PROPOSED RULEMAKING
ENVIRONMENTAL
QUALITY BOARD
Waste Oil
[25 PA. CODE CHS. 261, 266, 287 AND 298]
[29 Pa.B. 1975] The Environmental Quality Board (Board) proposes to amend Chapters 261, 266 and 287 (relating to criteria, identification and listing of hazardous waste; special standards for the management of certain hazardous waste activities; and residual waste management--general provisions), and to adopt Chapter 298 (relating to standards for recycling waste oil) to read as set forth in Annex A.
This proposal was adopted by the Board at its regular meeting on February 16, 1999.
A. Effective Date
These proposed amendments will go into effect immediately upon publication in the Pennsylvania Bulletin as final rulemaking.
B. Contact Persons
For further information, contact William Pounds, Chief, 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 17105-8471, (717) 787-7564, or Marc A. Roda, 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. Information regarding submitting comments on this proposal appears in Section I of this Preamble. 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 (Department) web site (http://www.dep.state.pa.us).
C. Statutory Authority
This proposal is being made under the authority of section 5 of The Clean Streams Law (35 P. S. § 691.105), sections 1--9 of the Pennsylvania used Oil Recycling Act (58 P. S. §§ 471--480), section 105 of the Solid Waste Management Act (act) (35 P. S. § 6018.105), and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20). Section 5 of The Clean Streams Law directs the Department to adopt such rules and regulations as are necessary to implement the act.
Section 9(e) of the Pennsylvania Used Oil Recycling Act (58 P. S. § 479(e)) authorizes the adoption of regulations. Under section 105 of the act, the Board has the power and duty to adopt rules and regulations necessary to carry out the purposes of the act (35 P. S. §§ 6018.101--6018.1003) which includes the management of solid waste to protect the public's health, safety and welfare, as well as protect the environmental resources of this Commonwealth. Section 1920-A of The Administrative Code of 1929 grants the Board the authority to promulgate rules and regulations necessary for the proper work of the Department.
D. Background of the Proposal
The existing regulatory framework addressing waste oil recycling is confusing and inconsistent. This is because the regulations pertaining to waste oil recycling are scattered throughout the hazardous and residual waste regulations.
The following examples illustrate the problem. Only § 261.3(h) (relating to definition of hazardous waste) states that characteristically hazardous waste oil being recycled by means other than burning is to be managed as a residual waste. Conversely, waste oil that is a residual or characteristically hazardous waste being burned for energy recovery is managed under Chapter 266, Subchapter E (relating to burning of waste oil for energy recovery). The burning of residual waste oil for energy recovery is also subject to the requirements of § 287.102(g) (relating to permit by rule, waste oil energy recovery). Some of the residual waste permit by rule requirements are more stringent than the Chapter 266, Subchapter E requirements.
To eliminate this confusion and inconsistency in standards, the Board is proposing to place all regulations addressing waste oil recycling into a separate chapter. These waste oil recycling regulations will apply to the collection, storage, transportation, processing, rerefining and burning for energy recovery of waste oil. Though placed in Part I, Subpart C, Article IX (relating to residual waste management), these regulations will also apply to the recycling of waste oil that is a hazardous waste solely due to a characteristic.
This proposal also aligns the Department's hazardous waste program more closely to the Federal hazardous waste management program. The United States Environmental Protection Agency (EPA) is directed by section 3014 of the Resource Conservation and Recovery Act (42 U.S.C.A. § 6935) (RCRA) to develop, as part of its hazardous waste management program, standards for the handling and management of recycled used oil. These regulations may not discourage the recovery or recycling of used oil consistent with the protection of human health and the environment. Facilities operating under these regulations are deemed to have a RCRA Subtitle C permit for the storage or treatment of hazardous waste. See 42 U.S.C.A. § 6935. The EPA's used oil regulations are a permit by rule for the storage and treatment of used oil.
On September 10, 1992, the 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 solely 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 used oil recycling standards. This is because the Commonwealth received authorization approximately 6 years prior to the promulgation of the EPA's used oil recycling chapter. Once the proposed waste oil recycling regulations are adopted as a final rule, the Department will be able to add the EPA's used oil recycling standards to its authorized program.
In developing these proposed amendments, the Department met several times with an ad hoc group of waste oil recycling companies. This group provided invaluable input on many issues addressed by the proposed amendments. While the proposal does not contain all of the changes suggested by this group, there was consensus that the proposal significantly improves the existing regulations.
The proposed amendments were also reviewed by the Solid Waste Advisory Committee (SWAC). In November 1997 and January 1998, SWAC endorsed the proposed amendments for EQB consideration.
E. Summary and Purpose of Proposed Rulemaking
This proposed rulemaking was developed in response to the Department's Secretary's Regulatory Basics Initiative (RBI) and the Governor's Executive Order 1996-1 (Regulatory Review and Promulgation) which required all agencies to reevaluate existing regulations based on the following criteria: (1) agency requirements are no more stringent than standards imposed by Federal law unless justified by a compelling and articulable Pennsylvania interest or authorized by State law; (2) requirements are eliminated which are no longer necessary or redundant; (3) performance-based requirements are encouraged; (4) new green technologies are encouraged; (5) a pollution prevention approach is supported; and (6) information is prepared in plain, simple, clear and concise language.
