Hazardous Waste Management System; Identification and Listing of Hazardous Waste; Recycled Used Oil Management Standards; Final Rule ENVIRONMENTAL PROTECTION AGENCY

SUMMARY: On September 10, 1992, EPA exempted used oil inserted into

crude oil pipelines from the part 279 used oil management standards.

EPA is today clarifying the existing pipeline exemption and expanding

the exemption to other petroleum refinery applications. Today's

document clarifies that the exemption from the used oil management

standards did not intend to exclude used oil mixed with crude oil or

natural gas liquids (hereinafter referred to as ``crude oil'') in pre-

pipeline units (e.g., stock tanks, production separators) prior to

being introduced into the crude oil pipeline. In addition, today's rule

expands the used oil exemption to include transportation and/or storage

of mixtures of small amounts of used oil (i.e., less than 1%) and crude

oil that are destined for insertion into a petroleum refining facility

process at a point prior to crude distillation or catalytic cracking.

Today's rule exempts from the part 279 standards, used oil that is

inserted into the petroleum refining facility process after

distillation or catalytic cracking operations provided that the used

oil meets the used oil specification prior to insertion.

Today's rule also exempts from the part 279 standards used oil that

incidentally enters and is recovered from a refinery's hydrocarbon

recovery system or wastewater treatment system (i.e., process sewer,

storm sewer, or wastewater treatment units), if the recovered used oil

is subsequently inserted into the petroleum refinery process.

In addition, today's rule expands the definition of transfer

facility to allow used oil to be held more than 24 hours but less than

35 days prior to specified activities.

Finally, EPA is today amending the used oil processor standards to

clarify that a specific set of on-site maintenance, filtering, and

separation activities were not intended to be covered under the used

oil processor standards. EPA is also correcting errors in regulations

that appeared in the May 3, 1993, Federal Register.

EFFECTIVE DATE: April 4, 1994.

ADDRESSES: The regulatory docket for this rulemaking is available for

public inspection at room 2427, U.S. Environmental Protection Agency,

401 M Street SW., Washington, DC 20460 from 9 a.m. to 4 p.m., Monday

through Friday, except for Federal holidays. The docket number is F-94-

UOTA-FFFFF. The public must make an appointment to review docket

materials by calling (202) 260-9327. The public may copy a maximum of

100 pages from any regulatory document at no cost. Additional copies

cost $.20 per page.

FOR FURTHER INFORMATION CONTACT: For general information contact the

RCRA Hotline, Office of Solid Waste, U.S. Environmental Protection

Agency, 401 M Street SW., Washington, DC 20460; Telephone (800) 424-

9346 (toll free) or, in the Washington DC, metropolitan area at (703)

920-9810.

For information on specific aspects of this rule, contact Ms. Eydie

Pines, telephone (202) 260-3509, U.S. EPA, 401 M Street SW.,

Washington, DC 20460.

SUPPLEMENTARY INFORMATION: The contents of today's preamble are listed

in the following outline:

I. Authority.

II. Background.

A. Summary of Recent Regulatory Actions Pertaining to Used Oil.

1. Summary of May 20, 1992, Federal Register Notice.

2. Summary of September 10, 1992, Federal Register Notice.

3. May 3, 1993, and June 17, 1993 Correction Notices.

B. Summary of the 1985 Comments.

C. Summary of 1991 Comments.

III. Analysis of New Part 279 Provisions.

A. Summary of Comments from Interested Parties.

B. Definition of petroleum refining facility, used oil re-

refining facility.

C. Used Oil Introduced into Crude Oil Pipelines or Petroleum

Refineries.

1. Used Oil Introduced into Crude Oil Pipelines.

2. Storage and Transportation of Mixtures of Used Oil and Crude

Oil.

3. Used Oil Inserted into the Petroleum Refining Process without

Prior Mixing and Mixtures of Greater Than One Percent Used Oil.

4. Used Oil Inserted Into the Petroleum Refining Process after

Crude Distillation or Catalytic Cracking.

5. Used Oil Captured by the Refinery's Hydrocarbon Recovery

System or Wastewater Treatment System and Inserted into Petroleum

Refining Process.

6. Stock Tank Bottoms.

D. Used Oil Transportation. Definition of Transfer Facility.

E. Used Oil Processing by Generators and Transfer Facilities.

1. Definition of Used Oil Processor.

(A) Reconditioning used oil before returning it for reuse by the

generator.

(B) Separating used oil from wastewater to make wastewater

acceptable for discharge or reuse.

(C) Using oil mist collectors to remove droplets of used oil

from in-plant air to make plant air suitable for continued

recirculation.

(D) Removing used oil from materials containing or otherwise

contaminated with used oil in order to remove excessive oil.

(E) Filtering, separating, or otherwise reconditioning used oil

before burning it in a space heater.

F. Restrictions on transporters who are not also processors or

re-refiners and changes to the definition of transfer facility.

G. Tracking.

H. Correction to the Regulatory Language.

1. Requirements for enforcement authority.

2. Rebuttable Presumption.

3. Characteristic Hazardous Waste.

I. Correction to the Preamble Language.

IV. State Authorization.

V. Executive Order 12866.

VI. Paperwork Reduction Act.

VII. Regulatory Flexibility Act.

VIII. Administrative Procedure Act.

Authority

The regulations promulgated today are issued under the authority of

sections 1004, 1006, 2002(a), 3014, and 7004 of the Solid Waste

Disposal Act, as amended by the Resource Conservation and Recovery Act,

and as amended by the Used Oil recycling Act, as amended, 42 U.S.C.

6903, 6905, 6912(a), 6935, and 6974.

II. Background

A. Summary of Recent Regulatory Actions Pertaining to Used Oil

1. Summary of May 20, 1992, Federal Register Notice

On May 20, 1992, EPA published a final listing determination for

used oils that are destined for disposal (see 57 FR 21524). The Agency

determined that used oils destined for disposal did not have to be

listed as a hazardous waste because used oils do not typically and

frequently meet the technical criteria for listing a waste as

hazardous. EPA gave considerable attention, in reaching its

determination, to the current Federal regulations that govern the

management of used oils that are disposed, including the requirement

for used oil that exhibits a characteristic of hazardous waste under

subtitle C of RCRA.

The May 20, 1992, Federal Register notice also included a

categorical exemption from the definition of hazardous waste in

Sec. 261.4 for non-terne-plated used oil filters that have been hot-

drained to remove used oil. EPA based this exemption on data submitted

to the Agency indicating that these filters do not typically and

frequently exhibit the toxicity characteristic.

2. Summary of September 10, 1992, Federal Register Notice

On September 10, 1992, EPA promulgated a final listing decision for

used oils that are recycled and simultaneously promulgated management

standards for used oil, codified at 40 CFR part 279 (see 57 FR 41566).

EPA determined that used oil destined for recycling did not have to be

listed as a hazardous waste because the used oil did not meet the

technical criteria for listing a waste as hazardous, particularly in

light of the new management standards and other federal requirements

which control the risks posed by improper management of used oil. The

standards cover used oil generators, transporters, processors, re-

refiners, off-specification burners and marketers. The standards

included an exemption from the management standards for used oil placed

directly in a crude oil pipeline.

3. May 3, 1993, and June 17, 1993 Correction Notices

On May 3, 1993, EPA published technical amendments and corrections

to the May 20, 1992 and September 10, 1992, Federal Register Notices

(see 58 FR 26421). On June 17, 1993, EPA corrected several errors in

the May 3, 1993, notice (see 58 FR 33341).

B. Summary of the 1985 Comments Regarding Used Oil Mixed With Crude Oil

Destined for Refineries

On November 29, 1985, EPA proposed to list all used oil as a

hazardous waste (50 FR 49248). Commenters responded that used oil mixed

with crude oil be exempt from such regulation because the small

quantities of used oil mixed with crude oil posed no threat to the

environment when refined with crude oil.

