrequirements in § §266.43(b) (1) and (6),and 266.44 (d) and (e);"

2. Storage Controls. The storagecontrols for hazardous waste fuels in

§ §266.34(c) and 266.35(c) are effectiveon May 29 1986; and

3. All Other Provisions. The effectivedate for all other provisions of theseregulations (e.g., manifests and, for off-specification used oil fuel, invoicerequirements for shipments; certificationnotices to suppliers; and recordkeepingof manifests or invoices, andcertification notices) is March 31, 1986.At that time, the manifest or invoicerequirements supersede and apply inlieu of the warning label requirements ofRCRA section 3004(r).

Compliance Dates: The compliancedates for the regulation are:

1. Notification. Marketers and burnersof hazardous waste fuel and off-specification used oil fuel are requiredto notify EPA regarding their waste-as-fuel activities under §§ 266.34(b),266.35(b), 266.43(b)(3), and 266.44(b).These persons must so notify either EPAor States authorized by EPA to operatethe hazardous waste program byJanuary 29,1986; and

2. SObmission of Part A PermitApplications. All existing marketers andburners (see provisions in 40 CFR 270.2and 270.70(a)) who store hazardouswaste fuels and who are not currentlyoperating pursuant to interim status(section 3005(e) of RCRA), must file anotification of their storage activitieswith EPA by January 29, 1986 andsubmit a Part A permit application toEPA by May 29, 1986.

In addition, marketers and burnersalready operating pursuant to interimstatus, but who operate existinghazardous waste fuel storage facilitiesnewly subject to regulation by today'srule, must file a notification of theirstorage activities with EPA by January29, 1986 and submit an amended Part Apermit application to EPA (with aninformational copy to the authorizedState) by May 29, 1986.

Explanation for these effective datesand compliance dates is provided inPart Five, section III of this preamble.ADDRESSES: The official record for thisrulemaking is in Room S-212, U.S.Environmental Protection Agency, 401 MSt., SW., Washington, DC 20460. Therecord may be viewed from 9:00 a.m. to4:00 p.m., Monday through Friday,excluding holidays.FOR FURTHER INFORMATION CONTACT:RCRA Hotline, toll free, at (800) 424-9346 or (202) 382-3000. For Technicalinformation, contact Robert HollowayWaste Combustion Program, WasteManagement and Economics Division,Office of Solid Waste, WH-565A, U.S.Environmental Protection Agency, 401 MSt. SW., Washington, DC 20460.Telephone: (202) 382-7917. Single copies

of the final rule can be obtained bycalling the RCRA Hotline number above.SUPPLEMENTARY INFORMATION:

Preamble OutlinePART ONE: BACKGROUNDI. Legal AuthorityII. Overview of the Final RuleIII. Nonregulatory AlternativesPART TWO: MATERIALS THAT ARE

REGULATEDI. OverviewII. Determining When a Waste is Burned for

Energy RecoveryIII. Hazardous Waste Subject to Regulation

A. Definition of Hazardous Waste FuelB. Consideration of Exemption for

lgnitable Only Hazardous WasteC. Regulation of Products Derived from

Petroleum Refinery Wastes1. Petroleum Refineries that ReintroduceHazardous Wastes from PetroleumRefining, Production, and Transportationto the Refining Process2. Oil Reclaimed from Petroleum RefiningHazardous Wastes that is Returned tothe Refining Process3. Statutory, Conditioned Exemption ofCoke Derived from Indigenous PetroleumRefinery Wastes

D. Exemption of Coke and Coal TarProduced from Coal Tar Decanter Sludgeby the Iron and Steel Industry

E. Status of Gas Recovered from LandfillsF. Request for Exclusion of Cadence

Product 312IV. Used Oil Subject to Regulation

A. Definition of Used Oil FuelB. Distinguishing Between Used Oil and

Hazardous Waste1. Used Oil Containing HalogenatedWastes2. Used Oil Generated by Small QuantityGenerators3. Used Oil That Exhibits aCharacteristic of Hazardous Waste

C. The Specification for Used Oil Burned inNonindustrial Boilers1. Comments on EPA's Risk Assessment2. Specification Parameters3. Specification Levels

D. Comments on Allowing Blending toMeet the Specification

E. Consideration of Total Ban on BurningUsed Oil in Nonindustrial Boilers

F. Analytical Testing to DemonstrateCompliance with Specification Levels

IV. Regulation of Combustion ResidualsV. Consideration of Special Requirements for

De Minimis Quantities Burned On-SitePART THREE: COMBUSTION DEVICES

THAT ARE REGULATEDI. OverviewIt. Regulation of Boilers

A. Basis for Regulating Boilers by BoilerUse1. Conditional Exemption ofNonindustrial Boilers Burning Hazardo asWaste Fuel2. Consideration of Other Criteria forIdentifying Boilers Subject to theProhibitions

B. Definition of Industrial BoilerC. Definition of Utility BoilerD. Nonindustrial Boiler

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

E. Marine and Diesel EnginesIII. Regulation of Industrial FurnacesIV. Regulation of Used Oil Space HeatersPART FOUR: ADMINISTRATIVE AND

STORAGE STANDARDS1. Administrative Standards

A. OverviewB. Notification RequirementsC. Transportation ControlsD. Notice and Certification RequirementsE. Used Oil Analysis Requirements for

MarketersF. Recordkeeping Requirements

1I. Storage Requirements for HazardousWaste Fuel

Il1. Examples of How These RegulationsOperate

PART FIVE: ADMINISTRATIVE,ECONOMIC, AND ENVIRONMENTALIMPACTS, AND LIST OF SUBJECTS

I. State AuthorityA. Applicability of Rules in Authorized

StatesB. Effect on State Authorizations

II. Regulatory ImpactsA. Results of Regulatory Impacts Studies

1. Economic Impacts on the RegulatedCommunity2. Regulatory Flexibility Act3. Paperwork Reduction Act

B. Impacts on the Used Oil RecyclingIndustry

Ill. Explanation of Compliance DatesIV. List of Subjects

Today's preamble is organized intofive major sections. Part I containsbackground information thatsummarizes major provisions of the rule.It also describes how the rule fits intothe Agency's strategy for regulatingother types of used oil recycling anddisposal and for regulating the actualburning of hazardous waste and off-specification used oil in industrialboilers and industrial furnaces. Inaddition, this section discussesnonregulatory approaches to theproblems considered by EPA.

Part II describes when a waste isburned for energy recovery andidentifies those hazardous wastes andused oils subject to this regulation. Italso discusses the basis for exempting anumber of waste-derived fuels and fornot exempting others. In addition, itdescribes the test for distinguishing.between used oil and hazardous wastefuels. Further, this section defends therisk assessment used to identify used oilconstituents included in thespecification, and explains the basis forthe final specification. Finally, thissection responds to a number ofcomments regarding allowing theblending of used oil fuel to meet thespecification, availability of analyticalprocedures for used oil, and theregulatory status of combustionresiduals.

Part Ill identifies those boilers andindustrial furnaces subject to thisregulation and explains the basis for

regulating nonindustrial boilersimmediately. It also discusses hownonindustrial boilers can continue toburn hazardous waste under permitstandards for hazardous wasteincinerators. Finally, this sectiondiscusses controls for used oil spaceheaters and EPA's intent to provideadditional controls for these devices infuture rulemakings.

Part IV discusses the administrativecontrols on marketers and burners thatprovide a tracking system for shipmentsand otherwise provide forimplementation and enforcement of theprohibitions. This section also discussesthe basis for applying the storagestandards to all hazardous waste fuelsand general permit procedures. Finally,this section provides examples of howthe rule operates.

Part V discusses how the rulesoperate immediately, even in statesauthorized to operate the hazardouswaste program. This section alsodiscusses the economic impacts on theregulated community, and particularly,the used oil recycling industry.

PART ONE: BACKGROUNDI. Legal Authority

These regulations are promulgatedtoday under the authority of sections1006, 2002(a), 3001, 3002, 3003, 3004, 3005,3007, 3010, and 3014 of the Solid WasteDisposal Act as amended by theResource Conservation and RecoveryAct of 1976, the Quiet Communities Actof 1978, the Solid Waste Disposal ActAmendments of 1980, the Used OilRecycling Act of 1980, and theHazardous and Solid WasteAmendments of 1984, 42 U.S.C. 6905,6912(a), 6921, 6922, 6923, 6924, 6925, 6927,6930, and 6932.II. Overview of the Final Rule

With today's rulemaking, EPA beginsto regulate those hazardous wastes andused oil that are marketed and burnedfor energy recovery. The chief purposeof these rules is to prohibit the burningof hazardous waste and contaminatedused oil in nonindustrial boilers. Theprohibitions are implemented andenforced by placing administrativecontrols on marketers and burnersof these fuels.

Today's rule also establishes arebuttable presumption that used oilthat contains more than 1000 ppm totalhalogens is mixed with halogenatedhazardous waste and, therefore, is ahazardous waste. The presumption maybe rebutted by showing the used oil hasnot been mixed with hazardous wastes(e.g., by showing it does not containsignificant levels of halogenated

hazardous constituents. Used oilpresumed to be mixed with hazardouswaste is subject to regulation ashazardous waste fuel when burned forenergy recovery.

In addition, the rule establishes aspecification for used oil fuel (i.e., usedoil not mixed with hazadous waste) thatis essentially exempt from all regulationand may be burned in nonindustrialboilers. The specification sets allowablelevels for designated toxic constituents,flash point, and total hologens.

Burning of hazardous waste fuel andoff-specification used oil fuel inindustrial and utility boilers andindustrial furnaces continues to beexempt from regulation. The Agencyintends to regulate such burning underpermit standards to be proposed in 1986,as discussed below.

Administrative requirements such asnotification, receipt of identificationnumber, and compliance with manifestor invoice (for off-specification used oilfyel) systems are being promulgatedtoday to enforce the prohibitions onburning of hazardous waste fuel andoffspecification used oil in nonindustrialboilers.

Today's rule also applies RCRAhazardous waste storage standards tofacilities storing hazardous waste fuels.Such waste-derived fuels haveheretofore been exempt (on an interimbasis] from storage standards whenproduced by a person other than thegenerator. See § § 266.30(a) and266.34(c), 50 FR at 667 (January 4, 1985).

Several modifications have beenmade to the proposed rule in response tocomments. These include: the rebuttablepresumption of mixing hazardoushalogenated solvents with used oil isbased on a total halogen level of 1000ppm rather than a total chlorine level of4000 ppm; a specification for totalhalogens is added to the used oil fuelspecification at a level of 4000 ppm; andthe effective date of the leadspecification level (set at 100 ppm) isdeferred for six months, while the otherspecification parameters are effectiveten days after promulgation.

The Agency is also developing twoother rulemakings that will regulate theblending and burning of used oil andhazardous waste for energy recovery.EPA will soon be proposing a rule thatwould list used oil as hazardous wasteand establish special managementstandards for recycled oil, including oil,burned for energy recovery. Those ruleswould go beyond today's final rule byproviding standards for used oilgenerators and collectors, and byregulating the transportation andstorage of used oil. Today's final rule

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49166 Federal Register / Vol. 50, No. 230 / Friday, November 29, 1985 / Rules and Regulaiions

places administrative controls only onmarketers and burners of used oilburned for energy recovery, and doesnot regulate the transportation andstorage of used oil.

In 1986, we are scheduled to proposepermit standards for the actual burningof hazardous waste and used oil inboilers and industrial furnaces. Underthose permit standards, hazardouswaste could be burned in any boiler orindustrial furnace, irrespective ofpurpose (i.e., hazardous waste could beburned for energy recovery, materialrecovery, or destruction).' Burning ofcontaminated (i.e., off-specification)used oil would be permitted underspecial permit-by-rule standards.

III. Nonregulatory Alternatives

EPA carefully examined a-number ofnonregulatory strategies for managingused oil, but failed to identify any thatwould be as protective as theseregulations. See 50 FR at 1687 (January11, 1985). The most promising approachconsidered was a tax rebate system.Under this system, a tax on virgin lubeoil would be rebated to "acceptable"users of used oil (e.g., rerefiners,"acceptable" burners). We explained inthe proposal, however, why a tax rebatesystem would be ineffective inprotecting human health and theenvironment and impractical toimplement.

In response to EPA's discussion onnonregulatory alternatives, onecomnienter suggested a programwhereby "do-it-yourself' oil changerswould voluntarily bring their used oil togas stations to be sold to rerefiners.While the Agency is strongly in favor ofof rerefining, EPA's objective inpromulgating today's regulations is tobegin to regulate used oil managementto ensure that it is managed in anenvironmentally acceptable manner. SeeRCRA section 3014. This provision doesnot authorize EPA to determinepreferential recycling approaches and todirect used oil to those approaches,provided alternative types of recyclingare conducted in a manner that protectshuman health and the environment. 2

I Hazardous waste may be burned fordestruction, previously and under today's rule, onlyunder RCRA hazardous waste incinerator standardsfound in 40 CFR Parts 264 and 265.

2 We believe that today's regulations will, in fact,result in a substantial increase in used oil rerefining.Used oil that does not meet the specification andthat is currently burned for energy recovery innonindustrial boilers must either be blended to meetthe specification or diverted to industrial or utilityboilers or industrial furnaces. We expect that asubstantial amount of this oil will find its way torerefiners. We note also that EPA anticipatesproposing in Spring 1986 Federal procurement

PART TWO: MATERIALS THAT AREREGULATED

I. Overview

Today's rules apply to hazardouswaste and used oil burned for energyrecovery. When so recycled, thesewastes, and materials that are producedfrom or otherwise contain these wastesas a result of blending, processing, orother treatment, are termed hazardouswaste fuel or used oil fuel. These termsare defined in this section. We alsodiscuss how to determine when a wasteis burned for energy recovery and theapplicability of these rules to burning formaterials recovery. In addition, wediscuss when combustion residuals fromboilers and industrial furnaces burninghazardous waste and used oil aresubject to regulation as hazardouswaste. Finally, we discuss, in responseto comments, our plans to give specialconsideration to regulating the on-siteburning of de minimis quantities ofhazardous waste fuel and off-specification used oil in thedevelopment of permit standards forboilers and industrial furnacesscheduled to be proposed in early 1986.

In defining "hazardous waste fuel",we discuss the basis for exemptingcertain hazardous waste fuels fromthese regulations-petroleum refineryfuel products derived from hazardouswaste produced by refining andancillary operations, and coke and coaltar derived from hazardous wasteproduced by coal coking operations inthe iron and steel industry-and why weare rejecting arguments by somecommenters to exempt or exclude otherhazardous waste fuels.

In defining "used oil fuel", we defineused oil and explain the differencebetween used oil and "oily waste." Inaddition, we discuss the specificationfor used oil that may be burned innonindustrial boilers, and explain whywe added totalhalogens to the proposedspecification at a level of 4,000 ppm andwhy PCBs were deleted from theproposed specification. We also respondto comments regarding why otherparameters were not added to thespecification and why certainspecification levels were selected. Wealso discuss how to distinguish betweenhazardous waste fuel and used oil whenthe used oil may have been mixed withhazardous halogenated solvents, whenused oil may .e mixed with smallquantity generator hazardous waste,and when used oil exhibits acharacteristic of hazardous waste.Finally, we respond to comments on

guidelines under authority of RCRA Section 6002regarding procurement of recycled lubricating oils.

allowing blending of used oil to meet thespecification, banning all burning ofused oil in nonindustrial boilers, and theavailability of analytical testingprocedures to determine conformancewith the specification. _II. Determining When a Waste is Burnedfor Energy Recovery

Today's regulations apply tohazardous waste and used oil burnedfor "energy recovery." This limitationraises two questions: how to distinguishburning for energy recovery fromburning for destruction, and determininghow to regulate if burning is conductedto recover materials.

In the January 11, 1985 proposal (see50 FR at 1690), we explained that theAgency had already addressed what ismeant by burning for legitimate energyrecovery. We explained that burning oflow energy hazardous waste as allegedfuel is not considered to be burning forlegitimate energy recovery, even if thelow energy hazardous waste is blendedwith high energy materials and thenburned. Thus, boilers and industrialfurnaces burning low energy wastes (i.e.,having less than 5,000-8,000 Btu/lbheating value, as generated) 3 could beconsidered to be incinerating them, andso be subject to regulation as hazardouswaste incinerators.

Although today's rule prohibits theburning of hazardous waste fuel and off-specification used oil fuel innonindustrial boilers, the principles ofthe statement remain in force. We haveindicated, however, that if we were toapply the Enforcement Policy Statementto industrial (and utility) boilers andindustrial furnaces, we would seek toenforce in situations where low energyhazardous waste adulteration wasdeliberate and massive. This is becausewe have said that larger industrialboilers are more efficient at recoveringenergy and so could be deemed, moreoften, to be burning lower energy wasteslegitimately. (See 48 FR at 11159 (March16, 1983).)

A second question is the scope ofthese regulations when burning involvesmaterial recovery. Normally, thepurpose for which a material is burnedmakes no difference in environmentaleffect. Hence, EPA envisions an ultimateregulatory scheme where regulation ofburning applies (as may be necessary toprotect human health and theenvironment) regardless of purpose inall situations within the Agency'sjurisdiction. We now address this

I See Statement of Enforcement Policy issuedJanuary 18, 1983 [printed at 48 FR 11157 (March 16,1983)).


No. 230 / Friday, November 29, 1985 / Rules and Regulations 49167

question as it applies to burning inboilers, burning for a dual purpose inindustrial furnaces, and burning inindustrial furnaces solely for materialrecovery.

We explained in the January 11, 1985preamble that since boilers, bydefinition, have as their primary purposethe recovery of energy, if materials arealso recovered, this recovery is ancillaryto the purpose of the unit, and so doesnot alter the regulatory status of theactivity. (See also definition of "boiler"in 50 FR at 661 (January 4, 1985).) Wealso explained that the regulations applywhen an industrial furnace burns thesame material for both energy andmaterial recovery (e.g., when blastfurnaces bum organic wastes to recoverboth energy and carbon values).

.Today's regulations, however, do notapply to hazardous wastes burned inindustrial furnaces solely for materialrecovery. In large part, this is becausethe primary focus of today's regulationsis on waste burning in nonindustrialsettings (apartment buildings, hospitals,etc.). In addition, as discussed in theJanuary 4. 1985 preamble to thedefinition of solid waste and thepreamble to the proposed rule in thisproceeding, there are certain situationswhere control of burning for materialrecovery in industrial furnaces couldlead to an impermissible intrusion intothe production process and so bebeyond EPA's authority under RCRA.See 50 FR 630, 1690. These situations arelimited, and involve circumstanceswhere the secondary material beingburned is indigenous to the process inwhich the industrial furnace is used, forexample, because the secondarymaterial contains the same types andconcentrations of constituents(particularly hazardous constituentslisted in Appendix VIII of Part 261.) asthe raw materials normally burned inthe industrial furnace. Id.4 In EPA'sforthcoming regulations establishingpermit standards for burning in boilersarid industrial furnaces, EPA willestablish permit standards for industrialfurnaces burning for material recovery(as well as for energy recovery ordestruction) in all situations not beyondEPA's regulatory authority.

4An example could be a smelting furnaceresmelting one of its own listed process residues. Insuch situations, the secondary material would notbe a solid waste at the time of burning in the

industrial furnace even though it is classified as as6lid waste for purposes of storage prior to burning.Note further that the derived-from rule.(§ 261.3(c)(2)(i)) thus would not apply to wastesgenerated by the burning.

III. Hazardous Waste Subject toRegulation

A. Definition of Hazardous Waste Fuel

1. Hazardous Waste Fuel. Withcertain exceptions discussed below,these rules apply to hazardous wastes(and fuels that are produced from orotherwise contain hazardouswaste as aresult of processing, blending, or othertreatment), that are burned for energyrecovery in a boiler or industrial furnacethat is not operating under RCRAstandards for hazardous wasteincinerators.5 Such fuel is termed"hazardous waste fuel". 6

Certain commenters questionedwhether these rules (and by extensionRCRA section 3004(q)) would applywhen energy recovery from burninghazardous wastes is merely incidental,or when energy recovery is not theprincipal purpose of burning. Today'srules apply where energy recovery issignificant or purposeful. The Agencystated as long ago as 1983 in aStatement of Enforcement Policy (48 FR11159 (March 16, 1983)) that ordinarilyburning low energy (less than 5,000 Btulb.) hazardous waste is not consideredto involve energy recovery, in spite ofincidental energy release. See also 50 FRat 630 (January 4,1985), and 50 FR 1690

1 If a waste that is hazardous only because itexhibits a characteristic is used as an ingredient ina fuel, and the waste-derived fuel does not exhibit acharacteristic, the waste-derived fuel would not beconsidered to be a hazardous waste. (See§ 261.3(d)(1).)

Several commenters suggested that "hazardouswaste fuel" is an inappropriate term to use todescribe these fuels since it creates a stigma that'will discourage the use of the fuel because of theperceived increased risks associated withhazardous waste. Commenters believed that thenegative association of hazardous waste with thefuel would cause many users to stop burning suchfuels and, therefore, depress the business of thosemarketing these fuels, particularly used oil mixedwith hazardous waste. Several commenterssuggested that the Agency use a different term withless negative connotation (e.g., "regulated" or"RCRA-regulated fuel").

We acknowledge that we have previously (see§ 261.6(a)(1), 50 FR 665 (January 4, 1985)) termedhazardous wastes that are recycled as "recyclablematerials". We continue to believe, however, thathazardous waste burned for energy recovery shouldbe termed "hazardous waste fuel" for a number ofreasons. The warning label provision of section3004(r) of the Hazardous and Solid WasteAmendments of 1984 (HSWA) requires that aninvoice or bill of sale for hazardous waste fuel beara statement that the fuel contains hazardous waste.Although that provision is superseded by themanifest requirement promulgated today, .webelieve that Congress intended that EPA controlsfor such fuels make it clear that the fuels are, orcontain, hazardous waste. In addition, although theJanuary 4,1985 promulgation termed recycledhazardous waste as "recyclable materials", thatrule also provided basic controls for hazardouswaste burned for energy recovery (expanded bytoday's rule) and, in fact, first defined such waste as"hazardous waste fuel". See Subpart D of Part 266,50 FR 667.

(January 11, 1985) reiterating thisprinciple. Thus, if boilers or industrialfurnaces burn hazardous wastescontaining organic constituents theserules would not invariably apply.

These rules do apply, however, ifhazardous wastes (viz. any hazardoussecondary material (see § 261.2(c)(2),January 4, 1985 and August 20, 1985)) areburned in industrial furnaces or boilersboth to recover energy (i.e., to providesubstantial, useful heat energy) and forsome other recycling purpose, even ifenergy recovery is not the predominantpurpose of the burning. EPA already hastaken this position in the rules codifyingsection 3004(q) of RCRA. 50 FR 28724(July 15, 1985). In addition, as notedabove, the Agency is moving away fromtests based on purpose because thepurpose of burning normally is unrelatedto its environmental effect. Indeed, theargument that these rules (as well asRCRA section 3004(q)) should applyonly where energy recovery is theprincipal purpose of burning wouldresurrect the discredited "primarypurpose" test formerly used by EPA todistinguish recycling from incineration.As both the Agency and the Congresshave stated, this standard was largelyirrelevant for evaluating environmentaleffects of burning, and provedexceedingly difficult to administer. See48 FR 14483 (April 4, 1983); S. Rep. No.284, 98th Cong. 1st Sess. at 36 (1983). Noris section 3004(q) of RCRA limited tosituations where energy is the principalpurpose of burning, the plain language ofthe statute applying to hazardous wasteburned "for purposes of energyrecovery" (RCRA section 3004(q)(1)(B)),or "burned to recover useful energy"(RCRA section 3004(q)(2)(B)). Thestatute also classifies hazardous waste-derived petroleum coke as a section3004(q) fuel (see RCRA section3004(q)(2)(A)), even though petroleumcoke is burned for several purposes,only one of which (and not necessarilythe most important) is energy recovery.See S. Rep. No. 284, supra at 39. 7.

Consequently, these rules applywhere hazardous wastes are burned inboilers or industrial furnaces andprovide substantial, useful heat energy.Such burning is considered to involve ahazardous waste fuel within themeaning of RCRA section 3004(q).

2. Eliminating Certain ExistingRegulatory Exemptions for HazardousWaste Fuels. These rules expand the

7 Section 3004(q) also applied on its face tocement kilns burning hazardous waste even thoughthese industrial furnace do not burn wastes for thesole purpose of energy recovery. RCRA section3004(q)(2)(C1.

Federal Register /Vol. 50,



universe of hazardous waste subject toRCRA regulation when burned forenergy recovery by removing twoexemptions. Although the Agency hasjurisdiction to regulate under RCRA allspent materials, sludges, by-products,and § 261.33 commercial chemicalproducts, all fuels to which thesematerials are added, and all fuelsderived from or otherwise containingthese materials when they aretransported, stored, and burned forenergy recovery (see 50 FR 630 (January4,1985], and 50 FR 33541 (August 20,1985)], EPA currently regulates thestorage and transportation of hazardouswaste burned for energy recovery onlyon a limited basis. Thus, the followinghazardous waste fuels are provisionallyexempt: (1) Spent materials and by-products exhibiting a characteristic ofhazardous waste; and (2) hazardouswaste fuels produced from hazardouswaste by blending or other treatment bya person who neither generated thewaste nor burns the fuel. (See § § 266.30and 266.36 in 50 FR 667.(January 4,1985).) Under the first exemption, onlylisted wastes and sludges (both listedand characteristic) are currentlyregulated.6 Thus, nonsludge,characteristic-only wastes are currentlyexempt. Under the second exemption,waste-derived fuels produced by off-site, third-party marketers are currentlyexempt. Today's rules remove both ofthese exemptions so that thetransportation, storage, and othercontrols apply to all hazardous wastefuels.

We have also explained why neitherexemption is environmentallyjustifiable. See 50 FR 1705 (January 11,1985). There is no general distinctionbetween potential adverse effects ofburning listed or characteristichazardous wastes. Nor is there anygeneral distinction between hazardouswaste fuels marketed directly bygenerators or by marketers unrelated tothose generators. These exemptions, infact, have always been provisional, andexist because of the Agency's initialuncertainty (in 1980) about anappropriate regulatory regime forrecycled wastes. Id. Although theAgency promulgated a regulatory regimefor many recycling activities on January4,1985, we decided to remove theseexemptions in today's rulemakingdealing solely with burning for energy

s Listed commercial chemical products, however,are not solid wastes (or hazardous wastes) whenburned for energy recovery if they are themselvesfuels or normal components of commercial fuels.See 40 CFR 261.33, 50 FR 28744 (July 15, 1985). Anexample is pipeline interface generated from thetransport of toluene, when the interface is burnedfor energy recovery.

recovery rather than in the January 4, Commenters provided no insight on howrulemaking to avoid confusion or acceptable levels would be assigned todisruption that would result from the various compounds of concern.extensive, piecemeal changes of the Moreover, even if it were assumed thatcurrent (i.e., May 19, 1980) rules. See 50 acceptable levels for all Appendix VIIIFR 632 (January 4,1985). compounds could be determined,B. Consideration of Exemption for tommenters did not focus on theB.nideraiOn Hazadof m t fanalytical burden they would face toIgnitable-Only Hazardous Waste, endure that shipments met the

In the proposed rule, we solicited conditional exemption.comments on whether wastes that are We have concluded that a conditionalhazardous only because of their exemption would be very difficult toignitability should be exempted from the develop and very expensive to theprohibition on burning in nonindustrial regulated community to implement.boilers. (See 50 FR 1701 (January 11, Moreover, it is not clear that a1985.) We also asked if these "ignitable- substantial amount of hazardous wasteonly" wastes should be exempt from all would even be eligible for an exemptioncontrols (including storage and conditioned on the presence of only verytransportation), or just the prohibition low levels of the Appendix VIIIon burning in nonindustrial boilers. constituents not normally present in

We reasoned that burning such virgin fuel oil.wastes would not pose any greater We note, however, that we aredanger, of fires or explosions than considering whether special permitcommercial fuel oils if the minimum standards would be appropriate forflash point was limited to 1000 F. ignitable-only wastes under the Phase IIHowever, we also noted that ignitable- permit standards for boilers andonly wastes may actually contain industrial furnaces to be proposed insignificant levels of toxic compounds 1986. Such special standards could bebecause the Agency has not completed fashioned after the current standards forits listing of wastes that are hazardous burning ignitable-only waste inbecause of their toxicity. Therefore, we incinerators. See § § 264.340(b) and (c).indicated that as a part of any Under the incinerator standards, site-exemption scheme those toxic specific factors such as quantity ofcompounds of concern must be waste and location of the facility mayidentified, acceptable concentrations be used to determine if measurable, butmust be determined, analysis low, levels of Appendix VIII compoundsprocedures must be prescribed, and may pose a hazard to public health orrecordkeeping procedures must be the environment. Wastes found to berequired. ignitable-only with insignificant levels

For a number of reasons, today's rule of Appendix VIII compounds are exemptdoes not provide an exemption for from the performance and operatingignitable-only hazardous waste. standards for incinerators. AlthoughAlthough conmenters acknowledged the waste analysis is required, the analyticneed to ensure that the waste does not burden is minimized by considering onlycontain significant levels of toxic the Appendix VIII compounds that couldconstituents, they were not helpful in reasonably be expected to be found insuggesting a rational approach for the waste. Thus, consideration of ansetting safe levels for the constituents or exemption on a case-by-case basis asan implementation scheme that would part of a permit proceeding provides aavoid the expense of analyzing rational approach to consider theshipments for virtually every compound significance of low levels of Appendixon Appendix VIII of Part 261. Several VIII compounds and allows for cost-commenters suggested that the presence effective (i.e., limited) waste analyses.of Appendix VIII compounds that occur C. Regulation of Fuels Derived Fromnaturally in virgin fuel (e.g., toluene, Petroleum Refinery Wastexylene, benzene, metals) should beconsidered in setting acceptable levels 1. Petroleum Refineries thatfor an exemption. For "non-fuel" Reintroduce Hazardous Wastes Fromcompounds, several commenters Petroleum Refining, Production, andsuggested a maximum level of 100 ppm Transportation to the Refining Process.while one commenter suggested 1 ppm, EPA solicited comment on the status ofand another suggested that acceptable fuels from petroleum refineries thatlevels be based on assessment of risk. reintroduced oil-bearing hazardousAs we indicated in the proposal, 100 wastes from petroleum refining,ppm may be an appropriate level for production and transportation to thesome constituents while a lower level, refining process. See 50 FR 1689-1690.perhaps 1 ppm, would be appropriate for Although we proposed to define thesethe more toxic constituents. materials as hazardous waste fuel, we


Federal Register / Vol. 50, No. 230 / Friday, November 29, 1985 / Rules' and Regulations

solicited comment on the extent towhich the hazardous wastecontaminants are removed by therefining process, or are so diluted by theprocess that they do not significantlyincrease the level of contaminantspresent in fuel. Id. If this is the case,EPA believes it has the ultimateauthority to exclude the derived fuelsfrom being solid wastes, since the morewaste-derived fuels from a process arelike products from the same processproduced by virgin materials, the lesslikely EPA is to classify the waste-derived fuel as a waste. (It is clear,however, that EPA possessesjurisdiction under RCRA to make thesedeterminations. See RCRA section3004(r).) The American PetroleumInstitute (API) submitted relevant dataon these points which EPA noticed forpublic comment on June 26, 1985. 50 FR26389.

These data, though limited, seem toindicate that at large, sophisticatedrefineries, these recycling practices donot significantly contribute to metalslevels in the refined fuels. However,EPA cannot as yet determine whetherthis is due to the refining process itself,or whether the amounts of wastereintroduced into the process are so lowas to be diluted. In particular, API's dataindicated that less than one percent ofhazardous waste (i.e., chiefly oilreclaimed from hazardous wastes) isreintroduced into the refining stream ata crude petroleum refinery. Based onthese data, they show that the increasein metals content in the final product isminimal. For example, cadmium levelsincreased from 0.11 ppm to 0.12 ppmwhile lead levels increased from 0.89ppm to 0.91 ppm. (See Table 3, p. 16 ofAPI's submission on comments onreopening of comment period dated June12, 1985.) Thus, when only a smallpercentage of waste is reintroducedback into the refining process, it doesnot appear to appreciably effect metalslevels in the final refined products.However, the Agency is concerned thatif contaminants are simply being diluted,then if there were a significant increasein the amount of hazardous waste feed,resulting fuels could be significantlycontaminated since the wastes beingreintroduced contain concentrations oftoxic metals far greater than those inmost crude oils. In fact, the Agency hassome preliminary data from itspetroleum refining industry study whichindicates that for at least some metals-arsenic and cadmium-the distillationprocess does not necessarily remove themetals from the fuels.

The Agency is considering anapproach which would indicate that ifthe amount of hazardous waste that wasreintroduced back into the petroleum

refinery was minimal (i.e., less than onepercent), the fuel produced at therefinery would be excluded (i.e., wouldnot be a solid waste). In the short termthere are certain implementationdifficulties with this idea, particularlythe difficulties of determiningcompliance for each batch since refiningis a continuous process. The Agency iscontinuing to evaluate this possibility,however.

Rather, EPA believes that more time isneeded to study these questions. Inparticular, EPA intends to examinefurther the question of whether removalactually occurs as a result of refining.This would have bearing not only on thequestion of whether regulation is

-justified, but also on the question ofwhether resulting fuels should beclassified as products or as wastes. EPAparticularly wishes to examine theextent to which these wastes caninfluence the composition of fuels fromsmaller, less sophisticated refinerieswhich may remove fewer metals fromthe wastes, and also may use a higherpercentage of wastes as feed-stocks.

At present, however, since there is nopersuasive evidence that reintroductionof these indigenous hazardous wastesinto the refining process actuallycontributes significant concentrations ofmetals to the resulting fuels, EPA isleaving in place the existing exemptionfor such fuels contained in§ 261.6(a)(3)(v). 9 See 50 FR 33542(August 20, 1985). Another factorinfluencing continuation of theexemption is that fuels produced onlyfrom virgin crude oil can have higherlevels of toxic metals than fuels partiallyproduced from these hazardouswastes. '0 See 50 FR 1695 (January 11,1985).

Thus, fuels produced from refining ofindigenous, oil-bearing hazardouswastes at a petroleum refining facilitywill continue to be exempt. By"petroleum refining facility" EPA meansto include any facility that produceshydrocarbon products (e.g. gasoline,kerosene, distillate fuel oils, residualfuel oil, etc.) from crude oil or its

'As explained in detail in the preamble to theproposed rule, this provision does not exempt thehazardous wastes before they are reintroduced intothe refining process (50 FR at 1689.

"0EPA also considers these waste-derived fuels toremain petroleum, rather than hazardoussubstances, for purposes of the comprehensiveEnvironmental Response, Compensation, andLiability Act (CERCLA). See CERCLA section101114) (excluding petroleum from definition ofhazardous substances). In light of the widespreadnature of these recycling practices, to do otherwisewould potentially read the exclusion for petroleumout of CERCLA. In addition, there is no indicationthat Congress meant for these waste-derived fuelsto be considered hazardous substances when itadded sections 3004(r) 12) and 13) to RCRA (whichprovisions indicate that such fuels remainhazardous wastes).

immediate fractionation productsthrough straight distillation of crude oilor other intermediate products (e.g., gasoils, naphtha, etc.) (This is the definitionof the Petroleum Refining StandardIndustrial Classification (SIC 2911).). Forthese hazardous wastes to beconsidered to be refined, they must beinserted into a part of the processdesigned to remove contaminants in thenormal operation of the refining process.See 50 FR 28725 (July 15, 1985). As weexplained there, this would meaninsertion of the wastes prior todistillation or catalytic cracking. (Thedistillation process is used to split thefeedstock into fractions based on thevarious boiling points of the feedstockcomponents. The data submitted by APIindicates that most of the metalsconcentrate in the heavier (high boilingpoint) fractions. Many times ihesefractions are not used for fuels butrather to produce asphalt or petroleumcoke. Therefore, there is a significantprobability of contaminant removal frommany fuel fractions if there is distillationin the process.) In addition, withoutdistillation or insertion of the wastesinto another part of the processdesigned to remove contaminants, therewill be no removal of contaminants atall, and Congress regarded someremoval as one of the prerequisites forexemption. See RCRA sections 3004(r)(2)(B) and (r)(3)(A), and 50 FR at 28725(July 15, 1985). Consequently, if a facilitytakes an oil-bearing hazardous wasteand processes it without-distillation toproduce a fuel, the resulting fuel is notcovered by this exemption and so couldbe subject to regulation. Similarly, if arefinery inserts the waste into a part ofthe process after distillation or catalyticcracking (as explained above), resultingfuels are not automatically exempt. 1

Under EPA's proposal, such fuels (i.e.,fuels derived from petroleum refiningwastes which fuels are produced byprocesses not using distillation, or thefuels resulting when petroleum refiningwaste are inserted into the refiningprocess after points at which anycontaminant removal can occur) wereclassified as hazardous waste fuel(assuming they were derived from listedrefinery wastes, or exhibit a hazardous

"Incidentally, certain used oil-based processesproduce used oil fuel from processes that usedistillation. These processes are not refiningoperations (in spite of the use of distillation)because they do not produce fuels from crude oil.Fuels from such a process thus are notautomatically exempt from regulation, but would beif they meet the specification for used oil fuel. If thistype of processor should also use oilbearingpetroleum refining hazardous waste as a feedmaterial, the resulting fuels would be exempt if theymeet the used oil fuel specification, since the "operation is comparable to those described in thefollowing paragraph in the text.

