Response
to
Comments
Document
Used
Oil
Management
Standards
Used
Oil
Clarification
Direct
Final
Rule
and
Proposal
May
6,
1998
(
63
FR
24963)

U.
S.
Environmental
Protection
Agency
Office
of
Solid
Waste
and
Emergency
Response
1200
Pennsylvania
Avenue,
NW
(
5303W)
Washington,
DC
20460
February
2003
TABLE
OF
CONTENTS
Section
Page
Introduction
1
Comments
to
the
Amendment
Related
to
the
Applicability
of
the
Used
Oil
Management
Standards
to
PCB
Contaminated
Used
Oil
(
40
CFR
279.10(
i))
1
Comments
to
the
Amendment
Related
to
Mixtures
of
CESQG
Wastes
and
Used
Oil
12
Comments
to
the
Amendment
Related
to
Recordkeeping
Requirements
for
Marketers
of
On­
Specification
Used
Oil
Fuel
13
General
Comments
to
the
May
6,
1998
Direct
Final
Rule
and
Proposal
19
1
Introduction
On
May
6,
1998,
EPA
issued
a
Direct
Final
Rule
and
Proposal
regarding
clarifications
to
the
Used
Oil
Management
Standards
(
63
FR
24963).
The
Agency
received
ten
comment
letters
on
this
rulemaking.
Four
of
these
comment
letters
were
adverse,
so
the
Agency
removed
the
three
amendments
that
received
adverse
comment
on
July
14,
1998
(
63
FR
37780).
The
following
is
each
individual
comment
and
the
Agency's
response.

Comments
to
the
Amendment
Related
to
the
Applicability
of
the
Used
Oil
Management
Standards
to
PCB
Contaminated
Used
Oil
(
40
CFR
279.10(
i))

Comment
A­
1
Safety­
Kleen
Corporation
(
Docket
#:
CUOP­
00002)

Safety­
Kleen
Corp.
is
submitting
comments
on
USEPA's
May
6,
1998
direct
final
rule
regarding
the
"
Applicability
of
the
Used
Oil
Management
Standards
to
PCB
Contaminated
Used
Oil"
(
63
FR
24963).
These
comments
are
required
following
our
submittal
of
a
Notice
of
Intent
to
Submit
Adverse
Comments
made
on
May
20,
1998
regarding
the
same
subject.

Safety­
Kleen
is
the
largest
recycler
of
industrial
fluids
and
is
also
the
largest
recycler
of
used
oil
in
the
United
States.
The
Company
recycles
used
oil
primarily
via
re­
refining,
but
also
blends
significant
quantities
as
used
oil
fuels
burned
for
energy
recovery.
As
part
of
these
activities,
we
have
experienced
the
need
to
apply
both
the
RCRA
Used
Oil
Management
Standards
at
40
CFR
279
and
the
TSCA
PCB
regulations
at
40
CFR
761.

We
applaud
the
Agency's
efforts
to
ensure
that
the
applicability
of
both
sets
of
regulations
are
clear
and
well
understood
by
the
regulated
community.
However,
with
regard
to
the
discussion
on
the
applicability
of
the
§
279
and
§
761
regulations
to
used
oils
contaminated
with
PCBs,
we
feel
that
additional
clarification
is
required
to
be
added
to
the
regulatory
text
and
preamble
to
ensure
that
certain
materials
are
not
improperly
managed.
We
believe
that
the
intent
of
what
was
proposed
in
the
direct
final
rule
was
correct,
but
that
the
specific
wording
did
not
fully
support
that
intent.

Clarify
Regulation
of
Recycled
Used
Oils
Known
to
Contain
Diluted
PCBs
The
proposed
changes
to
279.10(
i)
do
not
adequately
include
a
reference
as
to
how
the
regulations
deal
with
used
oil
that
is
known
to
contain
or
have
been
diluted
from
material
at
a
higher
regulatory
threshold,
i.
e.,
2
or
50
ppm.
Used
oil
that
contains,
or
is
known
to
have
been
diluted
from
50
ppm
or
greater
material
is
subject
to
regulation
under
the
TSCA
40
CFR
761
rules
as
a
PCB
waste
and
not
under
the
RCRA
40
CFR
279
rules.
Likewise,
used
oil
that
is
less
than
2
ppm
PCBs,
but
is
known
to
have
been
diluted
from
2
to
49
ppm
material
is
to
be
regulated
under
both
Parts
279
and
761.

Take
for
example
the
situation
of
used
oil
containing
35
ppm
PCBs,
but
is
known
to
contain
or
2
have
been
diluted
from
50
ppm
or
greater.
Due
to
the
TSCA
anti­
dilution
rule
at
40
CFR
761.1(
b),
this
used
oil
is
subject
to
the
TSCA
disposal
regulations.
However,
the
proposed
wording
at
40
CFR
279.10(
i)
seems
to
indicate
that
if
the
used
oil
is
less
than
50
ppm,
regardless
of
whether
it
has
been
diluted
or
not,
the
oil
is
subject
to
the
40
CFR
279
standards.
The
40
CFR
279
citations
may
impose
additional
burdens
which
are
not
applicable
when
managed
as
a
TSCA
PCB
waste.

The
following
modification
to
the
proposed
40
CFR
279.10(
i)
is
suggested
to
clarify
this
issue,
with
the
underlining
and
strike­
throughs
indicating
suggested
revisions:

§
279.10
Applicability.
*****

(
i)
Used
oil
containing
PCBs.
Used
oil
containing
PCBs
(
as
defined
at
40
CFR
761.3)
at
any
concentration
less
than
50
ppm
and
not
known
to
be
diluted
from
or
contain
50
ppm
or
greater
material,
is
subject
to
the
requirements
of
this
part.
Used
oil
subject
to
the
requirements
of
this
Part
may
also
be
subject
to
the
prohibitions
and
requirements
found
at
40
CFR
part
761,
including
§
761.20(
d)
and
(
e).
Used
oil
containing
PCBs
at
concentrations
of
50
ppm
or
greater,
or
known
to
be
diluted
from
or
contain
PCBs
of
50
ppm
or
greater,
is
not
subject
to
the
requirements
of
this
part,
but
is
subject
to
regulation
under
40
CFR
part
761.
Used
oil
containing
PCBs
at
concentrations
of
2
to
49
ppm,
or
known
to
be
diluted
from
or
contain
PCBs
of
2
to
49
ppm,
or
of
unknown
PCB
concentration
are
subject
to
both
§
279
and
§
761,
including
§
761.20(
d)
and
(
e).

Clarify
the
Preamble
with
Regard
to
Dilution
of
PCBs
Similar
changes
are
also
needed
to
the
preamble
section
of
this
rule
dealing
with
PCB
contamination
of
used
oil.
In
general,
whenever
a
reference
is
made
to
a
regulatory
threshold
(
i.
e.,
2
ppm
or
50
ppm),
a
phrase
should
be
added
to
also
reference
the
dilution
issue.
The
second
paragraph
after
the
preamble's
Table
1
confirms
this
position,
but
we
believe
that
it
is
necessary
to
reiterate
the
anti­
dilution
statement
at
each
reference
to
ensure
that
others
do
not
inappropriately
interpret
specific
citations
as
allowing
dilution.
The
underscored
changes
below
are
suggested
to
make
the
preamble
clear
that
dilution
from
above
a
regulatory
threshold
(
50
ppm
or
2
ppm
of
PCBs)
continues
to
make
the
used
oil
subject
to
the
higher
level
of
regulation,
and
that
used
oil
that
has
been
subject
to
dilution
from
50
ppm
or
greater
is
not
regulated
by
RCRA.
These
clarifications
will
ensure
that
all
regulated
parties
operate
under
the
same
rules
and
interpretations.

The
following
section
shows
the
applicable
section
of
the
May
6
preamble
with
suggested
additions
and
clarifications
underlined,
and
suggested
deletions
lined­
out:

III.
Regulatory
Amendments
A.
Applicability
of
the
Used
Oil
Management
Standards
to
PCB
Contaminated
Used
Oil
Today's
rule
amends
40
CFR
279.10(
i)
to
clarify
the
applicability
of
the
used
oil
3
management
standards
of
40
CFR
part
279
to
used
oil
containing
PCBs.
The
revised
language
reflects
EPA's
intent
that
used
oil
that
contains
less
than
50
ppm
of
PCBs
and
is
not
known
to
have
been
diluted
from
50
ppm
or
greater
is
subject
to
regulation
under
the
used
oil
management
standards.
Used
oil
that
contains
50
ppm
or
greater
of
PCBs
or
is
known
to
have
been
diluted
from
50
ppm
or
greater
is
not
subject
to
regulation
under
the
used
oil
management
standards,
because
the
TSCA
regulations
at
40
CFR
part
761
provide
comprehensive
management
of
such
used
oil.

