RULES AND REGULATIONS
Title 25--ENVIRONMENTAL PROTECTION
ENVIRONMENTAL QUALITY BOARD
[25 PA. CODE CHS. 260a, 261a, 266a,
270a, 287 AND 298]
Waste Oil
[31 Pa.B. 2873] The Environmental Quality Board (Board) by this order amends Chapters 260a, 261a, 266a, 270a (relating to hazardous waste management), and 287 (relating to residual waste management--general provisions) and adopts Chapter 298 (relating to management of waste oil). The amendments and new chapter consolidate the requirements for recycling waste oil into one location. In addition, the waste oil regulations largely incorporate Federal requirements for management of the same waste type.
This order was adopted by the Board at its meeting of March 20, 2001.
A. Effective Date
These amendments will go into effect upon publication in the Pennsylvania Bulletin as final-form rulemaking.
B. Contact Persons
For further information contact Scott Walter, Division of Municipal and Residual Waste Management, Bureau of Land Recycling and Waste Management, Rachel Carson State Office Building, 14th floor, 400 Market Street, P. O. Box 8471, Harrisburg, PA 17105-8491, (717) 787-7564, or Scott Perry, Assistant Counsel, Bureau of Regulatory Counsel, Rachel Carson State Office Building, 9th floor, 400 Market Street, P. O. Box 8464, Harrisburg, PA 17105-8464, (717) 787-7060. Persons with a disability may use the AT&T Relay Service by calling (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This proposal is available electronically through the Department of Environmental Protection's (Department) website (http://www.dep.state.pa.us).
C. Statutory Authority
The final-form rulemaking is being made under the authority of the following:
The Solid Waste Management Act (SWMA) (35 P. S. §§ 6018.101-- 6018.1003), which in section 105(a) of the SWMA (35 P. S. § 6018.105(a)) grants the Board the power and duty to adopt the rules and regulations of the Department to carry out the provisions of the SWMA.
The Clean Streams Law (CSL) (35 P. S. §§ 691.1--691.1001), which in section 5(b) of the CSL (35 P. S. § 691.5(b)) grants the Department the authority to formulate, adopt, promulgate and repeal the rules and regulations as are necessary to implement the provisions of the CSL, and which in section 402 of the CSL (35 P. S. § 691.402) grants the Department the authority to adopt rules and regulations requiring permits or establishing conditions under which an activity shall be conducted for any activity that creates a danger of pollution of the waters of this Commonwealth or that regulation of the activity is necessary to avoid pollution.
The Municipal Waste Planning, Recycling and Waste Reduction Act (Act 101) (53 P. S. §§ 4000.101--4000.1904), which in section 302 of Act 101 (53 P. S. § 4000.302) gives the Board the power and duty to adopt the regulations of the Department to accomplish the purposes and carry out the provisions of this act.
The Pennsylvania Used Oil Recycling Act (PUORA) (58 P. S. §§ 471--480), which in section 480(e) of the PUORA (58 P. S. § 480(e)) grants the Department the authority to issue any rules or regulations under this act.
Sections 1905-A, 1917-A and 1920-A of The Administrative Code of 1929 (AC) (71 P. S. §§ 510-5, 510-17 and 510-20), which in section 1905-A of the AC authorizes the Department to require applicants for permits and permit revisions to provide written notice to municipalities, in section 1917-A of the AC authorizes and requires the Department to protect the people of this Commonwealth from unsanitary conditions and other nuisances, including any condition which is declared to be a nuisance by any law administered by the Department and in section 1920-A of the AC grants the Board the power and the duty to formulate, adopt and promulgate rules and regulations as may be determined by the Board for the proper performance of the work of the Department.
D. Background of the Amendments
Regulations pertaining to the waste oil recycling program were found in various sections throughout the hazardous and residual waste programs. This rulemaking is an effort to consolidate the regulations into one location, a new chapter in Article IX (relating to residual waste management). The final-form waste oil regulations will apply to the collection, storage, transportation, processing, rerefining and burning for energy recovery of waste oil.
These amendments also align the Department's hazardous waste management program more closely to the Federal hazardous waste management program and the Federal used oil management standards under the Resource Conservation and Recovery Act (RCRA) (42 U.S.C.A. §§ 6901--6986). On September 10, 1992, the Environmental Protection Agency (EPA) published 40 CFR Part 279 (relating to recycled used oil management standards). These regulations apply to the recycling of nonhazardous used oil and used oil that is hazardous due to a characteristic. The EPA expects all states with authorized RCRA programs to amend their programs to include these used oil recycling management standards. The Commonwealth's current authorized program does not include the EPA's recycled used oil management standards and the Department will apply for authorization of this portion of the RCRA program upon completion of these final-form waste oil recycling regulations.
In developing these final-form regulations, the Department met several times with an ad hoc group of waste oil recycling companies. This waste oil stakeholders group provided invaluable input on many waste oil issues addressed by these regulations. While the amendments do not contain all the changes suggested by this group, there was consensus that the proposal significantly improves the existing regulations.
Notice of the proposed rulemaking was published at 29 Pa.B. 1975 (April 10, 1999). The Department held three public information meetings across the State and the Board held one public hearing on May 25, 1999, at the Department's Southcentral Regional Office on the proposed rulemaking. In addition, the Board provided a 60-day public comment period on the proposed rulemaking. During the public comment period for this rulemaking, the Department received written comments from 15 individuals and groups. Two commentators presented testimony at the public hearing.
The final-form rulemaking reflects recommendations as a result of experience in implementing the regulations and recommendations received during the public comment period. The Department met with the Solid Waste Advisory Committee (SWAC) to review and discuss comments received during the public comment period on this rulemaking on September 9, 1999, and January 13, 2000. On March 9, 2000, SWAC reviewed and approved the draft final-form waste oil regulations for consideration by the Board. On November 2, 2000, SWAC reviewed and approved additional changes to the draft final-form waste oil regulations. The additional changes were made for clarity and to provide consistency with the recently updated residual waste regulations.