49169



waste characteristic) subject to all theregulatory requirements for.such fuels.EPA has modified this position in thefinal rule so that such fuels are notsubject to regulation if they meet thesame specification applied to fuelsproduced from processing used oil-avery similar operation. (In fact, theAgency is aware of operations thatblend petroleum refining hazardouswastes and used oil.) We have added anexemption to §261.6(a)(3) to make thispoint. This will ensure that the resultingfuels will pose no greater environmentalhazard than the virgin fuels that wouldbe burned in their place.1 2 Is EPA thusbelieves this is the proper means ofcontrolling this potential problem. If thewaste-derived fuel should exceed thefuel specification, it would be subject toall of the rules applicable to hazardouswaste fuels.-(As a hazardous waste fuelwhich is not completely derived fromused oil, the fuel is not eligible to beregulated under the special standardsreserved for used oil. See RCRA section3014. This position is consistent with theone taken in the proposed rule.)

2. Oil Recovered from PetroleumRefining Hazardous Wastes that isReturned to the Refining Process. Arelated question is the status of oil thatis recovered from hazardous wastesgenerated during normal petroleumrefining, production, or transportationpractices. The recovered oil is usuallyreturned to the refining process as asubstitute for crude oil but can also beburned directly as a fuel. Underamended § 261.3(c)(2) (see 50 FR 664(January 4, 1985) and 50 FR (August 20,1985)), such oil remains in the hazardouswaste system (if it is to be used toproduce fuel or is burned for energyrecovery). EPA solicited additionalcomment on this issue on May 13, 1985(50 FR 19956).

EPA is not yet able to amend the rulesto state under what circumstancesreclaimed oil might not be considered tobe a waste. This is largely because

21 See preamble section IV--C of Part Two for

discussion on basing the used oil fuel specificationlevels for metals on levels found in virgin 'fuel oils. Itshould be noted that the specification level for leadis higher than levels found in virgin fuel. EPA issubjecting nonexempt fuels derived from petroleumindustry wastes to the higher lead specification, atleast as an interim measure, because many of thefacilities potentially affected also process used oil.For the moment, therefore, EPA will apply all of theused oil fuel specification to the resulting fuels. TheAgency, however, Is studying this question furtherin preparing its Phase 1I rules.

13 EPA could not normally apply this logic to fuelsderived from hazardous wastes because the types ofhazardous constituents potentially present are muchmore numerous, and could be present in muchhigher concentrations, than those found in oil-bearing wastes from petroleum refining, production.and transportation (or in used oil). See 50 FR 1691n.14. Hazardous constitutents In other wastes alsowould not correspond to hazardous contaminants invirgin fuels.

available data (which are limited) showthat the oil can contain higher metalslevels than virgin fuel oil. 4 EPA thusneeds to study further the particularmeans of oil recovery from thesewastes, and the composition of theresulting oils in relation to compositionof virgin fuels.' 5

EPA is prepared, however, to continuethe existing exemption (in§ 261.6(a)(3)(vi)) for these recovered oils,and for fuels from petroleum refiningwhich are partially produced from theserecovered oils. The dfata submitted byAPI appear to show that the recoveredoil does not contribute significant levelsof metals to the refined fuels. (TheAgency is continuing to investigatewhether this is due to dilution orremoval incident to refining.) Nor doesthe Agency believe it appropriate at thistime to regulate the recovered oil priorto reintroduction to the refining processin light of the Incompletecharacterization of the oil's composition,the likelihood of similar handlingpractices for recovered oil as for crudeoil, and the possibility ofdisproportionate impact of suchregulation on off-site facilitiesrecovering oil from these wastes vis-a-vis refineries recovering oil from theirown wastes (which recovered oil isalmost invariably piped directly back tothe refining process and so would not beregulated under current EPA rules. 1 8

However, if the recovered oil is to beburned directly as a fuel, EPA hasdetermined that the oil should beregulated as a hazardous waste fuelunless the oil meets the specification forused oil fuel. The situation is exactlyanalogous to hazardous waste fuels

14 See comments from American PetroleumInstitute (Table 3, p. 16) dated June 12,1985.15 EPA solicited comment on the applicability of

the variance for closed-loop processes contained inamended § 260.31(b). It is possible that a parrallelvariance (to beapplied on an industry-wide bapis ifappropriate) for materials that are reclaimed butmust be reclaimed further before final recovery(§ 260.31(c)) is appropriate. The Agency also iscontinuing to assess the relationship of thesesituations to RCRA section 3004(r) (2) and (3). Othercomments to the Agency's notice (particularly thoseon the existing regulatory status of recovered oiland on whether there is any difference in fuels"produced from" or "containing" hazardous waste)were answered in the Agency's August 20 notice.See 50 FR 33541.,6 As noted above, hazardous wastes from which

oil is recovered are regulated until the point of oilrecovery. Distinguishing between recovered oil andlisted hazardous wastes (i.e., API Separator Sludge,Slop Oil Emulsion Solids, etc.) will not always be aneasy decision. In making this distinction, theAgency will consider a number of factors, includingwater content, solids content, and, in some cases.metals content. Thus, wastes with high water orsolids content will generally be perceived ashazardous wastes subject to regulation and not asrecovered oil. For example, if an oily waste is sentoff-site to be dewatered, this material would not beconsidered a recoverd oil (exempt from regulation)but a waste subject to regulation, if this materialwere also hazardous.

produced by processing (rather thanrefining) these oil-bearing wastes. Wehave explained above why it isappropriate to apply the fuelspecification to these waste-derivedfuels, rather than (as at proposal) toregulate them as hazardous waste fuelsregardless of composition. We also areincluding an exemption in § 261.6(a)(3)for recovered oil burned directly thatmeets the used oil fuel specification.

4. Statatory, Conditioned Exemptionof Coke Derived from IndigenousPetroleum Refinery Wastes. Thepetroleum refining industry alsoproduces coke from refinery processwastes. If the coke is produced from orcontains listed hazardous waste, thecoke produced from such wastes is ahazardous waste. The Hazardous andSolid Waste Amendments (HSWA) of1984, however, exempted fromregulation as hazardous waste fuel such-derived coke provided: (1) TheHazardous waste used to produce thecoke is indigenous to petroleum refining:(2) the coke is produced at the samefacility that generated the hazardouswaste; and (3) the coke does not exhibita characteristic of hazardous waste.(See section 3004(q)(2)(A). This statutoryexemption is codified at § 266.31(b)(2) 17

and is redesignated in today's rule as§ 266.1(a)(3)(ix).

D. Exemption of Coke and Coal TarProduced From Coal Tar DecanterSludge by the Iron and Steel Industry

EPA indicated in the proposed rulethat it would consider granting anexemption to coke produced from coaltar decanter sludge [EPA HazardousWaste K087] if commenters provideddata that demonstrate that hazardouscontaminant levels in the coke are notappreciably increased by recycling thetar sludge. (See 50 FR 1690.) Today's ruleexempts such waste-derived coke (ahazardous waste fuel even though notburned exclusively or necessarilyprimarily for energy recovery (seesection IIIA.1 above]) from regulationas hazardous waste and also excludescoal tar produced from coal tar decantersludge.

Tar decanter sludge is generatedduring the recovery of a coal tar by-product produced during the productionof coke from coal. The sludge Is listed ashazardous waste because of high levels(about 1%) of phenol and naphthalene.The sludge is frequently recycled bymixing it with coal before it is chargedto a coke oven to produce coke. Thecoke product is typically used as a fuelin steel blast furnaces. In addition, thesludge is sometimes mixed back into thecoal tar by-product which is also

17 See 50 FR 28751 (July 15,1985).


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frequently used as a fuel. Both of theseivaste-derived fuels are exempted fromtoday's rules for the reasons discussedbelow.

The American Iron and Steel Institute(AISI) and Koppers Company, Inc.provided comments explaining thecoking operation and how tar decantersludge is recycled. In particular, whenthe sludge is mixed with coal before it ischarged to the coke oven, the hazardousconstitutents in the sludge (phenol andnaphthalene) are driven off during thecoking process along with other volatilecompounds formed by the thermalcracking of organic compounds in thecoal. These volatile compounds arecondensed to recover a coal tar by-product. The tar decanter sludge isproduced during recovery of the coal tarand consists of coal tar and "inertcarbonaceous material carried over fromthe coking operation". (See AISIcomments, page 3.) AISI and Koppersprovided analyses of the waste-derivedcoke product indicating that phenol andnaphthalene were not detected in thecoke at detectable levels ranging fromless than I ppm to as high as 20 ppm.

We-conclude that phenol andnaphthalene are not present in suchcoke at levels that would posesubstantial risk to human health and theenvironment, particularly consideringthat the coke is burned as fuel and thatany trace levels of these compoundswould be readily combustible.

AISI also indicates that the sameprinciple (i.e., if recycling a waste doesnot increase levels of toxic constituentsin a waste-derived product, the productshould be exempt from regulation)should be applied to coal tar mixed withtar decanter sludge. AISI states thatwhen tar decanter sludge is mixed backinto the coal tar (after passing through aball mill to produce a uniform material),the phenol and naphthalene content ofthe coal tar by-product is notsignificantly affected. AISI argues thatcoal tar itself contains significant levelsof these hazardous compounds(typically 1% phenol and 10%naphthalene), and that tar decantersludge is simply a mixture of coal tarand carbonaceous material. Further, thesludge is mixed with the coal tar insmall volumes representing about 1% ofthe coal tar by-product. We, therefore,conclude that such recycling does notincrease levels of phenol andnapthalene in thecoal tar by:product,and the coal tar should' be exempt fromtoday's rules when burned for energyrecovery.

These exemptions apply only to thewaste-derived products, and only whenderived from tar decanter sludge. Thus,tar decanter sludge is subject to full

RCRA regulation prior to recycling, andthe exemption does not extend to cokeor coal tar derived from hazardouswaste (e.g., spent solvents) other thantar decanter sludge designated as EPAHazardous Waste K087.

E. Status of Gas Recovered fromLandfills

We are indicating that today's finalrules on hazardous waste fuels do notapply to gas recovered from landfillsthat is burned for energy recovery inboilers or industrial furnaces. Althoughit is clear that EPA has authority toregulate gaseous emissions fromhazardous wastes (see, e.g., RCRASection 3004(n)), EPA has not yetaddressed whether there are any limitson this authority, and, if there are limits,what the extent might be. Nor has theAgency received comment on thesequestions sufficient to make aconsidered decision. In light of theabsence of a record and the potentialdifficulty of the question, we are not -deciding the question in today's rule butinstead are indicating that recoveredlandfill gas is not regulated undertoday's rules.

F. Request for Exclusion of CadenceProduct 312

Several commenters requested EPA toexclude Cadence product 312 fromregulation as a hazardous waste fuel.Cadence product 312, better knownunder its former trademark name of"CHEM-FUEL" (hereinafter termed"Cadence product"), is a blend ofhazardous spent solvent recovery stillbottoms and other hydrocarbon-basedhazardous waste that is patented for usein blast furnaces by Cadence ChemicalResources, Inc. (hereinafter termed"Cadence").

Cadence product is produced bylicensees of the Cadence process whoblend spent solvents generated byothers as well as solvent recovery stillbottoms that they generate by theirreclamation activities. The licenseesensure that the blend meetsspecifications set by furnace operatorsfor parameters including heating value(10,500-14,000 Btu/lb) and chlorinecontent (1-5%). Thus, the mix cancontain up to 5% chlorinated spentsolvents, most of which arecarcinogenic. The entire mix is then sentto the blast furnace for burning.. Many commenters argued that

Cadence product is not subject toregulation as a hazardous waste fuelbecause it is not burned in the blastfurnace for energy recovery. Rather,they argue that Cadence product isburned as an ingredient in the iron-making prOcess to provide carbon,

hydrogen, and chlorine and that it onlyprovides incidental energy to thefurnace. Commenters further argue thatCadence product is a valuable productused in a major commodities market,and, hence that EPA does not haveauthority under RCRA to regulate it.They assert that it is a commercialproduct with recognized specificationsand procedures for its production.

For the reasons given below (and asprovided further in the Response toComment Background Document), weeither disagree with the commenters'claims or find them irrelevant to thequestion of whether Cadence product issubject to regulation as a hazardouswaste fuel. Specifically, we find thatCadence product is burned partially forenergy recovery because the heat energycontributed by the product to a blastfurnace is substantial and useful. Inaddition, the Cadence product has theattributes of an inherently waste-likematerial, and is the type of secondarymaterial EPA is empowered toinvestigate and regulate as may benecessary to protect human health andthe environment. Both of these pointsare discussed below.

1. Cadence Product is BurnedPartially for Energy Recovery. Cadenceargues that their product is burned in ablast furnace to provide ingredientsnecessary to drive furnace reactions andto enhance furnace operations. Inparticular, Cadence argues, and weagree, that the product has thebeneficial effect of cooling flametemperatures ifi the combustion zone ofthe furnace and of providinghydrocarbons that are converted togases needed to react with the iron oreto produce iron. Cadence also arguesthat the chlorine in the product has abeneficial effect on furnace operations,and, thus, also acts as an ingredient. s

Cadence also argues, however, that theheat energy released from burning theproduct in a blast furnace is "incidentaland unavoidable" (Cadence commentsdated March 12, 1985, p. 11), and, thus,the product is not burned for energyrecovery. We disagree with Cadence onthis point and will show below that the

18 Cadence claims that the chlorine from theproduct reacts with "alkali compounds to preventtheir deleterious action on the coke and oreparticles" and to prevent furnace wall scale. Seestatement by John Elliot dated March 11, 1985 (pp.3-4) attached to Cadence comments dated March12, 1985. Although not relevant to EPA's argumentthat Cadence product is burned partially for energyrecdvery. EPA questions whether such chlorineresults in substantial improvement In furnaceoperations and, thus, constitutes a bona fide (i.e.,necessary) ingredient given that it is not commonpractice to inject chlorine-bearing materials in ablast furnace.

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49172 Federal Register / Vol. 50, No. 230 / Friday, November 29, 1985 / Rules and Regulations I

product, in fact releases substantial,useful heat energy to a blast furnaceand, thus, is burned partially for energyrecovery within all reasonableunderstanding of the term. Although weagree that energy recovery is not thesole purpose for burning Cadenceproduct in a blast furnace, the fact thatsubstantial, useful energy is recoveredsubjects Cadence product to regulationas hazardous waste fuel. (See discussionabove in section III.A.1 where weexplain that regulation of burning forenergy recovery does not turn on thesole or primary purpose of burning.)

a. General Description of BlastFurnace Operations. Iron blast furnacesare used to smelt iron ores to producecrude iron (pig iron) suitable forsteelmaking. The iron blast furnace is alarge, shaft (vertical) reactor. Iron oresalong with coke and fluxes such aslimestone and dolomite are charged intothe top of the reactor. A large volume ofair preheated to 2000 *F (termed "hotblast") is injected into the bottom of thefurnace to burn the coke to produce theheat and reducing gas needed to drivefurnace reactions. Temperatures in thecombustion zone at the bottom of thefurnace range from 3700-3900 *F. Thecoke provides both the primary sourceof heat and the primary source of carbonused to produce the reducing gas carbonmonoxide. The carbon monoxidereduces the iron ore by (net) energyabsorbing reactions to produce pig iron.About 1000 lbs of coke are required toproduce a ton of pig iron. Gases drawnoff the top of the furnace contain excesscarbon monoxide to give the gas aheating value of about 90 Btu/ft. Aboutone third of this furnace gas is used as afuel in stoves to preheat the combustionair (i.e., the hot blast). The remainder ofthe furnace top gas is used as a fuel in aboiler plant or in other heatingapplications within the steel plant.Melted iron and liquid slag are drawnoff from the bottom of the furnace.

b. Modern Methods of Reducing CokeRates. Coke has become increasinglyexpensive since the early 1960's becauseof the rising price of metallurgical coalsneeded to produce suitable coke and therising cost of coking operations becauseof environmental 'and other concerns.Reducing coke rates is alsoadvantageous because furnaceproductivity is increased by increasingthe iron ore to coke volume ratiocharged to the furnace (i.e., coke can bereplaced by iron ore, thus increasingiron output).

The two principle methods of reducingcoke rates are to increase hot blast

temperatures and to inject fuels' 9

through tuyeres (i.e., firing nozzles) intothe combustion zone at the base of thefurnace. Both approaches generally areemployed together because fuelinjection enables operators to controlflame temperatures in the combustionzone (raised by increasing hot blasttemperatures) to optimum levels. Inaddition, the injection of hydrocarbonfuels replaces the carbon in thedisplaced coke and ensures thatappropriate furnace gas compositionconducive to iron ore reduction ismaintained. The heat energy of thehydrocarbon fuels also replaces the heatenergy of the displaced coke. Given thatcoke is both the primary fuel and theprimary source of reducing gas (carbonin the coke is converted to the reducinggas carbon monoxide), when the cokerate is decreased substantially (i.e., byincreasing hot blast temperature andusing fuel injectants) the heat energyand source of reducing gas supplied bythe displaced coke must be provided bysome other source. 20

2 1 This source isthe tuyere-injected fuels like theCadence product.

c. Although Fuel Injectants CoolFlame Temperatures, They ProvideSubstantial, Useful Heat Energy. Beforewe explain how liquid fuel injectantswith substantial heating value like No. 6fuel oil or Cadence product contributesubstantial heat energy to a blastfurnace, we will explain how they, at thesame time, actually cool flametemperatures in the combustion zone.Combustion zone temperatures aremaintained at 3700-3900 * F by thecombustion of coke in the presence ofthe 2000 * F hot blast. (i.e., preheatedcombustion air). The net reaction ofinjected fuels is endothermic (heatabsorbing) in this zone. Injected liquidfuels first undergo endothermicvaporization, then exothermiccombustion to (ideally) carbon dioxideand water where sensible heat isreleased, and finally, endothermicdissociation 22 and reduction in the

9 Cadence's terminology notwithstanding,

tuyere-injected materials with substantial heatingvalue are invariably termed fuels in the technicalliterature.

2a "The same atoms of carbon are involved inreactions that generate the heat for the furnace asare involved as the reducing agent (as carbonmonoxide) to convert the ore to metallic iron."Statement by John Elliot in reference to his reviewof an EPA internal, deliberative, draft document.Mr. Elliot's comments are contained incorrespondence from counsel to Cadence, toWinston Porter, Assistant Administrator for theOffice of Solid Waste and Emergency Response,dated October 31, 1985. (Release of this internal,post comment period EPA document was notintended.)

21 Steam had been a popular (nonfuel) injectant inthe 1960's because it was relatively cheap and

presence of excess carbon provided bythe coke to form the reducing gasescarbon monoxide and hydrogen.

Cadence argues that these liquid fuelinjectants are not burned for energyrecovery because tuyere-injected fuelsundergo net endothermic (i.e., heat-absorbing) reactions in the combustionzone which reactions actually coolflame temperatures, and that any heatenergy released from subsequentreactions is incidental and unavoidable.Cadence's argument ignores the fact thatfuel injectants first behave as bona fidefuels by combusting to (ideally) carbondioxide and water. The amount ofsensible heat released during thiscombustion phase is measured by a fuelinjectant's heating value in Btu/lb.Immediately after the fuel is combusted,the combustion products act asingredients to furnace reactions by beingconverted to the reducing gases carbonmonoxide and hydrogen duringendothermic reactions. The fact that fuelinjectants release substantial heatenergy while providing hydrocarbons forreactions enables operators to reducecoke rates. 23 (As noted above, coke isboth the primary fuel and primarysource of carbon to the blast furnace.)

The heat energy released fromsubsequent (i.e., outside the combustionzone) reactions of fuel injectanthydrocarbons is in fact substantial,intentional, and useful contrary toCadence's claim that it is incidental andunavoidable. As discussed above,furnace top gas is used as fuel in stovesto heat the hot blast, in a boiler plant, orin other heating applications within thesteel plant. The excess reducing gascontained in the top gas that was notused to reduce the iron ore gives the topgas substantial heating value. Theexcess reducing gas is contributed by

readily available, and it introduced hydrogen forreduction. [Hydrogen supplements carbon monoxideas a reducing gas in the furnace.) The use of steamas an injectant, however, consumes coke in thecombustion zone thereby reducing the overalleffectiveness of any increase in blast temperature.Fuel oil injection, however, not only acts as acoolant, allowing the use of higher blasttemperatures, but also replaces a portion of thecoke. Source: "Fuel-Oil Injection Into BlastFurnaces: A Literature Review", Journal of theInstitute of Fuel, vol. 49, n 399, June 1976, p. 73.

22 At the 3700-3900 * F temperatures in the

combustion zone, a fraction of the carbon dioxideand water vapor is thermally dissociated to formcarbon monoxide, hydrogen, and oxygen. SeeBabcock and Wilcox, Steam, Its Generation andUse, 1978, p. 6-7.

1"lnjection of hydrocarbons through the tuyeresof a blast furnace is carried out (a) to replace cokeby cheaper sources of fuel and reductions; (b) toincrease (by lowering the proportion of coke In thecharge) the amount or iron ore In the furnace shaft."Source: Peacey, I.G. and Davenport, W.G., The IronBlast Furnace, p. 140, included in commentssubmitted by Cadence on October 25, 1985.


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the coke and fuel injectants, rouproportion to the amount ofhydrocarbons each provides tofurnace. As shown in the table bfurnace top gas is a substantialsource in that only about one-ththe fuel gas is used to heat the hwhile two-thirds is available foruses.

Empirical demonstration thatfuel injectants supplies substantenergy to blast furnaces is provistandard literature references. Tbelow shows an energy balancemodern 28-foot diameter hearthoperating at a hot blast tempera2000 " F with a coke rate of 870:hot metal (i.e., pig iron] and usiroil injected at a rate of 170 lb/tometal. The fuel injectant provide22% of the heat input to the furnamout of coke needed to supplyenergy (and reductants) to a furproducing 4,000 tons per day ofmetal would be more than 300 tday. Thus, it is clear that fuel inprovide substantial, useful heatfurnace.

BLAST FURNACE ENERGY BAA

Energy input.Calorfic value of coke .......................................Calorific value of tuyere-injected fuel oil

Total .............................................................Energy output:

Calorific value of top gas .............................Top gas consumed in heating blast air ..........Net top gas energy available for other uses.Heat for chemical reactions, heat loss, and

sensible heat of hot metal and slag ...........

Total .. .................................... ............

Energy obtained from coke and fuel oil (iexcess carbon monoxide and hydrogen) andcled as hot blast.

Source: Based on data in Kirk-Othmer EnChemical Technology. v 13, p. 742. (t981).

Injectants that have no heatilike steam, or minimal heating iprovide no or minimal heat enefurnace and, thus, are not consibe fuel injectants. Thus, injectano or minimal heating value areconsidered to be burned for enerecovery.

Cadence's argument in fact pmuch. It is clear that net furnacreactions are endothermic-heathe coke and fuel injectants is rto drive reactions that reduce irmetallic iron. Under Cadence'sa material involved in an endotreaction is not a fuel irrespectivheating value, the coke would rfuel. Yet it is the primary fuel sthe furnace. The fact is that bot

24 The Agency always considers a maa minimum heating value of 5,000-8,000a bona fide fuel. See section !1 in the tex

ghly in and fuel injectants like the Cadenceproduct serve a dual purpose of

the providing substantial needed energy andBelow, reductants.fuel d. Use of Cadence Product as a Fuelird of Injectant. Cadence product is blendedot blast with No. 6 fuel oil in a volume ratio ofother about 50/50 for use as a fuel injectant.

Cadence product is a fuel injectant,burning rather than a nonfuel injectant (e.g.,tial steam, because it has a heating valueded by by specification of 10,500 to 14,000 Btu/'he table lb, which is comparable to the heatingfor a value of coke and coal. Cadencefurnace product, like other liquid fuel injectants,lture of cools flame temperatures in thelb/ton of combustion zone. It also providesig fuel hydrocarbons for conversion to thein of hot reducing gases carbon monoxide andes about hydrogen, provides substantial, usefulace. The heat energy to the blast furnace, andthis thus enables operators to reduce the

nace coke rate. 25

hot In addition, we note that Cadenceons per itself has informed the Agency, thejectants Congress, and the public on manyto the occasions that Cadence product is

burned by blast furnaces (at leastiNCE partially as a fuel. Cadence's President

Mr. Reese so stated in testimony toMillions of Congress. Cadence's comments to theftu t toat Agency in the definition of solid wasterulemaking (Cadence comments dated

August 1, 1983, p. 16) refer to the product10.9 as "CHEM-FUEL" and stressed this

3.11 point:14.0 ... CHEM-FUEL, like coke, is both a raw

'(5.2) material and an energy source when used in'(1.8) the blast furnace. Its principal components3.5 are hydrocarbons which provide the

10.5 essential carbon and hydrogen for orereduction and energy generation. (Emphasis

14.0 original)n the form of Cadence's licensees also stressed thispartially racy- point when dealing with EPA'scyclopedia of enforcement officials, making the

emphatic point that high Btu hazardousig value wastes were utilized so that the burningvalue, 24 legitimately recovered energy.rgy to the Cadence's patent application states thatdered to the material is used to supportnts with combustion in blast furnaces. Even innot the present rulemaking, a number of

ergy Cadence's suppliers indicated that theCadence product (to which their

roves too hazardous wastes contributed) "is usede as a fuel by steel producers ....at from (Comments of Detroit Edison, March 11,'equired 1985; to the same effect, see commentsron ore to 37, 73, and 87 to this rulemaking.)logic that Indeed, the Cadence material washermic marketed for years under the tradenameve of its "CHEM-FUEL". The Agency thusot bea

ource to 21 "There is no question that Cadence Product 312:h coke adds to the sensible heat of the heat and material

balance of the process and that energy isrecovered." Source: Nickel, Melvin E., "Comments

iterial with on the Injection of Auxiliary Fuels in the Tuyeres ofBtu/lb to be the Iron Blast Furnace". September 30, 1985, p. 4;t. (unpublished report).

believes that the company's ownpronouncements, as well as those of itslicensees and customers, indicatestrongly that Cadence product is burned(partially) for energy recpvery.

2. Cadence Product Is the Type ofRecycled Material Over Which EPA has

'Jurisdiction. Stepping back for themoment from the intricacies of blastfurnace operations, it is apparent to theAgency that the Cadence product is thetype of material EPA is empowered toevaluate and regulate if necessary toprotect human health and theenvironment due to the nature of theCadence'product, its similarity to otherwaste-derived fuels concededly withinEPA's authority, and the nature of theend recycling practice. Cadence productis produced by Cadence's li censeesessentially by the simple blending ofhazardous solvent still-bottoms andother hydrocarbon-based hazardouswastes to meet a specification forparameters of concern to blast furnaceoperators, including heating value andchlorine content. Some of the hazardouswastes are collected from generatorswhile other hazardous wastes (e.g.,solvent recovery still-bottoms) aregenerated by the licensee. Thespecification limits heating value ofCadence product to 10,500-14,000 Btu/lband chlorine content to 1-5%. Thus,Cadence product is similar (or,according to companies in the blendingbusiness, identical) in production andcontent to hazardous waste fuels burnedin other industrial furnaces like cementkilns.

Cadence claims that:the waste-derived materials used tomanufacture Cadence Product 312 are notsuitable for direct use in blast furnaces; theyfirst must be analyzed and then fullyprocessed to finished goods specifications ina Cadence manufacturing facility. Theproduction of Cadence Product 312 iscompletely analogous to many well-recognized manufacturing operations.These unsupported assertions overstate.the sophistication of the Cadence"manufacturing process". In fact, weunderstand that, other than simpleblending, the only processing that issometimes used at facilities thatproduce Cadence product is thedistillation of spent solvents to recoversolvent. This process, wholly unrelatedto the "manufacture" of Cadenceproduct, generates still bottoms that areblended with other petroleum-basedwastes to produce the product. AlthoughCadence licensees conduct analyses ofwaste feedstocks and blended productto ensure conformance withspecifications, other waste blenders thatmarket hazardous waste fuels (e.g., foruse in cement kilns) also conductanalyses of feedstocks and fuel product

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to meet a specification. Thus,.theblending of wastes to produce Cadenceproduct is similar to other waste-derivedfuel operations.

Cadence's operations thus raise thetroubling question of what degree ofprocessing can transform a waste into aproduct. The Cadence process involvesrelatively minimal processing. Nosignificant resources are recovered fromthe Cadence product until it actually isburned. The Agency always has beenleery of the notion that minimalprocessing of hazardous wastes prior torecovery of resources from them (in thiscase, energy) transforms wastes intoproducts. It was for this reason that EPAamended § 261.3(c) (2) on January 4,1985 to state that materials reclaimedfrom hazardous wastes remainhazardous wastes when burned forenergy recovery, and indicated in thesame rule that hazardous wastes thatare partially but not fully reclaimedremain hazardous wastes (see§ 260.30(c).) These provisions illustratethe general principle that minimalprocessing before final recovery doesnot ordinarily transform a hazardouswaste into a product. Cadence's processappears to raise analogous problems ofusing a relatively minimal processingstep as a means of insulating hazardouswaste recycling from RCRA jurisdiction.When this fact is coupled with the factthat the form of end recycling of theCadence product closely resemblesincineration (in the sense that hazardouswastes are burned by controlled flamecombustion), it is apparent to theAgency that RCRA jurisdiction over theburning exists.

Even more fundamentally, EPA doesnot believe that the question ofjurisdiction over the Cadence product(or other similar waste-derivedmaterials) need turn narrowly on thequestion of whether it is burnedpartially for energy recovery. Cadenceproduct is composed of toxic chlorinatedsolvent still bottoms which (on anationwide basis) are typically disposedof or incinerated. These still bottoms arenot similar to raw materials customarilyused in the iron-making process (i.e.,toxic chlorinated solvents are not atypical feed or energy source to the iron-making process). The recycling practice,as well as prior transportation andstorage has the potential to causesubstantial harm to human health andthe environment if conductedimproperly. 26

26 Preliminary results of EPA's emissions test fora blast furnace burning Cadence material indicatethat these devices may be able to destroy 99.99% oftoxic organic constituents in the material. Ifconfirmed, this means that these devices may be

EPA believes that recycling ofhazardous secondary materials that areso different from the raw materialscustomarily utilized in the process is aprototypical situation it is empowered tocontrol under RCRA Subtitle C. This isparticularly true in this case because therecycling involves burning (viz.controlled flame combustion), and soresembles incineration. The recyclingactivity also is not part of a continuousindustrial process, but rather involvesunrelated parties and processes (i.e., thehazardous waste generators whogenerate spent solvents and hazardousstill bottoms, intervening processors(who not only process but addadditional hazardous still bottoms to themixture), and the steel mill), In additionto involving secondary materialsnormally unrelated to.the ironmakingprocess. For these reasons, EPA isprepared to exercise its authority todesignate Cadence product, and allsimilar materials, as solid wastespursuant to § 261.2(d) when recycled viacontrolled thermal combustion inprocesses not customarily utilizingchlorinated toxicants as a fuel or rawmaterial should this ever provenecessary. In light of the Agency'sjudgment that Cadence product isburned partially for energy recovery andso is subject to regulation as hazardouswaste fuel, it is unnecessary to exercisethis authority at the present time, 27

able to safely burn toxic organic wastes underappropriate conditions. This does not mean,however, that these devices could always beexpected to achieve 99.99% destruction efficiency,absent regulatory controls on operating conditions. -Storage of Cadence Product also has the potential tocause substantial harm. As discussed in the text insection 11 of Part Four, the fact that a hazardouswaste fuel is being stored as a commodity isinsufficient to prevent substantial risk.

27 There is another point in Cadence'spresentation that is deeply troubling to the Agency.Cadence is arguing that when they blend andprocess chlorinated hazardous wastes, the resultingprocessed material is a product excluded fromRCRA so long as there are specifications (such asfor total chlorine) on the end "product" and so longas all components of that "product" are put tobeneficial use when burned. This argument applieswith equal force if the chlorinated hazardouswastes being processed were dioxin orchlorophenoxy pesticide wastes (rather thancarcinogenic solvents): the blended product wouldstill be used as a reducing agent in iron-making.toxic organic compounds would providehydrocarbons to the iron-making process, andchlorine would remove accumulated wall scalewithin the furnace. Although these types ofhazardous wastes are not blended into Cadenceproduct to our knowledge, the point is that theirargument does not preclude such use. Cadence'sargument would in fact be identical. It thus seems tothe Agency that Cadence's argument proves far toomuch, and seeks to preclude EPA from exercisingauthority well within the Agency's purview.

3. Conclusion. In closing on this issue,EPA stressesthat it is not finding thatCadence is engaging in an unsafe orundesirable recycling practice. Quite theopposite-Cadence has found a meansof utilizing resources in wastes, coupledwith destruction of the wastes toxicconstituents, that appears to beenvironmentally beneficial. What EPA isfinding in this proceeding is that theAgency is empowered-that is, has thejurisdiction-to evaluate the potentialrisks posed by this recycling activityand to prescribe regulatory standards ifthe Cadence product, managedimproperly (see RCRA section 1004(5)),could pose a substantial hazard tohuman health and the environment. Thisis how EPA always has read itsoverriding statutory duty to regulatehazardous waste management "as maybe necessary to protect human healthand the environment." It may be thatdue to the mechanics of blast furnaceoperation, substantially tailored (oreven no standards) are needed to ensurewaste destruction. EPA is investigatingthis question as part of its Phase IIrulemaking on burning hazardouswastes. EPA is asserting here that it hasjurisdiction to make this evaluation.

IV. Used Oil Subject to Regulation

A. Definition of Used Oil Fuel

These rules apply to used oil, andfuels produced by processing, blending,or other treatment of used oil, that areburned for energy recovery in a boiler orindustrial furnace that is not operatingunder RCRA standards for hazardouswaste incinerators. "Used oil" meansany oil that has been refined from crudeoil, used, and, as a result of such use,contaminated by physical or chemicalimpurities. See RCRA section 1004(36).2 s

Used oils include the following: (1)Spent automotive lubricating oils(including car and truck engine oil),transmission fluid, brake fluid, and off-road engine oil; (2] spent industrial oils,including compressor, turbine, andbearing oils, hydraulic oils,metalworking oils, gear oils, electricaloils, refrigerator oils, and railroaddrainings; and (3) spent industrialprocess oils.

These rules apply only to used oil andnot necessarily to "oily waste". Oilywastes, such as bottom clean-out wastefrom virgin fuel oil storage tanks, orvirgin fuel oil spill clean-up, are not usedoils because the oil was never "used"for its intended purpose. Thus, oilywaste is not subject to these rules

28 The Agency will soon be proposing to modifythe definition of used oil in the Used Oil Listing andManagement Standards rulemaking.


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(provided it is not mixed with used oiland that it is not a hazardous waste).

Today's rule marks the first.time theAgency has used the regulatoryauthorities created by the Used OilRecycling Act of 1980 (UORA). (UORAis codified substantially as sections 1004(36)-(39) and 3014 of RCRA.) UORArequires the Agency to establish"performance standards and otherrequirements as may be necessary toprotect public health and theenvironment from hazards associatedwith recycled oil." See RCRA section3014(a). Burning used oil for energyrecovery-the subject of this rule-is anexample of recycling. See RCRA, section1004 (37).

The regulation of used oil fuels raisesthe legal question of how the provisionsof UORA are to be integrated with otherRCRA provisions. As we stated atproposal, EPA believes that UORAauthorities may be used independent of,or as a supplement to, Subtitle C ofRCRA. If recycled used oil (called"recycled oil" under RCRA section 1004(37)) is not also a hazardous waste, it issubject to regulation under theprovisions of section 3014 rather thansections 3001-3006, 3008, and 3010. Asnoted at proposal, this has significantimplications. For example, permits arenot necessarily required to managerecycled oil, the criminal enforcementprovisions of section 3008(d) do notapply, and the regulatory programcannot be delegated to the States undersection 3006. (See Part Five of thispreamble for a discussion of the impactof this rule on authorization of Stateprograms.)

If recycled oil is also a hazardouswaste, many of the Subtitle Cregulations for other hazardous wastes(40 CFR Parts 262-266) may apply.Section 3014, as amended by theHazardous and Solid WasteAmendments of 1984, provides detailedguidance on regulating recycled oil thatis a hazardous waste.

Today's rule establishes aspecification for used oil that issubstantially excluded fromregulation 29 and that may be burnedwithout restriction in nonindustrialboilers or any other boiler or industrialfurnace.Used oil exceeding any of thespecification levels for toxic metals,flash point, or total halogens is termed"off-specification used oil" and issubject to regulatory controls. The

29 The person who first claims used oil burned forenergy recovery meets the specification is subject tonotification, used oil analysis, and recordkeepingrequirements. In addition, he must keep records ofthe name and address of the facility receiving eachshipment, the date of delivery, and quantitydelivered. See § 260.43(b) (1) and (6).

specification and issues pertaining toimplementing the specification arediscussed below.