C. Summary of 1991 Comments

On September 23, 1991, EPA proposed that the two exemptions from

subtitle C requirements promulgated in 1985 (see 40 CFR 261.6(a)(3)

(v)-(viii)) for oil-bearing hazardous waste and fuels derived from

these wastes, also apply to used oils. (56 FR 48026, 48042) EPA

proposed exemptions from the used oil management requirements (whether

or not EPA ultimately listed used oil as a hazardous waste) for: (1)

Used oils that are reinserted as feedstocks at primary petroleum

refineries; and (2) fuels derived from those used oils.

Commenters (mainly the primary petroleum refining industry) stated

that if EPA chose to list used oil as hazardous waste, the Agency

should exempt used oil that is reintroduced into the refinery process

from hazardous waste or used oil management standards requirements.

Commenters further stated that if EPA did not adopt this exemption, the

entire refinery process could be subject to hazardous waste management

requirements, including permits. Commenters stated that this would be

unwarranted because the reintroduction of used oil into the refining

process contributes only insignificant concentrations of metals to the

crude oil or finished petroleum product. Other commenters stated that

refiners that handle used oil should be subject to the same

requirements for used oil management as are used oil re-refiners.

Commenters from the primary petroleum refining industry also stated

that EPA should not limit the exemption to those instances where used

oil is inserted before fluid catalytic cracking or distillation, since

other conversion and distillation processes in the refinery would also

remove, alter or immobilize impurities in the oil. They asserted that

limiting the point of insertion could foreclose the future development

of used oil recycling activities. These commenters also stated that

limiting the insertion point could preclude refineries from accepting

DIY oil. Commenters asserted that DIY oil might have to undergo certain

pre-processing at refineries prior to its insertion into the refining

process. They also asserted that under the proposed exemption, this

pre-processing would not be exempt and would be a hazardous waste

activity. Commenters stated that these activities are part of the

refining process.

Commenters from the primary petroleum industry further stated that

EPA should extend the exemption to apply to used oil inserted into the

pipeline at marketing, E&P and pipeline facilities for use in the

refinery process. They asserted that used oil recovered from oil and

gas exploration and production is placed in pipelines and trucks and

returned to the refinery from other petroleum facilities. Commenters

stated that the recovered oils are useful, valuable raw materials that

are reintroduced into the crude stream for their economic value.

III. Analysis of New Part 279 Provisions

On September 10, 1992, EPA promulgated a final listing decision for

used oils that are recycled and simultaneously promulgated standards in

40 CFR part 279 for the management of used oil under RCRA section 3014.

Under Sec. 279.10(g) of part 279, EPA granted an exemption for used

oils introduced directly into crude oil pipelines from part 279

standards at the point at which they are introduced. EPA did not

address the proposed exemptions for used oil inserted into the

petroleum refining facility process either prior to or after crude

distillation or catalytic cracking.

The American Petroleum Institute filed a petition for review of the

September 10, 1992, rule, on December 8, 1992, raising the issue that

EPA had not addressed the proposed exemptions for petroleum refining,

production, and transportation in the September 10, 1992, final rule.

Today's rule responds to comments and addresses outstanding issues

related to used oil and petroleum refining facility processes.

A. Summary of Comments From Interested Parties

Today's rule was distributed in draft form for comment to the

litigants and intervenors concerning the 1992 rule, and other concerned

members of the regulated community, States, and environmental groups.

The primary substantive comments received on the draft and EPA's

responses to those comments are summarized below.

EPA received several comments from the petroleum industry on the

exemption from part 279 for storage and transportation of mixtures of

used oil and crude oil that contain less than 1% used oil and are

destined for insertion into petroleum refining process. These

commenters objected primarily to provisions in the draft final rule

limiting the exemption to mixtures that contain less than 1% used oil.

The commenters also objected to limiting the amount of used oil that

can be directly inserted into the petroleum refining process to 1% of

the crude oil process unit throughput at any given time. EPA has

retained the 1% limit in both cases in today's final rule for reasons

discussed in section III.B.2 of this preamble.

EPA received comments from used oil re-refiners (i.e.,

``secondary'' petroleum industry--a type of used oil processor)

regarding the regulatory status of petroleum refineries that receive

used oil from off-site and store the used oil on-site before mixing it

with crude oil. The draft rule proposed to regulate petroleum refining

facilities as used oil transfer facilities in these circumstances.

Commenters stated, however, that petroleum refiners that receive used

oil from off-site pose the same potential concerns from receipt of

adulterated used oil and improper storage of used oil as re-refiners

and should therefore be subject to the requirements for used oil

processor/re-refiners prior to mixing. EPA agrees and has revised the

draft rule accordingly. These changes are discussed in greater detail

below.

EPA also received numerous comments on provisions clarifying what

constitutes a used oil processor. Provisions contained in the draft

document would have prohibited both on- and off-site burning of used

oil generated from specified activities that EPA is today clarifying

are not subject to the used oil processor standards. Commenters stated

that the used oil generated from these activities would be suitable for

burning in accordance with the part 279, subpart G standards and that

burning should not be further restricted. In response to these

comments, EPA has decided to allow on-site burning of the used oil

generated from these activities but has retained the prohibition

against off-site burning. The basis for this decision is discussed in

section III.C of today's preamble.

B. Section 279.1--Definition of Petroleum Refining Facility

Today's rule establishes a regulatory definition for ``petroleum

refining facility.'' EPA believes it is necessary to define this term

in order to provide a clear distinction between what the Agency

considers to be and regulates as primary petroleum refining facilities

and facilities that EPA considers to be used oil re-refiners for

regulatory purposes. Under today's rule, ``petroleum refining

facility'' is defined as follows:

``Petroleum refining facility'' means an establishment primarily

engaged in producing gasoline, kerosine, distillate fuel oils,

residual fuel oils, and lubricants, through fractionation, straight

distillation of crude oil, redistillation of unfinished petroleum

derivatives, cracking or other processes (i.e., facilities

classified as SIC 2911).

A used oil re-refiner, in contrast, is a facility that processes

used oil to produce lube base stocks and greases, industrial fuels,

asphalt extenders, diesel like fuels, and other products.

EPA is aware that petroleum refiners and used oil re-refiners

employ similar production processes and produce similar products.

Consequently, the Agency has avoided defining these facilities in terms

of the process steps employed to produce a finished product or the type

of products produced. As defined by today's rule, petroleum refining

facilities and used oil re-refining facilities differ primarily in the

material that constitutes the primary initial feed to the process. In

order for a facility to be considered a petroleum refining facility,

the material fed to the front end of the refining process must be

comprised primarily of crude oil. In order to be considered a used oil

re-refiner, the material entering the front end of the process must be

comprised primarily of used oil.

C. Section 279.10(g)--Used Oil Introduced Into Crude Oil Pipelines or

Petroleum Refining Facilities

1. Section 279.10(g)(1)--Used Oil Introduced Into Crude Oil Pipelines

The September 10, 1992, final used oil regulations provided an

exemption at Sec. 279.10(g) from management standards for used oil that

is placed directly into a crude oil pipeline (see 57 FR 41613). Today's

rule replaces Sec. 279.10(g) with Sec. 279.10(g)(1) which clarifies the

original intent of the pipeline exemption. Section 279.10(g) of the

September 10, 1992, final rule provided that ``Used oil that is placed

directly into a crude oil, oil or natural gas pipeline is subject to

the management standards of [part 279] only prior to the point of

introduction into the pipeline. Once the used oil is introduced to the

pipeline, the material is exempt from the requirements of [part 279].''

EPA is concerned that the phrase, ``placed directly into a crude

oil or natural gas pipeline,'' can be literally interpreted to apply

more narrowly than the Agency had intended. EPA understands that it is

standard practice to first mix small amounts of used oil, typically

less than 1%, with crude oil in stock tanks, production separators or

other tank units that are connected via pipeline to the petroleum

refining facility (i.e., pre-pipeline units). It was not EPA's intent

to exclude used oil that is mixed with crude oil in these pre-pipeline

units from the Sec. 279.10(g) pipeline exemption. Rather, EPA intended

to include this practice within the meaning of ``direct insertion.''

Because used oil is typically inserted into the petroleum pipeline

through these pre-pipeline units, to exclude these units from the

pipeline exemption would effectively render the exemption meaningless.