E. Summary of Comments and Responses on the Proposed Rulemaking and Summary of Changes to the Proposed Rulemaking
Following the public comment period, the Board and the Department considered all of the comments received in formulating the final-form regulations. The Department has prepared a comment and response document that addresses each comment on the proposed rulemaking.
The following is a summary of the major comments received and changes that have been made to the proposed rulemaking. The summary is listed in the same order as the final-form regulations.
Several commentators pointed out that the citations to the hazardous waste regulations in the proposed rulemaking were no longer valid due to changes in those regulations. The Department was aware that the citations would require revisions after the amendments to the hazardous waste regulations were promulgated, but based the proposed rulemaking on the regulations that were effective at the time of proposal. The Board has updated citations to the hazardous waste regulations in the final-form rulemaking.
ARTICLE VII. HAZARDOUS WASTE MANAGEMENT
Chapter 261a. Identification and Listing of Hazardous Waste Section 261a.2. Definition of ''solid waste.''
40 CFR 261.2(c)(2)(ii) (relating to definition of ''solid waste''), as incorporated by reference in § 261a.1 (relating to incorporated by reference, purpose and scope), excludes commercial chemical products listed in 40 CFR 261.33 (relating to discarded commercial chemical products, off specification species, container residues, and spill residues thereof) from being solid waste when burned for energy recovery, provided they are themselves fuel. The EPA has broadened this regulation, by policy, to include characteristically hazardous commercial fuel products. The EPA has interpreted the commercial products to include tank bottoms, fuel-water mixtures and fuel-contaminated soil from spills, which require processing before they can be used as fuel. While these materials are no longer considered solid wastes under Subtitle C of RCRA, they would be considered solid waste under the SWMA.
These commercial fuel products are commonly managed by waste oil transporters, transfer facilities and processors. Many of these materials, such as gasoline and aviation fuels, have different handling requirements than waste oil due to their higher volatility and flammability. It is necessary for those managing these materials to use properly designed transportation vehicles and facilities and proper handling precautions for worker safety and to protect the public health and the environment. Blending these commercial fuel products with waste oil can be beneficial, since they tend to reduce the viscosity of the waste oil and produce a more widely usable fuel.
The Board has decided to modify the incorporation by reference of 40 CFR 261.2(c)(2)(ii) in new § 261a.2 to clarify that commercial chemical products, which include characteristically hazardous commercial fuel products, are not regulated as hazardous wastes, but are regulated under Chapters 287--299. The safeguards needed to provide worker safety and to protect public health and the environment can be built into the permitting process for waste oil facilities and other residual waste facilities. In addition, if these materials are to be used as fuel without processing prior to use, they may be considered coproducts under § 287.1 (relating to definitions) and not be waste.
Chapter 270a. Hazardous Waste Permit Program Section 270a.60. Permits-by-rule.
Due to changes in the types of characteristically hazardous waste that can be mixed with waste oil and regulated under Chapter 298 (see § 298.10(b)(2) (relating to applicability), the Board decided to modify the permit-by-rule language to add new subsection (b)(2)(v) to allow generators to mix waste that is hazardous due to a toxicity characteristic for benzene, arsenic, cadmium, chromium or lead with waste oil.
ARTICLE IX. RESIDUAL WASTE MANAGEMENT
Chapter 287. Residual Waste Management--
General ProvisionsSection 287.1. Definitions.
The term ''waste oil'' has been moved from § 298.1 to § 287.1 on final-form rulemaking. A recent final-form rulemaking in the residual waste program includes the use of this term in Chapter 287 in the definition of ''coproduct.'' The addition of this term in § 287.1 will promote consistency in the application of this term throughout Article IX. The term ''used oil'' has been deleted on final-form rulemaking because it is no longer used in Article IX.
Section 287.2. Scope.
On final-form rulemaking, proposed subsection (l) has been deleted from this section and relocated to new § 298.2 (relating to scope) to add clarification to the scope of Chapter 298.
Section 287.51. Scope.
On final-form rulemaking, the term ''used oil'' has been deleted from this section to be consistent with the decision to eliminate all references to that term in Article IX and, therefore, avoid confusion in terminology. In addition, the Board added language in subsection (c)(3) that maintains the exemption that currently applies to persons or municipalities that generate used oil.
Chapter 298. Management of Waste Oil Section 298.1. Definitions.
The Board received several comments on this section.
Definitions used in other regulations
A commentator pointed out that terms defined differently in regulations cited by the proposed rulemaking could lead to confusion. In addition, the cross referenced definitions may have different effective dates that would not necessarily apply to this rulemaking. Since Chapter 298 falls within Article IX, all definitions used in § 287.1 apply to Chapter 298. On proposed rulemaking, terms were added to § 298.1 for use in Chapter 298. On final-form rulemaking, the Board added language to clarify that terms not defined by § 287.1 would be defined by § 260a.1 and § 260a.10 (relating to definitions). These changes address concerns raised about using the same terms that are defined differently across regulatory programs.
''Aboveground storage tanks''
To avoid confusion, the word ''storage'' has been added to the term ''aboveground tank.'' This change makes the term consistent with terminology used in the storage tanks program.
''Existing tank''
On final-form rulemaking, the term ''existing tank'' has been deleted. The term is not used in the final-form regulations.
''New tank''
On final-form rulemaking, the term ''new tank'' has been deleted. The term is not used in the final-form regulations.
''Tank''
On proposed and final-form rulemaking, the Board decided to exclude wooden tanks from the definition of ''tanks'' because wooden tanks are more prone to leakage than tanks made from nonearthen materials.
''Underground storage tank''
On final-form rulemaking this term was added for clarification.