Of major importance is how todistinguish between used oil andhazardous waste given that used oil hasbeen frequently found to containhazardous halogenated spent solventsand given that hazardous waste fuel isregulated differently than used oil under"today's rule (as well as under the RCRAstatutory scheme). For example,hazardous waste fuel is not subject tothe specification and so may not beburned in nonindustrial boilers (unlessthe boiler operates under RCRAhazardous waste incinerator standards),and hazardous waste fuel is subjectunder today's rules to storagecontrols.30

Issues pertaining to distinguishingbetween used oil and hazardous wasteare discussed below.

B. Distinguishing Between Used Oil andHazardous Wastes

A number of commenters took issuewith EPA's discussion of how it intendsto distinguish between hazardous wasteand used oil (or if used oil is listed as ahazardous waste, between used oil andother hazardous wastes). See 50 FR1690-1693. EPA indicated that there aresituations where it is difficult to tell if awaste is used oil or a hazardous waste.The difficulty is in determining Whethera used oil was mixed with a hazardouswaste, or whether the oil becamecontaminated during its (the oil's) use.The legislative history of the Used OilRecycling Act indicates clearly thatused oil that is contaminated during useis to be classified as used oil and, ifrecycled, be subject to regulation undersection 3014. See H.R. Rep. No. 96-1415at 6.

We noted in the proposed rule that theAgency is delegated discretion indetermining how to classify thesesituations, and set out the generalprinciples that will guide the Agency'sexercise of discretion. These are: (1)Where possible, clear, objective testsshould be used to classify hazardouswaste and used oil; (2) the Agencyshould not adopt a scheme wherebymost used oil is classified as ahazardous waste ineligible forregulation under the Section 3014standards; and (3) any objective testshould ensure that massivelyadulterated used oils are classified ashazardous waste. See 50 FR 1691.

30 As noted at proposal, a hazardous waste fuelspecification is not a feasible option because of thehundreds of hazardous constituents that would haveto be addressed and the difficulties of analyzing forall of these constituents.

The Agency adheres to this analysisin today's final rule, and indeed, thisposition had the support of most of thecommenters. Several commentersargued, however, that EPA's approachshowed an unwarranted bias againstregulating used oil as hazardous waste,and so would lead to situations whereused oil is not regulated adequately toprotect human health and theenvironment because most of the RCRASubtitle C standards would not apply.One commenter even went so far as tosuggest that the Agency was misreadingits legal mandate under the HSWA toregulate used oil as a hazardous waste.

These commenters misapprehend boththe law and EPA's stated approach. Inthe first place, RCRA as amended drawsclear distinctions between hazardouswaste and used oil. The statute containsa separate provision dealing with used

* oil as a distinct class and authorizesseparate standards for its management.(See RCRA section 3014.) Nor does thestatutory directive that EPA decidewhether to list used oil as a hazardouswaste (RCRA section 3014(b)) obliteratethis distinction. Even if EPA lists usedoil as a hazardous waste (and theAgency intends to propose such actionlater this year), used oil would still besubject to regulation under differentstandards than apply to other hazardouswastes. See RCRA sections 3004(a) and3014(c), (d). Thus, it remains necessaryto distinguish between used oil andother hazardous waste.

It also is clear that EPA has discretionon how to make these distinctions. Thelegislative history to the 1984amendments is explicit on this point.See S. Rep. No. 9-284, 98th Cong. 1stSess. at 36, 38; see also the ConferenceReport, H. Rep. No. 98-1133, 98th Cong.2d Sess., which speaks of used oilcontaminated with hazardous waste asused oil to be regulated under Section3014 (i.e., as a used oil, not as ahazardous waste).3 1

EPA takes sharp issue with thecommenters' assumption that itsproposed (and now final) exercise ofdiscretion in classifying used oil leads toa reduction in environmental protection.With respect to buring used oil, the rule.promulgated today establishes a usedoil fuel specification that regulates asnecessary to protect human health andthe environment, within the meaning ofRCRA section 3014, when the used oil isburned in nonindustrial boilers. (See

' Specific comments that EPA exercised itsdiscretion improperly with regard to used oilcontaining halogenated hazardous substances andused oil from small quantity generators areaddressed in the preamble sections dealing withthese issues.

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section IV.C above.) With respect toother management standards forrecycled used oil, EPA will soon beproposing cradle to grave managementstandards for such oil consistent withSection 3014. EPA is not doing so in thisrulemaking because the Agency wishesto avoid piecemeal regulation of theused oil management communitywherever possible. 32 The commentersare incorrect, however, that thistemporary deferral will lead to anultimate reduction in environmentalprotection.

We discuss below how we apply theprinciples for distinguishing. betweenused oil and hazardous waste to: Usedoil containing halogenated wastes; usedoil containing hazardous wastegenerated by small quantity generators;and used oil that exhibits acharacteristic of hazardous waste.

1. Used Oil Containing HalogenatedWastes. Today's rule, like the proposedrule, reiterates the principle found in§ 261.3(a)(2) of the existing regulationsthat a hazardous waste mixed with asolid waste is a hazardous waste. Thus,under this rule, mixtures of hazardouswaste and used oil ordinarily areclassified as hazardous waste. It is notalways possible, however, to prove-oreven to be sure-that such mixing hasoccurred, particularly when no one hasobserved the act of mixing. Used oilcontaining small amounts of hazardoushalogenated compounds is an examplewhere there may be uncertainty.

Since hazardous halogenatedcompounds-many of them hazardouswaste-are frequently found in used oil(see Table 1 in the proposal (50 FR1686)), the Agency believes (andvirtually all commenters agreed) that asimple, objective test is needed todetermine when used oil has beenmixed with hazardous spenthalogenated solvents (or otherhalogenated hazardous waste) in orderto avoid case-by-case confusion as towhen mixing has occurred, and to aid inconsistent enforcement of the regulation.To this end, EPA proposed, and isadopting today a rebuttable-presumption as to when mixing withhazardous wastes has occurred.

a. The Rebuttable Presumption: TheStandard and Means of Rebuttal.Today's rule establishes a rebuttablepresumption that used oil containingmore than 1,000 ppm total halogens has

32 EPA is adopting the used oil fuel specificationfor nonindustrial boilers in advance of other rulesfor recycled oil to meet the most pressingenvironmental concern with respect to recycled oilmanagement, and because the prohibitions onhazardous waste burning would have little practical.significance unless coupled with controls on burningrecycled oils.

been mixed with hazardous spenthalogenated solvents (i.e., EPAHazardous Waste No's. F001 and F002)or other haziardous halogenated wastesand, therefore, is a hazardous wasteunder provision of the "mixture rule" of40 CFR 261.3 (i.e., a mixture of a listedhazardous waste and other material is ahazardous waste unless delisted underprovisions of 40 CFR 260.20).

In response to comment that EPAclarify the available means of rebuttingthis presumption, the final rule statesthat the presumption can be rebutted bydemonstrating to enforcement officialsthat the oil is not mixed with hazardouswaste. One such approach in makingthis demonstration is to show that theused oil does not contain significantlevels of halogenated hazardousconstituents. See § 266.40(c). Thus, thepresumption can be rebuttedsuccessfully even if some hazardoushalogenated compounds are present inthe oil. We believe that oil containingless than on the order of 100 ppm of anyindividual hazardous halogenatedcompound listed as a hazardous spentsolvent (i.e., EPA Hazardous WasteNumbers FOO and F002) should not bepresumed to be mixed with spentsolvent. As the Agency stated atproposal (50 FR 1691) and as confirmedby a number of comments, -when thesecompounds are present at such lowlevels, it is difficult or impossible topinpoint the source of thecontamination. Such low levels found atthe generator's site certainly do notindicate deliberate mixing withsolvents.33 Both used oil and hazardoushalogenated solvents are frequentlygenerated by the same facility, andsome incidental contamination isprobably inevitable. It should be notedthat burning used oil with such levels ofsolvent will not pose significant riskfrom emissions of either incompletelyburned solvents or hydrochloric acid.3 4

Presence' of a compound listed as ahazardous halogenated spent solvent atlevels between 100 and 1000 ppm mayindicate mixing with spent solventdepending on circumstances specific toindividual cases. For example, if theused oil in question is fronm a large tankat a processing facility where oil from anumber of generators has been mixed,

33 For example, if 100 ppm of a solvent is detectedin 200 gallons of used oil (the quantity frequentlygenerated over a month by a service station, prior topick up by a collector), only 0.002 gallons, or 0.25ounces of solvent have been mixed. Such smallamounts could not possibly represent the monthlyquantity of spent solvent from degreasingoperations at the service station.

14 PEDCO, Environmental Inc., A RiskAssessment of Waste Oil Burning in Boilers andSpace Heaters, August 1984, pp. 5-1 through 5-8.

even low solvent levels may beindicative of adulterative mixing. Usedoil mixed with significant levels ofsolvent by a generator may have beendiluted with unadulterated oil fromother generators, or spent solventcollected from a generator may havebeen mixed (illegally) into the used oilby a collector or the processor.

Mixing of used oil with nonsolventhalogenated hazardous waste, however,could be indicated by the presence ofhazardous constituents at levels lowerthan 100 ppm. For example, if a waste isnot typically cogenerated with used oil,incidental contamination is not likely.Other factors include whether thehazardous constituents could be addedor formed during use of the oil. Thus, if aused oil contains greater than 1000 ppmtotal halogens, and some of the halogensare (for example) chlorophenoxypesticides, the presumption of mixingwould not necessarily be overcome byshowing that the pesticide is present atlevels less than 100 ppm.

b. Explanation of Changes in theRebuttqble Presumption BetweenProposal and Final Rule. The rebuttablepresumption of mixing hazardoushalogenated solvents with used oilpromulgated today differs from theproposal in two respects: total halogensrather than total chlorine is used as thebasic indicator, and the indicator levelhas been lowered from 4000 ppm to 1000ppm. Total halogens are used as theindicator because commenters notedthat common chlorine tests actuallymeasure total halogens reported as totalchlorine. The change, thus, is essentiallya technical correction because the usedoil analyses available to the Agency andused to support the rule alreadyreported presence of total halogens astotal chlorine.

We lowered the indicator level from4000 ppm to 1000 ppm because manycommenters argued that the higher level-would allow and even encouragesignificant mixing of hazardoushalogenated solvents with used oil(contravening one of EPA's enumeratedprinciples). More importantly, this levelcorrelates sufficiently well withpresence of significant levels ofhazardous halogenated spent solventsas to justify use of a presumption, asdiscussed below. The 1000 ppm totalhalogen level was in fact recommendedby a number of commenters, includingthe State of New York which hassubstantial experience with this issue.

We have reviewed the more thaneleven hundred used oil analysesavailable in the record for the proposedrule and the additional data submittedby commenters and concluded that used


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oil will generally contain less than 1000ppm of total halogens unless it is mixedwith hazardous chlorinated solvents oris metalworking oil containingchlorinated additives.35 Eighty-sevenpercent (87%) of the samples from awide range of sources-generators,processors, distributors, burners-thatcontain more than 1000 ppm totalchlorine (halogens) also containedsignificant levels of hazardouschlorinated solvents (e.g., more than 100ppm of any particular solvent). 3

1. 37

Some of the 13% of the samplescontaining more than 1000 ppm totalchlorine but no chlorinated solvents areknown to be metal-working oils (eitherbecause they were obtained fromgenerators known to be involved inmetal-working or because of theirextremely high chlorine content)containing nonhazardous chlorinatedadditives. Others may be mixed withthese highly chlorinated metalworkingoils such that chlorine levels are greaterthan 1000 ppm but lower than typical formetalworking oils, or the chlorine maybe from some other source.SSBased on

31 Some metalworking oils contain extreme

pressure additives that are nonhazardous highlychlorinated paraffinic compounds. Thus, usedmetalworking oils may contain halogen levelshigher than 1000 ppm even though they are notmixed with hazardous halogenated solvents. Seediscussion in text regarding application of therebuttable presumption to these metalworking oils.

3 Based on review of analyses in FranklinAssociates Ltd.. Composition of Used Oil, AppendixA. Of the more than 1100 used oil analyses, 311samples contained more than 1000 ppm of halogensand were analyzed for halogenated solvents. Eighty-seven percent of those samples containedsignificant levels of solvent. We presumed thatsamples with high lead levels, no halogenatedsolvents, and low halogen levels (but more than1000 ppm of halogens) would contain less than 1000ppm halogens when lead is phased out of gasoline,because chlorine or bromine is added to gasolineonly to scavenge lead from engine components.Thus, halogen levels will fall as lead is phased outof gasoline. Thus, 26 such samples are excludedfrom the samples containing more than 1000 ppm ofhalogens.

"7The Texas Air Control Board submitted

comments on the proposed rulemaking that includeda report entitled, Analysis of Fuel Oils and WasteOils for Sulfur, Organochlorides, and Lead. August1984. Data in Table V1 of that report indicate that77% of used oils (27 of 35 samples) containing morethan 1000 ppm total halogens also containedsignificant levels of hazardous halogenatedsolvents.

3 8Although used oil samples have been found tocontain hazardous halogenated compounds listed inAppendix Vill of Part 261 (e.g., dichloroethane,tetrachloroethane) that are are not listed as F001 orF002 hazardous halogenated solvents, thesesamples invariably also contain significant levels ofthe F001 or F002 solvents. See Table VI of the TexasAir Control Board report referenced in note 27, anddata in GCA Corporation. The Fate of Hazardousand Nonhazardous Wastes in Used Oil Disposaland Recycling, October 1983, p. 43.

these data showing a high percentage ofcorrelation, and on the supportingcomments, it is EPA's opinion that the1000 ppm total halogen level is a validindicator for presence of mixing withlisted halogenated hazardous waste.

EPA expressed concern at proposalthat certain used oils might containlevels of inorganic halogens greater than1000'ppm, and therefore, that a higherlevel was appropriate for thepresumption. The Agency no longerbelieves this to be a valid concern. TheAgency stated at proposal that used oil,particularly crankcase oil from leadedgasoline engines, could occasionallycontain up to 3000 ppm inorganicchlorine (or bromine) levels 39. 40 andthat the higher level of 4000 ppm wouldindicate mixing with chlorinatedsolvents. Chlorine or bromine are addedto leaded gasoline to "scavenge" leadfrom engine components and, thus,reduce wear and improve engineperformance. The chlorine or bromineform inorganic lead compounds, some ofwhich end up in crankcase oil fromengine blow-by. Commenters suggested,however, that little used oil has levels ofthese inorganic halogens exceeding 1000ppm. As further corroboration, EPA'sown data on used oil sampled atgenerators' sites (including bothcrankcase and industrial oil, butexcluding highly chlorinatedmetalworking oil or oil adulterated withhazardous halogenated solvents)indicates that the oil contained less than1000 ppm total halogens in 32 of 36cases. 41

.42 In addition, as lead is phased

out of gasoline, chlorine and bromineadditives also will be lowered, thusreducing inorganic halogen levels. EPAconsequently believes that very fewused oils will trip the presumption due

I NBS Technical Note 1130-Test Procedures forRecycled Oil Used as Burner Fuel, August 1980,p. 51.

"0

Franklin Associates, Ltd.. Composition of UsedOil, Appendix A.

"1 Based on review of used oil analyses inFranklin Associates, Ltd., Composition of Used Oil,Appendix A. We should note that 3 crankcase oilsamples contained 1000 to 1500 ppm total halogens(and no halogenated solvents). We presume thehalogens were attributable to leaded gasolineadditives because those oils had high lead levels-1000 to 3000 ppm. We presume that those oils wouldin the future contain less than 1000 ppm totalhalogens as lead is phased out of gasoline(beginning July 1985), and, concurrently andnecessarily, halogen gasoline additives are alsoreduced. Therefore, we believe it is reasonable toexclude these 3 samples form the total halogens sothat 35 of 36 unadulterated, nonmetalworkingsamples contianing more than 100 ppm totalhalogens.

42Data in GCA Corporation, The Fate ofHazardous and Nonhazardous Wastes in Used OilDisposal and Recycling, October 1983, p. 43, alsoindicate that used oil generally contains less than1000 pm total halogens.

to inorganic halogen content of over1000 ppm. Moreover, as just discussed,there is a strong correlation betweenhalogen levels of 1000 ppm and highlevels of hazardous halogenatedsolvents, even in EPA's present database which does not reflect the leadphasedown.

Nor do most used oils contain highlevels of organic halogens without alsocontaining high levels of halogenatedspent solvents. The only used oils thatmight are metalworking oils, whichcomprise a small segment of the used oilfuel market. See 50 FR at 1692 (January11, 1985). Metalworking oils can containextreme pressure additives that arenonhazardous chlorinated paraffiniccompounds that can result in organicchlorine levels of several percent. Theseorganic chlorinated compounds are nottoxic (i.e., they are not listed asconstituents of hazardous waste inAppendix VIII of Part 261), and, thus, thehazard from incomplete combustion ofthese compounds is not of concern.43

The issue here is application of thepresumption to these oils.

We believe that the rebuttablepresumption of mixing halogenatedsolvents with used oil should still applyto persons who manage highlychlorinated metalworking oils. In thefirst place, these oils can still be mixedwith hazardous halogenated solvents (asconfirmed both by data and bycomments on the proposed rule).Metalworking operations often use largequantities of degreasing solvents.Second, metalworking oils also can beadulterated with halogenated hazardouswastes after leaving the site ofgeneration. Finally, persons managingused metalworking oils that are notadulterated should have readilyavailable means of rebutting thepresumption.

44

c. Additional Response to Commenton the Rebuttable Presumption. (1)Basis for Not Setting the HalogenIndicator Level on Risk. Somecommenters maintained that thechlorine level for the presumption ofmixing should be based on risk posed bythe solvent/oil mixture, rather than onthe basis of mixing, per se. These

'4 We are, however, concerned about the acid-forming potential of these compounds whencombusted, and the resultant emissions ofhydrochloric acid and the effects of acceleratedcorrosion on boiler parts and any emission controlequipment. These oils will fail the used oil fuelspecification for total halogens and are subject toregulation as off-specification used oil (see sectionIV.C of text].

44 As noted earlier, the final rule indicates thatone way the presumption may be rebutted is byshowing that the oil does not contain significantlevels of halogenated hazardous oonstituents.



comments mistake the Agency'spurpose: to distinguish used oil frombazardous waste. As EPA pointed out inthe preamble to the proposed rule, thebasis of the presumption is not a newconcept. Section 261.3(b) says that whena solid waste is mixed with a hazardouswaste, the mixture is a hazardous wasteunless it does not exhibit acharacteristic of hazardous waste, or, ifthe hazardous waste was a listed waste(like many halogenated solvents), unlessthe mixture is delisted under petitioningprovisions of 40 CFR 260.20 and 260.22.The rebuttable presumption merelyprovides a simple, objective test forwhen the Agency will presume suchmixing has occurred. The risks posed byburning both hazardous waste(including adulterated used oil) and off-specification used oil are addressed intoday's rule with respect to burning innonindustrial boilers and will beaddressed further by the permitstandards for burning such fuels inindustrial boilers and industrialfurnaces.

We note further that a number ofcommenters erred by considering therebuttable presumption level for totalhalogens to fix the level at which usedoil containing halogens would be subjectto regulation (assuming no other sourceof adulteration). The rebuttable "presumption is not a measure of whenregulation is necessary, but a measure ofwhen mixing can be presumed to haveoccurred. Used oil containing halogensat less than the presumption level couldstill be regulated as hazardous waste,but the burden would be on EPA toprove that such used oil is a hazardouswaste by virtue of mixing with a listedhazardous waste. See 50 FR 1692, n. 22.EPA's burden would not automaticallybe satisfied by showing evidence ofhalogen levels in the used oil.

(2) Organic Versus Total Halogens asthe Indicator Level. Several commenters,suggested that organically-boundchlorine (or, more correctly, halogens)rather than total chlorine should be usedfor the presumption of mixing because itavoids the problems with inorganichalogens discussed above (i.e., some oilswith insignificant hazardoushalogenated solvent levels may containmore than 1000 ppm total halogensbecause of presence of inorganicchlorine). After serious consideration,we have decided to base thepresumption on total halogen levels dueto the problems of implementing astandard based on organic halogens.

We know of no quick, simple methodfor determining organically-boundhalogen levels in used oil. The samplemust be "washed" to remove inorganic

halogens before determining organichalogen levels. Moreover, we have onlyjust recently investigated techniques forwashing to remove inorganic halogensfrom used oil and are not yet ready torecommend a procedure. Even if anacceptable technique were available,washing would add substantially to thetime required to determine halogenlevels. (See discussion of analyticalprocedures in section IV-F of Part Twoof this preamble.) The need for washingalso would raise analytical costsunnecessarily.

In addition, organic halogens wouldbe a more accurate measure of presenceof hazardous halogenated solvents thantotal halogens only if used oil oftencontains more than 1000 ppm ofinorganic halogens. We have discussedabove, however, that the data indicatethat inorganic halogen levels aregenerally lower than 1000 ppm. Finally,use of organic halogens rather than totalhalogens does not avoid the problem ofoccasional false-positives caused bynonhazardous organic chlorine additivesfound in metalworking oils.

In summary, a presumption based onorganic halogen levels offers fewadvantages and has serious problems.

2. Used Oil Containing HazardousWaste Generated by Small QuantityGenerators. EPA proposed that used oilcontaining hazardous waste generatedby small quantity generators beregulated as used oil. 50 FR 1692. TheAgency reasoned that in exercising itsdiscretion as to how to classify used oil(i.e., as used oil or as hazardous waste),EPA should avoid a scheme wherebymost used oil was classified ashazardous waste ineligible forregulation under the special standardsfor used oil. EPA was concerned thatthis might result if small quantitygenerator hazardous waste-used oilmixtures were classified as hazardouswaste. Id. At the same time, EPAsolicited comments on alternativeapproaches, including regulating suchmixtures as hazardous waste orclassifying only automotive oilcontaining small quantity generatorwaste as used oil. Id. at n. 24.

Comments were divided. Althoughsome commenters supported theAgency, others were critical,maintaining that EPA's proposal couldencourage adulteration of used oil, andlead to significant enforcementproblems.

EPA has decided to modify itsproposal, in part due to the publiccomments. More importantly, however,our re-evaluation of available dataindicates that few small quantitygenerators are presently mixing

hazardous waste with used oil.Analyses indicate that fewer than 15%of the generators of crankcase oil (whoare presumed to be small quantitygenerators), and fewer than 12% of thegenerators of industrial oils (some ofwhom may have been small quantitygenerators), generate used oil that ismixed with significant levels ofhalogenated hazardous solvents. 45 Inaddition, the average vehiclemaintenance shop or service station,according to EPA's data, 46 produces anaverage of 50 kg/month of hazardouswaste in the form of spent solvents, and500 kg/month of used oil. Intentionalmixing would yield a contamination rateof 10%, or 100,000 ppm. The data in thefollowing table show that actualcontamination at the generator site, withfew exceptions, is orders of magnitudelower and so probably results frominadvertent, and perhaps unavoidable,contamination during use of the oil orhandling of used oil.4 7

4 5 Analysis of 21 samples of crankcase oil knownto be obtained from the generator (e.g., servicestations, auto repair shops, truck dealer,construction equipment facility). and thus notadulterated with solvents by collectors orprocessors, reveals that only 3 contain significantlevels of hazardous halogenated solvents. Analysisof 26 samples of industrial oil known to be obtainedfrom the generator indicate only 3 containsignificant levels of hazardous halogenatedsolvents. Analysis of data in Franklin Associates,Ltd., Composition of Used Oil, Appendix A.

4e Industrial Economics, Inc., Draft RegulatoryAnalysis for Proposed Regulations Under RCRA forSmall Quantity Generators of Hazardous Waste,February 1985, Draft Report, Exhibit 3-1.

41 Several commenters mistakenly criticizedEPA's statement at proposal (50 FR 1692) that smallquantity generators do not massively adolteratetheir used oil. They reasoned that because mostused oil comes from small quantity generators, andmuch is adulterated, that the generators are doingthe adulteration. In fact, all data indicate thatcollectors and processors are the principal source ofhazardous waste contamination. Comparison ofused oil sampling data from generators and fromprocessing facilities in the table below shows adramatic increase in halogenated solvent levels atused oil processing facilities.

Solvent Concentrations Increase Dramatically asUsed Oil Moves From the Generator to Process-ing Facilities

Solvent Concentrations,ppm (90th percentile

level s)

Solvent Solvent SolventA' B2 C

3

Oil sampled at generator site:Automotive oil ........................... 16 11 55Industrial oil .............................. 33 33 60

Oil sampled at processing fa-cility:Automotive oil ............... B000 800 3.000Industrial oil ................ 3.500 600 2.200

'1,1,1-Trichloroethone.2Trichloroethylene.3 Tetrachloroethylene.Source: Franklin Associates. Ltd., Composition of Used

Oil, pp. 3-33 to 3-36.



TABLE 1.-SOLVENT CONCENTRATIONS IN USEDOIL AT GENERATOR FACILITIES

Solvent Concentrations, ppm(90th percentile levels)

Solvent Solvent SolventA' B2 C

Automotive oil .......................... 16 11 55Industrial oil ............................ 33 33 60

Notes:'1 .t-Trichloroethane2 Trichloroemylane3

TetrachicloroemyleneSource: Franlin Associates, Ltd.. Composition of Used Oi4

pp. 3-33 to 3-36.

Consequently, it does not appear thatclassifying small quantity generatorwaste-used oil mixtures as hazardouswaste would result in'classifying largepercentages of used oil as ordinaryhazardous waste. As a factual matter,EPA's stated concern at proposal thusdoes not appear to be present.

The final rule thus states that this typeof mixture is to be classified as ahazardous waste. (But, as explainedbelow, at least for purposes of thisrulemaking, these mixtures are subjectto regulation as used oil fuel whenburned for energy recovery.) We havedecided, however, at least for the timebeing to regulate this (usually exempt)small quantity generator wasteregardless of the quantity generatedwhen it is mixed with used oil as part ofa waste-derived fuel. EPA is taking thisstep for a number of reasons. To dootherwise would create the verysituation feared by the commenterswhereby the rules would create anincentive to adulterate and be muchmore difficult to enforce. This is becauseif small quantity generator wpste couldbe mixed with otherwise-regulated usedoil and the mixture was exempt fromregulation, people undoubtedly wouldtake advantage of the opportunity toescape regulation, or raise the issue ofmixing as a defense in enforcementactions. Potentially large volumes andpercentages of recycled used oil couldgo unregulated, in derogation ofCongressional intent.48 Thus, the final

4 The Agency is also of the initial view that ifused oil is listed as a hazardous waste thenunmixed recycled used oil should continue to beregulated, regardless of quantity generated.(Regulation probably would begin once used oil isaggregated.) EPA's reasoning for regulating this typeof hazardous waste differently from other smallquantity generator hazardous wastes will be set outmore fully in the soon-to-be-proposed regulationslisting used oil as a hazardous waste and proposingmanagement standards for recycled oil, but insummary:

- Exempting small quantity generator used oil(used oil generated in quantities of 0-100 kg permonth) would exempt approximately 9 per cent ofall used oil generated. In contrast, the exemption forsmall quantity generator hazardous waste(hazardous waste generated in monthly quantitiesof O-100 kg per month) exempts only 0,007 percentof all hazardous waste. EPA does not believe such a

rule contains an amendment to § 261.5indicating that small quantity generatorhazardous wast6-used oil mixtures arenot exempt from regulation whenburned for energy recovery but aresubject to Subpart E of Part 266.

This means that, at least on an interimbasis, such mixtures can be burned innonindustrial boilers if they meet thefuel specification. These mixtures alsoare subject to the administrativecontrols for off-specification used oilfuels should they fail to meet the fuelspecification. Generators of thesemixtures would not be subject toregulation unless they are alsomarketers of used oil fuel. (See Part Fourbelow.)

EPA has not reached a final decisionon which controls should apply to thistype of hazardous waste. We also wishto examine further, and seek commenton, the impacts on small businessesshould all of these hazardous wastes beregulated at various levels of control.See RCRA section 3001(d). Because webelieve further comment on an ultimateregulatory regime is appropriate, wehave decided to retain as an interimmeasure the regulatory scheme initiallyproposed whereby this type of smallquantity generator waste remainssubject to all of the controls applicableto used oil fuel. This will ensure thatthere is no outright exemption while theAgency evaluates an ultimate resolutionin its consideration of comment on thecomprehensive rules for recycled oilsoon to be proposed.

3. Used Oil that Exhibits aCharacteristic of Hazardous Waste.Used oil itself might be a hazardouswaste if it exhibits a characteristic ofhazardous waste. The most likely

result consistent with Congressional intent thatrecycled oil be regulated as necessary to protecthuman health and the environment, particularly inlight of statements of evident legislative intent thatcrankcase oil (which is generated by small quantitygenerators) be regulated. See RCRA section 3014tb);H.R. Rep. 96-1415 at 6.

- The total volume of recycled used oil generatedby small quantity generators is significantly greaterthan that of all other small quantity generatorhazardous wastes combined: 340,000 tons/year vs.180.000 tons/year;

* Unregulated small quantity generator used oilcould have greater potential for coming into directhuman contact than other small quantity generatorwastes because such a large volume is burned in theresidential market.

Thus, the Agency sees Important distinctionsbetween small quantity generator used oil and othersmall quantity generator hazardous waste. Thisreasoning also applies to regulating recycleol oil intoday's final rule-prior to recycled oil being ahazardous waste-without regard for quantitygenerated. (The Agency is not reaching the questionof whether, assuming there was no differencebetween small quantity generator used oil and othersmall quantity generator hazardous waste, otherhazardous waste generated in volumes of 0-100 kgper month should be regulated.)

possibility is ignitability.49 . 50 Asdiscussed at proposal (see 50 FR at1693), EPA intends that used oil that is ahazardous waste solely because itexhibits a characteristic of hazardouswaste be regulated as used oil fuel(where so recycled), provided that it isnot mixed with a hazardous waste.5 1

Ignitable used oil is regulated as used oilunder today's rule and is prohibitedfrom burning in nonindustrial boilerswhen its flash point is less than that ofcommercial fuel (i.e., 100 *F).

We have considered whether a lowflash point serves as a presumptiveindication of mixing with hazardouswaste, and therefore, that such mixturesshould be regulated as hazardouswastes ineligible for regulation undersection 3014 standards for used oil. Weconclude that low flash point is not anindicator of mixing for a number ofreasons and that such oil should beregulated as used oil.

Low flash point may not be indicativeof mixing with hazardous waste becausethe low flash point may be attributableto benzene, toluene, or xylene added tocrankcase oil from engine blow-by(these compounds are constituents ofgasoline) rather than as spent solvent.Low flash point could also beattributable to mixing gasoline fromtank drainings at auto service and repairshops with used oil. Gasoline is acommercial chemical product exhibitinga characteristic of hazardous waste.When gasoline (or any commercialchemical product) is discarded, it issubject to regulation as hazardouswaste. But when a commercial chemicalfuel is recycled (e.g., mixed with used oiland burned for energy recovery): it isnot discarded (within the meaning of therule) and so is not a hazardous waste.See § 261.33 (July 15, 1985) and 50 FR 618(January 4,1985).

In addition, today's rule for burninglow flash point used oil (or any off-

4 "Although most used oils have a flash pointgreater than 200 °F, 28% of the used oil samples hada flash point less than 140 *F. Source: FranklinAssociates Ltd., Composition of Used Oil, p. 3-56.

50 Although used oil may contain high levels oflead, arsenic, cadmium, chromium, or barium, oildoes not often exhibit the characteristic of EPToxicity for these metals. In addition, these metalsare present in used oil almost invariably as a resultof the oil's use, not as a result of adulteration withhazardous waste. Nevertheless, since these metalscan pose a hazard when used oil is burned forenergy recovery, the specification for used oil thatmay be burned in nonindustrial boilers limits levelsof arsenic, cadmiu, chromium, and lead. Bariumlevels are not considered to pose a substantialhealth hazard and, thus, barium is not included inthe specification. (See section IV.C in the text.)

"' Except that mixtures of small quantitygenerator hazardous waste and used oil are subjectto regulation as used oil, as discussed above.

49179


49180 Federal Regilster /'V01. 50,No. 230 / Friday, November 29, 1985 / Rules and Regulations

specification used oil) provides a levelof environmental protection analogousto that provided by the rules for burninghazardous waste fuels. Neitherhazardous waste fuel nor off-specification used oil fuel may beburned in nonindustrial boilers. Theonly area where the classification asused oil results in less regulation is withrespect to storage and transportation ofoff-specification used oil. Although notregulated by today's rule, storage andtransportation of off-specification usedoil is addressed in the Used Oil Listing/Management Standard.3 soon to beproposed. The purpose of today's rule isto begin regulation of blending andburning activities by prohibiting burningof hazardous waste and contaminatedused oil in nonindustrial boilers. Otherrulemakings will proposecomprehensive regulations undersection 3014 for storage andtransportation of used oil, and for theactual burning of off-specification usedoil and hazardous waste fuels inindustrial boilers and industrialfurnaces. Thus, the primary purpose oftoday's final rule is met by regulatinglow flash point oils as off-specificationused oil rather than as hazardous waste,while decisions on appropriate controls(and impacts) for storage andtransportation of off-specification usedoil are left to the rulemaking specific toused oil that will be proposed undersection 3014.

Commenters asked whether used oilknown to be mixed with a characteristichazardous waste is regulated as used oilfuel or hazardous waste fuel if themixture exhibits a characteristic. Asdiscussed above, used oil mixed withhazardous waste is regulated ashazardous waste fuel. 52 It is only whenwe are uncertain that mixing hasoccurred that we give the benefit ofdoubt (e.g., low flash point used oil andused oil containing less than 1000 ppmtotal halogens) and do not presume thatmixing has occurred. Thus, when usedoil has been mixed with a characteristichazardous waste, the mixture isregulated as hazardous waste fuel if itcontinues to exhibit a characteristic. Ifthe resultant mixture no longer exhibitsa characteristic of hazardous waste, it isregulated as used oil. 53 This is merely a

52 Except that mixtures of small quantity

generator hazardous waste and used oil are subjecton an interim basis to regulation as used oil(although classified as hazardous waste fuel).

13 It should be noted that mixing a characteristichazardous waste with another material to renderthe waste nonhazardous constitutes treatment ofhazardous waste subject to applicable standardsunder 40 CFR Parts 264-265 and 270, and thenotification requirements of section 3010 of RCRA.

statement of the "mixture rule" in§ 261.3.

Some used oils may exhibit acharacteristic of hazardous waste butmeet the specification for used oil fuelexempt from regulation. 54 Examples areused oil fuel with a flash point less than140 °F, the hazardous wastecharacteristic, but greater than 100 °F,the specification level, and (much lessfrequently) used oil fuel with metalslevels (particularly lead) greater thanthe EP toxic characteristic levels, butless than the specification levels.Although such used oils are exemptfrom regulation and may be burned innonindustrial boilers, the specificationensures that such burning would notpose significantly greater risk thanburning virgin fuel oil.

C. The Specification for Used Oil ThatMay Be Burned in Nonindustrial Boilers

The Agency has developed aspecification for used oil fuel that maybe burned without regulation (i.e.,burned without regulation innonindustrial boilers as well as otherboilers or industrial furnaces). Giventhat oil meeting specification parametersmay be burned in nonindustrial facilitieslike apartment and office buildings, thespecification is intended to be protectiveunder virtually all circumstances.

In this section of the preamble, wediscuss comments on EPA's riskassessment, the basis for selectingspecification parameters and levels, andexplain the changes made in thespecification in response to comments.We also explain why we rejectedcertain commenters' arguments that off-specification used oil should not beblended to meet the specification andthat all burning of used oil innonindustrial boilers should beprohibited. Finally, we provide guidanceon analytical procedures and testingfrequency to determine conformancewith the specification and the rebuttablepresumption of mixing hazardoushalogenated solvents.

1. Comments on EPA 's RiskAssessment. EPA considered regulatingany contaminant typically found in usedoil in higher concentrations than invirgin oil, and which also wasdetermined to pose a significant risk tohuman health and the environmentwhen burned. Some commenters arguedthat EPA's risk assessment approach isoverly conservative resulting in

5 We have noted above that the rule providesthe same level of protection for burning hazardouswaste fuel and for burning used oil exhibiting acharacteristic of hazardous waste that also is off-specification used oil fuel. This is because neitherhazardous waste fuel nor off-specification used oilfuel may be burned in nonindustrial boilers.

unnecessarily stringent regulations,while others argued that the assessmentdid not adequately consider all risks.

The Agency believes the PEDCo riskassessment 55 adequately indicates thepotential for substantial risk fromburning used oil in uran areas. The riskassessment, with one exception, is usedto indicate pbtential risk, not to actuallyset specification levels based on somequalification of risk.5eWe used the riskassessment to identify thoseconstituents that may pose increasedrisks at levels that are cause for concerngiven the large number of exposedindividuals in urban areas. When thoseconstituents are typically found in usedoil at levels greater than in virgin fueloils (i.e., the 95th percentile level inNo's. 2-6 fuel oils), they were includedin the specification at their 95thpercentile levels in virgin fuel oils. Wereasoned that higher levels could posesubstantial risk, and levels lower thanfound in virgin fuel oil would notprovide protection of human health andthe environment if used oil is replaced(as it would be) by virgin oil.