The need for a single chapter addressing the recycling of residual and characteristically hazardous waste oil was identified as a result of the RBI review of the hazardous and residual waste regulations. This proposal is based on and is largely identical to the EPA's used oil regulations. The following summary will identify the differences and explain the reason for each difference.
Subchapter A. Definitions.
Proposed § 298.1 (relating to definitions) defines terms specifically for the waste oil recycling regulations. The terms defined in the Department's hazardous waste and storage tank regulations will have the same meaning when used in this chapter. Most of the terms and definitions are identical to those found in the EPA's regulations. The following summary identifies those terms or definitions which differ from the EPA's terms or definitions and explains the reason for each difference.
Waste oil
The proposed amendments use the term ''waste oil'' when the EPA regulations use the term ''used oil.'' This is primarily a difference in terminology and not definition.
This difference of terms is necessitated by differences between Commonwealth and Federal law. The Pennsylvania Used Oil Recycling Act narrowly defines ''used oil'' as petroleum or synthetic based oil used to lubricate an internal combustion motor or a motor vehicle's transmission, gears or axles which have become unsuitable for their original purpose due to contamination or loss of properties through handling, storage or use. See 58 P. S. § 473. In contrast, RCRA and the EPA's regulations broadly define used oil as oil refined from crude or synthetic oil which has been contaminated through use. See 42 U.S.C.A. § 6903(36) (relating to definitions) and 40 CFR 279.1 (relating to definitions).
To resolve this problem, the proposed amendments, like the existing regulations, use the term ''waste oil'' in place of ''used oil.'' To ensure that the proposed amendments have the same scope as the EPA's regulations, the definition for waste oil includes the Federal and State law definitions for ''used oil.''
Tanks
The definition for tank in the proposed amendments is essentially identical to the EPA's definition. In both cases, a tank is a stationary device used to hold waste or used oil, respectively. The difference lies in the material that the tank is composed of. The EPA allows the tank to be made out of any nonearthen material, including wood. The proposed amendments do not allow the use of wooden tanks. In the Department's experience, wooden tanks are significantly more prone to leakage than tanks made out of other nonearthen materials.
Waste oil processing
The proposed amendments use the term ''waste oil processing'' when the EPA uses the term ''processing.'' This is merely a difference in terminology needed to avoid confusion with a term defined by State law. Under the act, processing is any technology used to reduce the volume of municipal or residual waste or to convert all or part of that waste for offsite reuse. Processing facilities include transfer, composting and resource recovery facilities. See 35 P. S. § 6018.103. In contrast, under the EPA's used oil regulations, processing is a chemical or physical operation designed to produce a product from used oil or make it more amenable for production. Therefore, the proposed regulations use the term ''waste oil processing'' rather than ''processing'' to avoid confusion with the broad concept of processing found in the act.
Waste oil transfer facility
Under the proposed amendments, a waste oil transfer facility is any transportation related facility, such as loading dock or parking area, that receives or holds waste oil in the normal course of business. This definition differs from the EPA's definition in several ways. First, the EPA's definition of ''used oil transfer facilities'' only includes those transportation related facilities where waste oil is held for at least 1 day and not more than 35 days. If the used oil is held for more than 35 days, the facility is regulated as a used oil processing facility. Secondly, the EPA's definition includes areas where used oil is stored prior to onsite processing by a generator. The reasons for these differences in definitions derives from requirements of State law and differences in how the waste oil regulations work.
Eliminating the minimum holding time and expanding the definition to all areas where waste oil is received is mandated by State law. The act defines a transfer facility as any facility that receives residual or municipal waste for transfer or processing. There is no minimum limit on the amount of time that the waste is to be held at the transfer facility. Since much of the waste oil going through waste oil transfer facilities is a residual waste, there can be no minimum holding time requirement and the waste oil transfer facility must include all areas where the waste oil is received.
The 35-day limit on holding waste oil was eliminated as an unnecessary restriction given how waste oil transfer facilities will be regulated. As explained previously, the EPA's used oil regulations act as a PBR for the storage or treatment of used oil. As with any other PBR, the EPA cannot modify the used oil transfer facility PBR on a case-by-case basis to address the increased risks posed by storing waste oil for an extended period of time. In addition, used oil transfer facilities are not covered by a bond. In contrast, and as explained as follows, waste oil transfer facilities will be regulated by an individual or general permit and secured with a bond. The permit conditions and bond amount will address the increased risks and liabilities associated with waste oil transfer facilities that hold waste oil for more than 35 days.
Finally, the waste oil transfer facility definition does not include the reference to areas where waste oil is stored prior to certain waste oil processing activities conducted by a generator. This was done to eliminate confusion and ambiguity from the regulations and to ensure that the waste oil regulations will not be unnecessarily interpreted to be more stringent than the EPA's used oil regulations. The activities in question are a limited set of onsite waste oil processing activities to be authorized by a PBR rather than a waste oil processing permit. Including in the waste oil transfer facility definition a reference to storage areas at generators conducting authorized onsite processing activities creates the implication that a generator conducting one of these onsite processing activities is now operating a facility subject to regulation as a waste oil transfer facility. However, the EPA never intended to subject these generators to the more stringent transfer facility regulations.
