NEW YORK STATE DEPARTMENT OF ENVIRONMENTAL CONSERVATION

HAZARDOUS WASTE MANAGEMENT PROGRAM

PROGRAM REVISION APPLICATION

Table of Contents

Page

PROGRAM DESCRIPTION

SECTION I. INTRODUCTION ..................................................................................................1

SECTION II. PROGRAM SCOPE .............................................................................................3 A. Scope and Coverage of Program Revision ......................................................................3

1. Identification of exact rules/clusters and other areas for which New York State is seeking authorization .................................................3

2. Reference to Revision Checklists included in the revision package ........................4

3. Public notices, public hearing of program revision ................................................5 B. Differences Between Federal and State Regulations ......................................................6

SECTION V. STATE PROCEDURES and PERMITTING PROGRAM ..........................19 M. Used Oil Management Program .....................................................................................19

ATTORNEY GENERAL’S STATEMENT including:

CHECKLIST

MOA - no revision required to implement the changes included in this PRA.

NEW YORK STATE REGULATIONS- 1 - 

## PROGRAM DESCRIPTION

SECTION I

INTRODUCTION

The New York State Department of Environm ental Conservation (the Department) is the agency responsible for administering all solid and hazardous waste regulations for the State of New York. This document provides a descrip tion of the hazardous waste regulatory program administered by the Department. It is an a ddendum to the Program Descriptions previously submitted. Only sections impacted by the used oil management program are amended in this Program Description.

New York received final authorization of its hazardous waste regulatory programeffective May 29, 1986. The first Program Revision Application (PRA) incorporated the nonHSWA Cluster I and II regulatory provisions and was effective July 3, 1989. The second PRA incorporated the non-HSWA Clusters III and IV regulatory provisions, and Mixed Waste, and became effective May 7, 1990. The third PRA incorporated Research Development and Demonstration Permits and became effective October 29, 1991. The fourth PRA incorporated the remaining provisions of non-HSWA Clusters III, IV and V, as well as HSWA Clusters I and II and became effective May 22, 1992. The fifth PRA incorporated the non-HSWA Cluster VI regulatory provisions and two remaining provisi ons of HSWA Cluster II and became effective August 28, 1995. The sixth PRA incorporated the remaining checklists for the non-HSWA Cluster VI and HSWA Cluster II along with RCRA Clusters I, II, and III with the exception of Checklists 112, 122 and 124 and became effective October 14, 1997. The seventh PRA addressed Checklist 124 from RCRA Cluster III, and RCRA Clusters IV (except Checklist 130), V, VI, VII (except Checklist 158) and Checklists 160 and 161 from RCRA Cluster VIII, along with state-initiated changes to the State regulatory program and became effective January 15, 2002. The eighth PRA addressed Checklist 158 from RCRA Cluster VII, RCRA Cluster VIII (except Checklists 160 and 162 which had already been authorized, Checklist 165 which had been withdrawn, and Checklist 166), RCRA Cluster IX, and Checklist 181 from

RCRA Cluster X. The ninth PRA addressed New Yo rk State’s Project XL for Public Utilities. The tenth PRA addressed Checklists 183, 184, 185 and 187 from RCRA Cluster X, Checklists 189, 190, 191, 192A and 193 from RCRA Cluster XI, and Checklists 194, 195 and 196 from RCRA Cluster XII. In addition, certain State pr ovisions were authorized. The eleventh PRA addressed Checklist 207, modifications to the h azardous waste manifest program. The ninth, tenth and eleventh PRAs were combined by USEPA Region II into one package for processing for approval.

This 12th PRA is necessary to address amendments to the NYSDEC's Part 370 series hazardous waste management regulations that originally became effective on July 14, 1985, and were amended on July 1, 1986, July 14, 1987, December 25, 1988, January 31, 1992, December 8, 1993, January 14, 1995, December 18, 1995, October 9, 1996, November 28, 1998, November 24, 1999, March 15, 2002, April 10, 2004, September 3, 2005, May 12, 2006 and September 5, 2006. Changes to these regulations which were effective May 12, 2006 regarding dental amalgam will be addressed in a separate PRA. Changes to these regulations which were effective May 12, 2006 regarding the used oil program are addressed in this PRA.- 2 - The State regulations addressed by this PRA ar e found in the "Official Compilation of Codes Rules and Regulations of the State of New York", published by the Department of State, printed by West Group, as of the March 15, 2006 supplement. A copy of the express terms, filed with Department of State on March 13, 2006 becoming effective May 12, 2006, showing the regulatory changes, and the full text regulations are attached for convenience. With this PRA, the Department is applying for authorization as described in Section II. This Program Description has been prepared in accordance with the requirements of 40 CFR ' 271.6.

