ENVIRONMENTAL PROTECTION AGENCY
                 AGENCY: U.S. Environmental Protection Agency.

                    40 CFR Parts 260, 261, 266, 271 and 279
             Hazardous Waste Management System; Identification and
            Listing of Hazardous Waste; Recycled Used Oil Management
                                   Standards

                                  [FRL-4153-6]
                                 RIN: 2050-AC17

                                  57 FR 41566

                               September 10, 1992

ACTION: Final rule.

SUMMARY: The Agency is promulgating a final listing decision for used oils that are
recycled and is simultaneously promulgating standards for the management of used oil
under RCRA section 3014. EPA has made a final listing decision for used oils that are
recycled based upon the technical criteria provided in sections 1004 and 3001 of RCRA.
EPA determined that recycled used oil does not have to be listed as a hazardous waste
since the used oil management standards issued in this rulemaking are adequately
protective of human health and the environment. These standards cover used oil
generators, transporters, processors and re-refiners, burners, and marketers. These
standards are promulgated under the authority of section 3014 of RCRA and will be
codified in a new part 279 of chapter 40 of the Code of Federal Regulations. When
these management standards go into effect, service station dealers who collect used
oil from do-it-yourself (DIY) generators and who are in compliance with the standards
promulgated, may be eligible for the Comprehensive Environmental Response,
Compensation, and Liability Act (CERCLA) section 114(c) liability exemption. EPA is
continuing to evaluate the potential hazards associated with management of used oil.
When this analysis is completed, the Agency will publish Notice(s) of Data
Availability in the Federal Register over the next several months, as necessary. EPA
will also, at that time, solicit opinion from the public on what, if any, additional
steps may be necessary regarding used oil management.

EFFECTIVE DATE: March 8, 1993.

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-92-UO2F-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 information on specific aspects of this rule, contact Ms. Rajani D. Joglekar,
telephone (202) 260-3516, or 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. Authorities and Regulations Covering Used Oil Management
   1. Statutory Authority
   2. Regulatory Actions Related to Used Oil
   B. Summary of May 20, 1992 Federal Register Notice (Final Listing Decision for Used
Oils Destined for Disposal)
   C. Current Federal Regulations Governing Disposal of Used Oil
III. Summary of Major Comments to 1985 Proposal and 1991 Supplemental Notice
   A. Comments Received in Response to the 1985 Proposed Rulemaking
   1. Comments on 1985 Proposed Listing Decision
   2. Major Comments on 1985 Proposed Management Standards for Recycled Used Oil
   B. Comments Received in Response to 1991 Supplemental Notice
   1. Listing Used Oil
   2. De Minimis Mixtures
   3. Controlling Disposal of Used Oil
   4. DIY-Generated Used Oil
   5. Criteria for Recycling Presumption
   6. Ban on Use as a Dust Suppressant
   7. CERCLA Liability Issues
   8. Storage
   9. Secondary Containment for Tanks
   10. Financial Responsibility
   11. Permit-By-Rule
IV. Definition of Used Oil
V. Listing Determination for Recycled Used Oil
   A. General
   B. Summary of EPA's Listing Determination and Rationale for Recycled Used Oils
VI. Final Management Standards for Recycled Used Oils
   A. General Approach for Used Oil Management
   B. Recycling Presumption
   C. Rebuttable Presumption of Mixing for Used Oil
   1. Metalworking Oils
   2. Compressor Oils from Refrigeration Units Containing CFCs
   D. Summary of New Part 279
   1. Applicability
   2. Standards for Used Oil Generators
   3. Standards for Used Oil Transporters
   4. Standards for Used Oil Processing and Re-Refining Facilities
   5. Standards for Burners of Off-Specification Used Oil Fuel
   6. Standards for Used Oil Fuel Marketers
   7. Standards for Disposal of Used Oils and Use as a Dust Suppressant
   E. Response to Major Comments
   1. Listing Used Oil as a Hazardous Waste
   2. Mixtures
   3. Controls on Disposal
   4. DIY-Generated Used Oils
   5. Recycling Presumption Criteria
   6. Ban on Road Oiling
   7. CERCLA Liability
   8. Storage
   9. Secondary Containment
   10. Financial Responsibility
   11. Permit-By-Rule
   12. Definition of Used Oil
VII. Effective Date
VIII. State Authorization
   A. Applicability in Authorized States
   B. Administration
IX. Relationship of this Rule to Other Programs
   A. RCRA
   B. MARPOL 73/78
   C. Clean Water Act (CWA)
   D. Comprehensive Environmental Response, Compensation and Liability Act (CERCLA)
   E. Hazardous Materials Transportation Act (HMTA)
   F. Toxic Substances Control Act (TSCA)
X. Regulatory Impact Analysis
XI. Regulatory Flexibility Analysis
XII. Paperwork Reduction Act

I. Authority

   This regulatory decision and the regulations promulgated today are issued under the
authority of sections 1004, 1006, 2002, 3001, 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. 6901, 6905, 6912(a), 6921 through
6927, 6930, 6934, 6935, 6937 through 6939 and 6974.

II. Background

A. Authorities and Regulations Covering Used Oil Management

   1. Statutory Authority

   Section 3014 of RCRA requires EPA to establish standards applicable to recycled
used oil that will protect public health and the environment and, to the extent
possible within that context, not discourage used oil recycling. Section 3014 was
added to the RCRA statute by the Used Oil Recycling Act (UORA) of 1980. The UORA
required the Agency to establish performance standards and other requirements "as may
be necessary to protect the public health and the environment from hazards associated
with recycled oil" as long as such regulations "do not discourage the recovery or
recycling of used oil."

   The Hazardous and Solid Waste Amendments of 1984 (HSWA) reemphasized that the
protection of human health and the environment was to be of primary concern in the
regulation of hazardous waste. Specific to used oil, HSWA slightly altered the
language of RCRA section 3014 to direct the Administrator to promulgate regulations as
may be necessary to protect human health and the environment from hazards associated
with recycled oil. In developing such regulations, the Administrator shall conduct an
analysis of the economic impact of the regulations on the oil recycling industry. The
Administrator shall ensure that such regulations do not discourage the recovery or
recycling of used oil consistent with the protection of human health and the
environment. (Emphasis added to highlight HSWA language amending RCRA section
3014(a).)

   EPA is therefore directed to promulgate standards for the handling and management
of recycled oil. Section 1004 of RCRA, in defining the term "recycled oil," includes
used oil being reused for any purpose, including used oil being re-refined or being
processed into fuel. EPA believes that section 3014 also provides authority for
establishing management standards that specifically include used oil being stored,
collected or otherwise managed prior to recycling.

   2. Regulatory Actions Related to Used Oil

   On December 18, 1978, EPA initially proposed guidelines and regulations for the
management of hazardous wastes as well as specific rules for the identification and
listing of hazardous wastes under section 3001 of the Resource Conservation and
Recovery Act (RCRA) (43 FR 58946). At that time, EPA proposed to list waste
lubricating oil and waste hydraulic and cutting oil n1 as hazardous wastes on the
basis of their toxicity. In addition, the Agency proposed recycling regulations to
regulate (1) the incineration or burning of used lubricating, hydraulic, transformer,
transmission, or cutting oil that was hazardous and (2) the use of waste oils in a
manner that constituted disposal. n2

   n 1 The term "waste oil" included both used and unused oils that may no longer be
used for their original purpose.

   n 2 "Use in a manner constituting disposal" means the placement of hazardous waste
directly onto the land in a manner constituting disposal or the use of the solid waste
to produce products that are applied to or placed on the land or are otherwise
contained in products that are applied to or placed on the land [40 CFR 261.2(c)(1)].

   In the May 19, 1980 regulations (45 FR 33084), EPA decided to defer promulgation of
the recycling regulations for waste oils to consider fully whether waste- and
use-specific standards may be implemented in lieu of imposing the full set of Subtitle
C regulations on potentially recoverable and valuable materials. At the same time, EPA
deferred the listing of waste oil for disposal so that the entire waste oil issue
could be addressed at one time. Under the May 19, 1980 regulations, however, any waste
oil exhibiting one of the characteristics of hazardous waste (ignitability,
corrosivity, reactivity, and toxicity) that was disposed, or accumulated, stored, or
treated prior to disposal, became regulated as a hazardous waste subject to all
applicable Subtitle C regulations.

   As explained above, HSWA made protection of human health and the environment the
prominent concern in the Agency's regulatory decisions for used oil and required EPA
to propose whether to identify or list used automobile and truck crankcase oil by
November 8, 1985. HSWA also required EPA to make a final determination as to whether
to identify or list any or all used oils by November 8, 1986. On November 29, 1985 (50
FR 49258), EPA proposed to list all used oils as hazardous waste, including
petroleum-derived and synthetic oils, based on the presence of toxic constituents at
levels of concern from contamination during use and adulteration after use. Also on
November 29, 1985, the Agency proposed management standards for recycled used oil (50
FR 49212) and issued final regulations, incorporated at 40 CFR part 266, subpart E,
prohibiting the burning of off-specification used oil fuels n3 in non-industrial
boilers and furnaces (50 FR 49164). Marketers of used oil fuel and industrial burners
of off-specification fuel are required to notify EPA of their activities and to comply
with certain notice and recordkeeping requirements. Used oils that meet the fuel oil
specification are exempt from most of the 40 CFR part 266, subpart E regulations.

   n 3 Used Oil that exceeds any of the following specification levels is considered
to be "off-specification" used oil under 40 CFR 266.40(e): Arsenic -- 5 ppm, Cadmium
-- 2 ppm, Chromium -- 10 ppm, Lead -- 100 ppm, Flash Point-100 deg.F minimum, Total
Halogens -- 4,000 ppm.

   On March 10, 1986 (51 FR 8206), the Agency published a Supplemental Notice
requesting comments on additional aspects of the proposed listing of used oil as
hazardous waste. In particular, commenters to the November 29, 1985, proposal
suggested that EPA consider a regulatory option of only listing used oil as a
hazardous waste when disposed, while promulgating special management standards for
used oil that is recycled.

   On November 19, 1986, EPA issued a decision not to list as a hazardous waste used
oil that is recycled (51 FR 41900). The Agency determined that used oil being recycled
should not be listed as a hazardous waste under RCRA. The EPA stated in the November
1986 decision that the Agency intended to issue recycled used oil management standards
and was conducting studies necessary to determine what standards are appropriate under
 3014 of RCRA and to determine whether used oil being disposed of should be listed as
a RCRA hazardous waste, or regulated under other statutes. At that time, it was the
Agency's belief that the stigmatic effects associated with a hazardous waste listing
might discourage the recycling of used oil, thereby resulting in increased disposal of
used oil in uncontrolled manners. EPA stated that several residues, wastewaters, and
sludges associated with the recycling of used oil may be evaluated to determine if a
hazardous waste listing was necessary, even if used oil was not listed as a hazardous
waste. EPA also outlined a plan that included making the determination whether to list
used oil being disposed as hazardous waste and promulgation of special management
standards for recycled oil.

   EPA's decision not to list used oil as a hazardous waste based on the potential
stigmatic effects was challenged by the Hazardous Waste Treatment Council, the
Association of Petroleum Re-refiners, and the Natural Resources Defense Council. The
petitioners claimed that (1) the language of RCRA indicated that in determining
whether to list used oil as a hazardous waste, EPA may consider technical
characteristics of hazardous waste, but not the "stigma" that a hazardous listing
might involve, and (2) that Congress intended EPA to consider the effects of listing
on the recycled oil industry only after the initial listing decision.

   On October 7, 1988, the Court of Appeals for the District of Columbia found that
EPA acted contrary to law in its determination not to list used oil under RCRA section
3001 based on the stigmatic effects. (See Hazardous Waste Treatment Council v. EPA,
861 F.2d 270 (D.C. Cir. 1988) [HWTC I].) The court ruled that EPA must determine
whether to list any used oils based on the technical criteria for waste listings
specified in the statute.

   After the 1988 court decision, EPA began to re-evaluate its basis for making a
listing determination for used oil. EPA reviewed the statute, the proposed rule, and
the many comments received on the proposed rule. Those comments indicated numerous
concerns with the proposed listing approach. One of the most frequent concerns voiced
by commenters was related to the quality and "representativeness" of the data used by
EPA to characterize used oils in 1985. Numerous commenters indicated that "their oils"
were not represented by the data and, if they were represented, those oils were
characterized after being mixed with other more contaminated oils or with other
hazardous wastes. Many commenters submitted data demonstrating that the used oils they
generate, particularly industrial used oils, did not contain high levels of toxicants
of concern.

   In addition, the Agency recognized that much of the information in the 1985 used
oil composition data was more than five years old, as most of the information was
collected prior to 1985. Since the time of that data gathering effort, used automotive
oil composition may have been affected by the phase-down of lead in gasoline. The
Agency also recognized the need to collect analytical data addressing specific classes
of used oils as collected and stored at the point of generation (i.e., at the
generator's facility).

   Finally, the promulgation of the toxicity characteristic (TC) (55 FR 11798, March
29, 1990) is known to identify certain used oils as hazardous waste. Due to the
possibility of changes in used oil composition since the Agency's 1985 proposed
listing decision and the new TC, the Agency recognized that additional data on used
oil characterization may be needed prior to making a final hazardous waste listing
determination.

   On September 23, 1991, EPA published a Supplemental Notice of Proposed Rulemaking
for the identification and listing of used oil and for management standards for
recycled used oil (56 FR 48000). The 1991 Supplemental Notice presented supplemental
information gathered by EPA and provided to EPA by individuals commenting on previous
notices on the listing of used oil and used oil management standards. As discussed
above, numerous commenters on the 1985 proposal to list used oil as hazardous
contended that the broad listing of all used oils unfairly subjects them to stringent
Subtitle C regulations because their used oils are not hazardous. Based on those
comments, the Agency collected a variety of additional information regarding various
types of used oil, their management, and their potential health and environmental
effects when mismanaged. The 1991 Supplemental Notice presented this new information
to the public and requested comment on the information, particularly if and how the
information suggests new concerns that EPA should consider in deciding whether to
finalize all or part of its 1985 proposal to list used oil as a hazardous waste.

   In addition, the 1991 Supplemental Notice expanded upon the November 29, 1985 (50
FR 49258) proposal to list used oils as hazardous and the March 10, 1986 (51 FR 8206)
Supplemental Notice by discussing regulatory alternatives not previously presented in
the Federal Register. Based on the public comments received relative to these two
notices, the Agency investigated several important aspects of used oil regulation. The
Supplemental Notice also contained a request for comments on additional issues related
to the "mixture rule" (40 CFR 261.3(a)(2)(iii)), on test methods for determining
halogen levels in used oils, and on new data on the composition of used oil and used
oil processing residuals. For these aspects, the Agency identified alternative
approaches that were not presented explicitly in the earlier notices. Those new
alternatives were presented in the 1991 Supplemental Notice.

   The 1991 Supplemental Notice also discussed the Agency's proposal to amend 40 CFR
261.32 by adding four waste streams from the reprocessing and re-refining of used oil
to the list of hazardous wastes from specific sources. The wastes from the
reprocessing and re-refining of used oil include process residuals from the
gravitational or mechanical separation of solids, water, and oil (K152); spent
polishing media used to finish used oil (K153); distillation bottoms from used oil
processing and re-refining (K154); and treatment residues from primary wastewater
treatment (K155).

   The 1991 Supplemental Notice also included a description of some of the management
standards (in addition to or in place of those proposed in 1985) that EPA considered
in promulgating today's final rule.

   On May 20, 1992, EPA proposed a Hazardous Waste Identification Rule describing two
alternative approaches for hazardous waste identification under RCRA. The first
proposed approach would establish concentration based exclusion criteria (CBEC) for
listed hazardous wastes, waste mixtures, derivatives, and contaminated media. The
second approach an expanded characteristic option (ECHO) would establish
"characteristic" levels for listed hazardous wastes, waste mixtures, derivatives, and
contaminated media. (57 FR 21450). Depending upon which approach the Agency finalizes,
the manner in which EPA regulates mixtures of used oil and hazardous waste may change.

B. Summary of May 20, 1992 Federal Register Notice (Final Listing Decision for Used
Oils Destined for Disposal)

   On May 20, 1992, EPA published a final rule that addressed the listing of used oils
that are disposed, excluded non-terne plated used oil filters that have been drained
to remove used oil from the definition of hazardous waste, and deferred a final
listing determination on residuals from the processing and re-refining of used oil (57
FR 21524). Four separate actions were taken and are discussed below.

   First, the Agency promulgated a final decision not to list used oils destined for
disposal. This decision was based primarily upon the finding that all used oils do not
typically and frequently meet the technical criteria for listing a waste as hazardous.
In making the final listing determination for used oil destined for disposal, EPA also
gave considerable attention to the current federal regulations governing the
management of used oils that are disposed. EPA evaluated the technical criteria for
listing in light of the current regulatory structure that controls the management of
used oils and concluded that any plausible mismanagement of used oil that is destined
for disposal is addressed by current requirements. Existing regulations that cover
used oil destined for disposal are discussed briefly at the end of this section. In
addition, if a used oil that is destined for disposal exhibits a characteristic, it is
regulated as a hazardous waste under subtitle C.

   Second, the Agency decided to defer a decision on listing and management standards
for used oil that is recycled (this decision is included in today's rule).

   Third, the Agency promulgated a final exemption from the definition of hazardous
waste in  261.4 for certain used oil filters. The filters that received the exemption
are non-terne-plated used oil filters that have been hot-drained to remove used oil.
(Terne is an alloy of tin and lead.) Hot-drained means draining used oil from a filter
while the engine is at operating temperature, when oil flows easily. Based on data
submitted to EPA, non-terne-plated, hot-drained used oil filters do not typically and
frequently exhibit the Toxicity Characteristic.

   Fourth, the Agency announced its deferral of a final decision on whether or not to
list residuals from the processing and re-refining of used oil. The Agency stated that
it will continue to evaluate the composition of used oil recycling residues and the
management of these residues. The reason for continued evaluation of residuals is that
recycling techniques and waste management practices that evolved during the past six
years have resulted in residual composition changes.

C. Current Federal Regulations Governing Disposal of Used Oil

   Currently, there are several regulatory programs in place to control the storage
and transportation of used oil, to protect against releases to the ground, ground
water, and surface waters, to protect against improper disposal of used oils, to
prevent the burning of used oils with high levels of toxic constituents in certain
units, and to control the management of used oils containing PCB's. Several of these
programs have been proposed and/or promulgated since 1985, and some have been in place
since before 1985. The Agency has decided that these current regulations are
protective, but are not complete or sufficient to protect human health and the
environment from potential mismanagement of used oils that are recycled. Therefore, in
addition to the existing regulations, used oil handlers will have to comply with
additional management standards that EPA is promulgating today, such as recordkeeping
and analysis requirements, and a requirement for containment consisting of impervious
floor and dikes/berms. The current regulatory programs are described below.

   The storage of used oil in underground tanks is controlled under subtitle I of RCRA
(40 CFR part 280). These regulations require that underground tanks be properly
maintained, operated, protected from corrosion, and that any spills are properly
cleaned up. Other existing storage tank standards are found under the Clean Water Act
Spill Prevention Control and Countermeasures (SPCC) requirements. SPCC requirements
regulate the storage of materials, including used oil, in aboveground and in
underground tanks under certain circumstances. The Clean Water Act also requires
reporting of releases of oil into navigable waters if a sheen appears on the water, if
any water quality standards are violated, or if a sludge is deposited beneath the
surface of the water. The recently enacted Oil Pollution Act revised the SPCC
requirements of the Clean Water Act.

   Regulations promulgated pursuant to MARPOL 73/78, Annex I, act to control shipboard
management of used oil and releases of used oil to navigable waters. Bilge slops are a
commonly generated waste on-board ships that contain used oil; MARPOL prevents this
waste from being discharged into the sea in an unrestricted manner.

   The transport of used oil is regulated under the Department of Transportation's
Hazardous Materials Transportation Act (HMTA). Used oil that meets the criteria for
being "combustible" or "flammable" is regulated under DOT requirements for
classification, packaging, marking, labeling, shipping papers, placarding,
recordkeeping and reporting.

   The burning of used oil for energy recovery is subject to existing standards under
RCRA (40 CFR part 266, subpart E). These standards include requirements for marketers
of used oil, such as notification, analysis, recordkeeping, and invoices for each
shipment. Off-specification used oil must be burned in industrial boilers or furnaces
only. The "specification" levels for used oil that will be burned for energy recovery
include levels for metals, halogens, and flash point. These existing standards
promulgated in 1985 are recodified in part 279 today.

   The manufacture, use, import, and disposal of polychlorinated biphenyls (PCBs) in
used oils are controlled under the Toxic Substances Control Act (TSCA). TSCA controls
the manufacture, import, use, and disposal of oils containing over 50 ppm PCBs. In
addition, TSCA requires reporting of any spill of material containing 50 ppm or
greater PCBs, into sewers, drinking water, surface water, grazing lands, or vegetable
gardens. The Comprehensive Environmental Response, Compensation, and Liability Act
(CERCLA) requires reporting of any 1-pound spill of PCBs into the environment. Note
that used oils containing less than 50 ppm of PCBs are covered under RCRA.

   Used oils that are contaminated with CERCLA hazardous substances (e.g., due to the
presence of elevated levels of lead) are subject to CERCLA release reporting
requirements. Therefore, releases of used oil containing such contaminants (e.g.,
lead) into the environment in quantities greater than the reportable quantity for the
contaminant must be reported to the National Response Center. The current RQs for
CERCLA hazardous substances are listed in 40 CFR 302.4. In addition, under 40 CFR part
110, any discharge of oil that violates applicable water quality standards or causes a
film or sheen on a water surface must be reported to the National Response Center.

   As mentioned previously, used oil handlers will have to comply with all existing
regulations (including any applicable State and local regulations), and in addition,
the new management standards for recycled oil promulgated today. For the reasons
discussed in more detail below, EPA believes that this network of regulations will be
sufficient to ensure protection of human health and the environment.

III. Summary of Major Comments to 1985 Proposal and 1991 Supplemental Notice

A. Comments Received in Response to the 1985 Proposed Rulemaking

   1. Comments on 1985 Proposed Listing Decision

   On November 29, 1985 (50 FR 49239), EPA proposed to list all used oils as hazardous
waste, including petroleum-derived and synthetic oils, based on the presence of toxic
constituents at levels of concern as a result of contamination during and adulteration
after use. In 1985, the Agency also proposed special management standards for used
oils that are recycled. Essentially, used oils that are disposed would have been
subject to full subtitle C regulation, while recycled used oils could be managed in
accordance with the proposed management standards developed and proposed under the
authority of RCRA  3014.

   Many comments were received on the various aspects of the proposed listing of used
oil, which are summarized as follows. Most commenters opposed the listing of used oil
as a hazardous waste. The reasons given included that EPA's sampling was
unrepresentative and flawed (i.e., used oil samples were taken from storage tanks at
used oil facilities rather than from the point of generation), used oil is no more
hazardous than virgin oil, and the belief that the levels of constituents EPA found in
used oils that were sampled and analyzed do not present a threat to human health. Some
commenters asserted that EPA's concern is not with used oil itself but the mixing of
used oil with other constituents that may render the used oil hazardous only because
of post-use adulteration. Therefore, instead of listing all used oils, commenters
recommended that EPA should list used oils as hazardous only if other substances have
been added after the oil's initial use.

   A large number of commenters challenged the scope of the listing (i.e., definition)
and provided a number of examples where certain used oils should not be included in
the listing because they do not contain constituents of concern at concentrations
exceeding health-based levels that would cause the used oil to be listed. Some
commenters proposed that only those used oils that contain toxic constituents, such as
lead, arsenic, cadmium, chromium, 1,1,1-trichloroethane, trichloroethylene,
tetrachloroethylene, toluene, and naphthalene, should be included in the listing. A
number of commenters requested that in the proposed definition of used oil, the phrase
"but is not limited to" should be stricken because it creates tremendous uncertainty
as to what constitutes a used oil.  Commenters also challenged EPA and indicated that
the Agency exceeded its statutory authority by including synthetic and other
non-petroleum derived used oils in the definition of used oil. Commenters also
requested that used oil destined for recycling be excluded from the definition of used
oil. A few commenters also requested that food grade oils be excluded because the Food
and Drug Administration regulates these oils and requires that they meet health
standards based on human consumption because they may contact food products. A number
of commenters requested that EPA exclude dielectric waste oil from the listing because
electrical equipment is not a source of the contaminants of concern and that
dielectric oils are already controlled by the Toxic Substances Control Act.

   A number of commenters expressed concern regarding EPA's proposed regulatory scope
of mixtures of used oil and other materials. The commenters were mixed on their
support of EPA's proposed exclusion for wipers contaminated with used oil. Those that
supported the exemption stated that as long as a wiper contains no free liquid, as
determined by the paint filter test, it presents a minimal threat to human health or
the environment. These commenters also expressed the belief that there should be no
set concentration limit for used oil in wipers, but the exclusion should be based on
whether the wiper contains free liquids. Those that opposed the exclusion indicated
that contaminated wipers can contain significant quantities of PCBs and other toxic
constituents and therefore present a risk to health.

   Many commenters supported EPA's proposal to exempt wastewaters containing de
minimis amounts of used oil from the definition of hazardous waste. However,
commenters stated that no set concentration limit should be established as a de
minimis level. A few commenters opposed this exclusion on the grounds that it could
present a threat to human health and the environment. Some commenters requested that
the halogen level promulgated as part of the rebuttable presumption for used oil fuels
be increased because de minimis amounts of solvents may inadvertently become mixed
with used oil.

   There was overwhelming support to exempt mixtures of sorptive minerals and used
oil. However, some commenters requested that the word minerals be replaced with
materials. The commenters' rationale was that minerals are actually adsorbents,
meaning attracted to the surface, whereas other materials, such as treated wood and
paper fiber, are absorbents, meaning becoming part of the material and more difficult
to remove. Thus, these commenters asserted, non-mineral sorbent materials also would
pose no risk to the environment.

   2. Major Comments on 1985 Proposed Management Standards for Recycled Used Oil

   On November 29, 1985 (50 FR 49212), EPA proposed a comprehensive set of management
standards for various entities handling used oils. These proposed standards were
tailored after the hazardous waste management standards of subtitle C, and included
requirements for notification, tracking, recordkeeping, preparedness and prevention,
testing, storage, and closure. The handlers included generators, transporters,
recyclers, marketers, burners, and road oilers.

   a. Generator Standards. Concerning management standards for generators, commenters
were generally supportive of EPA's proposed regulations except for the following
comments relating to specific provisions. Commenters expressed concern that the
quantity limit for small quantity generators was too low.  Commenters also advocated a
change from determining a generator's regulatory status on a monthly basis to a
12-month average limit to account for periodic and/or seasonal variations in
generation patterns. Commenters thought that the proposed 90-day time limit on
accumulation did not provide enough time for generators to accumulate a full tank of
used oil. Because some facilities generate small amounts of used oil, some commenters
felt that a 180- or 270-day time limit would be more appropriate.

   One commenter stated that the requirement to empty a leaking or otherwise unfit for
service tank within 24 hours is unreasonable and more strict than the hazardous waste
requirements. One commenter stated that it is unreasonable to require that whenever a
leak in a tank system occurs, the whole tank system must then be subject to the
standards for new tank systems. An example of this inequity, provided by the
commenters, could occur if the tank system develops a leak because of a faulty gasket
and then the whole system has to be replaced rather than merely replacing the gasket.
A few commenters expressed the opinion that the proposed standards for used oil
storage tanks far exceed the necessary standards for protection of human health and
the environment. Some commenters stated that requiring secondary containment for newly
installed tanks beyond the SPCC requirements amounted to regulatory overkill. One
commenter requested EPA to provide clarification on the definition of tank because
many tank-like structures may be pulled into the system although they may not warrant
regulation. Many commenters expressed concern that the regulation of storage in
underground tanks under RCRA  3014 would be duplicative of the standards promulgated
under Subtitle I of RCRA. Many commenters disagreed with EPA that ground-water
monitoring provides a superior approach to leak detection.

   b. Transporter Standards. Some commenters thought that the 10-day time limit for
storing used oil at transfer facilities was an inadequate period of time for
transporters to accumulate and consolidate sufficient quantities of used oil. One
commenter requested that an exemption be provided for generators that transport used
oil from isolated locations to a central storage site, which would reduce the
regulatory burden on oil and gas production operations, contract drillers, gas
processors, and pipeline operators.

   Commenters expressed concern with the requirement proposed in 1985 that collectors
provide recycling facilities with lists of their customers. This could lead to
solicitation of the collector's customers by used oil recyclers, which could adversely
impact the collectors.

   c. Recycling Facility Standards. A few commenters requested that EPA allow for the
co-management of used oil with hazardous waste under a permit-by-rule rather than
requiring such facilities to apply for and obtain a modification to their existing
Subtitle C operating permit. Commenters also challenged the fact that while EPA
required analysis of halogens, there is no EPA-approved test method for halogens. Some
commenters also objected to the proposed requirement that facilities that manage both
used oil and other hazardous wastes test their used oil for indicator parameters for
each hazardous waste stream. Although many comments were received concerning testing
frequencies, commenters generally did not agree on any particular frequency or on
whether or not the Agency should impose a set testing frequency.

   EPA received many comments both for and against the proposed requirements that used
oil recycling facilities that are not in compliance with the permit-by-rule provisions
on the effective date of the rule comply with the interim status provisions of 40 CFR
part 265. A few commenters pointed out that corrective action for releases of used oil
to the environment was not adequately addressed in the 1985 proposed rulemaking.

   d. Dust Suppression. The commenters were generally in favor of banning used oil for
dust suppression. One commenter requested that EPA consider a case-by-case approval of
used oil as a dust suppressant provided the activity is permitted and waste analysis
is conducted. A state agency recommended that the dust suppression ban be extended to
refined oil and oil/water mixtures.

B. Comments Received in Response to 1991 Supplemental Notice

   1. Listing Used Oil

   The Supplemental Notice of September 23, 1991 (56 FR 48041), presented three
options for identifying used oil as a hazardous waste. Option One was to list all used
oils as proposed on November 29, 1985 (50 FR 49239), based on the potential for
adulteration during use and environmental damage when mismanaged. Option Two was to
list categories of used oil that were found to be "typically and frequently" hazardous
because of the presence of lead, PAHs, arsenic, cadmium, chromium, and benzene.
"Typically and frequently" was defined to mean that 50 percent or more of the samples
in a used oil category exceeded the levels of concern. Under Option Three, the Agency
proposed not to list used oils as hazardous, but rely on management standards
developed under section 3014 of RCRA to control mismanagement of oil.

   Commenters overwhelmingly supported Option Three, not to list used oil as a
hazardous waste, but rely on management standards. Many of these commenters suggested
that EPA should encourage recycling through education, collection, and management
standards instead of a hazardous waste listing. Many commenters expressed concern that
listing used oil would have a negative effect on the used oil recycling system. These
commenters stated that due to excessive liability and disposal costs associated with
handling hazardous wastes, they would be forced out of business or out of the used oil
management system. They stated that this would result in having fewer collection
centers resulting in decreased acceptance of DIY-generated used oil, and may lead to
further mismanagement. A few commenters pointed out that their lease prohibits the
handling of hazardous materials or wastes and the listing of used oil as a hazardous
waste would thus force them out of business or require them to negotiate a costly new
lease. Additionally, some commenters, primarily service stations and oil changers, are
currently voluntarily accepting DIY-generated used oil. They stated that listing used
oil as a hazardous waste would lead to the discontinuation of this service because of
the potential liability and the increased cost of handling used oil.

   Some commenters noted that DIY-generated used oil presents the biggest threat to
human health and the environment because it is often disposed of improperly. Another
view point shared by many commenters was that used oil is a resource that is
recyclable as lube oil feedstock or as a fuel substitute, and EPA should not designate
a valuable commodity as hazardous waste.

   A few commenters stated that used oil should not be listed because it is no longer
hazardous due to EPA's lead phase-down program. In addition, EPA's analyses of used
oil were based on too few samples and these were unrepresentative of actual
conditions. Some commenters expressed a reluctance to have EPA list used oil as a
hazardous waste, but urged EPA, if used oil is to be listed, to list only those used
oils that are disposed and not list used oils that are recycled.

   A few commenters supported the proposal to list all used oils as hazardous waste.
They stated that used oil has been historically mismanaged and presents a threat to
human health and the environment. In addition, they referenced the "California
experience" in support of listing. These commenters said that when California listed
used oil as a hazardous waste, the resulting recycling program within the state
increased the amount of used oil entering the used oil management system.

   2. De Minimis Mixtures

   EPA proposed exempting wipers, sorptive minerals, and oil filters that have been
drained of free-flowing used oil from the definition of hazardous waste, if used oil
were listed as a hazardous waste. EPA expressed its belief that many of these
materials may not pose a threat to human health and the environment because of the
very small quantities of used oil involved. The Agency also proposed the "one-drop"
standard for determining whether or not free-flowing used oil is present in the
mixtures.

   The commenters were nearly unanimous in support of EPA's proposal to exclude wipers
and sorptive minerals contaminated with small amounts of used oil from the proposed
listing. A number of commenters requested EPA to expand the definition of sorptive
minerals beyond the current definition of clay and diatomaceous earth to include
synthetic adsorbents and other natural filter/absorbent media. A few commenters
requested clarification as to the status of laundered clean wipers that do not contain
free flowing used oil. A few commenters requested a clarification concerning recycling
of used oil mixtures with high Btu value and instances where used oil cannot be
separated from the mixture for burning a mixture as a used oil fuel.

   3. Controlling Disposal of Used Oil

   EPA believes that certain used oils may require disposal because they can not be
recycled. In cases where the used oil is not recyclable and the disposal of the used
oil is not controlled under the current subtitle C regulations (e.g., because the used
oil does not exhibit a hazardous waste characteristic), EPA wants to ensure that used
oils are disposed of in an environmentally safe manner. EPA therefore requested
comment on the appropriateness of developing guidelines for the disposal of used oil
and the appropriateness of a total ban on the disposal of used oil.

   Commenters supported EPA's proposal to develop specific guidelines for the disposal
of nonhazardous oil under  1008 of RCRA. Some commenters urged EPA not to impose a
total ban on the disposal of nonhazardous oil. This is because some materials (e.g.,
contaminated soil) can not be disposed elsewhere in an economically acceptable
fashion. Some commenters supported a total ban on disposal of used oil mainly to
ensure protection of the ground water and as a method to promote recycling of all used
oils.

   4. DIY-Generated Used Oil

   RCRA does not provide the authority to regulate household-generated waste prior to
collection (e.g., DIY-generated oil and filters), nor does it give EPA the authority
to mandate collection programs for DIY-generated used oil. Over the past five years,
EPA has developed public informational brochures to encourage DIY generators to
recycle their used oil. EPA may develop more educational materials for the public and
the regulated community on used oil recycling alternatives. EPA therefore requested
comments on how to improve the recycling of DIY-generated used oil.

   Many suggestions were received on ways EPA could encourage the acceptance and
recycling of DIY-generated used oil. A majority of commenters, however, said that
listing used oil as a hazardous waste would discourage recycling of DIY-generated used
oil, primarily because many facilities indicated that they would no longer accept
DIY-generated used oil because of the liability associated with collecting and
handling hazardous waste. A state government agency stated that a primary reason
service stations are not accepting DIY-generated used oil is the uncertainty over the
past few years of whether EPA will list used oil as a hazardous waste and thus,
require generators that have used oil on hand to pay for its disposal. Commenters
indicated that the primary reason for the poor recycling rate of DIY-generated used
oil is because of the lack of collection centers. Some major suggestions included the
implementation of a curbside pickup program for DIY-generated used oil, requiring any
entity selling motor oil to collect DIY-generated used oil, ensuring that used oil
collection facilities be exempted from CERCLA liability requiring retailers to list
nearby used oil collection centers, and establishment of a deposit-refund system.

   5. Criteria for Recycling Presumption

   EPA proposed to establish a presumption that all used oils, once collected, would
be recycled and, therefore, would be subject to the proposed used oil recycling
standards. However, EPA is aware of certain categories of used oils (e.g., watery
metalworking oils, oily bilge water) that may not be recyclable. Most used oils can be
processed and treated to manufacture either burner fuel, lube oil base stock, to
feedstock for refining. However, EPA gave consideration to providing an opportunity
for used oil handlers to rebut the used oil recycling presumption and avoid compliance
with the used oil recycling standards by documenting that their used oil is not
recyclable in any manner. EPA requested comments on the suggested procedures for
rebutting the recycling presumption and appropriate documentation.

   The commenters were nearly unanimous in their support of the recycling presumption.
However, the comments were mixed concerning the criteria for "recyclability" and the
appropriate documentation. One commenter suggested that a one-time certification on
the recyclability of a waste stream is adequate, assuming the facility's waste
management plan does not change. Many of the commenters were supportive of the
criteria EPA listed for determining recyclability, which included BTU content, water
content, degree of emulsification, degree of viscosity, and the availability of
economically and geographically acceptable recyclers. However, two commenters
(refiners) stated that since none of the five criteria were examples of
nonrecyclability and that all used oil can be recycled, whether used oil is actually
recycled is strictly a matter of cost. One commenter questioned whether EPA had the
authority to assume that all used oil was recyclable and, if not, to require
certification and documentation.

   Commenters were generally in agreement concerning the documentation requirements
for the recycling presumption. There were only a few specific comments on the issue.
One commenter suggested that a generator should not be allowed to determine
recyclability but this should be the responsibility of a recycling facility. Another
commenter suggested that documentation should be kept on-site and should not have to
be sent to EPA.

   6. Ban on Use as a Dust Suppressant

   On November 29, 1985 (50 FR 49239), EPA proposed to ban the use of used oil as a
dust suppressant (road oiling). The September 23, 1991, Supplemental Notice (56 FR
48041) stated that regardless of whether EPA lists used oils as a hazardous waste, EPA
was still considering the ban of all used oils used for dust suppression. Specific
comment was requested on how used oils could be used for dust suppression in an
environmentally safe manner.

   Most of the commenters supported the ban on using any used oil for dust
suppression. Many of these commenters stated that used oil should not be used for road
oiling given the potential adverse impact to water resources due to run-off. One
commenter pointed out that surfactant additives in motor oil are generally anionic
which prevents oil from bonding strongly to most negatively charged aggregate articles
resulting in massive run-off. All of the state agencies commenting on this issue
supported a ban.

   Some commenters suggested that EPA should allow used oil to be used for dust
suppression if it meets certain criteria such as not failing a characteristic test or
the specification criteria for used oil fuel. Other commenters requested that
nonhazardous used oil be allowed for road oiling. A few commenters urged the allowance
of water contaminated with de minimus amounts of used oil to be used for dust
suppression. On a related matter, some commenters wanted to know whether use of used
oil for insect control or as a weed killer is allowed.

   7. CERCLA Liability Issues

   Section 114(c) of CERCLA contains the service station dealer's exemption from
liability under the statute for used oil. To be eligible for the exemption, service
stations are required to comply with the section 3014 of RCRA used oil management
standards and accept DIY-generated used oil. EPA requested comment on how to ensure
that small quantity generators could be eligible for this exclusion if they were
conditionally excluded from most of the regulatory requirements similar to subtitle C.

   The commenters were in agreement that the service station exclusion contained in
section 114(c) of CERCLA should be implemented. Many commenters encouraged EPA to
include facilities that collect DIY-generated used oil (e.g., public facilities),
regardless of whether they are service stations, to promote recycling of the DIY used
oil segment. A commenter requested that EPA clarify that "quick oil change and
lubrication facilities" are in the definition of "service station dealers" and that
"used oil destined for recycling" should be included instead of just "recycled" used
oil. One commenter requested that refiners and downstream users be included in the
definition of service station to obtain the CERCLA liability exemption.

   Many commenters expressed support for the elimination of generator category
distinction (i.e., small quantity generators versus large quantity generators). In
addition to the reduction in confusion and handling requirements for used oil, these
commenters noted that all generators could then benefit from the CERCLA liability
exemption.

   8. Storage

   EPA proposed different requirements for storage for different segments of the used
oil industry to respond to the potential risks associated with used oil handling. EPA
requested comment on storage standards to address the potential hazards associated
with used oil. EPA did not propose requirements for underground tanks used to store
used oil, because the Agency believes that the current requirements for USTs in 40 CFR
part 280 appear to be adequate.

   Most commenters supported EPA's basic intent to establish minimum technical
standards for the storage of used oil. A number of commenters supported the
requirement that all generators should comply with minimal technical standards and
that there should be no exclusion for small quantity generators; however, some opposed
this approach and supported a distinction between generators based on the amount of
used oil generated. The majority of commenters requested that the proposed requirement
for daily inspections should be reduced to weekly, biweekly, or monthly. A number of
commenters were against the proposed 50-foot buffer zone requirement primarily because
it would be impossible for quick lube facilities to implement this requirement due to
the limited size of their facility and it would be inappropriate because of the low
flash point of motor oil. An alternative that was suggested was for facilities to
comply with the NFPA's "Flammable and Combustible Liquids Code" for buffer zones. One
commenter suggested that satellite accumulation areas that are exempt from the storage
standards be allowed. One commenter pointed out that a definition and requirement for
a continuously fed tank is necessary.

   9. Secondary Containment for Tanks

   EPA requested comment on its proposal to require Spill Prevention, Control and
Countermeasure (SPCC)-recommended secondary containment or to require RCRA subtitle C
secondary containment requirements for controlling releases and spills of used oil
from aboveground storage tanks at used oil processing and re-refining facilities. The
SPCC options include berms, dikes, or retaining walls along with an oil-impervious
floor designed to contain used oil and avoid significant contamination of soil and
nearby surface and ground water resources.

   Most of the commenters agreed with EPA's proposal to require SPCC-recommended
secondary containment but were not supportive of also requiring subtitle C secondary
containment requirements for aboveground storage tanks. A few commenters noted that
requiring compliance with subtitle C would not add a significant margin of safety
compared to the cost of upgrading the tanks. Commenters argued that most of the
aboveground storage tanks are already in compliance with SPCC and, with few
exceptions, these requirements have been an acceptable vehicle for protecting human
health and the environment. One commenter supported the measure to require
owners/operators storing used oil in aboveground storage tanks to comply with both
SPCC and subtitle C requirements. Their rationale was that such requirements address
different management issues and are not unreasonably burdensome.