''Waste oil''
Commentators indicated that the negative connotation of the term ''waste'' in ''waste oil'' could impact recycling of waste oil. Suggestions ranged from changing the statutory definition of ''used oil'' to creating a new term, such as ''managed used oil'' or ''recycled used oil.'' The Commonwealth has used the term ''waste oil'' for well over a decade and believes it is well understood that waste oil can be recycled. The Department is committed to encouraging recycling of waste oil and has worked with organizations, such as the American Petroleum Institute, to encourage the recycling of waste oil and used oil filters in this Commonwealth. Fact sheets and other public educational efforts are being planned to encourage the recycling of waste oil and to further inform the public about this rulemaking. The Board believes a statutory change is not necessary to encourage recycling of waste oil and that creation of a new term to replace the established term, ''waste oil,'' may lead to confusion. The Board decided to retain the term ''waste oil''; however, the term has been moved to § 287.1.
The term ''waste oil'' is almost identical to the Federal term ''used oil.'' Waste oil must be refined from crude oil or synthetic oil. Therefore, animal and vegetable oils cannot be waste oil. Except for automotive oils, oils must be contaminated through use rather than through handling or storage to be waste oil. In this Commonwealth, the term ''waste oil'' includes automotive oil that has been contaminated during use, storage or handling, based on the definition of ''used oil'' in the Used Oil Recycling Act of 1982. Tank bottoms from storage of virgin petroleum fuel oil and virgin fuel oil recovered from spills are not waste oil since they were not contaminated through use. Since fuel oils are consumed when used, most virgin fuel oil cannot become waste oil.
The term ''oil'' is not defined in the Federal used oil regulations and is not being defined in these final-form waste oil regulations. However, since a material must first be oil before it can become waste oil, the Department would like to clarify what kinds of materials it does and does not consider oil for the purposes of Chapter 298. Oils are products used as lubricants, fuels, heat transfer fluids, buoyants, hydraulic fluids and other analogous uses. Solvents and chemicals used as raw materials in manufacturing are not oils for purposes of this chapter. Petroleum distillates, such as mineral spirits, when used as solvents do not become waste oil. Industry refers to various chemicals used as raw materials as ''oils.'' An example is ''Brinks Oil.'' Brinks Oil, a plasticizer used in polymer manufacturing, is comprised of phthalates and, chemically, is significantly different than waste oil.
Waste not classified as waste oil may still be managed by waste oil processors/re-refiners and transfer facilities provided these wastes are covered under the facilities' permits. This allows the Department to evaluate screening, storage, processing and handling of the other wastes to ensure the operations are protective.
''Waste oil transfer facility''
Several commentators raised concern that the proposed definition of a ''waste oil transfer facility'' was extremely broad and encompassed a much wider range of facilities than does the corresponding definition of a ''used oil transfer facility'' under the Federal used oil regulations. This concern was mainly due to lack of a minimum holding time, 24 hours, in the definition, which could conceivably encompass a wide variety of facilities that the Department never intended to cover, such as truck stops, restaurants, motels and fueling facilities. Under the Federal used oil regulations, waste oil that is stored for transfer under 24 hours is not regulated as a transfer facility. The definitions of ''transfer facility'' in the residual waste regulations, the municipal waste regulations and the hazardous waste regulations do not contain the ''24 hours'' limit. In addition, the SWMA does not have a minimum limit on the time that the waste is to be held at a transfer facility before it is regulated. The Department has never covered truck stops, restaurants, motels and fueling facilities as transfer facilities under those regulations and has no intention to do so under these waste oil regulations. In addition, by placing the 24-hour limit in the definition, flexibility would be taken away from the Department to allow waste oil to be held longer than 24 hours, which may be appropriate in some instances. The Board has decided not to change the definition of a ''waste oil transfer facility'' in the final-form regulations.
''Waste oil transporter''
While this Commonwealth's waste management regulations clearly distinguish waste transporters from owner/operators of waste transfer facilities, Federal used oil regulations blend the two together. This produced confusion in the proposed regulations as to when various requirements apply to transporters only, to transfer facilities only, or to both. The Board has modified the definition of ''waste oil transporter'' to clarify the distinction that has incorporated the use of separate terms--waste oil transporter and waste oil transfer facility--throughout the final-form regulations. The separate terms of ''transporter'' and ''transfer facility'' are indicated as appropriate throughout the final-form regulations.
Section 298.2. Scope
A new section has been added on final-form rulemaking to clarify that Chapter 298 applies to waste oil that is being recycled. The scope of this chapter was previously located on proposed rulemaking at § 287.2. On final-form rulemaking, the language was relocated to this section for clarity.
Section 298.10. Applicability
The Board received several comments on this section.
Mixtures of listed hazardous waste and waste oil
Comments both favored prohibition of mixing listed hazardous waste from any sized generator and supported mixing by conditionally exempt small quantity generators (CESQGs) under this chapter. One commentator indicated that waste oil facilities would have a difficult time trying to prove that a hazardous load of waste oil came from a CESQG. The Board agrees with this commentator and believes the information gathering and recordkeeping necessary to demonstrate that hazardousness of a large quantity of waste oil is due to CESQGs would be quite burdensome. Subsection (b)(1)(i) of the final-form regulations continues to maintain that mixing of listed hazardous waste with waste oil is regulated under the hazardous waste regulations.
Mixtures of characteristic hazardous waste and waste oil
Several commentators criticized limiting characteristic hazardous waste that can be mixed with waste oil to ignitable-only hazardous waste. While some commentators merely stated the Commonwealth should not be more stringent than the Federal used oil program, others pointed out that few, if any, characteristically hazardous wastes will be due to ignitability alone. This restriction would be especially difficult on small shops that generate limited quantities of these hazardous wastes.
The mixing of hazardous waste and waste oil is the most difficult issue to resolve in this regulatory package. On one hand, the Department is committed to the concept of source reduction. That is, it is better to not generate hazardous waste than to have to dispose or recycle it. Allowing carte blanche mixing of characteristic hazardous waste with waste oil supports the outmoded concept of ''the solution to pollution is dilution,'' not source reduction. On the other hand, the commentator is correct that petroleum-based solvents, gasoline and kerosene will usually exhibit a toxicity characteristic for benzene and often for metals.
Generators who mix characteristically hazardous waste with their waste oil will sometimes have neither the knowledge of their hazardous waste nor the inclination to bear the cost of testing to determine that the mixture will no longer exhibit characteristics of hazardous waste. A past fatal explosion involving a waste oil transporter checking his tank would not have occurred if the load contained only waste oil or if the mixture was no longer characteristically hazardous.