Clearly this was not EPA's intent. Today's rule revises the language of

the exemption to clarify that used oil may be inserted into the

pipeline via pre-pipeline units (which contain crude oil) exempt from

the requirements of part 279. It should be noted here that the

Sec. 279.10(g)(1) pipeline exemption established by today's rule is

limited to pipelines that convey crude oil from off-site locations to

the petroleum refining facility. The exemption does not apply to

pipelines that convey crude oil from one on-site location within a

petroleum refinery to another. If such on-site piping contains used

oil, it is exempt only if it qualifies under Secs. 279.10(g)(2)-(5)

discussed below. Also, if processing of the used oil is performed prior

to mixing with crude oil in these pre-pipeline units, such processing

remains subject to the part 279, subpart F standards for used oil

processors and re-refiners. Used oil that is generated and stored at

the pipeline is subject to the used oil generator standards prior to

mixing with crude oil. Used oil that is transported to the pipeline and

immediately mixed with crude oil or stored for less than 24 hours prior

to such mixing is subject to all Subpart E transporter standards except

for Sec. 279.45 which applies to transfer facilities. Used oil that is

transported to and subsequently stored at the pipeline for more than 24

hours and less than 35 days prior to mixing with crude oil is subject

to all the part 279, subpart E transporter/transfer facility

requirements.

2. Section 279.10(g)(2)--Storage and Transportation of Mixtures of Used

Oil and Crude Oil

Section 279.10(g)(2) of today's rule expands the used oil

management standard exemption to include: (1) Mixtures of used oil and

crude oil containing less than 1% used oil that are being stored at the

petroleum refining facility or in discrete units remotely located from

the pipeline, as long as the mixture is destined for the refinery and

inserted prior to crude distillation or catalytic cracking; and (2)

mixtures of used oil and crude oil containing less than 1% used oil

that are being transported (via truck, rail, or vessel) to the

petroleum refinery or the pipeline for insertion into the petroleum

refining process prior to crude distillation or catalytic cracking. The

former exemption provided at Sec. 279.10(g) did not apply either to

mixtures of used oil and crude oil that are stored at the petroleum

refinery or in remotely located units, or to the transportation of

mixtures of used oil and crude oil. The previous, more narrow exemption

was based on the assumption that used oil was placed directly into the

pipeline (or into units directly connected to the pipeline as

previously discussed). EPA assumed that the mixing of used oil and

crude oil occurred at the point at which used oil was inserted into the

pipeline. EPA has since learned, however, that mixing frequently occurs

at exploration and production sites that are remotely located from the

pipeline or the petroleum refinery.

For example, used oil generated during on- and off-shore drilling

activities (e.g. from compressors, trucks and other heavy equipment) is

routinely mixed with crude oil in units (e.g. production separators,

seagoing vessels, stock tanks, etc.) located at the exploration and

production site and then transported, as a mixture, to the pipeline or

petroleum refining facility. Depending on the location of the drilling

activities, the mixture of used oil and crude oil may need to be

transported (by vessel, truck, rail, etc.) to a separate location for

introduction into the pipeline or the petroleum refining facility. In

the case of off-shore drilling sites for example, conveyance of the

mixture may involve multiple modes of transportation (i.e., from the

off-shore platform to land by vessel or pipeline and then to the crude

oil pipeline by land-based transport). Today's exemption covers all

modes of transportation of mixtures of used oil and crude or natural

gas liquids, as long as the mixture contains less than 1% used oil and

is destined for insertion into a petroleum refining facility process at

a point prior to crude distillation or catalytic cracking. In addition,

today's exemption covers storage of mixtures of used oil and crude oil,

provided that the mixture contains less than 1% used oil and is

inserted into a petroleum refining facility process prior to crude

distillation or catalytic cracking.

Used oil that is generated at exploration and production sites

continues to be subject to used oil generator standards prior to being

mixed with crude oil such that it is exempt under today's rule. Used

oil that is generated off-site and transported to or stored at an

exploration and production site is subject to the transporter and

transfer facility standards, as applicable, up until the point at which

the used oil is mixed with crude oil such that it is exempt under

Sec. 279.10(g)(2).

EPA is exempting mixtures of used oil and crude oil held in

discrete units at a refinery or at remote locations because the Agency

understands that the amount of used oil contained in these mixtures is

extremely small relative to the large quantities of crude oil. In

developing today's rule, EPA held numerous discussions with petroleum

refinery industry representatives regarding the maximum amount of used

oil contained in mixtures of used oil and crude oil that are destined

for insertion into a petroleum refining process prior to crude

distillation or catalytic cracking. Industry representatives repeatedly

informed the Agency that used oil constitutes less than 1% of these

mixtures. In gathering information for today's rule, EPA held

conference calls with representatives from a number of petroleum

refining companies (e.g., Mobil Oil Corporation and Phillips Petroleum

Inc.,). The Agency also conducted several site visits, including visits

to an Amoco refinery in Whiting, Indiana and a Mobil Oil Corporation

refinery in Paulsboro, New Jersey. In each case, EPA was informed that

used oil does not currently, and will not comprise greater than 1% of

the crude oil/used oil mixture because of the sheer volumes of crude

oil that are continuously being produced and processed relative to the

amount of used oil that is generated at production sites or refineries.

This recent information is consistent with comments submitted in

response to the 1985 Used Oil Proposed Rule in which Exxon Company, USA

stated that the average percentage of used oil in refinery feed stock

streams is less than 0.02% and Texaco, Inc., indicated that used oil

would constitute no more than 0.01% of the refinery input.

EPA does not believe it is necessary to apply the used oil

management standards to the less than 1% fraction of used oil that is

being held temporarily in discrete units or transported from those

units to the pipeline or the petroleum refinery for recycling as part

of a mixture that is composed overwhelmingly of crude oil. In essence,

because of the high ratio of crude oil to used oil, EPA considers the

mixture to be equivalent to crude oil for regulatory purposes. EPA's

part 279 standards were designed to control those particular risks

associated with the management of used oil (e.g., uncontrolled burning,

improper storage practices by used oil handlers) pursuant to section

3014 of RCRA.

The reason for EPA's imposition of a 1% limit on the amount of used

oil contained in mixtures of used oil and crude oil being stored or

transported to a crude oil pipeline or petroleum refinery prior to

insertion into the refining process is that, while we have determined

that the small amounts of used oil that are being added to crude oil

under current practices pose no incremental risk over normal crude oil,

we have not evaluated whether larger amounts of used oil also pose no

incremental risk. Given the information provided to EPA by the

petroleum refining industry regarding the inherent limitations on the

amount of used oil that is or should be contained in mixtures of used

oil and crude oil (i.e., less than 1%), and given that EPA has received

no information, either recently, or in response to previous rulemakings

that provides basis for an alternative limit, the Agency sees no point

in imposing a higher cap. Imposition of a higher cap could have the

effect of encouraging mixing of used oil with crude oil that would not

otherwise occur during the normal course of petroleum refining

operations. Such an incentive might lead to increased incremental risk

from management of large amounts of used oil, exempt from the part 279

standards, at petroleum refineries. EPA also concluded that a less

precise limit (i.e., ``de minimis'' or ``small amounts''), as was

suggested by some commenters from the petroleum refining industry,

would needlessly cause uncertainty, given that EPA was told repeatedly

that amounts currently introduced are far less than 1%.

3. Section 279.10(g)(3)--Used Oil Inserted Into the Petroleum Refining

Process Without Prior Mixing and Mixtures of Greater Than One Percent

Used Oil

As previously stated, under today's rule, mixtures of used oil and

crude oil containing less than 1% used oil that are transported to or

stored at a petroleum refinery, and are introduced prior to crude

distillation or catalytic cracking, are exempt from part 279 standards

under Sec. 279.10(g)(2). It is EPA's understanding, based on

information received from petroleum industry representatives, that used

oil can potentially be inserted directly into the petroleum refining

process prior to crude distillation or catalytic cracking without

either: (1) Mixing the used oil with crude oil feedstocks, or (2) pre-

processing of the used oil to ensure that any contaminants in the used

oil will not interfere with the refining process (e.g., contaminants

fouling a catalyst, etc.). Based on this understanding, today's

exemption also applies to used oil that is introduced directly into the

petroleum refining process at a point prior to crude distillation or

catalytic cracking as long as the used oil comprises less than 1% of

the crude oil feed to a petroleum refining facility process unit at any

given time. Again, because of the high ratio of crude oil to used oil,

EPA considers these mixtures to be equivalent to crude oil for

regulatory purposes. Therefore, the Agency believes that this activity

would pose no significant increase in risk.