   10. Financial Responsibility

   In the 1985 proposed rule, used oil recycling facilities were to be subject to the
subtitle C financial responsibility requirements (50 FR 49256). Many comments that
were received on this proposal suggested that such requirements would have detrimental
effects on the used oil recycling market. In the September 1991 Supplemental Notice,
EPA requested comment on deferring the requirements.

   The commenters were nearly evenly divided on EPA's proposal to defer the financial
responsibility requirements for used oil recycling facilities. Those commenters that
supported the deferral indicated that because recyclable used oil has economic value,
there is an incentive to move as much oil as possible. These commenters also agreed
with EPA's contention that requiring financial responsibility would impact the
economic viability of used oil recyclers.

   Those commenters that did not support EPA's proposal to defer the financial
responsibility requirements questioned the practicality of requiring recyclers to
comply with the closure and post-closure requirements while not requiring the
financial mechanisms to ensure that these activities are done. A few commenters noted
that there are 63 used oil recycling sites listed on the National Priorities List,
which indicates that financial responsibility requirements are necessary. A state
agency urged EPA to require some level of financial responsibility because used oil,
when mismanaged, presents as much risk to human health and the environment as any
other hazardous waste.

   11. Permit-By-Rule

   In the 1985 proposed rule, EPA used the authority under section 3014 of RCRA to
propose permitting requirements for used oil recycling facilities (50 FR 49225,
49257). RCRA section 3014(d) provides that owners and operators of used oil recycling
facilities are deemed to have a permit for their recycling activities and associated
tank and container storage, provided they comply with the used oil management
standards promulgated by EPA. Thus EPA proposed that owners/operators of used oil
recycling facilities would be eligible for a permit-by-rule eligibility, including
those undertaken by facilities that recycle or store used oil in surface impoundments
and facilities that manage other hazardous waste in addition to used oil
(co-management facilities).

   Most of the comments pertaining to the permit-by-rule proposal were not supportive
of EPA's proposal based on many concerns. A number of commenters opposed EPA's
proposal that only those facilities that did not manage other hazardous wastes should
be eligible. Their contention was that section 3014 of RCRA did not expressly state
that co-management facilities were ineligible. A few commenters were against the
permit-by-rule concept altogether and favored a site-by-site permitting approach. A
few commenters requested EPA to allow permit-by-rules only for facilities that handled
nonhazardous oil and require those facilities that handled hazardous oil to comply
with subtitle C. Some commenters were in support of EPA's proposed permit-by-rule
requirements.

IV. Definition of Used Oil

   EPA's 1985 proposal to list used oil as a hazardous waste included the following
proposed definition of used oil:

   "Used oil" means petroleum-derived or synthetic oil including, but not limited to,
oil which is used as a: (i) lubricant (engine, turbine, or gear); (ii) hydraulic fluid
(including transmission fluid); (iii) metalworking fluid (including cutting, grinding,
machining, rolling, stamping, quenching, and coating oils); (iv) insulating fluid or
coolant, and which is contaminated through use or subsequent management.

   During the 1985 comment period, many commenters criticized the vagueness of the
proposed definition. One issue commenters raised was that it was unclear from the
definition what constitutes "contamination." The use of the phrase "but not limited
to" also was challenged. Commenters contended that such a phrase could be interpreted
to include varieties of oil such as food grade oils within the definition of used oil.
Commenters suggested that EPA specifically list in the definition the types of oils
they intended to regulate.

   Anorther point that commenters disputed about the definition of used oil was use of
the term "or subsequent management." They pointed out that the statutory definition of
used oil specifies contamination only "as a result of use," not via subsequent
management. Used oils that become adulterated after use should be subject to
management standards that discourage this practice. Commenters agreed that used oils
contaminated with hazardous wastes should be subject to full subtitle C requirements.

   Many commenters questioned the basis for including synthetic oils in the definition
of used oil. The statutory definition of used oil does not explicitly include
synthetic oils; therefore, commenters asserted that used synthetic oils should not be
considered "used oils." Several comments were received regarding metalworking oils as
well. Commenters requested that copper and aluminum wire drawing solutions be excluded
from the definition of used oil. Copper drawing solution is an emulsion of 1 to 2
percent oil in water. Aluminum drawing solution is considered a neat oil (i.e., 100
percent oil). However, one commenter stated that aluminum drawing solution is
nonhazardous and meets the EPA used oil fuel specification test.

   EPA carefully evaluated the comments referring to synthetic oils, including those
comments where the commenter submitted data. EPA has concluded that synthetic oils
that are not petroleum-based (i.e., those produced from coal or oil shale), those that
are petroleum-based but are water soluble (e.g., concentrates of metalworking
oils/fluids), or those that are polymer-type, are all used as lubricants similar to
petroleum-based lubricants, oils, and laminating surface agents. Upon use, synthetic
oils become contaminated with physical or chemical impurities in a manner similar to
petroleum-based lubricants. This contamination during (or as a result of) use is what
makes used oil toxic or hazardous. Upon collection, these used oils are not
distinguishable from non-synthetic used oils, except in the case of segregated,
water-based metalworking oils/fluids. All used oils, in general, are managed in
similar manners (e.g., burned for energy recovery, re-refined to produce lube oil
feedstock, or reconstituted as recycled products). Therefore, EPA believes that all
used oils, including used synthetic oils, should be regulated in a similar fashion
and, hence, EPA has decided to include synthetic oils in the definition of used oil as
discussed below. For the large part, the definition of used oil includes used
lubricants of all kinds that are used for a purpose of lubrication and become
contaminated as a result of such use.

   Today, EPA is promulgating a regulatory definition for "used oil" at 40 CFR 260.10
as follows:

   Used oil means any oil that has been refined from crude oil, or any synthetic oil,
that has been used and as a result of such use is contaminated by physical or chemical
impurities.

   This regulatory definition of used oil is drawn from the statutory definition of
used oil found at section 1004(36) of RCRA and is similar to the current definition of
used oil found at 40 CFR 266.40(b). EPA believes that this definition covers the
majority of oils used as lubricants, coolants (non-contact heat transfer fluids),
emulsions, or for similar uses and are likely to get contaminated through use.
Therefore, specific types of used oils are not identified in the definition.

   The definition includes all used oils derived from crude oil, as well as used
synthetic oils that are contaminated by physical (e.g., high water content) or
chemical (e.g., lead, halogens, or other toxic or hazardous constituents) impurities
as a result of such use. However, with today's rule, EPA is interpreting the
definition of used oil contained in the statute to include used synthetic oils,
including those derived from coal or shale or from a polymer based starting materials.
The Agency explained its rationale for including synthetic oils in the definition of
used oils in the preamble for the November 1985 proposed used oil listing (50 FR
49262). The Agency's position continues to be that synthetic oils should be included
in the definition of used oil due to the fact that these oils are generally used for
the same purposes as petroleum-derived oils, are usually mixed and managed in the same
manner after use, and present the same level of hazard as petroleum-based oils. In
addition, the Agency believes that Congress could not envision how prevalent synthetic
oils would become when it passed the UORA in 1980. Congress surely would not have
intended a result where large amounts of vehicle engine oils are not covered by RCRA
section 3014.

   The commenter-submitted data concerning synthetic oils suggest that properties of
synthetic oils that are polymer based are akin to oils produced from crude base stock
and can be used effectively as crude oil substitutes. When used, they become
contaminated with physical or chemical impurities and are not readily distinguishable
from used oils that are crude oil based.  n4 Today's definition does not include
oil-based products used as solvents refined from crude oil or manufactured from
synthetic materials. The Agency has always viewed petroleum-based solvents as wastes
separate and distinct from used oil. In the 1989 proposal for Land Disposal
Restriction Standards, ignitable liquids encompass materials like solvents, paint
thinners, contaminated oils, and various organic hydrocarbon. Some of these have been
thought to contain organic constituents from the listed wastes F001-F005. (See 54 FR
48420, November 22, 1989.)

   n 4 A letter from Mobil Corporation to EPA dated July 8, 1992. A report by
Independent Lubricants Manufacturers Association, "Waste Minimization and Wastewater
Treatment of Metalworking Fluids," 1990.

   The definition of used oil promulgated today does not include used oil residues or
sludges resulting from the storage, processing, or re-refining of used oils. EPA
believes that the types and concentrations of hazardous constituents in used oil
residues and sludges are different from those typically found in used oils, and
therefore these residues and sludges warrant separate regulatory consideration. EPA is
going to continue to study used oil residues and sludges, as well as all of the
residuals from used oil re-refining activities. EPA may finalize the residual listings
proposed in the 1991 Supplemental Notice or propose a listing determination for the
specific used oil sludges and residuals in a future rulemaking. Residuals are covered
under the existing RCRA regulations. Currently, these wastes are subject to the
hazardous waste characteristics. If a residue, sludge, or residual resulting from used
oil storage, processing, or re-refining exhibits one or more of the characteristics of
hazardous waste, then it must be managed as a hazardous waste in accordance with all
applicable Subtitle C requirements. However, as discussed later in this preamble,
distillation bottoms derived from used oil re-refining are conditionally exempt from
the used oil management standards promulgated today, as well as the Subtitle C
hazardous waste regulations, when the distillation bottoms are used as ingredients in
asphalt products. In the September 1991 Supplemental Notice, EPA proposed to list as a
hazardous waste several residuals from used oil processing and re-refining operations.
Distillation bottoms were among the residuals that EPA proposed to list. Following the
1991 Notice, EPA received data from several commenters indicating that distillation
bottoms from the processing and re-refining of used oil do not fail the toxicity
characteristic. EPA has no other recent data on the composition or toxicity of these
residuals. In addition, commenters have indicated that the use of distillation bottoms
as ingredients in asphalt materials is a very common practice. Furthermore,
distillation bottoms, when used as asphalt extender materials, also may be regulated
under the Toxic Substances Control Act, as applicable. EPA believes, based on the
Toxicity Characteristic (TC) data provided by commenters, that the distillation
bottoms from re-refining of used oil do not exhibit the characteristic of toxicity.
Therefore, the Agency has deferred a listing decision for these residuals and has
provided a conditional exemption from the hazardous waste regulations of parts 262
through 266, 268, 270, and 124 and the part 279 standards for certain residuals that
are incorporated into asphalt (40 CFR 279.10(e)(4)).

V. Listing Determination for Recycled Used Oil

A. General

   Section 3001 of RCRA provides the Agency with the general statutory authority under
RCRA for identification and listing of hazardous wastes. In 1984, HSWA amended section
3014 of RCRA by specifically requiring EPA to exercise its hazardous waste
identification and listing authorities and propose a listing determination for used
automobile and truck crankcase oils and other used oils.

   EPA's technical criteria for determining whether or not a solid waste should be
listed as a hazardous waste are codified at 40 CFR 261.11. Section 261.11(a)(1) allows
EPA to list a solid waste as a hazardous waste if the solid waste exhibits any of the
characteristics of hazardous waste. Section 261.11(a)(3) directs that a waste shall be
listed as hazardous if it contains any of the toxic constituents listed in appendix
VIII and, after considering the following factors, the Administrator concludes that
the waste is capable of posing a substantial present or potential hazard to human
health or the environment when improperly treated, stored, transported, disposed of,
or otherwise managed. The factors to be considered in making this determination
include toxicity, fate and transport, mobility and persistence, and the
bioaccumulation potential of the constituents in the waste, as well as plausible
mismanagement scenarios (40 CFR 261.11(a)(3)(vii)) and other Federal and state
regulatory actions with respect to the waste (40 CFR 261.11(a)(3)(x)).

   In making a listing determination for used oils destined for disposal, EPA paid
considerable attention to the current Federal regulations governing the disposal of
non-hazardous and hazardous wastes. EPA published a final listing determination for
used oils destined for disposal on May 20, 1992 (57 FR 21524). EPA concluded that the
existing EPA regulations, especially the toxicity characteristic, adequately regulate
the disposal of used oils that exhibit a characteristic of hazardous waste. Other EPA
programs (e.g., the recently promulgated municipal solid waste landfill criteria, the
stormwater requirements, and TSCA regulations), as well as other Federal and state
regulations, adequately control the disposal of non-hazardous used oils that do not
exhibit a characteristic of hazardous waste.

   EPA has decided to use a similar regulatory approach for recycled used oils as the
Agency used for used oils that are disposed. The Agency proposed in September 1991
that the listing of used oil as a hazardous waste may not be necessary if the Agency
promulgates used oil management standards that are protective of human health and the
environment. Commenters who responded to the September 1991 notice overwhelmingly
supported this approach. EPA has decided to adopt this approach and consider the
technical criteria for making a listing determination, given a universe of used oils
that are managed in accordance with a protective set of management standards.

   In making a listing determination for recycled used oils, EPA evaluated the
technical criteria for listing a waste as hazardous, the fate and plausible
mismanagement of used oils that are recycled, and the impacts of the management
standards proposed in 1985 and 1991 and finalized today. EPA has determined that used
oils that are recycled do not pose a substantial present or potential hazard to human
health or the environment when the used oils are managed properly from the time they
are generated until they are recycled. As discussed in the next section of this
preamble, EPA believes that used oil that is recycled and handled in compliance with
the used oil management standards promulgated today will not pose serious adverse
risks to human health and the environment. Therefore, EPA is finalizing its decision
not to list used oils that are recycled as hazardous waste. Integrally related to this
"no listing" decision for recycled used oil, the Agency also is promulgating
management standards for recycled used oils to assure protection of human health and
the environment from potential damages due to the mismanagement of recycled used oils.

B. Summary of EPA's Listing Determination and Rationale for Recycled Used Oils

   As discussed below, the Agency has determined that the major potential risks
associated with the mismanagement of used oils during recycling can be adequately
controlled through management standards promulgated under the authorities of RCRA
section 3014. The used oil management standards promulgated today are designed to
control the accumulation, storage, transportation, and general management of recycled
used oils. The management standards promulgated today protect human health and the
environment from potential mismanagement of recycled used oils without imposing undue
regulatory and financial burdens upon the used oil recycling system. The goal of
today's regulations is to ensure the recycling of all used oils in a safe and
protective manner. These new Federal management standards address the major risks
(discussed later) identified by the Agency, associated with management of used oil
eliminating the need for the Agency to list used oils as hazardous waste per the
listing criteria provided in  261.11(a)(3).

   Today's decision not to list recycled used oils is based on the adequacy of both
existing Federal regulations and today's newly promulgated management standards to
address the potential mismanagement of used oil, similar to the basis for the May 20,
1992 decision concerning used oil destined for disposal. Briefly, used oil
mismanagement and related risks are controlled under other regulations and statutes;
in particular, the 40 CFR part 280 underground storage tank (UST) regulations, the 40
CFR part 112 spill prevention, control and countermeasure (SPCC) program, the
stormwater regulations, and the lead phase-down program. These regulations will be
supplemented by the used oil management standards promulgated today for recycled used
oils. As discussed in the preamble to the May 20, 1992 used oil regulation, the SPCC
program requires facilities to have a contingency plan in place to ensure that oil
spills are prevented, controlled via containment measures, and responded to when oil
spills occur and reach navigable waterways. The UST program similarly focuses on
control and prevention of oil leaks from underground petroleum storage tanks including
waste oil tanks. These two programs are clearly related to the management standards
promulgated today and cover the used oil universe.

   The management standards promulgated today specifically address the following major
risks that EPA has identified with past practices in managing recycled used oil. These
are:

   1. Improper storage. EPA notes that in the past, used oil was both overaccumulated
and handled carelessly, resulting in a number of release incidences, from used oil
storage units. These releases have been documented at off-site processors and
re-refiners.  n5 Today's management standards have stringent secondary containment and
spill cleanup provisions for used oil processors and re-refiners. Also, storage of
used oil in unlined surface impoundments (unless only de minimis amounts of used oil
are present) is banned outright.

   n 5 Summary Descriptions of Sixty-Three "Used Oil" Superfund Sites, Final Draft,
U.S. EPA, May 1992.

   2. Road Oiling. EPA has documented several cases of environmental degradation that
were caused by oiling roads with adulterated used oil. Today's management standards
ban the use of used oil for road oiling and dust suppression purposes. However, States
that currently allow used oil to be used for road oiling, and/or those States that
want to set standards to control the use of used oil as a road oiling agency, may
petition EPA to allow road oiling in the individual States.

   3. Adulteration with hazardous waste. In a number of documented instances used oil
has been used either deliberately or inadvertently as a carrier for the illegal
disposal of hazardous waste. The addition of hazardous waste, or "adulteration,"
results in a more toxic mixture that may be spilled, burned, or even dumped. Today's
management standards address adulteration in four main ways:

    -- The "rebuttable presumption" provision of 40 CFR part 266, subpart E, which
currently applies to used oil burned for energy recovery, has been expanded to cover
all used oils, regardless of intended disposition;

    -- Used oil processing and re-refining facilities have to develop specific
sampling and analytical plans to document that they do not accept hazardous waste/used
oil mixtures;

    -- All used oil handlers must label their tanks and containers used to store used
oil with the term "used oil," to assist employees in identifying which units are used
exclusively for used oil storage and to avoid inadvertent mixing with other wastes;
and

    -- The existing invoice system in 40 CFR part 266, subpart E for used oil fuels
has been supplemented with a tracking system consisting of acceptance and delivery
records. Tracking of used oil shipments applies to all used oil transporters and
processing and re-refining facilities. The tracking system will assist in identifying
accountability, should mixing be suspected.

   Finally, EPA notes that two other areas of potential risk are not addressed by
today's management standards, but these risks already have been reduced by in past
agency actions. As noted above, the Agency is postponing listing determinations on
used oil processing residuals. Although cases of environmental damages due to improper
management of residuals have been documented, these cases involved residuals from old,
out-of-date processes (i.e., acid clay re-refining). Data received in response to the
September 1991 Supplemental Notice indicate that residuals from newer processes do not
exhibit the toxicity characteristic. Residuals that are destined for disposal are
still subject to the hazardous waste characteristics, and in 1990, EPA promulgated the
toxicity characteristic rule, which replaced the extraction procedure (EP) toxicity
test. If used oil residuals, including distillation bottoms derived from used oil
processing and re-refining, are recycled as used oil fuels, then the management of the
residuals is subject to the management standards promulgated today. Distillation
bottoms that are recycled as feedstocks in the production of asphalt materials are not
subject to the management standards promulgated today. EPA will gather and assess
information on newer technologies before reaching any further decisions on the
regulatory status of residuals that are currently generated by used oil re-refiners.

   EPA is aware of concerns raised over burning used oil as a fuel. The 1985 used oil
fuel specification, however, was established to control the risks from burning used
oil, thus it represents the Agency's best current judgment as to the level of control
necessary to protect human health and the environment. Thus, the burning of used oil
in compliance with the existing standards is not a "plausible mismanagement scenario"
requiring the listing of recycled used oil as a hazardous waste. The concerns focus on
the current lead specification of 100 ppm and whether this threshold provides adequate
protection. RCRA restricts the burning of off-specification used oil for energy
recovery to certain industrial facilities (e.g., industrial furnaces and utility
burners) and space heaters. While facilities that burn off-specification used oil fuel
are not required to control air emissions under RCRA, some of these facilities may be
subject to Clean Air Act controls. The Agency plans to study these issues and, should
regulatory controls be deemed necessary, EPA may take appropriate actions under RCRA
or other statutory authority.

   As discussed above, these rules address the major risks associated with used oil
recycling including improper storage, road oiling, and adulteration with hazardous
waste. These standards should prevent the kinds of mismanagement that has occurred in
the past resulting in environmental damage. EPA has concluded that the management
standards promulgated today in combination with other existing regulations provide
adequate protection of human health and the environment and thus make it unnecessary
to list used oil as a hazardous waste. EPA traditionally has based listing
determinations on the risks posed by land-based management scenarios (e.g., plausible
land disposal mismanagement). Today's used oil management standards do address the
technical criteria for listing of waste as hazardous under 40 CFR 261.11(a)(3).

   EPA wishes to reemphasize that its decision not to list recycled used oil as a
hazardous waste is based solely upon its evaluation of the technical listing criteria
contained in 40 CFR 261.11(a)(3). In particular, EPA has not taken into account the
potential stigma associated with classifying used oil as hazardous waste raised by
commenters on the 1985 and 1991 proposals. Some consideration was given to the impacts
of used oil management standards on used oil recycling in developing the standards, as
required by section 3014(a) of RCRA. Once the standards were developed, however, EPA
made today's listing determination by evaluating the resulting standards solely in
terms of whether they would address the risks caused by plausible mismanagement of
recycled used oil. EPA notes that the used oil standards address the same types of
mismanagement, particularly spilling and improper land disposal, typically addressed
by Subtitle C controls. In addition, the used oil management standards will be
enforced under the same authorities (i.e., section 3008 of RCRA) as are the hazardous
waste regulations. For all of the above reasons, EPA determined that listing of
recycled used oil as a hazardous waste is unnecessary.

VI. Final Management Standards for Recycled Used Oils

A. General Approach for Used Oil Management

   On November 29, 1985 (50 FR 49212), EPA proposed a comprehensive set of management
standards for generators, transporters and processing and re-refining facilities that
handle and recycle used oil. The management standards proposed in 1985 were very
similar to the management standards promulgated for handlers of RCRA hazardous wastes
since the Agency also proposed to list used oils as hazardous wastes. EPA received
substantial public comment on the 1985 proposed requirements. On September 23, 1991
(56 FR 48000), EPA published a Supplemental Notice of Proposed Rulemaking that
discussed the Agency's recent data collection activities for the identification and
listing of used oil and discussed several options for used oil management standards.
The intent of the management standards alternatives identified and discussed in the
1991 Supplemental Notice was not to replace or withdraw the 1985 proposed standards
but to set forth options to (a) clarify or modify certain 1985 proposed standards, (b)
defer selected standards (e.g., financial responsibility), and (c) add new
requirements (e.g., recordkeeping and reporting requirements for certain generators
and transporters). The Agency requested and received a substantial number of comments
on the specific approaches that the Agency was considering and that were discussed in
the 1991 Supplemental Notice.  n6

   n 6 EPA received more than 800 comments during the comment period for the September
1991 Supplemental Notice. EPA also received over 100 comments on the notice after the
close of the comment period.

   After reviewing and analyzing comments in response to both the 1985 proposed
rulemaking and the 1991 Supplemental Notice of Proposed Rulemaking, the Agency is
adopting an approach for the management of used oils, described below, under which one
set of management standards (with certain exemptions for used oil mixtures that
contain de minimis quantities of used oil) will control the management of used oils
that are recycled. The Agency's basis for setting these standards includes documented
release and damage information, quantities of used oil managed by each segment of the
used oil management system, the adequacy of current management practices, and the
potential economic impacts that could be imposed on the regulated universe.

   Based upon evidence provided by documented damages at sites on the National
Priorities List (NPL) and by updating the site-specific information previously used to
support alternative management standards discussed in the 1991 Supplemental Notice,
EPA has concluded that storage practices at facilities that handled used oil have
resulted in the vast majority of known instances of used oil mismanagement. EPA also
confirmed this finding through a review of enforcement cases prepared by Regional
enforcement officials to identify environmental damages that occurred at RCRA
facilities managing used oil in solid waste management units. EPA has documented
damage and release information from both NPL sites and RCRA-permitted facilities.
Detailed descriptions of the damages at 63 NPL sites where used oil was managed are
presented in "Summary Descriptions of Sixty-Three 'Used Oil' Superfund Sites." A
summary of used oil-related damages at RCRA-permitted facilities where used oil was
managed is presented in "Summary Descriptions of Used Oil-Related Damages at
RCRA-Permitted Facilities." A copy of each of these documents is in the docket for
today's rule.

   The Agency has determined that it is necessary to develop management standards to
address the major risks discussed earlier associated with management (and plausible
mismanagement scenarios) of used oils within the used oil recycling system. Primarily,
the management standards promulgated today focus heavily on used oil processors and
re-refiners and include storage and release response requirements, tracking and
recordkeeping requirements, and bans on certain practices that have caused problems
(i.e., road oiling and the storage of used oil in surface impoundments not regulated
under subtitle C of RCRA). The management standards cover all sectors of the used oil
universe and are codified in a new part, part 279, of title 40 of the CFR.

   Generally, EPA is establishing (1) controls on the storage of used oil in
aboveground tanks and containers to minimize potential releases from these units; (2)
tracking and recordkeeping requirements for used oil transporters, processors and
re-refiners to provide a level of confidence within the system that used oils destined
for recycling are in fact recycled by authorized facilities; and (3) standards for the
cleanup of releases to the environment during storage and transit and for the safe
closure of storage units at processing and re-refining facilities to mitigate future
releases and damages. The Agency believes this approach will address potential hazards
to human health and the environment from the management (including plausible
mismanagement scenarios), of all used oils by used oil handlers.

   EPA believes that, irrespective of whether used oils exhibit a characteristic of
hazardous waste, used oils can pose some threat to human health and the environment
(e.g., used oils can form a sheen on water and make it non-potable). Therefore, it is
important that used oils are handled in a safe manner from the point of generation
until recycling, reuse, or disposal.

   As stated in the 1991 Supplemental Notice of Proposed Rulemaking and as supported
by most of the public comments received by the Agency, the Agency has decided to
implement used oil management standards using a two-phased approach. The proposed
phased approach is designed first to develop basic management standards to address the
potential risks associated with management (including plausible mismanagement)
practices of used oil recycling industry. Used oil mismanagement scenarios include
storage, collection/shipping, and processing or re-refining. At a later date, as the
Agency monitors the effectiveness of regulatory approach and receives more
information, the Agency may adopt additional measures as necessary to address other
potential problems.

   The management standards adopted today are designed to address the potential
hazards associated with improper storage and handling of used oil by establishing
minimal requirements applicable to used oil generators, transporters, used oil
processors, and re-refiners, and off-specification used oil burners. These
requirements are selected from both the 1985 proposed standards and the 1991 proposed
alternative management standards, taking into account public comments, an assessment
of economic impacts on the regulated community, an assessment of how the management
standards will impact the market for recycled used oil, and an assessment of the
effectiveness of today's regulations, combined with other requirements, in controlling
the risks posed by the improper management of used oil.

   Today's management standards cover all used oil handlers and requirements including
detection and clean up of used oil releases associated with storage and
transportation, controls on storage, analytical requirements to assure that used oils
are not mixed with hazardous wastes, recordkeeping requirements, and the existing 40
CFR part 266, subpart E standards for the rebuttable presumption of mixing. Today's
requirements also include closure standards for used oil processing and re-refining
facilities. These requirements also address hazards associated with road oiling and
disposal practices. The Agency has previously evaluated disposal requirements for
hazardous and non-hazardous used oils under RCRA to protect against potential hazards
from land disposal of used oil in the context of the Agency's decision not to list
used oil destined for disposal (57 FR 21524, May 20, 1992).

   After today's rule is implemented, EPA intends to evaluate the protective nature of
this initial set of requirements and the effects these standards have had on the used
oil recycling market, prior to developing additional standards or developing
non-regulatory incentive programs to promote and increase used oil recycling. After
such an evaluation, EPA may impose additional management standards at a later date.
EPA will weigh the increase in potential environmental benefits against economic
impacts prior to developing and imposing additional RCRA requirements, as required by
RCRA section 3014.

   As part of a comprehensive approach to addressing the management of used oil, EPA
encourages the recycling of DIY-generated used oils (e.g., household-generated used
oils). Currently, DIY-generated used oils (approximately 193 million gallons annually)
are not widely recycled. In fact, DIY-generated used oils are often improperly
disposed. The Agency does believe, however, that since 1985, the recycling rate for
DIY-generated used oils has been increasing as a result of public and private sector
efforts.  n7 EPA discussed several non-regulatory approaches (i.e., economic
incentives) to encourage DIY used oil recycling in the 1991 Supplemental Notice. EPA
received a significant number of comments on these approaches (summarized in Section
II of this preamble). The comments generally indicated that EPA should not go forward
with the development of economic incentive programs at this time, but allow private
sector programs and state-initiated programs to address the issue of DIY used oil
collection. Since the 1991 Supplemental Notice was published, EPA has initiated a
study of non-regulatory approaches for promoting DIY used oil collection. If the
results indicate that incentives can promote recycling, then the Agency may address
the establishment or use of incentives for encouraging the recycling of DIY-generated
used oils later.

   n 7 A survey conducted by the Convenient Automotive Services Institute, which was
undertaken earlier this year, indicates that half the states have private
sector-operated DIY used oil collection programs. Also, more than 30% of the states
have public sector-operated DIY used oil collection programs.

   The management standards promulgated today contain basic, good housekeeping
standards for the management of used oil. EPA considered an alternative approach in
which no management standards would be issued until the Agency had developed a
comprehensive, risk-based management scheme for used oil, which would address
DIY-generated oil, used oil fuels burned by industrial burners, used oil
transportation, and other used oil recycling and re-refining activities. Although this
type of approach may have the advantage of providing time for EPA to collect more
information on used oil management practices and avoiding piecemeal regulation of the
industry, factors in favor of the phased approach include providing immediate
protection to human health and the environment by addressing the primary sources of
hazards identified by EPA including, improper storage, road oiling, and adulteration
with hazardous waste. As stated above, the 1991 proposed two-phased approach provides
the opportunity for changing regulatory provisions (if necessary) in Phase II, based
on feedback from the implementation of Phase I. EPA believes that the approach adopted
today will allow for adjustments as problems of over- or under-regulation are
identified in the future.

B. Recycling Presumption

   Various authorities are available to the Agency to control the management of used
oils. RCRA section 3014 provides EPA with the authority to regulate generators,
transporters, processing and re-refining facilities, and burners that handle recycled
used oil or used oils that are to be recycled, regardless of whether or not the used
oils are identified as hazardous waste. Section 3014 of RCRA does not, however,
provide the Agency with regulatory authority over used oils that are not recycled. As
stated in the May 20, 1992 rulemaking, the Agency believes that other RCRA authorities
and other EPA and non-EPA regulations adequately control the management of used oils
that are not recycled.

   In the 1991 Supplemental Notice, EPA proposed a presumption of recyclability for
all used oils. The presumption was based on industry data which suggested that once
used oil enters the recycling system the majority of the used oil is recycled by
burning for energy recovery or some other manner, such as refining. Under the proposed
presumption, the Agency would have presumed that all used oils would be recycled,
unless a used oil handler documented that the used oil cannot be recycled. In the 1991
notice, EPA also proposed several criteria used oil handlers could use to rebut the
recycling presumption. The comments that EPA received in response to the recycling
presumption were very supportive. Commenters indicated that the recycling presumption
would ensure that used oils remained in the used oil recycling system. However, many
commenters also indicated that the criteria that the Agency proposed for rebutting the
presumption are not necessary, since they argued that all used oils can be recycled
and the selection of a recycling method depends on the physical characteristics of the
used oil (e.g., water content, level of contamination) and the corresponding cost of
recycling the used oil.

   After considering the public comments supporting the recycling presumption, and the
difficulties associated with promulgating and enforcing the proposed "recyclability
criteria," the Agency has decided that specific criteria to rebut the presumption are
not necessary. The Agency agrees with the commenters that the physical characteristic
of the used oil and the used oil recycling market will dictate the conditions for
recycling of used oil. However, the Agency has retained the recycling presumption
because the presumption simplifies the used oil management system by ensuring that
generators and others may comply with one set of standards, the part 279 standards
promulgated today, regardless of whether the used oil exhibits a hazardous
characteristic and regardless of whether the used oil will ultimately be recycled or
disposed. In other words, the generator (or any other person who handles the oil prior
to the person who decides to dispose of the oil) need not decide whether the used oil
eventually will be recycled or disposed and thus need not tailor its management of the
oil based upon that decision (and, if destined for disposal, whether the used oil is
hazardous). Rather, the part 279 standards apply to all used oils until a person
disposes of the used oil, or sends it for disposal.

   The recycling presumption will not apply once the generator or other person
disposes or sends the used oil for disposal. Today's rule does not impose any
recordkeeping requirements on such persons to demonstrate that the oil is destined for
disposal. Rather, they must continue to comply with existing requirements for used oil
disposal as listed in part 279, subpart I. The used oil disposal must be done in
compliance with all applicable regulations (i.e., the generator must determine whether
the used oil exhibits any characteristic and, if so, must manage it as a hazardous
waste). If used oil is recycled, however, no characteristic determination is required,
but all parties handling the used oil must comply with the part 279 management
standards.

   For used oil processing and re-refining residuals, a hazardous waste determination
will be necessary when the residuals are managed in a manner other than recycling for
energy recovery or when re-refining distillation bottoms are used as a feed material
for asphalt products (see discussion in Section IV of this preamble).

    C. Rebuttable Presumption of Mixing for Used Oil

   The rebuttable presumption currently codified at 40 CFR 266.40(c) provides that
used oil containing more than 1,000 ppm of total halogens is presumed to be mixed with
chlorinated hazardous waste listed in 40 CFR part 261, subpart D. Persons may rebut
the presumption by demonstrating that the used oil has not been mixed with hazardous
waste. EPA does not presume mixing has occurred if the used oil does not contain
significant concentrations of chlorinated hazardous constituents listed in appendix
VIII of part 261.

   In 1985, EPA promulgated the used oil fuel specification. EPA set the specification
limit for total halogens at 4,000 ppm. EPA set this specification limit for total
halogens based upon emission standards modelling results. EPA also promulgated the
rebuttable presumption of mixing in 1985. The rebuttable presumption limit for halogen
content was set at 1,000 ppm, based upon probable mixing scenarios. The Agency
believes (due to enforcement experience) that used oils exhibiting a total halogen
level greater than 1,000 ppm have most likely been mixed with chlorinated hazardous
wastes.

   The Agency wants to discourage all mixing of used oils and hazardous wastes.
However, EPA understands that some used oils (e.g., metalworking oils with chlorinated
additives) may exceed the 1,000 ppm total halogen limit without having been mixed with
hazardous waste. In these cases, the generator can rebut the presumption of mixing by
documenting the source of the halogens and the used oil is subject to the part 279
management standards and is not subject to the subtitle C management system. However,
even if the presumption of mixing is rebutted, if the total halogen level in the used
oil exceeds 4,000 ppm, the used oil will not meet the used oil specification limit for
total halogens. Therefore, if the used oil is to be burned for energy recovery, and
the used oil will have to undergo further processing to meet the used oil fuel
specification (to lower the total halogen level) or the used oil must be burned as
off-specification used oil fuel (in which case the used oil fuel handlers must be in
compliance with the requirements of part 279, subpart G). In cases where the used oil
generator cannot rebut the presumption of mixing, the used oil generator must manage
the mixture of used oil and hazardous waste as a hazardous waste (in compliance with
all applicable Subtitle C management requirements).

   In the 1991 Supplemental Notice, EPA proposed to apply the rebuttable presumption
for used oil fuels to all used oils. Commenters favored extending the applicability of
the rebuttable presumption for used oil fuels to all used oils that are recycled in
any manner. EPA has decided to expand the presumption to cover all used oils (with two
exceptions, discussed below) and has amended 40 CFR 261.3 to make the provision
applicable to all used oils. Under this presumption, used oils containing more than
1000 ppm total halogens are presumed to have been mixed with a halogenated hazardous
waste and therefore must be managed as hazardous waste. Used oil handlers may rebut
this presumption by demonstrating that the used oil does not contain hazardous waste.
EPA is recommending the use of SW-846 method 8010 in rebutting the presumption of
mixing.

   In today's rule, EPA is removing the current requirements of 40 CFR part 266,
subpart E and recodifying these requirements in the new part 279, as explained later
in this preamble. In the case of the rebuttable presumption, EPA is reinstating the
rebuttable presumption as part of the definition of hazardous waste at 40 CFR 261.3.
The Agency is amending the definition of hazardous waste in this manner to clarify
that the rebuttable presumption will now apply to all used oils and that all used oils
that contain greater than 1,000 ppm halogens must be managed as a hazardous waste,
unless the presumption can be rebutted.

   EPA solicited comments on the possible elimination of a distinction between a 1,000
ppm halogen limit for rebuttable presumption of mixing and the 4,000 ppm level for
total halogens in specification fuel. EPA received favorable comments from the public.
EPA, however, has decided not to address this issue in today's rulemaking. The
management standards established today cover basic management practices and establish
1,000 ppm level for the rebuttable presumption of mixing for all used oils. The 4,000
ppm total halogen limit for specification fuel remains unchanged for now.

   Today, EPA is amending the rebuttable presumption of mixing to conditionally exempt
two types of used oils from the requirement to document the rebuttal. EPA is providing
a conditional exemption for both used metalworking oils containing chlorinated
paraffins and used compressor oils containing CFCs.

   1. Metalworking oils

   EPA is providing a conditional exemption from the rebuttable presumption of mixing
for used metalworking oils/fluids containing chlorinated paraffins, on the condition
that these oils/fluids are processed through a tolling agreement to reclaim the
metalworking oils/fluids. Many metalworking oils/fluids contain greater than 1,000 ppm
total halogens, not because they are mixed with chlorinated hazardous wastes, but due
to the presence of chlorinated paraffins in the oils/fluids. Today's amendment to the
rebuttable presumption is partially a clarification, because used metalworking oils
that are not mixed with hazardous waste (but do contain greater than 1,000 ppm
halogens) could have been the subject of a successful rebuttal. This exemption will
relieve generators of such oils/fluids of the burden and responsibility of documenting
the source of the halogens when the generator has entered into a tolling agreement to
have metalworking oils/fluids recycled. Generators, as well as other handlers, of
metalworking fluids/oils who have not entered into a tolling agreement to provide for
the recycling of the oils/fluids remain subject to the rebuttable presumption and will
have to continue to document that the oils/fluids are not mixed with chlorinated
hazardous wastes. The Agency is providing and codifying this amendment for generators
and processors/re-refiners with tolling agreements because the Agency believes that
such private arrangements restrict the handling of the oils/fluids and provide for a
mutual interest in preventing any potential contamination of the oils/fluids to assure
that the oils/fluids can be recycled (i.e., adding solvents to metalworking oils would
reduce the value of the used oil as a metalworking oil -- adding solvents may not
reduce the value of the used oil if it is used as a fuel, but it is possible that it
may be deemed as a mixture of used oil and hazardous waste if significant quantities
of F001 and F002-halogenated constituents are detected).

   2. Compressor Oils From Refrigeration Units Containing CFCs

   EPA also is amending the rebuttable presumption to exempt CFC-contaminated used
oils generated and removed from refrigeration units and air conditioning equipment, on
the condition that these used oils are not mixed with other wastes, that the used oils
containing CFCs are subjected to CFC recycling and/or reclamation for further use, and
that these used oils are not mixed with used oils from other sources. The remaining
used oil must be recycled appropriately in compliance with today's standards. The
presence of CFCs in compressor oils removed from refrigerant units will cause the use
oils to exhibit a halogen level greater than 1,000 ppm, even after the majority of the
CFCs are removed and/or recycled. This exemption, like the exemption provided for
metalworking oils, will relieve generators of used compressor oils of the burden and
responsibility of documenting the source of the halogens. Generators and other
handlers of CFC-contaminated compressor oils must keep the used oils that are
contaminated with CFCs separate from other used oils that are not exempt from the
rebuttable presumption, since other used oils may be mixed with chlorinated hazardous
wastes. It is important to note that although the rebuttable presumption does not
apply to used compressor oils containing CFCs or used metalworking oils, these used
oils remain subject to appropriate part 279 standards. For example, used oils must
contain less than 4,000 ppm total halogens to be considered specification used oil
fuels.

   Used compressor oils containing residual levels of CFCs after the CFC
recycling/reclamation and used metalworking oils are subject to the specification
limits for used oil fuels if these oils are destined for burning. EPA wants to
discourage the burning of used oils with significantly elevated levels of halogens in
space heaters or non-industrial furnaces or boilers. Pending further study, the Agency
may restrict the on-site burning of metalworking and CFC-contaminated used oils
sometime in the future. All burning of used oil containing high levels of halogens
must occur in compliance with the RCRA regulations established for the burning of
hazardous waste or used oil as applicable.

D. Summary of New Part 279

   As mentioned above, today's action promulgates management standards for recycled
used oil to meet the legislative mandate of the Used Oil Recycling Act of 1980. These
standards are a combination of the 1985-proposed management standards and the
alternative management standards proposed in the 1991 Supplemental Notice. The
detailed discussion concerning applicable requirements is provided under individual
categories of used oil handlers; Tables VI.1 to VI.7 give specific regulatory
citations for the individual management standards contained in today's rule.

   1. Applicability

   a. General. As indicated in the 1991 Supplemental Notice, the used oil management
standards promulgated in today's rule will be codified in a new part 279 of Title 40
of the Code of Federal Regulations. The regulations in part 279 apply to all used
oils, regardless of whether or not they exhibit a hazardous waste characteristic. The
management standards promulgated today apply to household-generated and do-it-yourself
(DIY)-generated used oils only when these used oils are collected and aggregated. Such
used oils may be collected and aggregated at individual privately-owned or
company-owned service stations with DIY oil collection programs, auto centers or other
state or local government-approved, community-based used oil collection centers.

   Today's requirements cover all used oil handlers and all types of used oils. Table
VI.1 summarizes the general standards. EPA believes that all used oils, once
generated, must be stored properly and must enter the used oil recycling system. In
addition, as discussed below, EPA presumes that all used oils are recyclable either as
a fuel or a feedstock.

