As a generator (aka:  handler) of Used Oil you have the option to manage it according to the relaxed regulatory requirements of 40 CFR 279 instead of the more stringent regulations for the management of hazardous waste.  This option is available even if the used oil meets the definition of a characteristic hazardous waste (read more about the options for management of Used Oil).  If you choose to utilize the used oil option, you should be aware of the Rebuttable Presumption and your responsibility to prove that your used oil is not a listed hazardous waste and ineligible for the used oil option.

According to 40 CFR 279.10(b)(1)(ii) a used oil containing more than 1,000 ppm total halogens (fluorine, chlorine, bromine, iodine, or astatine) is presumed to be a hazardous waste because it has been mixed with halogenated hazardous waste listed in 40 CFR 261, subpart D.  In other words, if the total concentration of halogens is determined to be above the threshold amount, it is presumed that a chlorinated solvent is present requiring the application of the F002 waste code for a spent solvent.  This presumption limits your options for management of the waste to the following:

1. Give up on rebutting the presumption and manage the used oil as a hazardous waste.
2. Determine if an exemption/exclusion from the “Rebuttable Presumption” exists (see below).
3. Demonstrate through testing, generator knowledge or some combination of both that the used oil is not a listed hazardous waste.

Remember, whether you pursue #2 or #3 of the above the burden of proof is on you.  If relying on an exemption/exclusion, ensure it applies to your operations.  If collecting a sample for analysis ensure you use the proper sampling and test methods.  And, if relying on generator knowledge of materials and processes, be sure to use reliable sources of information.  Whichever method you choose take care to document your methods, sources, and conclusions.  For further guidance on rebutting the “Rebuttable Presumption” refer to Section IV of this US EPA guidance document (905-R03-005).

You will not need to rebut the presumption if one of the following exemptions/exclusions apply to your operations:

• A metalworking oil containing chlorinated paraffins where it will be processed by reclamation through a tolling arrangement as described in 40 CFR 279.24(c).
• A used oil contaminated with chlorofluorocarbons (CFC’s) removed from refrigeration units where the CFC’s are sent for reclamation [40 CFR 279.10(b)(1)(ii)(B)].
• A mixture of used oil and TSCA-regulated PCB’s is exempt from regulation as a hazardous waste (as long as it is hazardous only for toxicity characteristic codes D018-D0043).  It may be regulated as a used oil if the PCB concentration is <50 ppm or as a TSCA-regulated PCB waste if the concentration is ≥50 ppm [40 CFR 279.10(i)].
• Used oil from a Conditionally Exempt Small Quantity Generator (CESQG) of hazardous waste may be managed as a used oil no matter the concentration of total halogens consistent with 40 CFR 261.5(j).
• A “do-it-yourselfer” used oil generator and/or farmer who generates an average of 25 gal/month or less of used oil in a calendar year are subject to the exclusion of household solid waste from the definition of hazardous waste at 40 CFR 261.4(b) and 40 CFR 279.20.(1) and (4).

The determination of halogen content must be made prior to recycling – including burning as a fuel – or re-processing and may be made by any of the following parties:

1. Used oil processors and re-refiners must make the determination of total halogen content and maintain records until plant closure.
2. Used oil transporters and transfer facilities, marketers, and burners must make the determination of total halogen content and maintain records for three years.
3. Used oil generators/handlers are not required to determine total halogen content, however, it may be helpful to make the determination in order to be able to rebut the presumption if it arises.

The presence of halogens in used oil above 1,000 ppm leads to the presumption that it is a listed hazardous waste and no longer eligible for the relaxed regulations of the used oil option.  If this occurs, the “Rebuttable Presumption” puts the burden on you to either cite the applicable exemption or rebut the presumption through a combination of testing and generator knowledge.  Be prepared to either cite the applicable exemption/exclusion or assemble the necessary information to rebut the “Rebuttable Presumption”.

The used oil regulations found at 40 CFR 279 are just one small part of the RCRA regulations that apply to any facility that generates hazardous waste.  Another aspect of the regulations require annual training for Large Quantity Generators (LQG’s) of hazardous waste.  Contact me to discuss the training you need to maintain compliance at your facility.