Part 279 Under the Microscope

Future Part 279 Policy Decisions & Rule Makings: EPA RCRA Office Seeks Comments

by Scott D. Parker, NORA Executive Director

On October 13, 2022, the United States Environmental Protection Agency (EPA) presented information on their Resource Conservation Recovery Act (RCRA) “Permitting Updates Proposed Rule Making” project that will begin in 2023. As part of that proposal, EPA indicated they intend to “request comment on adding language to Part 279 to address used oil and wastewater mixtures.”

EPA has not added language to Part 279 (outside of corrections) in over three decades. The first portion of the Standards for the Management of Used Oil was published on November 29, 1985 and the second portion was published on September 10, 1992.

Part 279 is the regulatory foundation for used oil recyclers and oily wastewater processors. It has effectively established the framework that has allowed this industry to responsibly collect and recycle billions of gallons of used oil and related materials.

Potential changes to Part 279 rightfully should cause concern for NORA members. This article will explore how we got to where we are today, what is driving this new EPA action and what the potential threats are.

This issue will be discussed further at the NORA Winter Meeting in New Orleans, February 22-24, 2023.

A Brief History

After passing both Chambers of Congress, the Used Oil Recycling Act of 1980 was signed by the President of the United States on October 15, 1980.

That act stated that it was in the “national interest to recycle used oil in a manner that does not constitute a threat to public health and the environment and which conserves energy and materials”. Additionally, the act required the EPA Administrator to promulgate regulations for the oil recycling industry and that the Administrator “shall ensure that such regulations do not discourage the recovery or recycling of used oil.”

Despite this Congressional support for recycling, it was not clear what EPA would decide when it promulgated the used oil regulations. Recognizing there was a powerful effort to persuade EPA to classify used oil as a hazardous waste, a handful of companies formed the National Oil Recyclers Association (now known as NORA, An Association of Recyclers) in December of 1984 to oppose that effort.

In 1985, NORA drafted legislation at the request of Congressman Ike Skelton of Missouri. This bill was co-sponsored by 131 other members of Congress. The widespread support for Congressman Skelton’s bill influenced EPA to adopt management standards for handling used oil without being designated as a hazardous waste.

NORA’s first victory on EPA rulemaking remains its most important. Now codified at 40 CFR Part 279, the used oil management standards were delivered in two parts. The first part was promulgated on November 29, 1985 and focused on burning for energy recovery and also included the presumption that used oil was destined for recycling. The second component of the used oil management standards, promulgated on September 10, 1992, established the regulatory requirements for each of the entities in the used oil recycling system: generators, transporters, marketers, processors and burners.

In the late 1990s, NORA worked on behalf of its wastewater treatment members to persuade EPA to develop sensible treatment standards for Centralized Waste Treatment facilities (“CWTs”) that manage oily wastewater. The realistic effluent limitations advocated by NORA were incorporated into the Clean Water Act regulations, now codified at 40 CFR Part 437.

For over 30 years, the language in Part 279 and the CWT regulations have created a regulatory structure that has effectively protected the environment. One very important feature of Part 279 is that oily wastewater, generated by numerous different industries, is defined, classified and managed as used oil under Part 279 and EPA guidance documents.

EPA has consistently stated that “... wastewater that contains used oil meets the §279.1 definition of used oil and is subject to regulation under the used oil management standards.”

Oily wastewater is currently properly managed in compliance with the Used Oil Management Standards, CWTs’ stringent permits, 40 CFR Part 437 and other applicable provisions of the Clean Water Act.

Prelude: Vermont 2021

In late July 2021, NORA became aware that the Vermont Department of Environmental Conservation (VDEC) was proposing language related to used oil through their hazardous waste program reauthorization with the EPA.

VDEC proposed adding a section which would only allow oily wastewater to be managed as used oil if it has greater than 50% used oil. If the used oil was less than 50% and has any hazardous characteristics, it would be managed as hazardous waste.

If approved, Vermont would have been the only state that would implement this Draconian requirement that automatically transforms oily wastewater into hazardous waste.

NORA members took a careful look at this proposal and concluded that it was a regulation in search of a problem. On August 20, 2021, NORA submitted lengthy comments on Vermont’s proposal. NORA explained in excruciating detail why the proposal would be unworkable, extremely expensive and counterproductive.