The PRA is organized as follows:

Section II describes the scope and coverage of this Program Revision. A listing of the Checklists is included to provide information on both HSWA and non-HSWA activities for which the State is seeking authorization. The di fferences between the federal and State’s laws and regulations is discussed.

Section III is not included. It provides a description of the Department with the aid of an organizational chart. The specific divisions i nvolved with the implementation of the hazardous waste management program are discussed and their individual responsibilities are examined. This section also includes a discussion of division of responsibilities between the Department and EPA. Please refer to the previous PRA for this detail.

Section IV is not included. It identifies st aff and funding resources required to carry out the hazardous waste management program in New Yo rk State. Please refer to the previous PRA

for this detail.

Section V, only subsection M is included. Section V describes the implementation of the hazardous waste management program in New York State. Subsection M is added to describe the implementation of the used oil management program. Please refer to the previous PRA for all other parts of this Section.

Section VI is not included. It includes the State’s compliance tracking and enforcement processes. Please refer to the previous PRA for this detail.

Section VII is not included. It indicates the estimated regulated activities based on the most recent data as of this Program Description. Please refer to the previous PRA for this detail.

Section VIII is not included. It is set aside for copies of State forms. Please refer to the previous PRA for this detail.

Section IX is not included. It includes attachments referenced in other sections of the Program Description. Please refer to the previous PRA for this detail.- 3 - 

### SECTION II

PROGRAM SCOPE

A. Scope and Coverage of Program Revision

This 12th PRA addresses amendments to the Department’s 6 NYCRR Part 370 series hazardous waste management regulations that became effective May 12, 2006 which amended the used oil management program. The State regul ations addressed by this PRA are the "Official Compilation of Codes Rules and Regulations of the State of New York", published by the Department of State, printed by West Group, as of the March 15, 2006 supplement. A copy of the express terms, filed with Department of State March 13, 2006 and effective May 12, 2006, showing the regulatory changes, and the full text regulations are attached for convenience. The amendments to Part 360 and the Part 370 Series are consistent and no less stringent than the federal used oil management regulations that were promulgated on September 10, 1992, May 3, 1993, June 17, 1993, March 4, 1994, May 6, 1998, and July 14, 1998. The federal rules

included in this PRA are listed in Table II-1 below.

1. Identification of exact rules/clusters and other areas for which New York State is seeking authorization.

Table II-1 identifies the federal clusters and used oil rules for which New York State is seeking authorization.

TABLE II-1

CL Checklist Description FR Notice Date

RCRA Cluster III - SPA 14

112

122 Recycled Used Oil Management Standards

Recycled Used Oil Management Standards; Technical

Amendments and Corrections 57 FR 41566

58 FR 26420

58 FR 33341 09/10/92

05/03/93

06/17/93

RCRA Cluster IV - SPA 15

130 Hazardous Waste Identification and Listing of Hazardous Waste; Recycled Used Oil Management

Standards 59 FR 10550 03/04/94

RCRA Cluster VIII - SPA 19

166 Recycled Used Oil Management Standards; Technical

Correction and Clarification 63 FR 24963

63 FR 37780 05/06/98

07/14/98- 4 - 2. Reference to Revision Checklists included in this revision package

The Special Consolidated Checklist for the Recycled Used Oil Management Standards as of June 30, 2002 is Attachment A to the Attorney General’s Statement. The Checklist demonstrates that the State regulations are at least as stringent as the Federal program for the rules for which the State is seeking authorization.

This checklist consolidates the changes to Federal code addressed by the following Recycled Used Oil Management Standards (RUO) checklists through June 30, 2002:

$ Revision Checklist 112 [57 FR 41566 (September 10, 1992)];

$ Revision Checklist 122 [58 FR 26420 (May 3, 1993) and 58 FR 33341 (June 17, 1993)];

$ Revision Checklist 130 [59 FR 10550 (March 4, 1994)]; and

$ Revision Checklist 166 [63 FR 24963 (May 6, 1998), 63 FR 37780 (July 14, 1998)].