                            Table VI.1. -- Used Oil
                              [General standards]
            Requirement              New or          Regulatory citation
                                    existing
Recycling presumption                     New                       279.10(a).
Mixtures of used oil with hazar-
dous waste                           Existing                       279.10(b).
Rebuttable presumption for used oil  Existing     279.10(b)(1)(ii) and  261.3
                                                                     (a)(2)(v).
Exceptions from rebuttable pre-
sumption for CFC and metalworking
oils                                      New     279.10(b)(1)(ii) (A) and (B)
                                              and  261.3(a)(2)(v) (A) and (B).
Mixtures of used oil with non-
hazardous waste                      Existing                       279.10(c).
Mixtures of used oil with products        New                       279.10(d).
Materials derived from used oil           New                       279.10(e).
Conditional exemption -- wastewater       New                       279.10(f).
Used oil introduced into crude oil
or natural gas pipelines                  New                       279.10(g).
Used oil on vessels                       New   279.10(e)(3),  279.10(h), and
                                                                 279.20(a)(2).
PCB contaminated used oils                New                       279.10(i).
Used oil specification               Existing                          279.11.
Surface impoundment/waste pile pro-
hibition except for units operated
under Part 264/265 requirements           New                       279.12(a).
Prohibition on use as a dust sup-
pressant                                  New                       279.12(b).
Prohibition on burning in other
than certain units                   Existing                        279.12(c).

   b. Recycling presumption. The management standards in part 279 apply to all used
oils that can be recycled. EPA presumes that all used oils are recyclable and,
therefore, all used oils must be managed in accordance with the management standards
promulgated today. In the event a used oil handler disposes used oil on site or sends
for disposal, the handler must comply with the applicable regulations (e.g., determine
whether the used oil exhibits any characteristic of hazardous waste and if it does,
must manage the used oil as a hazardous waste). This provision is codified today as
subpart I of part 279. See section VI. B. for additional discussion.

   The commenters to the 1991 Supplemental Proposal overwhelmingly favored
implementation of the recycling presumption. However, many commenters stated that the
criteria provided for rebutting the recycling presumption (e.g., water content, BTU
value) would be difficult to comply with, and therefore EPA should not develop such
criteria. In addition, commenters stated that all used oils are recyclable and the
extent of recycling depends on the cost to generators. For example, if the used oil is
actually a mixture of oil and water, then the cost of recycling the mixture would be
higher than recycling used oil that is straight out of engines or from metalworking
operations. Upon further evaluation of comments, the feasibility of applying these
criteria for a rebuttal, and the analytical requirements accompanying the proposed
criteria, the Agency decided against finalizing the specific criteria for rebutting
the presumption of recycling. The Agency believes that recycling is a more viable
alternative than disposing of used oil as a characteristic waste. Therefore, used oil
handlers will react to market conditions, thus selecting recycling over disposal. The
Agency therefore has decided to rely on the decision to dispose used oil as a de facto
criterion for rebuttal of the recycling presumption promulgated today.

   c. Mixtures. The following section discusses management of mixtures of used oil and
used oil-contaminated wastes. Used oils mixed with other solid wastes or with other
materials (e.g., virgin fuel oil) are regulated as used oil under the part 279
standards.

   i. Mixtures of used oil and hazardous waste. Used oils that are mixed with listed
hazardous wastes are subject to regulation as hazardous waste under 40 CFR parts 262
through 266, 268, 270, and 124. Used oils that are mixed with characteristic hazardous
wastes may be managed as used oils under part 279 if the resultant mixture does not
exhibit a characteristic. In addition, used oils that exhibit a hazardous waste
characteristic (e.g, ignitability or toxicity) by their own nature and are not mixed
with a hazardous waste may be handled in accordance with today's part 279 used oil
management standards and are exempt from (i.e., not subject to) additional Subtitle C
requirements, if they are recycled.  n8

   n 8 The Agency is currently evaluating several options to change the hazardous
waste identification program (see 57 FR 21450; May 20, 1992). Depending upon which
option(s) the Agency promulgates for hazardous waste identification, the mixture rule
at  261.3 may be altered or abolished. Hence, the regulation of used oils that are
mixed with hazardous wastes may change.

   Mixtures of used oil and hazardous wastes generated by conditionally exempt small
quantity generators regulated under 40 CFR 261.5 are subject to regulation as used
oil. The hazardous waste from a conditionally exempt generator when mixed with used
oil generated by this entity, may cause the used oil to exceed the halogen limit under
the rebuttable presumption of mixing. This mixing has been permissible since 1985
under 40 CFR 260.40(d)(2) when used oil mixed with hazardous waste generated by a
small quantity hazardous waste generator is burned for energy recovery. The existing
requirement is recodified at 40 CFR 279.10(b)(3) today.

   ii. Mixtures of used oil and other solid wastes. EPA encourages the separation of
used oils from used oil/solid waste mixtures and from used oil-contaminated materials
prior to management of the mixture. Used oils separated from mixtures containing other
solid wastes should be recycled in accordance with the standards promulgated today.
Used oils that have been separated from mixtures with other materials or solid wastes
are subject to the management standards of part 279. For example, used oils recovered
from oil filters, industrial wipers and other absorbent materials, and used oils
recovered from scrap metals are all subject to the part 279 used oil management
standards when they are recycled. Commenters were in favor of requiring proper
management of wipers and sorptive materials contaminated with used oil, as long as the
used oil has been removed and no free-flowing oil remains associated with the solid
waste mixture.

   In the September 1991 Supplemental Notice, EPA proposed a one drop test for
determining when there is no free-flowing used oil remaining in a mixture. The Agency
has decided against using the one drop test, because EPA is unable to address the
question of how to determine when one drop is formulated. Instead, the Agency decided
to apply a free-flowing concept to mixtures of used oil and other solid wastes. The
used oil from such mixtures, when subjected to mechanical pressure devices such as
cloth wringers/squeezers or gravity draining, can easily be removed so that no
free-flowing oil remains associated with the other solid waste(s). Therefore, EPA has
decided to apply the concept of no free-flowing oil, rather than a one drop test. EPA
encourages the handlers of used oil and other solid wastes to remove used oil to the
extent possible such that there is no visible sign of free-flowing oil in the
remaining solid waste. The storage and handling of the mixtures prior to the
separation of the used oil must be in compliance with the management standards for
recycled used oil promulgated today. If any used oil that is removed from a mixture
cannot be recycled, the generator of the used oil must manage the used oil in
accordance with the disposal requirements of part 279, subpart I. Materials from which
used oils have been removed must be managed safely and in accordance with all
applicable RCRA regulations upon removal of used oil.

   iii. Mixture of ignitable solvents and used oil.  In the 1991 Supplemental Notice,
EPA requested comments on whether the Agency should allow burning of mixtures of used
oil and characteristic waste (i.e., waste exhibiting characteristics of ignitability)
such as mineral spirits as a used oil fuel. The commenters stated that the burning of
such mixtures can be performed in compliance with the used oil fuel specification
requirements. The commenters also pointed out that mineral spirits, petroleum
distillates are used in place of halogenated solvents as cleaning agents, degreasing
fluids or part-cleaning solvents in automotive and vehicle maintenance industry and
metalworking operations. The mineral spirits, petroleum distillates are then mixed
with used oil to eliminate the characteristic of ignitability and then sent off-site
for recycling as a used oil fuel. Based on the available data, the Agency has
concluded that the mixing to manage ignitable solvents appears to be acceptable,
provided the characteristic of ignitability of the ignitable solvents is removed.

   EPA believes that if the solvents are hazardous only because of ignitability, and
are not listed in part 261, subpart D, and do not exhibit the toxicity characteristic,
then mixing the solvents in with used oil should not affect the chemical constituents
or other properties of used oil. The solvents in question (i.e., mineral spirits) are
petroleum fractions, are typically used by the same businesses that generate used oil,
and are managed in a manner similar to used oil, i.e., burning for energy recovery or
distillation to recover the solvent. As such, efficient and sound management can
include mixing with used oil by used oil generators, and management by used oil
processors and re-refiners. If the mixture exhibits the characteristic of
ignitability, however, this can mean that the mixing has changed the nature of hazards
involved in managing the used oil, and this mixture should remain subject to hazardous
waste controls.

   d. Used oil fuels.  Since the final used oil burning and blending rule was
published on November 29, 1985, used oils burned for energy recovery have been
regulated under 40 CFR part 266, subpart E. Today's rule removes subpart E from part
266 and incorporates (with minor modifications) the existing management standards for
used oil marketers and burners (including the used oil fuel specification) into part
279. Used oil burned for energy recovery is subject to regulation under subpart G of
part 279, unless the used oil is mixed with hazardous waste. Mixtures of used oil and
hazardous waste that are burned as fuel for energy recovery in an industrial boiler or
furnace will continue to be subject to 40 CFR part 266, subpart H, the standards for
hazardous waste burned in boilers and industrial furnaces.  n9

   n 9 Used oil that is mixed with hazardous wastes and is incinerated (i.e. ),
burning does not include energy recovery) must be incinerated in units that are in
compliance with subpart O of 49 CFR parts 264/265. Any used oil that is incinerated in
units regulated under parts 264/265, subpart O, must be managed in accordance with all
applicable part 279 requirements prior to its incineration.

   (Note: Used oils that are identified as hazardous wastes may be burned for energy
recovery in compliance with part 279 instead of 40 CFR part 266, subpart H, provided
the used oil fuel is hazardous solely because it exhibits a characteristic of
hazardous waste by its own nature or was mixed with hazardous waste generated by a
conditionally exempt small quantity generator regulated under 40 CFR 261.5.)

   e. SPCC Program.  Today's rule regulates the storage of used oils in aboveground
tanks and containers. Used oils stored in underground storage tanks remain subject to
the standards of 40 CFR part 280. Under section 311 of the Clean Water Act, EPA has
promulgated regulations for the prevention of oil spills into navigable waterways.
These rules are known as the Spill Prevention Control and Countermeasure (SPCC)
regulations and are codified at 40 CFR part 112. The SPCC requirements apply to
non-transportation-related facilities located in the proximity of navigable waters;
they cover facilities with underground storage capacity over 42,000 gallons,
aboveground storage capacity greater than 1,320 gallons, or single tank capacity of
660 gallons. The SPCC definition of oil is very broad and covers all petroleum and oil
product-storing facilities handling waste oil, fuel oil and "oil refuse;" therefore,
persons and facilities storing used oil may already be subject to the SPCC
regulations. The used oil facilities covered under the SPCC regulations will continue
to be subject to those requirements independent of the used oil storage requirements
promulgated today for the used oil industry participants.

   The SPCC regulations are designed to address prevention of oil spills and the
associated contamination or threat of contamination of surface water. However, the
regulations do not specifically address the mitigation of discharges that contaminate
soil and/or ground water without posing a threat of contamination of surface waters.
In addition, the National Oil and Hazardous Substances Contingency Plan (NCP) at 40
CFR part 300 requires removal of oil forming a sheen on surface water but does not
require cleanup of oil-contaminated areas that do not pose a threat of contamination
of surface waters. EPA believes that approximately 50 percent of the used oil
generator universe, most of the used oil transporters and processors and re-refiners,
and more than half of the off-specification used oil burners are likely to be covered
under the SPCC program. EPA also believes that less than 10 percent of the used oil
industry participants are excluded from the SPCC program because they are not located
in the vicinity of navigable waterways.  n10 When today's used oil management
standards become effective, the aboveground used oil storage and processing tanks and
containers located at used oil transfer facilities owned or operated by used oil
collectors/transporters, used oil processing and re-refining facilities, and
off-specification used oil burner sites will be subjected to the RCRA section 3014
requirements. These used oil handlers also will be subject to the applicable SPCC
regulations in 40 CFR part 112.

   n 10 See the background document pertaining to how the costs and benefits of
today's rule were derived for a further explanation of how many facilities are not
subject to the SPCC requirements. The background document is available in the docket
for today's rule.

   f. Storage in Underground Tanks. Used oil handlers who store used oil in
underground storage tanks (USTs) n11 must comply with the standards in 40 CFR part
280. The technical standards for USTs, including USTs that are used to store used
oils, were promulgated after the 1985 proposed used oil management standards. The
Agency stated in the preamble to the UST final rule (53 FR 37112) that used oil, when
stored in underground tanks, presents risks similar to other petroleum products stored
in USTs. As a result, EPA determined that owners and operators of used oil USTs must
comply with the standards promulgated for petroleum USTs.

   n 11 In 40 CFR 280.12, underground storage tank is defined as any one or
combination of tanks that is used to contain an accumulation of regulated substances,
and the volume of which (including the volume of underground pipes connected thereto)
is ten percent of more beneath the surface of the ground.

   g. Conditional Exemptions

   i. Distillation Bottoms from Re-refining of Used Oil. As proposed in 1985, EPA is
promulgating an exemption from the part 279 standards for distillation bottoms derived
from used oil re-refining processes on the condition that the distillation bottoms are
used as ingredients in asphalt paving and roofing materials. Commenters have indicated
that the use of distillation bottoms to make asphalt paving materials is a common
practice. Commenter-submitted data also indicate that distillation bottoms from
re-refining processes do not exhibit the toxicity characteristic, and the Agency has
no data to refute this claim. Therefore, EPA sees no reason to prohibit or restrict
the use of re-refining distillation bottoms in the production of asphalt materials and
is therefore excluding used oil residuals used in this manner from the definition of
hazardous waste.

   ii. Inserting of used oil in crude oil or natural gas pipelines. Several
commenters, in response to the 1985 proposed management standards, requested that EPA
exempt upstream crude oil operations from the used oil management standards. These
commenters believed that the practice of returning used oil to the refinery through
the crude oil pipeline affords a high level of protection to human health and the
environment, and additional requirements are unnecessary. Some commenters suggested
that natural gas processing plants who may introduce used oil in the natural gas
process stream should be exempted as well.

   In response to these comments, EPA agrees that once introduced to a pipeline at
crude oil or natural gas processing facilities, the possibility of releases to the
environment is not greater for used oil than for crude oil and, therefore, is
providing an exemption from the management standards for used oils that are placed
directly into a crude oil pipeline. Similar exemption is provided to the
owners/operators of natural gas processing plants may choose to introduce used oil
generated on site into a natural gas pipeline. The exemption applies to such used oils
after the used oils are placed into the pipeline. Prior to being placed into a crude
oil pipeline, the used oils are subject to all applicable used oil management
standards promulgated today as part of part 279, including all used oil storage
requirements, because at that point, the used oil could be released through leaks or
spills, as could any other used oil.

   iii. Used oil/diesel fuel mixtures. Some used oil generators blend the used oils
they generate from the diesel-powered vehicles they own or operate with diesel fuel
for use in these vehicles. As EPA explained in the 1985 proposed rule (50 FR 49220),
this blending should result in fuel that is very low in toxic contaminants. EPA also
explained in 1985 that mixing of used oils with diesel fuel is often recommended by
diesel engine manufacturers. In addition, data available to EPA suggest that used
diesel engine crankcase oils are quite low in contaminants as generated. Since diesel
fuel is itself typically low in toxic metals, a dilution ratio that assures a high
concentration of diesel fuel to used diesel crankcase oils would seem to ensure the
resultant blended fuel will meet the used oil fuel specification. EPA also believes
that such blending is not done on a very frequent basis and the resultant blended fuel
is kept on site for use in the generator's own vehicles. Therefore, EPA is exempting
this activity from the processing and re-refining facility standards of part 279 for
generators who engage in this practice on-site and use the resultant fuel only in
their own vehicles. Such generators are, however, still subject to the generator
standards of subpart C of part 279, prior to mixing the used oils with diesel fuel,
and the resulting fuel must be managed in accordance with the used oil fuel
specification regulations.

   iv. de minimis wastewater mixtures. As proposed in 1985, the Agency has decided to
exempt wastewaters contaminated with de minimis quantities of used oil from the part
279 requirements. These wastewaters are covered under the Clean Water Act regulations.
The majority of commenters supported such an exemption. EPA is today finalizing the
definition for de minimis quantities of used oil that was proposed in 1985: "small
spills, leaks, or drippings from pumps, machinery, pipes, and other similar equipment
during normal operations or when small amounts of oil are lost to the wastewater
treatment system during washing or draining operations." As discussed above, used oils
recovered from wastewaters, however, will be subjected to the part 279 used oil
management standards and must be managed accordingly. In addition, if such wastewaters
are discharged to a surface water, the wastewater must meet all applicable NPDES
limits promulgated under section 402 of the Clean Water Act. Wastewaters discharged to
POTWs must meet the applicable pretreatment standards established pursuant to section
307(b) of the Clean Water Act.

   v. PCB-contaminated used oils. Used oils that are contaminated with PCBs and
regulated under 40 CFR part 761 are not subject to the used oil management standards
promulgated today as 40 CFR part 279. The Agency believes that the current
requirements in part 761 for PCB-contaminated wastes adequately control the management
and disposal of used oils containing PCBs.

   vi. Used Oils sprayed onto coal. When used oils are sprayed onto coal to suppress
dust during the transport of coal, the used oil/coal mixture destined for energy
recovery is considered a used oil fuel and is regulated under part 279 subpart G.
However, used oils that remain in containers (including railroad tank cars and trucks)
after the removal of the coal must be managed in accordance with all applicable part
279 standards.

   h. CERCLA Liability Exemption and Its Applicability to Service Station Dealers.
Service Station Dealers (SSDs), as defined by section 101(37) of CERCLA, will become
eligible for the exemption from CERCLA liability for recycled oil as a result of
today's rule, provided that they meet the requirements of section 114(c) of CERCLA.
The exemption is limited to generator liability under section 107(a)(3) of CERCLA and
transporter liability under section 107(a)(4); it does not cover owner and operator
liability under section 107(a)(1) and (2). The exemption applies to liability for
injunctive relief under section 106(a) and for cost recovery under section 107. In
order to qualify for the exemption, an SSD must meet the following requirement of
sections 114(c) and 101(37): (1) The SSD must be in compliance with the used oil
management standards that EPA is promulgating today, discussed in sections VI.D.2 and
VI.D.3, respectively, of the preamble; (2) the used oil must not be mixed with any
other hazardous substance; and (3) the SSD must accept "do-it-yourself" generated used
oil for recycling. Further, the exemption applies only to "recycled oil" as defined in
section 1004(37) of RCRA.

   The used oil management standards, in particular, include corrective action
requirements for used oil releases after the effective date of the rule (i.e.,
response to used oil releases). The SSD must comply with these and with other
applicable requirements, i.e., the part 280 standards for underground storage tanks,
and part 112 standards for aboveground containers and tanks, as appropriate. In
addition, the SSD complying with the corrective action requirements for underground
storage tanks used for used oil storage will become eligible for the exemption. The
exemption is not available for the SSD's own facility.

   SSDs becomes eligible to assert the exemption on the effective date of the used oil
regulations under section 3014 of RCRA that include, among other provisions, a
requirement to conduct corrective action to respond to any releases of recycled oil
under subtitle C or subtitle I of such Act. (See CERCLA section 114(c)(4).) n12
Today's rules provide for corrective action by cross-referencing subtitle I for
releases from underground tanks and the part 112 regulations for aboveground SPCC
tanks. For containers and other aboveground tanks, today's rule establishes new
requirements for responding to releases under RCRA, section 3014, a subtitle C
authority. In non-authorized States, the rules become effective (insert date 6 months
from publication). In authorized States, the rules will not become effective until the
State adopts rules under its own authorities. Prior to State adoption, an SSD may be
eligible for the exemption if it can demonstrate compliance with EPA's regulations. In
both authorized and non-authorized states, after the rules take effect, EPA would
generally not pursue an enforcement action against SSD for which the exemption
potentially applies unless it has reason to believe that the SSD is not complying with
the section 3014 regulations, or fails to meet any other conditions of CERCLA section
114(c) and 101(37). EPA will determine whether a CERCLA enforcement action is
appropriate on a case-by-case basis. EPA's determination, of course, is not binding on
other persons, including states, that might bring an action under CERCLA. In such
cases, the SSD may have to show that it has complied with the used oil management
standards and met the other conditions of section 114(c) and 101(37) through record or
other means.

   n 12 The Comprehensive Environmental Response, Compensation, and Liability Act of
1980 (Superfund) (Pub. L. 96-510), as amended by The Superfund Amendments and
Reauthorization Act of 1986 (Pub. L. 99-499), December 1986, p. 71.

   As mentioned above, EPA has determined today that SSDs must follow existing
regulations promulgated under Subtitle I of RCRA to respond to releases of recycled
oil from underground storage tanks (USTs). SSDs and other owners of underground tanks
had to begin complying with these regulations in 1988. The exemption for SSDs,
however, could not take effect until EPA determined that compliance with these
regulations would satisfy section 114(c) of CERCLA. In authorized states, the states
themselves must adopt regulations governing underground tanks. While EPA encourages
the states to rely on the subtitle I rules, the states may adopt more stringent
requirements. Hence, EPA believes that the standards for underground tanks do not
"take effect" for the purpose of the section 114(c) exemption in an authorized state
until that state adopts used oil management standards under its own authorities.

   Finally, section 101(37)(C) of CERCLA provides that the President shall promulgate
regulations further defining "service station dealer" pertaining to the "significant"
percentage of gross revenues from motor vehicle fueling, servicing including lube and
tune up, or repairing activities provided to the public on a commercial basis. The
legislative history states, "To prevent the creation and use of 'service station
dealerships' as a front for hazardous waste management firms or commercial generators
of hazardous substances that want the benefit of this exemption from liability, a
significant percentage of the business' gross revenue must be derived from the
fueling, repairing, or servicing of motor vehicles. Business operations, such as large
retail establishments or car and truck dealerships that have a legitimate, commercial
automotive service component, are intended to be covered by this definition. However,
a retail establishment that does not derive revenue from fueling, repairing, or
servicing motor vehicles does not qualify under this definition. To the extent
establishments that do not qualify under this definition produce large quantities of
used oil, they are industrial generators and are to be treated like other generators."
n13

   n 13 H. Rep. No. 99-962, 99th Cong., 2nd Sess. (1986), at 226.

   2. Standards for Used Oil Generators

   a. Applicability. The standards for used oil generators have been promulgated as
subpart C of part 279. Table VI.2 lists applicable requirements and provides
regulatory citations. These standards apply to used oil generators as defined in
subpart B of part 279. 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 changers. Household "do-it-yourselfer" used oil
generators or private individuals who generate used oil through the maintenance of
their personal vehicles are not subject to the used oil generators standards.

                          Table VI.2. -- Used Oil
                           [Generator standards]
            Requirement                New or existing        Regulatory
                                                               citation
Used oil on vessels                                    New    279.20(a)(2).
Mixtures of used oil and diesel
fuel                                                   New    279.20(a)(3).
Farmers                                                New    279.20(a)(4).
Generators who perform other man-
agement activities                                     New       279.20(b).
Hazardous waste mixing                                 New          279.21.
Type of storage units                                  New       279.22(a).
Good condition above ground tanks
and containers                                         New       279.22(b).
Labelling of tanks and containers                      New       279.22(c).
Response to used oil releases from
above ground storage units                             New       279.22(d).
On-site burning in space heaters                  Existing          279.23.
Off-site shipment                                      New          279.24.
SPCC requirements, including spill
prevention and control                Existing (applicable
                                            independently)  40 CFR part 112.
UST requirements, including cor-
rective action and financial re-
sponsibility                          Existing (applicable
                                            independently)  40 CFR part 280.
Accumulation limit                                      NA             None.
Inspection requirements                                 NA             None.
Closure                                                 NA             None.
Collection Centers:
Do-it-yourselfer collection centers                    New          279.30.
Used oil collection centers                            New          279.31.
Used oil aggregation points                            New          279.32.

   The Agency has decided to regulate all used oil generators under one set of minimum
management standards. Today's rule does not exempt any class of generators based upon
a generation rate. In the September 1991 Supplemental Notice, EPA proposed to
eliminate the regulatory distinction between small quantity and large quantity used
oil generators (the Agency had proposed such a distinction in the November 1985
proposed rulemaking). The majority of commenters who responded to the September 1991
Supplemental Notice on this issue supported the proposed elimination of the regulatory
distinction for generators.

   In the 1991 Supplemental Notice, while proposing to cover all used oil generators
under the RCRA section 3014 management standards, EPA discussed the advantages of such
an approach to the regulated community, regulating agencies, and do-it-yourself used
oil generators. The major advantages that EPA envisions are as follows. Such an
approach minimizes complexity by placing all used oil generators under uniform
regulatory requirements; it eliminates the need for measuring quantities of used oils
collected and stored each month; it eliminates the concerns that generators could be
bumped into a more stringent regulatory category if the collect DIY-generated used
oils; and above all, it allows for a system whereby all used oil is collected,
recycled, and managed in an environmentally sound manner, thus reducing hazards to
human health and the environment. Another major advantage, as discussed earlier in
section V.D.1.h., is that approximately 30,000 used oil generators who meet the CERCLA
section 114(c) "service station" definition qualify for the liability exemption if
they accept DIY-generated used oil and comply with the used oil management standards,
including corrective action (i.e., used oil spill response and clean up requirements).

   EPA decided against providing a small quantity generator exemption for the
following reasons:

    -- The generator standards established today are basic and minimal good
housekeeping practices that include maintaining all tanks and containers in good
condition, labeling tanks and containers, and cleaning up spills and releases of used
oil. They are substantially less than those proposed in 1985 and 1991.

    -- Large generators who use tanks that exceed the capacity limits and other
prerequisites established under the SPCC and UST programs are subject to the
containment and corrective action requirements in those programs. These programs
provide additional protection necessary at used oil generator sites appropriately
beyond the basic standards contained in today's rule.

    -- The collection of DIY-generated used oil would be discouraged due to the
inherent concern for generators of being bumped into a higher category (e.g., if an
exemption was set at 100 kg/mo, generators would be unwilling to accept DIY-generated
used oils because of the concern that the additional quantities of used oil would
require them to comply with the management standards).

    -- Generators may have to keep records of used oil generation activities to
demonstrate that they qualify from an exemption. It is probable that some generators
may dump used oil to show that they only generate a quantity of used oil that is less
than the quantity limit for defining a small quantity used oil generator.

    -- An extensive education and outreach program would be necessary to explain the
interface between the used oil generator exemption and the CERCLA liability exemption.

    -- Existing mismanagement practices at certain generator sites would continue,
resulting in ongoing risks to human health and the environment.

    -- As discussed in Section X of this preamble, the costs of compliance are
relatively small on a per facility basis, even though total costs to generators may be
39 to 66 percent of the total costs to the regulated community.

   b. Used oil generated on ships. In the case of used oils generated by ships or
vessels (as defined in 40 CFR 260.10), these used oils are not subject to the used oil
management standards until the used oils are transported ashore. When used oils are
removed from a ship or vessel and taken ashore, the owner or operator of the ship or
vessel and the person or persons removing or accepting the used oil from the vessel
are co-generators of the used oil and both parties are responsible for managing the
used oil in accordance with the used oil generator standards in subpart C of part 279.
The co-generators may decide which party will fulfill the requirements of subpart C.
Bilge water that contains used oil but does not contain listed hazardous waste when
brought ashore must be managed in compliance with the generator standards in today's
rule prior to subjecting it to separation steps that use oil/water separators. Bilge
water containing listed hazardous waste is subject to RCRA subtitle C regulations once
brought ashore. EPA believes that large quantities of bilge water are not generally
stored for an extended period but are processed soon after their arrival on the shore.
After separation the used oil portion of the bilge water must be maintained in
compliance with the used oil generator standards. The remaining wastewater separated
from bilge water must be managed in accordance with the applicable RCRA regulations
and any discharged is subject to applicable Clean Water Act regulations. (See 
279.10(e)(3) and 279.20(a)(2).)

   c. Management of Materials Contaminated with Used Oil. As discussed above, used oil
that is mixed with a hazardous waste must be managed as a hazardous waste in
accordance with all applicable RCRA requirements. Persons who generate mixtures of
used oil and other materials or solid wastes (e.g., used oil filters, rags, sorptive
minerals, sorbent materials, scrap metals) are subject to part 279. Used oil removed
from mixtures must be managed in accordance with the requirements of part 279 and
either sent off-site for recycling or reused on-site. If the used oil removed from the
mixture cannot be recycled, the generator must comply with the requirements of subpart
I of part 279 for disposal of the used oil. Mixture of used oil and solid waste (e.g.,
natural or synthetic sorbent materials) from which used oil can not be separated when
burned for energy recovery is subject to used oil specification fuel requirements.

   After separating used oils from other materials or solid wastes, the remaining
material or solid waste must be managed in accordance with any and all applicable RCRA
requirements. The generator must determine whether or not the materials that
previously contained used oil exhibit a characteristic of hazardous waste (with the
exception of non-terne-plated used oil filters; see 57 FR 21534), and if so, manage
them in accordance with existing RCRA controls. If the material does not exhibit a
hazardous characteristic (and is not mixed with a listed hazardous waste) then the
material can be managed as a solid waste.

   d. On-Site Management of Used Oil. As discussed above, generators who blend used
oil with diesel fuel for use in their own vehicles need not manage the used oil/diesel
fuel mixture in accordance with the generator requirements of part 279. EPA believes
that used oil/diesel fuel mixtures should be stored properly to ensure against
possible spills, fire, and explosion hazards. Prior to mixing with diesel fuel, these
used oils are subject to the part 279 generator standards. Generators may use such a
mixture in their own vehicles.

   Used oil generators who dispose of used oil on-site must test the used oil or apply
their knowledge to determine whether or not the used oil exhibits a hazardous waste
characteristic. If the used oil exhibits a characteristic of hazardous waste, the used
oil must be disposed in accordance with all applicable RCRA requirements. When
disposing used oil that cannot be recycled, the generator must comply with subpart I
of part 279, relating to proper management and disposal of used oils. Used oil
generators processing used oil on site are subject to standards for used oil
processors/re-refiners promulgated today.

   e. On-Site Storage. Used oil generators are required to store used oil in tanks or
containers and must maintain all tanks and containers in good operating condition. In
maintaining all tanks and containers in good condition, generators must ensure that
all tanks and containers are free of any visible spills or leaks, as well as
structural damage or deterioration.

   Generators storing used oil in aboveground tanks and containers must clearly label
all tanks and containers with the term "used oil." Generators who store used oil in
underground tanks must label all fill pipes with the words "used oil." The labeling
requirements are meant to assist generator employees in identifying all tanks and
containers used to store used oil and to avoid unintentional mixing. In the 1985
proposed rule, EPA solicited comment on a requirement to label all used oil tanks and
containers with the words "recycled oil." Commenters overwhelmingly responded that
such a term would be confusing because tanks and containers are used to store used oil
before it is recycled. Therefore, the majority of commenters favored labeling used oil
storage units with the words "used oil."

   Used oil generators who are covered under the Spill Prevention, Control, and
Countermeasure (SPCC) program will continue to be subject to the requirements of 40
CFR part 112. Similarly, generators storing used oil in underground storage tanks
(whether or not the used oil exhibits any characteristics of hazardous waste) must
comply with the standards in 40 CFR part 280, which are independently applicable and
enforceable. As discussed in the Supplemental Proposal, technical standards for
underground storage tanks (USTs) have been promulgated since publication of the 1985
proposed rule. The Agency stated in the preamble to the UST final rule (53 FR 37112;
September 23, 1988) that EPA believes that used oil, when stored in underground tanks,
presents risks similar to other petroleum products stored in USTs. As a result, EPA
determined that owners or operators of used oil USTs (including used oil generators)
must comply with the tank upgrading, operation and maintenance, corrosion protection,
corrective action, closure, and financial responsibility requirements promulgated
under part 280 for other petroleum product USTs. The Agency believes that the Subtitle
I standards are sufficient to protect human health and the environment from potential
releases of used oil from USTs. In addition, commenters to the 1991 Supplemental
Notice felt that subjecting underground storage of used oil to standards beyond those
in part 280 was unnecessarily burdensome and duplicative.

   Storage of used oil in lagoons, pits, or surface impoundments is prohibited, unless
the generator is storing only wastewaters containing de minimis quantities of used
oil, or unless the unit is in full compliance with 40 CFR part 264/265, subpart K. The
Agency believes that such units do not provide adequate protection of human health and
the environment against potential releases and damages. In fact, the Agency has
documented numerous cases of environmental damage from the storage of used oil in
these units (see Environmental Damage from Used Oil Mismanagement, Final Draft Report,
U.S. EPA, August 30, 1991, which is available in the docket for today's rule).

   f. Response to Releases. Whenever a release occurs to the environment from the
aboveground storage tanks and containers, a used oil generator must respond in a
timely manner by taking the following steps: (1) Stop the release, (2) contain the
released used oil, (3) clean up and properly manage released used oil and materials
used for cleaning up/containing the release, and (4) remove the tank or container from
service, repair, or replace the tank or container before returning it to service.

   This above requirement applies only when there is a release to the environment.
Under this rule, this would not include releases within contained areas such as
concrete floors or impervious containment areas, unless the releases go beyond the
contained areas. EPA believes that used oil spills or leaks occurring at generator
facilities in an area with a concrete floor inside a building (e.g., in service bays,
maintenance garages, metalworking and fabricating locations) are cleaned up upon
discovery as a general operating practice using appropriate sorbent materials before
the used oil reaches the environment. Such clean up operations prevent the potential
contamination of unprotected soils in the vicinity of the storage and work areas. The
facility owners or operators must make sure that adequate quantities of sorbent
materials are available on site all the time and is used to contain spills or leaks
occurring during the normal activities.

   The response to release provision does not require clean up of past releases to the
environment which occurred prior to the effective date of the used oil program within
an authorized state in which a used oil facility is located. Releases of used oil from
underground storage tanks are subject to the requirements of 40 CFR part 280, subpart
F independently as applicable.

   In addition to the provisions listed above for releases of used oil from
aboveground tanks and containers, and in addition to the corrective action
requirements for releases from USTs provided in 40 CFR part 280, subpart F, used oil
generators are required, under CERCLA section 103, to report a release of hazardous
substances to the environment when the release is equal to or in excess of the
reportable quantity (RQ) for the particular substance. Used oils that are contaminated
with CERCLA hazardous substances (e.g., due to the presence of elevated levels of
lead) contain CERCLA hazardous substances. Therefore, releases of such contaminants
(e.g., lead) into the environment in quantities greater than the reportable quantity
must be reported to the National Response Center. The current RQs for contaminants are
listed in 40 CFR 302.4. In addition, under 40 CFR part 110, any discharge of oil that
violates applicable water quality standards or causes a film or sheen on a water
surface must be reported to the National Response Center.

   g. Off-site transport. Used oil generators are required to ensure that all
shipments of used oil in quantities greater than 55 gallons are transported off-site
only by transporters who have an EPA identification number. Used oil generators may
transport, in their own vehicles, up to 55 gallons of used oil, that is either
generated on-site or collected from DIY used oil generators, to a DIY used oil
collection center, used oil collection center, or aggregation point (e.g., one that is
licensed or recognized by a state or municipal government to manage used oil or solid
waste). A used oil generator is not required to obtain an EPA identification number
for this off-site transportation activity. A generator may also self-transport up to
55 gallons of used oil, in the generators's own vehicle, to an aggregation point owned
by the used oil generator without obtaining an EPA identification number. EPA selected
55 gallons as a cut off quantity because that is the size of one drum. Also, the
Agency feels that any quantity of used oil less than 55 gallons cannot be economically
collected and transported by a used oil transporter.

   The DIY used oil collection centers, used oil collection centers, and aggregation
points referred to above are recognized by EPA as separate and legitimate entities in
the used oil management system. Definitions of these terms are provided in  279.1 and
all three types of facilities fall within the definition of used oil generator. A used
oil collection center is any site or facility registered/licensed/permitted/recognized
by a state/county/municipal government to collect used oil from regulated generators
prior to its pickup by a used oil transporter with an identification number for
offsite recycling. EPA believes that these facilities handle small quantities of used
oil on an occasional basis and local government would monitor their operations and
make sure that these sites are operating per the local-government specified
guidelines. Such used oil collection centers must use used oil transporters with EPA
identification number when sending used oil for offsite recycling.

   Used oil collection centers may accept used oils from DIY generators as well as
regulated used oil generators ( in quantities less than or equal to 55 gallons per
shipment). EPA believes that used oil quantities of less than 55 gallons (i.e.,
content less than a 55-gallon drum/container) are unlikely to be accepted by the used
oil collectors/transporters for offsite shipment.

   A used oil collection center accepting only do-it-yourself generated used oil for
recycling also must comply with the generator standards of part 279, subpart C. These
DIY collection centers may or may not be recognized by the State or county/local
authorities to accept DIY oil. DIY collection centers are centers that are not
authorized to accept used oil from regulated generators. They are generally operated
by voluntary organizations or local authorities as convenient "drop off" places for
consumers to bring in their crankcase oil for recycling or proper disposal, similar to
other household generated hazardous waste (e.g., paint thinners, degreasing fluids,
over cleaners, insect killers). These establishments may be temporary by nature (e.g.,
parking lots, schools, government office buildings). DIY collection centers that are
operated to encourage DIY recycling are not equipped to handle or collect large
quantities of used oil brought in for a drop-off by non-DIY generators. These centers
have few drums/containers to collect small quantities of used oil stored in a milk jug
or oil can/bottle, that are brought in for recycling by individual households. An
example of a DIY used oil collection center is a site run by a state or municipal
program established to collect used oil from commercial and household generators, such
as Project ROSE in Alabama. Unlike used oil transfer facilities, DIY collection
centers handle small quantities of used oil generated by DIYers on an occasional basis
and after collection send the DIY used oil for off-site management.

   A used oil aggregation point is any site or facility where an individual generator
aggregates and/or stores shipments of used oil generated at any of several generation
sites owned by the same generator. Aggregation points also may accept DIY-generated
used oil. The major distinction between collection centers and aggregation points is
that aggregation points and the generation sites from which they collect used oil are
under common ownership. EPA views aggregation points of used oil generators, DIY
collection centers, and used oil collection centers as similar to on-site facilities
of used oil generators and, therefore, is subjecting them to the generator standards
in subpart C of part 279.

   EPA believes that it is necessary to allow used oil generators to self-transport
small quantities of used oil to off-site collection centers or aggregation points to
encourage generators of small quantities of used oil, and generators who have several
generation points, but generate very small quantities of used oil at one or a few of
the generator's sites, to recycle their used oils. EPA believes that used oil
aggregation points are convenient drop-off point for satellite generator sites
operated under the common ownerships. Used oil management at these aggregation points
must be in compliance with the used oil generators standards and used oil must be send
for offsite recycling using a used oil transporter with an EPA identification number.

   If generators of small quantities of used oil were required to offer these small
quantities of used oil to a used oil transporter with an EPA ID number, the cost of
employing the transporter may discourage the generator from recycling the used oil. In
addition, some used oil transporters may only accept shipments of used oil above a
certain quantity. Therefore, by providing this self-transporting provision, EPA
believes that generators who generate small quantities of used oil in any one calendar
month will be discouraged from storing used oil on-site for long periods of time, or
from disposing of the used oil. In addition, EPA believes that the risk of spills from
transporting such small amounts of used oil is relatively low, thus, specific tracking
of such shipments is unnecessary to protect human health and the environment.

   h. Accumulation limit. Although EPA proposed, both in 1985 and in 1991, to restrict
the accumulation of used oils stored by used oil generators, today's rule does not
contain an accumulation limit for such used oil storage. EPA has decided not to impose
an accumulation limit on generator storage since some amount of used oil is almost
always stored at generator sites. Also, since used oil is a marketable commodity,
there is an incentive for generators to send used oil off-site for recycling rather
than storing it on-site for prolonged periods. EPA believes that used oil is not
stored at the generator sites for a prolonged period since long-term storage requires
purchasing of additional storage units for increasing storage capacity. This may
result in additional costs to businesses or it may require that they comply with other
federal or state regulations or local ordinance requirements.

   i. Tracking requirements. In the 1991 Supplemental Notice, EPA proposed three
options for the tracking of used oil from generators to used oil recycling facilities
(e.g., processors, re-refiners, burners) to ensure that all shipments of used oil
reached recyclers of used oil. Commenters favored the concept of tracking shipments of
used oil. Since the 1991 Notice, EPA has re-evaluated the proposed tracking
requirements and the public comments. EPA also considered the costs associated with
the tracking options for generators and the associated paperwork burden. In addition,
EPA re-evaluated the recordkeeping requirements for used oil generators and assessed
the information maintained by generators in normal operating records. Based on these
analyses, EPA has determined that information maintained by used oil transporters will
provide sufficient records of used oil transport activities without burdening used oil
generators with additional tracking requirements. Information collected when accepting
used oil shipments, such as quantities and type of used oil collected, the name and
location of used oil generators, and analytical data for the rebuttable presumption,
would be maintained by the used oil collectors/transporters as part of the
recordkeeping requirements finalized today. Using this information maintained by used
oil transporters, the Agency can track a used oil generator, if needed. Therefore, the
Agency has eliminated the proposed tracking requirements for used oil generators. EPA
believes that used oil generators maintain used oil collection and shipment records as
standard business information.

   j. Inspection requirements. In the 1985 and 1991 proposals, EPA proposed daily
inspection requirements for used oil generators to assure the discovery of used oil
spills and releases at used oil generator facilities. Commenters opposed the proposed
daily inspection requirements. Most of these commenters claimed that when generators
are loading/transferring used oils, they check for leaks and spills and take
appropriate action at that time to clean up the released oil and contaminated
materials. Transferring operations do not occur daily at generator sites. SPCC
inspection and clean up requirements will be applicable independently.

   k. Closure Requirements. In the 1985 and 1991 proposals, EPA considered deferring
closure requirements for used oil generators, based on the lack of risk data
supporting the need for closure requirements at generator sites. Since 1991, while
reviewing the available Superfund site information and RCRA enforcement case data, the
Agency has not located any damage information specific to generator sites. This leads
the Agency to believe that damages at used oil generator sites are not a substantial
concern (i.e., have not resulted in environmental damage of a significant magnitude
that it has resulted in the site being identified as the NPL site). Therefore, the
Agency believes that closure requirements for used oil generator sites are unnecessary
at this time, hence EPA is deferring such requirements.

   l. Exemption for Small Farmers. In response to comments expressing concern over the
expansion of RCRA requirements to small farmers generating used oils from heavy
farming equipment, machinery, and vehicles, EPA is providing an exemption from the
generator standards for small farming operations that generate on an average 25
gallons or less of used oil per month in a calendar year. EPA is providing this
exemption to these generators because EPA believes that most of these generators,
especially family farms, are similar to households, whose solid waste management is
unregulated under RCRA. Family-run and other small farms are similar to households in
a number of ways: They tend to have about the same number of vehicles owned for
personal use; they tend to service and maintain their family-owned vehicles and heavy
farming equipment on-site; and, indeed, small farms typically have residences on-site
which generate used oil and other exempt household wastes. Also, unlike small
industrial generators who usually are located within close proximity to used oil
collection centers or who can easily arrange for used oils to enter the used oil
recycling system via a used oil transporter, many family farms and other small farming
operations are not readily accessible to collection centers. They may be using used
oil on site in space heaters for heating purposes during the winter months and hence,
do not accumulate more than 25 gallons of oil per month on average which can be
provided to used oil transporters for recycling. Therefore, EPA believes that small
farms who generate on an average 25 gallons or less per month of used oil in a
calendar year should be exempted from regulation, as are households.