Used oil that is inserted directly into the petroleum refining

process (at a volume of less than 1% of the crude oil process unit feed

at any given time) is considered mixed, and therefore exempt from part

279, at the point at which it enters the process. This exemption

applies both to used oil generated at the petroleum refining facility

where the used oil is being inserted, and to used oil generated off-

site that is collected and transported to the petroleum refining

facility for insertion into the refining process prior to crude

distillation or catalytic cracking.

Used oil that is inserted into the petroleum refining process

without first being mixed with crude oil feedstocks (e.g. in crude oil

stock tanks) is subject to part 279 standards prior to insertion. Used

oil that is generated on-site and then stored without prior mixing and

used oil generated on-site that constitutes greater than 1% of a

mixture of used and crude oil continues to be subject to the part 279,

subpart C standards for generators. With the exception of used oil that

is exempt from the part 279 standards because it constitutes less than

1% of a mixture of used oil and crude oil, used oil that is generated

off-site and then transported to or stored at a petroleum refining

facility, continues to be subject to the applicable part 279

requirements i.e., to the requirements for used oil transporters and

transfer facilities while being transported and to the requirements for

used oil processors upon receipt at the petroleum refining facility.

Petroleum refining facilities that receive used oil from off-site for

direct insertion into the petroleum refining process are subject to the

used oil processor standards from the point at which they receive the

used oil up until the point at which the used oil is inserted into the

petroleum refining process. Finally, it is important to reiterate that

the exemptions provided under both Secs. 279.10(g)(2) and 279.10(g)(3)

of today's rule apply at the point of mixing and only to mixtures that

contain less than 1% of used oil.

Although petroleum industry representatives have raised concerns

that a 1% limit on the amount of used oil that can be inserted directly

into the petroleum refining process may be technology limiting, EPA has

not received any information that would support this position, nor has

the Agency received information to support an alternative level. The

Agency believes that by limiting the amount of used oil that can be

introduced directly into the refining process exempt from the used oil

processing standards, it can better ensure against mixing only to avoid

compliance with the part 279 processing standards. If information

becomes available that the 1% limit is inhibiting used oil recycling,

the Agency will consider whether any change to the rules is necessary.

In the draft rule, EPA proposed to regulate petroleum refining

facilities that receive used oil from off-site as used oil transfer

facilities prior to mixing. However, EPA agrees with comments on the

draft rule that petroleum refining facilities that receive used oil

from off-site pose the same potential concerns associated with receipt

of adulterated used oil and improper storage of used oil as used oil

re-refiners. Petroleum refining facilities that receive used oil from

off-site may not have adequate information to ensure that the used oil

has not not been improperly mixed with listed hazardous waste. Also,

the volumes of used oil that may be managed require adequate planning

for dealing with emergency releases. EPA has therefore revised the

final rule to provide that petroleum refining facilities that receive

and store used oil from off-site are subject to the used oil processor

standards prior to mixing. The principal effect of this change is that

petroleum refiners that receive used oil from off-site must prepare a

waste analysis plan to ensure that the used oil has not been mixed with

hazardous waste and must maintain an operating record to document

compliance with the waste analysis plan. In addition, such refineries

will have to adopt or amend emergency contingency plans to address used

oil in accordance with Sec. 279.52 of the used oil management

standards.

4. Section 279.10(g)(4)--Used Oil Inserted Into the Petroleum Refining

Process After Crude Distillation or Catalytic Cracking

Under Sec. 279.10(g)(4) of today's rule, used oil that is inserted

into the petroleum refining process after crude distillation or

catalytic cracking is exempt from the part 279 standards provided that

the used oil meets the used oil specification prior to insertion. Used

oil remains subject to part 279 standards up until its actual insertion

into the petroleum refining process. As previously discussed, used oil

generated on-site must be stored according to part 279, subpart C

standards for used oil generators. Used oil generated off-site must be

transported according to the part 279, subpart E standards for

transporters and transfer facilities and stored according to the part

279, subpart F standards for used oil processor/re-refiners.

EPA's use of the terms ``before'' and ``after'' crude distillation

or catalytic cracking is intended to distinguish between the initial

part of the petroleum refining process where crude oil is the primary

feedstock and is refined by undergoing crude distillation or catalytic

cracking and the latter part of the petroleum refining process where

crude oil residuals constitute the primary feed, and coke and asphalt

are the primary products. Refinery processes that occur after crude

distillation or catalytic cracking do not provide refining to the same

extent as that which occurs as a result of crude distillation or

catalytic cracking. Crude distillation or catalytic cracking is

expressly designed to remove, alter, or otherwise immobilize

contaminants in the normal course of the refining process. EPA has

insufficient information on post-crude distillation or catalytic

cracking units identified by commenters (e.g., asphalt towers,

petroleum cokers), and is concerned about the possible environmental

effects (e.g., air emissions, transfer of inorganics to asphalt or

petroleum coke) of placing large amounts of off-specification used oil

into the petroleum refining process without passing through the crude

distillation or catalytic cracking units. In contrast, on-specification

used oil may be burned in the same manner as virgin petroleum fuel in

other situations, therefore it makes little sense to restrict its use

as a feedstock to the petroleum coker (or in any other process

``after'' crude distillation or catalytic cracking).

It should be noted that if off-specification used oil is inserted

into petroleum refining processes after crude distillation or catalytic

cracking (e.g., a coker), the facility would be subject to the used oil

processing requirements in part 279, subpart F. In addition, petroleum

refining facilities that wish to insert on-specification used oil into

the refining process after crude distillation or catalytic cracking and

that are the first to claim that the used oil is on-specification

(whether generated at the refinery, or at an off-site location), would

be defined as marketers subject to the requirements for used oil

marketers found in part 279, subpart H.

5. Section 279.10(g)(5)--Used Oil Captured by the Refinery's

Hydrocarbon Recovery System or Wastewater Treatment System and Inserted

Into Petroleum Refining Process

Section 279.10(g)(5) of today's rule exempts from the part 279

standards used oil that incidentally enters and is recovered from a

petroleum refining facility's hydrocarbon recovery system or its

wastewater treatment system (e.g., process sewer, storm sewer, or

wastewater treatment units), if the recovered used oil is subsequently

inserted into the petroleum refining process. Oil (that may contain

small amounts of used oil) that has been recovered from a refining

facility's hydrocarbon recovery or wastewater treatment system is

typically used as a feedstock in petroleum refining to produce more

petroleum products. EPA understands that used oil, generated from

routine refinery process operations and that incidentally enters a

refinery's recovery or wastewater treatment system (e.g., drips, leaks,

and spills from compressors, valves, and pumps), represents a small

portion of the total oil that enters (and is then recovered from) the

recovery or wastewater treatment system. Thus, the oil recovered from

the system is more properly characterized as crude feedstock than used

oil. Provided the used oil is inserted into the petroleum refining

process, EPA believes that regulation under part 279 standards is

unwarranted. This exemption from the part 279 standards does not extend

to used oil which is intentionally introduced into a petroleum

refinery's recovery or wastewater treatment system (e.g., pouring

collected used oil into any part of the hydrocarbon recovery system,

storm or process sewer system or into wastewater treatment units). Used

oil may not be introduced to the refinery's hydrocarbon recovery or

wastewater treatment system as a way to avoid meeting the conditions

specified in Sec. 279.10(g)(4).