Table
1
shows
the
applicability
of
the
RCRA
and
TSCA
regulations
as
they
pertain
to
used
oil
containing
PCBs
that
is
to
be
burned
for
energy
recovery.
Used
oil
that
contains
PCBs
in
the
range
of
2
ppm
and
greater
and
less
than
50
ppm,
or
is
known
to
contain
2­
49
ppm
material,
that
is
burned
for
energy
recovery
is
regulated
by
both
the
TSCA
regulations
at
40
CFR
761.20(
e)
and
the
used
oil
management
standards
at
40
CFR
part
279.
Please
note,
under
the
TSCA
regulations
at
40
CFR
761.20(
e)(
2),
used
oil
that
is
to
be
burned
for
energy
recovery
is
presumed
to
contain
2
ppm
or
greater
of
PCBs
unless
shown
otherwise
by
testing
or
other
information.
Used
oil
that
is
to
be
burned
for
energy
recovery
and
has
been
shown
to
contain
less
than
2
ppm
PCBs
and
has
not
been
diluted
from
greater
than
2
ppm,
is
not
regulated
under
TSCA
and
is
solely
regulated
under
RCRA.

TABLE
1.­
REGULATION
OF
USED
OIL
CONTAINING
PCBS
THAT
IS
TO
BE
BURNED
FOR
ENERGY
RECOVERY
UNDER
40
CFR
PART
279
OF
RCRA
AND
40
CFR
PART
761
OF
TSCA
Range
of
actual
or
known
to
be
diluted
from
PCB
contamination
levels
in
used
oil
(
ppm)
Does
RCRA
regulate
this
used
oil
if
it
is
to
be
burned
for
energy
recovery?
Does
TSCA
regulate
this
used
oil
if
it
is
to
be
burned
for
energy
recovery?

Demonstrated
to
contain
less
than
2
and
not
diluted
from
higher
concentrations
Yes
No.
*

2
to
less
than
50
Yes
Yes.

50
and
greater
No
Yes.

*
Used
oil
that
is
to
be
burned
for
energy
recovery
is
presumed
to
contain
2
ppm
or
greater
of
PCBs
unless
shown
otherwise
by
testing
or
other
information.

Used
oil
containing
less
than
50
ppm
PCBs
that
is
recycled
other
than
being
burned
for
energy
recovery
is
not
generally
subject
to
the
TSCA
requirements.
See
40
CFR
761.3
(
definition
of
excluded
PCB
products);
761.20(
a)(
1);
and
761.20(
c).
However,
40
CFR
761.20(
d)
prohibits
the
use
of
used
oil
that
contains
any
detectable
concentration
of
PCBs
as
a
sealant,
coating,
or
dust
control
agent.
This
prohibition
specifically
includes
road
oiling
and
general
dust
control.
Use
of
used
oil
as
a
dust
suppressant
is
prohibited
under
4
RCRA
except
in
a
state
that
has
received
authorization
from
EPA
to
allow
use
of
used
oil
as
a
dust
suppressant.
Currently
no
states
have
received
such
authorization.
In
the
event
that
a
state
were
authorized
to
use
used
oil
as
a
dust
suppressant
pursuant
to
40
CFR
279.82,
the
prohibition
in
40
CFR
761.20(
d)
would
still
apply.

Used
oil
that
contains
PCBs
may
not
be
diluted
to
avoid
a
particular
PCB
regulation
unless
otherwise
specifically
provided.
obtain
PCB
concentrations
less
than
50
ppm.
See
40
CFR
761.1(
b).
PCB­
containing
used
oils
that
have
been
diluted
so
that
their
concentrations
are
less
than
50
ppm
are
still
subject
to
regulation
under
TSCA
as
used
oil
that
contains
PCB
concentrations
of
50
ppm
or
greater.
These
diluted
used
oils
are
subject
to
comprehensive
management
under
TSCA
and,
therefore,
are
not
regulated
under
the
RCRA
used
oil
management
standards.
The
same
is
also
true
for
used
oils
diluted
from
2
to
49
ppm
down
to
less
than
2
ppm.
These
diluted
oils
remain
defined
as
"
excluded
PCB
products"
and
are
subject
to
40
CFR
761,
including
§
761.1(
f)(
4),
and
761.20(
d)
and
(
e).
If
dilution
is
known
to
have
occurred
in
this
case,
the
used
oil
is
managed
under
both
RCRA
and
TSCA
regulations.

RCRA's
used
oil
management
standards
have
historically
applied
to
used
oil
containing
less
than
50
ppm
PCBs
and
not
to
used
oil
containing
concentrations
of
50
ppm
or
greater.
Prior
to
the
promulgation
of
Part
279
in
September
1992,
the
used
oil
management
standards
applied
to
used
oil
that
contained
less
than
50
ppm
PCBs
pursuant
to
40
CFR
Part
266,
subpart
E.
The
preamble
to
the
September
1992
rule
that
recodified
the
provisions
from
the
old
Part
266
clearly
indicates
EPA's
intent
not
to
regulate
PCB­
contaminated
used
oil
at
levels
of
50
ppm
and
greater
under
the
RCRA
used
oil
management
standards
(
see
57
FR
41566,
41569,
41583;
September
10,
1992),
but
the
text
of
the
rule
did
not
reference
the
50
ppm
standard.
Instead,
the
regulatory
text
at
40
CFR
279.10(
i)
purported
to
exclude
from
the
used
oil
management
standards
those
PCB­
contaminated
used
oils
already
"
regulated
under"
the
TSCA
PCB
regulations
at
40
CFR
Part
761,
which
as
explained
above
is
a
potentially
broader
universe
of
material.
Because
the
September
10,
1992
RCRA
rule
excluded
PCB­
contaminated
used
oil
already
"
regulated
under"
the
TSCA
regulations,
it
could
have
been
interpreted
as
excluding
used
oil
containing
PCBs
at
less
than
50
ppm
from
the
RCRA
used
oil
management
standards.

The
May
3,
1993
RCRA
rule
(
58
FR
26420)
sought
to
clarify
that
the
Part
279
standards
apply
to
used
oils
containing
less
than
50
ppm
PCBs,
but
did
so
in
a
manner
that
inadvertently
created
the
impression
that
the
used
oil
management
standards
also
applied
to
PCB­
contaminated
used
oils
at
levels
of
50
ppm
and
greater.
Today's
rule
clarifies
the
scope
of
the
RCRA
used
oil
management
standards
as
EPA
has
consistently
interpreted
them.

We
believe
that
the
above
underscored
changes
are
consistent
with
the
intent
and
manner
in
which
EPA
has
managed
PCB
contamination
issues.
5
Response
The
Agency
agrees
with
Safety­
Kleen
that
used
oil
that
contains
polychlorinated
biphenyls
(
PCBs)
may
not
be
diluted
to
avoid
a
particular
PCB
regulation
unless
otherwise
specifically
provided
by
the
regulations.
This
is
specifically
addressed
by
the
PCB
dilution
prohibition
in
the
Toxic
Substances
Control
Act
(
TSCA)
PCB
regulations
at
40
CFR
761.1(
b)(
5).
As
a
result
of
this
dilution
prohibition,
if
used
oil
that
is
known
to
contain
PCB
concentrations
of
greater
than
or
equal
to
50
ppm
when
generated
is
diluted
to
less
than
50
ppm,
the
diluted
mixture
must
be
managed
as
used
oil
that
contains
PCB
concentrations
of
50
ppm
or
greater.
The
same
is
true
for
used
oil
that
is
known
to
contain
PCB
concentrations
of
2
ppm
or
greater,
but
less
than
50
ppm;
if
this
used
oil
is
diluted
to
less
than
2
ppm
PCBs,
the
diluted
mixture
must
be
managed
as
used
oil
that
contains
concentrations
of
PCBs
of
2
ppm
or
greater.
This
issue
is
also
discussed
in
the
June
29,
1998
Disposal
of
PCBs
final
rule
(
63
FR
35384
at
35390).
The
Agency
is
revising
the
regulatory
text
and
the
preamble
discussion
of
the
final
rule
in
response
to
this
comment.

Comment
A­
2
Utility
Solid
Waste
Activities
Group,
et
al
(
Docket
#:
CUOP­
00003)

USWAG
strongly
supports
EPA's
clarification
that
used
oil
containing
50
ppm
PCBs
or
greater
is
not
subject
to
RCRA's
used
oil
management
standards
(
under
40
C.
F.
R.
Part
279)
because
such
used
oil
is
comprehensively
regulated
under
TSCA's
PCB
regulations.
See
63
Fed.
Reg.
at
24965,
24969
(
amending
40
C.
F.
R.
§
279.10(
i)).
In
particular,
EPA
made
clear
in
the
proposed
technical
correction
that
!
used
oil
containing
PCBs
at
concentrations
of
50
ppm
or
greater
is
not
subject
to
RCRA's
used
oil
management
standards;

!
used
oil
containing
PCBs
at
any
concentration
less
than
50
ppm
is
subject
to
RCRA's
used
oil
management
standards;
and
!
used
oil
containing
PCBs
at
concentrations
of
between
2
and
49
ppm
PCBs
that
is
burned
for
energy
recovery
may
be
subject
to
TSCA's
administrative
standards
for
burning
used
oil
(
in
addition
to
RCRA's
used
oil
management
standards).

