DEPARTMENT OF PUBLIC HEALTH AND ENVIRONMENT

Solid and Hazardous Waste Commission/Hazardous Materials and Waste Management Division

6 CCR 1007-3

hazardous waste

Amendment of the Part 279 Standards for the Management of Used Oil.

(Adopted by the Solid and Hazardous Waste Commission on February 19, 2019)

1) Revise the definition of “Petroleum refining facility” in Section 279.1 to read as follows:  

Subpart A -  Definitions

§ 279.1 Definitions.

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Petroleum refining facility means an establishment primarily engaged in producing gasoline, kerosene, distillate fuel oils, residual fuel oils, and lubricants, through fractionation, straight distillation of crude oil, redistillation of unfinished petroleum derivatives, cracking or other processes (i.e. facilities classified as SIC 2911).

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2) Remove and reserve paragraph (b)(3) of Section 279.10 to read as follows:  

Subpart B -  Applicability

§ 279.10 Applicability.

This section identifies those materials which are subject to regulation as used oil under this part.  This section also identifies some materials that are not subject to regulation as used oil under this part, and indicates whether these materials may be subject to regulation as hazardous waste under Parts 260 through 268, and Part 100 of these regulations.

(a) Used oil.  EPA presumes that used oil is to be recycled unless a used oil handler disposes of used oil, or sends used oil for disposal.  Except as provided in § 279.11, the regulations of this part apply to used oil, and to materials identified in this section as being subject to regulation as used oil, whether or not the used oil or material exhibits any characteristics of hazardous waste identified in Subpart C of Part 261 of these regulations.

(b) Mixtures of used oil and hazardous waste

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(3) Reserved.  

3) Revise paragraph (i) of Section 279.10 to read as follows:  

Subpart B -  Applicability

§ 279.10 Applicability.

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(i) Used oil containing PCBs.  Used oil containing PCBs (as defined at 40 CFR § 761.3) at any concentration less than 50 ppm is subject to the requirements of Part 279 unless, because of dilution, it is regulated under 40 CFR Part 761 as a used oil containing PCBs at 50 ppm or greater. PCB-containing used oil subject to the requirements of Part 279 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 is not subject to the requirements of Part 279, but is subject to regulation under 40 CFR Part 761. No person may avoid these provisions by diluting used oil containing PCBs, unless otherwise specifically provided for in this Part 279 or 40 CFR Part 761.  40 CFR part 761 is incorporated by reference to include those versions in effect as of the date this regulation was adopted, and does not include later amendments to the incorporated material. Materials incorporated by reference are available for public inspection during normal business hours from the Hazardous Materials and Waste Management Division, 4300 Cherry Creek Drive South, Denver, CO 80246. Copies may also be found at the Environmental Protection Agency through the Government Printing Office at https://www.govinfo.gov/app/collection/cfr/

4) Revise Section 279.11 to read as follows:

§ 279.11 Used oil specifications. 

Used oil burned for energy recovery, and any fuel produced from used oil by processing, blending, or other treatment, is subject to regulation under this part unless it is shown not to exceed any of the allowable levels of the constituents and properties shown in Table 1.  Once used oil that is to be burned for energy recovery has been shown not to exceed any allowable level and the person making that showing complies with §§ 279.72, 279.73, and 279.74(b), the used oil is no longer subject to this part.

	Table 1-‑Used Oil Not Exceeding Any Allowable Level Shown Below Is Not Subject to this Part When Burned for Energy Recovery{1} 
	Constituent/property 		Allowable level	
Arsenic
Cadmium
Chromium
Lead
Flash point
    Total Halogens	    5 ppm maximum.
    2 ppm maximum.
   10 ppm maximum.
  100 ppm maximum.
  100 EF minimum.
4,000 ppm maximum.{2}	

	{1} The allowable levels do not apply to mixtures of used oil and hazardous waste that continue to be regulated as hazardous waste (see § 279.10(b)).

	{2} Used oil containing more than 1,000 ppm total halogens is presumed to be a hazardous waste under the rebuttable presumption provided under § 279.10(b)(1).  Such used oil is subject to Subpart D of Part 267 of these regulations rather than this part when burned for energy recovery unless the presumption of mixing can be successfully rebutted.                        
	Note:  Applicable standards for the burning of used oil containing PCBs are imposed by 40 CFR § 761.20(e).

5) Revise paragraph (d) of Section 279.22 to read as follows:

§ 279.22 Used oil storage.

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(d) Response to releases.  Upon detection of a release of used oil to the environment that is not subject to the requirements of 40 CFR Part 280, Subpart F,  and which has occurred after the effective date of these regulations, a generator must perform the following cleanup steps:

(1) Stop the release;

(2) Contain the released used oil;

(3) Clean up and manage properly the released used oil and other materials; and

(4) If necessary to prevent future releases, repair or replace any leaking used oil storage containers or tanks prior to returning them to service.