Certain hazardous characteristics are expected to sometimes be present in waste oil. These characteristics include ignitability (due to slightly low flash points) and toxicity characteristic from benzene and the metals in Table 1 of § 298.11 (relating to waste oil specifications). Transporters and facilities managing waste oil should be well aware that these characteristics could be present and should be prepared to deal with them safely. However, transporters and facilities managing waste oil which contains unexpected characteristics, such as reactivity, corrosivity, or a toxicity characteristic from pesticides, and the like, may not be equipped to manage them in a manner that protects the health of their workers, the public or the environment. In addition, these unexpected characteristics could interfere with some of the processes used to recycle the waste oil. The Federal used oil regulations allow the mixing of waste oil with hazardous waste that is characteristically hazardous due to any characteristic, including corrosivity and reactivity. The Department currently requires very minimal screening by operators of waste oil transfer and processing facilities. If all characteristically hazardous wastes could be mixed with waste oil, this minimal screening is insufficient to cover the gambit of characteristics necessary to warn operators of the contents of the waste oil.
The final-form regulations alleviate the commentators' concerns for mixing petroleum-based solvents, gasoline and kerosene with waste oil without producing a significant increase in harm to waste oil workers, the public health and the environment, or requiring excessive screening by waste oil management facilities by including an expanded, but limited mixture rule in the final-form rule. The Board has added new language in subsection (b)(2)(ii) to allow waste that exhibits a toxicity characteristic for benzene and the metals in Table 1 of § 298.11 to be mixed with waste oil by the generator. Large and small quantity generators will need to ensure, through testing or knowledge, that the resultant mixture is no longer characteristically hazardous. CESQGs will not have to make sure that the resultant mixture of waste oil and hazardous waste is no longer characteristically hazardous under the hazardous waste regulations.
One commentator noticed an error to a cross reference in proposed § 298.10(b)(2). The corrected cross reference has been added to the end of § 298.10(b)(2)(iii).
Materials containing or otherwise contaminated with waste oil
Two commentators thought that the Federal wastewater standard of presence of visible oil should be adopted instead of the proposed requirement that wastewater contain at least 1% waste oil or marketable quantities of oil. Their concerns were as follows: 1) the requirement differs from the Federal standard; 2) the use of the term ''marketable quantities'' is undefined and vague; 3) the 1% and ''marketable quantities'' standards are inconsistent with the ''de minimis quantities'' standard in subsection (f); 4) requirements discourage recycling by prohibiting management of the wastewater by waste oil processors; and 5) it is difficult to obtain representative samples for determining the oil content.
The decision to require recoverable oil is based on what is believed to be the best way to regulate wastewater containing trace quantities of oil. The approach taken in the final-form regulations differs from the approach taken in the Federal program. The Federal approach was to ''cast a large net'' to bring wastewater with virtually any amount of visible oil into the used oil regulations since, otherwise, it may escape regulation and not be managed in a protective manner. The Commonwealth, with its residual waste program, did not need to cast as large a net in the waste oil regulations as the EPA, since wastewaters falling out of the waste oil regulations would not fall out of regulation entirely and would still be managed in a protective manner.
In an effort to encourage legitimate recycling of waste oil, the final-form regulations provide reduced regulatory requirements not afforded to wastes destined for disposal or even to other wastes being recycled. These requirements include managing waste oil which exhibits characteristics of hazardous waste as a residual waste, allowing mixtures of waste oil and characteristically ignitable hazardous waste to be managed as waste oil, allowing some waste oil transfer and processing facilities to operate under a general permit for processing prior to beneficial use, and creating a permit-by-rule for waste oil collection centers. These exceptions should not be extended to wastewaters containing so little waste oil that oil cannot be recovered and recycled or reused. Many generators of oily wastewaters perform onsite oil/water separation and remove most of the waste oil prior to shipment to an off-site facility. The EPA uses the ''sheen test'' for wastewater; that is, if the oil can be seen on the surface and it is not from a source of de minimis quantities (40 CFR 279.10(f)), then it is regulated as used oil. It is known, through basic experimentation, that the oil necessary to produce such a sheen can be as little as one molecule thick. Such a small amount of oil could not be recovered from wastewater using the technologies employed by waste oil processors today. The final-form regulations allow facilities to take wastewater containing less than 1% oil as waste oil if they can demonstrate that they can recover marketable quantities of oil from the wastewater. The Department believes that technologies commonly employed by waste oil processors can reasonably be expected to recover oil from wastewater containing 1% oil. This standard is currently used in waste oil facility permits and has not been problematic to date. Wastewater containing lower quantities of oil than can be recovered would be classified as either residual waste or hazardous waste, depending on its characteristics. Facilities with individual transfer facility or processing permits, including facilities that primarily manage waste oil, may accept nonhazardous wastewaters provided it is authorized under their permits. Since no beneficial use is possible for the wastewaters containing insufficient oil to recover, facilities operating under general permits are not able to accept these wastewaters.
The Department purposely chose not to define ''marketable quantities.'' ''Marketable quantities'' is an economic term and is dependent on the cost of operating the technology used, quantity of wastewater and waste oil processed, fee charged for accepting the oily wastewater, market value of the recovered oil, and the like. Since most of these variables are dependent on specific conditions at each facility, it would be difficult to use a set of assumptions to derive a generic definition and apply it in all cases. The owner/operator of each waste oil facility is in the best position to determine what is marketable for its particular facility. The term ''marketable quantities'' remains undefined in the final-form regulations to retain the maximum flexibility possible.
As with other heterogeneous wastes, obtaining representative samples and accurate analyses on oily wastewater can sometimes be difficult. The Department and the regulated community have been dealing with similar sampling and analytical situations in other areas and believe this can be handled in a reasonable manner.