The PEDCo risk assessment is fullydocumented in a published report, acopy of which is in the public docket.The assessment is also summarized insome detail in the proposal. See 50 FR1693-1700. The primary inputs to theemissions models were actual data (e.g.,composition of used oil based onhundreds of analyses; emissions weremodeled for the New York City urbanarea considering actual meteorologicalconditions and projections of used oilburning based on actual density andlocation of multi-family dwelling units).Boiler emissions were projectedassuming 97% destruction of organicsand a 75% emission rate for metals. TheAgency considers the 97% destructionefficiency for organics reasonable but-conservative given that test burn dataindicate that very small boilers canachieve 99% to 99.99% destructionefficiency for hard-to-burn chlorinatedcompounds. 57Although data on metalsemissions rates are very limited, theavailable data indicate that metalsemissions rates average 31 to 75%, withchromium having the lowest rate andlead the highest. 58 We thus consider a

55 PEDCo Environmental Inc., A Risk Assessmentof Waste Oil Burning in Boilers and Space Heaters,August 1984.

66 For lead, the risk assessment is used toestimate the high end of the proposal specificationrange. See 50 FR 1697-1699 (January 11, 1985).

57 GCA Corp., Environmental Characterization ofWaste Oil Combustion, May 1984, pp. 16 and 20.51 PEDCo Environmental Inc., Risk Assessment of

Waste Oil Burning. January 1894, pp. 3-17 and 3-20.


No. 230 / Friday, November 29, 1985 / Rules and Reaulations 49181

75% emissions rate for metals to be arealistic, but reasonably conservativeassumption.

The two air dispersion models used toestimate ground level concentrations ofcontaminants are routinely used by EPAfor that purpose. Estimated ambientlevels were used to project the increasedrisk from carcinorganic compounds andto determine whether levels of othercompounds that have a safe or thresholdlevel of exposure (i.e., thersholdcompounds) would be likely to causesubstantial adverse health effects. Thecompounds considered to becarcinogenic and their potency factorswere obtained from EPA's CarcinogenAssessment Group. To determinewhether chronic exposure to theestimared ambient levels of thresholdcompounds would pose a healthhazard, Environmental Exposure Lirihits(EEL's) were calculated. EEL's are basedprimarily on workplace threshold limitvalues (TLV's) published by theAmerican Conference of GovernmentalIndustrial Hygienists. The TLV's areadjusted mathematically for use inassessing enviromental exposure byconsidering a number of factorsincluding: exposure duration, populationsusceptibility, and the nature andconditions of the experimental heal'theffects data. TLV's are typically used bythe Agency to project safe levels ofexposure when more appropriate animalhealth effects data are not available.The limitations of using TLV's todetermine EEL's are well documentedby PEDCo 59.

Although some assumptions werenecessary as with any risk assessment,and it can be argued that thoseassumptions were too conservative ortoo lenient, the Agency does not believe(and commenters did not show] that theuse of alternate, but reasonable,assumptions would affect the outcomeof the assessment.

Specific comments on particularaspects of the risk assessment arediscussed below.

2. Specification Parameters. Asdiscussed above, EPA identified typicalcontaminants of used oil and proposedspecification levels for those compoundsfound in higher concentrations in usedoil than in virgin refined fuel oil andwhich could also pose a significanthealth risk when burned. (See Table 2below.) We did not proposespecification levels for compounds foudin used oil at the same or lower levelsthan are found in virgin refined fuel oilbecause users could simply switch to

5' PEDCo Environmental Inc., A Risk Assessmentof Waste Oil Burning. pp. B.-2 through E-15.

virgin oil to replace the recycled productwithout any environmental benefit.

We have added total halogens anddeleted PCBs from the specification, asdiscussed below. We also respondbelow to comments that a number ofother constituents should be added tothe specification.

TABLE 2.-USED OIL FUEL SPECIFICATION'

Constituent/ Proposal allowable Final rule allowableproperty level level

Arsenic .......... 5 ppm maximum .. 5 ppm maximum.Cadmium . 2 ppm maximum .. 2 ppm maximum.Chromium . 10 por maximum . 10 ppm maximum.Lead ............... 10-100 ppm 100 ppm maximum.

maximum .PCBs .............. 50 ppm maximum.Total .................... 4000 ppm maximum.

halogens.Flash point .100 'F minimum ........... 100 F minimum.

The specification applies only to used oil that is notmixed with hazardous waste other than small quantity gener-ator hazardous waste.

2 EPA proposed to a select level from the range of 10 to100 ppm for promulgation. Lead is limited to 100 ppm bytoday's final rule.

a. Total Halogens. We have addedtotal halogens to the specificationbecause burning fuels with high chlorinelevels can have direct and indirecteffects on human health and theenvironment. As noted in backgrounddocuments to the proposed rule, and asobserved by a number of commenters,hydrogen chloride emissions fromburning such fuels can increase ambientlevels of hydrochloric acid andcontribute to acid rain. Equallysignificant, the chlorine can alsoaccelerate corrosion of boilercomponents which could decreasecombustion efficiency resulting inincreased emissions of incompletelyburned combustion products. Corrosionof any air emissions control equipmentcould also be accelerated, reducingcontrol efficiency and directlyincreasing emissions of pollutants. (Seealso H.R. Rep. 98-198 at 42 noting thisconcern.)

We selected a specification level of4,000 ppm for total halogens 60 based onhalogen levels in high chlorine coal. Webelieve that limiting halogen levels tothe highest levels found in fossil fuelswill ensure that burning used oils withequialent or lower halogen levels willnot accelerate corrosion rates. 61

eilt is only by coincidence that this is the samelevel originally proposed for the rebuttablepresumption. The specification parameters apply,only to used oil fuel after it has been determinedthat the used oil is not mixed with hazardous waste(e.g., by applying the presumption of mixing). Thus,the total halogen specification level is based ondifferent principles and is used for differentpurposes than the total halogen level for thepresumption of mixing.

6Boiler manufacturers become concerned aboutexcessive corrosion rates when coal chlorine levelsexceed 2,500 ppm. A boiler burning used oilcontaining about 4.000 ppm chlorine would be

Although used oil normally replacesvirgin fuel oil that has very low halogenlevels (less than 100 ppm), we do notbelieve burning used oil with halogenlevels found in coal will substantiallyincrease corrosion rates. In fact, manyboilers burning fuel oil were originallydesigned to burn coal and wereconverted to oil burning to meet airemissions standards.

Used oil fuel (not mixed withhazardous waste) can contain highlevels of halogens from two sources. Asdiscussed above metalworking oils aresometimes processed to produce fuel.These metalworking oils can containextreme pressure additives that arehighly chlorinated, but nonhazardous,organic compounds. Total chlorinelevels in these used oils can be several,percent.

In additiofi, "light ends" from thedistillation (e.g., rerefining) of used oilcan contain high levels of halogenatedcompounds. Although the used oilfeedstock entering the distillationprocess contains les's than 1000 ppm oftotal halogens and is not presumed to bea hazardous waste, the oil can containinsignificant levels of volatile,halogenated compounds (e.g., less than100 ppm of halogenated compoundslisted as hazardous spent solvents). Thelight ends produced from such oil willcontain much higher levels ofhalogenated compounds due to theconcentrating effect of the distillationprocess. These light ends are a by-product of used oil rerefining to producerecycled lube oil and are often burnedon-site as fuel. These light ends areregulated as used oil rather than ashazardous waste even though their totalhalogen content exceeds 1000 ppm andthey contain substantial levels ofhalogenated compounds listed ashazardous spent solvents. This isbecause the halogenated compounds arepresent in significant levels as a resultof processing (i.e., they areconcentrated), not as a result of mixingWith halogenated hazardous waste.62

When light ends containing less than4000 ppm total halogens (but perhaps upto 4000 ppm of halogenated compouhdsthat are listed as hazardous spentsolvents) are burned, emissions of

exposed to the same quantity of chlorine per houras it would be if it were burning coal containing2,500 ppm chlorine. This is because the heating,value of used oil is higher than that of coal (16,500vs. 11,000 Btu/lb) and, thus, less used oil is requiredto provide a given boiler heat input.

62 Although low levels of halogenated compounds(e.g.. less than 100 ppm of tetrachloroethylene) inthe used oil feedstock to the distillation processmay sometimes result from mixing with hazardousspent solvents, the levels are too low to presume

.such mixing has occurred.




hydrogen chloride or incompletelyburned halogenated compounds will notpose a substantial risk to human healthand the environment. 63 Light ends withmore than 4000 ppm total halogens areregulated under today's rule as off-specification used-oil, and as such,cannot be burned in nonindustrialboilers. We are developing permitstandards for burning such oil(scheduled to be proposed in 1986) thatwould consider the hazard posed by thepresence of hazardous halogenatedconstituents. (Permit standards forburning such used oil may in fact besimilar to the standards for burninghazardous waste fuels.)

b. PCBs. EPA included polychorinatedbyphenyls (PCBs) in the proposedspecification only as a reference to theAgency's rules regulating PCBs. PCBsare regulated under the ToxicSubstances Control Act (TSCA) and therules are codified at 40 CFR Part 761.Those rules include controls for the useand disposal of materials containingPCBs.

PCBs are not included in the finalspecification promulgated today,however, because commenters indicatedthat the crossreference causedconfusion. Specifically, commenterswere concerned that setting aspecification level could encouragedilution of PCBs in an attempt to avoidregulation under TSCA. Dilution toavoid regulation is expressly prohibitedunder the TSCA rules. See § 761.1(b).

If used oil fuel contains PCBs and alsodoes not meet the used oil fuelspecification provided by today's rules,then it is subject to the more stringent ofthe applicable TSCA PCB rules andtoday's used oil fuel rules.

c. Other Constituents. Commenterssuggested that other used oilconstituents should be included in thespecification nothwithstanding ourarguments that these constituents eitherare not likely to pose substantial healthrisk or that they are not present in usedoil at significantly greater levels thanvirgin oil (and lower specification levelscould result in a virgin productdisplacing the recycled product with noenvironmental benefit).

(1) Barium and Zinc. Although wefound that barium and zinc are presentin used oil in concentrations 10-100times greater than in virgin fuel oil, theAgency's risk assessment indicated thatthe resulting increased levels of bariumand zinc would produce insignificantrisks to human health and theenvironment.

11 As discussed above, even very small boilerscan achieve 99% to 99.99% destruction efficiency forhalogenated compounds.

Several commenters expressedconcern over what they considered theserious health impacts of high levels ofbarium and zinc, and argued that EPAshould err on the overprotective side byprescribing specifications for thesemetals. EPA continues to believe thatthe presence of these metals in used oildoes not pose significant risk for thereasons discussed below.

EPA's risk assessment indicates thatmaximum ambient levels of zinc fromburning used oil could represent about2% of the Environmental Exposure Limit(EEL).64 Thus, zinc does not have aserious impact on air quality near singleor multiple sources, or in high-densityurban areas.

Although the case is less clear withbarium, the Agency concludes that 'barium likewise does not pose a serioushealth risk. The PEDCo risk assessmentindicates that maximum ambient levelsof barium could represent 80% of theEEL (Id). Given that the inhalation ofbarium can cause toxic effects(primarily an increase in muscleexcitability, particularly in the cardiacmuscle), the Agency specifically askedfor comment on whether barium shouldbe added to the specification.

For a number of reasons, however, thePEDCo risk assessment overstates therisk posed by barium. The PEDCoanalysis used an early survey of used oilanalyses to determine barium levels inused oils. The most recent andexpanded data base includes 752 bariumanalyses comparedto the 400 analysesin the data base used by PEDCo. The90th percentile barium levels used in therisk assessment (based on the 400analyses) was 485 ppm, while the 90thpercentile barium level in the expandeddata base is only 251 ppm, about 50%lower. Given that composition databased on the expanded data base areconsidered more representative, thePEDCo analyses overstates ambientbarium levels by a factor of two.

In addition, the PEDCo assessment-estimates a safe level for lifetimeexposure to airborne barium basedprimarily on the workplace thresholdlimit value (TLV). This safe level iscalled an Environmental Exposure Limit(EEL). See discussion above on EELs.The barium ELL calculated for the riskassessment is more than 50% lower thanthe safe level calculated from theinterim Acceptable Daily Intake set byEPA.6 5 The ADI-based safe exposure

64 PEDCo Environmental Inc., A Risk Assessmentof Waste Oil Burning, p. 5-2.

6- EPA Environmental Criteria and AssessmentOffice, Health Effects Assessment for Barium, June,1984, p. 13 (Draft), and Peer Consultants, Inc.,Health Effects and Ambient Data for Barium,October 1984, p. 9 (Unpublished Report).

level is considered more appropriatethan the TLV-based EEL because theADI is based on a comprehensivereview of pertinent toxicologic andenvironmental data. EELs are commonlyused for risk assessments only whenADI's have not been determined (orcannot be determined because ofinadequate data). Thus, the risk posedby barium has been overstated by morethan a factor of two for this reason aswell.

In summary, the PEDCo assessmentoverstates the risk posed by barium bymore than a factor of four. When thesefactors are considered, the maximumambient levels (assuming clusteredboilers with overlapping emissionplumes, another conservativeassumption) would be 0.18 ig/m" whilethe ADI-based safe level for chronicexposure is 1 jAg/m3.66 Whenbackground ambient barium levels areadded to the maximum levels from usedoil burning, total ambient barium levelscould range from 0.18 to 0.43 )lg/m 3 .67

As with lead emissions discussedelsewhere, ambient barium levels thuswould not be expected to posesignificant risk except in extreme andunique "hot spot" situations (e.g., whereboilers are clustered together, andreceptors are located directlydownwind, very close to the boilers, andat the centerline of the emissionsplume), which would occur only veryrarely.

(2) PNAs. A few commentersindicated the need to set specificationlevels for polynuclear aromaticcompounds (PNAs).68 A majorenvironmental commenter was criticalof EPA's risk assessment in general, andwas particularly concerned with EPA'sconclusion that specification levels werenot needed for PNAs. The commenterargued that data cited by the Agency did

66 This comparison still overstates the riskbecause the PEDCo assessment calculatesmaximum ambient levels for the month of Januarywhen used oil burning is greatest. The ADI-basedsafe level of exposure, however, assumes constantexposure over a lifetime. Thus, average annualambient levels (including summer months whenlittle used oil is burned) should actually be used forcomparison to the ADI-based safe exposure level.

7 Op Cit., Peer Consultants. Inc., p. 4. It should benoted however, that it is not clear to what extentthe background barium levels already includebarium from used oil burning. Thus, adding the so-called background levels to levels from used oilburning also may overstate the risk.

"8 PNAs are a subset of organic compoundsknown as polyaromatic hydrocarbons (PAHs).PNAs are of particular concern because some areknown carcinogens. PAHs are compounds with twoor more benzene rings, the basic structure thatseparates aromatic or "ringed" compounds fromaliphatic or "chain" compounds. PNAs arecompounds with two benzene rings fused togetherso that they share two carbon atoms.


Federal Register / Vol. 50, No. 230 / Friday; November 29, 1985 / Rules and Rdgulfitions

not show, as the Agency indicated atproposal, 69 that PNA levels in used oiland virgin fuel oil are comparable, andthat PNA emissions from burning usedoil and virgin fuel oil are comparable.

We have reviewed the data used tosupport our decision at proposal andcontinue to believe that the risk posedby PNAs from burning used oil andvirgin fuel oil is comparable. Thefollowing data (Table 3) show thatlevels of benzo(a)anthracene andbenzo(a)pyrene, the PNAs typically ofconcern due to their carcinogenicity, inused oil and virgin fuel oil arecomparable:

TABLE 3.-PNA LEVELS IN USED OIL ANDVIRGIN FUEL OIL -

Concentra- Concentra-tion In used tion in virgin

Compound oil (ppm) fuel oil[90th (ppm)

percentile] (range]

Benzo(a)anthracene ...................... 40 18-97Benzo(a)pyrene .............................. 16 29-44

Source: Franklin Associates. Ltd.. Composition of Used Oil,pp. 1-12 and 5-9.

Although PNA levels in distillate virginfuels (e.g., No. 2 oil) are much lower thanin residual No. 6 oil, it is reasonable tocompare used oil levels in No. 6 oilbecause used oil frequently (indeed,most often) displaces No. 6 oil.

In addition both Recon and GCA 70reported that they could not finddetectable levels of benzo(a)pyrene(BaP) in used oil emissions during a totalof 13 test burns. The BaP detectablelevels ranged from 6-9 /Lg/m 8 for theGCA tests. Further, emissions of totalPNAs from burning used oil and virginoil appear comparable. Emissions ofPNAs, mostly naphthalene compounds,measured by GCA during a number oftest burns at each of six sites averaged92 jLg/hr 7 1. If virgin fuel oil had beenburned rather than used oil and if totalPNA emissions were 46 jLg/btu, asreported by PEDCO (See PEDCO, RiskAssessment of Waste Oil Burning, p. D-7) as typical for residual fuel oil boilerswith capacities less than 250X10 6 btu/hr, PNA emissions from virgin oil

69 See 50 FR 1695 (January 11, 1985).70 Recon Systems, Inc., and ETA Systems, Inc..

Used Oil Burned as Fuel, 1980, p. 4-6: and GCACorp., Environmental Characterization of WasteOil Combustion, pp. 19, 120. 126, 132,138, 144, and150. Both of these reports were part of the Agency'srecord at proposal.

71 Tests are cited in previous'note. One test atone site had 5 times the average PNA emissions atthat site during unstable combustion conditions.(The contractor deliberately induced theseconditions as part of the test program.) Results fromthat test are not included in calculating the 92 F-g/hr. average. When the results from that test areincluded, the average PNA emissions increase to106 ;g/hr. See GCA Corp., p. 120.

burning for those 6 test sites would haveaveraged about 96 /g/hr.

Given that it appears that theconcentration of PNAs of primaryconcern are comparable in used oil andvirgin fuel oil, and that total PNAemissions from burning used oil andvirgin fuel oil are comparable, we havenot set specification levels for PNAs.

(3) Benzene, Toluene and,Naphthalene. One commenter arguedthat EPA did not adequately considerthe risk posed by emissions of benzene,toluene, and naphthalene. The PEDCorisk assessment concluded that ambientlevels of toluene and naphthalene wouldbe less than 1% of the EnvironmentalExposure Limit (EEL) consideringemissions from point' sources of varioussizes, from point sources clustered veryclosely together, and multiple pointsources located in high density urbanareas. 7 2 PEDCo also concluded thatambient levels of the carcinogen,benzene, would pose an increased riskto the most exposed individual of2.7X10 - 8 (1:37,000,000). 7

3 It should benoted that PEDCo's risk assessment isconsidered conservative in somerespects, including the assumption thatboilers burning used oil will achieve adestruction efficiency of only 97%although test burn data indicate thateven very small boilers when operatedproperly appear to achieve 99 to 99.99%

- destruction efficiency. Nonetheless, the* commenter suggested that the Agency

consider conducting the so-called "hotspot" exposure analysis for thosecompounds similar to the analysisconducted for lead.74

The hot spot analysis considers whatmay be considered truly "worst case"situations where two sources arelocated close together, and the receptor(exposed person) is located directlydownwind from the sources, very closeto the sources (i.e., 25-50 meters fromthe source), and elevated to the height ofthe emission plume (i.e., as though theemission plume were blowing into theair intake of a building's ventilationsystem). We have used this scenario toproject ambient levels of benzene,toluerie, and naphthalene in thosesituations. Even under those extremeand very rare situations, andconservatively assuming 97%destruction efficiency, ambient levels oftoluene and naphthalene still do notexceed 1% of the EEL for those,compounds. Ambient levels of benzenedo not exceed levels that would pose anincreased risk of I x 10- 5 (1: 100,000). If

72 PEDCO Environmental Inc., Risk Assessment

of Waste Oil Burning. p. 5-2.73 1d., p. 5-.74 Id., pp. 4-39 through 4-43.

the destruction efficiency of benzenewere assumed more realistically to be99% rather than 97%, the increased riskwould be less than 4x10 - 6 (1:250,000).Given the remote likelihood that themodeled situations would occur, andthat risks are still not very high evenunder these worst case conditions, weconclude that presence of thesecompounds does not pose a significanthealth risk when used oil is burned forenergy recovery.7 5

As a final note, although we do nothave data on benzene, toluene, andnaphthalene levels in virgin fuel oils, wewould expect to find high levels ofvolatile benzene and toluene fn distillateoils (e.g., No. 2) and high levels ofnaphthalene in residual oils (e.g., No. 6).Given that used oil and used oil blendsare substituted for all grades of oil (i.e.,No's 2-6), the levels of these compoundsin used oil'are likely to be comparableto levels in virgin oil.

(4) ASTM Specifications. A fewcommenters suggested that EPA includespecification parameters such asviscosity and bottom sediment and

.water set by the American Society forTesting and Materials (ASTM) to ensureproper boiler operation. ASTMspecifications vary according to fuel oilgrade (e.g., No. 2 distillate oil though No.6 residual oil). Commenters argued thatthe ASTM specifications were needed toensure optimum boiler operation and,thus, optimum combustion of used oilwhich would minimize emissions ofincompletely burned toxic compounds(e.g., PNAs as discussed above).

We understand the issue commentersare raising but do not believe it is, infact, a frequent problem. We presumethat burners purchase fuel, includingused oil and blends of virgin oil andused oil, specified by the standard fueloil grade that their boilers are designedto burn. Further, we presume that fueloil, whether virgin-or containing usedoil, must meet the ASTM specificationsfor the designated grade or be in breachof contract. Thus, the marketplacealready should ensure application of theASTM specification. We will, however,reconsider this point if duringimplementation of today's ruleenforcement officials determine thatmisrepresented used oil is frequentlybeing sold and existing laws areinadequate to prevent abuses and we

75 Although believe that the levels of toluene,benzene, and naphthalene do not present a hazardwhen used oil is burned (and thus specificationlevels are not needed), these toxicants may stillpresent a'significant hazard when used oil is storedand transported. We, therefore, consider thesehazards when we will soon propose to list used oilas a hazardous waste.

49103.



determine that the practice can result insubstantial increases in emissions oftoxic compounds at levels that pose asignificant risk to human health and theenvironment.

Another reason we are not addressingthis potential problem in today's rule isthat there does not appear to be asimple remedy. We cannot require thatall used oil meet the ASTMspecifications for a particular fuel oilgrade because different boilers aredesigned to burn different grades. Toaddress the problem, the responsibleburner must simply now that the usedoil (or virgin/used oil blend) he ispurchasing meets the grade his boiler isdesigned to burn. This could beaccomplished, perhaps, by requiring thatthe invoice or bill of sale indicate thegrade of fuel, and if necessary, astatement that the oil meets the ASTMspecifications for that grade. On theother hand, the burner who is trying tosave-on his fuel costs may try to burnlower grade (or ungraded) used oilprovided that his increased maintenancecosts do not off-set his fuel savings. Heis not concerned about emissions ofincompletely burned compounds. If thiswere the problem, a solution would beto require that the marketer determinethe grade of his oil by ASTMspecification and sell the used oil onlyto a burner with a boiler designed toburn that grade of oil. Similarrequirements could be placed on burners(i.e., they could burn only that fuel oilgrade the boiler is designed to burn). Webelieve that it is clear that theimplementation and enforcement ofprovisions such as these would be amassive undertaking and would intrudesubstantially on the marketing and useof what is essentially a commercialproduct-used oil meeting thespecification established in today's rule.Before seriously considering any suchremedies, we would need to much betterdefine the "problem".

(4) Other Compounds. A fewcommenters suggested that the followingcompounds also be included in thespecification: nickel, beryllium, mercury,sulfur, nitrogen, and phosphorous. Noneof these compounds are included for thereasons discussed below.

Nickel is not included in thespecification because the 90th percentilenickel level in used oil is lower than thelevel found in virgin residual fuel oil (40ppm).76 Although limited, data on

76 Sources: Franklin Associates Ltd., Compositionof Used Oil, Appendix A; TRW EnvironmentalEngineering Division, Emissions Assessment ofConventional Stationary Combustion Systems:Volume Ill. External Combustion Sources forElectricity Generation. November 1980. p. 134; US

beryllium in virgin fuel oils indicate thatberyllium levels average much less than1 ppm, while analyses of 263 used oilsamples indicate that the 90th percentileberyllium level in used oil is less than0.3 ppm. (Ibid.) Similarly, limited data onmercury indicate that levels can rangefrom 0.005 to 0.4 ppm in virgin fuel oilsand are less than 0.1 ppm in used oils.(Ibid.) Clearly, beryllium and mercuryare not found in used oils at levels ofconcern, and nickel emissions (and anyhealth risk posed) or lower from burningused oil than virgin fuel oil.

Levels of sulfur and nitrogen aresomewhat higher in virgin fuel oil thanin used oil.7 7 Thus, sulfur and nitrogenoxide emissions from burning used oilswould not be higher. Although we do nothave data on phosphorous levels in usedoils and virgin fuel oils, phosphorous isneither a designated hazardous'wasteconstituent on Appendix VIII of Part 261nor does it interfere with boilerefficiency at the levels found in used oil.

3. Specificaton Levels. A number ofcommenters provided suggestions onspecification levels for the metals forwhich EPA proposed a specificationlevel and for flash point. The basis forthe specification levels for theseparameters is discussed below.

a. Lead. EPA proposed to select aspecification level for lead from therange of 10-100 ppm, and specificallyrequested comments on an appropriatelevel. As discussed in the preamble tothe proposal (see 50 FR 1697-1699(January 11, 1985)), levels higher than100 ppm could result in ambient leadlevels exceeding the National AmbientAir Quality Standard (NAAQS) for leadin densely populated areas whereboilers are clustered together andreceptors may be close to the sources.Although 100 ppm appears to beprotective with respect to the NAAQS,that level may not be protective becausehealth effects data available since thelead NAAQS was established indicatethat lead causes serious, but apparentlynoncancerous, health effects at any levelof exposure (i.e., lead appears to be a"nonthreshold'pollutant). EPA isconsidering these new health effectsdata in its current efforts to determinewhether the existing lead NAAQS isadequately protective. In addition,

EPA, Listing Waste Oil As Hazardous Waste-Report to Congress, January 1981 (SW-909); Yen,T.F., The Role of Trace Metals in Petroleum, AnnArbor Science Publishers, Ann Arbor, Michigan,1975, P. 107; Valkovic, Vlado, Trace Elements inPetroleum, Petroleum Publishing company, 1980, p.91; and American Petroleum Institute, Task Forceon Utilization of Waste Lubricating Oils, October1975, pp. 21-33.

11 PEDCO Environmental Inc.,-A RiskAssessment of Waste Oil Burning, p. 3-18.

because of the new health effects data,EPA believes that it is resonable toreduce preventable sources of leadexposure. This policy led to theAgency's phasedown of lead ingasoline-by January 1, 1986, lead levelsin "leaded" gasoline must be reduced toless than 10% of the levels previouslyallowed. For these reasons, we believethat a lead specification level should beconsidered that is lower than that whichensures the current NAAQS would notbe exceeded. Thus, we proposed a levelof 10 ppm at the low end of the range,which is the 95th percentile lead level invirgin fuel oil. A lower level was notproposed because used oil could bedisplaced with virgin oil with higheilead levels with no environmentalbenefit.

We also discussed in the proposal ourconcern that a specification level lowerthan 100 ppm could result in used oilcurrently burned as fuel being divertedto incineration, or perhaps beingdumped, because the cost of blendingused oil to meet a stringent specificationcould be prohibitive and because of thedifficulty of finding new industrial (andutility) markets for oil that exceeds thespecification. If lowering the leadspecification level below 100 ppmdiverted used oil currently burned as afuel to incineration, the environmentalbenefits of that policy are questionable.It is not clear that metals emissions fromincineration would be adequatelycontrolled given that many hazardouswaste incinerators use wet scrubbersthat may not control lead emissionefficiently.

78

We therefore indicated that inconsidering a specification level lowerthan 100 ppm, the benefits from reducedlead emissions from used oil burned asfuel must be balanced against theprobability of (and adverse effects from)dumping and the diversion of used oilfrom use as a fuel to incineration.

We also specifically solicitedcomments on three other points (inaddition to an appropriate specificationlevel): (1) Whether factors other thanthose we considered need to beconsidered in determining the lead levelthat would ensure that the lead NAAQSis not exceeded; (2) whether a two-tiered specification, with a lower limitfor more populous areas and a higherlevel for less urban locations, would be

78 The Agency intends to control metalsemissions from boilers and industrial furnacesburning off-specification used oil and hazardouswaste under the permit standards to be proposed in1988. Once that rulemaking is initiated, the Agencyintends to consider whether metals emissions fromhazardous waste incinerators are adequatelycontrolled. -


Federal Register / Vol. 50, No. 230 '/ Friday, November 29, 1985 / Rules and Regulations '49185

appropriate; and (3) whetherspecification levels for arsenic,cadmium, and chormium would benecessary if a low level is promulgatedbecause used oil that fails thespecification levels for these othermetals would also be expected toexceed a low lead specification level.

A large number of comments werereceived concerning the leadspecification. They are discussed below.

(1) Selecting a Level from theProposed Range. Most commentersargued that EPA's proposed range of 10to 100 ppm is too stringent. Commentersstated that it would be difficult for usedoil to pass a lead specification of lessthan 100 ppm, which, they asserted,would not only severely restrict used oilburning, but lead to illegal dumping. Itwas also suggested (by a Statecommenter with substantial experiencein regulating used oil burning) that alead specification of 100 ppm would beunlikely to cause an exceedance of thelead NAAQS.

Some commenters concurred withEPA's selected range, favoring the highend of the range. A specification of 100ppm should be acceptable in all but themost densely populated areas, accordingto these commenters.

Selection of a relatively low levelfrom the range, such as 10 or 20 ppm,was recommended by a fewcommenters. Some opposed allowingany lead at all in used oil, except in deminimis quantities.

(2) Phase-in a Lower SpecificationLevel as Gasoline Lead Levels areLowered. The majority of commentersrecommended that EPA set an initialspecification for lead at a relatively highlevel, and then phase in lower levels inincremental steps, tied to the EPAmandated lowering of leadconcentration in gasoline which waspromulgated on March 7, 1985 (see 50 FR9386 and 9400). Commenters argued thatit would be illogical and unfair for EPAto require lead to pass lowspecifications in used oil, since most of.the lead in used oil originates from thelead in gasoline. Suggested initial levelsranged from the lead in gasoline.Suggested initial levels ranged from 500-1,000 ppm. Commenters also suggestedthat EPA build a time-lag into such aphasedown program, in which a certainminimum time after the effective date ofthe March 7, 1985 standards would beallowed to elapse before EPA wouldeffect a lower level for used oil. Such atime-lag would accommodate the delaybetween the actual use of the loweredlead in gasoline being sold and burnedin automobiles, and changing of the oil.

(3) Risk-Based Specification Level.Several commenters urged EPA to base

its specification for lead primarily, if notsolely, on health effects data and riskfrom lead exposure, rather than on thecurrent lead NAAQS or the 95thpercentile concentration in virgin fueloil. These commenters argued thatregardless of typical contaminationlevels of lead in virgin fuel oil, EPA isnot justified in allowing the burning ofused oil with lead levels that may causeserious health effects. Raised blood leadlevels in young children and the dangerof lead poisoning to pregnant womenwere cited. Commenters emphasizedthat lead is bioaccumulative, meaningthat repeated intake over time results inadditive levels in the body.

(4) Two- Tiered Approach. Only a fewcommenters addressed the suggestedtwo-tiered approach to regulating lead.Commenters stated that it would onlycause cleaner, nonurban areas tobecome more polluted.

(5) The Need to Regulate Arsenic,Cadmium, and Chromium if a Low LeadSpecification Level is Selected. Mostcommenters recommended that arsenic,cadmium, and chromium be regulated,even if a low lead level is promulgated.In general, commenters argued that it.has not been shown that the level ofthese metals varies proportionately withlead. Used oil could conceivably have a16w concentration of lead, but higherlevels of one or more of these threemetals. Restrictions for arsenic,cadmium, and chromium were suggestedas a safeguard.

(6) Response to Comments. Afterevaluation of these comments, we havedecided to promulgate a leadspecification of 100 ppm, but to delaythe effective date by six months. (Theother specification parameters areeffective 10 days after the date ofpublication.) As discussed at proposal,we believe that this level will ensurethat nonindustrial boilers do not causeambient levels to exceed the currentNAAQS except in unique and trulyextreme scenarios. See 50 FR at 1698(January 11, 1985). Moreover, we areconcerned that promulgation of a levellower than 100 ppm at this time couldcause major disruptions to the used oilrecycling industry resulting in diversionof oil or dumping with uncertain andpotentially adverse environmentaltrade-offs. (Similar concerns were raisedby the House Energy and CommerceCommittee in their report on the RCRAamendments. See H.R. Rep. No. 98-198at 66.]

The 100 ppm lead specification levelpromulgated today is intended as aninterim measure. The Agency believesthat this lead level may not be as .protective as reasonably possible giventhe new health.effects data mentioned -

above. On the other hand, until weknow more about the impacts of theother two rules affecting management ofused oils (the soon-to-be proposedrecycled oil management standards andthe permit standards for boilers and 'industrial furnaces that will be proposedin 1986) on the used oil industry and,ultimately, on used oil flows, we areconcerned that a lower level may causeimpacts that could result in dumping orincineration of used oil with uncertainenvironmental trade-offs. Therefore, theAgency will evaluate the risks and costsof a lower lead level in conjunction withthe third rule of the series-permitstandards for boilers and industrialfurnaces-scheduled to be proposed in1986. Thus, the Agency's final positionon the lead specification will beincluded in the permit standardsrulemaking.7

In response to commenters' concernsthat a lead specification level as low as100 ppm could cause major disruptionsof the industry and could result indumping, the effective date of the leadspecification is delayed six months. Bythat time, the Agency's gasoline leadphase-down standards will result inlowered lead levels in used crankcaseoil so that a major disruption of theindustry will be avoided, as discussedbelow.

On March 7, 1985, EPA promulgatedstandards restricting lead levels ingasoline (see 50 FR 9386 and 9400). Thestandards require that lead be reducedfrom the previous limit of 1.1 grams/gallon to 0.5 g/gal by July 1985, and to0.1 g/gal by January 1986. This reductionof lead in gasoline should result in a

7We note that the Regulatory Impact Analysis

(RIA) developed to support the recycled oilmanagement standards soon to be proposedincludes a preliminary analysis of the cost andbenefits of lower lead levels. The analysis wasinitiated before the Agency decided to select 100ppm as an interim lead specification and to make itsfinal decision on the lead specification in the permitstandards rulemaking. In addition, that RIAattempts to predict used oil flows, and thusregulatory impacts of the proposed rule, assumingall three rulemakings are in place. Thus, the RIAmakes the best assumptions possible at the time onthe cost of compliance with anticipated controls forboilers and industrial furnaces burning off-specification used oil fuel. Nonetheless, thatpreliminary analysis appears to indicate that leadspecification levels lower that 100 ppm would becost-effective. The Agency intends to review thatanalysis, up-date assumptions on permit standardsand "flow" changes as necessary, and to include acomprehensive analysis of the cost and benefits oflower lead specification levels in the RIA for thepermit standards rulemaking. In the interim, the RIAfor the recycled oil management standards will bein the public docket for that rulemaking once it isproposed. Comments received on that portion of theRIA dealing with cost and benefits of lower leadspecification levels will be considered in developingthe Agency's position on this issue in the permitstandards ralemakina.


49186 Federal Register / Vol. KO o 3 rdy oebr2,18 ue n euain

concomitant reduction in lead levels inused oil. We have analyzed the potentialimpacts of imposing the 100 ppmspecification either immediately alongwith the other specification parametersor in the Spring of 1986, roughly sixmonths after promulgation."9 Using adata base of 143 used oils sampled in1983, we extrapolated resulting leadconcentrations to the 1985-86 and 1986-87 heating seasons. Based on the July1985 reduction of lead in leaded gasolineto 0.5 g/gal, we assumed an averagelead concentration (for leaded andunleaded gasoline) of 0.2 g/gal forgasoline affecting used oil to be burnedin the 1985--86 heating season. Similarly,based on the January 1986 reduction oflead in leaded gasoline to 0.1 g/gal, weassumed an average lead concentration(for leaded and unleaded gasoline) of0.05 g/gal for gasoline affecting used oilthat would be burned in the 1986-87heating season. The average lead levelsin gasoline were estimated assuming aratio of 40% leaded to 60% unleadedgasoline consumption for the 1985-86heating season, and a ratio of 37.5%leaded to 62.5% unleaded gasolineconsumption for the 1986-87 heatingseason. (We also assumed that leadlevels in all used oils would decreasebecause of the gasoline leadphasedown.)

This analysis demonstrates that delayof the implementation of thespecification will provide time for thelead phasedown in gasoline and,consequently, in used oil. Significantlymore used oil can pass the leadspecification in May 1986 than today.The table below illustrates the drop inlead levels in used oil as the lead isreduced in gasoline.

TABLE 4.-PROJECTED CHANGES IN LEAD CON-CENTRATION IN USED OIL AS LEAD IS RE-DUCED IN GASOLINE (PPM)

Percentile 1983 - Late May1985 1986

35 .................................................... 114 69 3940 ............................. ..................... 177 115 4450 ..................................................... 490 217 6775 .................................................... 856 337 9580 ........................................ 940 367 10495 ..................................................... 1,417 546 248

Source: Franklin Associates Ltd., Effects of Delay in the/niplenentation of a Lead Specification on the Ability of UsedOil to Pass the Specification, June 4,1985.