Id.
at
24965
This
clarification
was
necessary
because
EPA
inadvertently
altered
the
scope
of
the
pre­
existing
regulatory
language
at
40
C.
F.
R.
§
279.10(
i)
when
it
issued
its
first
series
of
used
oil
technical
amendments
in
1993
(
see
58
Fed.
Reg.
26420).
The
earlier
regulatory
language
in
§
279.10(
i)
unambiguously
excluded
used
oil
containing
PCBs
at
50
ppm
or
greater
from
RCRA's
used
oil
program.
USWAG
brought
suit
challenging
the
1993
technical
amendments
on
grounds
that
EPA
had
inappropriately
altered
the
scope
of
this
pre­
existing
regulation.
See
EEI,
et
al.
v.
EPA,
No.
93­
1474.
The
parties
ultimately
entered
into
a
Settlement
Agreement
under
which
EPA
agreed
to
amend
the
rules
re­
affirming
the
full
scope
of
the
exclusion.
See
Settlement
Agreement
6
in
EEI
v.
EPA,
filed
on
August
6,
1996
Therefore,
EPA's
May
6,
1998
proposed
technical
correction
reaffirming
the
scope
of
the
pre­
existing
exclusion
from
the
RCRA
used
oil
program
for
used
oil
containing
greater
than
50
ppm
PCBs
was
required
pursuant
to
the
Settlement
Agreement
in
the
above­
referenced
case.
The
technical
correction
appropriately
clarifies
the
applicability
of
TSCA's
PCB
rules
and
RCRA's
used
oils,
respectively,
to
used
oil.
This
clarification
should
become
effective
on
July
6,
1998
as
contemplated
by
EPA
in
the
accompanying
direct
final
rule
(
63
Fed.
Reg.
24963)
because
it
simply
reaffirms
the
intent
and
scope
of
pre­
existing
regulations.

Response
The
Agency
acknowledges
the
Utility
Solid
Waste
Activities
Group's
support
of
the
proposed
amendment.

Comment
A­
3
Illinois
Environmental
Protection
Agency
(
Docket
#:
CUOP­
00006)

The
Illinois
Environmental
Protection
Agency
has
reviewed
the
above­
referenced
document
regarding
"
Recycled
Used
Oil
Management
Standards"
and
wishes
to
offer
the
following
comments
on
the
proposed
changes:

Please
refer
to
FR
vol.
63,
No.
87,
pages
25006­
25010
and
pages
24963­
24969
regarding
the
"
Applicability
of
the
Used
Oil
Management
Standards
to
PCB
Contaminated
Used
Oil".
The
discussion
or
regulations
are
unclear
regarding
the
relationship
between
TSCA
and
RCRA.
As
a
result,
we
have
the
following
comments
regarding
these
regulations:

a.
A
facility
manages
on­
spec
used
oil,
but
the
facility
or
generator
does
not
conduct
a
PCB
analysis
to
determine
the
levels
of
PCB
contained
within
the
used
oil.
It
is
not
clear
if
the
used
oil
is
presumed
to
contain
quantifiable
levels
of
PCB's
(
in
the
range
of
2
ppm
to
49
ppm,
see
40
CFR
761.20(
e)(
2)),
thereby
requiring
the
marketer
to
comply
with
40
CFR
761.20(
e)(
1).

b.
It
is
not
clear
if
the
marketer
must
test
the
blended
fuel
or
the
shipments
of
used
oil
from
each
generator
which
were
used
to
make
the
blended
fuel
to
comply
with
the
TSCA
regulations
and
to
determine
the
levels
of
quantifiable
PCB.

c.
If
a
facility
manages
on­
spec
used
oil
and
does
not
conduct
a
PCB
analysis
prior
to
fuel
blending,
it
is
not
clear
if
the
used
oil
prior
to
blending
is
presumed
to
contain
quantifiable
levels
of
PCB's
the
range
of
2
ppm
to
49
ppm
thus
requiring
the
blended
fuel
to
be
managed
in
accordance
with
40
CFR
761.20(
e)(
1).

d.
We
do
not
believe
a
facility
that
manages
on­
spec
used
oil
and
has
knowledge
beforehand
that
the
oil
contains
quantifiable
levels
of
PCB's
should
be
allowed
to
blend
that
used
oil
with
other
on­
spec
used
oil
not
containing
quantifiable
levels
of
PCB's
to
a
level
below
quantifiable
and
thus
be
allowed
to
manage
it
as
used
oil
containing
non­
quantifiable
levels
of
PCB's.
7
e.
A
marketer
discovers
after
blending
that
some
of
the
used
oil
included
in
the
fuel
contains
quantifiable
levels
of
PCB's,
it
is
not
clear
how
the
resulting
blended
fuel
must
be
handled
if
the
analysis
of
the
blended
fuel
for
PCB's
is
below
quantifiable
levels.

From
our
discussions
with
the
regional
headquarters
and
the
RCRA
and
TSCA
Hotlines,
it
is
apparent
that
the
question
"
How
to
manage
used
oil
containing
quantifiable
levels
or
presumed
to
contain
quantifiable
levels
of
PCB's?"
has
not
been
fully
thought
out.
From
40
CFR
761.1
applicability
Section
b,
the
regulations
state
that
you
cannot
dilute
to
exempt
the
waste
from
regulation.
Ultimately,
the
questions,
"
When
has
dilution
occurred,
at
the
generating
site,
at
the
transporter's
facility
when
a
transporter
bulks
his
load
or
when
the
marketer
blends
the
used
oil
into
a
fuel?"
and
"
How
does
one
determine
that
dilution
has
occurred?"
must
be
answered.

Response
These
questions
and
comments
from
the
Illinois
Environmental
Protection
Agency
are
directed
to
the
TSCA
program's
implementation
of
40
CFR
Part
761.
They
do
not
specifically
address
the
proposed
amendment
to
the
RCRA
Used
Oil
Management
Standards.
However,
to
clarify
these
regulations
for
Illinois
Environmental
Protection
Agency
and
other
readers,
EPA
is
providing
the
following
responses
to
the
corresponding
lettered
questions
in
the
comment:

a.
In
this
scenario,
the
facility
must
presume
the
used
oil
contains
quantifiable
levels
of
PCBs.
See
§
761.20(
e)(
2),
which
states:
"
Used
oil
to
be
burned
for
energy
recovery
is
presumed
to
contain
quantifiable
levels
(
2
ppm)
of
PCB
unless
the
marketer
obtains
analyses
(
testing)
or
other
information
that
the
used
oil
fuel
does
not
contain
quantifiable
levels
of
PCBs."
Under
the
TSCA
PCB
regulatory
program,
used
oil
containing
PCBs
at
a
concentration
of
50
ppm
or
greater
cannot
be
burned
or
diluted
for
energy
recovery
purposes.
Therefore,
marketers
must
also
take
appropriate
measures
to
ensure
that
the
used
oil
contains
PCBs
at
<
50
ppm
before
distributing
the
used
oil
in
commerce.

b.
Either
method
may
be
acceptable
in
appropriate
circumstances.
According
to
§
761.20(
e)(
2)(
ii),
"
testing
to
determine
the
PCB
concentration
in
used
oil
may
be
conducted
on
individual
samples,
or
in
accordance
with
the
testing
procedures
described
in
§
761.60(
g)(
2).
However,
for
purposes
of
this
part,
if
any
PCBs
at
a
concentration
of
50
ppm
or
greater
have
been
added
to
the
container
or
equipment,
then
the
total
container
contents
must
be
considered
as
having
a
PCB
concentration
of
50
ppm
or
greater
for
purposes
of
complying
with
the
disposal
requirements
of
this
part."
The
procedures
in
§
761.60(
g)(
2)
state
that
waste
oil
from
more
than
one
source
may
be
collected
in
a
common
container,
provided
that
no
other
chemical
substances
or
mixtures,
such
as
nonwaste
oils,
or
PCB­
containing
used
oils
known
to
have
a
PCB
concentration
of
50
ppm
or
greater
are
added
to
the
container.
Representative
samples
may
then
be
drawn
from
the
common
container
to
determine
the
PCB
concentration
for
purposes
of
compliance
with
the
regulations.

c.
As
discussed
above
in
answer
to
comment
"
a.",
used
oil
of
unknown
PCB
concentration
must
be
presumed
to
contain
>
2
ppm,
until
the
marketer
determines
the
actual
concentration.
Assuming
only
used
oils
presumed
to
contain
quantifiable
levels
are
8
batched
in
a
common
container,
the
batched
used
oil
in
the
common
container
is
also
presumed
to
contain
quantifiable
levels,
unless
and
until
analyzed
to
determine
its
actual
PCB
concentration.

d.
EPA
agrees.
If
the
PCB
concentration
of
used
oil
is
known,
then
the
used
oil
must
be
handled
in
accordance
with
its
concentration.
No
person
may
avoid
a
regulatory
provision
specifying
a
PCB
concentration
by
diluting
the
PCBs,
unless
otherwise
specifically
provided
[
§
761.1(
b)(
5)].
As
no
specific
provision
in
the
regulation
is
made
for
this
dilution
scenario,
once
a
used
oil
has
been
determined
by
testing
or
beforehand
knowledge,
it
must
be
handled
in
accordance
with
that
concentration.
If
used
oil
known
to
contain
quantifiable
levels
is
blended
with
used
oil
containing
<
2
ppm
PCBs,
then
the
whole
blended
batch
must
be
treated
as
if
it
contains
quantifiable
levels,
even
if
the
blended
batch
is
subsequently
tested
and
found
to
contain
<
2
ppm
PCBs.
Note
that
the
batch
testing
provision
of
§
761.20(
e)(
2)(
ii)
and
§
761.60(
g)(
2)
apply
only
to
used
oil
of
unknown
PCB
concentration
that
is
presumed
to
contain
quantifiable
levels
of
PCBs
(
i.
e.,
2
ppm
or
greater)
until
tested.

e.
For
purposes
of
the
regulations,
this
is
the
same
situation
as
in
comment
"
d.".
If
the
marketer
knows
that
used
oil
added
to
the
batch
contained
quantifiable
levels
of
PCBs
(
i.
e.,
2
ppm
or
greater),
then
the
whole
batch
is
regulated
as
if
it
contains
quantifiable
levels,
regardless
of
the
actual
diluted
PCB
concentration
in
that
batch.
If
the
marketer
learns
that
some
of
the
batched
used
oil
contained
concentrations
of
50
ppm
or
greater
PCBs,
then
the
whole
batch
must
be
handled
as
containing
50
ppm
or
greater
PCBs
and
cannot
be
burned
for
energy
recovery.

