National Oil Recyclers Association Christopher Harris, General Counsel 1439 West Babcock • Bozeman. Montana 59715 • (406) 586-9714 • FAX (406) 586-9720 Comments of The National Oil Recyclers Association concerning the proposal by The United States Environmental Protection Agency to amend and clarify The Used Oil Management Standards 40 C.F.R. Part 279 Docket No. F-98-CUOP-FFFFF June 4, 1996 The National Oil Recyclers Association ("NORA") submits the following comments on the Environmental Protection Agency's proposed rule to amend certain provisions of the used oil management standards. 40 C.F.R. Part 279. The proposed rule was published at 63 Federal Register 25006-25010 on May 6, 1998. Founded in 1984, NORA is a non-profit trade association representing America's oil recycling industry. NORA's members manage most of the used oil that is recycled in the United States and process substantial quantities of oily waste water, used antifreeze and oil filters. NORA's 147 members -- most of whom are small businesses -- provide collection and recycling services in all 50 states and the District of Columbia. NORA offers comments on two components of the proposed rule: clarification of record-keeping requirements and mixtures of CESQG wastes and used oil. Clarification of Record-Keeping Requirements NORA fully supports the proposed amendment to 40 CFR § 279.74(b) which would clarify that the marketer who first claims that used oil constitutes on-specification used oil fuel need only retain a record of the shipment to the facility receiving the used oil from such marketer. Section 279.74(b) has been read by some state agencies to require the initial marketer to track all shipments including the final shipment to the burner. As EPA has recognized, this interpretation conflicts with the reality of used oil marketing practices. The initial marketer often sells on-spec fuel to a blender who further processes the used oil and sells it in different formulations to other marketers and to end-users (burners). The blender may not know the final destination of the fuel and, in any event, will certainly not provide his customer lists to the initial marketer. In other words, the interpretation made by some state agencies placed a regulatory requirement on the initial marketer which was impossible to fulfill. Nor is such an interpretation needed to provide adequate controls. Under EPA's proposed clarification the initial marketer remains responsible for assuring that the used oil that he sells meets the specification criteria. All subsequent marketers as well as the end user have both economic and regulatory incentives to maintain the status of the used oil as specification used oil fuel. In the highly unlikely event that a subsequent marketer blends a specification used oil fuel in a way that creates an off-specification product, this marketer cannot legally sell this fuel as on-specification fuel and, in fact, must comply with all applicable rules for managing and marketing off-specification used oil fuel. Thus, EPA's proposed clarification conforms to real-world transactions in the used oil fuel industry but does so without sacrificing any enforcement safeguards. Accordingly, NORA commends EPA for this worthwhile clarification and urges the Agency to adopt this revision. Mixtures of CESQG Wastes and Used Oil. NORA agrees with the common sense approach that EPA has taken in harmonizing the conditionally exempt small quantity generator provision, 40 CFR §261.5(j), with the Part 279 used oil management standards. While this revision is needed and should be adopted, NORA also urges EPA to consider using the final rule to provide a clarification of the regulatory status of mixtures of CESQG wastes and used oil. This would be particularly useful in the context of the rebuttable presumption. As the Agency is aware, there is no chemical or physical difference between a molecule of a chlorinated solvent waste generated by a large quantity generator and a molecule of the same type of waste solvent generated by a CESQG. Nonetheless, the large quantity generator waste is regulated as hazardous while the CESQG waste is not. In a typical scenario, a used oil transporter collects used oil mixed with hazardous wastes from different types of generators, including CESQGs, all of which are mixed together in his tank truck during the day's collection activities. (It is simply not practical for a transporter on a used oil "milk run" to segregate different categories of used oil generators.) The used oil in the tank truck is tested and shows 1005 parts per million. Can the presumption of hazardousness be rebutted by demonstrating that the CESQG wastes, if subtracted from the mixture, would bring the total halogen level below 1000 ppm? This scenario is at the heart of the regulatory compliance dilemma that confronts most used oil transporters and processors and it should be squarely addressed by EPA. NORA is not aware of any interpretive letter or guidance document which sheds any light on this particular issue. Because it is a recurring question that arises in every part of the country, NORA suggests that EPA take advantage of the opportunity provided by this rulemaking to clarify the Agency's policy. For the record, NORA believes that the "subtraction" approach is entirely consistent with the purpose of the rebuttable presumption as well as the CESQG provisions. Obviously, the burden of proof remains with the entity attempting to rebut the presumption. However, there is no reason why a "mathematical proof" should be automatically rejected. We urge the Agency to address this issue in the preamble to the final rule.