The Board has decided to retain the standard that for wastewater to be managed under Chapter 298, it must contain either 1% or more of waste oil or marketable quantities of waste oil. Since this standard is inconsistent with the de minimis quantities standard in proposed subsection (f), that standard has been deleted on final-form rulemaking.
On final-form rulemaking, the Board modified subsection (c)(2) to clarify that material contaminated with waste oil that is burned for energy recovery at an industrial furnace or boiler is regulated under Chapter 298. If the material is burned for energy recovery at a resource recovery facility, then it is regulated under the municipal waste regulations, Chapter 287 and Chapter 297 (relating to incinerators and other processing facilities) of the residual waste regulations or the hazardous waste regulations. This change has been made to prevent resource recovery facilities that are energy recovery facilities from being regulated under this chapter.
Materials derived from waste oil
Under the proposed rulemaking, materials derived from waste oil remain wastes unless the Department determines that they are no longer wastes as a condition in a permit. Commentators were concerned that oil removed from transformers, filtered and returned to use in transformers would be considered waste. They were also concerned that a determination that materials derived from waste oil are not waste would not be available to generators processing waste oil under permit-by-rule. The Department would not ordinarily consider the transformer oil to be waste since the filtration is commonly performed as a means to protect pumps and the transformer oil is not spent (that is, it is still useful as transformer oil without additional processing). The Board modified subsection (e)(1) in the final-form regulations to delete the language that referred to materials derived from waste oil as waste and also to allow the materials derived from waste oil under permit-by-rule to be eligible for a determination that they are no longer a waste.
Section 298.11. Waste oil specifications.
The specification level for total halogens in the proposed rulemaking, 1,000 parts per million (ppm), generated many comments. Several commentators believe that the Commonwealth should either adopt the Federal standard of 4,000 ppm or a dual system, as suggested in the preamble to the proposed regulations, where the specification would be 4,000 ppm for industrial burners and 1,000 ppm for residential burners. On the other hand, a commentator recommended that the 1,000 ppm total halogen specification is appropriate and would eliminate the confusion between the standard for on-specification fuel oil and the standard for total halogens relating to the rebuttable presumption.
The Board proposed the 1,000 ppm limit to protect residential furnaces from corrosion from hydrochloric acid produced during combustion of chlorine containing waste oil. Several manufacturers of home heating furnaces were contacted. The manufacturers could not provide information to show that elevated levels of halogens in oil would not lead to problems when burned in their furnaces. The Board does not believe that limits for waste oil burned in industrial furnaces and boilers, where higher halogen- containing oil can be burned without threatening human health and the environment, should be based on residential furnaces. Therefore, the waste specification for total halogens in Table 1 of this section of the final-form regulations has been amended to allow waste oil up to 4,000 ppm to be considered on-specification when used in industrial burners and is retaining 1,000 ppm as the on-specification standard when waste oil is used in commercial or residential burners.
Two comments were received on the requirement that waste oil burned for energy contain a minimum heat content of 8,000 Btu per pound. One commentator questioned the need for the minimum heat content requirement, since there is none in the Federal regulations. The second requested clarification that this requirement applies to the oil as burned, not individual oils that are blended together prior to burning. As stated in the Preamble to the proposed regulations, 8,000 Btu per pound is equivalent to wood or a low-grade coal, which are commonly utilized as fuels. Since oil itself contains between 16,000 and 18,000 Btu per pound, waste oil would have to contain in excess of 50% of a non- combustible material, such as water or clay, to fail to meet 8,000 Btu per pound. ''Fuels'' containing an excess of 50% of a noncombustible material could hardly be considered legitimate fuels. The second commentator requested clarification that this requirement applies to the oil as burned, not individual oils that are blended together prior to burning. The Department intends all the waste oil specifications, including the 8,000 Btu per pound specification, to apply to waste oil as marketed or burned. For example, the oil fraction obtained from processing an oily wastewater that has a heat content less than 8,000 Btu per pound would undoubtedly have a heat content greater than 8,000 Btu per pound and could be marketed as on-specification waste oil (provided it was on-specification for the remainder of the constituents/properties). The Board is retaining the 8,000 Btu per pound requirement in the final-form regulation, but has clarified the rule to indicate it applies to the waste oil as burned.
In the proposed rulemaking, waste oil that does not exceed any specification level in § 298.11 is not subject to Chapter 298 when burned for energy recovery. While the Board has not made changes to this provision in the final-form regulations, the Board believes clarification is needed on when waste oil meeting the specifications is no longer regulated under Chapter 298. As previously stated, the waste oil specifications are intended to apply to waste oil as marketed or burned--that is, when ready to be used as fuel. If the waste oil will be processed, blended or requires other treatment prior to its use as a fuel that is not required of virgin fuel oil, it continues to be subject to Chapter 298. Filtration performed solely to protect pumps used in transfer of the oil is not considered processing for purposes of this provision.
Section 298.12. Prohibitions.
Subsection (a) states that waste oil may not be managed in surface impoundments or piles unless the units are subject to Chapter 264a or 265a (relating to owners and operators of hazardous waste treatment, storage and disposal facilities; and interim status standards for owners and operators of hazardous waste treatment, storage and disposal facilities) of the hazardous waste regulations. Similar language appears in §§ 298.22, 298.45, 298.54 and 298.64 (relating to waste oil storage; waste oil storage at transfer facility; waste oil management; and waste oil storage). One commentator asked whether the parenthetical portion of the statement indicates that permits will be required for surface impoundments and storage units that manage waste oil, or would the permit-by-rule requirements for generators described in § 298.20(b)(3) (relating to applicability) apply. The commentator also asked for clarification that only Subchapters I and J (pertaining to containers and tank systems) and Subchapters K and L (pertaining to surface impoundments; and waste piles) apply. The language used in the regulations closely follows the Federal regulations at 40 CFR 279 (relating to standards for the management of used oil). The parenthetical portion of this statement was included in the proposed regulation to reference the information contained in Chapter 264a and 265a. These sections should be interpreted like the Federal counterpart at 40 CFR 279.12(a) (relating to prohibitions), which requires full compliance with Subparts K and L in 40 CFR Parts 264 and 265. Storage of waste oil in surface impoundments would be considered treatment and requires a permit authorized under the hazardous waste management regulations. A permit-by-rule under this chapter does not replace the need to comply with Chapters 264a and 265a. As a practical matter, the Department is unaware of any waste oil impoundments in this Commonwealth and believes placement of waste oil in a surface impoundment would decrease recyclability of the oil. The EPA has numerous documented cases of environmental damage from the storage of waste oil in these units (see Environmental Damage from Used Oil Mismanagement, Final Draft Report, available in the docket to 57 FR 41566, December 10, 1992). The references in these regulations should be read to apply to the appropriate subparts and subchapters only. The Board is retaining the wording of the proposed regulations.