Comment
A­
4
Valvoline
(
Docket
#:
CUOP­
00007)

Although
Valvoline
fully
supports
the
adoption
of
each
of
the
four
separate
clarifications
and
corrections,
our
comments
relate
primarily
to
the
issue
of
the
applicability
of
the
used
oil
management
standards
to
PCB
contaminated
used
oil.

As
noted
in
the
preamble,
there
has
been
considerable
confusion
within
the
industry
regarding
which
management
standards
applied
to
used
oil
containing
detectable
levels
of
PCBs,
particularly
material
containing
greater
than
2
ppm
but
less
than
50
ppm
PCBs.
We
applaud
the
Agency's
unambiguous
statement
that
used
oil
containing
PCBs
is
effectively
regulated
under
a
three
tiered
scheme:

1.
Used
oil
fuel
containing
less
than
2
ppm
PCBs
and
otherwise
meeting
the
requirements
of
Part
279.11
is
"
specification"
used
oil
fuel
and
no
longer
subject
to
regulation.

2.
Used
oil
fuel
containing
greater
than
2
ppm
but
less
than
50
ppm
PCBs
is
regulated,
subject
to
the
specific
limitations
of
Part
761.20(
e),
as
"
off­
specification"
used
oil
fuel
under
Part
279.

3.
Used
oil
fuel
containing
50
ppm
or
greater
is
regulated
under
Part
761.
9
The
elimination
of
this
confusion
will
further
encourage
the
responsible,
cost
effective
recycling
of
used
oil.

Response
The
Agency
acknowledges
Valvoline's
support
of
the
proposed
amendment,
however
the
Agency
disagrees
with
Valvoline's
interpretation
of
the
rules
governing
the
management
of
PCBcontaminated
used
oil.
Specifically,
Valvoline's
comment
suggests
that
the
presence
of
polychlorinated
biphenyls
(
PCBs)
in
used
oil
is
one
of
the
criteria
for
determining
whether
a
used
oil
fuel
meets
the
fuel
specification
standard
such
that
it
may
be
burned
for
energy
recovery
without
further
regulation
under
the
Resource
Conservation
and
Recovery
Act
(
RCRA).
The
presence
of
PCBs
in
used
oil
is
not
one
of
the
criteria
under
the
RCRA
used
oil
specification
standard.
However,
used
oil
that
contains
PCBs
is
subject
to
requirements
under
the
Toxic
Substances
Control
Act
(
TSCA).
In
that
respect,
TSCA
requirements
for
the
marketing
and
burning
for
energy
recovery
of
used
oil
that
contains
quantifiable
(
2
ppm)
quantities
of
PCBs
less
than
50
parts
per
million
(
ppm)
incorporate
certain
RCRA
Part
279
"
off­
specification"
used
oil
requirements
by
reference.

RCRA
Requirements
The
RCRA
used
oil
specification
criteria
are
set
forth
at
40
CFR
279.11.
The
specification
criteria
establish
which
used
oil
fuels
may
be
burned
in
nonindustrial
burners
without
regulation
under
RCRA.
The
used
oil
fuel
specification
sets
maximum
allowable
limits
for
arsenic,
cadmium,
chromium,
lead,
and
total
halogens,
as
well
as
a
minimum
flash
point.
Although
the
PCB
regulations
promulgated
pursuant
to
TSCA
are
referenced
in
a
note
to
Table
1
in
§
279.11,
the
presence
of
PCBs
in
used
oil
is
not
one
of
the
criteria
for
determining
whether
used
oil
that
is
to
be
burned
for
energy
recovery
meets
the
fuel
specification
for
purposes
of
RCRA
regulation.

Used
oil
that
is
to
be
burned
for
energy
recovery
and
that
meets
the
RCRA
used
oil
fuel
specifications
of
§
279.11
("
on­
specification"
used
oil)
is
not
regulated
under
the
authority
of
Part
279
provided
that:
(
1)
certain
conditions
for
used
oil
fuel
marketers
are
met,
and
(
2)
so
long
as
the
used
oil
is
not
mixed
or
contaminated
with
hazardous
waste.
(
Applicable
on­
specification
used
oil
fuel
marketer
requirements
can
be
found
at
§
§
279.72,
279.73,
and
279.74(
b).)
This
is
the
case,
notwithstanding
that
a
used
oil
fuel
may
contain
PCBs.
Although
the
RCRA
regulations
do
not
identify
the
presence
of
PCBs
in
used
oil
as
relevant
to
the
determination
of
whether
the
used
oil
is
on­
or
off­
specification,
the
presence
of
PCBs
in
used
oil
is
relevant
for
determining
the
applicability
of
the
TSCA
regulations
for
the
burning
of
used
oil.

TSCA
Requirements
The
TSCA
rules
(
specifically,
40
CFR
§
761.20(
e)(
2))
establish
a
presumption
that
quantifiable
(
2
ppm)
quantities
of
PCBs
are
present
in
used
oils
to
be
burned
for
energy
recovery.
The
presumption
can
be
overcome
if
a
marketer
determines
through
testing
or
other
specified
procedures
that
the
used
oil
fuel
does
not
contain
quantifiable
levels
(
2
ppm)
of
PCBs.
TSCA
rules
found
at
40
CFR
§
761.20(
a),
also
prohibit
burning
for
energy
recovery
of
PCB­
containing
10
used
oils
at
concentrations
of
50
ppm
and
greater.
In
addition,
§
761.1(
b)(
5)
prohibits
dilution
to
attain
PCB
concentrations
either
below
50
ppm
or
below
2
ppm.

TSCA
regulations
establish
requirements
for
the
marketing
and
burning
for
energy
recovery
of
used
oils
containing
quantifiable
(
2
ppm)
quantities
of
PCBs
at
concentrations
less
than
50
ppm
(
40
CFR
§
761.20(
e)).
Some
of
these
requirements
are
incorporations
by
reference
of
Part
279
requirements
for
the
marketing
and
burning
for
energy
recovery
of
off­
specification
used
oil.
Therefore,
by
operation
of
the
TSCA
rules,
used
oil
that
is
on­
specification
under
the
RCRA
rules
may
nevertheless
be
subject
to
certain
requirements
specified
in
the
RCRA
rules
for
off­
specification
used
oil.

Specifically
with
respect
to
used
oil
burners
that
burn
used
oil
that
contains
PCB
concentrations
less
than
50
ppm,
the
TSCA
rules
reference
the
RCRA
regulatory
provisions
of
Part
279
Subpart
G,
including
restrictions
on
burning,
notification
requirements,
tracking
requirements,
and
certification
requirements.
For
used
oil
marketers
that
market
used
oil
that
contains
PCB
concentrations
less
than
50
ppm,
the
TSCA
rules,
with
limited
exceptions,
restrict
marketing
to
qualified
incinerators,
to
marketers
who
market
off­
specification
used
oils,
and
to
off­
specification
burners
as
defined
in
the
RCRA
Part
279
regulations.
The
TSCA
rules
also
reference
the
RCRA
regulatory
provisions
for
marketers
in
Part
279
Subpart
H,
including
record
retention,
notification,
tracking,
and
certification.
The
fact
that
the
TSCA
rules
incorporate
by
reference
these
RCRA
standards
does
not
change
the
regulatory
status
of
that
used
oil
under
RCRA;
i.
e.,
that
on­
specification,
PCB­
containing
used
oil
is
regulated
under
RCRA
authority
or
that
such
used
oil
is
off­
specification
pursuant
to
Part
279.

Comments
to
the
Amendment
Related
to
Mixtures
of
CESQG
Wastes
and
Used
Oil
Comment
B­
1
Utility
Solid
Waste
Activities
Group,
et
al
(
Docket
#:
CUOP­
00003)

USWAG
supports
the
proposed
correction
(
and
accompanying
correction
in
the
direct
final
rule)
that
mixtures
of
conditionally
exempt
small
quantity
generator
("
CESQG")
wastes
and
used
oil
are
regulated
as
used
oil
under
RCRA's
used
oil
management
standards.
63
Fed.
Reg.
at
25008.
While
the
used
oil
regulations
already
set
forth
this
principle
at
40
C.
F.
R.
§
279.10(
b)(
3),
there
exists
some
potentially
contradictory
language
within
the
CESQG
rule
under
40
C.
F.
R.
§
261.5.
See
63
Fed.
Reg.
at
24967.
Therefore,
EPA
has
appropriately
proposed
to
amend
the
CESQG
rule
to
conform
to
the
CESQG/
used
oil
rule
set
forth
in
the
used
oil
management
standards
(
i.
e.,
that
mixtures
of
CESQG
hazardous
waste
and
used
oil
are
regulated
as
used
oil
under
RCRA's
used
oil
management
standards).
Like
the
corrections
discussed
above,
this
correction
simply
reaffirms
EPA's
intent
with
regard
to
how
the
used
oil
rules
should
be
implemented
and
thus
should
become
effective
on
July
6,1998
as
contemplated
in
the
direct
final
rule.

