What is the rebuttable presumption?
Used oil containing more than 1000 parts per million (“ppm”)
of total halogens is presumed to be mixed with a listed hazardous
waste. If, however, it can be demonstrated that the used oil was not
mixed with a listed hazardous waste, the used oil is regulated as
used oil and not hazardous waste. 40 CFR §279.10(b)(1)(ii).
Does the rebuttable presumption apply only to generators?
No, transporters, marketers, processors and re-refiners also
have the obligation to rebut the presumption. See 40 CFR
§§261.3(a)(2)(v), 279.10(b)(ii), 279.21(b), 279.44(a) through 279.44(c), 279.53, 279.63,
and 279.70(c). If they fail to rebut the presumption, the material they
thought was used oil is actually hazardous waste. RCRA Subtitle C
requirements will apply (e.g., hazardous waste treatment, storage,
transportation and/or disposal permits).
Who has the burden of proof?
The burden of proof is not on the government. The burden of
proof is on the entity that possesses the used oil or did possess it.
What is the difference between the 1000 ppm and the 4000 ppm levels?
The 1000 ppm level for total halogens is the threshold for the
rebuttable presumption. The 4000 ppm level is the cut-off level for
specification used oil fuel. A concentration of 4000 ppm or more of
total halogens places the used oil in the off-spec category. Example:
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used oil contains 3500 ppm of total halogens but the generator is
able to rebut the presumption; so the material is used oil not
hazardous waste.
Can a used oil processor blend the metals and flashpoint to an onspecification status?
This is not a question dealing with the rebuttable presumption but,
yes, with the exception of PCBs, there is no prohibition on blending
used oil to achieve a specification used oil.
Can a used oil processor blend the total halogens to an on-specification
status?
Yes, but first you have to rebut the presumption. For example, the
used oil has a concentration of 5000 ppm total halogens. The
source of the halogens is a cutting oil (and the halogens are a
normal ingredient). Now that you have rebutted the presumption,
you may now blend down the halogens to below 4000 ppm. You
now have on-spec used oil (not a hazardous waste)
What are the different ways to rebut the presumption?
You can rebut the presumption if you can prove that the
source of the halogens is:
• A conditionally exempt small quantity generator (“CESQG”).
40 CFR §261.5(j). A facility that does not generate more than
100 kilograms or 220 pounds of hazardous waste per month is
a CESQG.
• Household hazardous waste. 40 CFR §261.4(b)(1)
• RCRA empty drums. 40 CFR §261.7 and 40 CFR §279.40(c);
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• A farmer who generates an average of 25 gallons (or less) of
used oil a month from vehicles or machinery used on the farm
on a calendar year basis. 40 CFR §279.20(1) and (4).
• Metalworking oils/fluids containing chlorinated paraffins
processed through a tolling arrangement. 40 CFR §279.24(c).1
• Chlorofluorocarbons (“CFCs”) removed refrigeration units
where the CFCs are destined for reclamation. 40 CFR
§279.10(b)(1)(ii). According to EPA, this used oil cannot be
mixed with used oil other than refrigeration units. See RCRA
HOTLINE MONTHLY REPORT, August 1999, EPA530-R-99012h.
•
Not a hazardous waste (e.g. saltwater).
• Are PCBs and if total halogens in used oil exceed 1,000 ppm
solely because the used oil was mixed with RCRA-exempt
PCB waste, the used oil mixture will not be regulated as
hazardous waste, but rather as used oil under both RCRA
(when the PCB concentration is less than 50 ppm) and TSCA
(40 CFR §279.10(i)).
Or, if you can prove that the used oil does not contain
significant
concentrations
of
halogenated
hazardous
constituents listed in 40 CFR Part 262, Appendix VIII See 50
Federal Register 49176, November 29, 1985 (100 ppm or less of a
chlorinated solvent in used oil is unlikely to be the result of
1
This is a general exemption from the rebuttable presumption (so that folks
involved in a tolling arrangement don't have to keep producing paperwork). In
the case of chlorinated paraffins not handled in a tolling arrangement, the
regular rebuttable presumption rules apply. So, assuming the generator could
prove that the halogens in the used oil containing chlorinated paraffins were a
normal ingredient in the, for example, cutting oil, the used oil would not a
hazardous waste. Once the presumption has been rebutted there would be no
restriction on blending.
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deliberate mixing of hazardous waste into used oil.) Note:
EPA’s GUIDANCE AND SUMMARY OF INFORMATION
REGARDING THE RCRA USED OIL REBUTTABLE
PRESUMPTION (March 2005) does not quote or refer to the
preamble language regarding 100 ppm.
What kind of documentation will I need?
• Generator waste/material profiles
• Material Safety Data Sheets or Safety Data Sheets
• Generator affidavits
• Analytical laboratory results
• State confirmation of CESQG status
• Confirmation of farmer/generator status
• Analysis of virgin product for halogen content
If the processor’s testing determines that a load is in excess of the
regulatory limit for organic chlorides/halogens, can we simply reject the
load?
Yes, do not take possession of it. Send it back to the
generator. More specifically, if hazardous waste comes to a used oil
processing facility but has not been "received," i.e., hasn't been
unloaded from the generator's or independent transporter's truck,
the processing facility can and should reject the load and suggest
that the load be returned to the generator or sent to a RCRA TSD
facility. In this situation, the processor has not become a
"generator" and does not own or possess the hazardous
waste. Consequently, it has no obligation to manifest it or to make
decisions about its destination. Obviously, it is a much different
situation if the processing facility accepts the material or otherwise
owns or possesses it. If hazardous waste is abandoned on the
processor's facility by midnight dumpsters, it is unfortunate, but the
processor then becomes the unwilling generator and would have to
handle it properly.
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What if the generator would prefer that I, the processor, handle the
rebuttable presumption problem?
Most generators would prefer that someone else deal with the
rebuttable presumption. But it is the generator who knows (or
should know) how the used oil was generated and where the
halogens came from. There is nothing wrong with a processor, who
probably has more expertise on rebuttable presumption issues,
helping out a generator who has more information on the used oil
and the source of the halogens. However, you should avoid the
following situation.
Processor: The test results came back on your used oil sample.
You’re real high in halogens.
Generator: High on what?
Processor: Total halogens. 1500 parts per million. Can you
rebut the presumption?
Generator: Huh?
Processor: Did you mix the used oil with anything?
Generator: Don’t think so. Why?
Processor: Well, if you can prove that the halogens aren’t
from hazardous waste, I can take your used oil. If not, it’s a lot
of hazardous waste.
Generator: Yeah, I’m not really interested in hazardous waste.
Processor: Maybe…but hazardous waste may be interested in
you.
Generator: Look, I don’t think this will be a problem. I’ll just
sign anything you wanna write down.
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