In amending the definition for used oil transfer facilities to include storage areas prior to certain onsite used oil processing activities, the EPA did not intend to turn these generator sites into transfer facilities. Instead, the EPA merely wanted to make it clear that a transfer facility which received used oil from field equipment, filtered the used oil and then returned it to the field equipment would not be regulated as a used oil processing facility. See 59 FR 1005 (March 4, 1994). As explained as follows, the waste oil transfer facilities regulations make it clear that these activities can occur at a waste oil transfer facility. Therefore, eliminating this reference from the definition for waste oil transfer facility will eliminate confusion and ambiguity from the regulations and have no effect on whether the waste oil regulations are more or less stringent than the used oil regulations.
Subchapter B. Applicability
This subchapter specifies when waste oil and materials containing waste oil are to be managed under this chapter, managed as a residual or hazardous waste, or not managed as a waste. Most of the applicability standards are found in § 298.10 (relating to applicability). Special standards for waste oil being burned for energy recovery are found in § 298.11 (relating to waste oil specifications).
§ 298.10 Applicability
Waste oil
Except as otherwise provided in this section or § 298.11 (relating to waste oil specifications), this chapter applies to the management of waste oil. It applies even if the waste oil exhibits a hazardous characteristic identified in Chapter 261, Subchapter C (relating to characteristics of hazardous waste). These proposed amendments presume that waste oil is to be recycled unless the waste oil is being disposed of or shipped to someone for disposal.
Mixtures of waste oil and listed hazardous waste
The proposed waste oil amendments do not apply to mixtures of waste oil and listed hazardous waste. These mixtures are a listed hazardous waste to be managed under the hazardous waste regulations. To ensure against mixing of waste oil and listed hazardous waste, the proposed amendments retain the EPA's rebuttable presumption that waste oil containing more than 1,000 ppm total halogens is a hazardous waste because it was mixed with a listed halogenated hazardous waste.
This presumption can be rebutted in a number of ways. One obvious approach is to demonstrate that the halogens were in the oil as manufactured; for example, some lubricating oils contain more then 1,000 ppm total halogens. Another approach is to demonstrate that the halogens come from a waste that is exempt from regulation as a hazardous waste; for example, household waste. The analytical presumption can also be rebutted by using an appropriate analytical method to demonstrate that the waste oil does not contain significant levels of hazardous halogenated constituents, that is chlorinated solvents.
If an analytical method is used, the critical question becomes what is a significant level of a hazardous halogenated constituent. The Department agrees with the EPA's approach to addressing this issue. When individual hazardous solvents are present at very low levels, (for example 100 ppm) it is extremely difficult to identify the source of contamination, and mixing with a hazardous waste cannot be presumed. Whether higher levels of halogens (100 to 1,000 ppm) indicates that mixing has occurred depends on the circumstances of individual cases. See 50 FR 49212 and 49213 (November 29, 1985).
Of course, under certain circumstances, showing that the halogenated constituent is present in low levels will not rebut the presumption of illegal mixing. For example, it is doubtful that the presumption would be rebutted if waste oil used to lubricate manufacturing equipment having more than 1,000 ppm total halogens was shown to contain 25 ppm chlordane, a chlorinated halogenated pesticide that is listed as a hazardous waste. This is because waste lubricating oil should not contain chlordane, so that its presence indicates that the waste oil was intentionally mixed with a listed hazardous waste.
There are two circumstances when the rebuttable presumption is not applicable. The rebuttable presumption does not apply to metal working oils/fluids containing chlorinated paraffins if the oils are reclaimed under an appropriate tolling agreement. As explained below, § 298.24(c) (relating to offsite shipments) specifies what is an adequate tolling agreement. The reclaimed oils must be returned to the person who generated the waste oil. The rebuttable presumption also does not apply to waste oil from refrigeration units contaminated with chlorofluorocarbons (CFCs) provided the CFCs are destined for reclamation. This exemption is lost if the waste oil is mixed with waste oil from other sources.
Mixtures of waste oil and characteristically hazardous waste
The proposed waste oil amendments apply only to mixtures of waste oil and hazardous waste that is hazardous solely due to the characteristic of ignitability. For the mixture to be managed as waste oil, it must not exhibit the characteristic of ignitability. As with the Department's existing regulations, and unlike the EPA's used oil regulations, the proposed waste oil amendments will not apply to mixtures of waste oil and all other characteristically hazardous wastes. There are several reasons for excluding mixtures of waste oil and nonignitable characteristically hazardous waste.
To begin with, allowing mixtures of waste oil and hazardous waste to be managed as waste oil runs counter to the Department's pollution prevention efforts. Allowing generators to get rid of their hazardous waste by mixing it with waste oil significantly reduces their incentive to adopt source reduction strategies to minimize the amount of hazardous waste they generate.
More importantly, in the Department's experience, allowing mixtures of waste oil and nonignitable characteristically hazardous waste to be managed as waste oil will not protect the environment or the public's health, safety or welfare. This is because merely diluting the hazardous waste with waste oil to eliminate the hazardous characteristic does not eliminate or neutralize the hazardous constituents. As a result, given the myriad methods for reprocessing waste oil and using waste oil derived products, there is the distinct risk that the hazardous constituents in the waste oil will harm the public or the environment.
Of particular concern is the recycling of these mixtures by burning for energy recovery. The criteria used by the EPA and the Department for determining whether waste oil can be burned as virgin fuel oil will not detect the wide variety of hazardous constituents that can occur in these mixtures. Even if these mixtures are to be burned in a boiler or industrial furnace, it will be impossible to establish appropriate air quality limits because there is no way the Department and the burner can know all the types of hazardous waste that may have been disposed of in the waste oil.