Response
The
Agency
acknowledges
the
Utility
Solid
Waste
Activities
Group's
support
of
the
proposed
amendment.
11
Comment
B­
2
National
Automobile
Dealers
Association
(
NADA)
(
Docket
#:
CUOP­
00005)

...
non­
withstanding
the
fact
that
NADA
advises
its
members
(
approximately
half
of
whom
are
estimated
to
be
conditionally
exempt
small
quantity
generators
(
CESQG's))
not
to
intentionally
mix
hazardous
wastes
into
their
used
oil,
NADA
fully
supports
and
agrees
with
EPA's
clarification
that
mixtures
of
CESQG
wastes
and
used
oil
should
be
subject
to
the
used
oil
management
standards,
irrespective
of
how
the
mixture
is
to
be
recycled.

Response
The
Agency
acknowledges
the
National
Automobile
Dealers
Association's
(
NADA)
support
of
the
proposed
amendment.
The
Agency
agrees
with
the
NADA
that
mixtures
of
conditionally
exempt
small
quantity
generator
wastes
and
used
oil
should
be
subject
to
the
used
oil
management
standards,
irrespective
of
how
the
mixture
is
to
be
recycled.

Comment
B­
3
National
Oil
Recyclers
Association
(
Docket
#:
CUOP­
00008)

NORA
agrees
with
the
common
sense
approach
that
EPA
has
taken
in
harmonizing
the
conditionally
exempt
small
quantity
generator
provision,
40
CFR
§
261.5(
j),
with
the
Part
279
used
oil
management
standards.
While
this
revision
is
needed
and
should
be
adopted,
NORA
also
urges
EPA
to
consider
using
the
final
rule
to
provide
a
clarification
of
the
regulatory
status
of
mixtures
of
CESQG
wastes
and
used
oil.
This
would
be
particularly
useful
in
the
context
of
the
rebuttable
presumption.
As
the
Agency
is
aware,
there
is
no
chemical
or
physical
difference
between
a
molecule
of
a
chlorinated
solvent
waste
generated
by
a
large
quantity
generator
and
a
molecule
of
the
same
type
of
waste
solvent
generated
by
a
CESQG.
Nonetheless,
the
large
quantity
generator
waste
is
regulated
as
hazardous
while
the
CESQG
waste
is
not.

In
a
typical
scenario,
a
used
oil
transporter
collects
used
oil
mixed
with
hazardous
wastes
from
different
types
of
generators,
including
CESQGs,
all
of
which
are
mixed
together
in
his
tank
truck
during
the
day's
collection
activities.
(
It
is
simply
not
practical
for
a
transporter
on
a
used
oil
"
milk
run"
to
segregate
different
categories
of
used
oil
generators.)
The
used
oil
in
the
tank
truck
is
tested
and
shows
1005
parts
per
million.
Can
the
presumption
of
hazardousness
be
rebutted
by
demonstrating
that
the
CESQG
wastes,
if
subtracted
from
the
mixture,
would
bring
the
total
halogen
level
below
1000
ppm?
This
scenario
is
at
the
heart
of
the
regulatory
compliance
dilemma
that
confronts
most
used
oil
transporters
and
processors
and
it
should
be
squarely
addressed
by
EPA.

NORA
is
not
aware
of
any
interpretive
letter
or
guidance
document
which
sheds
any
light
on
this
particular
issue.
Because
it
is
a
recurring
question
that
arises
in
every
part
of
the
country,
NORA
suggests
that
EPA
take
advantage
of
the
opportunity
provided
by
this
rulemaking
to
clarify
the
12
Agency's
policy.
For
the
record,
NORA
believes
that
the
"
subtraction"
approach
is
entirely
consistent
with
the
purpose
of
the
rebuttable
presumption
as
well
as
the
CESQG
provisions.
Obviously,
the
burden
of
proof
remains
with
the
entity
attempting
to
rebut
the
presumption.
However,
there
is
no
reason
why
a
"
mathematical
proof"
should
be
automatically
rejected.
We
urge
the
Agency
to
address
this
issue
in
the
preamble
to
the
final
rule.

Response
The
Agency
acknowledges
the
National
Oil
Recyclers
Association's
(
NORA)
support
of
the
proposed
amendment.
The
Agency
disagrees
with
NORA's
proposal
that
a
"
mathematical
proof"
can
be
developed
to
determine
the
regulatory
status
of
used
oil
mixed
with
hazardous
wastes
from
different
types
of
generators,
including
CESQGs.
Once
used
oil
from
different
sources
is
mixed,
it
is
very
difficult
to
determine
the
initial
source
and
quantity
of
hazardous
waste.

Comment
B­
4
Pennsylvania
Department
of
Environmental
Protection
(
Docket
#:
CUOP­
00010)

The
Pennsylvania
Department
of
Environmental
Protection
objects
to
the
May
6,
1998,
Direct
Final
Rule's
amendment
of
40
CFR
261.5(
j).
This
amendment
expands
261.5(
j)
to
allow
a
conditionally
exempt
small
quantity
generator
(
CESQG)
generated
mixtures
of
used
oil
and
hazardous
waste
to
be
recycled
by
any
means,
not
just
burning
for
energy
recovery,
under
the
used
oil
regulations.
For
the
reasons
stated
below,
the
Department
believes
that
allowing
CESQG
generated
mixtures
of
used
oil
and
any
type
of
hazardous
waste
to
be
recycled
by
means
other
than
burning
is
not
protective
of
the
public's
health,
safety
or
welfare.

1.
Allowing
mixtures
of
waste
oil
and
hazardous
waste
to
be
managed
as
used
oil
runs
counter
to
the
prevention
efforts
being
under
taken
by
EPA,
as
well
as
this
Department.
This
amendment
261.5(
j)
allows
CESQGs
to
get
rid
of
their
hazardous
waste
by
mixing
it
with
used
oil
which
significantly
reduces
their
cost
of
disposing
of
the
hazardous
waste
and
their
incentive
to
minimize
the
amount
of
hazardous
waste
being
generated.

2.
Allowing
indiscriminate
mixing
of
hazardous
waste
from
CESQGs
with
used
oil
poses
a
threat
to
the
health
and
safety
of
workers
who
handle
used
oil.
This
is
because
there
is
nothing
to
identify
the
hazardous
constituents
that
have
been
added
to
the
used
oil.
As
a
result,
the
workers
managing
these
mixtures
will
not
know
the
dangers
due
to
the
additional
hazardous
constituents
in
the
used
oil.

3.
Allowing
CESQG
generated
mixtures
of
any
type
hazardous
waste
and
used
oil
to
be
recycled
as
used
oil
does
not
ensure
that
the
hazardous
constituents
will
be
neutralized.
Most,
if
not
all,
of
the
used
oil
reprocessing
or
re­
refining
processes
do
not
neutralize
hazardous
constituents.

1.
Allowing
CESQG
generated
mixtures
of
used
oil
and
any
type
of
hazardous
waste
13
to
be
managed
as
used
oil
makes
compliance
assurance
difficult.
In
the
Department's
experience,
used
oil
transporters
and
processors/
re­
refiners
accept
used
oil
CESQGs
along
with
used
oil
from
all
other
generators.
As
a
result,
when
the
used
oil
is
mixed
with
a
hazardous
waste,
it
is
very
difficult
to
determine
whether
the
mixing
was
improper
or
due
to
a
CESQG
mixing
hazardous
waste
with
its
used
oil.