This checklist also includes applicable changes made to the Federal code addressed by the following checklists that are not RUO checklists, but which contain revisions to provisions included in the RUO program, through June 30, 2002:

$ Revision Checklist 135 [59 FR 38536 (July 28, 1994)];

$ Revision Checklist 142B [60 FR 25492 (May 11, 1995)];

$ Revision Checklist 169 [63 FR 42110 (August 6, 1998), 63 FR 54356 (October 9, 1998)];

and

$ Revision Checklist 182 [64 FR 52828 (September 30, 1999), 64 FR 63209 (November 19, 1999)].

The State is already authorized for Checklists 135, 142B and 169. The State has not requested authorization for Checklist 182.

Table II-4 presents the general correspondence between State regulations and federal regulations.- 5 - Table II-4

General Correspondence Between State Regulations and Federal Regulations

EPA REGULATION Code of Federal Regulations (CFR) STATE

REGULATION

(6 NYCRR) DESCRIPTION

PART 260 PART 370 Hazardous Waste Management System:

General

PART 261 PART 371 Identification and Listing of Hazardous Waste

PART 262 PART 372 Standards Applicable to Generators of

Hazardous Waste

PART 263 PART 372 Standards Applicable to Transporters of

Hazardous Waste

PART 264 SUBPART 373-2 Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities

PART 265 SUBPART 373-3 Interim Status Standards for Owners and Operators of Hazardous Waste Treatment, Storage, and Disposal Facilities

no equivalent SUBPART 373-4 Facility Standards for the Collection of

Household Hazardous Waste and Hazardous Waste from Conditionally Exempt Small Quantity Generators

PART 266 SUBPART 374-1 Standards for the Management of Specific Hazardous Wastes and Specific Types of Hazardous Waste Management Facilities

PART 268 PART 376 Land Disposal Restrictions

PARTS 270/124 SUBPART 373-1/

PART 621/PART 624 The Hazardous Waste Permit Program

PART 273 SUBPART 374-3 Standards for Universal Waste Management

PART 279 SUBPART 374-2/

SUBPART 360-14 Standards for the Management of Used Oil

The State's program revision does not lessen the State's enforcement program. Furthermore, the Department has adequate enforcement capabilities to address the responsibilities for which the State is now seeking authorization.

3. Public notices, public hearing of program revision

The used oil regulatory amendments included in this PRA were subject to early public outreach starting in 1997, including workshops and mailings resulting in a listing of over 800- 6 - interested parties for subsequent mailings. A public hearing on the rulemaking was held on March 30, 2005, during the public comment period from February 9, 2005 through April 4, 2005. Notice of the public comment period and public hearing, providing notice of pending proposed changes and soliciting comment on these changes, was published in a local newspaper, appeared in the State Register and also the Environmental Notice Bulletin, posted on the Department web site, and mailed to the list of interested parties. The proposed amendments were also available on the Department web site.



### B. Differences Between Fed eral and State Regulations

The New York State hazardous waste manageme nt regulations are more stringent and broader in scope than the corresponding federal regulations in a number of different areas with regard to the used oil management program. The following discussion describes all of the significant differences between state and federal re gulations in this area, including those areas in which the state regulations are more stringent or broader in scope.

In this listing, "*" indicates that the NYS requirement is potentially broader or more stringent than federal requirements, not merely different.

Federal regulations

40 CFR 261.4(b)(14): This federal provision excl udes from regulation used oil re-refining distillation bottoms that are used as feedstock to manufacture asphalt products. This exclusion was not adopted into State regulations. Theref ore, State regulations are broader in scope.

Subpart 374-2, Standards for the Management of Used Oil

1. The definitions of 374-2.1(a) does not reference the 280.12 terms because they are either not used in State used oil regulations, already defined in parts 370 or 371, explained within the text of 374-2, or separately defined in 374-2. Several terms defined in 40 CFR 280 are not consistent with the same terms as defined in 370, 371, or 374-2. Other terms, defined only in 40 CFR 280, are not consistent with their usage in 374-2.

2. The 374-2.1(a) definition for “used oil pr ocessor/re-refiner”clarified by including rerefining as well as processing.