As shown, only about 40% of the usedoil can pass the lead specification of 100ppm now. Delay for six monthsincreases the total quantity passing thelead specification to about 80%.

"Franklin Associates, Ltd., Effects of a Delay in

the Implementation of a Lead Specification on theAbility of Used Oil to Pass the Specification, lune 4,1985.

Delaying the effective date of the leadspecification has a corresponding effecton the amount of used oil that can passthe specification levels for all of themetals (i.e., lead, arsenic, cadmium, andchromium). As shown in the tablebelow, we estimate that the amount ofunblended used oil that can meet themetals specification levels more thandoubles if the effective date of the leadspecification is delayed six months to.May 1986 (i.e., 20% vs. 46%).

TABLE 5.-EFFECTS OF DELAYING THE EFFEC-

TIVE DATE OF THE LEAD SPECIFICATION ONTHE PERCENT OF SAMPLES THAT PASS THESPECIFICATIONS FOR ALL METALS

Percent of samples passing metals Nv May 1986specificatons assuming- 9 (percent ) percent)

Unblended used oil ..... 20 4675 pct Virgin/25 pct used oil ................ 59 6990 pct Virgin/10 pct used oil ................ 91 91

Source: Franklin Associates, Ltd., Effects of a Delay in theImplementation of a Lead Specification on the Ability of UsedOil to Pass the Specification, June 4, 1985.

Although the effect of delaying thelead specification is much lesssignificant when used oil is blendedwith virgin oil (e.g., 59% of used oilblended 75%/25% with virgin oil (75%virgin oil) could meet the metalsspecification in November 1985 while69% could pass in May 1986), the Agencyis uncertain whether substantialquantities of used oil will be blendedwith high percentages of virgin oil in thefuture. We believe that "virgin oil"distributors historically have done muchof the blending at the higher ratios (e.g.,90% virgin and 10% used oil) in order tosell the mixture to the nonindustriatmarket as virgin oil. It is not clear,however, whether these distributors willcontinue to handle used oil given thatthey would have to comply with thenotification (and other) requirement(s)of today's rules, which would make theirused oil management activities publicknowledge. Although blending used oilwith high percentages of virgin oil tomeet today's specification may beeconomical in the future in some cases,especially by persons currentlyconsidered primarily used oilprocessors, we are concerned that itmay take some time for these heretofore(primarily) processors to increase theirblending capacity and to find marketsfor used oil blended with highpercentages of virgin oil. (Such"processors" would essentially becomefuel oil distributors as well.) Thus,substantial quantities of used oil maynot be b!ended with high percentages ofvirgin oil in the near term (if ever).Consequently, delaying the effectivedate of the lead specification isexpected to substantially increase the

quantity of used oil that can meet themetals specification levels.

In summary, we believe that a six-month delay in implementing the leadspecification is more responsible thanmaking it effective immediately, andmay, in fact, result in greaterenvironmental benefit than immediateimplementation.

With regard to other leadspecification issues, we have decidedagainst development of a two-tieredlead specification level for urban versusrural areas in this rulemaking.Commenters did not support theapproach, it would be difficult todevelop, support, and implement, and itwould encourage burning of dirty fuelsin areas with clean air.

Specification levels for arsenic,cadmium, and chromium are alsoretained. As stated in the proposal, weare concerned that once lead levels inused oil begin to drop, oil willincreasingly fail the specificationbecause of one of these other metals.Without the lead specification, burningof these oils would not be controlled.

b. Arsenic, Cadmium, and Chromium.In the preamble to the proposal, EPAstated that widespread, unrestrictedburning of used oil in boilers can resultin a substantial increase in ambientlevels of the metals arsenic, cadmium,and chromium since 30-75% of themetals in the fuel can be emitted.Because these metals are carcinogenic,and thus, have no known threshold orsafe level of exposure, these increasedambient concentrations would cause anincreased risk of cancer to exposedindividuals. Specification levels werebased on levels of these metals found indirty virgin fuel oil (i.e., 95th percentilemetals levels) because we argued that:(1) Higher levels could result insubstantial risk (i.e., 10- 4) given thatlarge numbers of persons in urban areasare exposed to emissions fromnonindustrial boilers; and (2) lowerlevels could result in dirty virgin fuel oildisplacing used oil withoutenvironmental benefit. (See 50 FR at1697 (January 11, 1986).)

Several comments specificallyquestioned EPA's rationale for settingspecification levels based on the 95thpercentile level of those contaminants invirgin fuel oil. A few commenters statedthat because these metals can causeserious health problems, specificationlevels should be based directly on riskto health rather than on concentration invirgin oil. Other commenters (includinga major environmental group), however,supported our decisiun to use the 95thpercentile of virgin fiuel oil as areference point. A few respondents

No. 230 / Friday, November 29, 1985 / Rules and Regulations49186 Federal Re ister / Vol. 50,



argued that the specification levelsselected on the basis of the 95thpercentile in virgin oil were toostringent, and that EPA was beingoverly conservative in assuming thatthere are no safe levels of exposure forthese metals. Workplace threshold limitvalues (TLVs) and safe drinking waterstandards were cited as morereasonable for use as specificationlevels.

These arguments are unpersuasive.For the reasons discussed in thepreamble to the proposed rule andsummarized above, we continue tobelieve that limiting levels of thesemetals to 95th percentile levels in virginfuel oil is appropriate.

Several commenters also disagreedwith the assumptions used to assess riskfrom chromium (i.e., that all chromium isemitted in its carcinogenic, hexavalentstate and, thus, can cause increasedcancer risk to exposed individuals).These commenters protested EPA'sassumption that chromium is emitted inthe hexavalent form followingcombustion. Comments ranged fromassertions that EPA had no data orinformtion to make such an assumptionto theoretical arguments that whencombusted, trivalent chromium wouldnot be converted to hexavalentchromium. In general, these commenterssuggested that EPA defer specifying alevel for chromium until the Agencyconducts studies to definitivelydetermine what happens to chromiumwhen burned in boilers.

We agree that only the hexavalentform of chromium has been proven to becarcinogenic, although it is a very potentcarcinogen. The data are inadequate toclassify the trivalent chromiumcompounds as to their carcinogenicity. 80

However, we believe that assuming allchromium compounds emitted fromburning used oil in boilers arehexavalent chromium is a conservative,but reasonable assumption. Ibid.Although it is likely that a mixture of thetwo forms is emitted, information is notadequate to specify the form or therelative quantities of each. Ibid. EPA hasinitiated an extensive study to betterunderstand the amount of hexavalentchromium and total chromium beingemitted from major sources includingcoal and oil fired boilers and municipleincinerators. In addition, EPA hasformally called for information on issuespertinent to the risk posed by airbornechromium emissions including: (1) Arethere adverse health effects associated

50 See EPA's public notice of "Intent to ListChromium or Hexavalent Chromium as aHazardous Air Pollutant (50 FR 24317-19 (June 10,

91..

with exposure to trivalent chromium?;(2) does trivalent chromium transform inthe atmosphere or in the environment tohexavalent chromium and vice versa?;and (3) what is the relative quantity ofhexavalent and trivalent chromiumemitted from chromium sources? Ibid.

The Agency, however, cannotpostpone regulatory action, givenespecially that used oil containssignificantly higher chromium levelsthan virgin fuel oil. Until moreinformation is available on these issues,the Agency will therefore continue toassume that chromium emissions are inthe hexavalent form.8 1

c. Flash Point. Used crankcase oilscan be contaminated with highlyignitable constituents of gasoline suchas benzene, toluene, and xylene fromengine blow-by. Used oils can also bemixed after use with gasoline or otherhighly ignitable nonhalogenatedsolvents such as xylene. Even low levelsof contamination with these low flashpoint compounds can reduce the flashpoint of used oils, normally greater than200°F, to levels lower than 100°F. Nearly7% of 650 used oil samples had a flashpoint below 100F.8 2

EPA proposed a specification of 100°Fbecause it is the American Society forTesting and Materials' (ASTM)minimum flash point specification levelfor virgin fuel oils. EPA reasoned thatburners are not accustomed to handlingsuch fuels and so used oils with a lowerflash point may present significanthazards during handling and storage.Thus, such low flash point oils need tobe controlled. EPA specificallyrequested comment on whether suchlow flash point used oils should beregulated as off-specification used oilfuel as proposed, or as hazardous wastefuel.

One commenter argued that low flashpoint used oil should be subject toregulation as hazardous waste fuel toprovide adequate controls duringstorage and transportation. While sharethe commenter's concerns, we havedecided that low flash point oil shouldbe regulated as off-specification usedoil, not hazardous waste fuel. This finalrule is therefore the first step in theAgency's efforts to regulate the blendingand burning of hazardous waste andused oils fuels. Storage'andtransportation controls for used oil,including off-specification used oilburned for energy recovery, are soon tobe proposed and controls (i.e., permit

81 See also: U.S. EPA, The Air Toxics Problem inthe United States: An Analysis of Cancer Risks ForSelected Pollutants, May 1985.

82 Franklin Associates Ltd., Composition of UsedOil, Appendix A.

standards] on the actual burning ofhazardous waste and off-specificationused oil fuels are scheduled to beproposed in 1986. Thus, we believe itmay be confusing to the regulatedcommunity and may preempt regulatoryoptions in these future rulemakings tosubject in piecemeal fashion used oiloff-specification only for flash point toregulation as hazardous waste fuel. As amatter of fact, the recycled oilmanagement standards propose thatused oil, including off-specification usedoil fuel, be subject to the samesubstantive storage and transportationcontrols for hazardous waste in manysituations.

As a final note on this point, low flashpoint used oil cannot be presumed to behazardous waste under the mixture rule(i.e., because the oil is mixed withignitable hazardous waste). Asexplained in section IV.B.3 above, thelow flash point may be attributable tolow flash point constituents of gasoline(e.g., benzene, toluene, or xylene) addedto crankcase oil during use.

Several commenters argued that aspecification level of 100 °F isinconsistent with the definition ofignitable hazardous waste that uses aflash point of 140 'F or below to defineignitability. See 40 CFR 261.21. Weexplained at proposal the basis for thedifference. See 50 FR 1699, n. 58. The 140°F flash point limit defining an ignitablewaste was based primarily on thehazard posed during land disposal.Given that virgin fuel oils can have aflash point as low as 100 °F, we believethat used oils with flash points of 100 'Fto 140 'F pose no greater hazard thanvirgin fuels (provided they meet theother specification limits).

D. Comments on Allowing Blending toMeet the Specification

The Agency received a large numberof comments for and against allowingblending of used oil to meet the used oilfuel specification. Operators of used oilrerefineries and some Stateenvironmental officials argued againstallowing blending primarily because: (1)Blending does not reduce the totalquantity of metals emitted from used oilburning in an urban area-blendinglimits the emissions from individualsources but allows (in theory) a largernumber of sources to burn blended oil sothat the same quantity of used oil isburned annually in a given area (and thesame quantity of metals are emitted);and (2) allowing blending creates aneconomic disincentive to remove metalsfrom used oil by rerefining to producelube oil (and a low-metal content fuel

49187This information is reproduced with permission from HeinOnline, under contract to EPA. By including this material, EPA does not endorse HeinOnline.


by-product) 8 2 because blending formarketing as fuel is often moreprofitable than substantial processing.

On the other hand, processors andblenders argued that blending should beallowed because it results in a used oilfuel product that, in general, poses nogreater health risk than virgin fuel oils.They argued further that grosslycontaminated used oil cannot beeconomically blended to meet thespecification and will go to rerefiners forproduction of lube oil or to industrialboilers and industrial furnaces for useas a fuel. 83

Processors and blenders also arguedthat without blending, alternate marketsmay not be available to handle the usedoil diverted from burning potentiallyleading to adverse environmental effects(see section IV.C.3 above). Industrialboilers and industrial furnaces may notbe able or willing to burn off-,specification used oil given the Agency'splans to regulate such burning(beginning with the notification andother administrative controls providedby today's -rule]. Further, rerefinerscannot be presumed to be an unlimitedoutlet for used oil. Although manyrerefineries are operating belowcapacity today, and could perhaps -double their capacity within a few yearsto handle the increased supply ifblending were prohibited, profitability ofrerefining depends on more than anavailable supply of used oil. Marketingfactors such as demand for recycledlube products and price fluctuations invirgin lube products (resulting fromfluctuations in crude oil prices or otherfactors) are also critical. Thesemarketing factors may have played aslarge a role historically in limiting theviability of used oil rerefining as has theproblem of inadequate supply of used oilfeedstock due to competition from thelargely unregulated used oil fuel market.Thus, processors and blenders believethat without blending, neither theindustrial fuel market nor the rerefiningmarket would be able to handle the usedoil that would exceed the specification.

The Agency agrees with points madeby both sides. The rule does potentiallyencourage blending, blending creates adisincentive to remove metals byrerefining, and blending per se does not

81 Once used oil is processed to remove metals, itis considered more profitable to further process theoil to produce lube oil rather than to market it asfuel oil.

13 Potential hazards posed by burning of off.specification used oil in these devices should betemporary. The Agency intends to propose permitstandards for burning off-specification used oil fuel(and hazardous waste fuel) that will require that theowners and operators of all boilers and industrialfurnaces burning these fuels limit metal emissions.

reduce (in theory) mass emissions ofmetals in an urban area. However, webelieve that some highly contaminatedused oils cannot be economicallyblended and will go to rerefining or toindustrial boilers or industrial furnacesthat control metal emissions (eithercurrently, or eventually under rules theAgency will propose in 1986). Inaddition, as discussed above, it is notclear that rerefineries and the industrialfuel market would have the capacity tohandle the used oil exceeding thespecification if blending were notallowed. In that case, used oil divertedwould be incinerated or dumped, withuncertain environmental trade-offs (i.e.,compared to allowing blending).Although blending does not reduce (intheory) mass-emissions in an urbanarea, blending of used oil to meet thespecification reduces the risk to themost exposed individuals. Finally, andmost significantly, we believe thatblending results in a product that canpose no greater hazard than dirty virginfuel oil.

For these reasons, today's final ruleallows blending. It should be noted,however, that this rule is only the first ofthree rules that will significantly affectthe used oil recycling industry. As wedevelop these rules, we will examine"flow changes" caused by theregulations (e.g., increase in rerefining,decrease in road oiling, etc.). At thatpoint, we will be better able todetermine whether our rules only serveto promote dilution versus removal ofmetals (e.g., by rerefining or. by burningin devices with adequate emissionscontrol equipment). We cannot, at thistime, conduct such an assessment, andfor the reasons cited above, can find nobasis to prohibit blending. ,

E. Consideration of a Total Ban onBurning Used Oil in NonindustrialBoilers

At proposal, EPA requested commentson whether all used oil burning innonindustrial boilers should be banned.See 50 FR 1693-94. EPA was primarilyconcerned that used oil could be mixedwith hazardous waste and illegallymarketed as used oil fuel meeting thespecification.

Several commenters argued forbanning all used oil burning innonindustrial boilers. These commenterswere concerned that used oil would beillegally adulterated with hazardouswaste once the used oil is outside theregulatory system (i.e., once a collector,processor, or blender documents theused oil meets the specification). Thesecommenters reasoned that illegaladulteration is inevitable given the

current practice, particularly in theNortheast, of mixing hazardous spentsolvents with used oil for marketing asvirgin fuel oil (usually after blendingwith virgin oil),84 given the nature of theused oil and waste managementindustry (again, particularly in theNortheast), 5 and given the profitabilityof illegal adulteration. It should be notedthat the issue these commenters raisehere is whether the proposed regulatoryscheme (i.e., allowing burning ofunregulated used oil meeting thespecification in nonindustrial boilers)can be adequately enforced, notwhether the specification itself, inconjunction with the rebuttablepresumption of mixing halogenatedwastes, is protective per se.

Other commenters opposed anoutright ban on burning used oil innonindustrial boilers. These commenterswere concerned that a ban could lead toillegal dumping or incineration of usedoil with adverse or uncertainenvironmental trade-offs. For reasonsdiscussed above, rerefinery capacityand the industrial fuel market may beinadequate to handle used oil divertedfrom nonindustrial boilers under a ban.

Today's rule therefore allows burningof used oil meeting the specification innonindustrial boilers (or any other boileror industrial furnace) for a number ofreasons. We continue to believe that thespecification, in conjunction with therebuttable presumption of mixing, willdetect and control used oil illegallyadulterated with hazardous waste. See50 FR 1693, n. 28. In addition, these ruleshave been developed with anunderstanding of the current practices ofthe industry and should result in cost-effective enforcement. Specifically, thecontrols are focused primarily on theseveral hundred marketers of these fuels-rather than the potentially thousands ofburners. These marketers mustdetermine whether they are handlinghazardous waste fuel, off-specificationused oil, or unregulated used oil thatmeets the specification, and mustmanage the fuel accordingly. Therebuttable presumption of mixinghazardous chlorinated waste with usedoil, and the use of oil fuel specificationwill enable both marketers and

1, National Enforcement Investigations Center,U.S. EPA, Summary of Waste Oil Recycling FacilityInvestigations. October 1983.

11 Proceedings of the New York State AssemblyStanding Committee on EnvironmentalConservation Public Hearing on the UnlawfulDisposal of Solid and Hazardous Wastes:September 24-26, 1984 at the New York Chamber.ofCommerce and Industry, New York (Volumes 1, 11,II B, and III C), and September 19-21, 1984 at theOrange County Government Center, Goshen, NewYork (Volume 1, 11, and llI).


Federal Register / Vol. 50, No. 230 / Friday, November 29, 1985 1 Rules and Regulations

enforcement officials to make a clear,objective determination of the type offuel in question, and thus, the applicablecontrols. Further, the tracking system forfuel shipments, used oil analysisrequirements, and recordkeepingrequirements are intended to fosterefficient and effective enforcement.

It should be noted that, in response tocommenters' concerns aboutenforceability and tracking of used oilthat meets the specification, today's ruleexpands the recordkeeping requirementsfor used oil meeting the specification. Inaddition to records of analysis requiredby the proposed rule, the person whofirst claims used oil fuel meets thespecification must also keep a record ofpertinent information regarding theshipment of the used oil including: nameand address of the receiving facility,date of shipment, and quantity shipped.See § 266.43(b)(6)(i). This will enableenforcement officials to trackmovements one step beyond the initialmarketer. We considered applyingrecordkeeping requirements to allsubsequent marketers (e.g., distributors)until the used oil fuel is ultimatelyburned. We decided not to, however,given that the used oil fuel poses nogreater risk than virgin fuel oil and, onceit enters the commercial fuel oil market,should not be regulated differently thanvirgin fuel oil. (We note, however, thatsubsequent adulteration with hazardouswaste or off-specification used oilmakes specification used oil subject toregulation as either hazardous wastefuel or off-specification used oil fuel.)

Moreover, in response to commenters'concerns discussed above, we reasonedthat hazardous waste could be illegallymixed with virgin fuel oil, as well aswith used oil fuel, and sold tononindustrial boilers. (Comments of theState of New Jersey illustrate that thistype of illegal mixing is presentlyoccurring.) Thus, the risk of adulteringlegitimate fuels with hazardous waste isnot unique to used oil. In light of theseconsiderations, there is no compellingreason to further regulate specificationused oil fuel by additionalrecordkeeping or by a ban on burning innonindustrial boilers.

F. Analytical Testing to DemonstrateCompliance with Specification Levelsand the Rebuttable Presumption

At proposal, EPA indicated thatgeneral guidance on sampling andanalysis is provided in EPA, TestMethods for Evaluating Solid Waste,July 1982, SW--846 (U.S. GPO). See 50 FR1705. EPA indicated further that theAgency is revising digestion proceduresrecommended by SW--846 for organicliquids prior to determihation of metals

concentrations. We were aware that thedigestion procedures specified byMethods 3030 and 3050 do not result ingood recovery of metals in some oilymatrices. Finally, EPA indicated atproposal that it was verifying theaccuracy and precision of two field testsfor total chlorine that are quick andinexpensive-an adaptation of theBeilstein flame colormetric test, and afield test kit using chemical colormetricprocedures.

A number of commenters requestedthat EPA specify acceptable analyticalprocedures for halogens, metals, andflash point, and to prescribe acceptabletesting frequency. Several commentersalso indicated that the Beilstein chlorinetest is neither quantitative nor reliable(because of interferences withcontaminants) and, thus, not a usefultest.

The following sections specifyrecommended analytical procedures anddiscuss the Agency's position onsampling procedures.

1. Chlorine. EPA's test methodsmanual, SW-846, does not include ananalytical technique for determiningtotal halogens (reported as totalchlorine) in oil. Until a total halogentechnique for oils is formally added toSW-846 as an approved-test, EPArecommends the broadly acceptedASTM D808-81 method (i.e., oxygenbomb followed by titrimetric halogendetermination.

The Agency is also evaluatingautomated halogen determinators andbelieves that they may prove to beacceptable in many situations. Inaddition, the Agency is continuing toevaluate the flame and chemicalcolormetric field tests and believes thatthe chemical colormetric test inparticular may prove to be acceptable inmany situations.

The Agency anticipates it willformally propose in early 1986 to addthe ASTM D808-81 chlorinedetermination method to SW-846 as anapproved test. The Agency will alsodecide at that time whether informationis adequate to propose to add eitherfield test or the automateddeterminators to SW-846 as approvedtests.

2. Metals. EPA is aware that digestionprocedures specified by.SW-846 forsedimentaceous oils prior to metalsdeterminations (i.e., methods 3030 and3050) do not result in complete digestionand release of metals in some oilymatrices. EPA is evaluating reviseddigestion procedures and anticipatesproposing revisions to the procedures inearly 1986. In the interim, EPArecommends using digestion method

3050 followed by the determinationmethod appropriate for specific metals(see Table 6). For non-sedimentaceousoils, however, the 'olvent dissolutionprocedures of method 3040 may be usedin lieu of digestion method 3050.

TABLE 6.-RECOMMENDED ANALYTICALPROCEDURES

Parameter Method Source

Total halogens D808-81 ................ ASTM.Flash point ............ 1010 ................ SW-846 and

Proposed TestMethods forEvaluatingSolid Waste'.

Preparation Deter-mination

Arsenic ................... 3040*13050 7060 SW-846 andProposed TestMethods forEvaluatingSolid Waste.

Cadmium ................ 30401/3050 6010 Do.71317131

Chromium ............... 3040*13050 6010 Do.71917191

Lead ........................ 304013050 6010 Do.74207421

Notes:*Recommended only for non-sedimentaceous oils.tSW-46 (Test Methods for Evaluating Solid Waste) is

available from the U.S. Government Printing Office. ProposedTest Methods for Evaluating Solid Waste is available fromNTIS under order No. PB8-103-026.

3. Flash Point. Procedures for flashpoint determinations are provided byMethod 1010 in SW-846. Method 1010uses the Pensky-Martens closed cuptester.

4. Frequency of Testing. Manycommenters asked EPA to prescribe aminimum testing frequency that wouldeliminate the liability associated withthe question of how much testing isenough to demonstrate that the halogenlevel for the rebuttable presumption ofmixing or the specification is notexceeded. Commenters were alsoconcerned that EPA consider the costand practicability of testing whenestablishing a minimum testingfrequency. A few commenters requestedthat generators, collectors, andprocessors be allowed to certify that theused oil meets the specification and hasnot been mixed with hazardous waste inlieu of testing.

We address the certification questionfirst and then the issue of specifyingfrequency of testing.

a. Certification in Lieu of Testing.Testing is not specifically required todemonstrate conformance with therebuttable presumption of mixinghazardous halogenated wastes. Thus a,certification passed from party to partystating that hazardous waste has notbeen added to the used oil appears to bea prudent business approach.Nonetheless, the certifications would

49189



not lessen the burden to rebut thepresumption of mixing if in fact the usedoil were found, for example by EPAenforcement officials, to contain morethan 1000 ppm of total halogens. Giventhe profitability of mixing hazardouswaste with used oil (i.e., charginggenerators for waste disposal andselling the waste, after blending with oil,as a fuel), the nature of the industry (seenote 85), and past practices of illegalmixing of hazardous waste with used oil(see note 84), the Agency will notnecessarily accept any claim orcertification from any party. Nor wouldsuch an approach be consistent withother long-established hazardous wasterules. See, e.g., 40 CFR 262.11(generators must determine if theirwastes are hazardous and are inviolation of regulations if theirdetermination is erroneous). We thinkthat the rebuttable presumptionpromulgated today provides anobjective means of distinguishingbetween used oil and hazardous wastewhenever a question exists and we planto use the presumption routinely duringinspections of used oil facilities.

When a person first claims used oilfuel meets the specification, today's rulerequires that he obtain an analysis orother information to support the claim.Thus, testing is not specifically requiredto demonstrate compliance with thespecification. (Ordinarily, however, weexpect that testing will be used todemonstrate compliance.) The "otherinformation" could include personal,special knowledge of the source andcomposition of the used oil 86 or acertification from a generator to theprocessor claiming the oil meets thespecification. As explained above,however, if a person who claims used oilfuel meets the specification based on"other information" and thedetermination is found to be erroneous(i.e., if testing reveals that the oil failsthe specification), he is in violation ofthe regulations.

It should be noted further that if amarketer claims used oil fuel meets thespecification when in fact it does notwhen analyzed by EPA or Stateenforcement officials at any point untilultimately burned, it is not a defensethat the recipient (or subsequentrecipients) reasonably believed the oil

86 Repeated testing may not be warranted inevery situation. For example, a generator who burnson-site his used oil that testing shows meets thespecification may elect to eliminate or reduce thefrequency of testing if, for example, the processesthat generate the oil do not change. In this case, thegenerator is using "other information" in lieu oftesting. Nonetheless, if his determination iserroneous, he is in violation of the regulations, asexplained in the text

met the specification. (Again, thisapproach is identical to that used forhazardous waste.)

EPA and State enforcement officialsalso have the authority under RCRAsection 3007 to enter the premises of aperson believed to be handling used oilfuel (including trucks in the process oftransport) and to collect samples of fueloil, irrespective of whether the personreasonably believes his used oil fuelmeets the specification, for the purposesof determining compliance with themarketing requirements of today's rule.Thus, a person may not deny accessbecause he believes the used oil fuel hemanages meets the specification and isno longer subject to regulation.

b. Frequency of Testing. Thefrequency of testing necessary to ensureconformance with today's rules willvary from situation.to situationdepending on factors including: (1) Typeof, and changes in, sources of used oil;(2) historical results of tests; (3) tankfilling and drawdown practices; and (4)tank capacities. Although today's ruledoes not necessarily require that eachincoming shipment of used oil beanalyzed for conformance with thepresumption of mixing, or that eachoutgoing shipment of specification usedoil fuel be analyzed for conformancewith the specification (or that testing beconducted at all), the marketer must besatisfied that each such shipment soconforms. In short, testing must beconducted as often as necessary, andthe burden is necessarily on themarketer to determine how often isoften enough. (This is comparable to agenerator's responsibility to determinewhether the wastes he generates arehazardous. See 40 CFR 262.22.)Therefore, we believe it is notpracticable to prescribe a testingfrequency that is appropriate for all.situations.

IV. Regulation of Combustion Residuals

Some commenters asked whetherresiduals (e.g., fly ash, bottom ash) fromburning hazardous waste or used oil forenergy recovery are subject toregulation as hazardous waste. Unlessspecifically excluded from regulation ashazardous waste as discussed below,such residuals are hazardous waste if:(1) The residuals (from burning eitherhazardous waste or used oil) exhibit acharacteristic of hazardous waste; or (2)the residuals result from burning listedhazardous waste and the residual hasnot been "delisted" under petitioningprocedures of § 260.20 (see § 261.3(c)(2)).

These are not new requirements (andare not being revised in any manner bytoday's rules). These residuals have

been subject to regulation as hazardouswaste since the RCRA standards werepromulgated in 1980. Although theactual burning for energy recovery is atype of recycling currently exempt fromRCRA regulation, the exemption doesnot extend to solid waste generated byrecycling.

RCRA Section 3001 temporarilyexcludes specific combustion residualsfrom regulation as hazardous waste. Theexclusion is codified at § 261.4(b)(4) andapplies to residuals from combustion ofprimarily fossil fuels. The Agency hastemporarily interpreted this exclusion tomean that the following solid wastes arenot hazardous wastes: "fly ash, bottomash, boiler slag and flue gas emissioncontrol wastes resulting from (1) thecombustion solely of coal, oil, or naturalgas, (2) the combustion of any mixture ofthese fossil fuels,,or (3) the combustionof any mixture of coal and other fuels,including hazardous waste or used oilfuels, up to a 50 percent mixture of suchother fuels." Thus, until the boiler andindustrial furnace rules address thisissue in 1986, residuals from burning thefossil fuels oil or gas with any quantityof hazardous waste fuel or used oil fuelare not excluded from regulation under§ 261.4(b)(4). Residuals from burningcoal and up to 50% hazardous wastefuel, however, are excluded.8 7' 88, 8

07 Taken from correspondence from Gary N.Dietrich, Associate Deputy Assistant Administratorfor Solid Waste, EPA to Paul Emler, Jr. Chairman,Utility Solid Waste Activities Group, dated January13,1981. Mixtures of coal and up to 50% of otherfuels are excluded from regulation (at this time)because any contaminants from the other fuels (e.g.,hazardous waste) would be largely diluted by thecoal 'combustion residuals. This may not be the casewith oil or gas combustion given the low volumes ofbottom and fly ash generally produced fromcombustion of these fuels.

88 These residuals may in fact contain onlyminimal levels of toxic organic compounds insituations where boilers (and industrial furnaces)are operated to achieve Iihaximum combustionefficiency. The Agency is considering duringdevelopment of the permit standards for boilers andindustrial furnaces modifying the derived-from ruleto exempt noncharacteristic residuals in caseswhere we are certain that residuals do not containsignificant levels of toxic organics.

so We note that the exclusions (from regulation ashazardous waste) for certain large volume wastesproduced by facilities under the "mining waste"exclusion of § 261.4(b)(7) may apply to certainindustrial furnaces burning hazardous waste orused oil. Any such exclusions apply (pendingdevelopment of the boiler and industrial furnacepermit standards) irrespective of whether thedevices burn hazardous waste or used oil for energyrecovery given the likely effect of dilution of anycontaminants attributable to the hazardous wasteor used oil. Similarily, the exclusion for cement kilndust provided by § 261.4(b)(8) applies irrespective ofwhether the kiln burns hazardous waste or used oilfor energy recovery.



EPA also is providing that residuesfrom burning hazardous waste fuels thatare exempt from regulation under§ 261.6(a)(3)(v)-(ix) (i.e. hazardous wastefuels derived from petroleum industrywastes, petroleum coke derived fromcertain petroleum industry hazardouswaste, and coke and coal tar derivedfrom steel industry decanter tank tarsludge) are not covered by the derivedfrom rule. With respect to burningpetroleum industry fuels derived frompetroleum industry wastes, these fuelsmay be no different in composition thanvirgin fuels (at least when low volumesof wastes are introduced into therefining process). See sections III.C.1and 2 above. Under thesecircumstances, wastes from burningthese fuels also would be no differentthan from burning virgin fuels, so thederived-from rule should not apply.

EPA is exempting from the derived-from rule wastes from burningpetroleum coke to further Congressionalintent that the coke is subject toregulation only if it exhibits a .characteristic of hazardous waste.RCRA section 3004(q)(2)(A). Thus,consistent with § 261.3 (c)(2) and (d)(1),wastes from burning the coke shouldonly be considered hazardous whenthey exhibit a hazardous wastecharacteristic. With respect to the ironand steel coke and coal tar, EPA hasfound that these waste-derived fuels arenot significantly different than the virginfuels for which they substitute (and thatthe organic toxicants in these fuels arelikely destroyed by burning as well).Thus, the derived-from rule should notapply to the wastes from burning, whichalso would be comparable to the wastesfrom burning virgin coke and coal tar.

V. Consideration of SpecialRequirements for De Minimis QuantitiesBurned On Site

Several commenters suggested thatEPA establish a de minimis quantity ofoff-specification used oil fuel andhazardous waste fuel that could beburned without regulation. Althoughcommenters suggested-various quantitylevels to qualify for an exemption, themajority recommended a limit of 0.5-1%of the total fuel consumption of theboiler or industrial furnace. Somecommenters also urged EPA to institutea permit-by-rule program for facilitiesburning small quantities of hazardouswaste fuel or off-specification used oilfuel that are generated on-site.

Section 3004(q)(2)(B) of RCRAexplicitly allows EPA to exemptfacilities that burn de minimis quantitiesof waste as fuel, provided that thewastes are generated on-site, are burnedfor energy recovery, and are burned in a

device with sufficient destruction andremoval efficiency not to present asignificant risk to human health and the'environment. EPA is presentlyexamining the issue of de minimisburning in developing the Phase IIpermit standards for owners andoperators of boilers and industrialfurnaces. Although we may propose toexempt de minimis quantities from thePhase II permit standards, the basicadministrative controls promulgatedtoday (e.g., notification) would probablystill apply to on-site burning.90Therefore, today's rule does not providea de minimis quantity exemption since,for industrial burners, the rule onlyaddresses these administrative controls.

A few commenters argued thathazardous waste fuel and off-specification used oil fuel burned on-siteshould not be subject to regulationirrespective of quantity. Thesecommenters argued that storage ofhazardous waste fuels is adequatelycontrolled by State and localgovernments and that burning of eitherhazardous waste fuels or off-specification used oil fuel is adequatelycontrolled by State or local air pollutionpermits. We find these argumentswithout merit. The hazards posed byhandling and burning hazardous wastefuels and off-specification used oil fuelsare substantial and essentially the sameirrespective'of whether the fuels weregenerated at that site. EPA has madethis finding for years with respect toother hazardous wastes, and no-arguments have been presenteddistinguishing hazardous waste fuelsfrom all other hazardous wastesmanaged on site. The commenters'argument also was rejected in thelegislative history to the HSWA. See S.Rep. 98-284, 98th Cong. 2nd Sess. at 38.Moreover, the storage of hazardouswaste fuels and the burning of eitherhazardous waste fuel or off-specificationused oil fuels can pose much greater riskto human health and the environmentthan storage and burning of virgin fossilfuels. State and local controls on storageand burning of virgin fuels are notintended to provide the level of controlof releases of toxic constituents fromstorage facilities or from boilers orindustrial furnaces that EPA'sregulations will provide, starting withtoday's final rule.

90 It should be noted that today's rule does notregulate storage of used oil fuel. Although storage ofhazardous waste fuel is regulated by today's rule,special (i.e., reduced) standards are alreadyprovided for on-site storage in tanks and containersof hazardous waste by generators (see § 262.34).Further, small quantity generators are alreadyexempt from storage standards under § 261.5.

PART THREE: COMBUSTIONDEVICES THAT ARE REGULATED

I. Overview

In this section, we identify boilers andindustrial furnaces subject to regulationand distinguish between nonindustrialboilers and industrial or utility boilers.We also explain the basis for regulatingnonindustrial boilers immediately inadvance of controls for industrial boilersand industrial furnaces. In addition, wediscuss how these nonindustrial boilerscan continue burning hazardous wastewhen they operate under permitstandards for hazardous wasteincinerators. Finally, we discusscontrols for used oil space heaters andEPA's intent to provide additionalcontrols for these devices in therulemaking proposing permit standardsfor burning in boilers and industrialfurnaces scheduled for 1986.

II. Regulation of Boilers

A. Basis for Regulating Boilers by BoilerUse

Today's rule prohibits the burning ofhazardous waste and off-specificationused oil fuel in nonindustrial boilers(e.g., located in apartment and officebuildings, schools, hospitals) and, for thetime being, continues to allow burning ofsuch fuels without substantive controlsin industrial and utility boilers (andindustrial furnaces). As EPA stated atproposal, the rule singles outnonindustrial boilers because burninghazardous waste fuels and off-specification used oil fuels in theseboilers can pose the most significantand immediate health risks. See 50 FR1687-1688 and 1701, n. 63. Nonindustrialboilers are typically.very small and maynot achieve complete combustion oftoxic organics (e.g., 99.99% destruction)because of inadequate controls tomaintain optimum combustionconditions when firing fuels the boiler isnot designed to burn. Further, virtuallyno nonindustrial boilers are equippedwith emissions control equipment thatwould control (at least to some extent)metals emissions, while many industrialfurnaces and some industrial boilers areso equipped. The risks from emissions ofincompletely burned toxic organiccompounds and toxic metals fromnonindustrial boilers is compoundedbecause these boilers are typicallylocated in urban areas where sourcesare frequently clustered closely together.Thus, emission plumes from numeroussources can overlap and increaseambient concentrations of toxiccompounds. Further, individuals can beexposed to high ambient levels ofemitted toxicants because they can be

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located close to the sources andexposed to the even higher toxicantlevels above-ground (e.g., if theindividual is exposed to above-groundair through a window in a multi-storyapartment or office building).

EPA also stated at proposal that theremaybemany situations whereindustrial (and utility) boilers andindustrial furnaces can burn'hazardouswaste fuel or off-specification used oilfuel without posing significant risks. See50 FR 1688. For example, large boilers orindustrial furnaces may be operated bytrained operators and equipped withcombustion controls sophisticatedenough to maintain peak combustionefficiency when burning fuels the unit isnot designed to burn.