CESQG generated mixtures of waste oil and hazardous waste
Unlike the EPA's used oil regulations and the Department's existing regulations, the waste oil regulations will not allow a conditionally exempt small quantity generator (CESQG) to mix any type of hazardous waste oil with its waste oil and have the mixture or its products burned for energy recovery as waste oil. As with mixtures of waste oil, and characteristically hazardous waste which do not exhibit the hazardous characteristic, allowing CESQG generated mixtures of hazardous waste and waste oil to be recycled as waste oil undercuts the Department's pollution prevention efforts and will not be protective of the public's health, safety, welfare or the environment. In particular, allowing CESQGs to mix any type of hazardous waste and waste oil and have it recycled as waste oil poses a more significant risk to the public's health, safety, welfare and the environment than the mixtures of non-ignitable characteristically hazardous waste and waste oil discussed above. This is because the CESQG mixture could either contain a listed hazardous waste or still exhibit the hazardous waste characteristic. As previously explained, there is no assurance that the recycling process, be it reprocessing, rerefining or burning for energy recovery, will neutralize the hazardous constituents which will exist in the waste oil.
In addition, allowing CESQG generated mixtures of waste oil and any type of hazardous waste to be managed as waste oil makes compliance assurance difficult. In the Department's experience, waste oil transporters and processors/rerefiners accept waste oil from CESQGs along with waste oil from all other generators. As a result, if the waste oil contains more than 1,000 ppm total halogens, it is very difficult to determine whether someone other than a CESQG has mixed hazardous waste with its waste oil.
This difference in how the EPA used oil regulations and the proposed waste oil amendments address CESQG generated mixtures of waste oil and hazardous waste stem from a fundamental difference in how CESQG hazardous waste is regulated. The EPA exempts CESQG generated hazardous waste from regulation as a hazardous waste. In contrast, the Commonwealth, through the Department's regulations, has always recognized that CESQG generated hazardous waste is still hazardous and should be disposed of or treated at a permitted hazardous waste facility. In a recent set of amendments to the hazardous waste regulations, the EQB had proposed to allow CESQG hazardous waste to be disposed at municipal or residual waste facilities. In response to concerns from the Legislature and commentators, that proposal was withdrawn and replaced with a commitment not to allow CESQG hazardous waste to be disposed at a municipal or residual waste facility. See 27 Pa. B. 237 (January 11, 1997).
Materials containing or otherwise contaminated with waste oil
A material containing or otherwise contaminated with waste oil is managed under this chapter as waste oil. This waste oil contaminated material can be burned for energy recovery in accordance with this chapter. Once the waste oil is drained or removed to the extent practical from the contaminated material, it ceases to be waste oil. In general, the test for determining whether the waste oil has been drained or removed from the contaminated material is that there is no visible waste oil in or on the material. Unless it is to be disposed, the waste oil drained or removed from the contaminated material will be managed under these waste oil regulations. The remaining material is managed as a municipal, residual or hazardous waste.
Unlike the EPA's used oil regulations, the proposed waste oil regulations contain a special standard for wastewaters containing or contaminated with waste oil. Wastewaters that contain at least 1% recoverable waste oil is waste oil to be managed under this chapter. For wastewaters containing less than 1% waste oil to be managed as waste oil, the operator shall demonstrate that it can recover marketable quantities of waste oil from the contaminated wastewaters.
This special rule is being established because in the Department's experience the no visible waste oil test does not apply to the reclamation of waste oil from wastewater. When wastewater contains less than 1% waste oil, it is difficult to determine whether the waste oil processor is removing the waste oil and recycling it or using its wastewater treatment system to dispose of the waste oil along with the wastewater or with the sludge removed from the wastewater. This special requirement for wastewaters containing less than 1% recoverable waste oil is appropriate because the person claiming that it is recovering waste oil is the only one capable of establishing that the waste oil is actually being recycled.
The differences between the EPA's waste regulations and the Department's waste regulations also explain why the waste oil regulations have this special rule. Except for the used oil regulations, the EPA's hazardous and industrial waste regulations do not apply to wastewaters containing used oil. Therefore, regulating all wastewater with visible oil (an oily sheen) as used oil represents an increase in regulation by the EPA. On the other hand, the Department's existing residual waste regulations already apply to wastewaters containing waste oil. These existing regulations are more appropriate for the management of wastewaters containing small amounts of waste oil which are not being recycled.
Mixtures of waste oil and products
Mixtures of waste oil and fuels or fuel products are managed as waste oil. The only exceptions are mixtures of waste oil and diesel fuel. This mixture is not a regulated waste if the waste oil generator is creating the mixture for use in its own vehicles. Prior to mixing, the waste oil shall be managed in accordance with Subchapter C (relating to generator standards).
Materials derived from waste oil
A material derived from waste oil that is beneficially used is not a waste if it is neither burned for energy recovery nor used in a manner constituting disposal. The EPA's used oil regulations do not contain any standards or procedures for determining when materials derived from waste oil are being beneficially used and are not a waste. In contrast, the proposed waste oil regulations require this determination to be made as a special condition to the permit for the waste oil processing/re-refining facility producing the product.