Section 298.20. Applicability.
Several commentators criticized the permit-by-rule (PBR) provisions of the proposed rulemaking. Most of the comments pertained to the stringency of these provisions compared to what is allowable under current PBR provisions in § 287.102 (relating to permit-by-rule). For example, under the captive processing provisions in § 287.102(b), residual waste can be processed by the generator at the same site where some or all of the waste is generated. The proposed regulations contained conflicting language in subsection (b)(3) and (b)(3)(i)(C) on whether a generator may process waste from the generator's other manufacturing locations at the site covered by the permit-by-rule. The final-form regulations retain the requirement in clause (b)(3)(i)(C) and delete the requirement in subsection (b)(3), tracking more closely the language in § 287.102(b) for captive processing facilities. The same change has been made in clause (b)(3)(ii)(A).
On final-form rulemaking, the Board has added new language in subsection (b)(3), identical to language in § 287.102, that incorporates the requirement for an operator to submit written notice to the Department of operation under the permit-by-rule. In subsection (b)(3)(ii), the reference in clause (C) to Federal standards for preparation of preparedness, prevention and contingency (PPC) plans has been deleted and replaced, in clause (D), with language from § 287.102 relating to PPC plans. Additionally, the final-form regulations include new language, in subsection (b)(8), that allows the Department to make a determination that material is no longer a waste when used in accordance with § 287.7 (relating to determination that a material is no longer waste). The addition of this language clarifies that this opportunity is available to generators of waste oil operating under a permit-by-rule in Chapter 298.
The PBRs in this section are more stringent than the Federal regulations. The EPA's used oil regulations are limited to requiring that waste oil be generated onsite and not shipped offsite to be burned for energy recovery. The Federal regulations do not address the risks from mishandling the waste oil that are posed when the processing facility is conducted by the waste oil generator. The final-form regulations address more directly the onsite management of waste oil by generators.
Several commentators expressed concern that the generator recordkeeping requirements in the proposed regulations were overly burdensome. They viewed the proposed regulations as requiring very detailed records on waste oil, such as recording each type of oil used and process it was used in and testing results. In addition, the commentators questioned the need to retain these records for 5 years when other records need only be retained for 3 years. At the request of the ad hoc waste oil recycling companies that provided input to the Department, these minimal generator recordkeeping requirements were developed to assist waste management personnel in identifying the types of waste they collect and process or dispose. The requirements represent basic recordkeeping associated with ordinary business practices and should not be overly burdensome. The requirements are especially simple for generators whose waste oil does not contain elevated halogens and who do not mix the waste oil with hazardous waste.
Examples of how the recordkeeping requirements will apply are as follows. First, for a company maintaining a fleet of automobiles, the entire record may consist of motor oil from changing the oil in cars. A second example is a typical generating station, where many different kinds and grades of lubricants are used (different weights and additives) for particular pieces of equipment. During major overhauls, each of these oils are not separately measured, cataloged and tested. Like-kind lubricants are collected together and sent to appropriate reprocessing or disposal. In the generator's records, the lubricants would probably be called lubricating oils used to lubricate equipment. If some of the oils are chlorinated, it may be necessary to have two categories for the lubricating oils, chlorinated and nonchlorinated. It would not be necessary to identify each particular piece of equipment in which each grade of lubricating oil is used.
There is no requirement for the generator to actually test the waste oil; however, if the waste oil has been tested, the generator should record the results. If a waste oil transporter runs a total halogen test on a generator's waste oil, and gives the results to the generator, the generator should make those results part of the generator's records. This requirement should not increase costs for tests and materials and should only use as much time as it takes to quickly record a note in a file.
The requirement is a bit more complex for generators who mix characteristic hazardous waste with their waste oil. The records should show that the resultant mixture is no longer characteristically hazardous.
The Board has retained the generator recordkeeping requirements in the final-form regulation. However, the Board decided to reduce the record retention requirement from 5 to 3 years. In addition, a new recordkeeping requirement has been added to correspond with the new language added in § 298.10(b)(2) that allows generators to mix some characteristically hazardous waste with waste oil. Subsection (c)(5) requires a generator to record analyses of hazardous waste characteristics for any mixtures of hazardous waste with waste oil.
Additional changes, relating to cross references, have been made to subsection (b). In subsection (b)(3), a cross reference to Chapter 297, that contains the application and operating requirements for incinerators and other processing facilities, was inadvertently omitted from the proposed rulemaking. In subsection (b)(3)(i)(A), (iii)(A) and (iv)(A), references to ''and this article'' have been deleted to indicate that waste that is not waste oil must be managed in accordance with the appropriate municipal, residual or hazardous waste regulations. In subsection (b)(3)(ii), language added on final-form rulemaking allows an operator separating waste oil from wastewater generated onsite to operate under permit-by-rule if the wastewater is made acceptable for either discharge or shipment offsite.
Section 298.21. Hazardous waste mixing.
On final-form rulemaking, the Board added new subsection (c) to remind and clarify for generators their continuing responsibility to perform hazardous waste determinations for waste generated prior to any mixing with waste oil and on any resultant mixtures. In addition, the Board added new subsection (d) to enhance the transfer of information from a generator to a transporter so that the transporter knows whether the waste the transporter is collecting is hazardous or not.
Section 298.22. Waste oil storage.