Further, many industrial furnaces andsome boilers are equipped withparticulate control equipment that mayadequately control emissions frommetal-bearing waste fuels. The Agencyhas recently completed atestingprogram to determine under whatoperating conditions boilers andindustrial furnaces can burn waste fuelswithout posing significant health risks.As a result of that effort, EPA plans topropose technical, permit standards forburning hazardous waste fuels and off-specification used oil fuels in boilersand industrial furnaces in 1986 takinginto account when and how thesewastes can be burned safely in thesedevices.

One commenter questioned whetherburning hazardous waste fuels in anonindustrial boiler is prohibited if theboiler can comply with the permitstandards for hazardous wasteincinerators. Other commenterssuggested that criteria other than boileruse (e.g., boiler size) should be used toidentify those boilers subject to theprohibition. These issues are discussedbelow.

1. Conditional Exemption forNonindustfial Boilers BurningHazardous Waste Fuel. EPA explainedat proposal that there may be particularnonindustrial boilers that may burnhazardous waste fuels (we-know of onelocation) effectively due to the unit'soperating conditions, type of hazardous-waste fuel, etc. To allow such burning tocontinue, EPA said that the owner oroperator must comply with thehazardous waste incinerator standardsof Subpart 0 of 40'CFR Parts 264 or 265.See :50 FR 1688. The owner or operatormust also :comply with therequirementsforburners in today's rule (e.g., storagestandards). See .§266.35. We "aremakinga conforming amendment toSubpart 0to make clear that~this possibility exists.

Owners and operators:ofnonindustrial boilers currently burning

hazardous waste fuel are eligible for theinterim status incinerator standards ofPart 265 because they first becomesubject to those regulations today.Those interim status standards Willreduce the hazards posed by theseoperations by prohibiting burning duringstart-up and shut-down and by applyingthe general facility standards (e.g.,closure, financial requirements) forhazardous waste management facilities.

The Regional Administrator has thediscretion to permit these facilitiesunder Part 264, Subpart 0 (andapplicable storage provisions) by callingin their Part B permit applications. Wedo not expect, however, thatnonindustrial boilers that continue toburn hazardous waste fuel under theinterim status standards of Subpart 0 ofPart 265 will be formally permittedunder Part 264, except in exceptionalcircumstances. Rather, we expect thatany such nonindustrial boilers would beultimately permitted under the permitstandards for boilers and industrialfurnaces to be proposed in early 1986.Those permit standards will likelycontrol emissions of toxic organics,toxic metals, and hydrogen chloride. Webelieve the standards would beprotective when applied to any device-e.g., industrial or nonindustrial boilers.Moreover, those boilefs and industrialfurnace standards will be equally or-more protective than the incineratorstandards under Subpart 0 of Part 264(e.g., the Agency may propose directcontrol of metals emissions from boilersand industrial furnaces while particulatecontrols are used for incinerators toindirectly control metals).

2. Consideration of Other Criteria forIdentifying Boilers Subject to theProhibitions. At proposal, EPAexplained why the prohibitions onburning hazardous waste fuel and off-specification used oil fuel would applyto boilers based on boiler use-theprohibitions would apply tononindustrial boilers. Burning thesefuels in nonindustrial boilerscan posesubstantial and immediate risks for thereasons discussed above. EPAexplained further that it plans topropose permit standards in 1986 forindustrial and utility boilers andindustrial furnaces. Nonetheless, EPAspecifically requested comments onwhether small industrial'boilers shouldalso be prohibited from burninghazardous waste and off-specificationused oil fuels, given that very smallboilers,,whether.industrial ornonindustrial, may typically'beequipped with less sophisticatedcombustion controls and may be lessrigorously operated and maintained toachieve peak combustion efficiency.

Many commenters said that largenonindustrial boilers can bumhazardous waste fuel as efficiently aslarge industrial boilers and should notbe prohibited from doing so. Thesecommenters apparently did notunderstand that EPA said as much in thepreamble to the proposal and said thatthese boilers may continue burninghazardous waste fuel if they complywith the standards for hazardous wasteincinerators, until we promulgate permitstandards for boilers as- discussedabove. We believe that it is reasonableto require such nonindustrial boilers tocomply with the incinerator standardsnow and postpone regulation ofindustrial boilers until we promulgatepermit standards for boilers becausenonindustrial boilers as a class arelikely to pose greater risks because theyare more likely to be located withindensely populated areas. (Althoughindustrial boilers are frequently locatedin urban areas, nonindustrial boilers arealmost always so located.)

Many'commenters argued for andagainst prohibiting burning smallindustrial boilers using the issues EPAdiscussed in the preamble to theproposal. See 50 FR at 1700-1701.Today's rule does not prohibit burningin small industrial boilers. Although itcan be argued that nonindustrial andindustrial boilers of the same size are'likely to burn hazardous waste fuel withsimilar destruction efficiency, webelieve that nonindustrial boilers as aclass pose a greater hazard for thereasons given above. Thus, as discussedabove and at 50 FR 1687-1688, it isreasonable to require nonindustrialboilers to comply with the incineratorstandards now and postpone regulationof industrial boilers until we promulgatepermit standards for boilers.

Several commenters recommendedthat EPA prescribe design and operatingconditions, or performance standards, orconsider boiler location rather thanprohibiting burning in particular devices.The permit standards for boilers that weplan to propose in 1986, in fact, woulduse performance standards, oralternative operating conditions, topermit burning of hazardous waste fuelin any boiler. However, until thosestandards are promulgated,nonindustrial boilers will be subject:tothe conditional prohibition for thereasons given above.

Boiler location has-been considered insupporting -immediate regulation ofnonindustrial boilers-they are typicallylocated within highly populated areas.Persons in less densely populated areaswotild have salower exposure; thus, wecoulduse -site-specific risk assessments



to support alternative, reduced controls.Given the complexity of quantitativerisk assessments (i.e., assessments thatare used to support particular controlsfor particular facilities) and the numberof boilers that burn off-specificationused oil fuel and hazardous waste fuel,.a regulatory program based on site-specific risk assessment would bedifficult to implement with current-andforeseeable resources. Thus, we havenot included a variance procedure basedon risk assessment in today's rule.

B. Definition of Industrial Boiler

Today's rule, like the proposal, usesthe terms industrial boilers, utilityboiler, and industrial furnace to identifycombustion devices that are notnonindustrial boilers subject to theprohibition. We believe it is lessconfusing to define the devices that arenot subject to the prohibition than toattempt to define and identify thevarious types of nonindustrial boilers(e.g., residential, commercial,institutional).

EPA defined the term "industrialboiler" at proposal as any boiler thatproduces electric power, steam orheated or cooled air, or other gases orfluids for use in a manufacturingprocess. Further, EPA has defined"boiler" as an enclosed device usingcontrolled flame combustion and havingspecific characteristics including' (1)The combustion chamber and primaryenergy recovery section must be ofintegral design (e.g., waste heat recoveryboilers attached to incinerators are notboilers); (2) thermal energy recoveryefficiency must be at least 60% and (3) atleast 75% of recovered energy must be"exported" (i.e., not used for internaluses like preheating of combustion air orfuel, or driving combustion air fans orfeedwater pumps). See 50 FR at 661 (Jan.4, 1985).

Some commenters requested that EPAinclude in the definition of industrialboiler those boilers which are physicallylocated on the premises of amanufacturing facility but which recoverenergy solely for space heating ratherthan manufacturing. Commenters arguedthat these boilers are often the samesize and are operated no differently thanother boilers at the facility producingenergy used for actual manufacturing.Further, such boilers are often located inindustrially zoned areas, thus reducingthe probability of large numbers ofpersons being close to the source andbeing exposed to above-ground levelconcentration as would be typical ofmany nonindustrial boilers. Thus,commenters argued that since theburning characteristics and risks aresimilar for all boilers located at

manufacturing facilities, the boilersshould be regulated in the same manner.EPA agrees and has amended theregulations accordingly. Section266.31(b)(2)(i) has been modified fromproposal to define an industrial boiler asany boiler located on the site of amanufacturing facility.

Although we believe this definition ofindustrial boiler will enable the vastmajority of boiler owners and operatorsto clearly catagorize their boilers, theremay be situations where it is not soclear. If an owner or operator is not surewhether his boiler meets today'sdefinition of industrial boiler, he shouldcontact the Regional Administrator for adetermination.C. Definition of Utility Boiler

EPA defined utility boilers at proposalas boilers used to produce electricpower, steam, heat or cooled air, orother gases or fluids for sale. Ownersand operators of utility bqilers areburners regulated in the same way asowners and operators of industrialboilers.

We identified utility boilersseparately from industrial boilers onlyas an indirect means of identifyingnonindustrial boilers subject to theprohibitions (i.e., it is less confusing toidentify boilers not subject to theprohibitions than to define nonindustrialboilers subject to the prohibitions).Clearly, utility boilers are notnonindustrial boilers and have neverbeen identified as such.

A few commenters requested thatEPA distinguished between industrialand utility boilers on the basis thatutility boilers achieve good combustionefficiency and have emission controlequipment thereby leading to safe andefficient burning of off-specificationused oil fuel. The commenters, however,did not specify what practical regulatorydistinctions should be made.

Any special design, operation, oremissions control features that utilityboilers may have that will reduce riskposed by burning used oil will beconsidered during development of thepermit standards for burning hazardouswaste fuel and off-specification used oilfuel in boilers and industrial furnacesscheduled to be proposed in 1986. EPAcan see no reason why utility boilersshould not be subject to the rulespromulgated today.

D. Nonindustrial BoilersIn the proposal, EPA explained that

nonindustrial boilers include thoselocated at: (1) Single or multifamilyresidences; (2) commercialestablishments such as hotels, officebuilding, laundries, or service stations;

and (3) institutional establishments suchas colleges, hospitals, and prisons,. Toavoid the problem of providing a clear,encompassing, and unambiguousdefinition of nonindustrial boiler, wehave identified and defined thosedevices not subject to today'sprohibition: industrial boilers, utilityboilers, and industrial furnaces.

E. Marine and Diesel Engines

Used oil may be burned in otherdevices such as diesel or marineengines. These devices may not meet thedefinition of a boiler and are not listed

-as industrial furnaces under § 260.10.See 50 FR at 661 (January 4, 1985). Usedcrankcase oil from diesel engines isfrequently blended with virgin dieselfuel and burned in diesel engines (e.g.,tractor-trailer engines). In addition, usedoil is sometimes used as fuel for shipengines. Although such burning is for thepurpose of energy recovery (i.e., theused oil provides substantial, usefulheat energy, and in fact replaces virginfuels), the burning of used oil in thesedevices was not considered duringdevelopment of the proposed rule. Giventhat it is not clear that diesel and marineengines meet the definition of a boiler,that EPA has not taken comment onwhether such devices meet thedefinition, and that today's rules applyto used oil that is burned in a boiler (orindustrial furnace) for energy recovery,today's rules do not apply to marketersand burners of such used oil. Thus, theused oil fuel specification and theinvoice and certification recordkeepingsystem do not apply to such used oil.9 '

With respect to notificationrequirements, we have determined thatowners and operators of these devicesneed not notify the Agency (this type ofexemption if expressly allowed underSection 3010(a)). We do not think itserves any practical purpose for ownersand operators of marine engines (manyof which are under foreign ownership)or other diesel engines such as thethousands of diesel trucks 92 to notify of

51 It should be noted that if a person markets off-specification used oil fuel exempt from today's rulesbecause it is burned in marine diesel engines, thatperson has the burden of proof to demonstrate thatin fact, such exempt used oil will be burned in thosedevices. See 50 FR 1692 (January 11, 1985) and 50 FR642 (January 4, 1985). Ordinarily, invoices that tracka shipment of off-specification used oil to the enduser (i.e., marine or diesel engine owner or operator)will be required to carry this burden.

92 Further, even if such used oil burned in dieseltrucks were subject to today's used oil fuelspecification, the oil would not likely exceed thespecification as burned. As will be discussed insome detail in the used oil listing/managementstandards rulemaking that will soon be proposed,used diesel crankcase oil is typically mixed with

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their used oil burning activities at thistime, and EPA does not need suchinformation to assess what rules mayultimately be appropriate.

Marketers of used oil that is burned inmarine or diesel engines, on the otherhand, mustuomply with thenotificationrequirement. EPA needs to know whothese marketers are to be able toinvestigate whether these marketers aremixing hazardouswaste with used oil.Hazardous waste, including ,used oilmixed with hazardous Waste, cannot beburned in maring or diesel enginesunless the devices are permitted ashazardous waste incinerators. (Devicesthat bum hazardous waste by means ofcontrolled flame combustion and thatare neither boilers nor industrialfurnaces are considered to beincinerators for regulatory purposes. See§260.10 in 50 FR 661 (January 4, 1985).)Thus, used.oil marketed for.useas fuelin marine and diesel engines is (likeother used oils) subject to thepresumption of mixing hazardous 'wasteestablished by today's rule.)

It should also be noted that althoughthe used oil fuel specification and theinvoice and certification recordkeepingsystem established by today's rule donot apply to used oil marketed for use asfuel in marine or diesel engines, suchused oil would be subject to thetransportation and storage controls forrecycled oil that willsoon be proposed.When promulgated, those controls willsupersede today's rules for used oil fuelsand will apply.to all recycled oils.

III. Regulation of Industrial Furnaces

EPA has defined "industrial furnace"as those devices specifically listed bythe Administrator as enclosed devicesthat are integral components of amanufacturing process and that use acontrolled flame to accomplish recoveryof materials or energy. See 50 FR 661(January 4,1985). The Agency has alsoidentified criteria for listing otherdevices as industrial furnaces. To date,the list of industrial furnaces includescement kilns, lime kilns, aggregate kilns(including asphalt kilns), blast furnaces,and smelting, melting and refiningfurnaces.

,Owners and operators of theseindustrial furnaces are subject to today'srules for burners (see § 266.35) whenthey burn hazardous Waste or off-specification used oil 1for energyrecovery or for both energyTecovery

95% virgin diesel fuel before use as a diesel fuel.The blended fuel is likely to meet the used oil'fuelspecification. Thus, owners and operators of suchengines would be burning a used oil that meets thespecification and that wouid be exemptfromregulation.

and another recycling -purpose (seesection II of this preamble).

IV. Regulation of Used Oil.SpaceHeaters

As proposed, today's'rile provides aconditioned exemption from theprohibition on burning off-specificationused oil fuel in used oil space heaters.EPA stated at proposal (see 50 FR at1700) that it is deferring regulation ofthese devices until it better understandsthe risk they pose and evaluatesregulatory options to address any suchhazards. EPA stated further that itwould address regulation of thesedevices in future rulemakings. In theinterim, these space heaters maycontinue to burn off specification usedoil fuel provided that they vent theheater to the outdoors and burn onlyused oil they generate or receive fromdo-it-yourself oil'changes.95

As EPA explained at proposal, usedoil space heaters are very small heatersfrequently used in service stations andauto repair shops. The units typicallyburn I to 2 gallons of used crankcase oilper hour. Ninety percent (90%) of theheaters are the vaporization type wherethe-oil is vaporized from a pan at thebase of the heater while metals andheavy, low volatility compounds remainin the pan (and are cleaned outperiodically). The other heaters are theatomization type where the oil issprayed into the combustion chamber.Vaporization units appear to have lowmetals emissions rates-5 to 15% of themetals are emitted. This is comparableto (or lower than) the metals emissionrate from larger boilers (industrial ornonindustrial). Atomization units,however, appear to have relatively highmetals emissions xates--75% to 95%.EPA concluded that vaporization unitsprobably do not pose a health risk whileit is not clear whether atomization unitspose significant risks given the smallsize of the units.

Most commenters supported theexemption and believed that no furtherregulation is necessary. Supportersargued that vaporization units comprise90% of the units in operation and emitonly'low levels of metals. Supporters ofthe exemption were silent with-respectt6 atomization units.

Opponents to the exemption usedvarious arguments and proposed variousregulatory alternatives. Manycommenters were concerned that therisk from metals and toxic organic

9s The exemption is also conditioned on the unithaving a capacity of less than 0.5 million Btu/hr.This encompasses all used oil space heaters in usetoday and prevents operators of larger boilers fromclaiming they operate usfd oil space heaters.

emissions'could'be significant given thatthese ,spa-ce heaters:are frequentlyoperated in residential areas. Theyargued that'it would be premature togrant an -exemption until further riskassessment'is conducted.94 Someopponents suggested that atomizationheaters be-banned entirely and otherssuggested application of emissionsstandards to both atomization andvaporizdtion units. In addition, somecommenters suggested that anexemption would actually cause aproliferation of space heaters since theycould be'viewed as a cheap, easymethod of providing heat as well asgetting rid of used oil. Thus, EPA shouldconsider "grandfathering" existing spaceheaters rather than granting a blanketexemption. Commenters were alsoconcerned that space heaters couldprovide a loophole for disposal ofhazardous waste generated at servicestations and auto repair shops by mixingwith the used oil to be burned.

EPA continues to believe thatatomization space heaters may posesignificant risk in unique situations (e.g.,where multiple atomization unitsburning used oil with high'lIevels ofmetals are clustered together, andpersons arelocated close tothe sources)while the much more prevalentvaporization units probably do not posesignificant risks. Thus, -we do not believethere is a compelling reason to take theextreme measure at this time of virtuallybanning the use of these devices whichwould result if they were not exemptedfrom the prohibition on burning off-specification used oil fuel. We intend toinclude regulations for these devices, asdeemed necessary, when we proposepermit standards for all.boilers andindustrial furnaces in 1986. Thus, we canensure that controls on burning in thesedevicesare.consistent with controls,particularly for metals emissions, onother boilers and industrial furnaces. Inaddition, by that time, we will haveproposed the comprehensivemanagement standards for recycled-oilwhich would regulate generators andcollectors, as well as the marketers andburners (except for permit standards forburning) regulated by today's rule. Atthat time, we can consider theregulatory impact on generators, as

04 Harvard University submitted informationabout research they have been conducting regardingthe effect of emissions from'used oil on-mammalianlung tissue. Various dosages were applied in ashort-term Inhalation study utilizing hamsters.Harvard reported results, showing lung-damage frommetals and other toxic constituents from bothvaporization and atomization heaters, andrecommended further study to deveiop rational riskestimates.



required by RCRA section 3014(c), ofregulating used oil space heaters inconjunction with the entire regulatoryscheme for recycled oil.

As a final note, a few commenterssuggested that proposed § 266.41(b)(4)(i)be revised to conform with explicitpreamble language that allows theowners or operators of exempted spaceheaters to burn used oil received from"do-it-yourself" oil changers as well ast~ed oil they generate. We agree andhave modified that provision in the finalrule at § 266.41(b)(2)(iii).

PART FOUR: ADMINISTRATIVE ANDSTORAGE STANDARDS

I. Administrative Standards

A. Overview

Hazardous waste fuels and off-specification used oil fuels are subject tocertain administrative requirements,including a one-time notification toidentify waste-as-fuel activities and toobtain a U.S. EPA IdentificationNumber. Even if an individual haspreviously notified the Agency, andalready has a U.S. EPA IdentificationNumber he must renotify to identify hiswaste-as-fuel activities (although hisIdentification Number remains thesame). Other administrativerequirements include compliance with amanifest system (for hazardous wastefuels), or an invoice system (for off-specification used oil fuel) andrecordkeeping. In addition, personsreceiving shipments of hazardous wastefuel or off-specification used oil fuelmust certify to the shipper that theyhave notified EPA of their waste-as-fuelactivities, and that they may legallyburn the fuel. These controls make itpossible to administer and enforce theprohibitions against burning innonindustrial boilers, and provide forproper tracking of the materials.

The administrative requirementsapply to both marketers and burners ofhazardous waste fuel and off-specification used oil fuel. Generators ofhazardous waste or used oil who sendtheir waste directly to an individual whoburns those wastes are considered to bemarketers and are subject to thesecontrols. Conversely, generators whosend their hazardous waste or used oilto an individual who does not burn thewaste for energy recovery are notconsidered to be marketers, even if thewaste is burned later for energyrecovery by another person. (Suchgenerators of hazardous waste,however, ate subject to 40 CFR Part 262as ordinary hazardous wastegenerators.)

Hazardous waste fuel transportationis subject to the full set of Part 263

requirements. This rule regulates for thefirst time transporters of hazardouswaste fuel that is neither-a listed wastenor a sludge. These hazardous wastesare currently exempt from regulationunder § 266.36 (see 50 FR 667 (January 4,1985)), a provision that is superseded bytoday's new Part 266 standards. Used oiltransportation is exempt from theadministrative requirements in order toavoid piecemeal regulation of used oiltransporters.9 5 If used oil fueltransporters are regulated while otherused oil transporters are not,transporters could avoid complying byclaiming that the used oil is intended forother purposes. EPA will addressregulation of transporters in its recycledoil management standards scheduled tobe proposed later this year.

The following table summarizes thecontrols required under today's rule:

TABLE 7.-CONTROLS FOR WASTE FUELS

Hazardous waste Off-specificationWue used oil fuel

Generator' . Part 262- .................. Exempt.Marketers' .............. NRN.P,M,C,R,S .N,RN.P,I,C,R.Transporters ............ Part 263' .................. Exempt.surners................... N,RN,P,M,C,R,S . N,RN,Pj,CR.

Note:'Hazardous waste and used oil generators are not regutat-

ed as marKeters unless they market directly to a burner.2Hazardous waste generators wno send their waste to a

hazardous waste fuel marketer are subject to Part 262standards as ordinary generators. See §266.32(a). Genera-tors who market their hazardous waste fuel to burners aresuoject to the Part 262 generator standards as well astoday's hazardous waste fuel marketer requirements. See§ 266.32(b).

'Hazardous waste fuel transporters are subject to regula-tion as ordinary hazardous waste transporters. Thus, they arenot required to notify or re-notify for their waste-asfuelactivities. However, they must. notify for their hazardouswaste transportation activities if they have not notified al-ready.

KeyN-Notification and Identification number.RN-Renotity for waste-as-fuel activites.P-Pronibitions on marketing to, or burning in, nonindustrial

boilers.MI-Compliance with manifest (M) or invoice (I).C-Provde or receive certification of compliance with

standards for burning.R-Recordkeepng.S-Storage S.andads.

B. Notification Requirements1. Purpose of Notification. Notification

is necessary because EPA must be ableto identify those persons who engage inwaste-as-fuel activities in order toensure that Waste fuels are managedproperly and not routed to nonindustrialmarkets. The special waste-as-fuelnotification is mandated under RCRA

11 Many used oil transporters (collectors) pick upused oil from several small generators andaggregate the oil at satellite storage facilities priorto shipment in larger tankers to used oil processorsor rerefiners. These transporters are not consideredmarketers unless: (1) They ship used oil directly to aperson who bums the oil for energy recovery; or (2)they process used oil to produce a fuel at thestorage facility. Any blending of used oils resultingfrom accumulation in the transporter's storage tanksis incidental to the primary function ofaccumuiation and is not considered to be blendingor processing in this ruie.

section 3010(a), as amended. A U.S. EPAIdentification Number will be assignedto those facilities subject to RCRAregulation for the first time.

2. Who Must Notify. The followingpersons must notify either EPA or anauthorized state 96 to identify theirwaste-as-fuel activities: (1) Marketers ofhazardous waste fuel or off-specificationused oil fuel (e.g., third-party processors,blenders, and distributors, andgenerators marketing directly toburners); (2) burners of hazardous wastefuel or off-specification used oil fuel,except generators who burn their oil inspace heaters under § 266.41(b)(2)(iii);and (3) marketers (or burners) who firstclaim used oil fuel meets thespecification and so is exempt fromsubsequent regulation. If any of theseindividuals has previously notified theAgency of any hazardous wastemanagement activities and obtained aU.S. EPA Identification Number, theymust renotify, and may use the revisednotification form to do so (seediscussion below).

EPA explained at proposal that thefollowing persons need not comply withthe waste-as-fuel notificationrequirement: (1) Hazardous wastegenerators who neither burn theirwastes for energy recovery nor markettheir wastes for energy recovery directlyto a burner, because they may not knowthe end use of their waste; (2) hazardouswaste fuel transporters, for the samereason given for generators; e7 and (3) •

96 EPA is allowing notifiers to notify either EPAor States authorized to operate the hazardous wasteprogram even though amended section 3010(a)requires that both EPA and authorized States benotified. EPA is deviating from the statutoryprovision for practical reasons. EPA and authorizedStates have developed a system for handling section3010 notifications that heretofore could besubmitted to either EPA or the State. Under thatsystem, the State automatically forwardsnotifications it receives to EPA for processing andassignment of an identification number. If waste-as-fuel notifications were submitted to both EPA andthe authorized State, a facility could inadvertentlybe assigned two identification numbers. Thus,simultaneous notifications to both EPA and Statesnot only will not further environmental protection,but could be counter-productive. In addition, therequirement that persons notify both EPA andStates was to provide that regulations implementingthe HSWA take effect immediately even inauthorized States, a concern later addresseddirectly by amended section 300618). By amendingsection 3006(g), Congress eliminated the need fordual notification.

91 Hazardous waste generators and transportersare nonetheless subject to the notification (andother requirements) of Parts 282 and 263 as ordinarygenerators and transporters. Thus, the significanceof the discussion in the text is that generators andtransporters need not renotify.

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used oil generators and transporters(unless they also market directly to aburner).98

Notification also does not apply toowners and operators of boilers orfurnaces, including but not limited tononindustrial boilers, who burn used oilfuel that meets the specification.

3. Use of the Hazardous WasteNotification Form. Persons required tofile notifications (or renotify) with EPAor authorized States because of theirwaste-as-fuel activities may use EPAForm 8700-12 (revised 11/85):"Notification of Hazardous WasteActivity." See the appendix to today'sregulation. This form is a revision of theexisting notification form which wasmodified to include waste-as-fuelnotification requirements. The Agencymade minor changes to the proposedform to make it clear that persons whofirst claim that the used oil fuel theymarket meets the specification .aresubject to the requirements (includingnotification, used oil analysis, andrecordkeeping) provided under § 266.43.See preamble discussion in section IV.Eof Part Two.

The revised notification form providesEPA with.the number and location offacilities involved in processing,blending, marketing, and distributing ofwaste fuels, and the number, type, andlocation of burners. These data will beused to develop a general profile of thewaste fuel industry and assist in futureregulatory development.

Several commenters suggestedrevisions to the proposed notificationform. One commenter argued that

* language requiring the signer of the formto be personally familiar with andresponsible for the veracity of theresponses places an undue burden onmanagers of facilities who may not beaware of all operations of their facilityon a day-to-day basis. This requirementhas been in place. since the notificationform was first used for the RCRAhazardous waste program in 1980. It isnot a special requirement pertaining tonotification of waste-as-fuel activities.EPA sees no compelling reasons tomodify its longstanding position thatone person must ultimate takeresponsibility for a facility's operationand compliance with federal regulations.

98 As noted at proposal, however (see 50 FR 1702,n. 68], used oil generators and transporters whosend used oil to marketers that burn some used oilare not considered to be marketing used oil fueldirectly to a burner for purposes of today's rule.Thus, these generators and transporters are notregulated (and not required to notify) as marketers.This is because the burning at the marketers' facilityis considered incidental to the primary function ofthe marketers' facility: processing and marketing ofused oil fuel.

Another commenter suggested that thereference to "listed infectious waste" onthe proposed form be dropped, since nosuch category exists. This was anoversight on EPA's part, and has beendeleted from the final form.

4. Notification Procedures andImplementation. As EPA indicated atproposal, it estimates that there are, atmost, 20,000-30,000 persons that may berequired to file notifications. While EPAdoes not intend to carry out a massmailing to potentially affected parties,the Agency will widely announce thenotification requirements of these rulesthrough the press and trade journals.

Persons required to notify undertoday's rule should consider this FederalRegister notice their final notice tosubmit a notification. To obtain anotification form, you should contactyour authorized State hazardous wasteagency or your U.S. EPA RegionalOffice. Each requester will receive acomplete notification package, includinga form and accompanying instructions,to assist him in filing his notification.

EPA will return to each notifier anacknowledgment of receipt of thenotification, and will issue a U.S. EPAIdentification Number if one was notpreviously assigned. Thisacknowledgement in no way constitutesan endorsement by EPA of the adequacy'of the notification or of the notifier'sbusiness practices; rather, it serves as aconfirmation that EPA received thenotification.

5. Legal Significance of Notification.EPA is promulgating the notificationrequirement for hazardous waste fuelsand off-specification used oil fuels underthe authority of Section 3010(a) ofRCRA, as amended. The notification is aprerequisite for RCRA interim status(see RCRA section 3005(e)(2)) forowners and operators of hazardouswaste fuel storage facilities. See H.R.Rep. No. 98-198 at 41, likewisespecifying that notification ofmanagement of hazardous waste fuelsserves as a prerequisite for interimstatus.)

C. Transportation Controls

As proposed, EPA is adopting today asystem to track movement of hazardouswaste fuel and off-specification used oilfuel from the initial marketers (e.g.,processors, blenders, distributors, orgenerators who market to burnersthrough intermediaries (e.g.,transporters, distributors) to theindustrial users who burn the fuel forenergy recovery.9 9 This tracking system

99 The system is already in place for certainhazardous waste fuels-namely listed wastes andsludges when sent directly from the generator to a

I/allows regulatory officials to track ahazardous waste fuel or off-specificationused oil fuel from point of processing,blending, or other treatment to point ofburning, thus making the prohibition onburning in nonindustrial boilersenforceable. Equally important, thetracking document (either a manifest oran invoice) alerts persons who handlethese materials that they are receiving ahazardous waste or off-specificationused oil.

Consequently, EPA today is finalizingits proposal that all shipments ofhazardous waste fuel be accompaniedby a manifest. Hazardous waste fuelmarketers are subject to thetransportation (and pre-transport)requirements of 40 CFR Part 262 andtransporters are subject to therequirements of 40 CFR Part 263.

We are requiring a slightly differentsystem for off-specification used oil fuel,whereby marketers (e.g., processors,blenders, distributors, and generatorswho market to burners) offering off-specification used oil fuel for sale mustprepare and send an invoice to the fuelbuyer, but do not have to have theinvoice physically accompany eachshipment. (Transporters thus will nothave to comply with any invoicerequirement.) This distinction (i.e.,invoice in lieu of a manifest is neededto avoid piecemeal regulation of used oiltransporters, as explained at proposal.See 50 FR 1704 n. 76.

The invoice must include the shipmentinitiator's name, address andidentification number, the receivingfacility's name, address, andidentification number and the quantityof off-specification used oil fuel shipped.All of this information is currentlyrequired in the standard EPA hazardouswaste manifest.

As EPA stated at proposal, in asituation where an off-specification usedoil fuel goes from a processor or blenderto an intermediate distributor, thedistributor must reinstitute a newinvoice to accompany any fuel it sellsthat is produced from or otherwisecontains the used oil (unless the used oilfuel now meets the specification). Thisrequirement is consistent with thosefound in other parts of the RCRAregulations whereby intermediatestorage facilities must reinitiate amanifest. See, e.g., 40 CFR 284.71(c) and262.10(f).

burner. See Subpart D of Part 266 in 50 FR 667(January 4.1985]. Today's rule expands the systemto all hazardous waste fuels managed by allmarketers and burners, except those specificallyexempted under § 261.6(a)(3) as revised in today'srule.

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

As described in the proposal, theHazardous and Solid WasteAmendments of 1984 amended RCRA torequire producers, distributors, andmarketers of hazardous waste fuels toinclude a warning label on the invoiceor bill of sale for the fuel. Therequirement became effective inFebruary 1985, but is superseded bytoday's rule. The Agency believes thatthe requirement for an invoice or amanifest achieves the same purposes asa warning label-to alert the user ordistributor that he is receivinghazardous waste fuel. The manifest alsonotifies the transporter that he ishandling hazardous waste because themanifest must accompany the shipment.No comments disagreed with theAgency's conclusion that an invoice ormanifest is an adequate replacement forthe statutory warning label.

Several comments were received onthe proposed invoice/manifestrequirement. Commenters suggested thattransfer of waste fuels from site to sitewithin the same company should beexempt from the invoice andmanifesting requirements. Commenterspointed out that such transfers areroutine; thus, they reasoned thatinvoices or manifests are unnecessary.At the very least, commenters requestedthat EPA consider a simplified manifestor invoice for such transactions.

EPA believes that the manifestrequirement for hazardous waste fuelsserves essentially the same purpose asthe current manifest requirement forother hazardous waste-to alerttransporters (and emergency responseofficials) as well as facility operators(e.g., burners) of the fire and explosionhazards posed by the shipment and toestablish a paper trail that will enableenforcement officials 'to implement andenforce the regulations. Given similarpurposes and that off-site, butintracompany, shipments of otherhazardous waste are subject to fullmanifest requirements, EPA sees nocompelling reason to modify manifestrequirements specifically for hazardouswaste fuel. See also 50 FR 28724-28725(July 15, 1985) where the Agencyadopted the same position with regardto the warning label required by RCRAsection 3004(r)(1).D. Notice and CertificationRequirements

To enforce the prohibition on burninghazardous waste fuel and off-specification used oil fuel innonindustrial boilers, the prohibitionapplies not only to the boiler owner andoperator, but also to the waste fuelmarketer. Thus, a marketer (a processor,blender, distributor, or a generator

marketing directly to a burner) may notsell hazardous waste fuels or off-specification used oil fuel to a personwho burns it in a nonindustrial boilerbut must ensure that they market thesefuels only to persons in (and, thus,aware of) the regulatory system: personswho have notified EPA of their waste-as-fuel activities. In addition, marketersare responsible for determining whethertheir waste fuel is subject to regulation(i.e., whether their product fuel containshazardous waste or is off-specificationused oil).

As EPA explained at proposal, tocomply with these requirements,marketers need to know whether theperson receiving a shipment ofhazardous waste fuel or off-specificationused oil fuel has notified EPA of hiswaste-as-fuel activities and whether heintends to burn the fuel only in a utilityboiler or industrial boiler or industrialfurnace. Thus, the rules include aprovision requiring that a marketer ofhazardous waste fuel or off-specificationused oil fuel receive a certification fromthe fuel purchaser stating that thepurchaser has notified EPA of his waste-as-fuel activities and will burn the fuelonly in unrestricted boilers or furnaces.This certification is a one-time noticeand is required before sending the initialshipment. Similarly, the purchaser isrequired to send the certification beforereceiving the first shipment from amarketer. This will ensure that therecipient is aware of the regulationsapplicable to waste fuels and of hisresponsibilities as a burner (orintermediary). Hazardous waste andused oil generators (and transportersreceiving waste from generators) whomarket their waste to a person who isnot a burner are not subject to this (orany other) requirement for marketersand a recipient of the generator'shazardous waste or used oil is notrequired to provide the generator with acertification notice. (Hazardous wastegenerators and their transporters are,however, subject to regulation asordinary hazardous waste generatorsand transporters under 40 CFR Parts 262and 263 respectively.)E. Used Oil Analysis Requirements forMarketers

Marketers who first claim used oilmeets the specification and isessentially exempt from furtherregulation 100 must document by

00 As discussed in the text in Part Two, sectionlME, such marketers must keep records of the initialshipment of specification used oil. Also, asdiscussed in section IV.F, EPA and Stateenforcement officials have the authority to enter thepremises of a person believed to be handling usedoil fuel and to collect samples of fuel oil,

analyses or other information that theoil in fact meets the specification.Although the proposal required testingfor documentation, the final rule allowsthe use of other information to showthat the oil meets the specification. Seeprevious discussion in Part Two, sectionIV.F. This is consistent with agenerator's requirements under 40 CFR262.11(c) to use testing or otherinformation to determine whether hissolid waste is hazardous waste.Ordinarily, however, we expect thattesting will be used to demonstratecompliance. If a person's determinationthat used oil meets the specification isfound to be erroneous, he is in violationof the regulations regardless of intent.. Persons required to obtain analyses(or other information) to demonstratethat their used oil fuel meets thespecification include processors andblenders (and burners) who treat usedoil known to be off-specification toproduce specification used oil fuel andpersons who market or burn asspecification used oil fuel used oilreceived directly from generators orcollectors. (Used oil received directlyfrom generators or from collectors whoreceive oil from generators is presumedto be off-specification unlessdemonstrated otherwise.) EPAexplained at proposal that suchanalyses and recordkeeping are requiredto enable the Agency to enforce theprohibitions on those persons who firstclaim that used oil fuel meets thespecification.

Persons who obtain analyses of usedoil to demonstrate compliance with thespecification must ensure thatrepresentative samples are obtained andthat appropriate analytical proceduresare used. Sampling and analysis of usedoil is discussed above in section IVY.

F. Recordkeeping Requirements

The recordkeeping requirements arelimited requirements designed primarilyto keep track of the movement ofhazardous waste fuels and off-specification used fuels. The substantiveprohibitions as well as the variousadministrative requirements would notbe enforceable without theserecordkeeping requirements. Asproposed, marketers and burners mustkeep a copy of the manifest or invoice(for used oil) that accompanies or thatapplies to each fuel shipment. Inaddition, marketers and burners are

irrespective of whether the person reasonablybelieves his used oil fuel meets the specification, forthe purposes of determining compliance withtoday's rule.

