Safety-Kleen

June 4, 1998


RCRA Docket Information Center
Office of Solid Waste (name changed to Office of Resource Conservation and Recovery on January 18, 2009) (5305G)
U.S. Environmental Protection Agency
401 M Street, SW
Washington, DC 20460


Re:  Docket Number F-98-CUOP-FFFFF
     Comments on the Recycled Used Oil Management Standards -
     Applicability of the Used Oil Management Standards to PCB
Contaminated Used Oil

To Whom It May Concern,

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

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

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

Clarify Regulation of Recycled Used Oils Known to Contain
Diluted PCBs

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

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

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

      279.10 Applicability.
     *****

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

Clarify the Preamble with Regard to Dilution of PCBs

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

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

     III. Regulatory Amendments
     A. Applicability of the Used Oil Management Standards to
     PCB Contaminated Used Oil

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

     Table 1 shows the applicability of the RCRA and TSCA
     regulations as they pertain to used oil containing PCBs that
     is to be burned for energy recovery. Used oil that contains
     PCBs in the range of 2 ppm and greater and less than 50 ppm,
     or is known to contain 2-49 ppm material, that is burned for
     energy recovery is regulated by both the TSCA regulations at
     40 CFR 761.20(e) and the used oil management standards at 40
     CFR part 279. Please note, under the TSCA regulations at 40
     CFR 761.20(e)(2), used oil that is to be burned for energy
     recovery is presumed to contain 2 ppm or greater of PCBs
     unless shown otherwise by testing or other information. Used
     oil that is to be burned for energy recovery and has been
     shown to contain less than 2 ppm PCBs and has not been
     diluted from greater than 2 ppm, is not regulated under TSCA
     and is solely regulated under RCRA.
TABLE 1.-REGULATION OF USED OIL CONTAINING PCBS THAT IS TO BE BURNED FOR ENERGY RECOVERY UNDER 40 CFR PART 279 OF RCRA AND 40 CFR PART 761 OF TSCA
Range of actual or known to be diluted from PCB contamination levels in used oil (ppm) Does RCRA regulate this used oil if it is to be burned for energy recovery? Does TSCA regulate this used oil if it is to be burned for energy recovery?
Demonstrated to contain less than 2 and not diluted from higher concentrations Yes No.*
2 to less than 50 Yes Yes.
50 and greater No Yes
     * Used oil that is to be burned for energy recovery is
     presumed to contain 2 ppm or greater of PCBs unless shown
     otherwise by testing or other information.

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

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

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

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

We believe that the above underscored changes are consistent with
the intent and manner in which EPA has managed PCB contamination
issues.

If you have any questions regarding these comments, please
contact Gary King by telephone at (847) 468-2215, by fax at
(847)468-8535, or e-mail at gking@safety-kleen.com.

Sincerely,



Gary S. King, P.E.
Regulatory Program Manager