   EPA has set the generation limit for the small farmer exemption at, on an average,
25 gallons or less of used oil per month in a calendar year to exempt only small farms
that may have special difficulties in locating a used oil recycling center or in
otherwise recycling the used oils they generate. The 25 gallon cutoff is roughly
equivalent to the more general SQG exemption for used oil generators the Agency had
considered in the 1985 and 1991 proposals and the 100 kg/month exemption for the
conditionally exempt small quantity generators of hazardous waste. EPA believes that
small farms will have few pieces of equipment and thus generate only small amounts of
used oil. Of the approximately two million farms in the U.S., over 99 percent would be
exempt under this provision. Finally, since small farms pose similar problems for the
used oil management system as DIY from households, EPA believes it may be more
appropriate to consider non-regulatory alternatives to encourage the collection of
used oils from small farms, rather than the management standards promulgated today.

   EPA's intention in providing this exemption is not to exempt large farming
operations or businesses from today's standards. EPA believes that large farming
operations do not face the same difficulties in recycling the used oil they generate
and these operations are better able to provide the used oils they generate to the
used oil recycling system. The Agency is aware of current activities undertaken by
brokers who are involved in collecting used oil generated by large farming operations
and business.

   EPA encourages small farmers, as well as household used oil generators, to recycle
their used oil, and when available, to participate in community collection programs or
used oil collection facilities by cooperatives, brokers, etc. As is the case with used
oils collected from households, used oil that is collected from these farms at used
oil collection centers and DIY-collection centers is subject to the part 279 standards
when collected and accumulated at these collection centers.

   Any use of used oil that can be construed as application to land (e.g. weed
killing, spraying on plants) that is performed by exempt farming operations (or
others) is discouraged since EPA is concerned with long term impacts of land
application of used oil on the environment. Also, exempted farmers may be subject to
state regulations that may limit such practices.

   3. Standards for Used Oil Transporters

   a. Applicability. A used oil collector/transporter is any person or business who
collects used oil from more than one generator or transporter or a generator who
transports shipments of more than 55 gallons of used oil and transports the used oil
off-site to another party or establishment for recycling, disposal, or continued
transport. Used oil generators who transport shipments of used oil in their own
vehicles, in quantities of 55 gallons or less (i.e., a drum/container holding this
quantity) to used oil collection centers or aggregation points n14 are not within the
definition of a used oil transporter. Household do-it-yourselfers who transport used
oil to generators, collection centers, or aggregation points also are not included in
the definition of a used oil transporter. Table VI.3 lists requirements for used oil
transporters and provides the regulatory citations.

   n 14 Used oil collection centers and aggregation points are defined in Subpart A of
Part 279.

                          Table VI.3. -- Used Oil
               [Transporter and transfer facility standards]
         Requirement            New or existing      Regulatory citation
General requirements                          New    279.40(a) through (c).
Transporters who perform
other management activities                   New                279.40(d).
Restriction on processing
used oil                                      New                   279.41.
Notification and EPA identi-
fication number                Existing for tran-
                                 sporters who are
                               marketers; new for
                                           others                   279.42.
Used oil deliveries                           New                279.43(a).
DOT requirements                 Existing (appli-
                               cable independent-
                                              ly)                279.43(b).
Used oil discharges                           New                279.43(c).
Rebuttable presumption for
used oil                       Existing for tran-
                                sporters managing
                               used oil fuel; new
                                       for others  279.44(a), (b), and (c).
Exceptions from rebuttable
presumption for CFC and me-
talworking oils                               New     279.44(c)(1) and (2).
Record retention for rebut-
table presumption                             New                279.44(d).
Recordkeeping                                 New                279.44(d).
Storage limit                                 New                279.45(a).
Type of storage units                         New                279.45(b).
Good condition above ground
tanks and containers                          New                279.45(c).
Secondary containment for
containers and existing and
new above ground tanks                        New   279.45(d), (e) and (f).
Labelling of containers and
tanks                                         New                279.45(g).
Response to releases                          New                279.45(h).
Tracking -- acceptance, deli-
veries, export, and record-
keeping                        Existing for tran-
                                 sporters who are
                                   marketers (in-
                                 voices); new for
                                           others  279.46(a), (b), and (c).
Tracking -- exports                           New                279.46(d).
Management of residues                        New                   279.47.
SPCC requirements, including
spill prevention and control     Existing (appli-
                               cable independent-
                                              ly)           40 CFR part 112.
UST requirements, including
corrective action and finan-
cial responsibility              Existing (appli-
                               cable independent-
                                              ly)           40 CFR part 280.
Inspections                                  None                      None.
Closure                                      None                      None.

   Owners and operators of used oil transfer facilities are also defined as used oil
transporters. A used oil transfer facility is any transportation-related facility
where used oil shipments are held for more than 24 hours during the course of normal
transport prior to final transport to another transfer facility(ies), a used oil
processor/re-refiner, or a used oil burner. Transfer facilities include such areas as
loading docks, parking areas, and tank and container storage facilities. All used oil
transporters are required to comply with the standards promulgated in subpart E of
part 279. In addition, used oil transporters who also handle other hazardous waste
must be in compliance with all applicable RCRA subtitle C regulations for hazardous
waste transporters.

   Used oil transporters who process used oils (including blending used oils with
virgin oils) are subject to the standards for used oil processing and re-refining
facilities in subpart F of today's rule.

   Any person who transports used oil in a vehicle previously used to transport
hazardous waste must ensure that the vehicle meets the definition of an empty
container per 40 CFR 261.7 prior to transporting used oil. If the transporter does not
comply with  261.7, the used oil shipment is considered to be a hazardous waste and
must be managed accordingly. The definition of "empty" requires that all non-acutely
hazardous wastes be removed using common industry practices and that no more than 0.3
percent of the waste by weight remain in containers greater than 110 gallons and no
more than 3 percent by weight remain in containers with a capacity of less than or
equal to 110 gallons.

   Transporters who import used oil into the United States and transporters who export
used oil to points outside of the United States are subject to the used oil
transporter requirements of subpart E of part 279 from the time the used oil enters
the United States until the time the used oil exits the borders of the United States.

   b. Restrictions. Used oil transporters are prohibited from blending used oils with
virgin oil to meet the specification levels for used oil fuels in  279.11. If an
owner or operator of a transfer facility conducts any used oil processing, including
blending to market the used oil as a fuel, the owner/operator must comply with the
requirements provided for used oil processors and re-refiners in part 279, subpart F.
EPA clarifies here that blending different used oils together to consolidate shipments
is allowed by used oil transporters. The only blending activity that transporters are
prohibited from undertaking is the blending of used oils with virgin oils to meet the
fuel specifications. EPA has determined that "incidental processing" (e.g., settling)
that may occur at transporter sites when used oil is in storage does not pose any
risks similar to those associated with processing of used oil. EPA considers
"incidental processing" at transporter facilities during shipment consolidation or
transfer not to be equivalent to blending or processing of used oil to meet the
specification requirements for used oil fuels. Consolidation for a purpose of
collecting a shipment full of used oil to transfer to a used oil processor/re-refiner
does not necessarily require any treatment. When a used oil transporter markets a
consolidation of different loads of used oil as an on-specification used oil fuel to
non-industrial boilers and furnaces, the transporter must comply with the 1985
marketer requirements (e.g., claiming that it meets the specification levels for used
oil burned for energy recovery) recodified in part 279 today. A transporter may market
used oil as off-specification fuel upon consolidation of different loads of used oil
without making any specification claims and must comply with the 1985-established
requirements for marketers of off-specification used oil that are recodified in part
279 today.

   c. Notification Requirements. Any used oil transporter who has not previously
complied with the notification requirements of RCRA section 3010 must do so and obtain
an EPA identification number. An EPA identification number can be obtained by
submitting EPA Form 8700-12 to the appropriate EPA Regional Administrator or State
Director. An EPA identification number also can be obtained by submitting a letter to
the EPA Regional Administrator requesting an EPA identification number and containing
the following information: Company name, name of the owner of the transporter company,
mailing address, telephone number and address of the point of contact, type of
transport activity (e.g., transporter only, transfer facility, or transporter and
transfer facility), location of transfer facilities, and the name and phone number of
the contact at each transfer facility. Upon receipt of a completed notification form,
EPA will provide the transporter with a unique 12-digit identification number, which
is required to transport used oil. Transporters who have previously notified the
Agency of their hazardous waste activities (or notified EPA under the 40 CFR part 266,
subpart E used oil fuel regulations) and received an EPA identification number need
not renotify.

   d. Delivery of Used Oil Shipments. A used oil transporter is required to ensure
that a shipment of used oil reaches an "authorized" used oil processing or re-refining
facility, a used oil burning facility, or another used oil transporter. Entities
deemed to be authorized are used oil processing and re-refining facilities subject to
part 279, subpart F; used oil burning facilities in compliance with part 279, subpart
G; hazardous waste management facilities with a permit or interim status; part 258
disposal facilities; or another used oil transporter who has an EPA identification
number.

   A transporter who markets used oil fuels must comply with the used oil marketer
requirements of 40 CFR part 279, subpart H. In the event a transporter undertakes this
activity, the transporter must comply with the recordkeeping (invoicing) requirements
of  279.74.

   e. Shipping requirements. Transporters and collectors are required by existing U.S.
Department of Transportation regulations to meet certain standards if the used oil is
a hazardous material, including all applicable packaging, labeling, and placarding
requirements in 49 CFR parts 173, 178, and 179. In addition, under today's rule, used
oil transporters and collectors must clean up any used oil discharge that occurs
during transportation or take such action as may be required or approved by Federal,
state, or local officials so that the used oil discharge no longer presents a hazard
to human health or the environment. The Agency believes that these provisions are
necessary to reduce the potential impacts of used oil that could be released into the
environment.

   f. Used oil storage at transfer facilities. A used oil transfer facility is defined
in 40 CFR 279.1 as "any transportation related facility n15 including loading docks,
parking areas, storage areas, and other similar areas where shipments of used oil are
held during the normal course of transportation for a period longer than 24 hours but
not exceeding 35 days." A transfer facility is regarded as a site for the temporary
storage of used oil that is picked up from one or more original generators and is on
its way (1) to a processing or re-refining facility for further processing to produce
used oil fuel, non-fuel recycled oil products, or lube oil feedstock; (2) to be
reintroduced into refinery operations; or (3) to be burned as a used oil fuel. Storage
of used oil at a transfer facility for a period exceeding 35 days will cause the
transfer facility to become subject to the standards for used oil processors and
re-refiners in subpart F of part 279.

   n 15 For facilities subject to the SPCC regulation, the term
"transportation-related" is defined in Appendix I of 40 CFR part 112.

   The requirements established today cover all used oil transfer facilities
owned/operated by used oil transporters regardless of their location and regardless of
the size of any single tank at the facility or the total storage capacity of the
facility. The SPCC (40 CFR part 112) and UST (40 CFR part 280) requirements are
independently applicable to such facilities.

   EPA believes that some regulatory controls are necessary to ensure proper
management of used oils at used oil transfer facilities. Improper management at these
facilities could allow for the release of used oil to the environment, cause spills
during transfer and loading/unloading operations, or result in the inadvertent
adulteration of used oil with hazardous waste while in storage or in transit. To
prevent such mishaps, EPA is adopting "good housekeeping" standards for transfer
facilities to ensure that units (containers and tanks) used to accumulate and/or store
used oil are kept in good condition and to minimize potential releases of used oil to
the environment.

   Storage of used oil at a transfer facility must occur only in containers and
aboveground or underground tanks. EPA believes that storage of used oil in units other
than containers or tanks (e.g., surface impoundments or lagoons) at transfer
facilities does not occur since transfer facilities are typically temporary storage
areas where used oil is stored for periods of very short duration. Furthermore, as
discussed elsewhere in today's notice, EPA believes that storage of used oil in
surface impoundment is generally a poor practice. Thus, EPA believes it is appropriate
not to allow it at transfer facilities. EPA believes that transfer facilities are not
likely to hold used oil in surface impoundments but in case, such use occurs only
surface impoundments that are in compliance with parts 264/265 requirements can be
used for used oil storage. Today's rule prohibits the use of an unlined surface
impoundment for used oil storage.

   All aboveground tanks n16 and containers at transfer facilities must be kept in
good condition (i.e., no visible signs of deterioration or leaks) and containers must
be in compliance with all applicable DOT regulations. Aboveground tanks and containers
and all fill pipes for underground used oil storage tanks must be clearly labeled with
the words "used oil" to minimize accidental mixing. In addition, the storage areas
around aboveground tanks and under the storage containers must be equipped with
oil-impervious floors and secondary containment structures (dikes and berms or
retaining walls) capable of containing all potential spills and releases of used oil
until the discovery and cleanup of spills and releases.  n17 The floor under existing
storage tanks must cover the entire area within the dike, berm or retaining wall
except areas where portions of existing tanks meet the ground. EPA has determined that
it is not necessary to require retrofitting of the floors of the existing tanks that
are in good condition; it is not necessary to remove tanks temporarily to install an
impervious floor directly beneath an aboveground tank that is in good condition. Any
releases from the walls of existing tanks will be captured within the containment area
and will be removed, while releases to the area outside of the containment area must
be cleaned as required by today's release response requirements. EPA believes that
used oil releases from tank overfills, spills, and loading/unloading activities are
more likely than from the bottom of a tank or due to the loss of structural integrity
of a tank.

   n 16 Aboveground tank is defined in  279.1 as a tank used to store or process used
oil that is not an underground tank as defined in part 280.

   n 17 For further discussion of the basis for the secondary containment requirement
and the materials suitable for constructing impervious floors and dikes, berms, or
retaining walls, see section VI.E.5. of today's preamble.

   However, the floor surrounding the area where the tank meets the ground must be
impervious to oil. When installing new aboveground tanks, replacing damaged or
deteriorated tanks, or reinstalling unfit tanks after restoring the structural
integrity, an impervious floor under the aboveground tanks must be installed. This
requirement is applicable to the aboveground tanks that are existing when the states
adopt the part 279 used oil management standards and when the state rule containing
the Federal used oil management standards takes effect. The impervious floor under new
storage tanks must cover the entire area within the containment structure. The
effective date is the same as that discussed for existing tanks.

   In the 1985 proposed rule and in the 1991 Supplemental Notice, EPA proposed
secondary containment requirements for used oil storage tanks that are similar to the
secondary containment provisions of 40 CFR part 264, subpart J. The Agency received a
substantial number of public comments that disagreed with EPA's proposed secondary
containment requirements. Most commenters disagreed with the proposed secondary
containment provisions on the basis that the cost of full secondary containment for
tanks and containers would be prohibitive for most used oil generators and
transporters. The secondary containment requirements promulgated today for aboveground
tanks and containers are substantially less burdensome, both technically and
financially. Although these requirements will still impose some costs upon used oil
transporters, the Agency believes that some level of secondary containment is
necessary at transfer facilities to protect human health and the environment from
potential used oil spills and releases. In fact, as documented by the Agency in the
background documents supporting this final rule, past storage practices at used oil
management facilities, including transfer facilities, have resulted in releases of
used oil to the environment and, in some cases, substantial damages to human health
and the environment.  n18 EPA believes that the secondary containment requirements
established today adequately protect against used oil releases to ground water and the
existing SPCC requirements provide protection against spills reaching navigable
waters. EPA has determined that secondary containment requirements similar to those in
40 CFR parts 264/265, subpart J are not necessary since the requirements promulgated
today will effectively contain any spilled or released used oil within the containment
structures. Also, the requirement that the entire containment structure be made of a
material impervious to used oil will prevent the migration of used oil to soils,
surface waters, and ground water.

   n 18 See "Summary Descriptions of Sixty-Three 'Used Oil' Superfund Sites" and
"Summary Descriptions of Used Oil-Related Damages at RCRA-Permitted Facilities."

   Although the secondary containment requirements promulgated today are somewhat less
burdensome than those required under 40 CFR parts 264/265, subpart J, any used oil
transfer facility that is currently in compliance with the subpart J requirements
(e.g., the facility has double-walled tanks with double-walled or otherwise contained
pipes) will be deemed in compliance with the secondary containment requirements
promulgated today. EPA does want to clarify that all aboveground tanks or containers
must be within a secondary containment structure that is impervious to used oil and
capable of preventing the migration of used oil spills or releases to the environment.

   An April 29, 1992, memorandum from EPA's Assistant Administrator for Solid Waste
and Emergency Response n19 addresses aboveground storage tank technologies that may be
used to provide secondary containment at SPCC-regulated facilities. The memorandum
states that alternative aboveground storage tank systems that have capacities
generally less than 12,000 gallons may provide protection of navigable waters
substantially equivalent to that provided by the secondary containment systems listed
in 40 CFR 112.79(c) of the SPCC regulation. An example of an alternative aboveground
storage tank system that generally would provide substantially equivalent protection
of navigable waters is a shop-fabricated double walled tank installed and operated
with overfill prevention measures that include an overfill alarm, an automatic flow
restrictor or flow shut-off, and constant monitoring of all product transfers
including used oil. Used oil tanks meeting with the secondary containment equivalency
discussed in the memorandum of April 29, 1992, are considered to be in compliance with
the secondary containment requirements for aboveground tanks established in today's
rule.

   n 19 See memorandum from Don R. Clay, Assistant Administrator, to EPA Regional
Directors regarding "Use of Alternative Secondary Containment Measures at Facilities
Regulated under the Oil Pollution Prevention Regulation (40 CFR part 112)," April 29,
1992.

   g. Storage Limit. Commenters to the 1985 proposed rule felt that the proposed
10-day limit on storage at transfer facilities was too short a period of time to
accumulate and consolidate sufficient amounts of used oil for cost effective
transportation. The Agency agrees with the commenters. In 1991, EPA proposed an
alternative time limit (e.g., 35 days) as a limit specifying the length of time of
which used oil must be delivered to the final destination (e.g., processors,
re-refiners, or burners). Based on the favorable comments, EPA believes that at
transfer facilities, used oil storage in normal course of operation typically occurs
for less than 35 days. The Agency, therefore, has decided to allow used oil storage
for no more than 35 days at transfer facilities. A transfer facility at which used oil
is stored for more than 35 days must comply with the requirements finalized today for
processing/re-refining facilities established under the 40 CFR part 279, subpart F.
Also, EPA notes that the 35-day storage limit applies to the in-use storage tanks at
transfer facilities and does not apply to the abandoned aboveground storage tanks used
to store used oil, or to such tanks taken out of service. The requirements for the
abandoned storage tanks are those currently in effect. For example, the
owners/operators of transfer facilities must evaluate residues left in aboveground
tanks taken out of service to make a hazardous waste determination (i.e., whether the
residues exhibit characteristics of toxicity, ignitability, corrosivity, or
reactivity). If an aboveground tank at a transfer facility contains a hazardous waste,
the tank will be managed in accordance with existing RCRA controls, including subpart
J standards for tank closure.

   Finally, the Agency concluded that a storage limit of 35 days at transfer
facilities is protective of human health and the environment when applied in
conjunction with the secondary containment requirements for aboveground storage
containers and tanks promulgated today. EPA believes that storage at transfer
facilities will be for a short duration when used oil is in transit between generators
to processors, re-refiners, fuel oil dealers, and transfer facilities before reaching
the ultimate recycler or burners. Any spills and leaks occurring during storage must
be contained within the containment area, discovered, and cleaned up in a timely
manner. If EPA, in the future, determines a need for a closure standard for transfer
facilities to ensure that used oil contamination at a facility prior to the facility
closing must be addressed then the Agency may take such a step.

   Underground storage tanks (i.e., those with more than 10% of the surface area of
the tank(s) and associated pipes underground) used to store used oil at used oil
transfer facilities remain subject to the requirements of 40 CFR part 280,
independently. Also, many facilities remain subject to the Spill Prevention Control
and Countermeasure requirements of part 112 of 40 CFR, independently.

   h. Response to releases. Any spill or release of used oil from aboveground storage
units (tanks and containers) at a used oil transfer facility must be stopped,
contained, and cleaned up upon detection. Spilled used oils must be cleaned up and
properly managed. If necessary, the unit must be removed from service, the contents
removed, and the unit repaired prior to returning it to service. These requirements do
not apply to past releases that have occurred at transfer facilities prior to the
effective date of the used oil program within an authorized state in which a used oil
facility is located. This requirement applies only when there is a release to the
environment. Under this rule, this would not include releases within contained areas
such as concrete floors or impervious containment areas, unless the releases go beyond
the contained areas.

   In the case of a release of used oil from an underground storage tank, the owner or
operator of the used oil transfer facility must comply with the requirements of 40 CFR
part 280, subparts E and F.

   In addition to the provisions listed above for releases of used oil, and in
addition to the corrective action requirements for releases from USTs provided in 40
CFR part 280, subpart F, used oil transporters are required, under CERCLA section 103,
to report a release of hazardous substances to the environment when the release is
equal to or in excess of the reportable quantity (RQ) for the particular substance.
Used oils that are contaminated with CERCLA hazardous substances (e.g., due to the
presence of elevated levels of lead) are subject to CERCLA release reporting
requirements. Therefore, releases of such contaminants into the environment in
quantities greater than the reportable quantity must be reported to the National
Response Center. The current RQs for CERCLA hazardous substances are listed in 40 CFR
302.4. In addition, under 40 CFR part 110, any discharge of oil that violates
applicable water quality standards or causes a film or sheen on a water surface must
be reported to the National Response Center.

   i. Rebuttable Presumption. Since the rebuttable presumption now will apply to all
used oils, EPA is requiring used oil transporters to determine the total halogen
content as used oil shipments prior to accepting the shipments for transport. EPA
believes that the majority of used oil transporters are already complying with this
requirement to ensure that used oil has not been mixed with halogenated solvents,
since the majority of used oil that is currently recycled is used as fuel for energy
recovery and is therefore subject to 40 CFR part 266, subpart E, recodified today as
40 CFR part 279, subpart G.

   If the halogen level exceeds 1,000 ppm, the used oil is presumed to be mixed with a
halogenated hazardous waste, and must be managed as a hazardous waste, unless the
transporter rebuts the presumption as described above. The transporter may accept such
shipments of used oil as a hazardous waste transporter, but if the original generator
of the hazardous waste cannot be identified, the transporter may have to assume
hazardous waste generator responsibilities and comply with both the generator
standards of 40 CFR part 262 as well as the hazardous waste transporter requirements
of 40 CFR part 263.

   j. Recordkeeping. Transporters are required to maintain records (for at least three
years) documenting the acceptance and delivery of each used oil shipment. For the
purposes of complying with the recordkeeping requirements in today's rule, used oil
transporters need only enter the required information or documentation for each used
oil shipment into a collection or operating log.

   Used oil transporters must keep records for each used oil shipment accepted for
transport from an original used oil generator or another transporter and maintain
copies of each record for a period of at least three years. Records for each shipment
accepted by transporters must include: (1) The date; (2) the name, address, and EPA
identification number (if applicable) of the party who provided the used oil for
shipment; (3) the quantity and type of used oil accepted; and (4) the dated signature
of the party offering the shipment.

   Used oil collectors and transporters must also keep and maintain for at least three
years records of each shipment of used oil that is delivered to another transporter,
used oil burner, fuel marketer, or used oil processor/re-refiner. Records for each
delivery must include: (1) The date; (2) the name, EPA identification number, and
address of the receiving facility or transporter; (3) the quantity of used oil
delivered; and (4) the dated signature of a representative of the receiving facility.

   EPA believes that these recordkeeping requirements are necessary to monitor the
flow of used oil within the used oil management system and to discourage any
adulteration of used oil by any used oil handler, by providing a paper trail
documenting all parties who handled the used oil. EPA believes that the rebuttable
presumption, as well as the requirement that used oil collectors and transporters keep
records, will provide sufficient incentive to discourage adulteration of used oils.
Past practices of used oil collectors and transporters storing mixtures of used oil
and hazardous waste have resulted in damages to the environment. Further discussion of
such damages is provided in the background documents that accompany this rule.

   It is EPA's understanding that most of the recordkeeping requirements established
in today's rule are already being done as normal business and accounting practices by
used oil transporters. As noted in the background information for the Regulatory
Impact Analysis of today's rule, a used oil industry representative indicated that
such records are maintained and the practice of keeping such records is not uncommon.
The recordkeeping requirements promulgated today for used oil transporters are very
similar to those proposed in the 1991 Supplemental Notice.

   k. Exports of used oil. If a used oil transporter provides used oil for export or
exports used oil from the United States, the transporter must maintain a record of the
name and address of the receiving facility, the quantity of used oil exported to a
foreign country, and the date the used oil is exported from the United States.

   l. Closure. In 1985, EPA proposed closure requirements for used oil transfer
facilities. Commenters opposed these requirements due to the fact that the
requirements are overly burdensome. Since the secondary containment requirements
promulgated today should mitigate the migration of almost all releases of used oil to
the environment, and since today's requirements require used oil spills and releases
to be cleaned up upon detection, EPA has decided that closure requirements for
aboveground storage areas are not necessary and therefore, the Agency is not
promulgating closure requirements for used oil transfer facilities with aboveground
storage units. EPA also notes that the majority of damages from improper storage of
used oil have occurred at recycling facilities, rather than transfer facilities, which
suggests differential standards are appropriate. (Note: Used oil transporters that
store used oils in underground storage tanks are required under the Subtitle I
standards to close all units used to store used oil prior to closing or abandoning the
facility.)

   m. Other applicable provisions. In addition to the requirements provided in subpart
E, used oil transporters who recycle used oil either by blending, processing or
re-refining, must comply with the requirements of subpart F. Used oil transporters who
burn used oil on-site must comply with the requirements of subpart G of part 279, as
well as the provisions of subpart E. If a used oil transporter markets used oil fuels,
the transporter must comply with the requirements for used oil fuel marketers in
subpart H of part 279. Used oil transporters who either dispose of used oil or use
used oil as a road oiling agent must comply with subpart I of part 279.

   In the 1991 Supplemental Notice the Agency proposed inspection, facility
preparedness, and corrective action provisions. EPA has decided against such
requirements because (a) the SPCC program-based inspection, preparedness, and
emergency response provisions, (b) response to releases provision for transfer
facilities, and (c) limits on the storage period are adequately protective against
potential environmental damages associated with used oil storage. A used oil
transporter who stores used oil for greater than 35 days is considered to be a used
oil processor and must comply with the standards for used oil processing and
re-refiners.

   4. Standards for Used Oil Processing and Re-refining Facilities

   As discussed in section VI.A of this preamble, the past used oil management
practices at used oil processing facilities has resulted in environmental damage. This
is evident from the identification of approximately 25 sites on the National Priority
List where used oil was identified as one of the major constituent of concern.
Similarly, EPA has discovered environmental damage associated with used oil management
at RCRA facilities managing used oil in solid waste management units. Of the used oil
facilities that the Agency has studied, 16 facilities has used oil spills; 15
facilities had leaking tanks and/or containers; 32 facilities recycled and disposed of
used oil and wastes in surface impoundments and pits; 5 facilities placed used oil
recycling sludges in waste piles directly on the ground; and one facility land-farmed
used oil recycling sludges. Virtually all the surface impoundments or pits at these
facilities were unlined. These instances lead EPA to believe that used oil
processing/re-refining facilities pose the biggest problems due to used oil
mismanagement, justifying the toughest controls (e.g. preparedness, secondary
containment, closure, analysis plan, and tracking) established today.

   a. Applicability. A used oil processing or re-refining facility is defined in 
279.1 as "a facility that processes used oil." Used oil processing means chemical or
physical operations designed to produce from used oil, or to make used oil more
amenable for the production of, fuel oils, lubricants, or other used oil-derived
product. Processing includes, but is not limited to: Blending used oil with virgin
petroleum products, blending used oils to meet the fuel specification, filtration,
simple distillation, chemical or physical separation and re-refining. Used oil
re-refining may include settling, filtering, catalytic conversion, fractional/vacuum
distillation, hydrotreating, or polishing. The products of used oil processing or
re-refining are likely to include specification fuel, reconstituted lubricating
oils/fluids, distillate fuel, lube feedstock, asphaltic bottoms, and other non-fuel
oil-derived product.

   In addition to the requirements of part 279 subparts C and E, used oil generators
and collectors/transporters are subject to all applicable processor and re-refiner
requirements, if they process/re-refine used oil on-site. Used oil processing and
re-refining facilities that also burn used oil fuel on-site for energy recovery must
comply with the provisions in subpart G of part 279, except burning that occurs
incidental to processing at used oil processing and re-refining facilities in
compliance with  279.50(b)(3)(ii). Table VI.4 lists requirements and provides the
regulatory citations.

      Table VI.4. -- Standards for Used Oil Processors and Re-refiners
       Requirement             New or existing         Regulatory citation
Processors who perform
other management activi-
ties                                            New               279.50(a).
Notification and EPA
identification number      Existing for processors/
                                re-refiners who are
                          marketers; new for others                  279.51.
Preparedness and pre-
vention                                         New               279.52(a).
Contingency plan and
emergency procedures                            New               279.52(b).
Rebuttable presumption
for used oil               Existing for processors/
                          re-refiners managing used
                                           oil fuel     279.53 (a), (b), and
                                                                         (c).
Exceptions from rebut-
table presumption for CFC
and metalworking oils                           New   279.53(c) (1) and (2).
Type of management units                        New               279.54(a).
Good condition above
ground tanks and con-
tainers                                         New               279.54(b).
Secondary containment for
containers and existing
and new above ground
tanks                                           New     279.54 (c), (d), and
                                                                         (e).
Labelling of containers
and tanks                                       New               279.54(f).
Response to releases                            New               279.54(g).
Closure for containers
and above ground tanks                          New               279.54(h).
Analysis plan                                   New                  279.55.
Indicator parameters                           N.A.                     None.
Tracking -- acceptance,
deliveries, and record-
keeping                    Existing for processors/
                                re-refiners who are
                          marketers (invoices); new
                                         for others                  279.56.
Operating record                                New               279.57(a).
Biennial reporting                              New               279.57(b).
Off-site shipment                               New                  279.58.
Management of residues                          New                  279.59.
SPCC requirements, in-
cluding spill prevention
and control                    Existing (applicable
                                     independently)          40 CFR Part 112.
UST requirements, includ-
ing corrective action and
financial responsibility       Existing (applicable
                                     independently)          40 CFR Part 280.
Inspections                                    N.A.                     None.

   b. Notification Requirements. An owner or operator of a used oil
processing/re-refining facility must notify the appropriate EPA Regional Administrator
using EPA Form 8700-12, stating the location and general description of used oil
management activities. In lieu of using the EPA Form 8700-12, owners and operators may
notify the EPA Regional Administrator of their location and general description of
used oil management activities in a letter. Upon receipt of this form, EPA will issue
an EPA identification number to the facility. Owner/operators who have previously
notified the Agency of their hazardous waste management or used oil activities and
received an ID number need not renotify.

   In addition to notifying EPA of any recycling activities and receiving an EPA
identification number, an owner or operator of a used oil processing or re-refining
facility that receives used oil from foreign sources must comply with all applicable
RCRA requirements for the importation of solid and hazardous wastes.

   c. Preparedness and Prevention. Owners or operators of used oil processing and
re-refining facilities must operate and maintain the facility in a manner that will
minimize the possibility of any fire, explosion, or unplanned sudden or non-sudden
release. The existing Federal (e.g., SPCC), state, and local (e.g., fire ordinances)
preparedness and prevention requirements are specific to certain aspects of facility
operation. The existing RCRA requirements for preparedness and prevention, by
contrast, pertain to the toxic or hazardous nature of the material or waste. The
Agency, therefore, believes that RCRA requirements are necessary to ensure that used
oil processing and re-refining facilities are maintained and operated to prevent
possible fires, explosions, or releases of used oil to the environment. EPA believes
that the preparedness and prevention requirements promulgated today are merely
incremental to those currently in place and the existing compliance procedures can
easily be expanded to comply with these additional requirements. Section 279.52(a)
requires owners and operators to comply with the requirements for preparedness and
prevention similar to those established for hazardous waste management facilities in
40 CFR part 265, subpart C. These requirements include maintenance and operation of
the facility, required equipment, testing and maintenance of the equipment, access to
communication or alarm system, required aisle space, and arrangements with local
authorities.

   The 1985 proposal required preparedness and prevention measures as part of the
Permit-by-rule requirements for recycling facilities. The proposed requirements were
the same as those established for hazardous waste management facilities. EPA believes
that the majority of processing and re-refining facilities have preparedness and
prevention measures in place as a part of good business and operational practices,
therefore the Agency does not think such requirements will be overly burdensome (see
background document on cost analysis that is in the docket for today's rule). In
addition, local fire regulations, state regulations, and the Occupational Safety and
Health Act require some level of preparedness and prevention measures.

   d. Contingency Plan and Emergency Procedures. Section 279.52(b) requires owners or
operators of used oil processing and re-refining facilities to prepare a contingency
plan designed to minimize hazards in case of a sudden or non-sudden release, fire,
explosion, or similar emergency. The variable composition of used oil (e.g., the
possibility of very low flash point oil) makes this more of a concern than for other
types of oil facilities. The requirements for contingency plans and emergency
procedures were taken from 40 CFR part 265, subpart D, because of the similarity to
hazardous waste facility operations. These requirements include purpose and
implementation of the contingency plan, content of the contingency plan, copies of the
contingency plan, amending the contingency plan, emergency coordinator, and emergency
procedures.

   EPA believes that the majority of processing and re-refining facilities have
contingency plan and emergency procedures in place as a part of good business and
operational procedures. Therefore, EPA believes that such requirements are not overly
burdensome. In addition, local fire regulations, state regulations, and the
Occupational Safety and Health Act require development of contingency plans and
emergency procedures.

   e. Storage Requirements. Owners and operators of used oil processing and
re-refining facilities must store all used oils either in tanks or containers, and all
tanks and containers must be maintained in good condition (i.e., no visible signs of
leaks or structural damage or deterioration). Based on the comments received in 1985
and 1991, EPA believes that the practice of storing used oil in lagoons, ponds, pits
or surface impoundments is not common and, in addition, that such storage is
inherently unsafe and poses an undue risk to human health and the environment. Both in
1985 and 1991, EPA proposed to ban the use of lagoons, ponds, pits, or surface
impoundments for used oil treatment or storage due to the unreasonable risks posed to
human health and the environment. Many commenters concurred with EPA on this point.
Therefore, today's rule prohibits the storage of used oil in any surface impoundment,
pond, pit, lagoon or similar land-based unit, unless the unit is kept in full
compliance with the requirements in subpart K of part 264/265 or unless the unit
contains only wastewaters with de minimis quantities of used oil as specified in 40
CFR 279.10(f).

   In 1991 Supplemental Notice, EPA proposed inspection requirements for a discovery
of used oil release or spill. Today, EPA is not finalizing the proposed inspection
requirement because the preparedness requirement established today for used oil
processing/re-refining facilities and the inspection provision of the SPCC program
include inspection for used oil releases to the environment or oil spills,
respectively.

   The requirements established today cover all used oil processors/re-refiners,
regardless of their location and regardless of the size of any single tank the
facility or the total storage capacity of the facility. The SPCC and UST requirements
are independently applicable to processing or re-refining facilities.

   The owner or operator of a used oil processing or re-refining facility must label
all aboveground tanks and containers used to store used oil and all fill pipes used to
transfer used oil to underground storage tanks with the words "used oil." EPA is
requiring owners and operators to clearly label storage units used to store oil to
prevent accidental mixing by ensuring that only used oil is placed in tanks reserved
for the storage of used oil.

   Owners and operators of used oil processing and re-refining facilities who store
used oil in containers or aboveground tanks as defined in  279.1 must equip the
storage area surrounding the tanks or containers with a floor made from material(s)
that is impervious to used oil. Owners and operators must also equip the storage area
with secondary containment structures (dikes, berms, and/or retaining walls) that are
made of a material(s) that is impervious to used oil and capable of containing all
potential spills and releases of used oil from the tanks or containers until the
facility owner or operator can take measures to clean up the released used oil. The
floor under existing storage tanks must cover the entire area within the containment
structure, except where existing tanks meet the ground. EPA believes that requiring
owner/operators with existing tanks to retrofit the containment structure would be
financially burdensome and that there is little opportunity for contamination to occur
under the small area where the tank touches the ground. For new tanks, the floor must
cover the entire area within the containment structure.

   In 1985, EPA reserved several sections of the proposed rule for the soon-to-be
promulgated secondary containment requirements for hazardous waste storage tanks. Many
commenters disagreed with EPA's proposal to require used oil recycling facilities to
comply with the hazardous waste tank secondary containment provisions. In the 1991
Supplemental Notice, EPA stated that secondary containment standards similar to those
required by the SPCC program may be adequately protective of human health and the
environment and may be less burdensome to used oil processing and re-refining
facilities. In the 1991 Supplemental Notice, the Agency specifically discussed the
provisions for maintaining berms, dikes, or retaining walls around existing
aboveground storage tanks. The Supplemental Notice included a diagram depicting a
secondary containment structure that the Agency was considering requiring. The Agency
believes that a secondary containment structure constructed around the entire storage
area will provide adequate protection to the environment against spills and releases
of used oil that may occur during used oil storage. Many commenters agreed with the
Agency's assessment that this type of secondary containment is adequate for used oil
storage areas. Some commenters urged the Agency to include secondary containment
requirements in Phase I management standards, suggesting that storage-related spills
and releases should be controlled.

   Upon evaluation of the comments, and a further consideration of past storage
practices at used oil processing and re-refining facilities that have either become
Superfund sites or have had RCRA enforcement actions taken against them, EPA has
concluded that there is a need to control releases of used oil during storage at
processing and re-refining facilities. In fact, as documented by the Agency in the
background documents supporting this final rule, past storage practices at used oil
management facilities have resulted in releases of used oil to the environment, and in
some cases, substantial damages to human health and the environment.  n20

   n 20 See "Summary Descriptions of Sixty-Three 'Used Oil' Superfund Sites." and
"Summary Descriptions of Used Oil-Related Damages at RCRA-Permitted Facilities."

   Of the used oil facilities that the Agency has studied, 16 facilities had used oil
spills; 15 facilities had leaking tanks and/or containers; 32 facilities recycled and
disposed of used oil and wastes in surface impoundments and pits; 5 facilities placed
used oil recycling sludges in waste piles directly on the ground; and 1 facility
land-farmed used oil recycling sludges. Virtually all the surface impoundments or pits
at these facilities were unlined.

   Of the facilities that had spills, two were disposing solely used oil/oil recycling
wastes, one was a storage facility only, and the remaining 13 were used oil processing
and re-refining facilities. Of the facilities that had leaking tanks, two facilities
were used oil storage facilities, one was a used oil disposal facility, and the
remaining 12 were used oil recyclers. Of the facilities that disposed of used oil and
wastes after recycling used oil in surface impoundments, 3 were also generators, 4
were solely disposal facilities, 1 was a storage facility, and the remaining 24 were
processing and re-refining facilities. All five facilities that stored used oil
recycling sludges in waste piles were processing and re-refining facilities. The
facility that land-farmed used oil recycling sludges was a used oil recycling
facility.

   EPA has concluded that the containment of used oil releases is necessary, since
contamination of soil, ground water, or surface water resources with used oil could
reduce water quality and make water non-potable or could cause significant ecological
harm. EPA believes that used oil handling and storage-related releases at used oil
processing and re-refining facilities can be effectively controlled by the use of
floors and containment structures made from an oil-impervious material.

   As discussed above, the storage areas around aboveground tanks and under storage
containers must be equipped with oil-impervious floors and secondary containment
structures (dikes and berms or retaining walls) capable of containing all potential
spills and releases of used oil until the discovery and clean-up of released used oil. 
n21 The floor under existing storage tanks must cover the entire area within the dike,
berm or retaining wall, except areas where portions of existing tanks meet the ground.
This requirement is applicable to the aboveground tanks that are existing when the
states adopt the part 279 used oil management standards and the state rule containing
the Federal used oil management standards takes effect. The impervious floor under new
storage tanks must cover the entire area within the containment structure. The
effective date is the same as that discussed for existing tanks.

   n 21 For further discussion of the basis for the secondary containment requirement
and the materials suitable for constructing impervious floor and dikes, berms, or
retaining walls, see section VI.E.5. of today's preamble.

   EPA believes that the secondary containment requirements established today
adequately protect against used oil releases to ground water and the existing SPCC
requirements provide protection against spills reaching navigable waters. EPA has
determined that secondary containment requirements similar to those in 40 CFR parts
264/265, subpart J are not necessary since the requirements promulgated today will
effectively contain any spilled or released used oil within the containment
structures. Also, the requirement that the entire containment structure be made of a
material impervious to used oil will prevent the migration of used oil to soils,
surface waters, and ground water.

   Although the secondary containment requirements promulgated today are somewhat less
burdensome than those required under 40 CFR parts 264/265 subpart J, any used oil
processing/re-refining facility that is currently in compliance with the subpart J
requirements (e.g., the facility has double-walled tanks with double-walled or
otherwise contained pipes) will be deemed in compliance with the secondary containment
requirements promulgated today, and therefore need not install a new secondary
containment system at the facility. EPA does want to clarify that all aboveground
tanks and containers must be within a secondary containment structure that is
impervious to used oil, and capable of preventing the migration of used oil spills or
releases to the environment.

   An April 29, 1992, memorandum from EPA's Assistant Administrator for Solid Waste
and Emergency Response (discussed above) addresses aboveground storage tank
technologies that may be used to provide secondary containment at SPCC-regulated
facilities. The memorandum states that alternative aboveground storage tank systems
that have capacities generally less than 12,000 gallons may provide protection of
navigable waters substantially equivalent to that provided by the secondary
containment systems listed in 40 CFR 112.79(c) of the SPCC regulation. An example of
an alternative aboveground storage tank system that generally would provide
substantially equivalent protection of navigable waters is a shop-fabricated doubled
walled tank installed and operated with overfill prevention measures that include an
overfill alarm, an automatic flow restrictor or flow shut-off, and constant monitoring
of all product transfers including used oil. Used oil tanks meeting with the secondary
containment equivalency discussed in the memorandum of April 29, 1992, are considered
to be in compliance with the secondary containment requirements for aboveground tanks
established in today's rule.