For the purposes of the exemption in today's rule, the examples

cited in the existing de minimis wastewater exclusion (Sec. 279.10(f))

provide guidance on what types of releases to a refinery's hydrocarbon

recovery or wastewater treatment system would be considered ``routine''

or ``incidental''. The exemption is intended to cover losses from

drippage, minor spillage, etc., that cannot be reasonably avoided. For

example, used oil that has been collected from equipment or vehicle

maintenance activities and intentionally introduced into a refinery's

wastewater treatment system would not be exempt under Sec. 279.1(g)(5)

from the part 279 standards once recovered. Similarly, used oil that is

generated off-site and is brought to the refinery may not be added to

any portion of the refinery's wastewater treatment system (i.e.,

process sewer, storm sewer, or wastewater treatment units), and still

be exempt under Sec. 279.10(g)(5) once recovered; such oil is clearly

not ``incidentally captured'' by the refinery's wastewater treatment

system. In fact, unless specifically exempted under Sec. 279.10(g)(2)

or Sec. 279.10(g)(3) of today's rule, this type of activity would meet

the definition of used oil processing under the existing used oil

management standards (see 40 CFR 279.1).

Today's rule does not preclude intentional introduction of used oil

in to the facility's recovered oil tanks. EPA is aware that used oil

from both on- and off-site is often added directly to the petroleum

refining facility's recovered oil tanks. Mixtures of used oil and

recovered oil that contain greater than 1% used oil are regulated as

used oil. Mixtures of used oil and recovered oil that contain less than

1% used oil and are inserted into the petroleum refining process prior

to crude distillation or catalytic cracking are exempt from the part

279 used oil management standards under Sec. 279.10(g)(2). Mixtures of

used oil and recovered oil that contain less than 1% used oil and are

inserted into the petroleum refining process after crude distillation

or catalytic cracking are exempt from the part 279 standards (under

Sec. 279.10(g)(4)) only if the used oil meets the used oil

specification prior to mixing with recovered oil.

6. Section 279.10(g)(6)--Stock Tank Bottoms

Section 279.10(g)(6) of today's rule exempts tank bottoms from

stock tanks containing exempt mixtures of used oil and crude oil from

the part 279 standards. Like the actual mixtures of used oil and crude

oil, the bottoms from these mixtures are expected to contain

insignificant amounts of used oil. Therefore, the Agency does not

believe that the bottoms from tanks (or other units) containing

mixtures of used oil and crude oil should be subject to the used oil

management standards. The tank bottoms are subject to all other

applicable requirements, i.e., the Sec. 262.11 requirement to determine

if they are hazardous waste.

D. Used Oil Transportation

Section 279.1--Definition of Transfer Facility

Today's rule revises the definition of transfer facility to allow

used oil to be held at a location (i.e., a transfer facility)

temporarily prior to activities that are not subject to the processor

standards as a result of today's rulemaking. In the September 10, 1992

final rule, a transfer facility was defined as a transportation-related

facility where shipments of used oil are held for more than 24 hours

but less than 35 days during the normal course of transportation.

Today's rule expands that definition to allow used oil to be held for

more than 24 hours but less than 35 days during the normal course of

transportation or prior to an activity performed pursuant to

Sec. 279.20(b)(2). Under the amended definition, as discussed below in

section F of this preamble, a site to which used oil from oil-bearing

electrical transformers is transported for filtering prior to reuse

would be considered a transfer facility under today's definition.

E. Section 279.20(b)(2)(ii)--Used Oil Processing by Generators and

Transfer Facilities

Since the promulgation of the September 10, 1992, Used Oil

Management Standards, a number of parties have raised concerns

regarding the definition of used oil processor and the types of

activities that are covered by that definition. The commenters are

concerned that a broad construction of the term processor

inappropriately includes a number of very basic on-site generator

activities that the Agency did not intend to regulate under the used

oil processor standards (e.g. reconditioning/maintenance to extend the

life of used oil, separation of used oil from wastewater discharge,

etc.). EPA agrees that activities such as these, when performed by the

generator, were not intended to be covered under the used oil processor

standards because used oil processing is not their primary purpose, as

explained below in greater detail. In fact, too broad an interpretation

of the processor definition may discourage environmentally beneficial

recycling and waste minimization activities by imposing an unwarranted

regulatory burden on owners and operators that EPA did not intend to

regulate as used oil processors.

Therefore, today's rule revises the used oil management regulations

to clarify the Agency's intent regarding the definition of a used oil

processor by specifying those on-site maintenance, filtering, and

separation activities that are not, and were not intended to be subject

to the used oil processing standards. Under today's rule, generators\1\

who only handle used oil in a manner specified under

Sec. 279.20(b)(2)(ii) are not processors provided that the used oil is

generated on-site and is not being sent directly off-site to a burner

of on- or off-specification used oil fuel. (Section 279.20(b)(2)(ii)

also applies to collection centers and aggregation points since these

entities are regulated as generators.)

---------------------------------------------------------------------------

\1\A used oil generator is any person, by site, whose act or

process produces used oil or whose act first causes used oil to

become subject to regulations. For example, generators include all

persons and businesses who produce used oil through commercial or

industrial operations and vehicle services, including government

agencies, and/or persons and businesses who collect used oil from

households and ``do-it-yourself'' oil changes.

---------------------------------------------------------------------------

Activities that EPA did not intend to include under the definition

of used oil processor are described below. EPA does not believe that

the activities identified in Sec. 279.20(b)(2)(ii) should be subject to

the used oil processor standards because used oil processing is not the

primary purpose of these activities i.e., the primary purpose of these

activities is not to produce from used oil or to make it more amenable

for the production of used oil derived products, and the Agency does

not expect these limited activities will pose the same kinds of

environmental problems that may occur at processor facilities. Instead,

in these cases, the act of mixing, filtering, separating, draining

etc., used oil by the generator constitutes a basic step that is

incidental or ancillary to a primary activity which is distinct from

used oil processing. It is important to note, however, that owners or

operators who generate used oil as a result of any of the activities

specified in Sec. 279.20(b)(2)(ii) are considered used oil generators

and are subject to the generator standards in subpart C.

EPA is allowing on-site but not off-site burning of used oil

generated from designated on-site activities because the Agency

believes that this approach best enables EPA to strike a reasonable

balance between encouraging beneficial on-site reuse and recycling

activities that should pose very limited risks, on one hand, and

ensuring that activities undertaken primarily to make used oil more

amenable for burning (i.e., used oil processing) are adequately

controlled under the more stringent used oil processing standards.

The definition of a used oil processor is based on the purpose for

which used oil is being filtered, separated, or otherwise reconditioned

(i.e., whether the activity is designed to produce used oil derived

products or to make used oil more amenable for the production of used

oil derived products). The Agency is concerned that in situations where

used oil is being filtered, separated or otherwise reconditioned and

then sent to off-site burners, the purpose of the activity may prove

difficult to discern and that consequently, Sec. 279.20(b)(2)(ii)

provisions may be used as a means to avoid compliance with the used oil

processor standards (i.e., by persons who claim not to be used oil

processors under the Sec. 279.20(b)(2)(ii) provisions but whose primary

purpose is to make the used oil more suitable for burning). Therefore,

EPA believes it is necessary to adopt an objective measure of the

purpose of the activity. The Agency believes that a prohibition against

sending used oil generated from specified on-site activities to off-

site burners provides the most practical and effective way to ensure

that activities undertaken only to make used oil more amenable for

burning are subject to the used oil processor standards.

1. Definition of Used Oil Processor

(A) Reconditioning used oil before returning it for reuse by the

generator. Under today's rule facility owners or operators who clean,

separate, or otherwise recondition used oil generated on-site and then

reuse it are not considered used oil processors, provided that the

reconditioned used oil is being reused by the owner or operator who

generated it. Examples of activities covered under this category

include filtering of metalworking fluids for reuse, and filtering and

then replacing oil from oil-bearing transformers and turbines during

routine maintenance.

Most manufacturing facilities have in place central filtration

systems designed to remove contaminants from and extend the life of

water-soluble metal working fluids (e.g., lubricants and coolants),

used in machining, grinding, and boring equipment. These filtration

systems are on-site systems that filter chips, metal fines, dirt,

water, and other contaminants from cutting fluids, drawing lubricants

and coolants used in machining operations. The filtration of these

extraneous materials is designed to extend the life of the reusable

coolants and lubricants and is incidental to the production process.

Today's rule clarifies that this type of filtration activity is not

subject to the used oil processing standards when the generator reuses

the filtered oil.