As explained as follows, waste oil processing/rerefining facilities must be authorized by a permit issued under Chapter 287 (relating to residual waste management--general provisions). Since 1992, the standards and procedures in this chapter have been used to make the determination that a material derived from a residual waste can be deregulated--for example, dewasting determinations or beneficial use permits. The Department has already issued a number of waste oil processing permits which include conditions determining certain materials derived from waste oil not to be a waste or to be beneficially used. Given the risks to the environment and the public's welfare from the misuse of materials derived from waste oil, there is no sound reason for treating these materials differently from any other material derived from a residual waste.
If the material derived from the waste oil is to be burned for energy recovery--for example, waste oil fuels--it is subject to the proposed waste oil regulations. Materials derived from waste oil that are to be used in a manner constituting disposal are not waste oil and are managed either as a residual or hazardous waste. For example, waste oil being used as a dust suppressant is a use constituting disposal. It should be noted that using waste oil as a dust suppressant is expressly prohibited by the hazardous waste regulations and will not be authorized under the residual waste regulations. Finally, rerefining distillation tank bottoms used as to make asphalt will not be regulated as waste oil.
Wastewaters
The proposed waste oil regulations do not apply to waste waters containing de minimis quantities of waste oil if the waste waters are being discharged under a National Pollutant Discharge Elimination System permit or under a pretreatment plan. For the purposes of this section, de minimis quantities of waste oil are small unintentional discharges from equipment in normal operation or small quantities of waste oil lost to the wastewater treatment system. This exception does not apply to large leaks or spills or to waste oil recovered from wastewater treatment systems.
Waste oil introduced into crude oil pipelines or a petroleum refining facility
The proposed waste oil amendments do not apply to mixtures of waste oil and crude oil or natural gas liquids that are to be inserted into a crude oil pipeline. However, prior to mixing, the management of the waste oil is subject to the proposed amendments.
The proposed waste oil amendments do not apply to the storage or transportation of mixtures of waste oil with crude oil or natural gas, containing less than 1% waste oil that are to be inserted into the refining process prior to distillation or catalytic cracking. Also, waste oil inserted into the refining process prior to distillation or catalytic cracking is not subject to regulation if no more than 1% of the feed stock going to any unit at any time contains waste oil. In addition, waste oil meeting the specifications of § 298.11(b) inserted into the refining process after distillation or catalytic cracking will not be subject to the proposed amendments. Prior to insertion into the refining process, the waste oil will be subject to the proposed amendments. Finally, waste oil incidentally recovered from a hydrocarbon recovery unit or wastewater treatment unit and returned to the refining process will not be subject to these proposed amendments.
Waste oil on vessels
Waste oil generated on vessels from normal shipboard operations is not subject to regulation as waste oil until it is brought ashore.
Waste oil containing PCBs
The proposed waste oil amendments will apply to the recycling of waste oil containing less than 50 ppm polychlorinated biphenyls (PCBs). If the waste oil contains 50 ppm or more PCBs, its recycling is exclusively regulated under the Toxic Substances Control Act (15 U.S.C.A. §§ 2901--2916) and 40 CFR Part 761 (relating to polychlorinated biphenyls (PCBs) manufacturing, processing, distribution in commerce and use prohibitions). Waste oil containing less than 50 ppm PCBs which is being recycled by burning for energy recovery will be subject to these proposed regulations as well as TSCA and 40 CFR 761.20(e) (relating to prohibitions).
§ 298.11. Waste oil specifications
The proposed waste oil amendments contain two special applicability rules for waste oil being burned for energy recovery. These rules specify the minimum heat value for the waste oil being burned for energy recovery and limits on certain contaminants which, if satisfied, allow the waste oil to be burned as if it was not a waste.
Unlike the EPA's used oil amendments, the proposed waste oil regulations require waste oil being burned for energy recovery to contain at least 8,000 Btus per pound. This rule applies whether or not the waste oil is to be burned under this chapter. If the waste oil contains less than 8,000 Btus per pound, the waste oil is being incinerated as a hazardous or residual waste, rather than being burned for energy recovery.
The Department's regulations for burning waste oil for energy recovery have always contained the 8,000 Btu per pound limit. See § 266.40(b)(2) (relating to applicability). In the Department's experience, the Btu restriction, being equivalent to wood or low grade coal, provides some assurance that materials containing or otherwise contaminated with waste oil are actually being burned for energy recovery and not disposal.
This proposed regulation retains the on/off specification table. Except for some recordkeeping requirements, on-specification waste oil being burned for energy recovery is not subject to regulation as a waste and can be substituted for a virgin fuel oil.
The on/off-specification table was established by the EPA in 1985, 50 FR 49164 (November 29, 1985). The limits in the table identify those contaminants the EPA believes are likely to occur in waste oil at levels to be protective of public health in urban settings. These contaminants are: arsenic-5 ppm. max., cadmium-2 ppm. max., chromium-10 ppm. max., lead-100 ppm max., flash point-100 f min, total halogens-4,000 ppm. max. Except for total halogens, the proposed waste oil on/off-specification table is identical to EPA's on/off specification table.