   In the 1991 Supplemental Notice, EPA requested comment on the types of material
that could be used to construct oil-impervious structures including berms, dikes,
retaining walls, and floors. EPA did not receive any comments specific to the request.
Since publication of the 1991 Notice, the Agency has studied the permeability of some
commonly used construction materials such as cement, clay, asphalt, plastic, and
steel. EPA concluded that the selection of a suitable material for construction
depends upon the size of the storage units and the site characteristics. As stated in
the cost analysis section of this preamble, most of these materials are currently used
for the purpose of containing releases under other regulatory programs. EPA believes
that any of these materials can adequately prevent releases of used oil to the
environment from storage units that are properly operated and maintained at used oil
processing and re-refining facilities, therefore, the Agency feels there is no need to
specify the type of oil-impervious construction material that must be used at all
facilities. For the cost analysis that accompanies today's rule, EPA used a secondary
containment scenario that includes a 3-inch asphalt floor with an annual application
of sealant. EPA believes that a floor of this type is adequate to contain used oil
releases since there should be minimal or no vehicular traffic around the storage
tanks or within the bermed, diked, or walled area. When installing new tanks, however,
facility owner/operator will have to take into considerations the size of the tank
that the floor will be resting upon. Depending on the size of the floor's thickness,
and the type of floor installed, the appropriate construction material may change.

   f. Applicable UST and SPCC requirements for used oil storage tanks. If used oil is
stored in underground tanks, the owner or operator of a used oil recycling facility
must comply with the requirements of 40 CFR part 280, including the corrective action
and closure requirements of part 280 subparts F and G. An underground storage tank
used for storage of used oil that meets the underground storage tank definition under
40 CFR 280.12 must comply with part 280 requirements. As discussed in the 1991
Supplemental Notice, technical standards for underground storage tanks (USTs) have
been promulgated since publication of the 1985 proposed rule. The Agency stated in the
preamble to the UST final rule (53 FR 37112; September 23, 1988) that EPA believes tht
used oil, when stored in underground tanks, presents risks similar to other petroleum
products stored in USTs. As a result, EPA determined that used oil USTs must comply
with the tank upgrading, operation and maintenance, corrosion protection, corrective
action, closure, and financial responsibility requirements promulgated under part 280
for other petroleum product USTs. The Agency believes that the subtitle I standards
are sufficient to protect human health and the environment from potential releases of
used oil from USTs.

   In addition to all of the storage requirements discussed above, used oil processing
and re-refining facilities that meet the applicability criteria for the SPCC standards
contained in 40 CFR part 112 also must comply with all applicable SPCC requirements,
including maintaining containment and diversionary structures to control releases of
oil from aboveground storage tanks.

   g. Response to releases. Upon detection of any release or spill within the
secondary containment area from transfer operations or from aboveground storage units
(tanks and containers), owners or operators must take steps to stop and contain the
release, to remove all released used oil from the containment area, and repair or
replace the damaged tank or container. Release used oil must be removed from the area
and must be managed (i.e., treated, recycled, disposed) in accordance with the
requirements of this part and any other applicable parts of this chapter. In addition,
whenever there is a catastrophic release or spill of used oil and used oil migrates
beyond the containment structure and reaches the environment, corrective measures must
be taken to adequately protect human health and the environment from potential
damages. This requirement does not apply to past releases of used oil that occurred
prior to the effective date of the used oil program within an authorized state in
which the facility is located. This above requirement applied only when there is a
release to the environment. Under this rule, this would not include releases within
contained areas such as concrete floors or impervious containment areas, unless the
releases go beyond the contained areas.

   In addition to the provisions listed above for releases of used oil and, in
addition to the corrective action requirements for releases from USTs provided in 40
CFR part 280, subpart F, owners of used oil processing and re-refining facilities are
required, under CERCLA section 103, to report a release of hazardous substances to the
environment when the release is equal to or in excess of the reportable quantity (RQ)
for the particular substance. Used oils that are contaminated with CERCLA hazardous
substances (e.g., due to the presence of elevated levels of lead) are subject to
CERCLA release reporting requirements. Therefore, releases of used oil containing such
contaminants into the environment in quantities greater than the reportable quantity
must be reported to the National Response Center. The current RQs for CERCLA hazardous
substances are listed in 40 CFR 302.4. In addition, under 40 CFR part 110, any
discharge of oil that violates applicable water quality standards or clauses a film or
sheen on a water surface must be reported to the National Response Center.

   h. Analysis Plan. The owner or operator of a used oil processing or re-refining
must establish analytical procedures to ensure a thorough knowledge of the contents of
any used oil handled at the facility. These procedures are to be established through a
written analysis plan describing the procedures to be used to comply with the analysis
requirements, as required by  279.55. Each facility must prepare an analysis plan
which a facility will follow when performing sampling and analysis, keeping records,
and when complying with the analytical requirements for documenting the used oil fuel
specification.

   For the analyses described below, the owner or operator must specify in the
facility's analysis plan the frequency of sampling and analysis. The owner or operator
must perform sampling and analysis on a schedule that is adequate to meet all
applicable requirements and assures that all used oils managed at the facility are
handled safely and in compliance with all applicable used oil and Subtitle C
regulations.

   i. Rebuttable presumption and halogen determination. An owner or operator of a used
oil processor/re-refiner facility must ensure that any used oil handled (i.e.,
received from a used oil generator or a collector/transporter) at the facility is not
mixed with hazardous wastes. Procedures should be established within the facility's
written analysis plan (required in  279.55) and the results of each procedure
documented as part of the facility operating record, to demonstrate that the owner or
operator will assure against such mixing and comply with the halogen determination
requirements of  279.53. The analysis plan should specify how, or with what methods,
the owner or operator will analyze used oil to assure that the used oil is not mixed
with hazardous wastes. As discussed above, EPA presumes that any used oil containing
more than 1,000 ppm halogens has been mixed with chlorinated hazardous wastes. To
rebut this presumption, the owner or operator must be able to document (or provide a
copy of documentation from prior used oil handlers) at any time that the used oil was
not mixed with hazardous waste (e.g., by demonstrating that the presence of 1,000 ppm
or more of total halogens is from some other source). The Agency believes that a
facility-prepared analysis plan will identify at what time during the chain of
custody, the facility owner/operator will rebut the presumption of mixing. In
addition, EPA believes that an analysis plan will also indicate a procedure for
handling a shipment of the adulterated used oil if received by an used oil
processor/re-refiner facility especially when the given facility is not a
co-management facility (i.e., permitted to manage hazardous waste). A facility may
rebut the presumption of mixing when accepting used oil for processing, re-refining,
or blending; upon producing a specification fuel; prior to marketing it as
off-specification fuel; or both when accepting used oil and shipping recycled products
(e.g., burner fuel, lube feedstock, or reclaimed lubricants) to the end users.

   Under  279.53, analyzing for total halogens is required to determine whether used
oil has been mixed with chlorinated (halogenated) listed hazardous wastes. If the
total halogen content exceeds 1,000 ppm, it is presumed that mixing has occurred per
the rebuttable presumption codified today as  261.3(a)(2)(v).

   As discussed above, the rebuttable presumption does not apply to: (1) Used
metalworking oils/fluids containing chlorinated paraffins on the condition that these
used oil/fluids are recycled under a tolling arrangement to produce reclaimed
metalworking oils/fluids; or (2) used compressor oils removed from refrigeration units
and that are contaminated with chlorinated fluorocarbons (CFCs), on the condition that
these used oils are destined for reclamation of the CFCs at an off-site CFC
reclamation facility. The exemption applies to these two types of oils that are not
mixed with used oil from other sources or other halogenated hazardous wastes.

   EPA is concerned about the burning of used oils containing high levels of halogens
in uncontrolled burners. Both metalworking oils and used compressor oils that contain
a high level of halogenated constituents (>4,000 ppm) can not be burned safely in
uncontrolled boilers and furnaces. If such used oils are to be burned for energy
recovery, they must be burned at facilities that are in compliance with subpart G of
part 279 or, if the used oil has been mixed with hazardous waste, with subpart H of
part 266.

   ii. Specification used oil fuel. Owners or operators who claim an exemption from
regulation under 40 CFR 279.11 for specification used oil fuel must analyze for the
specification used oil fuel parameters (i.e., arsenic, cadmium, chromium, lead, total
halogens, and flash point) and provide documentation of testing and sampling methods
used and the frequency of sampling in the facility's analysis plan. If an owner or
operator of a used oil processor/re-refiner facility markets specification used oil
fuel, the owner or operator must document that the used oil meets the specification
levels in the facility operating record, and must cross reference documentation that
the used oil meets the specification to the burner or marketer.

   iii. Indicator parameters. In 1985, EPA proposed that all owners and operators of
used oil processing and re-refining facilities that also manage hazardous wastes at
the same facility, test their used oils for the presence of indicator parameters.
Indicator parameters are those constituents that were commonly present in the
hazardous wastes handled at the facility, but not commonly found in used oils.

   The majority of commenters who commented on the proposed analytical requirements
stated that there is no need for the proposed indicator parameter testing at
co-management facilities. The commenters responding to the indicator parameter testing
requirement argued that co-management facilities are hazardous waste facilities
operating under interim status or a full permit. Commenters stated that intentional
mixing of used oils and hazardous wastes does not occur at co-management facilities
due to the fact that mixing would reduce the marketability and recyclability of the
used oil. Upon consideration of the public comments, the Agency has decided not to
finalize the proposed requirements for indicator parameter testing.

   For the analyses described above, the owner or operator of a used oil recycling
facility must specify in the facility's analysis plan the frequency of sampling and
analysis. The owner or operator must perform sampling and analysis on a schedule that
is adequate to meet all applicable requirements and assures that all used oils managed
at the facility are handled safely and in compliance with all applicable used oil
management standards.

   In the 1985 proposed management standards, EPA requested comment on the need to
specify a specific schedule for sampling and analysis at the processing and
re-refining facilities. Although EPA received several comments on the subject, the
commenters did not agree either on the need to set a specific schedule or what the
schedule should be, if EPA specified a schedule. It is apparent from the public
comments received on the subject that it is probably not possible to develop a testing
frequency schedule that would be appropriate for all types and sizes of used oil
processing and re-refining facilities and take into account the many facility-specific
variables that affect sampling and analysis frequencies. Therefore, under today's
rule, EPA is not providing a specific schedule, but is requiring owners or operators
of used oil processing and re-refining facilities to establish a tailored sampling and
analysis schedule that will be appropriate for their particular facility and that
meets the intent of the sampling and analysis requirements. This schedule must be
documented in the facility's analysis plan.

   Records of all analyses conducted at the facility to comply with the sampling and
analysis requirements must be maintained at the facility in the facility's operating
record for a period of three years, as specified in  279.57(a).

   i. Tracking of Used Oil. Commenters favored the 1991-proposed tracking requirements
for used oil processors/re-refiners. EPA believes that these facilities are the
ultimate decision makers for the fate of used oil. Therefore, the Agency is finalizing
the majority of tracking requirements proposed in 1991 which include keeping the
records of each used oil shipment accepted for management and the records of each
shipment of used oil delivered to the endusers. The requirements are specified in 
279.56. Furthermore, these records may take the form of a log, invoice, manifest, bill
of lading, or other shipping documents. These records will provide the information
necessary for preparing biennial reports for the facilities' used oil activities
required in  279.57(b) discussed below.

   j. Operating Record. Owners and operators of used oil processing and re-refining
facilities are required to maintain operating records included in  279.57(a) of
today's rule, until closure of the facility. The records include used oil analyses
performed in accordance with the analysis plan required under  279.55 and summary
reports detailing all incidences that require implementation of the contingency plan
specified at  279.52(b).

   k. Reporting requirements. Owners and operators of used oil processing and
re-refining facilities are required to report to EPA or an authorized state agency in
a letter, on a biennial basis, the following information: (1) The facility's EPA
identification number, name and address; (2) the calendar year covered by the report;
and (3) the quantities of each type of used oil accepted for recycling and the manner
in which used oil is recycled at the site (if the facility recycles used oil in more
than one manner, the quantities of used oil recycled should be reported for each
recycling method (e.g., burning, processing)).

   Reports documenting the information listed above must be submitted to EPA, or the
authorized state agency, by March 1 of each even numbered year and cover used oil
recycling activities conducted during the previous year. Reports need only be in the
form of a letter or spreadsheet and no formal reporting form will be developed.

   The information identified above is similar to that listed on the Hazardous Waste
Biennial Report Form (No. 8700-13B). The information requests were designed in this
manner to assist owners and operators of used oil processor and re-refiner facilities
in preparing the used oil biennial report. Many owners and operators are familiar with
the hazardous waste biennial reporting form.

   Commenters supported the biennial reporting requirements proposed for used oil
recyclers in the 1991 Supplemental Notice. As noted in the Supplemental Notice, EPA
believes that the information provided by the used oil processing and re-refining
facilities will help the Agency when developing Phase II management standards that may
include incentives for encouraging DIY-generated used oil recycling and/or more
stringent management standards for a particular form of recycling (e.g., used oil
burning). EPA also believes that the information collected from processors and
re-refiners will allow the Agency to monitor the flow and disposition of used oil and
to allow the Agency to assess the relative amounts of used oil that are recycled in
different manners.

   The reporting requirements promulgated today will apply only to used oil processors
and re-refiners and not to used oil burners or to transporters who directly market
used oil fuels. The Agency believes that the information that is required of
processors and re-refiners will indicate quantities of specification fuel and
off-specification fuel produced. In case the Agency wants more specific information on
burning activities, EPA may obtain additional information through a survey or by
reviewing shipping records maintained by burners and used oil transporters.

   l. Closure. Owners and operators must ensure that the units and areas used to store
and recycle used oil are closed to the extent necessary to protect human health and
the environment and in a manner that controls, minimizes, or eliminates post-closure
escape of used oil and used oil residues to the ground, atmosphere, and water. At the
time of closure, owners and operators who store used oil in aboveground tanks must
empty the tanks, remove or decontaminate residues from the tank system, remove and
decontaminate containment system components, contaminated media, and any structures
and equipment contaminated with used oil released after the effective date of today's
rule. Contaminated media, components, structures and equipment, and any used oil
removed from the site must be managed as a hazardous waste, if the media, waste, or
material meets the definition of hazardous waste, per 40 CFR 261.3(d).

   If the facility owner or operator cannot successfully remove and decontaminate all
contaminated media at the facility, then the owner or operator must close the tank
system(s) and perform closure and post-closure care in accordance with the
requirements of 40 CFR 265.310 that apply to landfills. EPA deferred the financial
responsibility requirement for used oil processors and re-refiners in the 1985
proposal and 1991 supplemental notice. EPA believes that the closure steps necessary
under today's rule can be implemented without the financial responsibility
requirements for facility closure established under subpart H of Part 264/265. The
closure requirement promulgated today only requires unit closure and removal of
contaminated media in the immediate vicinity of the used oil storage/processing unit.
EPA believes these costs are not likely to be excessive and can be borne by
owners/operators without the need for financial assurance that is necessary for RCRA
subtitle C hazardous waste treatment, storage, and disposal facilities. In addition,
the Agency believes that many used oil processors/re-refiners would as a business
practice routinely set aside funds for complying with the business insurance
requirements. (See Cost and Economics Impact of 1992 Used Oil Management Standards,
August 1992, available in the docket accompanying this rule.)

   Owners and operators who store used oil in underground storage tanks must comply
with the closure requirements of 40 CFR part 280, subpart G.

   Owners and operators who store used oil in containers must remove all containers
from the site at the time of closure. The owner or operator must also remove and
decontaminate all residues, contaminated containment system components, contaminated
soils, and any structures and equipment contaminated with used oil and manage them as
hazardous waste if the media, waste, or material meets the definition of hazardous
waste, per 40 CFR 261.3(d) or 261.4(b).

   Based on information gathered from documentation of Superfund sites where used oil
was identified as one of the major constituents of concern managed at the site, EPA is
convinced that closure requirements for tanks and containers and for the area at
existing facilities are important. EPA believes that the secondary containment
requirements for containers and tanks established today will minimize the need for
extensive closure in the future since the potential for a release of used oil to
migrate into the environment will be reduced. The requirements of today's rule should
ensure against damages that could result at abandoned sites by: (a) controlling
(containing) used oil spills or releases that may occur during the operation of used
oil processing and re-refining facilities and (b) requiring the removal of
contaminated soils in the vicinity of or beneath the aboveground used oil storage and
processing units at closure.

   m. Other applicable requirements. In addition to complying with the requirements of
subpart F, owners and operators of used oil processing and re-refining facilities who
also transport used oil off-site must comply with the requirements for used oil
transporters in subpart E. Owners and operators of used oil processing and re-refining
facilities who market used oil fuels must comply with the requirements of subpart H;
owners and operators who burn used oil fuels must comply with the requirements of
subpart G. Disposal of used oil must be performed in compliance with the requirements
specified in part 279, subpart I. Similarly, management of used oil processing and
re-refining residuals must be performed in compliance with the existing RCRA
requirements. In addition, used oil generators who recycle used oil on-site in a
manner other than burning for energy recovery must comply with the standards
promulgated today for used oil processors and re-refiners.

5. Standards for Burners of Off-Specification Used Oil Fuel

   a. Applicability. 40 CFR part 279, subpart G applies to owners and operators of
facilities where off-specification used oil fuel is burned for energy recovery in any
boiler or industrial furnace and hazardous waste incinerator subject to regulation
under 40 CFR part 264 or 265, subpart O. The requirements are shown in Table VI.5. The
requirements of 40 CFR part 279, subpart G are applicable to: (1) Owners and operators
of facilities that burn used oil fuel for energy recovery where the fuel does not meet
the specification levels for the constituents listed in  279.11 (previously 40 CFR
266.41); (2) transporters or marketers who burn used oil fuels that do not meet the
specification for used oil fuels (used oil transporters are also subject to 40 CFR
part 279, subpart E and marketers are also subject to 40 CFR part 279 subpart H); and
(3) used oil processing and re-refining facilities that also burn off-specification
used oil fuels (used oil processing and re-refining facilities also are subject to 40
CFR part 279, subpart F). Used oil fuel, or used oil sent off-site to be burned for
energy recovery, includes any fuel produced from used oil through processing,
blending, or other treatment. The requirements of subpart G are merely the existing
requirements of the former part 266, subpart E, with minor modifications. EPA
summarizes these requirements below.

      Table VI.5. -- Standards for Burners of Off-specification Used Oil
               Requirement                 New or       Regulatory citation
                                          Existing
Burners who perform other management
activities                                      New                  279.60(b)
Restrictions on burning                    Existing                     279.61
Notification and EPA identification num-
ber                                        Existing                     279.62
Rebuttable presumption for used oil        Existing    279.63(a), (b), and (c)
Exceptions from rebuttable presumption
for CFC and metalworking oils                   New       279.63(c)(1) and (2)
Record retention for rebuttable presump-
tion                                            New                  279.63(d)
Type of storage units                           New                  279.64(a)
Condition of tanks and containers               New                  279.64(b)
Secondary containment for containers and
existing and new above ground tanks             New     279.64(c), (d) and (e)
Labelling of containers and tanks               New                  279.64(f)
Responses to releases                           New                  279.64(g)
Tracking -- acceptance and recordkeeping   Existing                     279.65
Certification                              Existing                     279.66
Management of residues                          New                     279.67
SPCC requirements, including spill pre-
vention and control                        Existing
                                            (appli-
                                          cable in-
                                             depen-
                                            dently)             40 CFR Part 112
UST requirements, including corrective
action and financial responsibility        Existing
                                            (appli-
                                          cable in-
                                             depen-
                                            dently)             40 CFR Part 280
Inspections                                     N.A                        None
Closure                                         N.A                        None

   The requirements under part 279, subpart G are not applicable to persons burning
used oil fuel that meets the used oil fuel specifications of 40 CFR 279.11, n22
provided the marketer or burner of such fuel complies with the requirements of that
section.

   n 22 The specification levels are: arsenic=5 ppm, maximum; cadmium=2 ppm, maximum;
chromium=10 ppm, maximum; lead=100 ppm, maximum; flash point=100 deg.F, minimum; total
halogens=4,000 ppm maximum.

   Used oils that are hazardous wastes may be burned for energy recovery in compliance
with subpart G of part 279, instead of 40 CFR part 266, subpart H (standards for
burning hazardous waste in boilers and industrial furnaces), provided the used oil
fuel is hazardous solely because it exhibits a characteristic of hazardous waste by
its own nature or was mixed with hazardous waste generated by a conditionally exempt
small quantity generator regulated under 40 CFR 261.5.

   Burners who treat off-specification fuel by processing, blending, or other
treatment to meet the specification levels contained in 40 CFR 279.11, must comply
with the processing and re-refining facility standards of 40 CFR part 279, subpart F
and the used oil marketer standards of subpart H of part 279.

   b. Restrictions. Used oil fuel that is off-specification (i.e., used oil fuel
exceeding any of the specifications of 40 CFR 279.11) may be burned only in industrial
furnaces or boilers (defined in 40 CFR 260.10) that meet the following criteria: (1)
Are located on the site as part of a manufacturing process (e.g., cement kilns,
asphalt plants) where materials are transformed into new products, including the
component parts of products, by mechanical or chemical processes; (2) are utility
boilers that generate electric power, steam, heated or cooled air, or other gases or
fluids for sale for energy purposes; (3) are used oil-fired space heaters, provided
that the burner complies with 40 CFR 279.23; or (4) are incinerators in compliance
with parts 264/265, subpart O. (See  279.61 for the specific restrictions.)

   c. On-site Burning in Space Heaters. Used oil may be burned in a used oil-fired
space heater, 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. The space
heater must have a maximum capacity of not more than 0.5 million BTU per hour and the
combustion gases from the burner unit must be vented to the ambient air.

   d. Notification Requirements. Burners of off-specification used oil fuel must
notify the appropriate EPA Regional Administrator using EPA Form 8700-12 or by
submitting a letter, stating the location and general description of used oil burning
activities, unless the owner or operator of the facility has previously notified the
Agency of their used oil burning activities. Upon receipt of this notification, EPA
will issue an EPA identification number to the burner. This requirement does not apply
to: (1) Burners who only burn specification used oil fuels; (2) burners of
specification used oil fuel who receive the fuel from used oil marketers who have
notified EPA of their used oil management activities and who have provided appropriate
information concerning specification fuel claims; or (3) generators who burn used oil
that is generated on site only in used oil-fired space heaters.

   e. Certification. Before a burner may accept the first shipment of
off-specification used oil fuel from a marketer, the burner must provide a one-time
written notice certifying that the burner has notified EPA stating the location and
general description of the burner's used oil management activities and that the burner
will burn used oil only in an industrial furnace or boiler identified in 40 CFR
279.61(a).

   f. Storage Requirements. Owners or operators of facilities that burn used oil for
energy recovery must store all used oils either in tanks or containers. All
aboveground tanks and containers must be maintained in good condition (i.e., no
visible signs of leaks or structural damage). EPA believes that the practice of
storing used oil in unlined lagoons, ponds, pits or surface impoundments is not very
common and it is inherently unsafe and poses an undue risk to human health and the
environment.  n23 Therefore, today's rule requires that all used oils be stored in
aboveground tanks or containers or in underground storage tanks.

   n 23 Any and all storage in of used oil in surface impoundments or other land-based
units is strictly prohibited unless the owner or operator of the unit operates the
unit in full compliance with 40 CFR part 264/265, subpart K.

   The owner or operator of a facility that burns used oil must label all aboveground
tanks and containers used to store used oil and all fill pipes used to transfer used
oil to underground storage tanks with the words "used oil." EPA is requiring owners
and operators to clearly label storage units used to store used oil to assure against
accidental mixing and ensure that only used oil is placed in tanks reserved for the
storage of used oil.

   Owners or operators of facilities that burn off-specification used oil and who
store used oil in aboveground tanks or containers must equip the storage area
surrounding the existing tanks or storage area holding containers with a floor and
secondary containment structures (dikes, berms, or retaining walls) that are made of a
material that is impervious to oil and that are capable of containing all potential
spills and releases of used oil to soil, surface water, and ground water from the
tanks or containers until the facility owner or operator can take measures to clean up
the release. The floor under existing storage tanks must cover the entire area within
the containment structure, except where existing tank portions meet the ground. For
new tanks, the floor must cover the entire area within the containment structure (for
additional discussion, see section VI.5.f of this preamble).

   EPA is requiring secondary containment for aboveground storage areas because the
Agency has documented that past storage practices at used oil management facilities
has resulted in releases of used oil to the environment. In the background documents
supporting this final rule, EPA has documented damages that have occurred as a result
of past storage practices at used oil management facilities.  n24

   n 24 See "Summary Descriptions of Sixty-Three 'Used Oil' Superfund Sites." and
"Summary Descriptions of Used Oil-Related Damages at RCRA-Permitted Facilities." Both
of these documents are available in the docket for today's rule.

   If used oil is stored in underground tanks, the owner or operator of a used oil
burner facility must comply with the UST requirements of 40 CFR part 280. In addition,
burner facilities that meet the applicability criteria for the SPCC standards in 40
CFR part 112 must comply with those provisions as well.

   g. Response to releases. Owners and operators of used oil burning facilities who
store used oil in aboveground tanks and containers must comply with the same release
response requirements as those promulgated for used oil processing and re-refining
facilities. Whenever there is a release or spill of used oil to the environment, the
owner or operator must remove released used oil and contaminated media from the area,
including used oils held in the containment area. Released used oils and contaminated
media removed from the area must be managed (i.e., treated, recycled, disposed) in
accordance with the requirements of this part and any other applicable parts of this
chapter. These requirements do not apply to past releases that occurred at the
facility prior to the effective date of the used oil program within an authorized
state in which the facility is located. This above requirement applies only when there
is a release to the environment. Under this rule, this would not include releases
within contained areas such as concrete floors or impervious containment area, unless
the releases go beyond the contained area.

   In addition to the provisions listed above for releases of used oil and, in
addition to the corrective action requirements for releases from USTs provided in 40
CFR part 280, subpart F, used oil burners of off-specification fuel are required,
under CERCLA Section 103, to report a release of hazardous substances to the
environment when the release is equal to or in excess of the reportable quantity (RQ)
for the particular substance. Used oils that are contaminated with CERCLA hazardous
substances (e.g., due to the presence of elevated levels of lead) are subject to these
CERCLA release reporting requirements. Therefore, releases of used oil containing such
contamination into the environment in quantities greater than the reportable quantity
must be reported to the National Response Center. The current RQs for CERCLA hazardous
substances are listed in 40 CFR 302.4. In addition, under 40 CFR part 110, any
discharge of oil that violates applicable water quality standards or causes a film or
sheen on a water surface must be reported to the National Response Center.

   h. Used oil fuel analysis (halogens). A used oil burner must ensure that any used
oil fuel handled at the burner's facility is not mixed with hazardous wastes. EPA will
continue to presume (per  261.3(a)(2)(v), previously  266.40) that any used oil
containing more than 1,000 ppm halogens has been mixed with chlorinated hazardous
wastes. To rebut this presumption, the owner or operator must be able to document that
the used oil fuel was not mixed with hazardous waste (e.g., by demonstrating that the
presence of 1,000 ppm or more of total halogens is from some other source).

   Note: Used oil fuel processors or marketers may conduct analyses to document that
the used oil contains less than 1000 ppm halogens. Used oil burners may use this
information in making their own determination and in rebutting the presumption of
mixing.

   i. Recordkeeping and Reporting Requirements. A burner who receives an invoice from
a used oil marketer under the requirements of Subpart H must maintain a copy of each
invoice for at least three years. Documentation of any used oil fuel analyses also
must be maintained for at least three years. A burner must maintain a copy of each
certification sent to a marketer for at least three years from the date the burner
received the last shipment of off-specification used oil fuel from that marketer. A
burner may use an acceptance/delivery log in lieu of an invoice.

   No reporting requirements are being promulgated for used oil burners of
off-specification fuel. EPA believes that the Agency will be able to obtain
burner-specific information by inspecting invoices kept by burners and the
acceptance/delivery logs kept by collectors/transporters, processors, and re-refiners.

   j. Possible future regulations for used oil burners. EPA received several comments
suggesting that EPA revise the used oil fuel specification levels, particularly for
lead. Such comments are beyond the scope of today's rule, since EPA did not propose
any changes and EPA does not address these comments here. None the less, as noted in
the 1991 Supplemental Proposal, EPA intends to conduct additional studies of used oil
burning activities to address public concerns regarding potential lead emissions from
used oil burners. After such studies are complete, EPA may either develop emissions
standards for used oil burners or may revise the current specification limits for used
oil fuels, if analysis suggests that additional controls are necessary to protect
human health and environment.

   EPA believes that the phase-down of lead in gasoline over the past 6 to 8 years may
have resulted in a significant reduction of lead levels in used oils generated from
gasoline-powered engines. The Agency's pre-1985 data show that used automotive engine
oils that were sampled from storage tanks at processing and re-refining facilities
averaged around 1,200 ppm lead. On the other hand, the Agency's data that were
collected in 1988 and 1989 and the data submitted by the commenters in response to the
1991 Supplemental Proposal suggest that used oils from gasoline-powered engines that
were sampled from storage tanks averaged approximately 80 ppm lead. These data suggest
that the Lead Phase-down Program may have had a significant effect on reducing the
lead in gasoline. Based on these data, EPA believes that a significant amount of used
oil does not fail the used oil fuel specification limit for lead. However, if the
Agency determines that the specification limit for lead should be lowered, greater
quantities of used oil may then exceed the specification requirements.

   k. Closure Requirements. In the 1985 and 1991 proposals, EPA considered deferring
closure requirements for used oil burners, based on the lack of risk data supporting
the need for closure requirements at these sites. Since 1991, while reviewing the
available Superfund site information and RCRA enforcement case data, the Agency has
not located substantive damage information specific to burners. This leads the Agency
to believe that environmental damages at used oil burner sites does not appear to be a
substantial concern (i.e., have not resulted in environmental damage of a significant
magnitude that it has resulted in the site being identified as the NPL site).
Therefore, the Agency believes that closure requirements for used oil burners are
unnecessary at this time, hence, EPA is deferring such requirements.

   6. Standards for Used Oil Fuel Marketers

   On November 29, 1985, EPA promulgated notification, analysis, and recordkeeping
requirements for marketers of used oil fuels as part of the used oil final Phase I
burning regulations (40 CFR 266.43). Today EPA is consolidating all of the regulations
related to recycled used oil into one part of the CFR to alleviate confusion on the
part of the regulated community and to provide consistency in the regulations.
Therefore, the used oil fuel marketer requirements previously codified as 40 CFR
266.43 will now be codified as 40 CFR part 279, subpart H (Standards for Used Oil Fuel
Marketers). EPA is changing the designated codification of the used oil fuel marketer
requirements and reordering the appearance of these requirements without modification.
Table VI.6 summarizes the requirements established for the used oil fuel marketers.

            Table VI.6. -- Standards for Marketers of Used Oil Fuel
              Requirement                 New or existing   Regulatory citation
Prohibitions                                       Existing            279.71.
On-specification used oil-analysis                 Existing            279.72.
Notification and EPA identification
number                                             Existing            279.73.
Tracking -- off-specification fuel      Existing (invoices)         279.74(a).
Tracking -- on-specification fuel                  Existing         279.74(b).
Recordkeeping                                      Existing         279.74(c).
Certification                                      Existing            279.75.

   The used oil fuel marketer requirements are applicable to all used oil handlers
that market used oil fuels. Fuel marketing is an activity that may be undertaken by
used oil generators, transporters, processors, re-refiners, and used oil burners. Used
oil handlers may certify that they are marketing off-specification used oil fuel or
first claim that the used oil fuel they are marketing to non-industrial boilers and
furnaces meets the specification limits established for used oil fuel. Under today's
regulation, no party in the used oil industry can be simply a marketer. EPA believes
that marketing is an activity that a used oil handler undertakes when selling used
oils as a fuel. An entity that is selling off-specification used oil fuel can either
be a generator or a transporter or in some cases a processor or re-refiner. Similarly,
an entity selling specification used oil fuel may be a generator, transporter,
processor, re-refiner, or a fuel oil dealer. A decision to market used oil as an
off-specification fuel is solely an economic decision depending on the costs
associated with marketing used oil as on-specification fuel (i.e., used oil fuel
meeting the specification limits). In the former case, used oil is shipped, as
generated or consolidated without any processing, to an industrial boiler or furnace.
In the later case, however, used oil is blended or processed to produce
on-specification used oil fuel and is analyzed to document the claim that it meets the
specification limits. Therefore, the marketing requirements of 40 CFR part 279,
subpart H, in addition to all other applicable provisions of part 279, apply to all
used oil marketers.

   Under today's definition of marketers, it is logically impossible for a facility to
be only a marketer of used oil fuel. EPA believes that a marketer of used oil fuel
must either have generated, transported/stored at a transfer facility, and/or
processed the used oil before marketing the used oil fuel. EPA received comments
stating that persons who blend used oils from other sources should be regulated only
as marketers. EPA disagrees. EPA believes that any person who blends different used
oils should be treated as processor (recycler) under today's rules. The blending and
fuel production processes, and the associated storage of oils and fuels, have posed
environmental risks as documented in the information available for the fuel oil
marketers identified as NPL sites and from the RCRA enforcement actions being pursued
by the Agency. Thus, EPA believes it is appropriate to regulate those who blend used
oils to produce fuels under the processor/re-refiner standards established today.
However, those facilities who consolidate shipments of used oil before sending the
consolidated oil for recycling are classified as transfer facilities and are subject
to the transporter standards.

   7. Standards for Disposal of Used Oil and Use as a Dust Suppressant

   a. Disposal of Used Oil. As explained above, EPA believes that most used oils are
recyclable. Since there are cases where particular types or batches of used oil are
not recyclable, EPA understands the need to provide for the safe and proper disposal
of used oils in these limited circumstances. EPA is today promulgating disposal
standards for non-recyclable used oils under 40 CFR part 279, subpart I given in Table
VI.7.

  Table VI.7. -- Standards for Use as a Dust Suppressant and Disposal of Used
                                      Oil
              Requirement                 New or existing   Regulatory citation
Disposal                                                New             279.81
Use as a dust suppressant                               New             279.82

   On May 20, 1992 (57 FR 21524), EPA promulgated a listing determination for used
oils that are disposed. EPA determined that it was not necessary to list these used
oils because those used oils that present an undue risk to human health and the
environment typically and frequently fail the toxicity characteristic leaching
procedure. Since such used oils are identified as a RCRA hazardous waste, EPA saw no
need to list any used oils as hazardous waste when they are disposed.

   Used oils that are identified as hazardous wastes and are not recyclable must be
handled and disposed of as hazardous wastes in accordance with all applicable subtitle
C regulations. Used oils that are hazardous wastes because they exhibit one or more
characteristics of hazardous waste and are destined for disposal must be accompanied
by a hazardous waste manifest when shipped off-site and must be transported to a
permitted or interim status subtitle C disposal facility. In addition, all wastes that
fail the extraction procedure toxicity (EP) test are currently prohibited from land
disposal under 40 CFR part 268.

   Used oils that are not mixed with listed hazardous wastes and do not exhibit a
characteristic may be disposed of in an industrial solid waste landfill or a municipal
solid waste landfill. Used oils that are disposed in municipal solid waste landfills
after October 9, 1993, must be managed in accordance with the requirements of 40 CFR
part 258. In addition, all nonhazardous used oils that cannot be recycled must be
disposed of in accordance with all applicable Federal and State solid waste
regulations.

   b. Use as a Dust Suppressant. In the 1985 proposed used oil management standards,
EPA proposed to list all used oils as hazardous waste. Since the Hazardous and Solid
Waste Amendments banned the use of all hazardous wastes (those that are either listed
or exhibit a hazardous waste characteristic other than ignitability) as dust
suppressants, the proposed listing of used oils had the effect of banning the use of
any used oil as a dust suppressant. Used oils are banned from use as dust suppressants
under the statute only when mixed with a listed hazardous waste or when they exhibit
the Toxicity Characteristic.

   Although the Agency has determined that used oils need not be listed as hazardous
wastes, EPA still believes that used oils should not be used for road oiling or as
dust suppressants due to the tendency for used oils to contain hazardous wastes or be
contaminated with hazardous or toxic constituents. There was overwhelming support from
commenters for a ban on the use of used oil for road application and dust suppression.
Direct application of used oil to the land allows for direct exposure of used oils and
all potential contaminants to the environment. Therefore, in today's final rule, EPA
is banning the use of all used oils for road or land application.

   EPA recognizes that some states have established road oil control programs. A
recent survey of states, however, showed that road oiling is not widely practiced,
even in states that have such programs. Today's rule provides for states who wish to
continue to allow road oiling under programs designed to control such activities to
petition EPA to exempt their state from the national ban. This petition would usually
be part of the state authorization package, but it may be a separate petition (i.e.,
from an unauthorized state). The petition should show how the state will prevent the
road application of used oil that is mixed with hazardous waste or that exhibits the
toxicity characteristic. The petition should generally demonstrate how the state will
minimize environmental impacts of road oiling.

E. Response to Major Comments

   1. Listing Used Oil as a Hazardous Waste

   Commenters overwhelmingly supported the option not to list used oils as hazardous
waste but to rely on management standards to control potential mismanagement of used
oils. In fact, commenters to the 1991 Supplemental Notice overwhelmingly supported
listing Option Three, no listing of used oils and reliance on management standards to
control mismanagement of used oils. EPA has concluded that existing EPA regulations,
and particularly the Toxicity Characteristic, adequately control the disposal of used
oils that are hazardous wastes. The new Federal criteria for municipal solid waste
landfills in part 258, as well as the stormwater regulations and TSCA requirements,
adequately regulate the disposal of nonhazardous used oils.

   Based on public comments and the recycling presumption discussed in the 1991
Supplemental Notice, EPA has determined that used oils that are recycled do not pose a
substantial present or potential threat to human health and the environment when they
are managed in accordance with the standards promulgated today from the time they are
generated until they are recycled in addition to the existing requirements under other
statutes or regulatory programs. In making a no-list determination, EPA considered the
technical criteria for listing in 40 CFR 261.11, the fate and possible mismanagement
of recycled used oils, and the impact of the management standards proposed in 1985 and
1991 on the recycling of used oils, and as discussed above, EPA has concluded that the
management standards issued today control those problems that have occurred in used
oil recycling. Therefore, listing used oil is not necessary to ensure adequate
protection.

   2. Mixtures

   Commenters were nearly unanimous in support of EPA's proposal to exclude wipers and
other materials contaminated with used oil from the proposed listing. Based on public
comments and commenter-submitted data, the Agency has decided not to list any used
oils as hazardous wastes. Therefore, mixtures of used oils and other materials are not
automatically hazardous wastes via the mixture rule. Mixtures of used oils and listed
hazardous wastes will be regulated as hazardous wastes, whether they are recycled or
not. Mixtures of used oil and characteristic hazardous waste that exhibit a hazardous
waste characteristic also must be managed as a hazardous waste, whether they are
recycled or not. However, mixtures of nonhazardous materials and used oils that
exhibit a characteristic by their own nature (i.e., the used oil is characteristically
hazardous prior to mixing) or mixtures of used oil and characteristic hazardous waste
that do not exhibit a characteristic are subject to the standards in part 279 if they
are being recycled. Of course, if such a mixture cannot be recycled and the mixture
exhibits a characteristic, it must be disposed in accordance with all applicable
subtitle C regulations.

   Mixtures of used oil and other materials generally will be regulated under part
279. However, as discussed above, EPA has exempted wastewaters contaminated with very
small amounts of used oil, since such mixtures are not likely to pose a significant
hazard. If mixtures of used oil and sorbent materials from which used oil can not be
separated, however, are burned for energy recovery, the Agency believes that such
recycling is acceptable. In addition, it is subjected to the existing used oil
specification fuel requirements that are in effect since 1985 and recodified in part
279 today.

   3. Controls on Disposal

   Commenters supported EPA's proposal to develop guidelines for the disposal of
non-hazardous used oil. The standards being promulgated today as part 279 apply to all
used oils that are being recycled. Based upon the representations of commenters that
most used oil is recyclable and is indeed recycled once it is collected, EPA has
adopted a "recycling presumption," which means that the Agency presumes that all used
oils will be recycled. A used oil handler who has used oils that cannot be recycled
must dispose of the used oil properly. Hazardous used oils must be disposed in
subtitle C facilities and new Federal Criteria for municipal solid waste landfills
under part 258, which go into effect in October, 1993, will control nonhazardous used
oils that are disposed. For these reasons, EPA believes that establishing guidelines
for the disposal of used oils is unnecessary.

   4. DIY-Generated Used Oils

   Nearly all the commenters said that listing used oil as a hazardous waste would
discourage the recycling of DIY-generated used oil. As discussed above, EPA is not
listing any used oils as hazardous wastes. As a result, the major disincentive cited
by commenters for used oil generators to continue accepting used oil from DIY
generators has been removed. Nonetheless, in the September 1991 Supplemental Proposal,
EPA put forth several non-regulatory incentive options for encouraging increased
collection and recycling of DIY-generated used oils. EPA has not evaluated all of
these incentive programs to date but will continue to assess the need for DIY
incentives, and development of a non-regulatory scheme for DIY used oils may be part
of a future used oil package.

   5. Recycling Presumption Criteria

   As discussed in VI.B of this preamble almost all commenters supported the concept
of the recycling presumption, but few supported establishment of formal criteria of
"nonrecyclability." Commenters were concerned that the criteria for rebutting the
recycling presumption (e.g., water content, BTU value, or any other measure) are not a
meaningful measure of recyclability, since basically any used oil can be recycled and
the degree of treatment prior to recycling is a function of the cost to the used oil
generator. EPA has determined that it is not practical to set such criteria.
Therefore, EPA is not establishing formal criteria on which to base a determination of
nonrecyclability. Rather, a used oil handler who is not recycling used oils under part
279 must dispose of the used oil in compliance with applicable regulations. In other
words, the used oil handler then must determine whether the used oil exhibits any
characteristic of hazardous waste and manage the used oil accordingly.