Similarly, during regularly scheduled maintenance of oil-bearing

transformers and turbines, the oil in the electrical equipment is

removed so that repairs/maintenance can be performed. In some

instances, the oil is filtered prior to replacement. The filtering of

the used oil is done to extend the life of the used oil, not because

the oil is no longer useful, and is therefore ancillary to the

equipment repair and maintenance. While, under today's rule, the owner

or operator would not be considered a processor in these cases, the

draining of the used oil from the transformer constitutes generation of

used oil so that the facility would be considered a used oil generator.

The Agency is aware that not all used transformer oil is drained

and filtered in the field. Instead, the oil-bearing electrical

equipment may be transported to a central location where the oil is

removed, filtered, and replaced. Or, the used oil may be removed from

the transformers or turbines in the field and then transported

separately in a tanker truck to a central location where it is filtered

and put back into electrical equipment. Under today's rule, in cases

where electrical equipment containing used oil is transported to a

central location, the transporter of the oil bearing electrical

equipment would not be considered a used oil transporter. However, the

owner or operator would become a generator at the point at which the

used oil is drained from the equipment (i.e., at the site where the oil

is drained and filtered).

In cases where the used oil is removed from the transformers or

turbines in the field and then transported separately in a tanker truck

to a central location for filtering prior to replacement into

electrical equipment, the owner or operator would become a generator in

the field (i.e., at the point at which the used oil is drained). The

person who then transports the used oil would also be considered a used

oil transporter subject to the transporter standards. In these cases,

the location at which the used oil is filtered would be considered a

used oil transfer facility subject to the transfer facility standards

in Sec. 279.45, provided that the used oil is stored at the site for

more than 24 hours and less than 35 days. If the used oil is filtered

within 24 hours of being drained (i.e., during transport) only the part

279 standards for used oil transporters would apply. This filtering

activity should not raise the kind of environmental concerns that would

be present at used oil processors; essentially, the filtering is

incidental to the transportation and storage and should not change a

facility's regulatory status. As discussed in more detail below,

today's rule provides that transporters of used oil that is removed

from electrical transformers and turbines and filtered by the

transporter or at a transfer facility prior to being returned to the

same use are not subject to the processor or re-refiner requirements in

subpart F. In accordance with Sec. 279.10(e), once the used oil has

been reclaimed to the point where it is ready for reuse without further

processing, it is not subject to regulation as used oil.

(B) Separating used oil from wastewater to make wastewater

acceptable for discharge or reuse. Today's rule clarifies that oil/

water separation activities designed to make wastewater acceptable for

discharge or reuse are not subject to the used oil processor standards.

Facilities often use oil/water separators to remove oil (which may

contain used oil) from oil/water mixtures collected from the facility's

storm sewer, process sewer, sumps and other wastewater containment

areas. These separation systems use chemical and physical methods to

break the oil/water emulsion and recover oil from the wastewater in

order to make the wastewater or storm water acceptable for discharge or

reuse in compliance with local, state and federal regulations.

This type of pretreatment of wastewater containing oil is designed

primarily to ensure that the wastewater meets established limits for

water discharge to streams and POTWs, and not to produce used oil

derived products or to make used oil more amenable for the production

of used oil derived products. This type of oil/water separation

activity is therefore not subject to the used oil processor standards

as clarified under today's rule. It should be noted, however, that any

used oil recovered from separator units would be subject to the used

oil generator standards. It is also important to note that this

provision applies only to used oil that is generated on-site. The

provision would apply, for example, to simple oil water separation

activities conducted (for purposes of wastewater discharge) by a used

oil processor on wastewater which has been generated by that processor.

However, persons who perform oil/water separation activities on oily

wastewater received from off-site would be considered used oil

processors.

(C) Using oil mist collectors to remove droplets of used oil from

in-plant air to make plant air suitable for continued recirculation. As

clarified under today's rule, the act of removing used oil from ambient

air in the workplace is not subject to the used oil processor

standards. At manufacturing facilities, droplets of used oil from

machining operations are often dispersed into in-plant air. Oil mist

collectors physically remove the small droplets of oil present in the

ambient air. This activity is not subject to the used oil processing

standards because it is intended primarily to make plant air suitable

for continued recirculation and not to produce products from used oil

or to make it more amenable for the production of used oil derived

products. However, the oil removed from oil mist collectors is subject

to the used oil generator standards.

(D) Removing used oil from materials containing or otherwise

contaminated with used oil in order to remove excessive oil. Under

Sec. 279.10(c) of the used oil standards, materials containing or

otherwise contaminated with used oil from which the used oil has been

properly drained or removed to the extent possible such that no visible

signs of free-flowing oil remain in or on the material are not used oil

except when burned for energy recovery. Today's rule clarifies that the

Agency does not consider the removal of used oil from materials

containing or contaminated with used oil in order to remove excess oil

in accordance with Sec. 279.10(c) to be used oil processing. The

production of used oil derived products is clearly not the primary

reason for removing used oil from materials containing or contaminated

with used oil. Instead, the activity is conducted primarily to clean

the materials (e.g., machine tools, scrap metal, etc.) prior to reuse,

recycling, or disposal and is therefore not subject to the used oil

processing standards as clarified by today's rule. However, in removing

the used oil from the materials, the owner or operator becomes a used

oil generator subject to the Subpart C used oil generator standards.

(E) Filtering, separating, or otherwise reconditioning used oil

before burning it in a space heater. Under Sec. 279.23 of the used oil

standards, used oil may be burned in a used oil-fired space heater

under specified conditions, and provided that the space heater burns

only used oil that the owner or operator generates and/or used oil

obtained from household DIY oil changers. Prior to burning, the used

oil must often be filtered to remove impurities. Today's rule clarifies

that filtering of used oil for the purpose of removing contaminants

prior to burning the used oil in a space heater is not considered

processing of used oil.

EPA provided a regulatory exemption from the used oil burning

standards for generators who burn used oil in on-site space heaters (in

accordance with Sec. 279.23) because the Agency believes that burning

of small amounts of used oil in space heaters poses insignificant risks

due to the small volume of used oil burned (see 50 FR 49194, Nov. 29,

1985). The Agency believes that, because of the small volumes of used

oil involved, filtering, separating, or otherwise reconditioning used

oil that is generated on-site prior to burning it in a space heater

would also not pose significant risk. Therefore, although the purpose

of the filtering activity in this case is to make the used oil more

amenable for burning, because of the small amounts of used oil being

filtered for this purpose, the Agency does not believe that imposition

of the used oil processor standards is warranted. EPA is therefore

adding a regulatory clarification (Sec. 279.20(b)(2)(ii)(F)) that the

used oil processor standards do not apply to filtering of used oil

prior to burning it in a space heater, provided that the used oil is

generated on-site or obtained from households or ``do-it-yourself'' oil

changes.

F. Section 279.41--Restrictions on transporters who are not also

processors or re-refiners and changes to the definition of transfer

facility.

Today's rule amends Sec. 279.41 to provide that transporters of

used oil that is removed from oil-bearing transformers and turbines and

filtered by a transporter or at a transfer facility before being

returned to its original use are not subject to the used oil processor

and re-refiner requirements. As previously discussed, during routine

maintenance of oil-bearing transformers and turbines (or similar

equipment), the oil in the electrical equipment is removed so that

repairs/ maintenance can be performed. In some cases, the used oil is

removed from the transformers or turbines in the field and then

transported separately in a tanker truck (subject to the used oil

transporter standards) to a central location where it is filtered and

put back into electrical equipment. As discussed above, under today's

rule the filtering of the used oil would not be considered used oil

processing provided that the filtered oil is reused in the same or

similar manner. And, in these cases (i.e., where the used oil is

removed from the equipment and transported to a separate location for

filtering), the location at which the oil is filtered would be

considered a transfer facility provided that the used oil is stored for

more than 24 hours and less than 35 days. If, as sometimes occurs, the

used oil is filtered within 24 hours of being stored at the central

location (i.e., during transport) the only applicable standards would

be the part 279 standards for used oil transporters (i.e., the

Sec. 279.45 requirements for used oil storage at transfer facilities

would not apply).

