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