   6. Ban on Road Oiling

   Commenters agreed that used oils are currently not widely used for road oiling and
dust suppression. In fact, 41 out of 50 states prohibit the use of used oil for these
purposes. The Agency is aware, however, that the other states allow this practice
under certain permitting conditions and at least one commenter favored allowing road
oiling under specified conditions. Today's final rule is promulgated pursuant to
pre-HSWA authority, specifically, the Used Oil Recycling Act of 1980. Due to this
fact, a Federal ban on road oiling will be effective only in unauthorized states on
the effective date of this rule. The ban will not be effective in authorized states
until the state modifies its program by adopting the ban provision and EPA approves
the modification. Under the provisions being promulgated today, a state may submit a
waiver to EPA to allow road oiling in that state in accordance with state laws and
regulations.

   7. CERCLA Liability

   Most comments received in response to the 1991 Notice supported implementation of
the liability exemption in CERCLA section 114(c). In addition, many commenters favored
elimination of a small quantity generator category in the part 279 standards. EPA is
not establishing any used oil generator cut-off based on generation rate. All used oil
generators are subject to uniform standards in part 279. As a result, no change is
necessary to trigger the applicability of the exemption from liability in CERCLA
section 114(c). Any used oil generator who meets the statutory definition of a
"service station dealer" is eligible for the liability exemption.

   8. Storage

   Most commenters agreed that minimum technical requirements (e.g., tanks and
containers kept in good condition, clean up of spills associated with used oil
storage) are necessary for the storage of used oil under part 279. The regulations
promulgated today require that used oil be stored in tanks and containers that are
maintained in good condition, with no visible leaks or signs of deterioration. These
minimum standards provide a certain level of control against leaks and releases from
storage units. Additional controls, such as secondary containment for storage areas
provide further assurance against migration of used oil and prevention against the
contamination of soil, surface water, and ground water. EPA believes that at used oil
facilities the use of continuously fed tanks for aboveground storage is limited and
when such tanks are being used the owner/operator would install proper shut off valves
and other controls to ensure that flow of material between the tanks is restricted in
case of a tank rupture or other accidental releases.

   9. Secondary Containment

   Due to commenter's concerns regarding the technical and financial burden associated
with the 40 CFR parts 264/265, subpart J secondary containment requirements, the
Agency is not requiring full secondary containment, such as double-walled tanks, for
used oil storage. Used oil transporters, processing and re-refining facilities, and
burner facilities must instead equip their tanks and containers with secondary
containment consisting of dikes, berms, or retaining walls and a floor. All components
of the containment system must be sufficiently impervious to oil to prevent any used
oil released to the containment system from migrating out to the soil, ground water,
or surface waters. EPA believes that the requirements promulgated today are less
burdensome than the supart J requirements, yet they are sufficiently protective of
human health and the environment. Although, subpart J standards are not required by
today's rule, such requirements, such as a double-walled tank, however, would be
sufficient for compliance with today's requirements.

   10. Financial Responsibility

   In the September 1991 Supplemental Notice, EPA proposed to defer the establishment
of financial responsibility requirements for the clean up and closure of used oil
generator sites and used oil facilities where used oil is stored in aboveground tanks
and containers. Based on commenters' concerns regarding the costs and availability of
financial assurance mechanisms, the Agency is not requiring used oil handlers to
demonstrate financial responsibility for releases of used oil, except as provided
under 40 CFR part 280 for underground storage tanks. EPA agrees with the commenters
that a formal financial responsibility requirement similar to that in parts 264/265 is
overly burdensome for the majority of used oil handlers. In addition, such a
requirement should not be necessary because used oil generally is not stored for long
periods of time due to its recyclability and marketability as a commodity. Thus, there
is little likelihood of catastrophic spills that might require expensive clean up
activities. EPA determined that financial responsibility requirements established in
subpart H of part 264/265 is not necessary since unit closure requirement rather than
a facility closure requirement is imposed today. The facilities managing used oil in
land-based units, however, must be closed like RCRA subtitle C landfills, if the used
oil contained in the units subject to closure exhibits characteristic of toxicity.

   11. Permit-By-Rule

   The majority of commenters believed that the permit-by-rule mechanism was
unnecessary for implementation and enforcement of the used oil management system under
part 279. EPA agrees with the commenters and has not established any permit-by-rule
requirements for used oil facilities. The Agency believes that the recordkeeping
requirements in part 279 will provide sufficient information for enforcement of the
used oil management standards. The Agency decided against the permit-by-rule
requirement because the requirements in today's rule are basic management practices
that are largely self-implementing and do not require additional permit consideration
of site-specific conditions.

   12. Definition of Used Oil

   In 1985 and in 1991, EPA proposed a definition of used oil that followed the
statutory definition of used oil, but included used synthetic oils within the
definition. Several commenters contended that synthetic oils should not be included
because they are not in the statutory definition. The definition of used oil
promulgated today, as the definition proposed in 1985 and 1991, is very similar to the
existing definition in 40 CFR 266.40(b) and the statutory definition in section
1004(36) of RCRA. The only change is the inclusion of synthetic oils within the
definition, including those derived from coal or shale. As discussed in the 1985
preamble, EPA believes that synthetic oils should be included in the definition of
used oil due to the fact that these oils generally are used for the same purposes as
petroleum-derived oils, are mixed and managed in the same manner after use, and
present the same level of hazard as petroleum-based oils.

    VII. Effective Date

   Under RCRA section 3010(b), hazardous waste regulations are generally to become
effective six months after final rule promulgation. EPA believes that the policy
reasons for allowing facilities six months to come into compliance with new RCRA
hazardous waste rules also apply to today's used oil management standards. Therefore,
today's final rule for the used oil listing decision and used oil management standards
will become effective on March 8, 1993. However, as explained below, in most states
the rule will take effect in two to three years, as states adopt the new requirements.

VIII. State Authorization

A. Applicability in Authorized States

   Under section 3006 of RCRA, EPA may authorize qualified states to administer and
enforce the RCRA program for hazardous wastes within the State. (See 40 CFR part 271
for the standards and requirements for authorization.) Section 3006(h) of RCRA allows
EPA to authorize state used oil management programs in the same manner as state
hazardous waste programs, even if EPA does not identify or list used oil as a
hazardous waste. In addition, EPA retains enforcement authority under sections 3008,
7003, and 3013 of RCRA following authorization of State used oil programs, although
authorized States have primary enforcement authority. Sections 3008(d)(4), (d)(5), and
(d)(7) of RCRA further clarify that EPA may assess criminal penalties for violations
of used oil standards even if it does not identify used oil as a hazardous waste.

   For rules written under RCRA provisions that predate the Hazardous and Solid Waste
Amendments of 1984 ("HSWA"), States with final authorization administer their
hazardous waste programs entirely in lieu of EPA's federal program. The Federal
requirements no longer apply in the authorized State. When new, more stringent Federal
requirements are promulgated or enacted, the State must develop equivalent authorities
within the timeframe set out in the part 271 regulations. The new Federal
requirements, however, do not take effect in an authorized State until the State
adopts the requirements as a State law. EPA may not enforce them until it approves the
State requirements as a revision to the authorized State program.

   The Hazardous and Solid Waste Amendments of 1984 revised this system for
requirements and prohibitions imposed under provisions added to the statute by the
1984 Amendments. New HSWA rules take effect in authorized States at the same time that
they take effect in nonauthorized States. EPA is directed to carry out the HSWA
requirements in authorized States until the State is granted authorization to do so.
While States must still revise State law to impose HSWA requirements to achieve or
retain RCRA authorization, the Federal rules apply until they do so.

   Today's rules are generally more stringent than the preexisting Federal rules,
which exempted recycled used oils from regulation as hazardous wastes, but provided
management standards only for the burning of off-specification used oils. (See former
40 CFR part 266, subpart E.) Thus, states will be required to revise their programs to
address today's rules. Moreover, the requirements for burning off-specification used
oil promulgated today are more extensive than the preexisting rules. EPA consequently
expects that all States that adopted rules to reflect the existing requirements will
need to revise their rules to be equivalent to the new "off-spec" standards.

   Today's rules, however, are promulgated under section 3014(a) of RCRA, a provision
that predates the 1984 amendments. The rules will take effect in states that do not
have final authorization six months from the date that this rule is published in the
Federal Register. In authorized states, the rules will not be applicable until a State
revises its program to adopt equivalent requirements under State law.

   40 CFR 271.21(e)(2) requires States that have final authorization to modify their
programs to reflect Federal program changes and to submit their modifications to EPA
for approval. The deadline by which the State must modify its program to reflect
today's rules is July 1, 1994, if a statutory change is not needed, or July 1, 1995,
if a statutory change is necessary. These deadlines may be extended in certain cases
under 40 CFR 271.21(e)(3). Once EPA approves the State's submission, the State
requirements become federally enforceable subtitle C requirements.

   Unauthorized States that submit their final applications for initial authorization
less than 12 months after the effective date of this rule are not required to include
standards equivalent to these in their applications. Such states, however, must modify
their programs to reflect today's rules under the schedule described above. States
that submit final applications for initial authorization more than 12 months after the
effective date of this rule must include standards equivalent to these rules in their
applications. 40 CFR 271.3 sets out the requirements a state must meet when submitting
a final application for initial authorization.

   States with authorized RCRA programs already may have requirements similar to those
in today's rule. These States may continue to enforce and administer their standards
as a matter of State law. Such State rules, however, have not been assessed against
the Federal rules promulgated today to determine whether they meet the statutory and
regulatory requirements for authorization. Thus, such State rules cannot be considered
part of the Federal RCRA program. EPA may not enforce them at this time.

    B. Administration

   As discussed in section VI.D. of the preamble, a used oil handler (e.g.,
transporter, processor/re-refiner, burner of off-specification rule, and marketer) who
has not notified the EPA of the used oil management activity (e.g, used oil
transporting, used oil processing and re-refining, fuel oil marketing, and burning of
used oil as off-specification fuel) must notify the Agency of used oil activities and
obtain an EPA identification number. The used oil generators are not subjected to the
notification or EPA identification number requirement. Since 1985, the existing used
oil marketers and burners of off-specification fuel have notified and have obtained
the EPA identification numbers.

   Used oil handlers who would be new to used oil recycling business must notify of
their activity under regulations established to implement section 3010 of RCRA.  n25
That is, in the unauthorized states, a used oil handler who has not previously
notified of the used oil management activities must obtain an EPA notification form
from EPA and submit the form (or a letter) 90 days from publication of these rules. In
authorized states, the notification deadline will be established under state law
(which must be no later than 90 days from effective date of state's used oil rulers).
The used oil handlers will obtain notification forms from state and submit forms (or
letters) with state.

   n 25 The regulations established today regulate used oil under the authority of
section 3014(a) of RCRA. Since EPA is not listing or identifying recycled used oil as
a hazardous waste under today's rule, section 3010 of RCRA technically does not apply.
EPA is, however, incorporating the 3010 notification requirements into its used oil
management standards.

   Those used oil generators who intend to become eligible for an exemption from the
third-party liability under the CERCLA section 114(c) are required to use the used oil
transporters with EPA identification number for sending used oil for offsite
recycling. In authorized states, such generators must make sure that the used oil
transporter they intend to use has notified the Agency and has an EPA identification
number.

IX. Relationship of This Rule to Other Programs

A. RCRA

   Land Disposal Restrictions

   HSWA mandated that the Agency promulgate land disposal prohibition determinations
under a specific schedule for wastes identified and listed prior to the enactment of
HSWA (RCRA sections 3004(d), 3004(e), and 3004(g)(4), 42 U.S.C. 6924 (d), (e) and
(g)(4). If the Agency failed to promulgate land disposal restrictions by the dates
specified in section 3004(g)(4), the wastes were absolutely prohibited from land
disposal after May 8, 1990 (or in some cases November 8, 1986, or July 8, 1987). HSWA
also requires the Agency to make a land disposal prohibition determination for any
hazardous waste that is newly identified or listed in 40 CFR part 261 after November
8, 1984, within six months of the date the new listing is promulgated (RCRA section
3004(g)(4), 42 U.S.C. 6924(g)(4). However, the statute does not provide for automatic
restriction or prohibition of the land disposal of such wastes if EPA fails to meet
this deadline.

   Since used oils that are recycled are exempt from subtitle C regulation under 
261.6(a)(4), used oils that are recycled are not subject to the land disposal
restrictions requirements of 40 CFR part 268. In effect, today's part 279 standards
are crafted to restrict the land disposal of used oils and, therefore, the used oil
management standards further the goals of the LDR program. Used oils that are disposed
and exhibit a hazardous characteristic or are mixed with a listed hazardous waste
remain subject to all applicable subtitle C requirements, including the land disposal
restrictions requirements of 40 CFR part 268.

   Wastes, including used oils that are destined for disposal, that exhibit the TC are
considered newly identified wastes and are not yet covered by the LDR, unless also EP
Toxic (see the Third Land Disposal Restrictions Rule, June 1, 1990, 55 FR 22520). EPA
published an Advance Notice of Proposed Rulemaking for the land disposal restriction
of TC wastes (56 FR 55160, October 24, 1991) and continues to evaluate the
treatability and capacity analyses for these wastes. The Agency is currently
developing a final rule to address this issue.

B. MARPOL 73/78

   The International Convention for the Prevention of Pollution from Ships (1973), as
modified by the 1978 Protocol addressing the same topic, is known as MARPOL 73/78.
This is an international agreement that focuses on preventing ship-generated ocean
pollution. Annexes I-V of MARPOL 73/78 address ocean pollution from oil, noxious
liquid substances (i.e., bulk liquid chemicals), harmful substances, sewage, and
garbage, respectively.

   Concerning today's rule, the Agency believes that used oil and hazardous waste
management requirements apply to used oil generated upon ships only upon removal of
the oily waste from the ship. Therefore, used oil on-board is not subject to RCRA
requirements, and MARPOL requirements applicable to on-board oil wastes (hazardous and
non-hazardous) will not conflict with the part 279 requirements.

   The Agency has determined that the ship owner/operator, the owner of the used oil,
and the person removing the used oil from the ship can all be considered "generators"
of the used oil for purposes of 40 CFR 260.10. Any of these parties could perform any
or all of the duties of the generator.

C. Clean Water Act (CWA)

   The Clean Water Act authorizes EPA to control the discharge of pollutants into
navigable waters. Section 311(b)(5) of the Act establishes reporting requirements for
the release of hazardous substances and oils into navigable waters, which include
wetlands. Concerning used oil, releases of oil to navigable waters that (1) cause a
sheen to appear on the surface, (2) violate applicable water quality standards, or (3)
cause a sludge or emulsion to be deposited beneath the surface of the water or
adjoining shorelines is reportable.

   The Clean Water Act and recently enacted Oil Pollution Act authorize EPA to
regulate activities that may harm navigable waters. As part of this mandate, EPA has
established the Spill Prevention Control and Countermeasure (SPCC) program, which is
designed to protect surface water from oil contamination. Each facility subject to the
requirements is required to prepare and maintain an SPCC plan, which includes
provisions for appropriate containment or diversionary structures to prevent
discharged oil from reaching navigable waters. Concerning today's rule, used oil
handlers must comply with all applicable SPCC requirements contained in 40 CFR part
112. EPA has, however, built the part 279 requirements upon the existing SPCC rules to
minimize disruptions to existing regulatory programs.

D. Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA)

   Section 104 of CERCLA authorizes the federal government to respond to any release
or substantial threat of a release into the environment of any hazardous substance and
any release or threatened release of a pollutant or contaminant that may present an
imminent and substantial danger to public health. Section 101(14) defines the term
"hazardous substance" and section 101(33) defines "pollutant or contaminant." Both of
these definitions expressly exclude "petroleum, including crude oil or any fraction
thereof" unless a petroleum waste has been specifically listed under RCRA or other
environmental statutes. The Agency has interpreted the petroleum exclusion to include
crude oil and fractions of crude oil, including hazardous substances that are
indigenous in petroleum substances. However, hazardous substances that are added to
petroleum or that increase in concentration solely as a result of contamination of the
petroleum are not part of the petroleum and thus are not excluded.  n26 Therefore,
used oil that contains a hazardous substance due to contamination is subject to CERCLA
reporting, response, and liability provisions.

   n 26 Memorandum from Francis Blake, EPA's General Counsel, concerning the CERCLA
petroleum exclusion, July 31, 1987.

E. Hazardous Materials Transportation Act (HMTA)

   The U.S. Department of Transportation (DOT) regulates the transportation of
hazardous materials n27 in commerce (49 CFR parts 171 to 179). The regulations
address: (a) Interstate transportation of hazardous materials by motor vehicle, rail
car, aircraft and vessel and (b) intrastate transportation of certain hazardous
materials (hazardous wastes, hazardous substances, and flammable cryogenic liquids in
portable tanks and cargo tanks) by motor vehicle. Used oil may be flammable or
combustible under DOT classifications. In addition, used oil that exhibits a
characteristic of hazardous waste and is destined for disposal is classified as a
hazardous material due to the requirement that hazardous used oils being disposed must
be accompanied by a hazardous waste manifest.

   n 27 Any material identified or classified as a hazardous waste under RCRA is
classified a hazardous material under DOT (49 CFR 171.3).

   Used oil generators (shippers) have to comply with any and all applicable DOT
regulations for identification and classification, packaging, marking, labeling, and
manifesting of used oil that is destined for disposal. Transporters (carriers) will
have to comply with any and all applicable DOT regulations for placarding,
manifesting, recordkeeping, reporting, and incident response for such used oils.

F. Toxic Substances Control Act (TSCA)

   TSCA authorizes EPA to control the manufacture, import, use and disposal of
chemical substances. Section 6(e) of TSCA mandates EPA to control the manufacture,
import, use, and disposal of polychlorinated biphenyls (PCBs). A primary use of PCBs,
a viscous oil, was as an insulating material for electrical equipment (dielectric).
PCBs were almost always mixed with mineral oil, silicone, or other oily materials.
Because of the potential hazards posed by the uncontrolled use and disposal of PCBs,
EPA has established a comprehensive program to control PCBs from cradle to grave.

   TSCA regulations control the use of PCBs used for dust suppression. 40 CFR
761.20(d) prohibits the use of "waste oil" that contains any detectable concentration
of PCBs as a sealant, coating, or dust control agent. Concerning today's rule, used
oil used for dust suppression must meet the requirements of both RCRA and TSCA.

   A release of 1 pound of PCBs into the environment must be reported immediately to
the National Response Center in accordance with section 103(c) of CERCLA. However,
TSCA regulations require that any spill of material containing 50 ppm or greater PCBs
into sewers, drinking water, surface water, grazing lands, or vegetable gardens must
be reported. Concerning today's rule, if the used oil contains PCBs, the most
stringent, applicable reporting requirement must be followed.

X. Regulatory Impact Analysis

   Today's final rule combines a decision not to list recycled used oil with a set of
tailored management standards for recycled used oil under section 3014 of RCRA
applicable to used oil generators and subsequent handlers. This section of the
preamble summarizes the cost and economic impact screening analysis of the 1992 used
oil management standards.

   Executive Order 12291 (46 FR 13193) requires that a regulatory agency determine
whether a new regulation will be "major" and, if so, that a Regulatory Impact Analysis
(RIA) be conducted. Three criteria are used to define a major rule: (1) That the rule
has an annual effect on the economy of $100 million or more, (2) that the rule creates
a major increase in costs or prices, or (3) that the rule has significant adverse
effects on competition, employment, investment, productivity, innovation, or the
ability of US based enterprises to compete with foreign-based enterprises in domestic
or export markets. The Environmental Protection Agency believes that the 1992 Used Oil
Management Standards do not comprise a major rule, and therefore a complete RIA is not
required. The results of this cost screening analysis support this conclusion. A
further discussion of the cost screening analysis is available in the regulatory
docket for today's rule in a report titled, "Cost and Economic Impact of 1992 Used Oil
Management Standards," August 4, 1992.

   Based on the preliminary cost screening analysis for the options presented in the
September Supplemental Notice, public comments received, and subsequent analysis in
response to comments, the Agency estimates that these management standards will most
likely impose nationwide annualized compliance costs of less than $10 million per
year, within a range of between $4 and $11 million. Costs of this magnitude are not
expected to result in measurable changes in recycled used oil flows, either for
on-site uses or within the commercial recycling sectors. With possible localized
exceptions, the Agency does not expect the standards to result in a substantial number
of business failures among used oil recycling companies or to affect employment,
prices, or international trade in any measurable degree.

   Although the Agency has not been able to adequately quantify the benefits to the
environment or to human health of these management standards, due to the lack of
comprehensive data on the frequency and extent of used oil releases to the
environment, EPA believes that today's decisions will result in two principal types of
benefits. First, by requiring specific secondary containment measures for used oil
storage and other tankage at all major used oil handling facilities, the Agency is
providing an additional safeguard against any substantial environmental release of
used oil to the soil, to ground waters, or to surface waters at points where releases
would be most likely to occur.

   The Agency does not expect today's decisions by themselves to substantially expand
used oil recycling. However, it is a relatively low cost insurance policy against the
environmental mismanagement of used oil resources within the commercial recycling
sectors. Implementation of section 3014 management standards limits CERCLA liability
for those automobile servicing facilities that accept do-it-yourselfer (DIY) used oil
for recycling and thus encourages expansion of collection locations. Thus, today's
rule is consistent with the could provide a necessary complement to a wide variety of
possible future private sector, State, or federal government initiatives to encourage
increased recycling of household and other do-it-yourselfer used oil not presently
being adequately managed and which is generally not effectively controlled by
traditional regulatory approaches.

   The remainder of this section of the preamble briefly describes the major options
for management standards considered by the Agency in reaching today's decision,
summarizes estimated compliance cost, and reviews expected impacts.

    A. Regulatory Options Considered

   EPA has considered a wide range of management standards options over the years,
ranging from a listing of used oil as a hazardous waste under virtually full subtitle
C standards for generators and handlers to various tailored options under section
3014(a) of RCRA. A summary of the approximate compliance costs for several of these
alternatives is presented in Table X.1.

Table X-1. -- Historical Comparison of Compliance Costs of Options Considered
                 for Used Oil Management Standards
                     [Millions of 1991 dollars per year]
Listing recycled used oil as hazardous waste without tailored 3014
standards (1985 proposal option updated to 1991) 1                        $500
Section 3014 management options (1985 proposal updated to 1991) 2         $204
1991 supplemental notice 3                                               $2-25
1992 final rule                                                          $4-11

   1. Listing Recycled Used Oil Without Tailored Standards

   Listing recycled used oil, without issuing special section 3014 Management
Standards or otherwise exempting recycled used oil from subtitle C regulations, would
have subjected recycled used oil generators, handlers, and users to the full spectrum
of hazardous waste management standards. These would include recordkeeping and
manifesting of all shipments, storage requirements including secondary containment,
facility closure and financial assurance, and additional burning restrictions. In the
extreme it would also impose facility corrective action for prior releases, although
this was not covered in the 1985 RIA or in the present update.

   Since this was not presented as an explicit option in the September 1991
Supplemental Notice, the Agency did not present compliance cost estimates for Full
subtitle C management of recycled oil in the 1991 Cost and Impact Screening Analysis.
However, a similar Full subtitle C management scenario was presented as Alternative 1
in the Regulatory Impact Analysis (November, 1985) accompanying the 1985 used oil
proposed rulemaking. The Agency has subsequently revised and updated the 1985 estimate
for this regulatory alternative to account for intervening changes in certain subtitle
C requirements, recycle market changes and general cost inflation. We found that, even
assuming retention of the present part 266 subpart E used oil burning requirements (in
place of the part 266, subparts D and H hazardous waste burning standards for boilers
and furnaces), the incremental annual cost of subtitle C management for recycled used
oil would still cost about $500 million per year, or about $0.53 per gallon of oil
recycled. This does not include consideration of additional possibly substantial costs
for prior release corrective action or for implications of the mixing and derived-from
rules.

   The Agency has long recognized that used oil management standards drawn too
stringently could be counterproductive: that by imposing too high a cost on acceptable
forms of recycling, the regulations could actually encourage increased dumping and
other environmentally undesirable practices by generators, commercial haulers, and
others.

   Although incremental management costs of $0.53 per gallon for recycling would still
be substantially less than alternative subtitle C disposal options for most
generators, costs in this range would also provide a strong incentive to avoid
regulation altogether by engaging in illegal dumping and improper land disposal and
burning activity. The Agency notes that virtually all used oil fuel is currently sold
for little more than and in some instances less than 53 cents per gallon: Imposing
regulatory requirements which cost this amount would virtually eliminate recycling
incentives within most of the commercial recycling sector.

   2. Tailored Standards Under Section 3014

   More appropriate to today's final rule, the Agency has also considered a wide range
of tailored standards under section 3014(a) of RCRA. The estimated annual cost in the
RIA for the 1985 proposal was $167 million ($204 million updated to 1991). The 1985
proposal closely paralleled subtitle C Standards in many respects.

   The September 1991 Supplemental Notice provided additional options which were
substantially less costly than earlier proposals, but which still covered all sectors
and a wide range of permitting, testing, spill prevention and cleanup, storage,
recordkeeping and reporting requirements.

   The nationwide annual costs estimated for the 1991 Supplemental Proposal ranged
from $25 million per year (with no small quantity generator exemption) to about $2
million per year with an extensive SQG exemption.

   Various commenters criticized the 1991 estimates as being too low. In a few
instances it was argued that EPA's unit costs for specific activities or services were
too low. Another criticism was that the Agency has overestimated the degree to which
various standards were already being met, either through normal business practices at
establishments (e.g., generator recordkeeping regarding used oil sales transactions)
or due to the pre-existence of other federal, State or local regulatory requirements
(e.g., OSHA workplace regulations, SPCC spill prevention and storage requirements, or
local fire ordinances).

   The Agency has reviewed its estimating assumptions in detail. While, in the main,
most of the assumptions and resulting cost estimates in the September 1991 costs
analysis are reasonable given the limited available data the Agency was able to
gather, we agree that many of the estimates are subject to substantial uncertainties
and should be interpreted accordingly. In addition, several possible management
standard elements were not included in the cost screening, either due to oversight or
to the premise of the Notice that certain elements might be considered subsequently in
a Phase II proposal. Examples of additional management standard options and annual
costs that could have been added in a more extensive analysis include the following:

    -- Subtitle C secondary containment for used oil collection and processor tankage
-- $8 million.

    -- Closure and financial responsibility for processors and rerefiners -- $2
million.

    -- Mandatory testing of all incoming and outgoing shipments of used oil -- $15-20
million.

   Though not costed in detail, with these and other possible design features,
especially more extensive requirements on the nation's nearly 700,000 commercial,
industrial, and large farms used oil generators (though not necessarily included
explicitly in the September Notice), the national cost estimates for used oil
regulation in the 1991 Proposal could well have exceeded $100 million per year. On the
other hand, several of the options discussed, especially combinations involving small
quantity or other generator exemptions and only selective controls on other sectors,
would have suggested costs on the order of $10 million or less.

   Based on 750 million gallons per year of used oil entering the commercial used oil
recycling system, national management standards costing $100 to $200 million per year
would translate roughly into an average of 13 to 26 cents per gallon of oil recycled.
As stated above, this additional cost (which EPA estimates to equal or comprise a
significant fraction of the price of products derived from used oil) would have
dramatically reduced used oil recycling and may have led to increased uncontrolled
disposal.

B. Final Rule Compliance Costs

   As described in section VI of this preamble, today's rulemaking pertains only to
land based management standards for recycled used oil under section 3014(a) of RCRA.
It does not impose hazardous waste listing or further regulation of used oil
processing or rerefining residuals, which continue to be subject to testing for
toxicity characteristics under existing regulations prior to disposal.

   1. Nationwide Annual Costs

   Table X.2 summarizes the nationwide annual compliance costs for today's rule, by
affected sector and for each substantive requirement. Total estimated costs range
between approximately $4.1 to $11.0 million per year, with a best estimate of about
$7.5 million. The major portion of the total falls on the generating sector ($2.7 to
$5.9 million, mostly for future spill cleanups of environmental releases) and on the
used oil processing sector ($1.3 to $4.8 million, primarily for biennial reporting,
secondary containment of tank storage areas, additional operational recordkeeping, and
new closure requirements).

Table X-2. -- Nationwide Annual Compliance Costs for 1992 Used Oil Management
                                  Standards
                          [In thousands of dollars]
    Requirement     Gener- Independent    Burners    Processors/     Totals
                    ators   collectors   (off-spec)  rerefiners/
                                                       fuel oil
                                                       dealers
Storage:
Label tanks and
drums                  502            2            3          4-5      511-512
Drums and tanks in
"good" condition     61-99          (*)          (*)          (*)        61-99
Secondary contain-
ment                             15-179       11-138       59-964     85-1,281
Reporting, planning
, recordkeeping:
Identification num-
bers                                  1          (*)          (*)            1
Biennial report                                           118-155      118-155
Analysis plan                                                9-12         9-12
Contingency plan                                           86-116       86-116
Shipment and deli-
very records                        (*)          (*)          (*)
Operating record                                          435-590      435-590
Closure                                                 613-2,938    613-2,938
Response to envi-
ronmental releases  2,183-
                     5,261            5          (*)          3-4  2,191-5,270
Totals              2,746-
                      5863       23-187       14-141  1,327-4,784 4,110-10,975

   For several of the line item requirements, a wide range of estimated costs is
presented, reflecting substantial uncertainty regarding the extent of existing
baseline compliance with the newly imposed standards. As noted in the preamble to the
September 1991 Supplemental Notice, many existing federal, State, and local government
regulations already directly regulate or impinge upon many of the same practices
addressed by today's rules. For example, at least 7 States regulate used oils as
hazardous wastes in varying degrees, and both the federal oil spill prevention and
control and counter measures program (SPCC) and OSHA regulations relate to
preparedness and prevention as well as cleanup of spilled oils including used oils.

   In particular, it is notable that SPCC regulations cover all of the 90 percent or
more of all major used oil handling facilities (collectors, processors, fuel oil
dealers, and burners) that are located near surface waters. Although the presence of
these other regulations has in some instances allowed the Agency to forgo new
regulatory requirements, in other cases, lack of data or definitive standards
contributes to considerable uncertainty regarding the adequacy of existing standards
or extent of compliance. For some additional used oil requirements contained in
today's rule, such as spill cleanup for non-SPCC generators or closure soil
remediation at processing facilities, EPA does not have sufficiently comprehensive
information on the frequency or extent of necessary compliance actions to estimate
potential costs more precisely.

   2. Individual Facility Costs

   Costs at the individual facility level can vary widely, depending on baseline
compliance assumptions and differing sector requirements in today's management
standards. In general, the lowest unit costs will be experienced by generators, since
they face the fewest and (usually) the least costly new requirements. The vast
majority of generators will face no incremental costs other than tank or container
labeling.

   Compliance costs at the individual facility level are presented in Table X.3 for
commercial used oil handlers and burners of off-specification used oil fuel. Within
the commercial management sectors, the lowest facility-level costs will be born by
smaller independent collectors and industrial boiler and furnace burners of
off-specification fuel. Burners that only burn specification fuel experience no new
requirements and are not considered within the scope of affected facilities in this
analysis. For independent collectors and affected burners, the higher cost facilities
are those requiring upgraded secondary containment, including both secondary release
containment berms and impervious pavement in storage areas. Independent collectors may
also incur environmental release costs for releases outside of secondary containment
areas. Such facilities may or may not currently be in compliance with baseline SPCC
and OSHA regulations. Facilities in these sectors with adequate preexisting secondary
containment (50 to 90 percent of facilities according to EPA's costing assumptions)
will otherwise face negligible new cost requirements.   

   Table X-3. -- Annual Facility-Level Compliance Costs: Commercial Used Oil
                             Handlers and Burners
               Facility type                 Total number of    Cost range for
                                               facilities 1    affected facili-
                                                                ties (dollars
                                                                  per year)
Independent collector                                      383        $6-$1,976
Minor processors                                            70     4,280-22,389
Major processors                                           112     6,989-44,155
Re-refiners                                                  4     9,246-64,671
Fuel oil dealers:
Low estimate                                                25     4,280-22,389
High estimate                                              100     4,280-22,389
Total handlers:
Low estimate                                               594         6-64,671
High estimate                                              669         6-64,671
Burners                                                  1,155            2-335

   The most substantial unit costs will be born by facilities in the processing
sectors (including processors, rerefiners, and fuel oil dealers that blend
off-specification fuel). All facilities in this sector will face additional record
keeping, reporting, and contingency planning as well as new tank closure requirements.
In addition, the cost estimates assume that some fraction will require upgraded
secondary containment, closure soil treatment, and release response costs to meet
today's standards.

   3. Cost Per Gallon of Used Oil

   The total annual costs of these section 3014 management standards ($4.1 to $11.0
million per year), averaged across the nation's total annual recycling rate of about
900 million gallons per year, approximates 0.5 to 1.2 cents per gallon of recycled
oil. Focusing only on the 775 million gallons per year flowing through the commercial
recycling system, the total nationwide compliance cost of $1.3 to $4.8 million for the
recycling sectors would translate into an average cost to commercial recyclers of
about 0.2 to 0.6 cents per gallon by EPA's estimates.

   Table X.4 summarizes the Agency's cost per gallon estimates in more detail for
affected facilities in the commercial handling and burning sectors. The highest cost
per gallon figures are at the small processor and fuel oil dealer-blender facilities,
with costs at the most affected of these facilities possibly ranging as high as 2.2
cents per gallon. These high relative costs are explained primarily by the relatively
low volume of used oil handled and the relatively high fixed costs of secondary
containment and closure requiring soil cleanup.

Table X-4. -- National Average and Individual Facility-Level Compliance Cost-
             Per-Gallon: Commercial Used Oil Handlers and Burners
        Facility type          Total number of   Facility    National average
                                 facilities      cost per    cost per gallon
                                                  gallon         (cents)
                                                  (cents)
Independent collector                       383   0.00-0.66          0.02-0.16
Minor processors                             70   0.43-2.24          0.46-1.20
Major processors                            112   0.14-0.88          0.16-0.50
Rerefiners                                    4   0.05-0.32          0.05-0.16
Fuel oil dealers:
Low estimate                                 25   0.43-2.24        1 0.17-0.45
High estimate                               100   0.43-2.24        1 0.69-1.82
Total handlers:
Low estimate                                594   0.00-2.24          0.16-0.20
High estimate                               669   0.00-2.24          0.48-0.58
Burners                                   1,155   0.00-0.22        1 0.00-0.03

   In contrast, larger processors and rerefiners, even those with similar more
stringent requirements, would experience substantially lower per gallon compliance
costs, due to the economies of scale inherent in their larger oil volumes and the
nature of the major compliance activities. Among the larger facilities in the
processing and rerefiner groups, even the worst case situations would still face per
gallon costs of less than one cent per gallon of oil. Most facilities would see costs
less than a half-cent per gallon, and a substantial fraction would be under a
quarter-cent.

C. Final Rule Impacts

   1. Effects on Used Oil Flows

   Costs for generators are primarily fixed costs or spill clean-up costs which may
correlate only weakly with the volume of used oil handled. Therefore, EPA does not
expect generator compliance costs to influence acceptance of household Do-It-Yourself
(DIY) used oil or to adversely change the relative costs of recycling compared with
dumping or disposal. Thus, used oil flows to recycling should not be negatively
affected by these rules, and recycling flows could be positively affected due to
reduced spills and spill losses and the CERCLA exemptions for service stations.

   Costs for the commercial recycling sectors (including collectors, processors,
rerefiners, and fuel oil dealers) total $1.3 to 4.8 million per year. If substantial
enough, these costs should have affected recycle flows, either by causing a loss of
collector/processor facilities or by being shifted back onto generators and providing
a disincentive to recycle. However, set against 775 million gallon per year entering
the commercial recycle flows, these total compliance costs average only 0.2 to 0.6
cents per gallon. These costs are not large enough to substantially affect generator
decisions concerning recycling, even if all these costs were passed back to the
generator in pickup charges. In the worst case, a few small processors could face unit
costs as high as 2.2 cents per gallon if they have to install secondary containment
and also face soil removal treatment closure costs. This does not suggest major
repercussions for recycle flows, but could involve some small processing facility
dislocations.

   Burners face new compliance costs for storage of used oil derived fuel under
today's rulemaking only if they burn off-specification fuel and are not already in
compliance due to prior SPCC or OSHA requirements. Numbers of such burners are not
known with any accuracy, although about 1200 in total have notified EPA as
off-specification burners since 1985. Affected burners have three options:

   (1) Incur the costs and either absorb them or pass them back to fuel marketers in
negotiated lower prices. The total maximum cost here for the maximally affected burner
is 0.2 cents per gallon. It is questionable whether this is a decision-changing level.

   (2) Substitute fuel -- either virgin fuel oil, currently at a higher cost of up to
15 percent, or specification used oil fuel from another used oil fuel dealer.

   (3) Negotiate with the present used oil fuel supplier to pre-blend (with other used
oil or virgin fuel) to meet the specification.

   Basically the same analysis and options apply to fuel oil dealers that blend
off-specification fuel as for burners. EPA's current estimate is that less than 25
percent of marketed used oil-derived fuel is routed through dealers. The fractions of
total used oil fuel that is currently off-specification fuel is thought to be low,
based on recent communications with used oil processing industry representatives and
EPA's own sampling of unprocessed used oil. Based on the low compliance cost per
gallon, flows in this sector will not be significantly affected one way or another.

   2. Effects on Used Oil Management Structure

   In general, the structure of the recycling industry could be somewhat influenced by
today's rule. If anything, there will be a tendency for some small processors that do
not now have adequate secondary containment to become less competitive (2.2 cents
gallon maximum competitive disadvantage). These would generally be the same facilities
with prior releases to the environment that would have to be cleaned up at closure
(with soil treatment) and they may opt to close. Already-marginal operations with poor
credit might not survive this requirement.

   There may also be some tendency for rerefiners to be advantaged with respect to
other processors because of lower cost/gallon compliance costs. The main factors
influencing this judgment are:

   1. Rerefiners are newer and are arguably (according to their comments) already in
compliance with all or most of today's requirements.

   2. Rerefiners are large and have economies of scale relative to smaller processors
in terms of compliance cost per gallon.

   3. Rerefiners are less affected by fuel market (burner) effects, because they
typically produce only a small fraction of output as fuel and the rerefined fuel
product is typically unregulated specification fuel.

   In summary, the Agency expects no effects on generators. Generators ultimately pay
the total costs (either directly or indirectly, via shifting) but these total costs
spread over hundreds of thousands of generators will not measurably affect generator
day-to-day decisions.

   3. Effects on Human Health and the Environment

   Since the Agency believes that recycle flows will not be obstructed or seriously
altered by this rule, the Agency expects no negative effects on human health or the
environment due to compliance costs. Do-It-Yourself oil recycling will not be
decreased and may in fact be increased by the CERCLA exemption for service stations.

   The four major effects of today's rule making would generally be positive, but of
unknown magnitude. These include:

   1. Increased spill cleanup and reduced environmental releases for generators.

   2. Better secondary containment and future spill cleanup for larger handlers.

   3. Closure requirements that provide for cleanup of prior tankage area releases at
processor/handler facilities.

   4. More comprehensive tracking at the collector level, due to expansion of
notification and recordkeeping for all collectors and not just those who currently
market directly to burners.

   4. Relationship to Future Agency Actions Regarding Financial Incentives or Other
Actions

   Today's management standards are designed to protect human health and environmental
risk from ground pathway damages with minimum effect on existing used oil recycling
flows and markets. As such they provide minimum interference with used oil markets and
thus are inherently neutral with respect to future incentive programs. Since the
Agency believes they do not measurably redirect flows, today's rules do not preempt or
compete with objectives or goals of incentives currently under study to improve
recycling. Basically today's rules provide uniform standards to be met by used oil
handlers in terms of storage and tracking. They do not compete with, preclude, or bias
future Agency or other initiatives to expand recycling nor are the costs of today's
rules large enough to affect the efficiency of such future programs.

   The Agency believes that today's management standards are compatible with any
future program designed to increase (or redirect) recycling since they do not in
themselves introduce any arbitrary or unnecessary imbalances between or among
recycling technologies or end-used used-oil-derived product markets.

XI. Regulatory Flexibility Act

   The Regulatory Flexibility Act (RFA) of 1980 (Pub. L. 96-345), requires Federal
agencies to consider "small entities" throughout the regulatory process. Section 603
of the RFA requires an initial screening analysis to be performed to determine whether
a substantial number of small entities will be significantly affected by the
regulation. If so, regulatory alternatives which eliminate or mitigate the impacts
must be considered.

   Based on employment or sales, the vast majority of all used oil generators,
collectors and processors are small businesses; blenders of virgin and used oil fuel,
re-refiners, and burners are less likely to be small businesses. Overall, the economic
analysis indicates that impacts are not significant for over 99 percent of the
generators and for all of the other facility types affected, with the possible
exception of some minor processors and some fuel oil dealers that currently blend used
oil fuel with virgin oil fuel. Only a small fraction of the farm section (about 2.5
percent), including only large commercial farms, will be subject to today's rule as a
result of the small farm generator exemption.

   A very small fraction (less than 0.2 percent) of small business used oil generators
may face incremental costs of approximately $1,300 per year to cleanup a 250 gallon
spill. This annual cost would only be incremental if the facility would not have
cleaned up this spill without these new requirements to address release to the
environment. We believe this is not an unreasonable cost burden for a very small
fraction of small businesses, especially given the potential environmental damage of a
spill of this size. Approximately 90 percent of generators would incur cost of less
than $1 per year for labels for tanks and drums.

   For the remaining sectors, only some minor processors and some fuel blenders/fuel
oil dealers would incur significant costs. Approximately 30 percent of minor
processors in the high-cost scenario would face incremental compliance costs of 2.2
cents per gallon. This cost increase may be sufficient to put the facility at a
competitive disadvantage with other used oil processors. These minor processors might
not be able to pass these costs back to customers since other firms that had already
invested in these measures would incur lower costs. If the facility were already a
marginal operation with poor credit, it might be forced to close.