Note: 40 CFR part 280, subpart F, is incorporated by reference to include those versions in effect as of the date this regulation was adopted, and does not include later amendments to the incorporated material. Materials incorporated by reference are available for public inspection during normal business hours from the Hazardous Materials and Waste Management Division, 4300 Cherry Creek Drive South, Denver, CO 80246. Copies may also be found at the Environmental Protection Agency through the Government Printing Office at https://www.govinfo.gov/app/collection/cfr/262.18

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6) Revise paragraph (c)(2) of Section 279.44 to read as follows:

§ 279.44 Rebuttable presumption for used oil.

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(c) If the used oil contains greater than or equal to 1,000 ppm total halogens, it is presumed to be a hazardous waste because it has been mixed with halogenated hazardous waste listed in Subpart D of Part 261 of these regulations.  The owner or operator may rebut the presumption by demonstrating that the used oil does not contain hazardous waste (for example, by showing that the used oil does not contain significant concentrations of halogenated hazardous constituents listed in Appendix VIII of Part 261 of these regulations).  

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(2) The rebuttable presumption does not apply to used oils contaminated with chlorofluorocarbons (CFCs) removed from refrigeration units if the CFCs are destined for reclamation.  The rebuttable presumption does apply to used oils contaminated with CFCs that have been mixed with used oil from sources other than refrigeration units.

7) Revise paragraph (h) of Section 279.45 to read as follows:

§ 279.45 Used oil storage at transfer facilities.

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(h) Response to releases.  Upon detection of a release of used oil to the environment that is not subject to the requirements of 40 CFR Part 280, Subpart F, and which has occurred after the effective date of these regulations, the owner/operator of a transfer facility must perform the following cleanup steps: 

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8) Revise paragraph (b)(6)(ii) of Section 279.52 to read as follows:

§ 279.52 General facility standards.

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(b) Contingency plan and emergency procedures.  Owners and operators of used oil processing and re refining facilities must comply with the following requirements:

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(6) Emergency procedures.

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(ii) Whenever there is a release, fire, or explosion, the emergency coordinator must immediately identify the character, exact source, amount, and areal extent of any released materials. He/she may do this by observation or review of facility records or manifests and, if necessary, by chemical analyses.

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9) Revise paragraph (g) of Section 279.54 to read as follows:

§ 279.54 Used oil management.

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(g) Response to releases.  Upon detection of a release of used oil to the environment that is not subject to the requirements of 40 CFR Part 280, Subpart F, and which has occurred after the effective date of these regulations, an owner/operator must perform the following cleanup steps:

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10) Revise paragraph (b)(2)(i)(B) of Section 279.55 to read as follows:  

§ 279.55  Analysis plan.

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(b) On specification used oil fuel in § 279.72.  At a minimum, the plan must specify the following if § 279.72 is applicable:

(1) Whether sample analyses or other information will be used to make this determination;

(2) If sample analyses are used to make this determination:

(i) The sampling method used to obtain representative samples to be analyzed. A representative sample may be obtained using either:

(A) One of the sampling methods in Appendix I of Part 261 of these regulations; or
 
(B) A method shown to be equivalent under § 260.20 and § 260.21 of these regulations;

(ii) Whether used oil will be sampled and analyzed prior to or after any processing/re refining;

11) Revise paragraph (g) of Section 279.64 to read as follows:  

§ 279.64 Used oil storage.

(g) Response to releases.  Upon detection of a release of used oil to the environment that is not subject to the requirements of 40 CFR Part 280, Subpart F, and which has occurred after the effective date of these regulations, a burner must perform the following cleanup steps:

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12) Revise paragraph (b) of Section 279.74 to read as follows:  

§ 279.74 Tracking.

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(b) On specification used oil delivery.  A generator, transporter, processor/re refiner, or burner who first claims that used oil that is to be burned for energy recovery meets the fuel specifications under § 279.11 must keep a record of each shipment of used oil to the facility to which it delivers the used oil.  Records for each shipment must include the following information:

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13) Add Section 8.93 (Statement of Basis for the Rulemaking Hearing of February 19, 2019) to Part 8 of the Regulations to read as follows:

Statement of Basis and Purpose
Rulemaking Hearing of February 19, 2019

8.93	Basis and Purpose.

These amendments to 6 CCR 1007-3, Part 279 are made pursuant to the authority granted to the Solid and Hazardous Waste Commission in § 25-15-302(2), C.R.S.