In subsection (b)(2), a minor correction regarding the condition of units has been made to conform to the Federal regulations.
Since the Federal regulations require aboveground storage units and pipes to be labeled ''used oil,'' commentators have objected to the proposed labeling regulations that require the words ''waste oil.'' Since the term ''used oil'' has a statutory meaning in this Commonwealth that is different than the Federal meaning, labeling waste oil tanks and pipes ''used oil'' would not be correct and would be confusing. The Board does recognize that some companies may have already been using ''used oil'' labels and has, therefore, provided a transition scheme of 2 years, in subsection (c), to comply with the new labeling requirements. Until that time, either label may be used.
On final-form rulemaking, the Board adopted new language, in subsections (d) and (e), that applies to storage tanks and containers used to store waste oil. Commentators suggested that storage requirements from Chapter 299 (relating to storage and transportation of residual waste) be incorporated for waste oil. The Board recently amended Chapter 299 of the residual waste regulations to include standards for storage of residual waste in tanks and has decided to incorporate those same standards in this section and §§ 298.45 and 298.54. Although the tank standards are more detailed than the Federal requirements, they are largely performance-based and represent more recent experience gained through the storage tanks program. The new language pertaining to containers is also language that was recently adopted by the Board in the amended provisions to Chapter 299.
Several commentators thought the proposed rulemaking, along with changes made to the hazardous waste regulations after the proposed regulations were published, would require every waste oil generator to develop a written contingency plan, designate emergency coordinators, and file emergency plans with all local police, fire departments, hospitals, and State and local emergency response teams. Based on these assumptions, the commentators indicated that such requirements would be financially burdensome, especially to small generators, and suggested that waste oil generators only be required to comply with the applicable Spill Prevention, Control and Countermeasure (SPCC) provisions of 40 CFR Part 112 (relating of oil pollution prevention). On final-form rulemaking, subsection (g) has been amended to include a cross reference to 40 CFR Part 112 (relating to oil pollution prevention). This addition is consistent with the parallel Federal requirements.
The Federal requirements under 40 CFR Part 112 would only require a generator to develop an SPCC plan if a spill has already occurred. On proposed, the regulations cross reference SPCC measure requirements found in the hazardous waste regulations. To relieve some of the burden associated with following these measures, the Board has amended subsection (g) to delete the cross reference to the hazardous waste program and add a requirement to prepare a PPC plan that is consistent with the residual waste program.
Section 298.23. Onsite burning in space heaters.
Of the three commentators who commented on burning oil in space heaters, two supported the regulation as proposed. The third objected for the following reasons: 1) small furnaces have unacceptable emissions when burning waste oil; 2) there will be no testing by the burners to assure mixture of waste oil with hazardous waste has not occurred; and 3) a seasonal demand will be created for those who currently recycle and process waste oil. The commentator that objected further explained that those who would be allowed to burn waste oil received directly from a generator will not be interested in purchasing waste oil other than in the colder months, and a seasonal operation would not be profitable for the waste oil companies.
The proposed rulemaking do not expand the burning of waste oil in space heaters. Since this section in the proposed regulations is essentially the same as its Federal counterpart (40 CFR 279.23 (relating to on-site burning in space heaters)) the Department is confident that the proposed requirements for space heaters are acceptable under Federal requirements. We do not believe banning legitimate burning of waste oil in space heaters will prevent owners/operators of space heaters from receiving waste oil mixed with hazardous wastes. Along with this promulgation of final-form waste oil regulations, the Department is developing fact sheets and other informational materials to aid in complying with the requirements. What can and cannot be burned in space heaters is part of this educational effort. Under the Commonwealth's current regulations, businesses burning waste oil in space heaters may already accept on-specification waste oil directly from generators or burn their own waste oil and waste oil received from do-it-yourselfer (DIYer). The proposed regulations do not change the provisions involving burning waste oil in space heaters or transportation from a generator directly to a burner. Since businesses burning waste oil are operating in this Commonwealth today, these provisions are not likely to cause waste oil providers to only operate profitably on a seasonal basis. The Board has decided not to modify this section in the final-form regulations.
Section 298.24. Offsite shipments.
One commentator pointed out that paragraph (1)(iv), not found in the corresponding Federal rule, requires each generator to provide the collection center a written certification that the generator has not mixed its waste oil with hazardous waste, except as provided in proposed § 298.10(b)(2)(ii). The commentator endorsed the concept that the generator should be responsible for not mixing waste oils with hazardous wastes. The commentator indicated, however, that many small generators, such as DIYers, may not have sufficient knowledge of Department's hazardous waste rules.
Over the past few years, the Department has experienced some difficulty in keeping used oil collection sites in the used oil collection program. While there have been several reasons for this, many businesses are reluctant to collect waste oil from small generators out of fear of accepting contaminated oil. The certification requirement is an attempt to provide a level of ''comfort'' to collection facilities that would be absent without it. As for household DIYers, since their wastes are exempt from regulation as hazardous under 40 CFR 261.4(b)(1) (relating to exclusions), as incorporated by reference in § 261a.1, they can easily certify that they have not mixed their waste oil with hazardous waste. Even generators who are small businesses are required to determine if their wastes are hazardous (40 CFR 262.11 (relating to criteria for listing hazardous waste), as incorporated by reference under § 262a.10), so they should have enough knowledge of their wastes to be able to comply with the certification. Of course, the easiest way to ensure that the certification is accurate and that they have not mixed their waste oil with hazardous waste is to train their employees not to dump anything in their waste oil. The Board has not made changes to this requirement on final-form rulemaking. To assist generators and facilities receiving waste from generators, the Department is developing a fact sheet explaining how to prepare a certification.
One commentator suggested that transporters under tolling arrangements should be required to have the EPA ID numbers. Since, under these tolling arrangement provisions, the vehicle used to transport waste oil from the generator to the processor/rerefiner and the processed oil back to the generator must be owned and operated by the processor/rerefiner, and waste oil processors/rerefiners must obtain the EPA ID numbers, requiring the transporter to obtain an EPA ID number would be redundant. The Board has not made any changes to this requirement in the final-form rule.