RCRA is a “cradle to grave” hazardous waste management system and the “grave” is proper disposal. But how do you properly dispose of tremendous quantities of oily (suddenly hazardous) wastewater? NORA’s comments pointed out that:

There are few options for disposing of wastewater as a hazardous waste. In the absence of a RCRA treatment permit and compliance with applicable Clean Air Act regulations, it would be illegal to evaporate the water. Wastewater cannot easily be disposed of in a landfill. The cost of attempting to solidify the water would be prohibitively expensive and consume immense quantities of landfill space. Also, if the landfill eventually fails and becomes a Superfund site, the wastewater generators would become liable for remediating the site.

The only other?almost?feasible option is incineration. However, there are only a handful of commercially available hazardous waste incinerators in the United States. Even if incinerator capacity was available, transportation costs would be overwhelming.

NORA’s comments recommended that VDEC carefully evaluate incineration capacity and availability as well as the costs of incineration, storage and transportation that would have been imposed on Vermont’s oily wastewater generators.

On October 15, 2021, NORA was informed that Vermont had “pulled the used oil changes out of the proposed rules and proceeding with the rulemaking without this change at this time.”

Despite NORA’s successful effort in removing the used oil section, some of the interactions with the Vermont regulators caused a new concern. Some of the regulators, who have been trained to enforce RCRA’s hazardous waste rules, made clear that they consider Part 279 to be a “loophole”. NORA was informed by a VDEC representative that?they believed the US EPA was looking into this and was considering taking action within the next two years (2022-2023).?At the time, NORA was unable to verify that.

EPA May Consider Future Part 279 Policy Decisions/Rulemakings

RCRA gives EPA the authority to control?hazardous waste?from the "cradle-to-grave"?which is overseen by the EPA Office of Resource Conservation and Recovery (ORCR).

The EPA ORCR hosted a webinar on October 13, 2022 titled “National RCRA Permitting Priorities”. The webinar focused on a variety proposed RCRA permit changes. EPA ORCR stated they are planning to also use the proposed rulemaking to discuss broader policy areas. Items under consideration in this category include those that may be discussed for the purpose of soliciting information through public comment but will not be included as proposed changes. Public comment received on those items may inform future policy decisions and/or rulemakings.

According to EPA, used oil fell in that second group. This is the language EPA included about used oil during the webinar:

“Used Oil?- Request comment on adding language to part 279 to address used oil and wastewater mixtures, especially for situations when used oil is only a minute fraction; how to manage wastewater after separation; how emulsions are managed, how phase-separable mixtures are managed.”

NORA contacted EPA to understand why they were including used oil in a RCRA permitting change project. Our point of contact noted that some states had issued a concern that Part 279 was being used as a loophole for oily wastewater. While not specifically noted, it is reasonable to assume that the concerns from Vermont are driving the EPA action.

It is NORA’s understanding that EPA ORCR will be publishing their request for comments regarding Part 279 in the Federal Register in the July/August timeframe. EPA may put a prepublication version of the notice on their website before it appears in the Federal Register.

Potential Threat to NORA Members

While the specific language of what EPA will have in their request for comment is not known yet, NORA can make reasonable expectations based on Vermont’s initial language and EPA’s language from their webinar.

Our industry has defined and managed used oil and oily wastewater in a consistent and responsible manner for decades based on Part 279 and the CWT regulations.

EPA appears to be placing the regulations under a microscope and raising questions about what is and is not “used oil” from a regulatory perspective.

Similar to the Vermont initiative, EPA potentially considering future Part 279 policy?decisions and rule makings seems to be a solution in search of a problem.

While some have described Part 279 to be a “loophole” that should be fixed, that does not reflect reality. Part 279 and the CWT regulations work in tandem and create a highly efficient system that responsibly recycles billions and billions of gallons of used oil and oily wastewater.

What Should NORA Members Do

First,?every?NORA member that recycles used oil or processes oily wastewater should have representation at the upcoming NORA Winter Meeting in New Orleans, February 22-24. Input from members in necessary for NORA to represent the interest of members before the EPA.

Second,?every?NORA member should be prepared to offer comments once the EPA request is finalized. NORA will provide resources to assist you in your response.

NORA will be actively monitoring and informing members about this important topic. NORA stands ready to actively defend the rights of its members to responsibly recycle used oil and related materials.