3014 does not preclude such listing, and expressly contemplates that at least some recycled oil will be managed as hazardous waste. Given the large volume of used oil generated annually, an estimated 1.15 billion gallons a year, and the large numbers of generators and handlers, more that 500,000 and 1,000 respectively, there is an urgent need for regulatory controls to prevent future harm from used oil recycling activities. Listing used oil as a hazardous waste is a necessary first step toward achieving this goal. In response to numerous industry objections to EPA's proposal to list used oil as a hazardous waste, the Agency requested comments on whether used oil could be listed for purposes of disposal but not for purposes of recycling. NRDC has strong objections to such an approach and has urged EPA not to bifurcate the regulation of used oil for several reasons. As we read the statute and legislative history, RCRA does not authorize EPA to exempt a waste from listing merely because it is expected to be recycled. Listing hazardous used oil destined for disposal but not for recycling would constitute a radical departure from EPA's current listing procedure, and would set a bad precedent for exempting from listing under RCRA other hazardous wastes destined for recycling. Used oil, like other hazardous wastes, remains hazardous until re-refined. Thus, the identified dangers of health and environmental injury accompanying the collection, transport, storage and reclamation of hazardous used oil would not be prevented or controlled if used oil were exempted from the RCRA system at the outset, merely on the basis of its intended ultimate use. Failure to list used oil bound for recycling would also create substantial enforcement problems for the EPA. The Agency would bear the entire responsibility for nationwide enforcement of the special recycled oil management standards, because states would not be required to adopt a regulatory program to enforce them. In addition, because recycled used oil would not be listed under RCRA, EPA could not invoke its criminal enforcement authorities under RCRA $$3008 (d) and (e). In the face of federal budget cuts and reduced Agency resources, NRDC fears that lack of enforcement would relegate the special regulatory standards for recycled oil to merely a paper program. For the reasons stated above, NRDC remains strongly supportive of EPA's proposal to list used oil as a hazardous waste. EPA's Regulatory Impact Analysis of the proposed used oil management standards concluded that more used oil would flow to recycling because of the prohibition on road oiling, and that adverse impacts on the recycling industry would be minimal.* Although automotive repair shops would suffer more than other generators, there would be only a slight impact overall. The impact of the regulations would fall most heavily on the "intermediary facilities," i.e., collectors and processors, 92% of which are small businesses, according to EPA. As a consequence, the Agency's analysis predicts a restructuring of Regulatory Impact Analysis of Proposed Standards for the ** Regulatory Impact Analysis at V-57. the industry to a smaller number of larger operators. Historically, these intermediary facilities have been most frequently implicated in used oil contamination incidents, with society left to absorb the high cost of clean-up. In 1984, Congress determined that such businesses should be required to internalize the costs of preventing or controlling environmental and health risks resulting from their activities. These firms are, after all, engaged in what may fairly be characterized as ultra-hazardous activities. Thus, EPA was authorized to list used oil as a hazardous waste, even where the used oil is destined for recycling. To avoid undue adverse impacts on recycling, the Agency was further directed to establish special management standards for listed used oil which is recycled. NRDC believes that the difficult but necessary policy choice Congress made in 1984 was and remains the correct one. As the House Report on the 1984 Amendments explained at the time, The Committee is taking this action for a number of H. Rep. No. 98-198, Part I, 98th Cong., 1st Sess. 64 (1984). Section 3014 of RCRA provides EPA. with much flexibility to shape a regulatory program for recycled used oil that protects health and the environment while not unduly impeding recycling. NRDC believes that the Agency's regulatory proposals to list used oil as a hazardous waste, and to establish special management standards for recycled used oil achieve a reasonable balance between these objectives. A decision to exempt from listing as a hazardous waste used oil bound for recycling would again relegate environmental and health protection to a secondary concern, with the predictable adverse consequences we have already experienced. For this reason, NRDC continues to support the Agency's original listing proposal, and urges that it be promulgated in the near future. Metals Att. I Table IV-8 CONCENTRATION OF POTENTIALLY HAZARDOUS CONSTITUENTS IN USED OIL BURNED AS FUEL To determine median and percentile concentrations, nondetected concentrations were assumed to be equal to the detection level (e.g., 5 = 5). Source: Franklin Associates, Ltd., Composition and Management of Used Oil Generated in the Source: Requlatory Impact Analysis of Proposed tandards for |