Sections 298.25. Source reduction strategy.
Several comments applicable to the source reduction strategy requirements were received. While one commentator questioned the need for source reduction strategies for waste oil that is recycled, most were concerned with inconsistencies in dates and requirements of this section compared with those found for other residual waste in § 287.53 (relating to source reduction strategy) source reduction strategy). Commentators believed that separate source reduction strategies would be required for waste oil and other residual waste and that source reduction strategies for waste oil from automobile servicing would have to be developed. The Federal regulations for used oil do not require the preparation of source reduction strategies for used oil.
On final-form regulations, the Board has deleted the proposed language containing the requirements for a source reduction strategy and cross referenced the source reduction strategy requirements from Chapter 287 to remove the inconsistencies and to make it clear that waste oil should be included in the same source reduction strategy developed for the generator's other residual waste. This cross reference also clarifies that source reduction strategies are not required for waste oil from automotive servicing. In developing source reduction strategies, generators might consider certain processes that can extend the useful life of oil, such as switching to a longer-lasting oil, like a synthetic, or by using additives or filtration, thereby saving the generators money and creating less waste.
Section 298.26. Biennial report.
Several comments applicable to the biennial report requirements were received. While one commentator questioned the need for biennial reporting for waste oil that is recycled, most were concerned with inconsistencies in dates and requirements of this section compared with those found for other residual waste in § 287.52 (relating to biennial report). Commentators believed that biennial reports would be required for waste oil from automotive servicing. The Federal regulations for used oil do not require the preparation of biennial reports for used oil.
The basic information contained in the biennial reports aids the Department in administering waste programs by identifying how much waste is being generated in this Commonwealth and how it is being processed, treated, disposed or recycled. The requirement for the biennial report is based on waste generated rather than its destination. It also does not apply to waste oil generators who generate oil from automotive servicing. The majority of waste oil generators who will have to include their waste oil in biennial reports are residual waste generators who are already required to file biennial reports.
On final-form rulemaking, the Board has deleted the proposed language containing the requirements for a biennial report and has cross referenced the biennial report requirements from Chapter 287 to remove the inconsistencies and to make it clear that waste oil should be included in the same biennial report developed for the generator's other residual waste. This cross reference also clarifies that the biennial report is not required for waste oil from automotive servicing.
Section 298.30. Waste oil collection centers.
Three comments were received concerning waste oil collection centers. One commentator suggested an exemption be added for State and community DIYer drop-off sites. The commentator was concerned that waste oil from DIYers placed in a tank at waste oil collection centers with waste oil generated at the center could make the entire tank of waste oil hazardous. Federal law concerning hazardous waste does not exclude from regulation waste from a tank at a collection center that contains waste oil from DIYers mixed with waste oil generated at the center, since the waste oil generated at the center might be mixed with hazardous waste. However, the Department may use its enforcement discretion to allow waste oil containing high total halogens from a collection center to be managed as nonhazardous when the collection center demonstrates that the halogens were not generated at the collection center.
The other two comments concerned the level of details in the proposed regulations. One indicated that the level of detail in the proposed regulation with regard to requiring sheltered storage of waste oil tanks is too great. The other indicated that the level of detail with regard to specifying how waste oil collection centers are to ensure that they are collecting only waste oil that has not been impermissibly mixed with hazardous wastes should be greater. The Federal requirements for used oil include minimal requirements for collection centers--limiting the types of waste oil that can be accepted and the types of activities that can occur at a collection center. While the primary goal of all of the Commonwealth's environmental regulations is to protect human health and the environment, the waste oil regulations are also concerned with the recyclability of waste oil. The Board specified that the tanks at aggregation points be sheltered to protect the waste oil from the elements and from other contaminants that could be thrown into an open top of the tank. The Board also recognizes there are many ways for waste oil collection centers to ensure that they are collecting only waste oil that has not been impermissibly mixed with hazardous wastes. Rather than prescribing a single method for all, the Board decided to allow each collection center to develop and implement what will work best for their particular facility. The Board has decided not to make changes to the requirements for waste oil collection centers upon final-form regulation.
On final-form rulemaking, the Board added language to subsection (b)(8) to require the development of procedures, by the collection center, to prevent the receipt of wastes and materials that are unacceptable for collection.
Section 298.31. Waste oil aggregation points owned by the generator.
On final-form rulemaking, subsection (b)(5) has been added to be consistent with the other permit-by-rule provisions in Chapters 287 and 298. The new language requires an owner or operator to submit written notice to inform the Department of the person's intention to operate under the permit-by-rule.
Throughout this subchapter, the term ''transfer facility'' has been added to clarify those requirements that are specific to either a transporter or transfer facility. These changes are also necessary to correspond to the changes in the definition of ''waste oil transporter.''
Section 298.40. Applicability.
One commentator recommended that this section be clarified by adding language stating that the transportation requirements do not apply to generators who do not engage in the offsite transportation of waste oil. The regulations are clear, in subsection (a), that generators who are not transporters, or who only transport onsite, do not have to comply with the transportation requirements. Generators who transport no more than 55 gallons of waste oil to a waste oil collection site as specified in § 298.24(a) or aggregation point as specified in § 298.24(b), or those transporting from only DIYers to a regulated facility are also not subject to the transportation requirements. The Board has decided to retain the proposed language in the final-form regulations.
Under the proposed rulemaking in subsection (b), ''a transporter who imports waste oil into or exports waste oil out of this Commonwealth is subject to this subchapter from the time the waste oil enters until the time it exits this Commonwealth.'' A commentator suggested revising the proposed regulation to distinguish between requirements that are applicable to transfer stations being operated within this Commonwealth and transportation activities in which shipments of waste oil are merely passing through this Commonwealth. The Board maintains that the regulation, adapted from the Federal requirements, is appropriate and correct. The language ''import'' implies that waste oil will be brought into this Commonwealth for waste management and the word ''export'' implies that waste oil that is being managed in this Commonwealth will be transported outside of this Commonwealth.
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