*3. “Used oil transfer facility” definition of 374-2.1(a) includes a reference to broader in scope Part 360 permitting requirements.

*4. Subdivision 374-2.2(a) includes references to items that are more stringent, including Petroleum Bulk Storage requirements, broader in scope, such as Part 360 (solid waste management facility) and Part 364 (waste hauling) permitting, and items that are both broader in scope and more stringent, such as Air regulation management and permitting requirements.

*5. Subclause 374-2.2(a)(2)(i)(‘b’)(‘1’) states that lab analysis for the purposes of rebutting the presumption of hazardous waste mixing must be performed at a lab certified by the Environmental Laboratory Approval Program (ELA P). This is repeated at subparagraph 374- 2.5(e)(3)(i).- 7 - *6. Subparagraph 374-2.2(a)(5)(ii) subjects material s produced from used oil that are burned for energy recovery to 6 NYCRR Part 225, which in cludes more stringent management standards and references broader in scope Part 201 permitting requirements.

*7. NY regulates used oil containing greater th an 50 ppm of PCBs as a hazardous waste at paragraph 374-2.2(a)(9).

*8. Subparagraph 374-2.2(b)(1)(i) states that lab analyses for specification determination must be performed by ELAP certified labs.

*9. Table 1 of Paragraph 374-2.2(b)(1) includes a specification level for PCB’s.

*10. Table 1 of Paragraph 374-2.2(b)(1), at Footnote 2, states that used oil with more than 50 ppm PCBs is a hazardous waste, unless the oil was derived from small capacitors. It also states the applicable hazardous waste regulations oil with greater than 50 ppm PCBs is subjected to.

*11. Paragraph 374-2.2(c)(1) prohibits storage in pits, ponds and lagoons. Storage of used oil in surface impoundments, including those subject to regulation under 40 CFR 264 and 265, is also prohibited.

*12. Paragraph 374-2.2(c)(2) also prohibits land a pplication and direct disposal on land. NY will not petition EPA for authorization to use used oil as a dust suppressant, and the state is not listed at 40 CFR 279.82(c).

*13. Paragraph 374-2.2(c)(4) prohibits the disposal of recyclable used oil by means of absorbents, except to clean up spills. There is no federal counterpart.

*14. The 374-2.3(a)(1)(iv) exemption from generator requirements for farmers applies only if the used oil is used in normal farming operations. Land application or land disposal are not considered normal farming operations.

*15. Generators, transporters, processors/re-refiners and burners who dispose used oil by using it as a dust suppressant, while allowed in accordance with the conditions of Subpart I of 40 CFR 279, are violating the state’s analogous provision, subdivision 374-2.9(c), which is referenced at 374-2.3(a)(2)(v) for generators, 374-2.5(a)(5)(v) for transporters, 374-2.6(a)(3)(v) for processors/re-refiners, and at 374-2.7(a)(2)(v) for off-specification burners.

*16. In accordance with subparagraphs 374-2.3(c)(1)(i) and (ii), storage of used oil must also be in compliance with local and state fire and building codes, including NFPA-30.

*17. In accordance with paragraph 374-2.3(c)(2), aboveground and underground used oil tanks must be in compliance with Petroleum Bulk Storage (PBS) standards, 6 NYCRR Parts 612, 613, and 614, including more stringent installation, cl osure, inspection and repair standards, and registration requirements. Aboveground tanks meeting the 40 CFR 280 definition of an underground tank must also be in compliance with the Federal UST regulations. Tanks at licensed Part 610 facilities do not require registration under Part 612. There is no federal

counterpart.- 8 - *18. In addition to being labeled “Used Oil” as per 279.22(c)(1), aboveground tanks must also be labeled with their design and working capacities, in accordance with subparagraph 374- 2.3(c)(8)(i).

*19. In addition to being labeled “Used Oil” at the fill pipe as per 279.22(c)(2), underground tanks must also include the tank capacity on the label, in accordance with subparagraph 374- 2.3(c)(8)(ii).

*20. At subparagraph 374-2.3(c)(9)(i), generator spills are subject to Article 12 of the Navigation Law, their implementing regulations, and to related provisions in the Environmental Conservation Law and the PBS regulations, in a ddition to the federal standards of 279.22(d). These more stringent state requirements are repeated for used oil transfer facilities at 374- 2.5(f)(7)(i), as compared to 279.45(h); for used oil processor/re-refiners at 374-2.6(e)(6)(i) as compared to 279.54(g); and for off-specification used oil burners at 374-2.7(e)(8)(i).