Response
The
Agency
disagrees
with
Pennsylvania
Department
of
Environmental
Protection's
(
PA
DEP's)
comment
that
mixtures
of
conditionally
exempt
small
quantity
generator
(
CESQG)
waste
and
used
oil
should
only
be
regulated
as
used
oil
if
it
is
to
be
recycled
by
burning
for
energy
recovery.
This
comment
opens
up
the
merits
of
the
original
rule
(
§
270.10(
b)(
3)
and
that
is
not
the
intent
of
this
amendment.
As
described
in
the
preamble
to
the
May
6,
1998
direct
final
rule
and
proposal,
the
purpose
of
this
amendment
is
to
harmonize
the
applicability
of
40
CFR
Part
261
and
Part
279
to
mixtures
of
CESQG
wastes
and
used
oil
that
are
to
be
recycled.
Although
CESQG
wastes
are
not
regulated
as
hazardous
wastes,
mixtures
of
CESQG
wastes
and
used
oil
that
are
to
be
recycled
are
regulated
as
used
oil
under
the
used
oil
management
standards.
The
CESQG
provision,
40
CFR
261.5(
j),
that
references
the
applicability
of
the
used
oil
management
standards
to
mixtures
of
CESQG
wastes
and
used
oil
that
are
to
be
recycled,
appears
to
limit
the
applicability
of
the
used
oil
management
standards
to
mixtures
that
are
to
be
recycled
by
burning
for
energy
recovery.
Section
261.5(
j),
therefore,
incorrectly
suggests
that
mixtures
of
CESQG
wastes
and
used
oil
that
are
to
be
recycled
in
a
manner
other
than
by
burning
for
energy
recovery,
such
as
by
re­
refining,
would
not
be
subject
to
the
used
oil
management
standards.
Indeed,
because
CESQG
wastes
are
not
regulated
as
hazardous
wastes,
§
261.5(
j)
would
suggest
that
such
mixtures
that
are
re­
refined
would
not
be
subject
to
regulation
under
RCRA
Subtitle
C
or
the
used
oil
management
standards.
Even
if
EPA
were
to
reopen
this
issue
in
this
rulemaking
and
to
address
the
merits
of
this
issue,
EPA
would
come
to
the
same
conclusion
as
it
did
in
the
previous
rulemakings.
EPA
is
not
aware
of
any
reason
for
distinguishing
used
oil
being
burned
for
energy
recovery
from
used
oil
being
recycled
in
other
ways,
and
PA
DEP
did
not
provide
any.
Based
on
its
comments,
PA
DEP
seems
to
imply
that
CESQG
waste
is
regulated
as
hazardous
waste,
when
in
fact
it
is
NOT
generally
regulated
as
hazardous
waste.
Thus,
PA
DEP's
comment,
for
example,
that
this
amendment
would
allow
CESQGs
to
"
get
rid
of
their
hazardous
waste
by
mixing
with
used
oil"
is
not
correct
because
CESQG
wastes
are
already
not
regulated
as
hazardous
waste,
and
therefore
subsequent
mixing
with
used
oil
would
not
provide
any
additional
regulatory
relief
for
CESQG
wastes.
Furthermore,
the
concerns
that
PA
DEP
enumerate,
to
the
extent
that
they
are
concerns
at
all,
would
appear
to
apply
to
mixtures
of
CESQG
wastes
and
used
oil
to
be
recycled
by
any
means,
and
would
not
appear
to
apply
uniquely
to
used
oil
to
be
recycled
by
burning
for
energy
recovery.
Again,
PA
DEP
did
not
provide
any
reason
for
distinguishing
used
oil
being
burned
for
energy
recovery
from
used
oil
being
recycled
in
other
ways.
Notwithstanding
clarification
of
the
federal
regulations,
a
state
may
regulate
mixtures
of
CESQG
waste
and
used
oil
more
stringently
than
the
federal
used
oil
management
program.

Comments
to
the
Amendment
Related
to
Recordkeeping
Requirements
for
Marketers
of
14
On­
Specification
Used
Oil
Fuel
Comment
C­
1
Williston
Basin
Interstate
Pipeline
Company
(
Docket
#:
CUOP­
00001)

Williston
Basin
is
a
natural
gas
transportation
and
storage
company
operating
approximately
3,000
miles
of
underground
natural
gas
transmission
pipeline
in
Montana,
North
Dakota,
South
Dakota,
and
Wyoming.
Williston
Basin
operates
pipeline
booster
stations
in
which
engines
driving
compressors,
compress
the
natural
gas
and
discharges
it
at
higher
pressures
down
the
pipeline.
Williston
Basin
generates
used
oil
from
its
compressor
engines
during
periodic
oil
changes.
This
used
oil
is
"
on­
spec"
and
always
has
been
on­
spec
­
very
low
in
contaminants.
Williston
Basin
is
pleased
to
provide
the
following
comment/
clarification.

Currently,
EPA
is
making
the
following
clarification:

"...
the
initial
marketer
of
used
oil
that
meets
the
used
oil
fuel
specification
need
only
keep
a
record
of
a
shipment
of
used
oil
to
the
facility
to
which
the
initial
marketer
delivers
the
used
oil."

Would
you
please
clarify
if
Subpart
H­"
Standards
for
Used
Oil
Transporters
and
Transfer
Facilities"
is
applicable
to
those
processor
and
re­
refiners
who
transport
their
on­
spec
oil
or
fuel
product.
(
We
do
not
process/
re­
refine!)

We
all
know
that
used
oil
that
is
to
be
burned
for
energy
recovery
and
that
meets
the
specification
provided
under
40CFR279.11
is
essentially
exempt
from
the
regulations.
So
how
about
those
entities
that
manage
the
on­
spec
used
oil.
Are
we,
as
a
generator
consolidating
on­
spec
used
oil
from
satellite
locations
to
a
central
location
regulated
as
a
transporter
and
subject
to
the
Standards
for
Used
Oil
Transporter
and
Transfer
Facilities?

Their
remains
ambiguity
in
the
regulations.
You
can
see
this
ambiguity
if
you
review
the
"
Notification
of
Regulated
Waste
Activity"
booklets
published
by
the
U.
S.
EPA,
dated
30NOV93.

"
Persons
who
transport,
process,
re­
refine,
market
or
burn
off­
spec
used
oil
for
energy
recovery
are
required
to
notify..."
(
emphasis
added)

Response
The
Williston
Basin
Interstate
Pipeline
Company
does
not
specifically
comment
on
the
proposed
amendment
regarding
recordkeeping
requirements
for
marketers
of
on­
specification
used
oil.
For
clarity
however,
the
following
discussion
addresses
the
Williston
Basin
Interstate
Pipeline
Company's
comment.

The
person
who
first
claims
that
their
used
oil
meets
the
used
oil
fuel
specification
is
considered
a
marketer
subject
to
Subpart
H
(
see
40
CFR
279.70(
a)(
2)).
Section
279.70(
b)(
1)
(
the
description
of
who
is
not
a
marketer)
does
not
apply
to
generators
who
first
claim
that
used
15
oil
that
is
to
be
burned
for
energy
recovery
meets
the
used
oil
fuel
specification,
since
they
are
actually
making
the
specification
determination.
The
Williston
Basin
Interstate
Pipeline
Company
asked:
"
Are
we,
as
a
generator
consolidating
on­
spec
used
oil
from
satellite
locations
to
a
central
location
regulated
as
a
transporter
and
subject
to
the
Standards
for
Used
Oil
Transporter
and
Transfer
facilities?"
The
answer
to
this
question
is
dependent
on
where
the
used
oil
is
determined
to
meet
the
fuel
specification.
If
each
shipment
of
used
oil
is
determined
to
meet
the
used
oil
fuel
specification
through
testing
or
knowledge
before
being
transported
from
the
"
satellite
locations",
then
the
shipment
of
used
oil
does
not
need
to
be
transported
by
a
used
oil
transporter.
Each
"
satellite
location"
would
be
considered
to
be
a
used
oil
marketer
subject
to
the
used
oil
marketer
requirements
of
40
CFR
279
Subpart
H
(
including
notification
and
recordkeeping).
If
the
used
oil
generated
at
the
"
satellite
locations"
is
shipped
to
a
"
central
location"
where
it
is
determined
to
meet
the
used
oil
fuel
specification,
then
the
used
oil
must
be
transported
by
a
used
oil
transporter,
the
"
central
location"
may
be
subject
to
the
transfer
facility
or
processor
and
rerefiner
requirements
(
depending
on
the
storage
time
prior
to
making
a
used
oil
fuel
specification
determination),
and
the
"
central
location"
would
be
subject
to
the
marketer
requirements.

Comment
C­
2
Utility
Solid
Waste
Activities
Group,
et
al
(
Docket
#:
CUOP­
00003)

USWAG
also
strongly
supports
the
proposed
clarification
(
and
accompanying
clarification
in
the
direct
final
rule)
that
persons
who
first
claim
that
used
oil
fuel
meets
the
used
oil
fuel
specification
limits
at
40
C.
F.
R.
§
279.11
(
such
persons
are
defined
as
"
marketers"
of
used
oil
fuel)
must
only
keep
a
record
of
the
shipment
of
used
oil
to
the
first
facility
to
which
the
marketer
delivers
the
used
oil.
63
Fed.
Reg.
at
24967.
We
understand
that
EPA
issued
this
clarification
because
a
certain
State(
s)
had
erroneously
taken
the
position
that
such
marketers
must
keep
records
of
the
facility
that
ultimately
burns
the
used
oil
for
energy
recovery.
Such
an
interpretation
would
create
significant
compliance
problems
because
in
many
cases
marketers
send
on­
specification
used
oil
to
a
fuel
oil
distributor
for
subsequent
distribution
to
downstream
burners.
In
these
circumstances,
it
would
be
virtually
impossible
for
the
initial
marketer
of
the
on­
specification
used
oil
to
maintain
records
of
the
facility
that
ultimately
burns
the
oil.