The existing limit of 1,000 ppm total halogens has been retained to protect the health and property of individuals using on-specification waste oil as home heating fuel oil. When chlorinated halogens are burned, they produce hydrochloric acid which can damage the burner resulting in incomplete combustion and the generation of more pollutants. In developing its limit for used oil, the EPA did not consider home heating systems. It was assumed that on-specification waste oil would be burned in small non-industrial boilers used in businesses and apartment buildings. These boilers are largely converted coal burners that were designed to withstand the corrosive effects of burning high chlorine coal. The 4,000 ppm limit was selected because heating fuel oil containing 4,000 ppm total halogens will generate the same quantity of hydrochloric acid as the comparable quantity of high chlorine coal. See 50 FR at 49164. Unfortunately, the EPA's assumption ignores the fact that on-specification used/waste oil can be substituted for virgin home fuel oil. For the most part, home oil heating systems are not converted coal burners and were not designed to withstand the corrosive effects of burning high chlorine coal. In the Department's experience, the 1,000 ppm limit is more appropriate for protecting home oil burners.
An alternative approach for addressing this problem is to include in the on/off specification two limits for total halogens. A limit of 1,000 total halogens will be applicable to waste oil being burned for energy recovery as home heating fuel. The limit of 4,000 total halogens will be applicable for all other methods of energy recovery. The EQB is requesting comments on this alternative approach.
§ 298.12. Prohibitions
This section contains a number of prohibitions concerning the management or use of waste oil. Waste oil cannot be stored in surface impoundments or waste piles unless the storage unit is authorized by a hazardous waste permit. Also, waste oil cannot be used as a dust suppressant. Finally, off specification waste oil can be burned only in authorized boilers, industrial furnaces, space heaters and hazardous waste incinerators.
Subchapter C. Standards for Waste Oil Generators
Subchapter C establishes who is subject to regulation as a waste oil generator, as well as the applicable management and recordkeeping requirements.
§ 298.20. Applicability
General rule.
In general, a waste oil generator is the person who generates waste oil or who first causes it to be subject to regulation. There are several exceptions to this rule. The following individuals and entities are not generators: (1) farmers who generate less than an average of 25 gallons a month from their equipment; (2) household do-it-yourselfers; and (3) vessels at port or sea, (however, once the waste oil comes ashore, the vessel and receiving person are joint generators).
The proposed waste oil regulations do not continue to exempt from regulation as generators businesses which generate waste lubricating oils from internal combustion engines or vehicles. This exemption was established by the Pennsylvania Used Oil Recycling Act. RCRA and its implementing regulations preempt all less stringent State laws. See 42 U.S.C.A. § 6929. Therefore, the EPA's definition for used ''oil generators'' which includes businesses that generate waste lubricating oil from internal combustion engines and vehicles, preempts this aspect of the Pennsylvania Used Oil Recycling Act.
Other Applicable Provisions
Waste oil generators must dispose of their waste oil in accordance with either the other provisions of the residual waste regulations or the hazardous waste regulations. Except as provided for in this subchapter, waste oil generators who transport, process/rerefine, burn for energy recovery or market waste oil or first declares the waste oil to be on-specification shall comply with the other subchapter addressing that activity. Section 298.24(a) and (b) (relating to offsite shipments) authorizes waste oil generators to transport small quantities of their waste oil and do-it-yourselfer waste oil to a waste oil collection center or aggregation point. Section 298.23 (relating to onsite burning in space heaters) authorizes waste oil generators to burn small quantities of their off-specification waste oil in a space heater. Waste oil generators who use mist collectors to remove small droplets of waste oil from the air are not waste oil processors if the waste oil is not being shipped offsite to be burned for energy recovery.
There are three types of waste oil onsite processing activities which a waste oil generator can conduct under a PBR rather than a permit issued under Subchapter F (relating to standards for waste oil processors/rerefiners). These onsite processing activities are: (1) the reconditioning of waste oil for the generator's reuse; (2) separating waste oil from wastewater to make the wastewater acceptable for discharge; and (3) removing waste oil from materials containing or otherwise contaminated with waste oil.
For the PBR to be applicable, regardless of the type of processing activity, the waste oil generator must be processing only waste oil generated onsite and the waste oil cannot be shipped offsite to be burned for energy recovery. If the waste oil generator is reconditioning waste oil or removing waste oil from materials containing or otherwise contaminated with waste oil, the remaining wastes must be managed in accordance with the act and the applicable regulations and the processing activity can not adversely affect the environment or the public's health, safety or welfare. If the waste oil is being separated from wastewater to make it more acceptable for discharge, the waste oil must have been generated onsite; the wastewater was either treated onsite or at a previously interconnected facility; the discharge from the facility is in compliance with its National Pollutant Discharge Elimination System permit; and the facility has an hazardous waste identification number; the facility is regularly inspected and maintained; a hazardous waste operating report for the facility is maintained; the hazardous waste quarterly facility reports are submitted; and the facility complies with Chapter 265, Subchapter Q (relating to chemical, physical and biological treatment).
These PBRs do not establish new requirements. The existing regulations require generators, including waste oil generators, to conduct onsite processing/reclamation activities under a written permit or a PBR. See for example, 25 Pa. Code § 287.102 (relating to permit by rule), § 265.433 (relating to wastewater treatment) and Chapter 266, Subchapter H (relating to onsite reclamation). If anything, the proposed PBRs for the reconditioning and removal of waste oil are less stringent than the existing applicable PBRs.