Section 279.41(c) of today's rule provides conforming changes to

the used oil transportation standards to allow transporters or transfer

facilities to filter the used oil without being subject to the used oil

processor standards. It should be clearly noted, however, that if the

used oil is stored at a site for more than 35 days, greater

environmental concerns may be present, so the site would no longer be

considered a transfer facility and the processor standards would apply.

In addition, this rule expands the definition of transfer facility

to allow used oil to be held at a location (i.e., a transfer facility)

temporarily prior to activities that are exempt from or performed

pursuant to the part 279 standards as a result of today's rulemaking.

Under today's revised definition, used oil can be held at a transfer

facility for more than 24 hours but less than 35 days prior to an

activity and performed pursuant to Sec. 279.20(b)(2). As a result of

this change, a site where used oil that has been drained from oil-

bearing transformers and turbines is held for more than 24 hours and

less than 35 days prior to being filtered for reuse would be considered

a transfer facility.

G. Section 279.46--Tracking Today's rule revises the Sec. 279.46

tracking requirements as they apply to rail transporters. Under amended

Sec. 279.46, a signature is not required on records of acceptance or

records of delivery of used oil shipments that are exchanged between

rail transporters. The Agency is making this change in response to

comments submitted by the railroad industry regarding the

impracticability of requiring signed receipts when used oil is

transferred from one rail transporter to another. EPA is aware that

rail cars are typically transferred from one railroad company to

another without the face-to-face contact that occurs in, for example,

the motor carrier industry. The Agency also recognizes that, unlike

non-rail transporters, railroads rely on sophisticated electronic

tracking and information systems for recording rail-to-rail transfer of

cargo. Given these unique circumstances, and in light of the fact that

40 CFR 263.20(f) regulations for hazardous waste transporters do not

include signature requirements for intermediate rail carriers, EPA

agrees that the signature requirements are unduly burdensome and

unnecessary when applied to intermediate used oil rail transporters.

EPA is therefore revising the used oil regulations to eliminate the

Sec. 279.46 signature requirements between intermediate rail carriers.

H. Corrections to the Regulatory Language

1. Requirements for Enforcement Authority

The Agency published a correction notice on May 3, 1993, which

amended several sections of the part 279 used oil management standards

that were originally promulgated on September 10, 1992. In the May 3,

1993, correction notice, EPA incorrectly amended regulatory

Sec. 271.16, that addressed the requirements for States to have

adequate criminal enforcement authority for hazardous waste. EPA

amended the regulation to include enforcement authority for used oil

handlers that manage used oil incorrectly, but EPA inadvertently

deleted from Sec. 271.16 enforcement authority for the improper

management of hazardous waste. Therefore, today's rule corrects this

section to include enforcement authority for the improper management of

both hazardous waste and used oil.

2. Rebuttable Presumption

The final used oil regulations published on September 10, 1992,

allow persons to rebut the presumption that used oil containing more

than 1,000 ppm total halogens is a hazardous waste by using an

analytical method from SW-846, Third Edition, to show that the used oil

does not contain hazardous waste. In the regulations, the Agency

provided information on the cost of SW-846, Edition III and how to

obtain it. However, the Agency misquoted the cost of the document. The

actual cost was $319.00 rather than $110.00 as quoted throughout the

September 10, 1992, regulations. To avoid having to amend the

regulations as a result of future changes in the cost of the document,

the Agency is deleting reference to the cost of SW-846, Edition III

from the used oil regulations.

3. Characteristic Hazardous Waste

Today's rule revises Sec. 279.10(b)(2)(iii) by deleting reference

to the listing status (under part 261, subpart D) of a hazardous waste

that is mixed with used oil. This change is necessary to correct a

contradiction in the regulations regarding applicability of the used

oil management standards to mixtures of used oil and hazardous waste

that is listed in subpart D solely because it exhibits one or more of

the characteristics of hazardous waste identified in subpart C. In

technical corrections to the used oil management standards published on

May 3, 1993, (57 FR 26420), EPA amended Sec. 279.10(b)(2) to correct an

error in the September 10, 1992, standards regarding how these mixtures

are regulated. At that time, conforming changes should have been, but

were not made to Sec. 279.10(b)(2)(iii). As amended by today's rule,

Sec. 279.10(b)(2)(iii) correctly provides that mixtures of used oil and

hazardous waste that solely exhibits one or more hazardous waste

characteristic and mixtures of used oil and hazardous waste that is

listed in subpart D solely because it exhibits one or more subpart C

hazardous characteristics are regulated as used oil if the mixture is

of used oil and a waste which is hazardous solely because it exhibits

the characteristic of ignitability and the resultant mixture does not

exhibit the characteristic of ignitability.

IV. State Authorization

As explained in the preamble to the May 3, 1993, Technical

Correction to the September 10, 1992, rule, EPA is treating the

majority of the final used oil management standards in the same manner

as ``non-HSWA'' Subtitle C requirements. The used oil management

standards became effective on March 8, 1993, only in those States and

Territories that do not have RCRA base program authorization and on

Indian lands. States are required to revise their Subtitle C base

programs to adopt the new used oil requirements (including those

promulgated in today's rule) by July 1, 1994, or by July 1, 1995, if a

statutory change is necessary. See 58 FR 26420 and 57 FR 41605.

Authorized States are only required to modify their programs when

EPA promulgates Federal standards that are more stringent or broader in

scope than the existing Federal standards. Section 3009 of RCRA allows

States to impose standards more stringent than those in the Federal

program. For those Federal program changes that are less stringent or

reduce the scope of the Federal program, States are not required to

modify their programs. See 40 CFR 271.1(k). Except for the amendments

made to Sec. 279.20(b), the standards promulgated today are less

stringent than or reduce the scope of the existing Federal

requirements. The amendments made to Sec. 279.20(b) merely provide

clarification of the existing used oil regulations and are therefore

not considered to be less stringent than the current Federal program.

Therefore, with the exception of the provisions added at

Sec. 279.20(b)(2)(i), authorized States would not be required to modify

their programs to adopt requirements equivalent to or substantially

equivalent to the provision listed above.

V. Executive Order 12866

Under Executive Order 12866, 58 FR 51735 (October 4, 1993) the

Agency must determine whether the regulatory action is ``significant''

and therefore subject to OMB review and the requirements of the

Executive Order. The Order defines ``significant regulatory action'' as

one that is likely to result in a rule that may: (1) Have an annual

effect on the economy of $100 million or more or adversely affect in a

material way the economy, a sector of the economy, productivity,

competition, jobs, the environment, public health or safety, or State,

local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an

action taken or planned by another agency;

(3) Materially alter the budgetary impact of entitlements, grants,

user fees, or loan programs or the rights and obligations of recipient

thereof; or

(4) Raise novel legal or policy issues arising out of legal

mandates, the President's priorities, or the principles set forth in

the ``Executive Order.''

OMB has exempted this regulatory action from E.O. 12866 review.

VI. Paperwork Reduction Act

The reporting and recordkeeping requirements of part 279 have been

approved by OMB and generally assigned the control number 2050-0124

(See 58 FR 34374 (June 25, 1993)), which remains in effect. As today's

rule does not impose any new such requirements, a separate information

collection request was not prepared.

VII. Regulatory Flexibility Act

Today's rule does not impose any new regulatory requirements, and

indeed, decreases the costs of compliance for a number of facilities. I

therefore certify that today's rule will not have a significant impact

or a substantial number of small entities.

VIII. Administrative Procedures Act

Today's rule takes final action on EPA's 1985 and 1991 proposals to

exempt used oil inserted into primary refining processes from the used

oil management standards. EPA did not address these issues in its

September 10, 1992, final rule, and therefore those proposals remained

outstanding until today's rule. Since these issues were fully addressed

in those proposals, further public comment on today's rule is

unnecessary. The other changes being made in today's rule either

correct errors or clarify the language contained in the September 10,

1992 rule. No comment is necessary on these provisions.

List of Subjects

40 CFR Part 271

Environmental protection, Administrative practice and procedure,

Confidential business information, Hazardous materials transportation,

Hazardous waste, Indians--lands, Intergovernmental relations,

Penalties, Reporting and recordkeeping requirements, Water pollution

control, Water supply.