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required to retain copies of certificationnotices that they initiate or receive.

EPA also proposed that marketers ofused oil fuel who first claim the oilmeets the specification are required toobtain analyses of their used oil fuelproduct to document that it meets thespecification. Copies of the analysesmust be retained for three years. Asdiscussed above, today's final ruleallows the use of other information todocument that used oil meets thespecification. Such other informationmust also be retained for three years.

In response to commenters' concernsabout the enforceability of the proposedrule, the final rule includes additionalrecordkeeping requirements for personswho first claim used oil fuel meets thespecification. See section IV.E of thispreamble. Today's rule requires thesepersons to also keep records on initialshipments of specification used oil fuel.Subsequent shipments (e.g., bydistributors) are not subject toregulation.

As proposed, all records must beretained at the facility for three years,except that certification notices must bekept for three years from the date aperson last engages in a waste fuelmarketing transaction with the personwho sent or received the certificationnotice. These records must be availablefor inspection by an officer, employee,or representative of EPA (see RCRAsection 3007).

II. Storage Requirements for HazardousWaste Fuel

As explained at proposal, today's ruleexpands existing requirements forstorage so that all storage of allhazardous waste fuels is subject toregulation. Under previously existingprovisions of 40 CFR 261.6, andcontinued under the solid wastedefinition rulemaking at Subpart D ofPart 266 (see 50 FR 667 (January 4,1985)), hazardous wastes that are listedwastes or sludges are subject to thestorage standards of Parts 262, 264, and265, when stored prior to use as a fueland prior to use to produce a fuel.Nonsludge wastes that are hazardousonly because they exhibit acharacteristic of hazardous waste, andhazardous waste fuel produced by anoff-site marketer by processing,blending, or other treatment ofhazardous waste, were exempt fromregulation prior to today's rule. Allhazardous waste used to produce fueland all hazardous waste fuel soproduced are subject to today's storagerequirements for the reasons given.below.

A. Which Hazardous Wastes AreSubject to Storage Requirements

The Agency is today regulating thestorage (and transportation) of anyhazardous waste used to produce a fueland of any hazardous waste fuel soproduced. We are thus eliminating thecurrent distinction between listedwastes and sludges on the one hand andunlisted spent materials and unlistedbyproducts on the other. As explained atproposal, these distinctions are notenvironmentally justifiable, and existonly because of the Agency's initialuncertainty (in 1980) about anappropriate regulatory regime forrecycled wastes. See 48 FR 14475 (April4, 1983). It is now'our view that ahazardous waste classification assludge, by-product, or spent material, orlisted vs. unlisted (characteristic)hazardous waste has no relation t6 thetype of hazard the waste poses whenstored, and therefore, that storage of allof these should be regulated uniformly.Id.

B. Eliminating the Exemption forStorage of Hazardous Wciste FuelProduced by Persons Who Did NotGenerate the Waste

As proposed, today's rules subject allhazardous waste fuels to storage [andother) controls. This includes storage bythe initial marketer (e.g., processors,blenders), storage by subsequent-marketers (e.g., distributors), andstorage by burners. (Hazardous wastestorage by ordinary generators whosewaste is destined to be burned forenergy recovery, but who do not marketdirectly to burners, is also subject toregulation.)

The present regulatory regimeprovided by Subpart D of Part 266 (see50 FR 667 (January 4, 1985)) wherebyhazardous waste fuel produced by aperson who neither generated the wastenor burns the fuel is exempt fromregulation was intended only as aninterim measure and cannot bedefended on environmental grounds.The argument that hazardous wastefuels function as valuable inventory in aburner's hands and so will be storedsafely does not appear tenable, andalready has been rejected by theAgency. See 50 FR 617-618, 632, 643(January 4, 1985). Hazardous waste fuelsin many cases do not commandsubstantial economic value; in somesituations, burners are even paid toaccept these materials. In addition, thefact that a hazardous waste fuel is beingstored as a commodity is insufficient toprevent substantial risk. There havebeen many damage incidents fromproduct and raw material storage,

examples being spills from undergroundand above-ground product storagetanks, including fuel storage tanks. See49 FR 29418 (July 20, 1984). Indeed, theAgency has found that leaks and spillsfrom hazardous waste tank storage isvery likely, and that this risk issubstantial and requires regulatorycontrol. See also Section 601 of theHazardous and Solid WasteAmendments of 1984 requiring EPA toregulate underground storage tanksstoring products. The Agency also hasbeen told by State regulatory officialsand used oil fuel dealers that hazardouswaste fuels are suspected of causing anumber of fires in the New York Cityand New Jersey areas. Anothercommenter described a "major accidentat a cement kiln using waste-derivedfuels." The Agency thus does not seeany reason to regulate this type ofhazardous waste storage differentlyfrom other hazardous waste storage.

Today's rule subjects all storage of allhazardous waste fuels to the storagestandards provided by 40 CFR Parts 262(for short-term accumulation of fuels bya generator who burns his waste on siteor who markets directly to a burner),264, and 265, with one exception. Asproposed, we are not subjectinghazardous waste fuel storage by anexisting burner to the final permittingstandards lof 40 CFR Part 264 at this time -for several reasons. Because we intendto regulate most burning of hazardouswaste fuels in a manner that wouldrequire some form of permitting, we donot want to issue a permit to a burnerfor storage and then have to issue asecond permit in the near future forburning. We thus plan to delay adoptingfinal permitting storage standards forexisting burners until a single permitproceeding can address both burningand storage. Thus, existing burners willbe subject only to the storage standardsfor tanks and containers contained inPart 265.

In addition, as proposed, a permit isnot presently required to store off-specification used oil fuel. EPA is notimposing storage requirements on usedoil fuel at this time because the Agencywishes to avoid the piecemealregulation of used oil storage whichwould result were we to regulate usedoil fuel storage in advance of other typesof used oil storage. Storage requirementswill be proposed when the Agencyproposes comprehensive regulations forrecycled oil on the next future.

Hazardous waste fuels stored by amarketer are subject to regulation. Thus,as explained at proposal, storage of bothincoming hazardous waste and outgoinghazardous waste fuels are regulated.



Many marketers are already subject toregulation as storage facilities becausethey store incoming listed wastes andsludges, and may be operating under.interim status standards. Thesemarketers need to amend their Part Astorage applications to seek anauthorization to expand their interimstatus operations to include the wastefuel storage area. See § 270.72.

Numerous comments were receivedon the proposed storage requirements.Many commenters opposed compliancewith the storage standards for industrialboiler owners and operators becausethey believed they were unnecessarysince industrial boiler owners andoperators are well aware of the hazardsof storage and handling of hazardouswaste. Compliance with the storagestandards would cause them to incurlarge costs for little reason, they argued.We disagree. We have noted above thatburner storage facilities have beenexempt from regulation only as aninterim measure and the exemptioncannot be defended on environmentalgrounds. See also 50 FR 643 (January 4,1985) where the Agency discussed whyit was unable to eliminate anyrequirements from Part 265 (or 264)storage standards for recycledhazardous wastes.

Other commenters suggested classpermitting of storage facilities. EPA willconsider issues concerning permitting ofburner storage facilities when the permitstandards for existing burners (andstorage) are proposed in 1986. Today'srule applies only the interim status Part265 standards to existing burner storagefacilities (the predominant class ofstorage units affected by this rule).

III. Examples of How These RegulationsOperate

The following hypothetical examplesillustrate how the rules operate:

1. Generator G generates a hazardouswaste and sends it to burner B whostores it in a tank prior to burning in anindustrial boiler for energy recovery.

G is a hazardous waste fuel marketerbecause he markets directly to a burner.Assuming that G is a large quantitygenerator (and EPA is unaware ofsituations where small quantitygenerators send hazardous wastesdirectly to burners), he must complywith the requirements for marketers,including the manifest and storagerequirements, and notification as ahazardous waste fuel marketer. Prior tosending the first shipment, he must alsoobtain a certification from B that B hasnotified EPA of his waste-as-fuelactivities and that he will burn the fuelonly in unrestricted units (i.e., industrialboilers, industrial furnaces and utility

boilers). B is a hazardous waste fuelburner and a RCRA storage facility.Assuming he already is engaging inhazardous waste management activitiesas a facility, he must comply with theinterim status standards for storage(including submitting a Part A permitapplication). If B is a new storagefacility (i.e., is not in existence as afacility at the time these rules become'effective), he must obtain a storagepermit prior to storing the hazardouswaste fuel. He must also notify EPA ofhis waste-as-fuel activities and provideG with the certification discussed aboveprior to receiving the first shipment. Bwill have one identification number forstorage and burning.

2.A. Generator G, a large quantitygenerator, generates a hazardous wastebut sends it to an intermediateprocessor'P, who mixes it with otherwastes and sells the mixture to a burnerB who stores it in a tank prior to burningin an industrial boiler for energyrecovery.

G is subject to regulation under Part262 as a generator and must complywith the manifest system and applicablestorage requirements. He is not subjectto the requirements for marketers. P is amarketer. He must obtain a storagepermit to store the hazardous wastesreceived from the generator. Theblended mixture is hazardous waste fueland is subject to the storage controlsunder Parts 264 and 265. P and B mustnotify EPA of their waste-as-fuelactivities, and must comply with thecertification requirements. B is ahazardous waste fuel burner who has aRCRA storage facility subject to theinterim status controls of Part 265(assuming the facility is in existence atthe time the rule is effective).

2.B. G, a large quantity generator,generates a hazardous waste and mixesit with used oil. The mixture is sent to P,who does further blending with used oil,and then sends the mixture to B where itis burned as in the previous example.

The controls operate in this situationjust as in the previous example. Amixture of large quantity generatorhazardous waste and used oil is subjectto regulation as hazardous waste.

2.C. G is a small quantity generatorwho generates a hazardous waste andmixes it with used oil, as in example 2.B.G sends the mixture to processor P, whoprocesses the material further and sellsprocessed oil as fuel. The fuel meets thespecification for used oil. It then is soldto retail fuel dealers and to industrialand nonindustrial users.

In this situation (i.e., where a smallquantity generator mixes its hazardouswaste with used oil), the mixture isexempt (for the time being) from

regulation as hazardous waste under theprovisions of 40 CFR 261.5 but (for thetime being) is subject to regulation asused oil when obtained by a used oilfuel marketer, P. Thus, G (whoincidentally is not a marketer) may sendhis used oil to P without an invoice. P isa marketer of used oil fuel. He mustnotify EPA of his waste-as-fuel activitiesand obtain a U.S. EPA IdentificationNumber. He also must document withanalyses (or other information) that theused oil fuel he markets meets thespecification since he receives used oilfrom a generator (or from a transporterwho receives oil from a generator) andmarkets used oil fuel as specificationused oil fuel. In addition, he must keeprecords of the shipment and the personto whom the oil is first sent. The used oilfuel is exempt from further regulationand may be sent to burners or retail fueldealers (i.e., distributors) who do nothave EPA identification numbers,.andwho riay sell the fuel on an unrestrictedbasis.

If, as is more likely, P determines thatthe used oil fuel does not meet thespecification, P can only send it topersons who have certified to him thatthey have notified EPA of their waste-as-fuel activities and will burn the fuelonly in industrial boilers, utility boilers,or industrial furnaces. P would have toprepare and send invoices for the off-specification used oil fuel. The retail fueldealers (i.e., distributors) who receivethe off-specification used oil fuel aremarketers and cannot send the fuel tononindustrial users unless it isprocessed further to meet the fuelspecification (and they document withanalyses or other information that thefuel meets the specification and keeprecords of the shipment and the personto whom the oil is first sent). Marketersand burners must keep records ofinvoices and certifications sent andreceived and fuel analyses (or otherinformation) documenting compliancewith the fuel specification (whererequired).

3.A. P is a used oil processor whoreceives used oil from a variety ofsources and blends them to make fuels.The used oil is not mixed withhazardous waste. The blended fuel thatP produces is off-specification for lead. Psends this fuel to R, a retail fuel dealer.R blends the fuel further so that it meetsthe lead specification. R then sells thefuel to industrial and nonindustrialusers.

P is a marketer of used oil fuel.Because the used oil fuel is off-specification, it can be sent only to aperson (e.g., R) who has certified to Pthat he has notified EPA of his waste-as-

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fuel activities (and obtained a U.S. EPAIdentification Number), and P must sendan invoice to R. R is also a marketerbecause he receives off-specificationused oil fuel. Since R markets the usedoil fuel as specification fuel (bymarketing to industrial boilers withoutcomplying with the invoice, notification,and other requirements), he mustdocument with analyses or otherinformation that the fuel meets thespecification. R must also keep recordsof the shipment and the person to whomthe specification used oil fuel is firstsent. Marketers and burners must keeprecords as discussed previously.

3.B. Processor P receives used oil fromdifferent generators, and also receivesspent halogenated solvents that arelisted as hazardous waste. P blends thehazardous solvents with the used oil.Some of the spent halogenated solventswere generated by large quantitygenerators. The mixture contains lessthan 1000 ppm total halogens and meetsthe specification for all otherconstituents and parameters. P sells thisblended fuel to R, as in example 3.A.

P is a marketer of hazardous waste-fuel because he has mixed hazardouswaste with used oil. There is no need toinvoke the presumption of mixing withhazardous waste (based on totalhalogen levels) because it is known onthese facts that hazardous waste andused oil have been mixed. (As explainedin section IV-B of Part II of thispreamble, it is not always certain whenused oil is mixed with hazardous waste.In those cases, EPA is employing arebuttable presumption of mixing withhalogenated hazardous waste whenhalogen levels exceed 1000 ppm.)Finally, the used oil fuel specificationdoes not apply to hazardous waste and,thus, does not apply to the mixture.

4.A. Petroleum refinery G generatesAPI separator sludge (Hazardous WasteK052) and reintroduces it to the refiningprocess upstream from distillation.

All resulting fuels (includingpetroleum coke) from the refiningprocess are exempt from regulation atthis time because the API separatorsludge is a hazardous waste frompetroleum refining which is introducedto refining process. The API separatorsludge is not automatically exempt fromregulation until it is reintroduced.

4.B. Petroleum refinery G generatedAPI separator sludge, and sends it to adifferent refinery where it isreintroduced to the refining processupstream from distillation.

All resulting rules are exempt for thesame reason as in 4.A. The APIseparator sludge is not automatically

exempt until it is reintroduced.4.C. Petroleum refinery G generates

API separator sludge and sends it to fuelprocessor P who processes the sludgealong with used oil in a process thataccepts crude oil but does not includedistillation as a process step. Theresulting fuels meet the used oil fuelspecification.

The fuels produced by processor P arenot subject to regulation (aside from Pmaintaining a record of the first personto whom the fuels are sent). They wouldbe subject to regulation as hazardouswaste fuels if they failed to meet the fuelspecification. In addition, processor Pneeds a storage permit or interim statusto store the API separator sludge.

5.A. Same facts as in 4.A. above,except that refinery G reclaims oil fromthe API separator sludge andreintroduces the recovered oil to therefining process.

Both the reclaimed oil (which is to berefined) and the resulting fuels areexempt from regulation.

5.B. Same facts as in 4.B. above,except that reclaimed oil (i.e., oilreclaimed from the API separatorsludge] is sent to the other refinery.

Both the reclaimed oil and theresulting fuels are exempt fromregulation.

5.C. Same facts as in 4.C. above,except that reclaimed oil is sent to fuelprocessor P.

Here, the reclaimed oil is notautomatically exempt, because it is notbeing refined (since the fuel processor isnot using distillation as a process step).The resulting fuel is exempt (aside froma recordkeeping step for P) if it meetsthe used oil fuel specification.

6. Processor P obtains contaminatedused oil which it processes viadistillation to produce a fuel. Oil-bearinghazardous wastes from petroleumrefining are also used in the process.The resulting fuel meets the used oil fuelspecification.

The fuel is exempt because it meetsthe used oil fuel specification. See§ 261.6(a)(3)(viii)(A). If the used oil fueldid not meet the fuel specification, itwould be considered hazardous wastefuel and be subject to full regulation.This situation should be distinguishedfrom one where oil-bearing hazardouswastes from refining are reintroduced toa refining process. The process here isnot considered to be refining, in spite ofthe use of distillation, because it doesnot produce products from crude oil.

PART FIVE: ADMINISTRATIVE,ECONOMIC, AND ENVIRONMENTALIMPACTS, AND LIST OF SUBJECTSI. State Authority

A. Applicability of Rules in AuthorizedStates

Under section 3006 of RCRA, EPAmay authorize qualified States toadminister and enforce the RCRAprogram within the State. (See 40 CFRPart 271 for the standards andrequirements for authorization.)Following authorization EPA retainsenforcement authority under sections3008, 7003 and 3013 of RCRA, althoughauthorized States have primaryenforcement responsibility.

Prior to the Hazardous and SolidWaste Amendments of 1984 (HSWA)amending RCRA, a State with finalauthorization administered itshazardous waste program entirely inlieu of EPA administering the Federalprogram in that State. The Federalrequirements no longer applied in theauthorized State, and EPA could notissue permits for any facilities in theState which the State was authorized topermit. When new, more stringentFederal requirements were promulgatedor enacted, the State was obligated toenact equivalent authority withinspecified time frames. New Federalrequirements did not take effect in anauthorized State until the State adoptedthe requirements as State law.

In contrast, under newly enactedsection 3006(g) of RCRA, 42 U.S.C.6926(g), new requirements andprohibitions imposed by the HSWA takeeffect in authorized States at the sametime that they take effect innonauthorized States. EPA is directed tocarry out those requirements andprohibitions in authorized States,including issuing permits, until the Stateis granted authorization to do so. WhileStates must still adopt HSWA-relatedprovisions as State law to retain finalauthorization, the HSWA applies inauthorized States in the interim.

Today's rule, with respect tohazardous waste fuels, (40 CFR 266.30-266.35] is promulgated pursuant tosection 3004(q), a provision added byHSWA. Thus it is being added to Table1 in § 271.1(j) which identifies theFederal program requirements that arepromulgated pursuant to HSWA andthus are immediately effective inauthorized States. States may apply foreither interim or final authorization forthe HSWA provisions identified inTable I as discussed in the followingsection of this preamble.



The used oil fuel standards adoptedtoday at 40 CFR 266.40-266.44 also areapplicable in all States, although for adifferent reason. Used oil fuel is notpresently regulated as a hazardouswaste under section 3001. Instead,today's regulations are promulgatedpursuant to the Used Oil Recycling Act(codified as section 3014(a) of RCRA)which directs EPA to regulated recycledused oil even if used oil is not ahazardous waste. Section 3014(a)requirements apply in all States asFederal law and operate independentlyof sections 3001 through 3006. EPA,however, is about to propose to list usedoil as a hazardous waste pursuant toauthority contained in section 3014(b) ofRCRA, a provision added by HSWA.Should EPA adopt this listing as a finalrule, all rules regarding management ofrecycled used oil thus would beapplicable in all States by virtue ofsection 3006(g) as well as section 3014.At that point, authorized States wouldbe required to revise their programs toadopt these rules as discussed below.B. Effect on State Authorizations

As noted above, the hazardous wastefuel rules promulgated today areeffective in all States. Thus, EPA willimplement the standards innonauthorized States and in authorizedStates until they revise their programs toadopt these rules and the revision isapproved by EPA.

A State may apply to receive eitherinterim or final authorization toadminister and enforce the hazardouswaste fuel rules under section 3006(g)(2)or 3006(b), respectively, on the basis ofrequirements that are substantiallyequivalent or equivalent to EPA's. Theprocedures and schedule for Stateprogram revisions under section 3006(b)are described in 40 CFR 271.21. See 49FR at 21678 (May 22, 1984). The sameprocedures should be followed forsection 3006(g)(2).

Applying § 271.21(e)(2), States thathave final authorization must revisetheir programs within a year from todayif only regulatory changes arenecessary, or within two years ofpromulgation if statutory changes arenecessary. These deadlines can beextended in exceptional cases (40 CFR271.21(e)(3)).

States with authorized RCRAprograms already may haverequirements similar to those in today'srule. These State regulations have notbeen assessed against the Federalregulations being promulgated today todetermine whether they meet the testsfor authorization. Thus, a State is notauthorized to carry out theserequirements in lieu of EPA until a State

program revision is submitted andapproved. Of course, States withexisting standards may continue toadminister and enforce their standardsas a matter of State law. Inimplementing the Federal program EPAwill work with States under cooperativeagreements to minimize duplication ofefforts. In many cases EPA will be ableto defer to the States in their efforts toimplement their programs, rather thantake separate actions under Federalauthority.

States that submit official applicationsfor final authorization less than 12months after promulgation of EPA'sregulations may be approved withoutincluding standards equivalent to thosepromulgated. However, once authorized,a State must revise its program toinclude standards substantiallyequivalent or equivalent to EPA's withinthe time periods discussed above.

I. Regulatory Impacts

A. Results of Regulatory Impact Studies1. Executive Order 12291. As defined

by Executive Order 12291, today'sregulation is not a "major rule".Therefore, no Regulatory ImpactsAnalysis (RIA) is required. This rule willnot have an annual impact on thenational economy greater than $100million. The estimated maximum costsof today's rule are an initial (one-time)expenditure of $6 million and annualcosts of $20.9 million. The majority ofaffected facilities will incur less than$1000 in additional costs with themaximum expenditure for any onefacility expected to be approximately$7000 per year. In addition, theseregulations will not significantly affectcompetition, employment, productivityor innovation.

This rule was submitted to the Officeof Management and Budget (OMB) forreview under Executive Order 12291.

2. Regulatory Flexibility Act. We havedetermined that today's rule will nothave a significant impact on asubstantial number of small businessesand that, therefore, no RegulatoryFlexibility Analysis (RFA) is requiredunder the Regulatory Flexibility Act.Although a large number of smallbusinesses managing used oil will beaffected by some parts of the rules, weestimate that the maximum costs thatcould be imposed will be less than 5% ofproduct price and will not cause a 5%closure rate. Cost of compliance datapresented at proposal (see 50 FR 1708-1712) indicate that the rules mayincrease the cost of a marketer's used oilfuel by 1 to 3 cents per gallon. EPA doesnot consider this a significant increasegiven that generators are paid 15 to 25

cents per gallon for their used oil, andmarketers charge burners 50 to 75 centsper gallon for used oil fuel.

3. Paperwork Reduction Act. Therequirements of the PaperworkReduction Act of 1980 (PRA), 44 U.S.C.3501 et. seq., were considered indeveloping these regulations. Webelieve that the reporting andrecordkeeping required by today's rulesare the minimum necessary toimplement and enforce the regulations.

The information collectionrequirements contained in this rule havebeen approved by the Office ofManagement and Budget (OMB) underthe provisions of the PaperworkReduction Act of 1980, 44 U.S.C. 3501 etseq. and have been assigned OMBcontrol numbers 2050-0028(notification), 2050-0009 (storagepermits), 2050-0039 (manifest shippingpapers, and 2050-0047 (invoice shippingpapers, certification, and used oilanalysis).

B. Impacts on the Recycling Industry

1. Used Oil Fuel. In the proposal, westated that we did not believe that theseregulations would discourage therecycling or recovery of used oil. Therules only restrict used oil entering thenonindustrial fuel market. EPA stated inthe proposal that any used oil not soldto this market could be sold to industrialusers or used as rerefining feedstock.

Many comments were received on thesubject of the impact of the rules, asproposed, on the used oil industry. Mostof the parties who commented wereconcerned that the Agencyunderestimated costs and impacts.Commenters related impacts todecreased value of used oil and theabsence of viable markets for displacedused oil. The Agency maintains that thecosts and impacts presented in theproposed rulemaking (50 FR 1707-1714)are generally complete and reasonableprojections. We predict that today's rulewill have minimal impacts on netrecycling because significant alternativemarkets exist. 101

The Agency also received a number ofcomments stressing the need to maintainviable recycling markets, particularly forused oil. Commenters frequentlydiscussed impacts on their particularIndustry or practices. EPA maintainsthat this proposal will not reduce net

0 It should.be noted that the effective date of thelead specification is delayed six months expresslyto avoid major disruption of the used oil recyclingindustry that could result in dumping. As shown inTable 5 in the text, delaying the effective date of thelead specification is expected to more than doublethe amount of (unblended) used oil that can meetthe specification for metals.

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recycling. This proposal does not restrictcombustion of hazardous wastes orrecycled oil in industrial devices. Nordoes it restrict other recycling, such asused oil rerefining and solventreclamation. We recognize that theregulation will cause some market shifts,but maintain that net recycling will notdecrease. Commenters confused impactsof this proposal with those of moreextensive regulations of the Phase IIstandards that include industrialburners-which this rule does notaddress. Many commenters apparentlypresumed that recycled oil was bannedfrom industrial boilers. The Agency mayapply a similar specification to recycledoil burned in boilers under the Phase IIregulations. The costs and impacts ofthat rule, however, will be presentedwhen that rule is proposed. Those costsand impacts are not part of today's rule.We maintain that today's regulationdoes not impose major impacts thatrequire an RIA.

2. Hazardous Waste Fuel.Commenters suggested that permits forsmall hazardous waste storage facilitiesmay cost $25,000, not the $10,000 wesuggested in the proposal. 102 EPAestimated a $10,000 expenditure becausewe utilized the cost of amending anexisting Part B permit in our costestimate, not the cost of obtaining a newpermit. The rule requires Part B storagepermits only for facilities marketinghazardous waste fuels (and for newhazardous waste fuel burner facilities).We have assumed virtually allhazardous waste fuel contains listedhazardous waste. Thus, the marketer'sfeedstock tanks (i.e., tanks for incomingwastes) are already subject toregulation, the marketer's facilitiesaffected by today's rule would'alreadyhave RCRA permits.

In the proposal, the Agency appliedunit costs to represent the totalincremental costs of these requirementsabove current requirements andpractices. The costs related to thisregulation are not the total investments,revenues, or value of products ofassociated businesses, as somecommenters suggested. We estimatethat this regulation will impose directcosts of up to $21 million per year(annualized). This is one of the reasonswhy this regulation is not a major ruleand does not require an RIA.

'lt should be noted that these storage facilitycost estimates do not include the cost of providingsecondary containment (or alternate equivalentcontrols), a requirement EPA recently proposed forhazardous waste storage facilities. See 50 FR 26444-26504 (June 26, 1985).

Ill. Explanation of Compliance Dates

At proposal (see 50 FR 1714), EPAexpressly requested comment onstaggering the compliance dates for theregulatory requirements to make themeffective as soon as practicable duringthe 1985-86 heating season. Althoughcommenters did not indicate that thecompliance dates were unreasonable,we have decided that the proposed 30day compliance date for notificationsmay not give notifiers enough time torequest and receive notificationapplications from their State hazardouswaste agency, and to complete andsubmit the form. Thus, the final ruleallows notifiers two months after todayto notify regarding their waste-as-fuelactivities.

We are making a correspondingchange to the compliance date for themanifest (or invoice) system. Given thatmarketers and burners must includetheir U.S. EPA Identification Number(assigned after receipt of notification) onmanifests and invoices, and that it maytake as long as two months after receiptof an application to apprise a notifier ofhis Identification Number, (if he is notrenotifying to identify waste-as-fuelactivities) the compliance date for themanifest (or invoice) system is fourmonths after today. (The proposedcompliance date was 90 days afterpublication.)

Compliance dates for the prohibitions(i.e., 10 days after today) and for thestorage controls (i.e., six months aftertoday) are adopted as proposed.

The compliance date for eachregulatory requirement is shown in the"DATES" section at the beginning ofthis preamble.

IV. List of Subjects

40 CFR Part 261

Hazardous waste, Recycling.

40 CFR Part 264

Hazardous waste, Insurance,Packaging and containers, Reportingand recordkeeping requirements,Security measures, Surety bonds.

40 CFR Part 265

Hazardous waste, Insurance,Packaging and containers, Reportingand recordkeeping requirements,Security measures, Surety bonds, Watersupply.

40 CFR Part 266Hazardous waste, Recycling.

40 CFR Part 271

Administrative practice andprocedure, Confidential businessinformation, Hazardous materials

transportation, Hazardous waste, Indianlands, Intergovernmental relations,Penalties, Reporting and recordkeepingrequrements, Water pollution control,Water supply.

Dated: November 8, 1985.Lee M. Thomas,Administrator.

For the reasons set out in thePreamble, Title 40 of the Code of FederalRegulations is amended as follows:

PART 261-IDENTIFICATION ANDLISTING OF HAZARDOUS WASTE

1. The authority citation for Part 261continues to read as follows:

Authority: Secs. 1006, 2002(a), 3001, and3002, of the Solid Waste Disposal Act, asamended by the Resource Conservation andRecovery Act of 1976, as amended (42 U.S.C.6905, 6912(a), 6921, and 6922).

2. Section 261.3 is amended by addingto paragraph (c)(2)(ii) the following (B):

§ 261.3 Definition of hazardous waste..* * * * *

(c) * * *(2) ....(ii) * * *

(B) Wastes from burning any of thematerials exempted from regulation by§ 261.6(a)(3) (iv), (vi), (vii), or (viii).• * * * *

3. Section 261.5 is amended byrevising paragraph (b) to read asfollows:

§ 261.5 Special requirements forhazardous waste generated by smallquantity generators.* * * * *

(b) Except for those wastes identifiedin paragraphs (e), (f), (g), (h), and (k) ofthis section, a small quantity generator'shazardous wastes are not subject toregulation under Parts 262 through 266and Parts 270 and 124 of this chapter,and the notification requirements ofSection 3010 of RCRA, provided thegenerator complies with the regulationsof paragraphs (f0, (g), (h), and (k) of thissection.* * * * *

4. Section 261.5 is amended by addinga new paragraph (k) to read as follows:

§ 261.5 Special requirements forhazardous waste generated by smallquantity generators.* * * * *

(k) If a small quantity generator'shazardous wastes are mixed with usedoil, the mixture is subject to Subpart E ofPart 266 of this chapter if it is destinedto be burned for energy recovery. Anymaterial produced from such a mixtureby processing, blending, or other


No. 230 / Friday. November 29, 1985 / Rules and Regulations 49203

treatment is also so regulated'if it isdestined to be burned for energyrecovery.

5. Section 261.6 is amended byrevising paragraphs (a)(2)(iii), and(a)(3)(iii), and adding new paragraphs(a)(3) (viii) and (ix). Although only theabove changes are made under this .rulemaking, the entire § 261.6, includingprovisions not affected by today's rules,is printed here for the reader'sconvenience.

§ 261.6 Requirements for recyclablematerials.

(a)(1) Hazardous wastes that arerecycled are subject to the requirementsfor generators, transporters, and storagefacilities of paragraphs (b) and (c) of thissection, except for the materials listed inparagraphs (a)(2) and (a)(3) of thissection. Hazardous wastes that arerecycled will be known as "recyclablematerials."

(2) The following recyclable materialsare not subject to the requirements ofthis section but are regulated underSubparts C through G of Part 266 of thischapter and all applicable provisions inParts 270 and 124 of this chapter:

(i) Recyclable materials used in amanner constituting disposal (SubpartC};

(ii) Hazardous wastes burned forenergy recovery in boilers and industrialfurnaces that are not regulated underSubpart 0 of Part 264 or 265 of thischapter (Subpart D);

(iii) Used oil that exhibits one or moreof the characteristics of hazardouswaste and is burned for energy recoveryin boilers and industrial furnaces thatare not regulated under Subpart 0 ofPart 264 or 265 of this chapter (SubpartE);

(iv) Recyclable materials from whichprecious metals are reclaimed (SubpartF);

(v) Spent lead-acid batteries that arebeing reclaimed (Subpart'G).

(3) The following recyclable materialsare not subject to regulation under Parts262 through Parts 266 or Parts 270 or 124of this chapter, and are not.subject tothe notification requirements of section3010 of RCRA:

(i) Industrial ethyl alcohol that isreclaimed;

(ii) Used batteries (or used batterycells) returned to a battery manufacturerfor regeneration;

(iii) Used oil that exhibits one or moreof the characteristics of hazardouswaste but is recycled in some othermanner than being burned for energyrecovery;

(iv) Scrap metal;(v) Fuels produced from the refining of

oil-bearing hazardous wastes along with

normal process streams at a petroleumrefining facility if such wastes resultfrom normal petroleum refining,production, and transportationpractices;

(vi) Oil reclaimed from hazardouswaste resulting from normal petroleumrefining, production, and transportationpractices, which oil is to be refinedalong with normal process streams at apetroleum refining facility;

(vii) Coke and coal tar from the ironand steel industry that containshazardous waste the iron and steelproduction process;

(viii) (A) Hazardous waste fuelproduced from oil-bearing hazardouswastes from petroleum refining,production, or transportation practices,or produced from oil reclaimed fromsuch hazardous wastes, where suchhazardous wastes are reintroduced intoa process that does not use distillationor does not produce products from crudeoil so long as the resulting fuel meets theused oil specification under § 266.40(e)of this chapter and so long as no otherhazardous wastes are used to producethe hazardous waste fuel;

(B] Hazardous waste fuel producedfrom oil-bearing hazardous waste frompetroleum refining production, andtransportation practices, where suchhazardous wastes are reintroduced intoa refining process after a point at whichcontaminants are removed, so long asthe fuel meets the used oil fuelspecification under § 266.40(e) of thischapter; and

(C) Oil reclaimed from oil-bearinghazardous wastes from petroleumrefining, production, and transportationpractices, which reclaimed oil is burnedas a fuel without reintroduction to arefining process, so long as thereclaimed oil meets the used oil fuelspecification under § 266.40(e) of thischapter, and

(ix) Petroleum coke produced frompetroleum refinery hazardous wastescontaining oil at the same facility atwhich such wastes were generated,unless the resulting coke product.exceeds one or more of thecharacteristics of hazardous waste inPart 261, Subpart C.

(b) Generators and transporters ofrecyclable materials are subject to theapplicable requirements of Parts 262 and263 of this chapter and the notificationrequirements under section 3010 ofRCRA, except as provided in paragraph(a) of this section.

(c)(1) Owners or operators of facilitiesthat store recyclable materials beforethey are recycled are regulated under allapplicable provisions of Subparts Athrough L of Parts 264 and 265 and Parts266, 270, and 124 of this chapter and the

notification requirements under section3010 of RCRA except as provided inparagraph (a] of this section. (Therecycling process itself is exempt fromregulation.)

(2) Owners or operators of facilitiesthat recycle recyclable materialswithout storing them before they arercycled are subject to the followingrequirements, except as provided inparagraph (a) of this section:

(i) Notification requirements undersection 3010 of RCRA;

(ii) Sections 265.71 and 265.72 (dealingwith the use of the manifest andmanifest discrepancies) of this chapter.

PART 264-STANDARDS FOROWNERS AND OPERATORS OFHAZARDOUS WASTE TREATMENT,STORAGE, AND DISPOSALFACILITIES

6. The authority citation for Part 264continues to read as follows:

Authority: Secs. 1006, 2002(a), 3004, 3005, ofthe Solid Waste Disposal Act, as amended bythe Resource Conservation and Recovery Actof 1976. as amended (42 U.S.C. 6905, 6912(a),6924, and 6925).

7. Section 264.340 is amended byrevising paragraph (a)(2) to read asfollows:

§ 264.340 Applicability.(a) * * *

(2) Owners or operators who burnhazardous waste in boilers or inindustrial furnaces in order to destroythem, or who burn hazardous waste inboilers or in industrial furnaces for anyrecycling purpose and elect to beregulated under this subpart.

PART 265-INTERIM STATUSSTANDARDS FOR OWNERS ANDOPERATORS OF HAZARDOUS WASTETREATMENT, STORAGE ANDDISPOSAL FACILITIES

8. The authority citation for part 265continues to read as follows:

Authority: Secs. 1006, 2002(a), 3004, and3005 of the Solid Waste Disposal Act, asamended by the Resource Conservation andRecovery Act of 1976, as amended (42 U.S.C.6905, 6924, and 6925).

9. Section 265.340 is amended torevise paragraph (a)(2) to read asfollows:

§ 265.340 Applicability.(a) * * *(2) Owners or operators who burn

hazardous waste in boilers or inindustrial furnaces in order to destroythem, or who burn hazardous waste inboilers or in industrial furnaces for any




recycling purpose and elect to beregulated under this subpart.

PART 266-STANDARDS FOR THEMANAGEMENT OF SPECIFIC WASTESAND SPECIFIC TYPES OF WASTEMANAGEMENT FACILITIES

10. The authority citation for Part 266is revised to read as follows:

Authority: Secs. 1006: 2002(a), 3004, and3014 of the Solid Waste Disposal Act, asamended by the Resource Conservation andRecovery Act of 1976, as amended (42 U.S.C.6905, 6912(a), 6924, and 6934).

11. Subpart D is revised to read asfollows:

Subpart D-Hazardous Waste Burned forEnergy Recovery

Sec.266.30 Applicability.266.31 Prohibitions.266.32- Standards applicable to generators of

hazardous waste fuel.266.33 Standards applicable to transporters

of hazardous waste fuel.266.34 Standards applicable to marketers of

hazardous waste fuel.260.35 Standards applicable to burners of

hazardous waste fuel.Subpart D-Hazardous Waste Burned

for Energy Recovery

§ 266.30 Applicability.(a) The regulations of this subpart

apply to hazardous wastes that areburned for energy recovery in any boileror industrial furnace that is notregulated under Subpart 0 of Part 264 or265 of this chapter, except as providedby paragraph (b) of this section. Suchhazardous wastes burned for energyrecovery are termed "hazardous wastefuel". Fuel produced from hazardouswaste by processing, blending, or othertreatment is also hazardous waste fuel.