In
proposing
the
above
clarification,
the
Agency
correctly
acknowledged
that
"[
t]
he
preamble
to
the
November
29,
1985
[
used
oil]
rule
.
.
.
clearly
describes
the
agency's
intent
to
only
track
on­
specification
used
oil
that
is
to
be
burned
for
energy
recovery
one
step
beyond
the
initial
marketer."
63
Fed.
Reg.
at
24967,
citing
50
Fed.
Reg.
49164,
49189.
Thus,
here
too,
EPA's
May
6,1998
proposed
clarification
is
designed
simply
to
clarify
the
Agency's
pre­
existing
intent
that
the
person
who
first
claims
that
used
oil
meets
the
specification
limits
must
keep
a
record
of
"
each
shipment
of
used
oil
to
the
facility
to
which
it
delivers
the
used
oil."
63
Fed.
Reg.
at
24969
(
emphasis
added).
Because
this
clarification
reaffirms
the
Agency's
pre­
existing
intent,
USWAG
believes
that
this
clarification
also
should
become
effective
on
July
6,1998
as
contemplated
in
the
accompanying
direct
final
rule.

Response
The
Agency
acknowledges
the
Utility
Solid
Waste
Activities
Group's
support
of
the
16
proposed
amendment.

Comment
C­
3
State
of
New
Hampshire
Department
of
Environmental
Services
(
Docket
#:
CUOP­
00004)

The
existing
regulations
require
the
first
person
who
claims
that
used
oil,
which
is
to
be
burned
for
energy
recovery,
meets
the
fuel
specifications
under
§
279.11
to
keep
a
record
of
each
shipment
of
used
oil
to
an
on­
specification
used
oil
burner.
The
proposed
change
requires
such
marketers
to
only
keep
a
record
of
each
shipment
of
used
oil
to
the
facility
to
which
it
delivers
the
used
oil,
which
may
or
may
not
be
the
end
user
(
i.
e.
used
oil
burner).
If
adopted,
this
amendment
will
not
only
impact
the
initial
used
oil
fuel
marketer,
but
will
have
ramifications
on
how
§
279.11
"
Used
oil
specifications"
is
interpreted.
Since
the
establishment
of
the
used
oil
management
standards
under
40
CFR
Part
279
on
September
10,
1992,
the
states,
EPA
Regions
and
EPA
Headquarters
have
debated
the
extent
to
which
specification
used
oil
is
regulated.
Section
279.11
reads
"
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
sections
279.72,
279.73
and
279.74(
b),
the
used
oil
is
no
longer
subject
to
this
part."
This
provision
makes
the
requirements
of
§
279.74(
b)
particularly
important
because
it
stipulates
how
far
specification
used
oil
fuel
is
to
be
tracked;
and,
in
effect,
"
regulated".
Section
279.74(
b)
has
been
interpreted,
by
some
regulators,
to
mean
that
specification
used
oil
fuel
is
regulated
under
Part
279
up
until
the
point
it
reaches
the
used
oil
burner
(
i.
e.
tracked
to
the
point
of
recycling).
The
5/
6/
98
proposed
amendment
implies
that
once
used
oil
which
is
intended
to
be
burned
for
energy
recovery
has
been
declared
to
meet
the
specifications,
then
it
is
no
longer
tracked
beyond
the
point
of
delivery
by
the
initial
used
oil
fuel
marketer
(
i.
e.
not
tracked
to
the
point
of
recycling),
and
thereby
not
further
subject
to
any
of
the
management
requirements
set
forth
in
Part
279.

If
this
is
EPA's
intent,
consider
the
effect
in
the
following
situations:

!
A
used
oil
transporter,
acting
as
an
initial
used
oil
fuel
marketer,
makes
a
claim
that
the
used
oil
which
is
collected
meets
the
fuel
specifications.
The
transporter
then
delivers
the
oil
to
a
used
oil
processor
for
further
filtering
and
blending
prior
to
being
sold
as
a
fuel
oil.
The
used
oil
processor
would
not
be
subject
to
any
of
the
Part
279
management
standards
for
processors
since
the
processor
is
dealing
with
specification
used
oil
fuel
only.

!
A
generator,
acting
as
an
initial
used
oil
fuel
marketer,
determines
that
his/
her
used
oil
meets
the
specifications.
This
oil
is
then
delivered
to
a
business
across
town
to
be
burned
in
a
used
oil
heater.
Arguably,
no
transporter
EPA
Identification
number
is
required,
nor
will
the
transporter
requirements
of
§
279.43
apply
since
the
used
oil
drops
out
of
regulation
under
§
279.11.

!
A
used
oil
fuel
marketer
makes
a
claim
that
a
batch
of
used
oil
meets
the
specifications.
After
delivering
this
oil
to
the
next
party
and
meeting
the
tracking
requirements
of
§
279.74,
the
used
oil
may
be
managed
as
a
product
with
no
further
regulatory
controls.
This
means
that
there
is
also
no
assurance
that
the
17
used
oil
ever
makes
it
to
a
burner
and
is
recycled
in
this
manner,
since
the
next
party
could
choose
to
manage
the
specification
use
oil
in
some
other
unauthorized
manner
(
i.
e.
road
oiling).
The
point
is,
not
tracking
used
oil
fuel
to
the
end
user,
opens
the
door
for
potential
mismanagement.

Another
result
of
allowing
specification
used
oil
fuel
to
drop
out
of
the
regulations
is
that
it
discourages
the
re­
refinement
of
used
oil
which
is
the
preferred
environmental
solution.
With
fewer
environmental
regulatory
controls
placed
on­
specification
used
oil
when
it
is
sent
for
burning,
it
will
cost
less
to
manage
used
oil
as
a
fuel
than
to
ship
it
to
a
re­
refiner
where
it
will
be
tracked
and
regulated
fully
until
it
has
been
re­
refined
into
a
usable
product.

EPA
explains
the
rationale
for
this
proposed
change
in
the
Final
Rule
Section
of
the
5/
6/
98
Federal
Register
notice.
The
Agency
explains
that
it
was
EPA's
intent
in
the
November,
1985
rules
to
only
track
on­
specification
used
oil
fuel
one
step
beyond
the
initial
marketer
and
implies
that
when
the
rules
were
recodified
in
September,
1992
it
was
an
error
that
required
the
marketer
to
keep
a
record
of
each
shipment
to
an
on­
specification
used
oil
burner.
The
NHDES
acknowledges
that
certain
portions
of
40
CFR
Part
266,
Subpart
E
"
Used
Oil
Burned
for
Energy
Recovery"
were
merely
recodified
in
Part
279;
however,
we
also
believe
that
due
to
the
significant
changes
adopted
in
Part
279,
one
cannot
always
make
a
direct
correlation
between
the
two
sets
of
rules.

In
1985,
40
CFR
Part
266,
Subpart
E
only
regulated
the
burning
of
used
oil
and,
other
than
record
keeping
and
analysis,
there
were
no
management
standards
in
place
for
generators,
collectors,
processors,
transporters
or
burners.
Section
266.40(
e)
stated
that
"
Used
oil
fuel
that
meets
the
specification
is
subject
only
to
the
analysis
and
record
keeping
requirements
under
266.43(
b)(
1)
and
(
6)."
This
rule
required
the
marketer
to
keep
a
log
on
each
shipment
with
the
name
and
address
of
the
receiving
facility,
quantity
of
used
oil
fuel
delivered,
date
of
shipment
or
delivery
and
a
cross
reference
to
the
documentation
supporting
the
specification
claim.
When
Part
279
was
adopted,
it
regulated
all
forms
of
used
oil
recycling
(
not
just
the
act
of
burning)
and
further
added
management
requirements
on
the
handling
of
used
oil.
Therefore,
the
Part
266
standards
can
not
be
interpreted
exactly
as
they
were
in
1985
since
Part
279
established
management
standards
for
all
stages
in
the
used
oil
recycling
process.

The
preamble
to
the
Federal
Register
for
the
9/
10/
92
rules
(
41577)
makes
it
clear
that
EPA's
intent
was
to
have
regulations
that
would
protect
the
public
against
the
potential
hazards
associated
with
the
mismanagement
of
used
oil.
"
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
....
Therefore,
it
is
important
that
used
oils
are
handled
in
a
safe
manner
from
the
point
of
generation
until
recycling,
reuse,
or
disposal."
And,
"
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."
Note
that
the
only
entity
not
listed
are
specification
used
oil
burners.
We
believe
the
hazards
associated
with
specification
used
oil
will
be
the
same
whether
or
not
the
used
oil
is
being
handled
for
burning
or
for
re­
refinement.
For
this
reason
it
does
not
seem
logical
to
drop
specification
used
oils
from
the
entire
Part
279
management
system
simply
because
there
is
a
claim
that
the
used
oil
is
to
be
18
burned
for
energy
recovery.

In
conclusion,
the
NHDES
does
not
object
in
concept
with
the
record
keeping
requirements
being
proposed
for
initial
used
oil
marketers,
but
has
concerns
that
this
change
will
further
support
a
claim
that
specification
used
oil
fuel
is
no
longer
subject
to
the
management
requirements
that
have
been
established
under
Part
279
to
protect
the
public
health
and
the
environment.
Therefore,
NHDES
is
objecting
to
the
proposed
changes
to
40
CFR
279.74(
b),
unless
these
changes
are
accompanied
by
additional
amendments
that
will
ensure
that
all
used
oils
destined
for
recycling
are
subject
to
basic
protective
management
standards.