21. Spill notifications are clarified by subparagraph 374-2.3(c)(9)(iii). Generators must notify the NYSDEC by calling the Spill Hotline within 2 hours of detecting a spill. This provision is repeated for owners/operators of us ed oil transfer facilities at 374-2.5(f)(7)(iii), for processors/re-refiners at 374-2.6(e)(6)(iii), and for off-specification used oil burners at 374- 2.7(e)(8)(iii).

22. Paragraph 374-2.3(d)(3), concerning the venti ng of combustion gases at used oil-fired space heaters clarifies the original intent of EPA - venting to outdoors; see 50 FR 49194 (11/29/85).

*23. In accordance with subdivision 374-2.3(e), generators must ensure that applicable transporters conducting off-site shipments are permitted under 6 NYCRR Part 364 in addition to having EPA ID numbers.

*24. Subdivision 374-2.3(f) details requirements fo r accepting used oil from DIYs at service and retail establishments. They are broader in scope because there are no analogous requirements in the Federal used oil regulations.

*25. Paragraphs 374-2.4(a)(2) and 374-2.4(c)(2) states that DIY used oil collection centers and used oil aggregation points, respectively, must comply with the generator standards of 374- 2.3, including all state-based generator requirements that are more stringent than the analogous Federal requirements.

*26. Subparagraph 374-2.4(b)(2)(i) states that non-DIY used oil collection centers must comply with the state used oil transfer f acility standards of 374-2.5, including the permitting requirements of 360-14.3.

*27. Paragraph 374-2.5(a)(1), analogous to the introductory section of 279.40(a), requires that used oil transporters and transfer facilities comp ly with applicable provisions of Subpart 360-14 and Part 364. Subpart 360-14 involves facility permitting, while Part 364 involves transporter permitting. Transfer facilities qualifying for the exemption from permitting of either 360-14.1(b)(7) or 360-14.1(b)(8) must comply with th e federal transfer facility standards of- 9 - 40 CFR 279, Subpart E instead of the state standards of 374-2.5.

*28. By the terms of paragraph 374-2.5(a)(2), tran sfer facilities located at facilities regulated under Part 373 must be in compliance with the provisions of 360-14.1(a)(4), including any permitting requirements pursuant to either Part 360 or Part 373. There is no federal counterpart.

*29. In addition to the analogous requirements of 279.40(d), paragraph 374-2.5(a)(5) subjects used oil transfer facilities in NY to Part 360 permitting, unless exempt, and the facilities must be in compliance with the general facility standards that processing and re-refining facilities are subjected to.

*30. 374-2.5(a)(5)(ii) is broader in scope than 279.40(d)(2) because it subjects transporters who process used oil to Part 360 permitting.

31. 40 CFR 279.42(b)(2) says that the letter to EPA requesting an identification number “SHOULD include the following information” (e mphasis added). The analogous provision in state regulation, 374-2.5(c)(2)(ii) substitutes the word MUST for SHOULD. Based upon the Federal Register Preamble, at 57 FR 41589, the EPA did not intend that the contents of the letter requesting an ID number be permissive. Therefore, the substitute word in state regulation is a clarification of federal intent, and does not constitute greater stringency. The same comments apply to processors/re-refiners at 40 CF R 279.51(b) and its analogous provision in NY’s regulations, 374-2.6(b)(2). These comments also apply to used oil marketers at 40 CFR 279.73(b)(2) and its analogous provision in state regulations, 374-2.8(d)(2)(ii).

*32. In accordance with subparagraph 374-2.5(d)(1)(i), the transporter the used oil is delivered to must be permitted under Part 364,and must have an EPA ID number. Transporter’s facility must be permitted under Part 360, unless exempt. In accordance with clause 374- 2.5(d)(1)(i)(‘a’), transfer facility owners or operators must ensure that deliveries of used oil to their facilities are performed only by Part 364 pe rmitted transporters with EPA identification numbers. The analogous federal provision, 279.43(a)(1), does not refer to permitting requirements for used oil transporters or for transfer facilities.