Amendment of the Part 279 Standards for the Management of Used Oil

These amendments revise sections 279.1, 279.10, 279.11, 279.22, 279.44, 279.45, 279.52, 279.54 279.55, 279. 64, and 279.74 of Colorado’s Part 279 Standards for the Management of Use Oil.  

With the exception of the revisions to section 279.10, these amendments consist mainly of corrections to minor typographical and technical errors that exist in the Part 279 regulations.
The more substantive changes to section 279.10 include the following:

1) Amendment of Section 279.10(i) – Applicability of the Used Oil Management Standards to PCB contaminated used oil.   Paragraph (i) of section 279.10 is being amended to clarify the applicability of the RCRA used oil management standards to used oil containing PCBs.  The amendment clarifies that used oil that contains less than 50 ppm of PCBs is generally subject to regulation under the RCRA used oil management standards.  However, the amendment notes that the Toxic Substances Control Act (TSCA) prohibition against the dilution of PCB concentrations below regulatory thresholds (40 CFR 761.1(b)(5)) applies to the dilution of PCB-containing used oil  Used oil, therefore, that contains, or contained prior to dilution, 50 ppm or greater of PCBs in not subject to regulation under the RCRA used oil management standards, because the TSCA regulations at 40 CFR Part 761 provide comprehensive management of such used oil.

2) Removal of Section 279.10(b)(3) – Mixtures of used oil and very small quantity generator hazardous waste.  The Division is removing the provision at § 279.10(b)(3) to clarify the state’s intent to be more stringent than the federal requirements regarding the management of mixtures of used oil and listed hazardous waste from very small quantity generators (VSQGs) of hazardous waste.

Pursuant to the federal provisions of §§ 262.13(f)(iii) and  279.10(b)(3), mixtures of VSQG listed hazardous waste and used oil are exempt from regulation under the hazardous waste management regulations, and may be managed as used oil under the used oil management standards of 40 CFR Part 279.  

The Division believes that VSQG generated mixtures of used oil and listed hazardous waste should be managed in accordance with the same requirements applicable to mixtures of used oil and listed hazardous waste generated by small quantity generators and large quantity generators.  Allowing VSQG generated mixtures of used oil and listed hazardous waste to be managed as used oil makes compliance assurance difficult and significantly reduces a VSQG’s incentive to minimize the amount of listed hazardous waste it generates, and may also lead to management of the waste in a manner that is not protective of human health and the environment.

In adopting state analogs to the federal hazardous waste generator improvements rule on May  15, 2018, Colorado included more stringent language in § 262.13(f) regarding VSQG mixtures of used oil and hazardous waste.  

Pursuant to the requirements of 6 CCR 1007-3, § 262.13(f)(iii), if a VSQG’s characteristic hazardous wastes are mixed with used oil, and the resulting mixture does not exhibit any hazardous waste characteristic, the mixture is subject to the Part 279 used oil regulations.  Any material produced from such a mixture by processing, blending, or other treatment is also regulated under the Part 279 regulations.  However, pursuant to 6 CCR 1007-3, § 262.13(f)(iv), if a VSQG mixes any hazardous waste listed in subpart D of Part 261 of the Colorado Hazardous Waste Regulations (6 CCR 1007-3) with used oil, the resultant mixture is a newly generated listed hazardous waste and must be managed as hazardous waste. The VSQG must count both the resultant mixture amount plus all other hazardous waste generated in the calendar month to determine whether the total quantity exceeds the very small quantity generator calendar month quantity limits identified in the definition of generator categories found in § 260.10 of these regulations. If so, to remain exempt from the permitting, interim status, and operating standards, the very small quantity generator must meet the conditions for exemption applicable to either a small quantity generator or a large quantity generator. The very small quantity generator must also comply with the applicable independent requirements for either a small quantity generator or a large quantity generator. 

In its adoption of the hazardous waste generator improvements rule, Colorado inadvertently failed to amend § 279.10(b)(3) to be consistent with the more stringent provisions of  § 262.13(f), and to include a discussion of this more stringent provision in the Statement of Basis and Purpose for the May 18, 2018 rulemaking.

This amendment removing the provision at § 279.10(b)(3) clarifies the state’s intent pursuant to § 262.13(f)(iv) to be more stringent than the federal requirements regarding the management of VSQG mixtures of used oil and hazardous waste.

This amendment is more stringent than the federal regulations.  The Commission has evaluated the information presented at the rulemaking hearing, as well as the information in the Statement of Basis and Purpose. The Commission considers this information sufficient to justify adopting the proposed rule.  The Commission finds that this rule is necessary to protect public health and the environment. 

This Basis and Purpose incorporates by reference the applicable portions of the preamble language for the EPA regulations as published in the Federal Register at 68 FR 44659-44665, July 30, 2003 regarding the amendment of Section 279.10(i).