State of New Hampshire
             DEPARTMENT OF ENVIRONMENTAL SERVICES
       6 Hazen Drive, P.O. Box 95, Concord, NH 03302-0095
              (603) 271-2900    FAX (603) 271-2456

May 28, 1998

                                        Docket #F-98-CUOP-FFFFF

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

Subject: New Hampshire's Comments on the Proposed Rule Amendments
to 40 CFR Part 279, Standards for the Management of Used Oil

Dear Reviewer:

     The Department of Environmental Services (NHDES) hereby
submits comments on the proposed rule amendment to 40 CFR Part
279 published in the May 6, 1998 Federal Register.  Specifically,
NHDES is offering comments to the changes identified in
279.74(b), pertaining to the tracking of specification used oil
fuel by a used oil fuel marketer.

     The existing regulations require the first person who claims
that used oil, which is to be burned for energy recovery, meets
the fuel specifications under 279.11 to keep a record of each
shipment of used oil to an on-specification used oil burner. The
proposed change requires such marketers to only keep a record of
each shipment of used oil to the facility to which it delivers
the used oil, which may or may not be the end user (i.e. used oil
burner). If adopted, this amendment will not only impact the
initial used oil fuel marketer, but will have ramifications on
how 279.11 "Used oil specifications" is interpreted. Since the
establishment of the used oil management standards under 40 CFR
Part 279 on September 10, 1992, the states, EPA Regions and EPA
Headquarters have debated the extent to which specification used
oil is regulated. Section 279.11 reads "Once used oil that is to
be burned for energy recovery has been shown not to exceed any
specification and the person making that showing complies with
sections 279.72, 279.73 and 279.74(b), the used oil is no longer
subject to this part."  This provision makes the requirements of
279.74(b) particularly important because it stipulates how far
specification used oil fuel is to be tracked; and, in effect,
"regulated". Section 279.74(b) has been interpreted, by some
regulators, to mean that specification used oil fuel is regulated
under Part 279 up until the point it reaches the used oil burner
(i.e. tracked to the point of recycling). The 5/6/98 proposed
amendment implies that once used oil which is intended to be
burned for energy recovery has been declared to meet the
specifications, then it is no longer tracked beyond the point of
delivery by the initial used oil fuel marketer (i.e. not tracked
to the point of recycling), and thereby not further subject to
any of the management requirements set forth in Part 279.

     If this is EPA's intent, consider the effect in the
following situations:

         A used oil transporter, acting as an initial used oil
          fuel marketer, makes a claim that the used oil which is
          collected meets the fuel specifications. The
          transporter~then delivers the oil to a used oil
          processor for further filtering and blending prior to
          being sold as a fuel oil. The used oil processor would
          not be subject to any of the Part 279 management
          standards for processors since the processor is dealing
          with specification used oil fuel only.

         A generator, acting as an initial used oil fuel
          marketer, determines that his/her used oil meets the
          specifications. This oil is then delivered to a
          business across town to be burned in a used oil heater.
          Arguably, no transporter EPA Identification number is
          required, nor will the transporter requirements of
          279.43 apply since the used oil drops out of
          regulation under 279.11.

         A used oil fuel marketer makes a claim that a batch of
          used oil meets the specifications.  After delivering
          this oil to the next party and meeting the tracking
          requirements of 279.74, the used oil may be managed as
          a product with no further regulatory controls.  This
          means that there is also no assurance that the used oil
          ever makes it to a burner and is recycled in this
          manner, since the next party could choose to manage the
          specification use oil in some other unauthorized manner
          (i.e. road oiling). The point is, not tracking used oil
          fuel to the end user, opens the door for potential
          mismanagement.

     Another result of allowing specification used oil fuel to
drop out of the regulations is that it discourages the
re-refinement of used oil which is the preferred environmental
solution. With fewer environmental regulatory controls placed on
specification used oil when it is sent for burning, it will cost
less to manage used oil as a fuel than to ship it to a re-refiner
where it will be tracked and regulated fully until it has been
re-refined into a usable product.

     EPA explains the rationale for this proposed change in the
Final Rule Section of the 5/6/98 Federal Register notice. The
Agency explains that it was EPA's intent in the November, 1985
rules to only track on-specification used oil fuel one step
beyond the initial marketer and implies that when the rules were
recodified in September, 1992 it was an error that required the
marketer to keep a record of each shipment to an on-specification
used oil burner. The NHDES acknowledges that certain portions of
40 CFR Part 266, Subpart E "Used Oil Burned for Energy Recovery"
were merely recodified in Part 279; however, we also believe that
due to the significant changes adopted in Part 279, one cannot
always make a direct correlation between the two sets of rules.

     In 1985, 40 CFR Part 266, Subpart E only regulated the
burning of used oil and, other than record keeping and analysis,
there were no management standards in place for generators,
collectors, processors, transporters or burners. Section
266.40(e) stated that "Used oil fuel that meets the specification
is subject only to the analysis and record keeping requirements
under 266.43(b)(1) and (6)." This rule required the marketer to
keep a log on each shipment with the name and address of the
receiving facility, quantity of used oil fuel delivered, date of
shipment or delivery and a cross reference to the documentation
supporting the specification claim. When Part 279 was adopted, it
regulated all forms of used oil recycling (not just the act of
burning) and further added management requirements on the
handling of used oil. Therefore, the Part 266 standards can not
be interpreted exactly as they were in 1985 since Part 279
established management standards for all stages in the used oil
recycling process.

     The preamble to the Federal Register for the 9/10/92 rules
(41577) makes it clear that EPA's intent was to have regulations
that would protect the public against the potential hazards
associated with the mismanagement of used oil. "EPA believes
that, irrespective of whether used oils exhibit a characteristic
of hazardous waste, used oils can pose some threat to human
health and the environment ....Therefore, it is important that
used oils are handled in a safe manner from the point of
generation until recycling, reuse, or disposal." And, "The
management standards adopted today are designed to address the
potential hazards associated with improper storage and handling
of used oil by establishing minimal requirements applicable to
used oil generators, transporters, used oil processors, and
re-refiners, and off-specification used oil burners." Note that
the only entity not listed are specification used oil burners. We
believe the hazards associated with specification used oil will
be the same whether or not the used oil is being handled for
burning or for re-refinement. For this reason it does not seem
logical to drop specification used oils from the entire Part 279
management system simply because there is a claim that the used
oil is to be burned for energy recovery.

     In conclusion, the NHDES does not object in concept with the
record keeping requirements being proposed for initial used oil
marketers, but has concerns that this change will further support
a claim that specification used oil fuel is no longer subject to
the management requirements that have been established under Part
279 to protect the public health and the environment. Therefore,
NHDES is objecting to the proposed changes to 40 CFR 279.74(b),
unless these changes are accompanied by additional amendments
that will ensure that all used oils destined for recycling are
subject to basic protective management standards.

     If you would like further clarification on these comments or
would like to discuss any of the concepts in detail, I may be
reached at (603)271-2900 or you may contact Wendy Waskin, Used
Oil Program Coordinator at (603)271-2942. Thank you.

                              Sincerely,



                              Philip J. O'Brien, Ph.D.
                              Director, Waste Management Division

cc:  Robert W. Varney, Commissioner, NHDES
     Kenneth Marschner, WMCB
     John Duclos, HWCS
     Wendy Waskin, HWCS