Response
The
Agency
disagrees
with
the
State
of
New
Hampshire
Department
of
Environmental
Services
(
NH
DES).
NH
DES'
comment
opens
up
the
merits
of
the
original
November
29,
1985
rule
and
that
is
not
the
intent
of
this
amendment.
The
Agency
is
not
reopening
the
merits
of
this
issue,
because
the
Agency
addressed
the
merits
of
this
issue
back
in
the
preamble
to
the
1985
rule
(
50
FR
49164
at
49189).
The
amendment
in
question
does
not
represent
a
change
in
the
requirements,
but
only
clarifies
the
Agency's
intent
that
only
the
initial
marketer
of
onspecification
used
oil
must
keep
a
record
of
each
shipment
of
used
oil
to
the
facility
to
which
it
delivers
the
used
oil.
In
fact,
EPA
interprets
the
existing
regulation
this
way,
since
it
views
the
phrase
"
to
a
used
oil
burner"
as
describing
the
type
of
shipment,
not
as
delineating
the
scope
of
the
record­
keeping
requirement.
In
the
September
23,
1991
supplemental
notice
of
proposed
rulemaking
(
56
FR
48000),
EPA
did
not
propose
to
change
the
tracking
requirements
or
the
management
requirements
for
used
oil
that
meets
the
used
oil
fuel
specification
that
were
originally
promulgated
in
1985.
In
drafting
the
1992
rule,
EPA
only
intended
to
recodify
the
tracking
requirements
from
the
now
superseded
Part
266.
It
has
always
been
the
Agency's
position
that
used
oil
that
is
to
be
burned
for
energy
recovery
that
meets
the
used
oil
fuel
specification
is
a
commodity
that
will
be
properly
handled
like
any
other
fuel.
The
Agency
has
always
intended
that
used
oil
that
is
to
be
burned
for
energy
recovery
only
be
regulated
under
the
Used
Oil
Management
Standards
until
it
has
been
determined
to
meet
the
used
oil
fuel
specification.
Once
it
has
been
determined
to
meet
the
fuel
specification
and
the
marketer
complies
with
279.72,
279.73,
and
279.74(
b),
the
used
oil
is
no
longer
regulated
by
the
Used
Oil
Management
Standards.
If
the
used
oil
is
not
burned
for
energy
recovery
and
is
recycled
by
other
means
or
disposed,
it
is
fully
regulated
as
used
oil
under
the
Used
Oil
Management
Standards.
Even
if
the
Agency
were
to
address
the
merits
of
this
issue,
we
would
continue
to
take
the
position
as
we
are
taking
in
this
amendment,
because,
for
the
reasons
discussed
below,
the
Agency
believes
that
the
tracking
requirements
would
provide
adequate
protection.
Specifically,
NH
DES
expressed
its
concerns
over
certain
resulting
effects
of
the
amendment
since
it
would
not
require
tracking
and
would
therefore
not
impose
regulation
beyond
the
point
of
delivery
by
the
initial
used
oil
fuel
marketer
who
first
claims
that
used
oil
that
is
to
be
burned
for
energy
recovery
meets
the
fuel
specification.
As
stated
above,
the
Agency
believes
that
used
oil
that
is
to
be
burned
for
energy
recovery
that
meets
the
used
oil
fuel
specification
is
a
commodity
that
will
be
properly
handled
like
any
other
virgin
fuel
oil.
EPA
does
not
share
NH
DES'
concern,
because
once
the
used
oil
is
viewed
as
a
commodity,
EPA
believes
it
is
no
different
than
any
other
virgin
fuel
oil
that
also
is
not
regulated
under
Part
279.
EPA
articulated
this
view
in
the
preamble
to
the
November
29,
1985
rule.
EPA
explained
that
although
it
considered
applying
recordkeeping
19
requirements
to
all
subsequent
markets
(
e.
g.,
distributors)
until
the
used
oil
fuel
is
ultimately
burned,
it
decided
not
to
do
so.
EPA
explained
that
"
the
used
oil
fuel
poses
no
greater
risk
than
virgin
fuel
oil
and,
once
it
enters
the
commercial
fuel
oil
market,
should
not
be
regulated
differently
than
virgin
fuel
oil."
50
FR
49189
(
November
29,
1985).
NH
DES
provides
its
view
that
the
hazards
associated
with
specification
used
oil
would
be
the
same
whether
or
not
the
used
oil
were
being
handled
for
burning
or
for
re­
refinement,
for
example.
Thus,
NH
DES
feels
that
it
does
not
make
sense
for
EPA
to
impose
tracking
(
and
other
Part
279)
requirements
on
used
oil
destined
for
re­
refining
up
until
it
is
actually
re­
refined,
while
EPA
imposes
tracking
(
and
other
Part
279)
requirements
on
on­
specification
used
oil
destined
for
burning
only
to
the
point
of
delivery
by
the
initial
used
oil
fuel
marketer.
EPA
believes
that
it
is
reasonable
to
impose
different
tracking
(
and
Part
279)
requirements
for
the
two
different
situations
above,
because
EPA
distinguishes
on­
specification
used
oil
destined
for
burning
as
being
different
from
all
other
used
oils.
As
EPA
explained
above,
on­
specification
used
oil
destined
for
burning
is
a
commodity
and
should
be
viewed
no
differently
than
virgin
fuel
oil
at
the
point
of
delivery
by
the
initial
used
oil
fuel
marketer.
EPA
does
not
view
used
oil
destined
for
other
purposes
as
a
commodity,
analogous
to
virgin
fuel
oil,
because
such
used
oil
would
not
be
used
for
a
similar
purpose
and
in
a
similar
manner
as
one
would
use
virgin
fuel
oil.
The
commenter
has
provided
no
new
information
or
arguments
that
would
lead
us
to
change
this
long­
standing
position.
Notwithstanding
this
clarification
of
the
federal
regulations,
a
state
may
regulate
used
oil
more
stringently
than
the
federal
used
oil
management
program.

Comment
C­
4
National
Oil
Recyclers
Association
(
Docket
#:
CUOP­
00008)

NORA
fully
supports
the
proposed
amendment
to
40
CFR
§
279.74(
b)
which
would
clarify
that
the
marketer
who
first
claims
that
used
oil
constitutes
on­
specification
used
oil
fuel
need
only
retain
a
record
of
the
shipment
to
the
facility
receiving
the
used
oil
from
such
marketer.
Section
279.74(
b)
has
been
read
by
some
state
agencies
to
require
the
initial
marketer
to
track
all
shipments
including
the
final
shipment
to
the
burner.
As
EPA
has
recognized,
this
interpretation
conflicts
with
the
reality
of
used
oil
marketing
practices.
The
initial
marketer
often
sells
on­
spec
fuel
to
a
blender
who
further
processes
the
used
oil
and
sells
it
in
different
formulations
to
other
marketers
and
to
end­
users
(
burners).
The
blender
may
not
know
the
final
destination
of
the
fuel
and,
in
any
event,
will
certainly
not
provide
his
customer
lists
to
the
initial
marketer.
In
other
words,
the
interpretation
made
by
some
state
agencies
placed
a
regulatory
requirement
on
the
initial
marketer
which
was
impossible
to
fulfill.

Nor
is
such
an
interpretation
needed
to
provide
adequate
controls.
Under
EPA's
proposed
clarification
the
initial
marketer
remains
responsible
for
assuring
that
the
used
oil
that
he
sells
meets
the
specification
criteria.
All
subsequent
marketers
as
well
as
the
end
user
have
both
economic
and
regulatory
incentives
to
maintain
the
status
of
the
used
oil
as
specification
used
oil
fuel.
In
the
highly
unlikely
event
that
a
subsequent
marketer
blends
a
specification
used
oil
fuel
in
a
way
that
creates
an
off­
specification
product,
this
marketer
cannot
legally
sell
this
fuel
as
on­
specification
fuel
and,
in
fact,
must
comply
with
all
applicable
rules
for
managing
and
marketing
off­
specification
used
oil
fuel.
Thus,
EPA's
proposed
clarification
conforms
to
real­
world
transactions
in
the
used
oil
fuel
industry
but
does
so
without
sacrificing
any
20
enforcement
safeguards.
Accordingly,
NORA
commends
EPA
for
this
worthwhile
clarification
and
urges
the
Agency
to
adopt
this
revision.

Response
The
Agency
acknowledges
the
National
Oil
Recyclers
Association's
support
of
the
proposed
amendment.

General
Comments
to
the
May
6,
1998
Direct
Final
Rule
and
Proposal
Comment
D­
1
National
Automobile
Dealers
Association
(
NADA)
(
Docket
#:
CUOP­
00005)

NADA
generally
supports
EPA's
proposed
technical
corrections
and
clarifications
on
used
oil
and
PCBs,
responses
to
used
oil
releases
in
non­
authorized
states,
used
oil
fuel,
and
marketer
recordkeeping.

Response
The
Agency
acknowledges
the
National
Automobile
Dealers
Association's
support
of
the
proposed
amendments.

Comment
D­
2
Pennzoil
(
Docket
#:
CUOP­
00009)

Pennzoil
Company
appreciates
EPA's
efforts
to
maintain
used
oil
in
its
present
status
as
a
non­
hazardous
waste.
We
therefore,
support
the
direct
final
rule
of
May
6,
1998
and
do
not
have
any
adverse
comments
for
submission.

Response
The
Agency
acknowledges
Pennzoil's
support
of
the
proposed
amendments.