These PBRs are more stringent than their EPA used oil counterparts. The EPA's used oil regulations only require the waste oil to be generated onsite and the waste oil cannot be shipped offsite to be burned for energy recovery. The EPA regulations do not address the risks from mishandling the waste oil which are posed when the processing activity is conducted by the waste oil generator or someone else. The PBR addresses onsite management of waste oil.
Recordkeeping
In the Department's experience, it is very difficult to determine whether a particular load of waste oil has been improperly mixed with hazardous waste unless the generator has maintained on record basic information concerning the oil used and how it became a waste. This chapter was drafted to respond to concerns raised by the ad hoc waste oil recycling industry group that without basic information concerning the waste oil and how it was generated, it is difficult for waste oil recyclers to determine whether a particular load of waste oil has been improperly mixed with hazardous waste. Therefore, even though the EPA's used oil regulations do not have generator recordkeeping requirements, the proposed waste oil regulations will require waste oil generators to keep for 5 years records concerning their waste oil. These records shall identify the type of oil being used, the process generating the waste oil, all tests and the results thereof used for determining whether the waste oil contains more than 1,000 ppm total halogens, any information used to rebut the presumption that the waste oil was improperly mixed with a hazardous waste and the type and quantity of any characteristically ignitable hazardous waste mixed with the waste oil when the resulting mixture did not exhibit the characteristic of ignitability.
§ 298.21. Hazardous waste mixing
Waste oil generators must follow the mixture rules of § 298.10(b). In other words, mixtures of waste oil and hazardous waste is a hazardous waste and shall be managed as such. The only exemption to this prohibition is for mixtures of waste oil and characteristically ignitable hazardous waste where the mixture does not exhibit the characteristic of ignitability. In addition, waste oil generators are subject to the rebuttable presumption that waste oil containing more than 1,000 ppm total halogens is a hazardous waste because it has been mixed with a listed hazardous waste.
§ 298.22. Waste oil storage
Waste oil generators may use tanks, containers or other units subject to the Department's hazardous waste regulations to store waste oil. Underground storage tanks used to hold waste oil, even characteristically hazardous waste oil, are subject to the Department's storage tank regulations in Chapter 245 (relating to administration of storage tank and spill prevention program) including corrective action. Aboveground tanks and containers shall be leak free and in good condition, for example, structurally sound. Field pipes conveying waste oil to underground tanks, aboveground tanks and containers shall be identified with the words ''waste oil.'' The waste oil generator shall comply with the applicable hazardous waste regulations concerning spill prevention, control and counter measures. For releases of waste oil not subject to the underground tank corrective action requirements of Chapter 245, Subchapter D, the generator shall stop and contain the leak, clean up all spill waste oil and contaminated material and repair or replace any leaking containers.
§ 298.23. Onsite burning in space heaters
Waste oil generators are deemed to have a PBR to burn waste oil. To be eligible for this PBR, the space heater can only burn waste oil generated by the heater's owner/operator or by household do-it-yourselfers; the heater can have a maximum design capacity of .5 million Btus per hour, and be vented to the ambient air.
§ 298.24. Offsite shipments
Except as provided for in this section, waste oil generators shall use a transporter who has an EPA identification number to transport their waste oil. The generator shall certify to the transporter that, except for mixtures of waste oil and ignitable characteristically hazardous waste which no longer exhibits the characteristic of ignitability, the waste oil has not been mixed with a hazardous waste.
Under the following criteria, a generator can transport waste oil without using a transporter holding an EPA identification number. The generator can transport up to 55 gallons of its own waste oil or do-it-yourselfer waste oil to an authorized collection center by means of a vehicle owned by the generator or one of its employes. The generator shall certify to the owner/operator of the collection center that, except for mixtures of ignitable characteristically hazardous waste which do not exhibit the characteristic of ignitability, hazardous waste has not been mixed with the waste oil. Alternatively, a generator can transport to its own offsite aggregation point up to 55 gallons of its own waste oil in a vehicle owned by the generator or one of its employes. Finally, the generator can arrange, by means of a tolling agreement, to have its waste oil reclaimed and have the processor/rerefiner return to the generator reclaimed waste oil to be used as a lubricant, cutting oil or coolant. This tolling agreement shall identify the frequency and type of waste oil to be shipped, require the processor/rerefiner to use its own vehicles to pickup the waste oil from the generator and to deliver the reclaimed oil to the generator, and provide for the return of reclaimed oil to the generator.
§ 298.25. Source reduction strategy
Both the hazardous and residual waste regulations require generators to perform a source reduction strategy. The proposed amendments retain this requirement. This requirement significantly furthers the Department's pollution prevention efforts. Therefore, even though there is no counterpart in the EPA's used oil regulations, waste oil generators will be required to prepare a strategy for reducing the amount of waste oil being generated. However, to remain consistent with the existing regulations, waste oil generators which generate only waste lubricating oil used in internal combustion engines or vehicles which generate less than 12,000 kgs annually of residual waste plus waste oil regulated by this chapter are not required to prepare a source reduction strategy.
This strategy shall be signed by the generator, kept on the premises, made available for inspection and upon request, a copy shall be made available to the Department. Information concerning production processes will be kept confidential if so designated by the generator. The source reduction strategy shall be updated at least every 5 years or when there is a significant change in the waste oil stream or the manufacturing process generating the waste oil.