   Similarly, some small business fuel oil dealers that blend used oil fuel with
virgin oil fuel might incur cost as high as 2.2 cents per gallon of used oil. Since
the used oil is blended with virgin fuel, the cost impact per gallon of final product
would be substantially less (only 0.2 cents per gallon of finished product assuming a
typical blending rate of 10 percent used oil). Furthermore, these blenders may have
other, low cost option for avoiding compliance costs such as refusing to accept
off-specification oil from used oil suppliers, or simply discontinuing blending used
oil at all.

   In general, although a large population of small businesses will be subject to
various provisions of this rule, only an extremely small fraction of these businesses
will incur substantial costs. Therefore the Agency certifies that the final rule will
not have significant economic impacts on substantial numbers of small businesses or
entities.

XII. Paperwork Reduction Act

   The information collection requirements in this final rule have been submitted for
approval to the Office of Management and Budget (OMB) under the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. When approved, or if not approved by the effective date of
this rule, EPA will publish a technical amendment to that effect in the Federal
Register. An information Collection Request document has been prepared by EPA [ICR No.
1286.03] and a copy may be obtained from Sandy Farmer, Information Policy Branch, EPA,
401 M Street, SW.

   Public reporting burden for this collection of information varies by sector. The
public reporting burden for used oil transporters averages from 18 to 27 minutes
annually per respondent. For used oil processing and re-refining facilities, the
reporting burden averages from 48 minutes to 25 hours annually per respondent, and for
burners of off-specification fuel, the reporting burden averages as 9 minutes annually
per respondent. The type of information required includes, time for reviewing
instructions, searching existing data sources, gathering and maintaining the data
needed, and completing and reviewing the collection of information.

   Send comments regarding the burden estimate or any other aspect of this collection
of information, including suggestions for reducing this burden, to Chief, Information
Policy Branch, PM-223, U.S. Environmental Protection Agency, 401 M Street, SW.,
Washington, DC, 20460; and to the Office of Management and Budget, Washington, DC,
20503, marked "Attention: Desk Officer for EPA."

List of Subjects

40 CFR Part 260

   Administrative practice and procedure, Confidential business information, Hazardous
waste.

40 CFR Part 261

   Hazardous waste, Recycling, Reporting and recordkeeping requirements.

40 CFR Part 266

   Energy, Hazardous waste, Petroleum, Recycling, Reporting and recordkeeping
requirements.

40 CFR Part 271

   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: August 11, 1992.

William K. Reilly,    Administrator.

   For the reasons set out in the preamble, 40 CFR chapter I is amended as follows:

   PART 260 -- HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL

   1. The authority citation for part 260 continues to read as follows:

   Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935, 6937, 6938, 6939,
and 6974.

   2. Section 260.10 is amended by adding a definition for "Used Oil", in alphabetical
order to read as follows:

    260.10 Definitions.

* * * * *

   Used oil means any oil that has been refined from crude oil, or any synthetic oil,
that has been used and as a result of such use in contaminated by physical or chemical
impurities.

* * * * *

   PART 261 -- IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

   3. The authority citation for part 261 continues to read as follows:

   Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.

   4. Section 261.3(a)(2) is amended by adding paragraph (v) to read as follows:

    261.3 Definition of Hazardous Waste.

   (a) * * *

   (2) * * *

   (v) Rebuttable presumption for used oil. Used oil containing more than 1000 ppm
total halogens is presumed to be a hazardous waste because it has been mixed with
halogenated hazardous waste listed in subpart D of part 261 of this chapter. Persons
may rebut this presumption by demonstrating that the used oil does not contain
hazardous waste (for example, by using an analytical method from SW-846, Third
Edition, to show that the used oil does not contain significant concentrations of
halogenated hazardous constituents listed in appendix VIII of part 261 of this
chapter). EPA Publication SW-846, Third Edition, is available for the cost of $110.00
from the Government Printing Office, Superintendent of Documents, PO Box 371954,
Pittsburgh, PA 15250-7954. 202-783-3238 (document number 955-001-00000-1).

   (A) The rebuttable presumption does not apply to metalworking oils/fluids
containing chlorinated paraffins, if they are processed, through a tolling agreement,
to reclaim metalworking oils/fluids. The presumption does apply to metalworking
oils/fluids if such oils/fluids are recycled in any other manner, or disposed.

   (B) The rebuttable presumption does not apply to used oils contaminated with
chlorofluorocarbons (CFCs) removed from refrigeration units where the CFCs are
destined for reclamation. The rebuttable presumption does apply to used oils
contaminated with CFCs that have been mixed with used oil from sources other than
refrigeration units.

* * * * *

    261.5 [Amended]

   5. Section 261.5(j) is amended by revising "subpart E of part 266" to read "subpart
G of part 279".

    261.6 [Amended]

   6. Section 261.6 is amended by removing paragraph (a)(2)(iii), and redesignating
paragraphs (a)(2) (iv) and (v) as paragraphs (a)(2) (iii) and (iv).

   7. Section 261.6 is amended by removing paragraph (a)(3) (iii), and redesignating
paragraphs (a)(3) (iv) through (a)(3)(viii) as paragraphs (a)(3)(iii) through
(a)(3)(vii).

   8. Section 261.6 is amended by adding paragraph (a) (4) to read as follows:

    261.6 Requirements for recyclable materials.

   (a) * * *

   (4) Used oil that is recycled and is also a hazardous waste solely because it
exhibits a hazardous characteristic is not subject to the requirements of parts 260
through 268 of this chapter, but is regulated under part 279 of this chapter. Used oil
that is recycled includes any used oil which is reused, following its original use,
for any purpose (including the purpose for which the oil was originally used). Such
term includes, but is not limited to, oil which is re-refined, reclaimed, burned for
energy recovery, or reprocessed.

* * * * *

   PART 266 -- STANDARDS FOR THE MANAGEMENT OF SPECIFIC HAZARDOUS WASTES AND SPECIFIC
TYPES OF HAZARDOUS WASTE MANAGEMENT FACILITIES

   9. The authority citation for part 266 continues to read as follows:

   Authority: Secs. 1006, 2002(a), 3004, and 3014 of the Solid Waste Disposal Act, as
amended by the Resource Conservation and Recovery Act of 1976, as amended (42 U.S.C.
6905, 6912(a), 6924, and 6934).

   Subpart E -- [Removed]

   10. Subpart E of part 266 is removed and reserved.

   11. Section 266.100 is amended by revising paragraph (b)(1) to read as follows:

    266.100 Applicability.

* * * * *

   (b) * * *

   (1) Used oil burned for energy recovery that is also a hazardous waste solely
because it exhibits a characteristic of hazardous waste identified in subpart C of
part 261 of this chapter. Such used oil is subject to regulation under part 279 of
this chapter;

* * * * *

   PART 271 -- REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE PROGRAMS

   12. The authority citation for part 271 continues to read as follows:

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

   Subpart A -- Requirements for Final Authorization

   13. Section 271.1(a) is amended by revising paragraph (a) to read as follows:

    271.1 Purpose and Scope.

   (a) This subpart specifies the procedures EPA will follow in approving, revising,
and withdrawing approval of State programs and the requirements State programs must
meet to be approved by the Administrator under sections 3006(b), (f) and (h) of RCRA.

* * * * *

   14. Subpart A of part 271 is amended by adding  271.26 to read as follows:

    271.26 Requirements for used oil management.

   The State shall have standards for used oil management which are equivalent to 40
CFR part 279. These standards shall include:

   (a) Standards for used oil generators which are equivalent to those under subpart C
of part 279 of this chapter;

   (b) Standards for used oil collection centers and aggregation points which are
equivalent to those under subpart D of part 279 of this chapter;

   (c) Standards for used oil transporters and transfer facilities which are
equivalent to those under subpart E of part 279 of this chapter;

   (d) Standards for used oil processors and re-refiners which are equivalent to those
under subpart F of part 279 of this chapter;

   (e) Standards for used oil burners who burn off-specification used oil for energy
recovery which are equivalent to those under subpart G of part 279 of this chapter;

   (f) Standards for used oil fuel marketers which are equivalent to those under
subpart H of part 279 of this chapter; and

   (g) Standards for use as a dust suppressant and disposal of used oil which are
equivalent to those under subpart I of part 279 of this chapter. A State may petition
(e.g., as part of its authorization petition submitted to EPA under  271.5 EPA to
allow the use of used oil (that is not mixed with hazardous waste and does not exhibit
a characteristic other than ignitability) as a dust suppressant. The State must show
that it has a program in place to prevent the use of used oil/hazardous waste mixtures
or used oil exhibiting a characteristic other than ignitability as a dust suppressant.
In addition, such programs must minimize the impacts of use as a dust suppressant on
the environment.

   15. Title 40 of the Code of Federal Regulations is amended by adding part 279 to
read as follows:

   PART 279 -- STANDARDS FOR THE MANAGEMENT OF USED OIL

   Subpart A -- Definitions

Sec.
279.1 Definitions.

   Subpart B -- Applicability

279.10 Applicability.
279.11 Used oil specifications.
279.12 Prohibitions.

   Subpart C -- Standards for Used Oil Generators

279.20 Applicability.
279.21 Hazardous waste mixing.
279.22 Used oil storage.
279.23 On-site burning in space heaters.
279.24 Off-site shipments.

   Subpart D -- Standards for Used Oil Collection Centers and Aggregation Points

279.30 Do-it-yourselfer used oil collection centers.
279.31 Used oil collection centers.
279.32 Used oil aggregate points owned by the generator.

   Subpart E -- Standards for Used Oil Transporter and Transfer Facilities

279.40 Applicability.
279.41 Restrictions on transporters who are not also processors or re-refiners.
279.42 Notification.
279.43 Used oil transportation.
279.44 Rebuttable presumption for used oil.
279.45 Used oil storage at transfer facilities.
279.46 Tracking.
279.47 Management of residues.

   Subpart F -- Standards for Used Oil Processors and Re-Refiners

279.50 Applicability.
279.51 Notification.
279.52 General facility standards.
279.53 Rebuttable presumption for used oil.
279.54 Used oil management.
279.55 Analysis plan.
279.56 Tracking.
279.57 Operating record and reporting.
279.58 Off-site shipments of used oil.
279.59 Management of residues

   Subpart G -- Standards for Used Oil Burners Who Burn Off-Specification Used Oil for
Energy Recovery

279.60 Applicability.
279.61 Restriction on burning.
279.62 Notification.
279.63 Rebuttable presumption for used oil.
279.64 Used oil storage.
279.65 Tracking.
279.66 Notices.
279.67 Management of residues.

   Subpart H -- Standards for Used Oil Fuel Marketers

279.70 Applicability.
279.71 Prohibitions.
279.72 On-specification used oil fuel.
279.73 Notification.
279.74 Tracking.
279.75 Notices.

   Subpart I -- Standards for Use as a Dust Suppressant and Disposal of Used Oil

279.80 Applicability.
279.81 Disposal.
279.82 Use as a dust suppressant.

   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)).

   Subpart A -- Definitions

    279.1 Definitions.

   Terms that are defined in  260.10, 261.1, and 280.12 of this chapter have the
same meanings when used in this part.

   Aboveground tank means a tank used to store or process used oil that is not an
underground storage tank as defined in  280.12 of this chapter.

   Container means any portable device in which a material is stored, transported,
treated, disposed of, or otherwise handled.

   Do-it-yourselfer used oil collection center means any site or facility that
accepts/aggregates and stores used oil collected only from household
do-it-yourselfers.

   Existing tank means a tank that is used for the storage or processing of used oil
and that is in operation, or for which installation has commenced on or prior to the
effective date of the authorized used oil program for the State in which the tank is
located. Installation will be considered to have commenced if the owner or operator
has obtained all federal, state, and local approvals or permits necessary to begin
installation of the tank and if either (1) A continuous on-site installation program
has begun, or

   (2) The owner or operator has entered into contractual obligations -- which cannot
be canceled or modified without substantial loss -- for installation of the tank to be
completed within a reasonable time.

   Household "do-it-yourselfer" used oil means oil that is derived from households,
such as used oil generated by individuals who generate used oil through the
maintenance of their personal vehicles.

   Household "do-it-yourselfer" used oil generator means an individual who generates
household "do-it-yourselfer" used oil.

   New tank means a tank that will be used to store or process used oil and for which
installation has commenced after the effective date of the authorized used oil program
for the State in which the tank is located.

   Processing means chemical or physical operations designed to produce from used oil,
or to make used oil more amenable for production of, fuel oils, lubricants, or other
used oil-derived product. Processing includes, but is not limited to: blending used
oil with virgin petroleum products, blending used oils to meet the fuel specification,
filtration, simple distillation, chemical or physical separation and re-refining.

   Re-refining distillation bottoms means the heavy fraction produced by vacuum
distillation of filtered and dehydrated used oil. The composition of still bottoms
varies with column operation and feedstock.

   Tank means any stationary device, designed to contain an accumulation of used oil
which is constructed primarily of non-earthen materials, (e.g., wood, concrete, steel,
plastic) which provides structural support.

   Used oil means any oil that has been refined from crude oil, or any synthetic oil,
that has been used and as a result of such use if contaminated by physical or chemical
impurities.

   Used oil aggregation point means any site or facility that accepts, aggregates,
and/or stores used oil collected only from other used oil generation sites owned or
operated by the owner or operator of the aggregation point, from which used oil is
transported to the aggregation point in shipments of no more than 55 gallons. Used oil
aggregation points may also accept used oil from household do-it-yourselfers.

   Used oil burner means a facility where used oil not meeting the specification
requirements in  279.11 is burned for energy recovery in devices identified in 
279.61(a).

   Used oil collection center means any site or facility that is
registered/licensed/permitted/recognized by a state/county/municipal government to
manage used oil and accepts/aggregates and stores used oil collected from used oil
generators regulated under subpart C of this part who bring used oil to the collection
center in shipments of no more than 55 gallons under the provisions of  279.24. Used
oil collection centers may also accept used oil from household do-it-yourselfers.

   Used oil fuel marketer means any person who conducts either of the following
activities:

   (1) Directs a shipment of off-specification used oil from their facility to a used
oil burner; or

   (2) First claims that used oil that is to be burned for energy recovery meets the
used oil fuel specifications set forth in  279.11 of this part.

   Used oil generator means any person, by site, whose act or process produces used
oil or whose act first causes used oil to become subject to regulation.

   Used oil processor/re-refiner means a facility that processes used oil.

   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 during the normal course of transportation and not
longer than 35 days. Transfer facilities that store used oil for more than 35 days are
subject to regulation under subpart F of this part.

   Used oil transporter means any person who transports used oil, any person who
collects used oil from more than one generator and transports the collected oil, and
owners and operators of used oil transfer facilities. Used oil transporters may
consolidate or aggregate loads of used oil for purposes of transportation but, with
the following exception, may not process used oil. Transporters may conduct incidental
processing operations that occur in the normal course of used oil transportation
(e.g., settling and water separation), but that are not designed to produce (or make
more amenable for production of) used oil derived products or used oil fuel.

   Subpart B -- Applicability

    279.10 Applicability.

   This section identifies those materials which are subject to regulation as used oil
under this part. This section also identifies some materials that are not subject to
regulation as used oil under this part, and indicates whether these materials may be
subject to regulation as hazardous waste under parts 260 through 266, 268, 270, and
124 of this chapter.

   (a) Used oil. EPA presumes that used oil is to be recycled unless a used oil
handler disposes of used oil, or sends used oil for disposal. Except as provided in 
279.11, the regulations of this part apply to used oil, and to materials identified in
this section as being subject to regulation as used oil, whether or not the used oil
or material exhibits any characteristics of hazardous waste identified in subpart C of
part 261 of this chapter.

   (b) Mixtures of used oil and hazardous waste -- (1) Listed hazardous waste. (i)
Mixtures of used oil and hazardous waste that is listed in subpart D of part 261 of
this chapter are subject to regulation as hazardous waste under parts 260 through 266,
268, 270, and 124 of this chapter, rather than as used oil under this part.

   (ii) Rebuttable presumption for used oil. Used oil containing more than 1,000 ppm
total halogens is presumed to be a hazardous waste because it has been mixed with
halogenated hazardous waste listed in subpart D of part 261 of this chapter. Persons
may rebut this presumption by demonstrating that the used oil does not contain
hazardous waste (for example, by using an analytical method from SW-846, Edition III,
to show that the used oil does not contain significant concentrations of halogenated
hazardous constituents listed in appendix VIII of part 261 of this chapter). EPA
Publication SW-846, Third Edition, is available for the cost of $110.00 from the
Government Printing Office, Superintendent of Documents, P.O. Box 371954, Pittsburgh,
PA 15250-7954, (202) 783-3238 (document number 955-001-00000-1).

   (A) The rebuttable presumption does not apply to metalworking oils/fluids
containing chlorinated paraffins, if they are processed, through a tolling arrangement
as described in  279.24(c), to reclaim metalworking oils/fluids. The presumption does
apply to metalworking oils/fluids if such oils/fluids are recycled in any other
manner, or disposed.

   (B) The rebuttable presumption does not apply to used oils contaminated with
chlorofluorocarbons (CFCs) removed from refrigeration units where the CFCs are
destined for reclamation. The rebuttable presumption does apply to used oils
contaminated with CFCs that have been mixed with used oil from sources other than
refrigeration units.

   (2) Characteristic hazardous waste. Mixtures of used oil and hazardous waste that
exhibits a hazardous waste characteristic identified in subpart C of part 261 of this
chapter are subject to:

   (i) Except as provided in paragraph (b)(2)(iii) of this section, regulation as
hazardous waste under parts 260 through 266, 268, 270, and 124 of this chapter rather
than as used oil under this part, if the resultant mixture exhibits any
characteristics of hazardous waste identified in subpart C of part 261 of this
chapter; or

   (ii) Regulation as used oil under this part, if the resultant mixture does not
exhibit any characteristics of hazardous waste identified under subpart C of part 261
of this chapter.

   (iii) Regulation as used oil under this part, if the mixture is of used oil and a
waste which is hazardous solely because if exhibits the characteristic of ignitability
and is not listed in subpart D of part 261 of this chapter (e.g., mineral spirits),
provided that the mixture does not exhibit the characteristic of ignitability under 
261.21 of this chapter.

   (3) Conditionally exempt small quantity generator hazardous waste. Mixtures of used
oil and conditionally exempt small quantity generator hazardous waste regulated under
 261.5 of this chapter are subject to regulation as used oil under this part.

   (c) Mixtures of used oil with non-hazardous solid wastes. Mixtures of used oil and
non-hazardous solid waste are subject to regulation as used oil under this part.

   (d) Mixtures of used oil with products. (1) Except as provided in paragraph (d)(2)
of this section, mixtures of used oil and fuels or other products are subject to
regulation as used oil under this part.

   (2) Mixtures of used oil and diesel fuel mixed on-site by the generator of the used
oil for use in the generator's own vehicles are not subject to this part once the used
oil and diesel fuel have been mixed. Prior to mixing, the used oil is subject to the
requirements of subpart C of this part.

   (e) Materials derived from used oil. (1) Materials that are reclaimed from used oil
that are used beneficially and are not burned for energy recovery or used in a manner
constituting disposal (e.g., re-refined lubricants) are:

   (i) Not used oil and thus are not subject to this part, and

   (ii) Not solid wastes and are thus not subject to the hazardous waste regulations
of parts 260 through 266, 268, 270, and 124 of this chapter as provided in 
261.3(c)(2)(i) of this chapter.

   (2) Materials produced from used oil that are burned for energy recovery (e.g.,
used oil fuels) are subject to regulation as used oil under this part.

   (3) Except as provided in paragraph (e)(4) of this section, materials derived from
used oil that are disposed of or used in a manner constituting disposal are:

   (i) Not used oil and thus are not subject to this Part, and

   (ii) Are solid wastes and thus are subject to the hazardous waste regulations of
parts 260 through 266, 268, 270, and 124 of this chapter if the materials are
identified as hazardous waste.

   (4) Re-refining distillation bottoms that are used as feedstock to manufacture
asphalt products are:

   (i) Not subject to this part at this time, and

   (ii) Not subject to the hazardous waste regulations of parts 260 through 266, 268,
270, and 124 of this chapter at this time.

   (f) Wastewater. Wastewater, the discharge of which is subject to regulation under
either section 402 or section 307(b) of the Clean Water Act (including wastewaters at
facilities which have eliminated the discharge of wastewater), contaminated with de
minimis quantities of used oil are not subject to the requirements of this part. For
purposes of this paragraph, "de minimis" quantities of used oils are defined as small
spills, leaks, or drippings from pumps, machinery, pipes, and other similar equipment
during normal operations or small amounts of oil lost to the wastewater treatment
system during washing or draining operations. This exception will not apply if the
used oil is discarded as a result of abnormal manufacturing operations resulting in
substantial leaks, spills, or other releases, or to used oil recovered from
wastewaters.

   (g) Used oil introduced into crude oil or natural gas pipelines. Used oil that is
placed directly into a crude oil or natural gas pipeline is subject to the management
standards of this part only prior to the point of introduction to the pipeline. Once
the used oil is introduced to the pipeline, the material is exempt from the
requirements of this part.

   (h) Used oil on vessels. Used oil produced on vessels from normal shipboard
operations is not subject to this part until it is transported ashore.

   (i) PCB contaminated used oil. PCB-containing used oil regulated under part 761 of
this chapter is exempt from regulation under this part.

    279.11 Used oil specifications.

   Used oil burned for energy recovery, and any fuel produced from used oil by
processing, blending, or other treatment, is subject to regulation under this part
unless it is shown not to exceed any of the allowable levels of the constituents and
properties in the specification shown in Table 1. Once used oil that is to be burned
for energy recovery has been shown not to exceed any specification and the person
making that showing complies with  279.72, 279.73, and 279.74(b), the used oil is no
longer subject to this part.

  Table 1 -- Used Oil Not exceeding Any Specification Level Is Not Subject to
                  This Part When Burned for Energy Recovery 1
         Constituent/property                       Allowable level
Arsenic                                                          5 ppm maximum.
Cadmium                                                          2 ppm maximum.
Chromium                                                        10 ppm maximum.
Lead                                                           100 ppm maximum.
Flash point                                                  100 deg.F minimum.
Total halogens                                             4,000 ppm maximum. 2

    279.12 Prohibitions.

   (a) Surface impoundment prohibition. Used oil shall not be managed in surface
impoundments or waste piles unless the units are subject to regulation under parts 264
or 265 of this chapter.

   (b) Use as a dust suppressant. The use of used oil as a dust suppressant is
prohibited, except when such activity takes place in one of the states listed in 
279.82(c).

   (c) Burning in particular units. Off-specification used oil fuel may be burned for
energy recovery in only the following devices:

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

   (2) Boilers, as defined in  260.10 of this chapter, that are identified as
follows:

   (i) Industrial boilers located on the site of a facility engaged in a manufacturing
process where substances are transformed into new products, including the component
parts of products, by mechanical or chemical processes;

   (ii) Utility boilers used to produce electric power, steam, heated or cooled air,
or other gases or fluids for sale; or

   (iii) Used oil-fired space heaters provided that the burner meets the provisions of
 279.23.

   Subpart C -- Standards for Used Oil Generators

    279.20 Applicability.

   (a) General. Except as provided in paragraphs (a)(1) through (a)(4) of this
section, this subpart applies to all used oil generators. 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 regulation.

   (1) Household "do-it-yourselfer" used oil generators. Household "do-it-yourselfer"
used oil generators are not subject to regulation under this part.

   (2) Vessels. Vessels at sea or at port are not subject to this subpart. For
purposes of this subpart, used oil produced on vessels from normal shipboard
operations is considered to be generated at the time it is transported ashore. The
owner or operator of the vessel and the person(s) removing or accepting used oil from
the vessel are co-generators of the used oil and are both responsible for managing the
waste in compliance with this subpart once the used oil is transported ashore. The
co-genenerators may decide among them which party will fulfill the requirements of
this subpart.

   (3) Diesel fuel. Mixtures of used oil and diesel fuel mixed by the generator of the
used oil for use in the generator's own vehicles are not subject to this part once the
used oil and diesel fuel have been mixed. Prior to mixing, the used oil fuel is
subject to the requirements of this subpart.

   (4) Farmers. Farmers who generate an average of 25 gallons per month or less of
used oil from vehicles or machinery used on the farm in a calendar year are not
subject to the requirements of this part.

   (b) Other applicable provisions. Used oil generators who conduct the following
activities are subject to the requirements of other applicable provisions of this part
as indicated in paragraphs (b)(1) through (5) of this section:

   (1) Generators who transport used oil, except under the self-transport provisions
of  279.24 (a) and (b), must also comply with subpart E of this part.

   (2) Generators who process or re-refine used oil must also comply with subpart F of
this part.

   (3) Generators who burn off-specification used oil for energy recovery, except
under the on-site space heater provisions of  279.23, must also comply with subpart G
of this part.

   (4) Generators who direct shipments of off-specification used oil from their
facility to a used oil burner or first claim that used oil that is to be burned for
energy recovery meets the used oil fuel specifications set forth in  279.11 must also
comply with subpart H of this part.

   (5) Generators who dispose of used oil, including the use of used oil as a dust
suppressant, must also comply with subpart I of this part.

    279.21 Hazardous waste mixing.

   (a) Generators shall not mix hazardous waste with used oil except as provided in 
279.10(b)(2) (ii) and (iii).

   (b) The rebuttable presumption for used oil of  279.10(b)(1)(ii) applies to used
oil managed by generators. Under the rebuttable presumption for used oil of 
279.10(b)(1)(ii), used oil containing greater than 1,000 ppm total halogens is
presumed to be a hazardous waste and thus must be managed as hazardous waste and not
as used oil unless the presumption is rebutted. However, the rebuttable presumption
does not apply to certain metalworking oils/fluids and certain used oils removed from
refrigeration units.

    279.22 Used oil storage.

   As specified in  279.10(f), wastewaters containing "de minimis" quantities of used
oil are not subject to the requirements of this part, including the prohibition on
storage in units other than tanks or containers. Used oil generators are subject to
all applicable Spill Prevention, Control and Countermeasures (40 CFR part 112) in
addition to the requirements of this Subpart. Used oil generators are also subject to
the Underground Storage Tank (40 CFR part 280) standards for used oil stored in
underground tanks whether or not the used oil exhibits any characteristics of
hazardous waste, in addition to the requirements of this subpart.

   (a) Storage units. Used oil generators shall not store used oil in units other than
tanks, containers, or units subject to regulation under parts 264 or 265 of this
chapter.

   (b) Condition of units. Containers and aboveground tanks used to store used oil at
generator facilities must be:

   (1) In good condition (no severe rusting, apparent structural defects or
deterioration); and

   (2) Not leaking (no visible leaks).

   (c) Labels. (1) Containers and aboveground tanks used to store used oil at
generator facilities must be labeled or marked clearly with the words "Used Oil."

   (2) Fill pipes used to transfer used oil into underground storage tanks at
generator facilities must be labeled or marked clearly with the words "Used Oil."

   (d) Response to releases. Upon detection of a release of used oil to the
environment not subject to the requirements of part 280, subpart F of this chapter
which has occurred after the effective date of the authorized used oil program for the
State in which the release is located, a generator must perform the following cleanup
steps:

   (1) Stop the release;

   (2) Contain the released used oil;

   (3) Clean up and manage properly the released used oil and other materials; and

   (4) If necessary to prevent future releases, repair or replace any leaking used oil
storage containers or tanks prior to returning them to service.

    279.23 On-site burning in space heaters.

   (a) Generators may burn used oil in used oil-fired space heaters provided that:

   (1) The heater burns only used oil that the owner or operator generates or used oil
received from household do-it-yourself used oil generators;

   (2) The heater is designed to have a maximum capacity of not more than 0.5 million
Btu per hour; and

   (3) The combustion gases from the heater are vented to the ambient air.

   (b) (Reserved)

    279.24 Off-site shipments.

   Except as provided in paragraphs (a) through (c) of this section, generators must
ensure that their used oil is transported only by transporters who have obtained EPA
identification numbers.

   (a) Self-transportation of small amounts to approved collection centers. Generators
may transport, without an EPA identification number, used oil that is generated at the
generator's site and used oil collected from household do-it-yourselfers to a used oil
collection center provided that:

   (1) The generator transports the used oil in a vehicle owned by the generator or
owned by an employee of the generator;

   (2) The generator transports no more than 55 gallons of used oil at any time; and

   (3) The generator transports the used oil to a used oil collection center that is
registered, licensed, permitted, or recognized by a state/county/municipal government
to manage used oil.

   (b) Self-transportation of small amounts to aggregation points owned by the
generator. Generators may transport, without an EPA identification number, used oil
that is generated at the generator's site to an aggregation point provided that:

   (1) The generator transports the used oil in a vehicle owned by the generator or
owned by an employee of the generator;

   (2) The generator transports no more than 55 gallons of used oil at any time; and

   (3) The generator transports the used oil to an aggregation point that is owned
and/or operated by the same generator.

   (c) Tolling arrangements. Used oil generators may arrange for used oil to be
transported by a transporter without an EPA identification number if the used oil is
reclaimed under a contractual agreement pursuant to which reclaimed oil is returned by
the processor/re-refiner to the generator for use as a lubricant, cutting oil, or
coolant. The contract (known as a "tolling arrangement") must indicate:

   (1) The type of used oil and the frequency of shipments;

   (2) That the vehicle used to transport the used oil to the processing/re-refining
facility and to deliver recycled used oil back to the generator is owned and operated
by the used oil processor/re-refiner; and

   (3) That reclaimed oil will be returned to the generator.

   Subpart D -- Standards for Used Oil Collection Centers and Aggregation Points

    279.30 Do-it-yourselfer used oil collection centers.

   (a) Applicability. This section applies to owners or operators of all
do-it-yourselfer (DIY) used oil collection centers. A DIY used oil collection center
is any site or facility that accepts/aggregates and stores used oil collected only
from household do-it-yourselfers.

   (b) DIY used oil collection center requirements. Owners or operators of all DIY
used oil collection centers must comply with the generator standards in subpart C of
this part.

    279.31 Used oil collection centers.

   (a) Applicability. This section applies to owners or operators of used oil
collection centers. A used oil collection center is any site or facility that
accepts/aggregates and stores used oil collected from used oil generators regulated
under subpart C of this part who bring used oil to the collection center in shipments
of no more than 55 gallons under the provisions of  279.24(a). Used oil collection
centers may also accept used oil from household do-it-yourselfers.

   (b) Used oil collection center requirements. Owners or operators of all used oil
collection centers must:

   (1) Comply with the generator standards in subpart C of this part; and

   (2) Be registered/licensed/permitted/recognized by a state/county/municipal
government to manage used oil.

    279.32 Used oil aggregation points owned by the generator.

   (a) Applicability. This section applies to owners or operators of all used oil
aggregation points. A used oil aggregation point is any site or facility that accepts,
aggregates, and/or stores used oil collected only from other used oil generation sites
owned or operated by the owner or operator of the aggregation point, from which used
oil is transported to the aggregation point in shipments of no more than 55 gallons
under the provisions of  279.24(b). Used oil aggregation points may also accept used
oil from household do-it-yourselfers.

   (b) Used oil aggregation point requirements. Owners or operators of all used oil
aggregation points must comply with the generator standards in subpart C of this part.

   Subpart E -- Standards for Used Oil Transporter and Transfer Facilities

    279.40 Applicability.

   (a) General. Except as provided in paragraphs (a)(1) through (a)(4) of this
section, this subpart applies to all used oil transporters. Used oil transporters are
persons who transport used oil, persons who collect used oil from more than one
generator and transport the collected oil, and owners and operators of used oil
transfer facilities.

   (1) This subpart does not apply to on-site transportation.

   (2) This subpart does not apply to generators who transport shipments of used oil
totalling 55 gallons or less from the generator to a used oil collection center as
specified in  279.24(a).

   (3) This subpart does not apply to generators who transport shipments of used oil
totalling 55 gallons or less from the generator to a used oil aggregation point owned
or operated by the same generator as specified in  279.24(b).

   (4) This subpart does not apply to transportation of used oil generated by
household do-it-yourselfers from the initial generator to a regulated used oil
generator, collection center, aggregation point, processor/re-refiner, or burner
subject to the requirements of this part. Except as provided in paragraphs (a)(1)
through (a)(3) of this section, this subpart does, however, apply to transportation of
collected household do-it-yourselfer used oil from regulated used oil generators,
collection centers, aggregation points, or other facilities where household
do-it-yourselfer used oil is collected.

   (b) Imports and exports. Transporters who import used oil from abroad or export
used oil outside of the United States are subject to the requirements of this subpart
from the time the used oil enters and until the time it exits the United States.

   (c) Trucks used to transport hazardous waste. Unless trucks previously used to
transport hazardous waste are emptied as described in  261.7 of this chapter prior to
transporting used oil, the used oil is considered to have been mixed with the
hazardous waste and must be managed as hazardous waste unless, under the provisions of
 279.10(b), the hazardous waste/used oil mixture is determined not to be hazardous
waste.

   (d) Other applicable provisions. Used oil transporters who conduct the following
activities are also subject to other applicable provisions of this part as indicated
in paragraphs (d)(1) through (5) of this section:

   (1) Transporters who generate used oil must also comply with subpart C of this
part;

   (2) Transporters who process or re-refine used oil, except as provided in  279.41,
must also comply with subpart F of this part;

   (3) Transporters who burn off-specification used oil for energy recovery must also
comply with subpart G of this part;

   (4) Transporters who direct shipments of off-specification used oil from their
facility to a used oil burner or first claim that used oil that is to be burned for
energy recovery meets the used oil fuel specifications set forth in  279.11 must also
comply with subpart H of this partuel Marketers of this part; and

   (5) Transporters who dispose of used oil, including the use of used oil as a dust
suppressant, must also comply with subpart I of this part.

    279.41 Restrictions on transporters who are not also processors or re-refiners.

   (a) Used oil transporters may consolidate or aggregate loads of used oil for
purposes of transportation. However, except as provided in paragraph (b) of this
section, used oil transporters may not process used oil unless they also comply with
the requirements for processors/re-refiners in subpart F of this part.

   (b) Transporters may conduct incidental processing operations that occur in the
normal course of used oil transportation (e.g., settling and water separation), but
that are not designed to produce (or make more amenable for production of) used oil
derived products unless they also comply with the processor/re-refiner requirements in
subpart F of this part.

    279.42 Notification.

   (a) Identification numbers. Used oil transporters who have not previously complied
with the notification requirements of RCRA section 3010 must comply with these
requirements and obtain an EPA identification number.

   (b) Mechanics of notification. A used oil transporter who has not received an EPA
identification number may obtain one by notifying the Regional Administrator of their
used oil activity by submitting either:

   (1) A completed EPA Form 8700-12 (To obtain EPA Form 8700-12 call RCRA/Superfund
Hotline at 1-800-424-9346 or 703-920-9810); or

   (2) A letter requesting an EPA identification number.

    Call RCRA/Superfund Hotline to determine where to send a letter requesting an EPA
identification number. The letter should include the following information:

   (i) Transporter company name;

   (ii) Owner of the transporter company;

   (iii) Mailing address for the transporter;

   (iv) Name and telephone number for the transporter point of contact;

   (v) Type of transport activity (i.e., transport only, transport and transfer
facility, transfer facility only);

   (vi) Location of all transfer facilities at which used oil is stored;

   (vii) Name and telephone number for a contact at each transfer facility.

    279.43 Used oil transportation.

   (a) Deliveries. A used oil transporter must deliver all used oil received to:

   (1) Another used oil transporter, provided that the transporter has obtained an EPA
identification number;

   (2) A used oil processing/re-refining facility who has obtained an EPA
identification number;

   (3) An off-specification used oil burner facility who has obtained an EPA
identification number; or

   (4) An on-specification used oil burner facility.

   (b) Shipping. Used oil transporters must comply with all applicable packaging,
labeling, and placarding requirements of the U.S. Department of Transportation under
49 CFR parts 173, 178 and 179. Used oil that meets the definition of combustible
liquid (flash point below 200 deg.F but at or greater than 100 deg.F) or flammable
liquid (flash point below 100 deg.F) is subject to Department of Transportation
Hazardous Materials Regulations at 49 CFR Parts 100 through 177.

   (c) Used oil discharges. (1) In the event of a discharge of used oil during
transportation, the transporter must take appropriate immediate action to protect
human health and the environment (e.g., notify local authorities, dike the discharge
area).

   (2) If a discharge of used oil occurs during transportation and an official (State
or local government or a Federal Agency) acting within the scope of official
responsibilities determines that immediate removal of the used oil is necessary to
protect human health or the environment, that official may authorize the removal of
the used oil by transporters who do not have EPA identification numbers.

   (3) An air, rail, highway, or water transporter who has discharged used oil must:

   (i) Give notice, if required by 49 CFR 171.15 to the National Response Center
(800-424-8802 or 202-426-2675); and

   (ii) Report in writing as required by 49 CFR 171.16 to the Director, Office of
Hazardous Materials Regulations, Materials Transportation Bureau, Department of
Transportation, Washington, DC 20590.

   (4) A water transporter who has discharged used oil must give notice as required by
33 CFR 153.203.

   (5) A transporter must clean up any used oil discharged that occurs during
transportation or take such action as may be required or approved by federal, state,
or local officials so that the used oil discharge no longer presents a hazard to human
health or the environment.

    279.44 Rebuttable presumption for used oil.

   (a) To ensure that used oil is not a hazardous waste under the rebuttable
presumption of  279.10(b)(1)(ii), the used oil transporter must determine whether the
total halogen content of used oil being transporter or stored at a transfer facility
is above or below 1,000 ppm.

   (b) The transporter must make this determination by:

   (1) Testing the used oil; or

   (2) Applying knowledge of the halogen content of the used oil in light of the
materials or processes used.

   (c) If the used oil contains greater than or equal to 1,000 ppm total halogens, it
is presumed to be a hazardous waste because it has been mixed with halogenated
hazardous waste listed in subpart D of part 261 of this chapter. The owner or operator
may rebut the presumption by demonstrating that the used oil does not contain
hazardous waste (for example, by using an analytical method from SW-846, Edition III,
to show that the used oil does not contain significant concentrations of halogenated
hazardous constituents listed in Appendix VIII of part 261 of this chapter). EPA
Publication SW-846, Third Edition, is available for the cost of $110.00 from the
Government Printing Office, Superintendent of Documents, PO Box 371954, Pittsburgh, PA
15250-7954. (202) 783-3238 (document number 955-001-00000-1).

   (1) The rebuttable presumption does not apply to metalworking oils/fluids
containing chlorinated paraffins, if they are processed, through a tolling arrangement
as described in  279.24(c), to reclaim metalworking oils/fluids. The presumption does
apply to metalworking oils/fluids if such oils/fluids are recycled in any other
manner, or disposed.

   (2) The rebuttable presumption does not apply to used oils contaminated with
chlorofluorocarbons (CFCs) removed from refrigeration units if the CFC are destined
for reclamation. The rebuttable presumption does apply to used oils contaminated with
CFCs that have been mixed with used oil from sources other than refrigeration units.

   (d) Record retention. Records of analyses conducted or information used to comply
with paragraphs (a), (b), and (c) of this section must be maintained by the
transporter for at least 3 years.

    279.45 Used oil storage at transfer facilities.

   As specified in  279.10(f), wastewaters containing "de minimis" quantities of used
oil are not subject to the requirements of this part, including the prohibition on
storage in units other than tanks or containers. Used oil transporters are subject to
all applicable Spill Prevention, Control and Countermeasures (40 CFR part 112) in
addition to the requirements of this subpart. Used oil generators are also subject to
the Underground Storage Tank (40 CFR part 280) standards for used oil stored in
underground tanks whether or not the used oil exhibits any characteristics of
hazardous waste, in addition to the requirements of this subpart.

   (a) Applicability. This section applies to used oil transfer facilities. Used oil
transfer facilities are transportation related facilities including loading docks,
parking areas, storage areas, and other areas where shipments of used oil are held for
more than 24 hours during the normal course of transportation and not longer than 35
days. Transfer facilities that store used oil for more than 35 days are subject to
regulation under subpart F of this chapter.

   (b) Storage units. Owners or operators of used oil transfer facilities may not
store used oil in units other than tanks, containers, or units subject to regulation
under parts 264 or 265 of this chapter.

   (c) Condition of units. Containers and aboveground tanks used to store used oil at
transfer facilities must be:

   (1) In good condition (no severe rusting, apparent structural defects or
deterioration); and

   (2) Not leaking (no visible leaks).

   (d) Secondary containment for containers. Containers used to store used oil at
transfer facilities must be equipped with a secondary containment system.

   (1) The secondary containment system must consist of, at a minimum:

   (i) Dikes, berms or retaining walls; and

   (ii) A floor. The floor must cover the entire area within the dikes, berms, or
retaining walls.

   (2) The entire containment system, including walls and floors, must be sufficiently
impervious to used oil to prevent any used oil released into the containment system
from migrating out of the system to the soil, groundwater, or surface water.

   (e) Secondary containment for existing aboveground tanks. Existing aboveground
tanks used to store used oil at transfer facilities must be equipped with a secondary
containment system.

   (1) The secondary containment system must consist of, at a minimum:

   (i) Dikes, berms or retaining walls; and

   (ii) A floor. The floor must cover the entire area within the dike, berm, or
retaining wall except areas where existing portions of the tank meet the ground; or

   (iii) An equivalent secondary containment system.

   (2) The entire containment system, including walls and floors, must be sufficiently
impervious to used oil to prevent any used oil released into the containment system
from migrating out of the system to the soil, groundwater, or surface water.

   (f) Secondary containment for new aboveground tanks. New aboveground tanks used to
store used oil at transfer facilities must be equipped with a secondary containment
system.

   (1) The secondary containment system must consist of, at a minimum:

   (i) Dikes, berms or retaining walls; and

   (ii) A floor. The floor must cover the entire area within the dike, berm, or
retaining wall; or

   (iii) An equivalent secondary containment system.

   (2) The entire containment system, including walls and floors, must be sufficiently
impervious to used oil to prevent any used oil released into the containment system
from migrating out of the system to the soil, groundwater, or surface water.

   (g) Labels. (1) Containers and aboveground tanks used to store used oil at transfer
facilities must be labeled or marked clearly with the words "Used Oil."

   (2) Fill pipes used to transfer used oil into underground storage tanks at transfer
facilities must be labeled or marked clearly with the words "Used Oil."