,(These regulations do not apply,however, to gas recovered fromhazardous waste management activitieswhen such gas is burned for energyrecovery.)

(b) The following hazardous wastesare not subject to regulation under thissubpart:

(1) Used oil burned for energyrecovery that is also a hazardous wastesolely because it exhibits acharacteristic of hazardous wasteidentified in Subpart C of Part 261 of thischapter. Such used oil is subject toregulation under Subpart E of Part 266rather than this subpart; and

(2) Hazardous wastes that are exemptfrom regulation under §§ 261.4 and261.6(a) (3) (v)-(ix) of this chapter, andhazardous wastes that are subject to the

special requirements for small quantitygenerators under § 261.5 of this chapter;

§ 266.31 Prohibitions.(a) A person may market hazardous

waste fuel only:(1) To persons who have notified EPA

of their hazardous waste fuel activitiesunder section 3010 of RCRA and have aU.S. EPA Identification Number; and

(2) If the fuel is burned, to persons.who burn the fuel in boilers or industrialfurnaces identified in paragaraph (b)ofthis section.

(b) Hazardous waste fuel may beburned for energy recovery in only thefollowing devices;

(1) Industrial furnaces identified in§ 260.10 of this chapter;

(2) Boilers, as defined in § 260.10 ofthis chapter, that are identified asfollows:

(i) Industrial boilers located on thesite of a facility engaged in amanufacturing process wheresubstances are transformed into newproducts, including the component partsof products, by mechanical or chemicalprocesses; or

(ii) Utility boilers used to produceelectric power, steam, or heated orcooled air or other gases or fluids forsale.

(c) No fuel which contains anyhazardous waste may be burned in anycement kiln which is located within theboundaries of any incorporatedmunicipality with a population greaterthan 500,000 (based on the niost recentcensus statistics) unless such kiln fullycomplies with regulations under thischapter that are applicable toincinerators.

§ 266.32 Standards applicable togenerators of hazardous waste fuel.

(a) Generators of hazardous wastethat is used as a fuel or used to producea fuel are subject to Part 262 of thischapter.

(b) Generators who market hazardouswaste fuel to a burner also are subject to§ 266.34.

(c) Generators who are burners alsoare subject to § 266.35.

§ 266.33 Standards applicable totransporters of hazardous waste fuel.

Transporters of hazardous waste fuel(and hazardous waste that is used toproduce a fuel) are subject to Part 263 ofthis chapter.

§ 266.34 Standards applicable tomarketers of hazardous waste fuel.

Persons who market hazardous wastefuel are termed "marketers", and aresubject to the following requirements.Marketers include generators whomarket hazardous waste fuel directly to •

a burner, persons who receivehazardous waste from generators andproduce, process, or blend hazardouswaste fuel from these hazardous wastes,and persons who distribute but do notprocess or blend hazardous waste fuel.

(a) Prohibitions. The prohibitionsunder § 266.31(a);

(b) Notification. Notificationrequirements under section 3010 ofRCRA for hazardous waste fuelactivities. Even if a marketer haspreviously notified EPA of hishazardous waste management activitiesand obtained a U.S. EPA IdentificationNumber, he must renotify to identify hishazardous waste fuel activities.

(c) Storage. The applicable provisionsof § 262.34, and Subparts A through L ofPart 264, Subparts A through L of Part265, and Part 270 of this chapter;

(d) Off-site shipment. The standardsfor generators in Part 262 of this chapterwhen a marketer initiates a shipment ofhazardous waste fuel;

(e) Required notices. (1) Before amarketer initiates the first shipment ofhazardous waste fuel to a burner oranother marketer, he must obtain a one-time written and signed notice from theburner or marketer certifying that:

(i) The burner or marketer has notifiedEPA under Section 3010 of RCRA andidentified his waste-as-fuel activities;and

(ii) If the recipient is a burner, theburner will burn the hazardous wastefuel only in an industrial furnace orboiler identified in § 261.31(b).

(2) Before a marketer accepts the firstshipment of'hazardous waste fuel fromanother marketer, he must provide theother marketer with a one-time writtenand signed certification that he hasnotified EPA under section 3010 ofRCRA and identified his hazardouswaste fuel activities; and

(f) Recordkeeping. In addition to theapplicable recordkeeping requirementsof Parts 262, 264, and 265 of this chapter,a marketer must keep a copy of eachcertification notice he receives or sendsfor three years from the date he lastengages in a hazardous waste fuelmarketing transaction with the personwho sends or receives the certificationnotice.(The notification requirements contained inparagraph (b) of this section were approvedby OMB under control number 2050-0028.The storage requirements contained inparagraph (c) of this section were approvedby OMB under control number 2050-0009.The manifest and invoice requirementscontained in paragraph (d) of this sectionwere approved by OMB under controlnumbers 2050-0039 and 2050-0047,respectively. The certification requirementscontained in paragraph (e) of this section


Federal Register I Vol. 50, No. 230 / Friday, November 29, 1985 / Rules and Regulations 49205were approved by OMB under controlnumber 2050-0047. The recordkeepingrequirements contained in paragraph (f) ofthis section were approved by OMB undercontrol number 2050-0047.)

§ 266.35 Standards applicable to burnersof hazardous waste fuel.

Owners and operators of industrialfurnaces and boilers identified in§ 266.31(b) that burn hazardous fuel are"burners" and are subject to thefollowing requirements:

(a) Prohibitions. The prohibitionsunder § 266.31(b);

(b) Notification. Notificationrequirements under section 3010 ofRCRA for hazardous waste fuelactivities. Even if a burner haspreviously notified EPA of hishazardous waste management activitiesand obtained a U.S. EPA IdentificationNumber, he must renotify to identify hishazardous waste fuel activities.

(c) Storage. (1) For short termaccumulation by generators who burntheir hazardous waste fuel on site, theapplicable provisions of § 262.34 of thischapter;

(2) For existing storage facilities, theapplicable provisions of Subparts Athrough L of Part 265, and Parts 270 and124 of this-chapter; and

(3) For new storage facilities, theapplicable provisions of Subparts Athrough L of Part A 264, and Parts 270and 124 of this chapter;

(d) Required notices. Before a burneraccepts the first shipment of hazardouswaste fuel from a marketer, he mustprovide the marketer a one-time writtenand signed notice certifying that:

(1) He has notified EPA under section3010 of RCRA and identified his waste-as-fuel activities; and

(2) He will burn the fuel only iniaboiler or furnace identified in§ 266.31(b).

(e) Recordkeeping. In addition to theapplicable recordkeeping requirementsof Parts 264 and 265 of this chapter, aburner must keep a copy of eachcertification notice that he sends to amarketer for three years from the datehe last receives hazardous waste fuelfrom that marketer.

(The notification requirements contained inparagraph (b) of this section were approvedby OMB under control number 2050-40028.The storage requirements contained inparagraph (c) of this section were approvedby OMB under control number 2050-0009.The certification requirements contained inparagraph [d) of this section were approvedby OMB under control number 2050-0047.The recordkeeping requirements contained inparagraph (e) of this section were approvedby OMB under control number 2050-0047.)

12. Subpart E is added as follows:

Subpart E-Used Oil Burned for EnergyRecovery

Sec.266.40 Applicability-266.41 Prohibitions.266.42 Standards applicable to generators of

used oil burned for energy recovery.266.43 Standards applicable to marketers of

used oil burned for energy recovery.266.44 Standards applicable to burners of

used oil burned for energy recovery.

Subpart E-Used Oil Burned forEnergy Recovery

§ 266.40 Applicability.(a) The regulations of this subpart

apply to used oil that is burned forenergy recovery in any boiler orindustrial furnace that is not regulatedunder Subpart 0 of Part 264 or Part 265of this chapter, except as provided byparagraphs (c) and (e) of this section.Such used oil is termed "used oil fuel".Used oil fuel includes any fuel producedfrom used oil by processing, blending, orother treatment.

(b) "Used oil" means any oil that hasbeen refined from crude oil, used, and,as a result of such use, is contaminatedby physical or chemical impurities.

(c) Except as provided by paragraph(d) of this section, used oil that is mixedwith hazardous waste and burned forenergy recovery is subject to regulationas hazardous waste fuel under SubpartD of Part 266. Used oil containing morethan 1000 ppm of total halogens ispresumed to be a hazardous wastebecause it has been mixed withhalogenated hazardous waste listed inSubpart D of Part 261 of this chapter.Persons may rebut this presumption bydemonstrating that the used oil does notcontain hazardous waste (for example,by showing that the used oil does notcontain significant concentrations ofhalogenated hazardous constituentslisted in Appendix VIII of Part 261 ofthis chapter).

(d) Used oil burned for energyrecovery is subject to regulation underthis subpart rather than as hazardouswaste fuel under Subpart D of this partif it is a hazardous waste solely becauseit:

(1) Exhibits a characteristic- ofhazardous waste identified in Subpart Cof Part 261 of this chapter, provided thatit is not mixed with a hazardous waste;or

(2) Contains hazaftdous wastegenerated only by a person subject tothe special requirements for smallquantity generators under § 261.5 of thischapter.

(e) Except as provided by paragraph(c) of this section, used oil burned forenergy recovery, and.any fuel producedfrom used oil by processing, blending, or

other treatment, is subject to regulationunder this subpart unless it is shown notto exceed any of the allowable levels ofthe constituents and properties in thespecification shown in the followingtable. Used oil fuel that meets thespecification is subject only to theanalysis and zecordkeepingrequirements under § § 266.43(b) (1) and(6). Used oil fuel that exceeds anyspecification level is termed "off-specification used oil fuel".

USED OIL EXCEEDING ANY SPECIFICATIONLEVEL IS SUBJECT TO THIS SUBPART WHENBURNED FOR ENERGY RECOVERY 5

Constfluent/property Allowable level

Arsenic ...................................... 5 ppm maximum.Cadmium ..................................... 2 ppm maximum.Chromium.- ........................ 10 ppm maximum.Lead ......................... 100 ppm maximum.Flash Point ................................. 100 "F minimum.Total Halogens .......................... 4,000 ppm maximum.

b

-The specfication does not apply to used oil fuel mixedwith a hazardous waste other than small quantity generatorhazardous waste.

bUsed oil containing more than 1,000 ppm total halogensis presumed to be a hazardous waste under the rebuttablepresumption provided under § 266.40(c)- Such used oil issubject to Subpart D ot this part rather than this subpartwhen burned for energy recovery unless the presumption ofmixing can be successfully rebutted.

§ 266.41 Prohibitions.(a) A person may market off-

specification used oil for energyrecovery only:

(1) To burners or other marketers whohave notified EPA of their used oilmanagement activities stating thelocation and general description of suchactivities, and who have an EPAidentification number; and

(2) To burners who burn the used oilin an industrial furnace or boileridentified in paragraph (b) of thissection.

(b) Off-specification used oil may beburned for energy recovery in only thefollowing devices:

(1) Industrial furnaces identified in§ 260.10 of this chapter; or

(2) Boilers, as defined in § 260.10 ofthis chapter, that are identified asfollows:

(i) Industrial boilers located on thesite of a facility engaged in amanufacturing process wheresubstances are transformed into newproducts, including the component partsof products, by mechanical or chemicalprocesses;

(ii) Utility boilers used to produceelectric power, steam, or heated orcooled air or other gases or fluids forsale; or

(iii) Used oil-fired space heatersprovided that:

(A) The heater burns only used oilthat the owner or operator generates orused oil received from do-it-yourself oil

Federal Register / Vol. 50, No. 230 / Friday, November 29, 1985 / Rules and- Regulations 49205



changers who generate used oil ashousehold waste;

(B) The heater is designed to have amaximum capacity of not more than 0.5million Btu per hour; and

(C) The combustion gases from theheater are vented to the ambient air.

§ 266.42 Standards applicable togenerators of used oil burned for energyrecovery.

(a) Except as provided in paragraphs(b) and (c) of this section, generators ofused oil are not subject to this subpart.

(b) Generators who market used oildirectly to a burner are subject to§ 266.43.

(c) Generators who bum used oil aresubject to § 266.44.

§ 266.43 Standards applicable tomarketers of used oil burned for energyrecovery.

(a) Persons who market used oil fuelare termed "marketers". However, thefollowing persons are not marketerssubject to this Subpart:

(1) Used oil generators, and collectorswho transport used oil received onlyfrom generators, unless the generator orcollector markets the used oil directly toa person who bums it for energyrecovery. However, persons who burnsome used oil fuel for purposes ofprocessing or other treatmentto produceused oil fuel for marketing areconsidered to be burning incidentally toprocessing. Thus, generators andcollectors who market to such incidentalburners arenot marketers subject to thissubpart;

(2) Persons who market only used oilfuel that meets the specification under§ 266.40(e) and who are not the firstperson to claim the oil meets thespecification (i.e., marketers who do notreceive used oil from generators orinitial transporters and marketers whoneither receive nor market off-specification used oil fuel).

(b) Marketers are subject to thefollowing requirements:

(1) Analysis of used oil fuel. Used oilfuel is subject to regulation under thissubpart unless the marketer obtainsanalyses or other informationdocumenting that the used oil fuel meetsthe specification provided under§ 266.40(e).

(2) Prohibitions. The prohibitionsunder § 266.41(a);

(3) Notification. Notification to EPAstating the location and generaldescription of used oil managementactivities. Even if a marketer haspreviously notified EPA of hishazardous waste management activitiesunder section 3010 of RCRA andobtained a U.S. EPA Identification

Number, he must renotify to identify hisused oil management activities.

(4) Invoice system. When a marketerinitiates a shipment of off-specificationused oil, he must prepare and send thereceiving facility an invoice containingthe following information:

(i) An invoice number;(ii) His own EPA identification

number and the EPA identificationnumber of the receiving facility;

(iii) The names and addresses of theshipping and receiving facilities;

(iv) The quantity of off-specificationused oil to be delivered;

(v) The date(s) of shipment ordelivery; and

(vi) The following statement: "Thisused oil is subject to EPA regulationunder 40 CFR Part 266";

Note.-Used oil that meets the definition ofcombustible liquid (flash point below 200 *Fbut at or greater than 100 *F) or flammableliquid (flash point below 100 *F) is subject toDepartment of Transportation HazardousMaterials Regulations at 49 CFR Parts 100-177.

(5) Required notices. (i) Before amarketer initiates the first shipment ofoff-specification used oil to a burner orother marketer, he must obtain a one-time written and signed notice from theburner or marketer certifying that:

(A) The burner or marketer hasnotified EPA stating the location andgeneral descripti6n of his used oilmanagement activities; and

(B) If the recipient is a burner, theburner will burn the off-specificationused oil only in an industrial furnace orboiler identified in § 266.41(b); and

(ii) Before a marketer accepts the firstshipment of off-specification used oil

' from another marketer subject to therequirements of this section, he mustprovide the marketer with a one-timewritten and signed notice certifying thathe has notified EPA of his used oilmanagement activities; and

(6) Recordkeeping-(i) Used Oil FuelThat Meets the Specification. Amarketer who first claims underparagraph (b)(1) of this section that usedoil fuel meets the specification mustkeep copies of analysis (or otherinformation used to make thedetermination) of used oil for threeyears. Such marketers must also recordin an operating log and keep for threeyears the following information on eachshipment of used oil fuel that meets thespecification. Such used oil fuel is notsubject to further regulation, unless it issubsequently mixed with hazardouswaste or unless it is mixed with used oilso that it no longer meets thespecification.

(A) The name and address of thefacility receiving the shipment;

(B) The quantity of used oil fueldelivered;(C) The date-of shipment or delivery;

.and(D) A cross-reference to the record of

used oil analysis (or other informationused to make the determination that theoil meets the specification) requiredunder paragraph (b)(6)(i) of this section.

(ii) Off-Specification Used Oil Fuel. Amarketer who receives or-initiates aninvoice under the requirements of thissection must keep a copy of eachinvoice for three years from the date theinvoice is received or prepared. Inaddition, a marketer must keep a copyof each certification notice that hereceives or sends for three years fromthe date he last engages in an off-specification used oil fuel marketingtransaction with the person who sendsor receives the certification notice.

(The analysis requirements contained inparagraph (b)(1) of this section wereapproved by OMB under control number2050-0047. The notification requirementscontained in paragraph (b)(3) of this sectionwere approved by OMB under controlnumber 2050-0028. The invoice requirementscontained in paragraph (b)(4) of this sectionwere approved by OMB under controlnumber 2050-0047. The certificationrequirements contained in paragraph (b)(5) ofthis section were approved by OMB undercontrol number 2050-0047. The recordkeepingrequirements contained in paragraph (b)(6] ofthis section were approved by OMB undercontrol number 2050-0047.)§ 266.44 Standards applicable to burners

of used oil burned for energy recovery.Owners and operators of facilities

that burn used oil fuel are "burners" andare subject to the followingrequirements:

(a) Prohibition. The prohibition under§ 266.41(b);

(b) Notification. Burners of off-specification used oil fuel must notifyEPA stating the location and generaldescription of used oil managementactivities, except that owners and"operators of used oil-fired space heatersthat burn used oil fuel under theprovisions of § 266.41(b)(2) are exemptfrom these notification requirements.Even if a burner has previously notifiedEPA of his hazardous wastemanagement activities under Section3010 of RCRA and obtained anidentification number, he must renotifyto identify his used oil managementactivities.

(c) Required notices. Before a burneraccepts the first shipment of off-specification used oil fuel from amarketer, he must provide the marketera one-time written and signed noticecertifying that:



(1) He has notified EPA stating thelocation and general description of hisused oil management activities; and

(2) He will burn the used oil only in anindustrial furnace or boiler identified in§ 266.41(b); and

(d) Used oilfuel analysis. (1) Used oilfuel burned by the generator is subjectto regulation under this subpart unlessthe burner obtains analysis (or otherinformation) documenting that the usedoil meets the specification providedunder § 266.40(e).

(2) Burners who treat off-specificationused oil fuel by processing, blending, orother treatment to meet the specificationprovided under § 266.40(e) must obtainanalyses (or other information)documenting that the used oil meets thespecification.

(e) Recordkeeping. A burner whoreceives an invoice under therequirements of this section must keep acopy of each invoice for three yearsfrom the date the invoice is received.Burners must also keep for three yearscopies of analyses of used oil fuel as

may be required by paragraph (d) of thissection. In addition, he must keep a copyof each certification notice that he sendsto a marketer for three years from the

* date he last receives off-specificationused oil from that marketer.

(The notification requirements contained inparagraph (b) of this section were approvedby OMB under control number 2050-0028.The certification requirements contained inparagraph (c) of this section were approvedby OMB under control number 2050--0047.The analysis requirements contained inparagraph (d) of this section were approvedby OMB under control number 2050-0047.The recordkeeping requirements contained inparagraph (e) of this section were approvedby 0MB under control number 2050-0047.)

PART 271-REQUIREMENTS FORAUTHORIZATION OF STATEHAZARDOUS WASTE PROGRAMS

12. The authority citation for Part 271is revised to read as follows:

Authority: Secs. 1006, 2002(a), and 3006 ofthe Solid Waste Disposal Act, as amended bythe Resource Conservation and Recovery Act

of 1976, as amended (42 U.S.C. 6905, 6912(a),and 6926).

13. Section 271.1(j) is amended bychanging the table heading and byadding the following entry to Table 1 inchronological order by date ofpublication:

TABLE 1.-REGULATIONS IMPLEMENTING THEHAZARDOUS AND SOLID WASTE AMEND-MENTS OF 1984

Date ofpublication in the re of regulation

FEDERALREGISTER

Nov. 29, 1985 . Standards for the Management of Specif-Ic Wastes and Specific Types of Facili-ties.

Appendix-Form-Notification of

Hazardous Waste Activity

EPA Form 8700-12 (Revised 11/85)

(This form will not appear in the Code ofFederal Regulations.)BILUNG CODE 6560-50-M

49207



Please Print or type with ELITE type (12 characrers Per inch) in the tunshaded areas onlyForm Approved. OMB No. 2050-0028. Expires 9-30-88.

GSA No. 0246-EPAOT

United States Environmental Protection Agency Please refer to the Instructions forWashington, DC 20460 Filing Notification before completing

this form. The information requestedhere is required by law (SectionhE PA Notification of Hazardous Waste Activity 3o 10of the Resource Conservationand Recovery Act).

For Official Use OnCComments1 C I cC I I I I1 1 !

Date ReceivedInstallation's EPA ID Number Approved (yr. MO. day)

1. Name of Installation =.. -,

II. Installation Mailing AddressStreet or P.O. Box

City or Town' State ZIP Code

Ill. Location of Instalto 11- ...t''. -- .. .-

Street or Route Number

_5Cit' or Town State ZIP Code

IV. In.,lainCnat . r -

v. Ownership .::_

A. Name of Installation's Leal OwnLer . Type of Ownership (enter code)

R

A. Hazardous Waste Activity B. Used Oil Fuel Activities

E la. Generator 01 lb. Less than 1.000 kg/mo. 03 6. Off-Specification Used Oil FuelE3 2. Transporter (enter X' and mark appropriate boxes below)

01 3. Treater/Storer/Disposer C a. Generator Marketing to Burner

0 4. Underground Injection

0] 5. Market or Burn Hazardous Waste Fuel 0 b. Other Marketer(enter X' and mark appropriate boxes below) 0] c. Burner

EO a. Generator Marketing to Burner 7. Specification Used Oil Fuel Marketer

n b. Other Marketer (Or On-Site Burner) Who First Claims

0 c. Burner the oil Meets the Specification.

VII. Waste Fuel Burning: Type of Combustion Device (enter'X'in allappropriate boxes to indicate type of combustion device(s) inwhich hazardous waste fuel or off-specification used oil fuel is burned. See instructions for definitions of combustion devices.)

C3 A. Utility Boiler 0 B. Industrial Boiler [ C. Industrial Furnace

VIII. Mode of Transportation (transporters only - enter 'X' in the appropriate box(es

0l A. Air 0 B. Rail E0 C. Highway C3 D. Water 0 E. Other (specify)

IX. First or Subsequent NotificationMark 'X in the appropriate box to indicate whether this is your installation's first notification of hazardous waste activity or a subsequentnotification. If this is not your first notification, enter your installation's EPA ID Number in the space provided below.

C. Installation's EPA ID Number

0 A. First Notification 0l B. Subsequent Notification (complete item C)

EPA Form 8700-12 (Rev. 11-85) Previous edition is obsolete.1 LtLL~L I _

Continue on reverse

!



I ID - For Official Use Onl

IX. Description of Hazardous Wastes (contiue d from fro4 P 2 fA. Hazardous Wastes from Nonspecific Sources. Enter the four-digit number from 40 CFR Part 261.31 for each listed hazardous waste

from nonspecific sources your installation handles. Use additional sheets if necessary.

13 14 15 14 17 18

19 20 21 22 23 24

25 26 27-- 28 29 30

.Commeial Chemical Product Hazardous Wastes. Enter the four-digit number from 40 CFR Part 261.33 for each chemical substanceyour installation handles which may be a hazardous waste. Use additional sheets if necessary.

]339

45

40

46

35

41

4771i

36

42

48

D. Listed Infectious Wastes. Enter the four-digit number from 40 CFR Part 261.34 for each hazardous waste from hospitals, veterinary hos-pitals, or medical and research laboratories your installation handles. Use additional sheets if necessary.

E. Characteristics of Nonlisted Hazardous Wastes. Mark X in the boxes corresponding to the characteristics of nonlisted hazardous qiastesyour installation handles. (See 40 CFR Parts 261.21 - 261.24)

O 1. Ignitable(DO1)

X. Certification

0 2. Corrosive(0002)

o 3. Reactive(DO03)

o 4. Toxic(DOO0)

I certify under penalty of law that / have personally examined and am familiar with the information submitted inthis and all attached documents, and that based on my inquiry of those individuals immediately responsible forobtaining the information, I believe that the submitted information is true, accurate, and complete. lam aware thatthere are significant penalties for submitting false information, including the possibility of fine and imprisonment.

Name and Official Title (type or print) Date Signed

EPA Form 8700-12 (Rev. 11-85) Reverse

BILUNG CODE 6560-50-C

43

32

38

ml

Signature

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IV. Line-by-Line Instructions for CompletingEPA Form 8700-12

Type or print in black ink all items exceptItem XI, "Signature." leaving a blank boxbetween words. When typing, hit the spacebar once between characters and three timesbetween words. If you must use additionalsheets, indicate clearly the number of theitem on the form to which the information onthe separate sheet applies.

Items I-ll-Name, Mailing Address, andLocation of Installation:

Complete Items I-Ill. Please note that theaddress you give for Item Il1, "Location ofInstallation," must be a physical address, nota post office box or route number. If themailing address and physical facility locationare the same, you can print "Same" in box forItem Ill.

Item IV-Installation Contact:

Enter the name, title, and businesstelephone number of the person who shouldbe contacted regarding information submittedon this form.

Item V-Ownership:

(A) Name: Enter the name of the legalowner(s) of the installation, including'theproperty owner. Use additional sheets ifnecessary to list more than one owner.

(B) Type: Using the codes listed below,indicate the legal status of the owner of thefacility:

FF= Federally Owned, Federally OperatedFC= Federally Owned, Operated By A

Private Contractor to the FederalGovernment

FP= Federally Owned, Privately OperatedPF=Privately Owned, Constructed For Use

By The Federal Government andOperated By The Federal Government

PL= Privately Owned, Leased AndOperated By The Federal Government

PI=Privately Owned, Indian LandFI= Federally Owned, Indian LandC=CountyD = DistrictM= MunicipalP=PrivateS=State

Item VI-Type of Regulated Waste Activity:(A) Hazardous Waste Activity: Mark the

appropriate box(es) to show which hazardouswaste activities are going on at thisinstallation.

(1) Generator: (a) If you generate a.hazardous waste that is identified bycharacteristic or listed in 40 CFR Part 261,maik an "X" in this box.

(b) In addition, ifyou generate less than1000 kilograms of non-acutely-hazardouswaste per calendar month, mark an "X" inthis box.

(2) Transporter: If you move hazardouswaste by air, rail, highway, or water thenmark an "X" in this box. All transportersmust complete Item VIII. Transporters do nothave to complete Item X of this form, butmust sign the certification in Item XL, Refer toPart 263 of the CFR for an explanation of theFederal regulations for hazardous wastetransporters.

(3) Treater/Storer/Disposer: If you treat,store or dispose of regulated hazardous

waste, then mark an "X" in this box. You arereminded to contact the appropriateaddressee listed for your State in Section11(C) of this package to request Part A of theRCRA Permit Application. Refer to Parts 264and 265 of the CFR for an explanation of theFederal regulations for hazardous wastefacility owners/operators.

(4) Underground Injection: Persons whogenerate and/or treat or dispose of hazardouswaste must place an "X" in this box if aninjection well is located at their installation.An injection well is defined as any hole in theground, including septic tanks, that is deeperthan it is wide and that is used for thesubsurface placement of fluids.

(5) Market or Burn Hazardous Waste Fuel:If you market or burn hazardous waste fuel,place an "X" in this box. Then mark theappropriate boxes underneath to indicateyour specific activity. If you mark "Burner"you must complete Item VII -"Type ofCombustion Device."

Note.-Generators are required to notifyfor waste-as-fuel activities only if theymarket directly to the burner.

"Other Marketer" is defined as any person,other than the generator marketing hishazardous waste, who markets hazardouswaste fuel.

(B) Used Oil Fuel Activities: Mark an "X"in the appropriate box(es) below to indicatewhich used oil fuel activities are taking placeat this installation.

(6) Off-Specification Used Oil Fuel If youmarket or burn off-specification used oil,place an "X" in this box. Then mark theappropriate boxes underneath to indicateyour specific activity. If you mark "Burner"you must complete Item VII-Type ofCombustion Device."

Note.-Used oil generators are required tonotify only if marketing directly to the burner.

"Other Marketer" is defined as any person,other than a generator marketing his or herused oil, who markets used oil fuel.

(7) Specification Used Oil Fuel: If you arethe first to claim that the usedoil meets thespecification established in 40 CFR Part266.40(e) and is exempt from furtherregulation, you must mark an "X" in this box.

Item VII-Waste-Fuel Burning: Type ofCombustion Device:

Enter an "X" in all appropriate boxes toindicate type(s) of combustion devices inwhich hazardous waste fuel or off-specification used oil fuel is burned. (Refer todefinition section for complete description ofeach device.)

Item VIII-Mode of Transportation:

Complete this item only if you are thetransporter of hazardous waste. Mark an "X"in each appropriate box to indicate themethod(s) of transportation you use.

Item IX-First or Subsequent Notification:

Place an "X" in the appropriate box toindicate whether this is your first or asubsequent notification. If you have filed aprevious notification, enter your EPAIdentification Number in the boxes provided.

Note.-When the owner of a facility.changes, the new owner must notify U.S. EPA

of the change, even if the previous owneralready received a U.S. EPA IdentificationNumber. Because the U.S. EPA ID Number is'site-specific," the new owner will keep theexisting ID number. If the facility moves toanother location, the owner/operator mustnotify EPA of this change. In this instance anew U.S. EPA Identification Number will beassigned, since the facility has changedlocations.

Item X-Description of Hazardous Waste:

(Only persons involved in hazardous wasteactivity (Item VI(A)) need to complete thisitem. Transporters requesting a U.S. EPAIdentification Number do not need tocomplete this item, but must sign the"Certification" in Item XI.)

You will need to refer to Title 40 CFR Part261 (enclosed) in order to complete thissection. Part 261 identifies those wastes thatEPA defines as hazardous. If you need helpcompleting this section please contact theappropriate addressee for your state as listedin Section 11(C) of this package.

Section A-If you handle hazardous wastesthat are listed in the "nonspecific sources"category in Part 261.31. enter the appropriate4-digit numbers in the boxes provided.

Section B-If you handle hazardous wastesthat are listed in the "specific industrialsources" category in Part 261.32, enter theappropriate four-digit numbers in the boxesprovided.

Section C-If you handle any of the"commercial chemical products" listed aswastes in Part 261.33, enter the appropriatefour-digit numbers in the boxes provided.

Section D-Disregard, since EPA has notyet published infectious waste regulations.

Section E-If you handle hazardous wasteswhich are not listed in any of the categoriesabove, but do possess a hazardouscharacteristic, you should describe thesewastes by their hazardous characteristic. (Anexplanation of each characteristic found atPart 261.21-261.24.) Place an "X" in the boxnext to the characteristic of the wastes thatyou handle.

Item XI-Certificotion:

This certification must be signed by the.owner, operator, or an authorizedrepresentative of your installation. An"authorized representative" is a personresponsible for the overall operation of thefacility (i.e., a plant manager orsuperintendent, or a person of equalresponsibility). All notifications must includethis certification to be complete.

V. Def'mitions

The following definitions are included tohelp you to understand and complete theNotification Form:

Actor RCRA-means the Solid WasteDisposal Act, as amended by the ResourceConservation and Recovery Act of 1976, asamended by the Hazardous and Solid WasteAmendments of 1984, 42 U.S.C. Section 6901et seq.

Authorized Representative-means theperson responsible for the overall operationof the facility or an operational unit (i.e., partof a facility), e.g., the plant-manager,


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

superintendent or person of equivalentresponsibility.

Boiler-means an enclosed device usingcontrolled flame combustion and having thefollowing characteristics:

(1) The unit has physical provisions forrecovering and exporting energy in the formof steam, heated fluids, or heated gases;

(2) The unit's combustion chamber andprimary energy recovery section(s) are ofintegral design (i.e., they are physicallyformed into one manufactured or assembledunit);

(3) The unit continuously maintains anenergy recovery efficiency of at least 60percent, calculated in terms of the recoveredenergy compared with the thermal value 'ofthe fuel; and

(4) The unit exports and utilizes at least 75percent of the recovered energy, calculatedon an annual basis (excluding recovered heatused internally in the -same unit to, forexample, preheat fuel or combustion air ordrive fans or feedwater pumps).

Burner-means the owner or operator of autility boiler, industrial boiler or industrialfurnace that burns waste-fuel for energyrecovery and that is not regulated as a RCRAhazardous waste incinerator.

Disposal-means the discharge, deposit,injection, dumping, spilling, leaking, orplacing of any solid waste or hazardouswaste into or on any land or water so thatsuch solid waste or hazardous waste or anyconstituent thereof may .enter theenvironment or be emitted into the air ordischarged into any waters, including groundwaters.

Disposal Facility-means a facility or partof a facility at which hazardous waste isintentionally placed into or on any land orwater, and at which waste will remain afterclosure.

EPA Identification (I.D.) Number-meansthe number assigned by EPA to eachgenerator, transporter, and treatment,storage, or disposal facility.

Facility-means all contiguous land, andstructures, other appurtenaces, andimprovements on the land, used fdr treating,storing, or disposing of hazardous waste. Afacility may consist of several treatment,storage, or disposal operational units (e.g.,one or more landfills, surface impoundments,or combinations of them).

Generator-means any person, by site,whose act or process produces hazardouswaste identified or listed in Part 261 of this

chapter or whose act first causes a hazardouswaste to become subject to regulation.

Hazardous Waste-means a hazardouswaste as defined in 40 CFR Part 261.

Hazardous Waste Fuel-means hazardouswaste and any fuel that contains hazardouswaste that is burned for energy recovery in aboiler or industrial furnace that is not subjectto regulation as a RCRA hazardous wasteincinerator. However, the-followinghazardous waste fuels are subject toregulation as used oil fuels:

(1) Used oil fuel that is also a hazardouswaste solely becasue -it exhibits acharacteristic of.hazardous waste identifiedin Subpart C of 40 CFR Part.261, provided it isnot mixed with hazardous waste; and

(2) Used oil "fuel mixed with hazardouswastes generated by a small quantitygenerator subject to 40 CFR Part 261.5.

Industrial Boiler-means a boiler locatedon the site of a facility engaged in amanufacturing process where substances aretransformed into new products, including thecomponent parts of products, by mechanicalor chemical processes.

Industrial Furnace-means any of thefollowing :enclosed devices that are integralcomponents of manufacturing processes andthat use controlled flame combustion toaccomplish recovery of materials or energy:cement kilns, lime kilns, aggregate kilns(including asphalt kilns), phosphate kilns,coke ovens, blast furnaces, smelting furnaces,refining furnaces, titanium dioxide chlorideprocess oxidation reactors, and methanereforming furnaces (and other devices as theAdministrator may add to this list).

Marketer--means a person who marketshazardous waste fuel or used oil fuel.However, the following'marketers are notsubject to waste-as-fuel requirements(including notification) under Subparts D andE of 40 CFR Part 266:

(1) Generators and initial transporters (i.e.,transporters who receive hazardous waste orused oil directly from generators includinginitial transporters who operate transferstations) who do not market directly topersons who burn the fuels; and

(2) Persons who market used oil fubl thatmeets the specification provided under 40CFR 266.40(e) and who are not the 'first toclaim the oil meets the specification.

Off-Specification Used Oil Fuel-meansused oil fuel that does not meet thespecification provided under 40 CER266.40(e).

Operator-means the person responsiblefor the overall operation of a facility.

Owner-means a person who owns afacility or part of a facility, including landowner.

Specification Used Oil Fuel-means usedoil fuel that meets the specification providedunder 40 CFR 266.40(e).

Storage-means the holding of hazardouswaste for a -temporary period, at the end ofwhich the hazardous waste is treated,disposed of, or stored elsewhere.

Transportation-means the movement ofhazardous waste by air, rail, highway, orwater.

Transporter-means a person engaged -inthe off-site transportation of hazardous wasteby air, rail, highway, or water.

Treatment-means any method, technique,or process, including neutralization, designedto change.the .physical, chemical, orbiological character or composition of anyhazardous waste so as to neutralize suchwaste, or so as to recover energy or materialresources from the waste, or so 6s to rendersuch waste -nonhazardous, or less hazardous:safer to transport, store or dispose of; oramenable for recovery, amenable for storage,or reduced in volume.

Used Oil-means any oil that has beenrefined from crude oil, used, and as a resultof such .use, is contaminated by physical orchemical impurities. Wastes that contain oilsthat have not been used (e.g., fuel oil storagetank bottom clean-out wastes) are not usedoil unless they are mixed with used oil.

Used Oil Fuel--means any used oil burned(or destined to be burned) for energyrecovery including any fuel produced fromused oil by processing, blending or othertreatment, and that does not containhazardous-waste (other-than that generatedby a small quantity generatorand exemptfrom regulation as hazardous waste underprovisions of 40 CFR 261:5). Used oil fuel mayitself exhibit a characteristic of hazardous•waste and remain subject to regulation asused oil fuelprovided it is not mixed withhazardous waste.

Utility Boiler-means a boiler that is usedto produce electricity, steam or heated orcooled air.for sale.

Waste Fuel-means hazardous waste fuelor iff-specification used oil fuel.

[FR Doc. 85-27903 Filed 11-27-85; 8:45 am]BILLING CODE :6560-0-M

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