40 CFR Part 279

Petroleum, Recycling, Reporting and recordkeeping requirements,

Used oil.

Dated: February 25, 1994.

Carol M. Browner,

Administrator.

For the reasons set out in the preamble, title 40, chapter I of the

Code of Federal Regulations is amended as follows:

PART 271--REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE

PROGRAMS

1. The authority citation for part 271 continues to read as

follows:

Authority: 42 U.S.C. 6905, 6912(a), and 6926.

2. Section 271.16 is amended by revising paragraph (a)(3)(ii) to

read as follows:

Sec. 271.16 Requirements for enforcement authority.

(a) * * *

(3) * * *

(ii) Criminal remedies shall be obtainable against any person who

knowingly transports any hazardous waste to an unpermitted facility;

who treats, stores, or disposes of hazardous waste without a permit;

who knowingly transports, treats, stores, disposes, recycles, causes to

be transported, or otherwise handles any used oil regulated by EPA

under section 3014 of RCRA that is not listed or identified as a

hazardous waste under the state's hazardous waste program in violation

of standards or regulations for management of such used oil; or who

makes any false statement, or representation in any application, label,

manifest, record, report, permit or other document filed, maintained,

or used for purposes of program compliance (including compliance with

any standards or regulations for used oil regulated by EPA under

section 3014 of RCRA that is not listed or identified as hazardous

waste). Criminal fines shall be recoverable in at least the amount of

$10,000 per day for each violation, and imprisonment for at least six

months shall be available.

* * * * *

PART 279--STANDARDS FOR THE MANAGEMENT OF USED OIL

3. The authority citation for part 279 continues to read as

follows:

Authority: Sections 1006, 2002(a), 3001 through 3007, 3010,

3014, and 7004 of the Solid Waste Disposal Act, as amended (42

U.S.C. 6905, 6912(a), 6921 through 6927, 6930, 6934, and 6974); and

sections 101(37) and 114(c) of CERCLA (42 U.S.C. 9601(37) and

9614(c)).

4. In Sec. 279.1 the definition of ``Petroleum refining facility''

is added in alphabetical order and the definition of ``Used oil

transfer facility'' is revised to read as follows:

Sec. 279.1 Definitions.

* * * * *

Petroleum refining facility means an establishment primarily

engaged in producing gasoline, kerosine, distillate fuel oils, residual

fuel oils, and lubricants, through fractionation, straight distillation

of crude oil, redistillation of unfinished petroleum derivatives,

cracking or other processes (i.e., facilities classified as SIC 2911).

* * * * *

Used oil transfer facility means any transportation related

facility including loading docks, parking areas, storage areas and

other areas where shipments of used oil are held for more than 24 hours

and not longer than 35 days during the normal course of transportation

or prior to an activity performed pursuant to Sec. 279.20(b)(2).

Transfer facilities that store used oil for more than 35 days are

subject to regulation under subpart F of this part.

Sec. 279.10 [Amended]

5. Section 279.10(b)(1)(ii) is amended by removing the phrase ``for

the cost of $110.00.''

6. Section 279.10 is amended by revising paragraphs (b)(2)(iii) and

(g) to read as follows:

Sec. 279.10 Applicability.

* * * * *

(b) * * *

(2) * * *

(iii) Regulation as used oil under this part, if the mixture is of

used oil and a waste which is hazardous solely because it exhibits the

characteristic of ignitability (e.g., ignitable-only mineral spirits),

provided that the resultant mixture does not exhibit the characteristic

of ignitability under Sec. 261.21 of this chapter.

* * * * *

(g) Used oil introduced into crude oil pipelines or a petroleum

refining facility. (1) Used oil mixed with crude oil or natural gas

liquids (e.g., in a production separator or crude oil stock tank) for

insertion into a crude oil pipeline is exempt from the requirements of

this part. The used oil is subject to the requirements of this part

prior to the mixing of used oil with crude oil or natural gas liquids.

(2) Mixtures of used oil and crude oil or natural gas liquids

containing less than 1% used oil that are being stored or transported

to a crude oil pipeline or petroleum refining facility for insertion

into the refining process at a point prior to crude distillation or

catalytic cracking are exempt from the requirements of this part.

(3) Used oil that is inserted into the petroleum refining facility

process before crude distillation or catalytic cracking without prior

mixing with crude oil is exempt from the requirements of this part

provided that the used oil constitutes less than 1% of the crude oil

feed to any petroleum refining facility process unit at any given time.

Prior to insertion into the petroleum refining facility process, the

used oil is subject to the requirements of this part.

(4) Except as provided in paragraph (g)(5) of this section, used

oil that is introduced into a petroleum refining facility process after

crude distillation or catalytic cracking is exempt from the

requirements of this part only if the used oil meets the specification

of Sec. 279.11. Prior to insertion into the petroleum refining facility

process, the used oil is subject to the requirements of this part.

(5) Used oil that is incidentally captured by a hydrocarbon

recovery system or wastewater treatment system as part of routine

process operations at a petroleum refining facility and inserted into

the petroleum refining facility process is exempt from the requirements

of this part. This exemption does not extend to used oil which is

intentionally introduced into a hydrocarbon recovery system (e.g., by

pouring collected used oil into the waste water treatment system).

(6) Tank bottoms from stock tanks containing exempt mixtures of

used oil and crude oil or natural gas liquids are exempt from the

requirements of this part.

* * * * *

7. Section 279.20 is amended by revising paragraph (b)(2) to read

as follows:

Sec. 279.20 Applicability.

* * * * *

(b) * * *

(2) (i) Except as provided in paragraph (b)(2)(ii) of this section,

generators who process or re-refine used oil must also comply with

subpart F of this part.

(ii) Generators who perform the following activities are not

processors provided that the used oil is generated on-site and is not

being sent off-site to a burner of on- or off-specification used oil

fuel.

(A) Filtering, cleaning, or otherwise reconditioning used oil

before returning it for reuse by the generator;

(B) Separating used oil from wastewater generated on-site to make

the wastewater acceptable for discharge or reuse pursuant to section

402 or section 307(b) of the Clean Water Act or other applicable

Federal or state regulations governing the management or discharge of

wastewaters;

(C) Using oil mist collectors to remove small droplets of used oil

from in-plant air to make plant air suitable for continued

recirculation;

(D) Draining or otherwise removing used oil from materials

containing or otherwise contaminated with used oil in order to remove

excessive oil to the extent possible pursuant to Sec. 279.10(c); or

(E) Filtering, separating or otherwise reconditioning used oil

before burning it in a space heater pursuant to Sec. 279.23.

* * * * *

8. Section 279.41 is amended by adding paragraph (c) to read as

follows:

Sec. 279.41 Restrictions on transporters who are not also processors

or re-refiners.

* * * * *

(c) Transporters of used oil that is removed from oil bearing

electrical transformers and turbines and filtered by the transporter or

at a transfer facility prior to being returned to its original use are

not subject to the processor/re-refiner requirements in subpart F of

this part.

Sec. 279.44 [Amended]

9. Section 279.44(c) introductory text is amended by removing the

phrase ``for the cost of $110.00.''

10. Section 279.46 is amended by revising paragraphs (a)(5) and

(b)(5) to read as follows:

Sec. 279.46 Tracking.

* * * * *

(a) * * *

(5) (i) Except as provided in paragraph (a)(5)(ii) of this section,

the signature, dated upon receipt of the used oil, of a representative

of the generator, transporter, or processor/re-refiner who provided the

used oil for transport.

(ii) Intermediate rail transporters are not required to sign the

record of acceptance.

(b) * * *

(5) (i) Except as provided in paragraph (b)(5)(ii) of this section,

the signature, dated upon receipt of the used oil, of a representative

of the receiving facility or transporter.

(ii) Intermediate rail transporters are not required to sign the

record of delivery.

* * * * *

Sec. 279.53 [Amended]

11. Section 279.53(c) introductory text is amended by removing the

phrase ``for the cost of $110.00.''

Sec. 279.63 [Amended]

12. Section 279.63(c) is amended by removing the phrase ``for the

cost of $110.00.''

[FR Doc. 94-4818 Filed 3-3-94; 8:45 am]

BILLING CODE 6560-50-P