The source reduction strategy must contain the following information. A description of the source reduction activities taken in the past 3 years (including an estimate of the resulting reduction in weight or toxicity of the waste oil) shall be included. If the generator is planning to adopt further source reduction programs, the report shall identify the measures to be taken, when the measures are to be implemented and the projected reduction in the weight or toxicity of the waste oil being generated. If the waste oil generator is not planning to institute any new source reduction measures, the report shall characterize the waste oil stream. This characterization shall include an analysis of the waste oil stream, an identification of the waste oil source, an estimate of generation rates and a description of management techniques and costs. In addition, the report shall describe the options considered, how the options were evaluated and explain why they were rejected.
§ 298.26. Biennial reports
To administer the waste programs, the Department needs basic information identifying the amount of waste generated in this Commonwealth and how it is being processed, treated or disposed. As a result, both the residual and hazardous waste regulations require generators to submit biennially a report identifying the generator, describing the waste generated and identifying how their waste was processed, treated or disposed. The Department believes that this information is essential. Therefore, even though the EPA's used oil regulations have no counterpart to this requirement, the proposed waste oil regulations retain the requirement that generators submit this type of biennial report. However, to remain consistent with the existing regulations, waste oil generators which generate only waste lubricating oil used in internal combustion engines or vehicles or which generate less than 12,000 kgs annually of residual waste plus waste oil regulated by this chapter are not required to prepare a source reduction strategy.
Subchapter D. Standards for waste oil collection centers and aggregation points
This subchapter contains the standards applicable to waste oil collection centers and aggregation points. Unlike the EPA's used oil regulations, this subchapter does not have separate standards for do-it-yourselfer waste oil collection centers. There are two reasons for this. The EPA's minimal standards for do-it-yourselfer waste oil collection centers are less stringent than the requirements of section 6 of the Pennsylvania Used Oil Recycling Act (58 P. S. § 476). In addition, in the Department's experience, the EPA's standards are not protective of the environment or the public's health, safety and welfare. Since 1992, § 287.102(d) (relating to permit by rule) has authorized facilities to collect, store and aggregate waste lubricating oil from internal combustion engines and vehicles. To the extent this type of waste oil is generated by households, it is the type of used oil covered by the EPA as do-it-yourselfer used oil. The requirements found in § 287.102(d) should continue to be the basis for authorizing facilities to accept do-it-yourselfer waste oil.
§ 298.30. Waste oil collection centers
Waste oil collection facilities are limited to accepting, aggregating and storing waste oil from generators regulated under Subchapter C which are brought by the generator in shipments that do not exceed 55 gallons. In addition, the center can accept do-it-yourselfer waste oil including waste oil filters. The operation of these facilities can be authorized by a PBR. To qualify for the PBR, the facility must be a State inspection facility, an oil retailer, service station or a facility owned by a municipality, State agency or nonprofit organization. In addition, the operator shall: (1) comply with the applicable generator requirements of Subchapter C, that is § 298.23 (relating to storage); (2) maintain waste oil tanks with a sufficient capacity to hold incoming waste oil and that are protected or sheltered so as to prevent leakage of waste oil into the environment; (3) have in close proximity to the waste oil tank collection facilities for holding the waste oil containers prior to disposal; (4) only accept waste oil; (5) be designed, constructed and operated to prevent any hazardous waste generated onsite from being mixed with the waste oil; and (6) have a method for ensuring that the only waste oil received at the facility that contains more than 1,000 ppm total halogens is do-it-yourselfer waste oil.
The EPA's used oil regulations mandate the limit on the types of waste oil the collection center can accept, the activities that can occur at the collection center and the necessity for complying with the generator standards of Subchapter C. The EPA also requires these collection facilities to be authorized by the State or other governmental unit to manage used oil. In the Department's experience, the other requirements in this section are necessary to ensure the proper management of waste oil at a waste oil collection center. Most of these additional requirements are not new; they are contained in § 287.102(d). The requirements relating to preventing the operator from improperly mixing hazardous waste and waste oil and only accepting waste oil with more than 1,000 ppm from do-it-yourselfers are new. These requirements have been developed in response to the experience of waste oil transporters, rerefiners and the Department in determining whether a load of waste oil from a collection center has been improperly mixed with a hazardous waste.
§ 298.31. Used oil aggregation points
Waste oil aggregation points are facilities that accept, aggregate and store waste oil only from other waste oil generation sites owned or operated by the same person who owns or operates the waste oil aggregation point. The waste oil has to be transported by the generator in shipments of no more than 55 gallons. The waste oil aggregation point can also accept do-it-yourselfer waste oil. These facilities can be authorized by a PBR. To qualify for the PBR, the facility shall comply with the waste oil generator standards of Subchapter C, that is § 298.23 (relating to storage), have waste oil tanks of sufficient capacity to accept the incoming waste oil that are sufficiently protected to prevent leakage of the waste oil into the environment and have in close proximity to the waste oil tanks and facilities for collecting waste oil containers for disposal. The requirement that the facility comply with the generator standards of Subchapter C is mandated by the EPA. Waste oil aggregation points pose the same risk of spillage or leakage of waste oil into the environment as posed by waste oil collection centers. Therefore, operators of waste oil aggregation points will be subject to the same requirements pertaining to the capacity of waste oil tanks, the prevention of leaks from waste oil tanks and location of a facility for holding used waste oil containers as those imposed on waste oil collection centers.
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