   (h) Response to releases. Upon detection of a release of used oil to the
environment not subject to the requirements of part 280 subpart F which has occurred
after the effective date of the authorized used oil program for the State in which the
release is located, the owner/operator of a transfer facility must perform the
following cleanup steps:

   (1) Stop the release;

   (2) Contain the release used oil;

   (3) Clean up and manage properly the released used oil and other materials; and

   (4) If necessary, repair or replace any leaking used oil storage containers or
tanks prior to returning them to service.

    279.46 Tracking.

   (a) Acceptance. Used oil transporters must keep a record of each used oil shipment
accepted for transport. Records for each shipment must include:

   (1) The name and address of the generator, transporter, or processor/re-refiner who
provided the used oil for transport;

   (2) The EPA identification number (if applicable) of the generator, transporter, or
processor/re-refiner who provided the used oil for transport;

   (3) The quantity of used oil accepted;

   (4) The date of acceptance; and

   (5) 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.

   (b) Deliveries. Used oil transporters must keep a record of each shipment of used
oil that is delivered to another used oil transporter, or to a used oil burner,
processor/re-refiner, or disposal facility. Records of each delivery must include:

   (1) The name and address of the receiving facility or transporter;

   (2) The EPA identification number of the receiving facility or transporter;

   (3) The quantity of used oil delivered;

   (4) The date of delivery;

   (5) The signature, dated upon receipt of the used oil, of a representative of the
receiving facility or transporter.

   (c) Exports of used oil. Used oil transporters must maintain the records described
in paragraphs (b)(1) through (b)(4) of this section for each shipment of used oil
exported to any foreign country.

   (d) Record retention. The records described in paragraphs (a), (b), and (c) of this
section must be maintained for at least three years.

    279.47 Management of residues.

   Transporters who generate residues from the storage or transport of used oil must
manage the residues as specified in  279.10(e).

   Subpart F -- Standards for Used Oil Processors and Re-Refiners

    279.50 Applicability.

   (a) The requirements of this subpart apply to owners and operators of facilities
that process used oil. Processing means chemical or physical operations designed to
produce from used oil, or to make used oil more amenable for production of, fuel oils,
lubricants, or other used oil-derived products. Processing includes, but is not
limited to: blending used oil with virgin petroleum products, blending used oils to
meet the fuel specification, filtration, simple distillation, chemical or physical
separation and re-refining. The requirements of this subpart do not apply to:

   (1) Transporters that conduct incidental processing operations that occur during
the normal course of transportation as provided in  279.41; or

   (2) Burners that conduct incidental processing operations that occur during the
normal course of used oil management prior to burning as provided in  279.61(b).

   (b) Other applicable provisions. Used oil processors/re-refiners who conduct the
following activities are also subject to the requirements of other applicable
provisions of this part as indicated in paragraphs (b)(1) through (b)(5) of this
section.

   (1) Processors/re-refiners who generate used oil must also comply with subpart C of
this part;

   (2) Processors/re-refiners who transport used oil must also comply with subpart E
of this part;

   (3) Except as provided in paragraphs (b)(3)(i) and (b)(3)(ii) of this section,
processors/re-refiners who burn off-specification used oil for energy recovery must
also comply with subpart G of this part. Processor/re-refiners burning used oil for
energy recovery under the following conditions are not subject to subpart G of this
part:

   (i) The used oil is burned in an on-site space heater that meets the requirements
of  279.23; or

   (ii) The used oil is burned for purposes of processing used oil, which is
considered burning incidentally to used oil processing;

   (4) Processors/re-refiners who direct shipments of off-specification used oil from
their facility to a used oil burner or first claim that used oil that is to be burned
for energy recovery meets the used oil fuel specifications set forth in  279.11 must
also comply with subpart H of this part; and

   (5) Processors/re-refiners who dispose of used oil, including the use of used oil
as a dust suppressant, also must comply with subpart I of this part.

    279.51 Notification.

   (a) Identification numbers. Used oil processors and re-refiners who have not
previously complied with the notification requirements of RCRA section 3010 must
comply with these requirements and obtain an EPA identification number.

   (b) Mechanics of notification. A used oil processor or re-refiner who has not
received an EPA identification number may obtain one by notifying the Regional
Administrator of their used oil activity by submitting either:

   (1) A completed EPA Form 8700-12 (To obtain EPA Form 8700-12 call RCRA/Superfund
Hotline at 1-800-424-9346 or 703-920-9810); or

   (2) A letter requesting an EPA identification number.

   Call RCRA/Superfund Hotline to determine where to send a letter requesting an EPA
identification number. The letter should include the following information:

   (i) Processor or re-refiner company name;

   (ii) Owner of the processor or re-refiner company;

   (iii) Mailing address for the processor or re-refiner;

   (iv) Name and telephone number for the processor or re-refiner point of contact;

   (v) Type of used oil activity (i.e., process only, process and re-refine);

   (vi) Location of the processor or re-refiner facility.

    279.52 General facility standards.

   (a) Preparedness and prevention. Owners and operators of used oil processors and
re-refiners facilities must comply with the following requirements:

   (1) Maintenance and operation of facility. Facilities must be maintained and
operated to minimize the possibility of a fire, explosion, or any unplanned sudden or
non-sudden release of used oil to air, soil, or surface water which could threaten
human health or the environment.

   (2) Required equipment. All facilities must be equipped with the following, unless
none of the hazards posed by used oil handled at the facility could require a
particular kind of equipment specified in paragraphs (a)(2)(i) through (iv) of this
section:

   (i) An internal communications or alarm system capable of providing immediate
emergency instruction (voice or signal) to facility personnel;

   (ii) A device, such as a telephone (immediately available at the scene of
operations) or a hand-held two-way radio, capable of summoning emergency assistance
from local police departments, fire departments, or State or local emergency response
teams;

   (iii) Portable fire extinguishers, fire control equipment (including special
extinguishing equipment, such as that using foam, inert gas, or dry chemicals), spill
control equipment and decontamination equipment; and

   (iv) Water at adequate volume and pressure to supply water hose streams, or foam
producing equipment, or automatic sprinklers, or water spray systems.

   (3) Testing and maintenance of equipment. All facility communications or alarm
systems, fire protection equipment, spill control equipment, and decontamination
equipment, where required, must be tested and maintained as necessary to assure its
proper operation in time of emergency.

   (4) Access to communications or alarm system. (i) Whenever used oil is being
poured, mixed, spread, or otherwise handled, all personnel involved in the operation
must have immediate access to an internal alarm or emergency communication device,
either directly or through visual or voice contact with another employee, unless such
a device is not required in paragraph (a)(2) of this section.

   (ii) If there is ever just one employee on the premises while the facility is
operating, the employee must have immediate access to a device, such as a telephone
(immediately available at the scene of operation) or a hand-held two-way radio,
capable of summoning external emergency assistance, unless such a device is not
required in paragraph (a)(2) of this section.

   (5) Required aisle space. The owner or operator must maintain aisle space to allow
the unobstructed movement of personnel, fire protection equipment, spill control
equipment, and decontamination equipment to any area of facility operation in an
emergency, unless aisle space is not needed for any of these purposes.

   (6) Arrangements with local authorities. (i) The owner or operator must attempt to
make the following arrangements, as appropriate for the type of used oil handled at
the facility and the potential need for the services of these organizations:

   (A) Arrangements to familiarize police, fire departments, and emergency response
teams with the layout of the facility, properties of used oil handled at the facility
and associated hazards, places where facility personnel would normally be working,
entrances to roads inside the facility, and possible evacuation routes;

   (B) Where more than one police and fire department might respond to an emergency,
agreements designating primary emergency authority to a specific police and a specific
fire department, and agreements with any others to provide support to the primary
emergency authority;

   (C) Agreements with State emergency response teams, emergency response contractors,
and equipment suppliers; and

   (D) Arrangements to familiarize local hospitals with the properties of used oil
handled at the facility and the types of injuries or illnesses which could result from
fires, explosions, or releases at the facility.

   (ii) Where State or local authorities decline to enter into such arrangements, the
owner or operator must document the refusal in the operating record.

   (b) Contingency plan and emergency procedures. Owners and operators of used oil
processors and re-refiners facilities must comply with the following requirements:

   (1) Purpose and implementation of contingency plan. (i) Each owner or operator must
have a contingency plan for the facility. The contingency plan must be designed to
minimize hazards to human health or the environment from fires, explosions, or any
unplanned sudden or non-sudden release of used oil to air, soil, or surface water.

   (ii) The provisions of the plan must be carried out immediately whenever there is a
fire, explosion, or release or used oil which could threaten human health or the
environment.

   (2) Content of contingency plan. (i) The contingency plan must describe the actions
facility personnel must take to comply with paragraphs (b) (1) and (6) of this section
in response to fires, explosions, or any unplanned sudden or non-sudden release of
used oil to air, soil, or surface water at the facility.

   (ii) If the owner or operator has already prepared a Spill Prevention, Control, and
Countermeasures (SPCC) Plan in accordance with part 112 of this chapter, or part 1510
of chapter V of this title, or some other emergency or contingency plan, the owner or
operator need only amend that plan to incorporate used oil management provisions that
are sufficient to comply with the requirements of this part.

   (iii) The plan must describe arrangements agreed to by local police departments,
fire departments, hospitals, contractors, and State and local emergency response teams
to coordinate emergency services, pursuant to paragraph (a)(6) of this section.

   (iv) The plan must list names, addresses, and phone numbers (office and home) of
all persons qualified to act as emergency coordinator (see paragraph (b)(5) of this
section), and this list must be kept up to date. Where more than one person is listed,
one must be named as primary emergency coordinator and others must be listed in the
order in which they will assume responsibility as alternates.

   (v) The plan must include a list of all emergency equipment at the facility (such
as fire extinguishing systems, spill control equipment, communications and alarm
systems (internal and external), and decontamination equipment), where this equipment
is required. This list must be kept up to date. In addition, the plan must include the
location and a physical description of each item on the list, and a brief outline of
its capabilities.

   (vi) The plan must include an evacuation plan for facility personnel where there is
a possibility that evacuation could be necessary. This plan must describe signal(s) to
be used to begin evacuation, evacuation routes, and alternate evacuation routes (in
cases where the primary routes could be blocked by releases of used oil or fires).

   (3) Copies of contingency plan. A copy of the contingency plan and all revisions to
the plan must be:

   (i) Maintained at the facility; and

   (ii) Submitted to all local police departments, fire departments, hospitals, and
State and local emergency response teams that may be called upon to provide emergency
services.

   (4) Amendment of contingency plan. The contingency plan must be reviewed, and
immediately amended, if necessary, whenever:

   (i) Applicable regulations are revised;

   (ii) The plan fails in an emergency;

   (iii) The facility changes -- in its design, construction, operation, maintenance,
or other circumstances -- in a way that materially increases the potential for fires,
explosions, or releases of used oil, or changes the response necessary in an
emergency;

   (iv) The list of emergency coordinators changes; or

   (v) The list of emergency equipment changes.

   (5) Emergency coordinator. At all times, there must be at least one employee either
on the facility premises or on call (i.e., available to respond to an emergency by
reaching the facility within a short period of time) with the responsibility for
coordinating all emergency response measures. This emergency coordinator must be
thoroughly familiar with all aspects of the facility's contingency plan, all
operations and activities at the facility, the location and characteristic of used oil
handled, the location of all records within the facility, and facility layout. In
addition, this person must have the authority to commit the resources needed to carry
out the contingency plan.

   Guidance: The emergency coordinator's responsibilities are more fully spelled out
in paragraph (b)(6) of this section. Applicable responsibilities for the emergency
coordinator vary, depending on factors such as type and variety of used oil handled by
the facility, and type and complexity of the facility.

   (6) Emergency procedures. (i) Whenever there is an imminent or actual emergency
situation, the emergency coordinator (or the designee when the emergency coordinator
is on call) must immediately:

   (A) Activate internal facility alarms or communication systems, where applicable,
to notify all facility personnel; and

   (B) Notify appropriate State or local agencies with designated response roles if
their help is needed.

   (ii) Whenever there is a release, fire, or explosion, the emergency coordinator
must immediately identify the character, exact source, amount, and a real extent of
any released materials. He may do this by observation or review of facility records of
manifests and, if necessary, by chemical analysts.

   (iii) Concurrently, the emergency coordinator must assess possible hazards to human
health or the environment that may result from the release, fire, or explosion. This
assessment must consider both direct and indirect effects of the release, fire, or
explosion (e.g., the effects of any toxic, irritating, or asphyxiating gases that are
generated, or the effects of any hazardous surface water run-offs from water of
chemical agents used to control fire and heat-induced explosions).

   (iv) If the emergency coordinator determines that the facility has had a release,
fire, or explosion which could threaten human health, or the environment, outside the
facility, he must report his findings as follows:

   (A) If his assessment indicated that evacuation of local areas may be advisable, he
must immediately notify appropriate local authorities. He must be available to help
appropriate officials decide whether local areas should be evacuated; and

   (B) He must immediately notify either the government official designated as the
on-scene coordinator for the geographical area (in the applicable regional contingency
plan under part 1510 of this title), or the National Response Center (using their
24-hour toll free number 800/424-8802). The report must include:

   (1) Name and telephone number of reporter;

   (2) Name and address of facility;

   (3) Time and type of incident (e.g., release, fire);

   (4) Name and quantity of material(s) involved, to the extent known;

   (5) The extent of injuries, if any; and

   (6) The possible hazards to human health, or the environment, outside the facility.

   (v) During an emergency, the emergency coordinator must take all reasonable
measures necessary to ensure that fires, explosions, and releases do not occur, recur,
or spread to other used oil or hazardous waste at the facility. These measures must
include, where applicable, stopping processes and operation, collecting and containing
released used oil, and removing or isolating containers.

   (vi) If the facility stops operation in response to a fire, explosion, or release,
the emergency coordinator must monitor for leaks, pressure buildup, gas generation, or
ruptures in valves, pipes, or other equipment, wherever this is appropriate.

   (vii) Immediately after an emergency, the emergency coordinator must provide for
recycling, storing, or disposing of recovered used oil, contaminated soil or surface
water, or any other material that results from a release, fire, or explosion at the
facility.

   (viii) The emergency coordinator must ensure that, in the affected area(s) of the
facility:

   (A) No waste or used oil that may be incompatible with the released material is
recycled, treated, stored, or disposed of until cleanup procedures are completed; and

   (B) All emergency equipment listed in the contingency plan is cleaned and fit for
its intended use before operations are resumed.

   (C) The owner or operator must notify the Regional Administrator, and appropriate
State and local authorities that the facility is in compliance with paragraph (h) of
this section before operations are resumed in the affected area(s) of the facility.

   (ix) The owner or operator must note in the operating record the time, date and
details of any incident that requires implementing the contingency plan. Within 15
days after the incident, he must submit a written report on the incident to the
Regional Administrator. The report must include:

   (A) Name, address, and telephone number of the owner or operator;

   (B) Name, address, and telephone number of the facility;

   (C) Date, time, and type of incident (e.g., fire, explosion);

   (D) Name and quantity of material(s) involved;

   (E) The extent of injuries, if any;

   (F) An assessment of actual or potential hazards to human health or the
environment, where this is applicable;

   (G) Estimated quantity and disposition of recovered material that resulted from the
incident.

    279.53 Rebuttable presumption for used oil.

   (a) To ensure that used oil managed at a processing/re-refining facility is not
hazardous waste under the rebuttable presumption of  279.10(b)(1)(ii), the owner or
operator of a used oil processing/re-refining facility must determine whether the
total halogen content of used oil managed at the facility is above or below 1,000 ppm.

   (b) The owner or operator must make this determination by:

   (1) Testing the used oil; or

   (2) Applying knowledge of the halogen content of the used oil in light of the
materials or processes used.

   (c) If the used oil contains greater than or equal to 1,000 ppm total halogens, it
is presumed to be a hazardous waste because it has been mixed with halogenated
hazardous waste listed in subpart D of part 261 of this chapter. The owner or operator
may rebut the presumption by demonstrating that the used oil does not contain
hazardous waste (for example, by using an analytical method from SW-846, Edition III,
to show that the used oil does not contain significant concentrations of halogenated
hazardous constituents listed in appendix VIII of part 261 of this chapter). EPA
Publication SW-846, Third Edition, is available for the cost of $110.00 from the
Government Printing Office, Superintendent of Documents, P.O. Box 371954, Pittsburgh
PA 15250-7954, (202) 783-3238 (document number 955-001-00000-1).

   (1) The rebuttable presumption does not apply to metalworking oils/fluids
containing chlorinated paraffins, if they are processed, through a tolling agreement,
to reclaim metalworking oils/fluids. The presumption does apply to metalworking
oils/fluids if such oils/fluids are recycled in any other manner, or disposed.

   (2) The rebuttable presumption does not apply to used oils contaminated with
chlorofluorocarbons (CFCs) removed from refrigeration units where the CFCs are
destined for reclamation. The rebuttable presumption does apply to used oils
contaminated with CFCs that have been mixed with used oil from sources other than
refrigeration units.

    279.54 Used oil management.

   As specified in  279.10(f), wastewaters containing "de minimis" quantities of used
oil are not subject to the requirements of this part, including the prohibition on
storage in units other than tanks or containers. Used oil processor/re-refiners are
subject to all applicable Spill Prevention, Control and Countermeasures (40 CFR part
112) in addition to the requirements of this subpart. Used oil generators are also
subject to the Underground Storage Tank (40 CFR part 280) standards for used oil
stored in underground tanks whether or not the used oil exhibits any characteristics
of hazardous waste, in addition to the requirements of this subpart.

   (a) Management units. Used oil processors/re-refiners may not store or process used
oil in units other than tanks, containers, or units subject to regulation under part
264 or 265 of this chapter.

   (b) Condition of units. Containers and aboveground tanks used to store or process
used oil at processing and re-refining facilities must be:

   (1) In good condition (no severe rusting, apparent structural defects or
deterioration); and

   (2) Not leaking (no visible leaks).

   (c) Secondary containment for containers. Containers used to store or process used
oil at processing and re-refining facilities must be equipped with a secondary
containment system.

   (1) The secondary containment system must consist of, at a minimum:

   (i) Dikes, berms or retaining walls; and

   (ii) A floor. The floor must cover the entire area within the dike, berm, or
retaining wall.

   (2) The entire containment system, including walls and floor, must be sufficiently
impervious to used oil to prevent any used oil released into the containment system
from migrating out of the system to the soil, groundwater, or surface water.

   (d) Secondary containment for existing aboveground tanks. Existing aboveground
tanks used to store or process used oil at processing and re-refining facilities must
be equipped with a secondary containment system.

   (1) The secondary containment system must consist of, at a minimum:

   (i) Dikes, berms or retaining walls; and

   (ii) A floor. The floor must cover the entire area within the dike, berm, or
retaining wall except areas where existing portions of the tank meet the ground; or

   (iii) An equivalent secondary containment system.

   (2) The entire containment system, including walls and floor, must be sufficiently
impervious to used oil to prevent any used oil released into the containment system
from migrating out of the system to the soil, groundwater, or surface water.

   (e) Secondary containment for new aboveground tanks. New aboveground tanks used to
store or process used oil at processing and re-refining facilities must be equipped
with a secondary containment system.

   (1) The secondary containment system must consist of, at a minimum:

   (i) Dikes, berms or retaining walls; and

   (ii) A floor. The floor must cover the entire area within the dike, berm, or
retaining wall; or

   (iii) An equivalent secondary containment system.

   (2) The entire containment system, including walls and floor, must be sufficiently
impervious to used oil to prevent any used oil released into the containment system
from migrating out of the system to the soil, groundwater, or surface water.

   (f) Labels. (1) Containers and aboveground tanks used to store or process used oil
at processing and re-refining facilities must be labeled or marked clearly with the
words "Used Oil."

   (2) Fill pipes used to transfer used oil into underground storage tanks at
processing and re-refining facilities must be labeled or marked clearly with the words
"Used Oil."

   (g) Response to releases. Upon detection of a release of used oil to the
environment not subject to the requirements of part 280, subpart F of this chapter
which has occurred after the effective date of the authorized used oil program for the
State in which the release is located, an owner/operator must perform the following
cleanup steps:

   (1) Stop the release;

   (2) Contain the released used oil;

   (3) Clean up and mange properly the released used oil and other materials; and

   (4) If necessary, repair or replace any leaking used oil storage containers or
tanks prior to returning them to service.

   (h) Closure. -- (1) Aboveground tanks. Owners and operators who store or process
used oil in aboveground tanks must comply with the following requirements:

   (i) At closure of a tank system, the owner or operator must remove or decontaminate
used oil residues in tanks, contaminated containment system components, contaminated
soils, and structures and equipment contaminated with used oil, and manage them as
hazardous waste, unless the materials are not hazardous waste under this chapter.

   (ii) If the owner or operator demonstrates that not all contaminated soils can be
practicably removed or decontaminated as required in paragraph (h)(1)(i) of this
section, then the owner or operator must close the tank system and perform
post-closure care in accordance with the closure and post-closure care requirements
that apply to hazardous waste landfills ( 265.310 of this chapter).

   (2) Containers. Owners and operators who store used oil in containers must comply
with the following requirements:

   (i) At closure, containers holding used oils or residues of used oil must be
removed from the site;

   (ii) The owner or operator must remove or decontaminate used oil residues,
contaminated containment system components, contaminated soils, and structures and
equipment contaminated with used oil, and manage them as hazardous waste, unless the
materials are not hazardous waste under part 261 of this chapter.

    279.55 Analysis plan.

   Owners or operators of used oil processing and re-refining facilities must develop
and follow a written analysis plan describing the procedures that will be used to
comply with the analysis requirements of  279.53 and, if applicable,  279.72. The
owner or operator must keep the plan at the facility.

   (a) Rebuttable presumption for used oil in  279.53. At at minimum, the plan must
specify the following:

   (1) Whether sample analyses or knowledge of the halogen content of the used oil
will be used to make this determination.

   (2) If sample analyses are used to make this determination:

   (i) The sampling method used to obtain representative samples to be analyzed. A
representative sample may be obtained using either:

   (A) One of the sampling methods in appendix I of part 261 of this chapter; or

   (B) A method shown to be equivalent under  260.20 and 260.21 of this chapter;

   (ii) The frequency of sampling to be performed, and whether the analysis will be
performed on-site or off-site; and

   (iii) The methods used to analyze used oil for the parameters specified in 
279.53; and

   (3) The type of information that will be used to determine the halogen content of
the used oil.

   (b) On-specification used oil fuel in  279.72. At a minimum, the plan must specify
the following if  279.72 is applicable:

   (1) Whether sample analyses or other information will be used to make this
determination;

   (2) If sample analyses are used to make this determination:

   (i) The sampling method used to obtain representative samples to be analyzed. A
representative sample may be obtained using either:

   (A) One of the sampling methods in appendix I of part 261 of this chapter; or

   (B) A method shown to be equivalent under  260.20 and 260.21 of this chapter;

   (ii) Whether used oil will be sampled and analyzed prior to or after any
processing/re-refining;

   (iii) The frequency of sampling to be performed, and whether the analysis will be
performed on-site or off-site; and

   (iv) The methods used to analyze used oil for the parameters specified in  279.72;
and

   (3) The type of information that will be used to make the on-specification used oil
fuel determination.

    279.56 Tracking.

   (a) Acceptance. Used oil processors/re-refiners must keep a record of each used oil
shipment accepted for processing/re-refining. These records may take the form of a
log, invoice, manifest, bill of lading or other shipping documents. Records for each
shipment must include the following information:

   (1) The name and address of the transporter who delivered the used oil to the
processor/re-refiner;

   (2) The name and address of the generator or processor/re-refining from whom the
used oil was sent for processing/re-refining;

   (3) The EPA identification number of the transporter who delivered the used oil to
the processor/re-refiner;

   (4) The EPA identification number (if applicable) of the generator or
processor/re-refiner from whom the used oil was sent for processing/re-refining;

   (5) The quantity of used oil accepted; and

   (6) The date of acceptance.

   (b) Delivery. Used oil processor/re-refiners must keep a record of each shipment of
used oil that is shipped to a used oil burner, processor/ re-refiner, or disposal
facility. These records may take the form of a log, invoice, manifest, bill of lading
or other shipping documents. Records for each shipment must include the following
information:

   (1) The name and address of the transporter who delivers the used oil to the
burner, processor/re-refiner or disposal facility;

   (2) The name and address of the burner, processor/re-refiner or disposal facility
who will receive the used oil;

   (3) The EPA identification number of the transporter who delivers the used oil to
the burner, processor/re-refiner or disposal facility;

   (4) The EPA identification number of the burner, processor/re-refiner, or disposal
facility who will receive the used oil;

   (5) The quantity of used oil shipped; and

   (6) The date of shipment.

   (c) Record retention. The records described in paragraphs (a) and (b) of this
section must be maintained for at least three years.

    279.57 Operating record and reporting.

   (a) Operating record. (1) The owner or operator must keep a written operating
record at the facility.

   (2) The following information must be recorded, as it becomes available, and
maintained in the operating record until closure of the facility;

   (i) Records and results of used oil analyses performed as described in the analysis
plan required under  279.55; and

   (ii) Summary reports and details of all incidents that require implementation of
the contingency plan an specified in  279.52(b).

   (b) Reporting. A used oil processor/re-refiner must report to the Regional
Administrator, in the form of a letter, on a biennial basis (by March 1 of each even
numbered year), the following information concerning used oil activities during the
previous calendar year;

   (1) The EPA identification number, name, and address of the processor/re-refiner;

   (2) The calendar year covered by the report; and

   (3) The quantities of used oil accepted for processing/re-refining and the manner
in which the used oil is processed/re-refined, including the specific processes
employed.

    279.58 Off-site shipments of used oil.

   Used oil processors/re-refiners who initiate shipments of used oil off-site must
ship the used oil using a used oil transporter who has obtained an EPA identification
number.

    279.59 Management of residues.

   Owners and operators who generate residues from the storage, processing, or
re-fining of used oil must manage the residues as specified in  279.10(e).

   Subpart G -- Standards for Used Oil Burners Who Burn Off-Specification Used Oil for
Energy Recovery

    279.60 Applicability.

   (a) General. The requirements of this subpart apply to used oil burners except as
specified in paragraphs (a)(1) and (a)(2) of this section. A used oil burner is a
facility where used oil not meeting the specification requirements in  279.11 is
burned for energy recovery in devices identified in  279.61(a). Facilities burning
used oil for energy recovery under the following conditions are not subject to this
Subpart:

   (1) The used oil is burned by the generator in an on-site space heater under the
provisions of  279.23; or

   (2) The used oil is burned by a processor/re-refiner for purposes of processing
used oil, which is considered burning incidentally to used oil processing.

   (b) Other applicable provisions. Used oil burners who conduct the following
activities are also subject to the requirements of other applicable provisions of this
part as indicated below.

   (1) Burners who generate used oil must also comply this subpart C of this part;

   (2) Burners who transport used oil must also comply with subpart E of this part;

   (3) Except as provided in  279.61(b), burners who process or re-refine used oil
must also comply with subpart F of this part;

   (4) Burners who direct shipments of off-specification used oil from their facility
to a used oil burner or first claim that used oil that is to be burned for energy
recovery meets the used oil fuel specifications set forth in  279.11 must also comply
with subpart H of this part; and

   (5) Burners who dispose of used oil, including the use of used oil as a dust
suppressant, must comply with subpart I of this part.

   (c) Specification fuel. This subpart does not apply to persons burning used oil
that meets the used oil fuel specification of  279.11, provided that the burner
complies with the requirements of subpart H of this part.

    279.61 Restrictions on burning.

   (a) Off-specification used oil fuel may be burned for energy recovery in only the
following devices:

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

   (2) Boilers, as defined in  260.10 of this chapter, that are identified as
follows:

   (i) Industrial boilers located on the site of a facility engaged in a manufacturing
process where substances are transformed into new products, including the component
parts of products, by mechanical or chemical processes;

   (ii) Utility boilers used to produce electric power, steam, heated or cooled air,
or other gases or fluids for sale; or

   (iii) Used oil-fired space heaters provided that the burner meets the provisions of
 279.23; or

   (3) Hazardous waste incinerators subject to regulation under subpart O of parts 264
or 265 of this chapter.

   (b)(1) With the following exception, used oil burners may not process used oil
unless they also comply with the requirements of subpart F of this part.

   (2) Used oil burners may aggregate off-specification used oil with virgin oil or
on-specification used oil for purposes of burning, but may not aggregate for purposes
of producing on-specification used oil.

    279.62 Notification

   (a) Identification numbers. Used oil burners who have not previously complied with
the notification requirements of RCRA section 3010 must comply with these requirements
and obtain an EPA identification number.

   (b) Mechanics of notification. A used oil burner who has not received an EPA
identification number may obtain one by notifying the Regional Administrator of their
used oil activity by submitting either:

   (1) A completed EPA Form 8700-12 (To obtain EPA Form 8700-12 call RCRA/Superfund
Hotline at 1-800-424-9346 or 703-920-9810); or

   (2) A letter requesting an EPA identification number. Call the RCRA/Superfund
Hotline to determine where to send a letter requesting an EPA identification number.
The letter should include the following information:

   (i) Burner company name;

   (ii) Owner of the burner company;

   (iii) Mailing address for the burner;

   (iv) Name and telephone number for the burner point of contact;

   (v) Type of used oil activity; and

   (vi) Location of the burner facility.

    279.63 Rebuttable presumption for used oil.

   (a) To ensure that used oil managed at a used oil burner facility is not hazardous
waste under the rebuttable presumption of  279.10(b)(1)(ii), a used oil burner must
determine whether the total halogen content of used oil managed at the facility is
above or below 1,000 ppm.

   (b) The used oil burner must determine if the used oil contains above or below
1,000 ppm total halogens by:

   (1) Testing the used oil;

   (2) Applying knowledge of the halogen content of the used oil in light of the
materials or processes used; or

   (3) If the used oil has been received from a processor/refiner subject to
regulation under subpart F of this part, using information provided by the
processor/re-refiner.

   (c) If the used oil contains greater than or equal to 1,000 ppm total halogens, it
is presumed to be a hazardous waste/because it has been mixed with halogenated
hazardous waste listed in subpart D of part 261 of this chapter. The owner or operator
may rebut the presumption by demonstrating that the used oil does not contain
hazardous waste (for example, by using an analytical method from SW-846, Edition III,
to show that the used oil does not contain significant concentrations of halogenated
hazardous constituents listed in appendix VIII of part 261 of this chapter). EPA
Publication SW-846, Third Edition, is available for the cost of $110.00 from the
Government Printing Office, Superintendent of Documents, PO Box 371954, Pittsburgh, PA
15250-7954. 202-783-3238 (document number 955-001-00000-1).

   (1) The rebuttable presumption does not apply to metalworking oils/fluids
containing chlorinated paraffins, if they are processed, through a tolling arrangement
as described in  279.24(c), to reclaim metalworking oils/fluids. The presumption does
apply to metalworking oils/fluids if such oils/fluids are recycled in any other
manner, or disposed.

   (2) The rebuttable presumption does not apply to used oils contaminated with
chlorofluorocarbons (CFCs) removed from refrigeration units where the CFCs are
destined for reclamation. The rebuttable presumption does apply to used oils
contaminated with CFCs that have been mixed with used oil from sources other than
refrigeration units.

   (d) Record retention. Records of analyses conducted or information used to comply
with paragraphs (a), (b), and (c) of this section must be maintained by the burner for
at least 3 years.

    279.64 Used oil storage.

   As specified in  279.10(f), wastewaters containing "de minimis" quantities of used
oil are not subject to the requirements of this Part, including the prohibition on
storage in units other than tanks or containers. Used oil burners are subject to all
applicable Spill Prevention, Control and Countermeasures (40 CFR part 112) in addition
to the requirements of this subpart. Used oil generators are also subject to the
Underground Storage Tank (40 CFR part 280) standards for used oil stored in
underground tanks whether or not the used oil exhibits any characteristics of
hazardous waste, in addition to the requirements of this subpart.

   (a) Storage units. Used oil burners may not store used oil in units other than
tanks, containers, or units subject to regulation under parts 264 or 265 of this
chapter.

   (b) Condition of units. Containers and aboveground tanks used to store oil at
burner facilities must be:

   (1) In good condition (no severe rusting, apparent structural defects or
deterioration); and

   (2) Not leaking (no visible leaks).

   (c) Secondary containment for containers. Containers used to store used oil at
burner facilities must be equipped with a secondary containment system.

   (1) The secondary containment system must consist of, at a minimum:

   (i) Dikes, berms or retaining walls; and

   (ii) A floor. The floor must cover the entire area within the dike, berm, or
retaining wall.

   (2) The entire containment system, including walls and floor, must be sufficiently
impervious to used oil to prevent any used oil released into the containment system
from migrating out of the system to the soil, groundwater, or surface water.

   (d) Secondary containment for existing aboveground tanks. Existing aboveground
tanks used to store used oil at burner facilities must be equipped with a secondary
containment system.

   (1) The secondary containment system must consist of, at a minimum:

   (i) Dikes, berms or retaining walls; and

   (ii) A floor. The floor must cover the entire area within the dike, berm, or
retaining wall except areas where existing portions of the tank meet the ground; or

   (iii) An equivalent secondary containment system.

   (2) The entire containment system, including walls and floor, must be sufficiently
impervious to used oil to prevent any used oil released into the containment system
from migrating out of the system to the soil, groundwater, or surface water.

   (e) Secondary containment for existing aboveground tanks. New aboveground tanks
used to store used oil at burner facilities must be equipped with a secondary
containment system.

   (1) The secondary containment system must consist of, at a minimum:

   (i) Dikes, berms or retaining walls; and

   (ii) A floor. The floor must cover the entire area within the dike, berm, or
retaining wall; or

   (iii) An equivalent secondary containment system.

   (2) The entire containment system, including walls and floor, must be sufficiently
impervious to used oil to prevent any used oil released into the containment system
from migrating out of the system to the soil, groundwater, or surface water.

   (f) Labels. (1) Containers and aboveground tanks used to store used oil at burner
facilities must be labeled or marked clearly with the words "Used Oil."

   (2) Fill pipes used to transfer used oil into underground storage tanks at burner
facilities must be labeled or marked clearly with the words "Used Oil."

   (g) Response to releases. Upon detection of a release of used oil to the
environment not subject to the requirements of part 280 subpart F which has occurred
after the effective date of the authorized used oil program for the State in which the
release is located, a burner must perform the following cleanup steps:

   (1) Stop the release;

   (2) Contain the released used oil;

   (3) Clean up and manage properly the released used oil and other materials; and

   (4) If necessary, repair or replace any leaking used oil storage containers or
tanks prior to returning them to service.

    279.65 Tracking.

   (a) Acceptance. Used oil burners must keep a record of each used oil shipment
accepted for burning. These records may take the form of a log, invoice, manifest,
bill of lading, or other shipping documents. Records for each shipment must include
the following information:

   (1) The name and address of the transporter who delivered the used oil to the
burner;

   (2) The name and address of the generator or processor/re-refiner from whom the
used oil was sent to the burner;

   (3) The EPA identification number of the transporter who delivered the used oil to
the burner;

   (4) The EPA identification number (if applicable) of the generator or
processor/re-refiner from whom the used oil was sent to the burner;

   (5) The quantity of used oil accepted; and

   (6) The date of acceptance.

   (b) Record retention. The records described in paragraph (a) of this section must
be maintained for at least three years.

    279.66 Notices.

   (a) Certification. Before a burner accepts the first shipment of off-specification
used oil fuel from a generator, transporter, or processor/re-refiner, the burner must
provide to the generator, transporter, or processor/re-refiner a one-time written and
signed notice certifying that:

   (1) The burner has notified EPA stating the location and general description of his
used oil management activities; and

   (2) The burner will burn the used oil only in an industrial furnace or boiler
identified in  279.61(a).

   (b) Certification retention. The certification described in paragraph (a) of this
section must be maintained for three years from the date the burner last receives
shipment of off-specification used oil from that generator, transporter, or
processor/re-refiner.

    279.67 Management of residues.

   Burners who generate residues from the storage or burning of used oil must manage
the residues as specified in  279.10(e).

   Subpart H-Standards for Used Oil Fuel Marketers

    279.70 Applicability.

   (a) Any person who conducts either of the following activities is subject to the
requirements of this section:

   (1) Directs a shipment of off-specification used oil from their facility to a used
oil burner; or

   (2) First claims that used oil that is to be burned for energy recovery meets the
used oil fuel specifications set forth in  279.11.

   (b) The following persons are not marketers subject to this subpart:

   (1) Used oil generators, and transporters who transport used oil received only from
generators, unless the generator or transporter directs a shipment of
off-specification used oil from their facility to a used oil burner. However,
processors/re-refiners who burn some used oil fuel for purposes of processing are
considered to be burning incidentally to processing. Thus, generators and transporters
who direct shipments of off-specification used oil to processor/re-refiners who
incidently burn used oil are not marketers subject to this Subpart;

   (2) Persons who direct shipments of on-specification used oil and who are not the
first person to claim the oil meets the used oil fuel specifications of  279.11.

   (c) Any person subject to the requirements of this Subpart must also comply with
one of the following:

   (1) Subpart C of this part -- Standards for Used Oil Generators;

   (2) Subpart E of this part -- Standards for Used Oil Transporters and Transfer
Facilities;

   (3) Subpart F of this part -- Standards for Used Oil Processors and Re-refiners; or

   (4) Subpart G of this part -- Standards for Used Oil Burners who Burn
Off-Specification Used Oil for Energy Recovery.

    279.71 Prohibitions.

   A used oil fuel marketer may initiate a shipment of off-specification used oil only
to a used oil burner who:

   (a) Has an EPA identification number; and

   (b) Burns the used oil in an industrial furnace or boiler identified in 
279.61(a).

    279.72 On-specification used oil fuel.

   (a) Analysis of used oil fuel. A generator, transporter, processor/re-refiner, or
burner may determine that used oil that is to be burned for energy recovery meets the
fuel specifications of  279.11 by performing analyses or obtaining copies of analyses
or other information documenting that the used oil fuel meets the specifications. Such
used oil that is to be burned for energy recovery is not subject to further regulation
under this part.

   (b) Record retention.  A generator, transporter, processor/re-refiner, or burner
who first claims that used oil that is to be burned for energy recovery meets the
specifications for used oil fuel under  279.11, must keep copies of analyses of the
used oil (or other information used to make the determination) for three years.

    279.73 Notification.

   (a) A used oil fuel marketer subject to the requirements of this section who has
not previously complied with the notification requirements of RCRA Section 3010 must
comply with these requirements and obtain an EPA identification number.

   (b) A marketer who has not received an EPA identification number may obtain one by
notifying the Regional Administrator of their used oil activity by submitting either:

   (1) A completed EPA Form 8700-12; or

   (2) A letter requesting an EPA identification number. The letter should include the
following information:

   (i) Marketer company name;

   (ii) Owner of the marketer;

   (iii) Mailing address for the marketer;

   (iv) Name and telephone number for the marketer point of contact; and

   (v) Type of used oil activity (i.e., generator directing shipments of
off-specification used oil to a burner).

    279.74 Tracking.

   (a) Off-specification used oil delivery. Any used oil generator who directs a
shipment of off-specification used oil to a burner must keep a record of each shipment
of used oil to a used oil burner. These records may take the form of a log, invoice,
manifest, bill of lading or other shipping documents. Records for each shipment must
include the following information:

   (1) The name and address of the transporter who delivers the used oil to the
burner;

   (2) The name and address of the burner who will receive the used oil;

   (3) The EPA identification number of the transporter who delivers the used oil to
the burner;

   (4) The EPA identification number of the burner;

   (5) The quantity of used oil shipped; and

   (6) The date of shipment.

   (b) On-specification used oil delivery. A generator, transporter,
processor/re-refiner, or burner who first claims that used oil that is to be burned
for energy recovery meets the fuel specifications under  279.11 must keep a record of
each shipment of used oil to an on-specification used oil burner. Records for each
shipment must include the following information:

   (1) The name and address of the facility receiving the shipment;

   (2) The quantity of used oil fuel delivered;

   (3) The date of shipment or delivery; and

   (4) A cross-reference to the record of used oil analysis or other information used
to make the determination that the oil meets the specification as required under 
279.72(a).

   (c) Record retention. The records described in paragraphs (a) and (b) of this
section must be maintained for at least three years.

    279.75 Notices.

   (a) Certification. Before a used oil generator, transporter, or
processor/re-refiner directs the first shipment of off-specification used oil fuel to
a burner, he must obtain a one-time written and signed notice from the burner
certifying that:

   (1) The burner has notified EPA stating the location and general description of
used oil management activities; and

   (2) The burner will burn the off-specification used oil only in an industrial
furnace or boiler identified in  279.61(a).

   (b) Certification retention. The certification described in paragraph (a) of this
section must be maintained for three years from the date the last shipment of
off-specification used oil is shipped to the burner.

   Subpart I -- Standards for Use as a Dust Suppressant and Disposal of Used Oil

    279.80 Applicability.

   The requirements of this subpart apply to all used oils that cannot be recycled and
are therefore being disposed.

    279.81 Disposal.

   (a) Disposal of hazardous used oils. Used oils that are identified as a hazardous
waste and cannot be recycled in accordance with this part must be managed in
accordance with the hazardous waste management requirements of parts 260 through 266,
268, 270 and 124 of this chapter.

   (b) Disposal of nonhazardous used oils. Used oils that are not hazardous wastes and
cannot be recycled under this part must be disposed in accordance with the
requirements of parts 257 and 258 of this chapter.

    279.82 Use as a dust suppressant.

   (a) The use of used oil as a dust suppressant is prohibited, except when such
activity takes place in one of the states listed in paragraph (c) of this section.

   (b) A State may petition (e.g., as part of its authorization petition submitted to
EPA under  271.5 of this chapter or by a separate submission) EPA to allow the use of
used oil (that is not mixed with hazardous waste and does not exhibit a characteristic
other than ignitability) as a dust suppressant. The State must show that it has a
program in place to prevent the use of used oil/hazardous waste mixtures or used oil
exhibiting a characteristic other than ignitability as a dust suppressant. In
addition, such programs must minimize the impacts of use as a dust suppressant on the
environment.

   (c) List of States. [Reserved]  [FR Doc. 92-20085 Filed 9-9-92; 8:45 am]

   BILLING CODE 6560-50-M