*33. In accordance with clause 374-2.5(d)(1)(ii), processing/re-refining facilities receiving used oil from transporters must be permitted under Part 360 as well as having an EPA identification number. The analogous federal provision, 279.43(a)(2), does not refer to permitting requirements for used oil processors or re-refiners.

*34. In accordance with clause 374-2.5(d)(1)(iii), off-specification used oil burners receiving used oil from a transporter must be authorized under 6 NYCRR Subpart 225-2, which may require Part 201 permitting, and they must have an EPA ID number. The analogous federal provision, 279.43(a)(3), does not refer to air quality regulations.

*35. In accordance with paragraph 374-2.5(d)(2), used oil transporters must comply with Part 364 permitting requirements in addition to compliance with DOT standards. The analogous provision in the federal used oil regulations, 40 CFR 279.43(b), only refers to compliance with DOT regulations.

*36. Paragraph 374-2.5(d)(3) states that used oil releases are subject to overlapping Article 12,- 10 - Navigation Law requirements in addition to the spill notification and clean-up requirements spelled out in the used oil regulations (the corresponding federal provision, 279.43(c), should have mentioned the applicability of 40 CFR 300).

*37. In a transportation related discharge of used oil, subparagraph 374-2.5(d)(3)(i) requires the transporter to notify the Department in accordance with 6 NYCRR 613.8 in addition to performing the 279.43(c)(1) based activities.

38. In addition to Spill notification to the National Response Center, as prescribed by 279.43(c)(3)(i), the analogous state provision 374-2.5(d)(3)(iii)(‘a’) requires notification to the Department within 2 hours of detection via the Spill Response Hotline number.

*39. Subparagraph 374-2.5(d)(3)(v) references the more stringent clean-up standards of Article 12 of the Navigation Law in addition to the federal provisions derived from 279.43(c)(5).

40. 374-2.5(e)(1)(ii), analogous to 279.44(b)(2), is not applicable to used oil transfer facilities, which must comply instead with 374-2.5(e)(2).

*41. In accordance with paragraph 374.2.5(e)(2) owners and operators of used oil transfer facilities must test all incoming loads of used oil for total halogen content, in accordance with a written quality control plan. There is no federal counterpart to this provision.

42. The exemption from hazardous waste regulation for used oil-CESQG hazardous waste mixtures is included as another example of rebutting the rebuttable presumption at paragraph 374-2.5(e)(3).

*43. Paragraph 374-2.5(e)(4) states that used oil containing 50 ppm or more of PCBs is a hazardous waste, unless the PCBs were derived solely from small capacitors. There is no analogous federal provision.

*44. Paragraph 374-2.5(e)(5) states that transfer facilities subject to Part 360 permitting must retain quality control and rebuttable presumption records for 7 years. Records pertaining to PCB content are included in these recordkeeping requirements, when applicable. This provision is more stringent and broader in scope than the analogous federal provision, 279.44(d).

*45. Due to the different definition for “underground tank” in state regulations, it is necessary to cite 374-2.5(f)(3)(i)(‘b’) together with 374-2.5(f) for full equivalency with 279.45. Compliance with Subpart 360-14 may require permitting, unless exempt.

*46. Subparagraphs 374-2.5(f)(3)(i), (ii), and (iii) subjects above and underground tanks to comply with the Petroleum Bulk Storage standards of 6 NYCRR Parts 612 - 614, including more stringent registration, installation, closure, inspection, and repair requirements, compared to the analogous federal provision, 279.45. However, tanks licensed under Part 610 do not need to be registered. *47. Paragraph 374-2.5(f)(1) subjects transfer facilities to the permitting requirements of 360- 14, unless exempt, and is therefore broader in scope as compared to it’s analogous federal provision, 40 CFR 279.45(a).- 11 - *48. In addition to the federally derived requirements from 279.45(b), the analogous state provision 374-2.5(f)(2) requires storage units at tran sfer facilities comply with local building and fire codes and with the State Fire and Building Code, including NFPA-30.

*49. Subparagraph 374-2.5(f)(3)(i) subjects above ground and underground tanks to Petroleum Bulk Storage requirements, including monthl y inspection requirements of 6 NYCRR 613.6(a) and requirements for repairing deficient tank equipm ent, at 613.6(d). This is more stringent than the analogous federal provision of 279.45(c).

*50. 374-2.5(f)(6)(i) is more stringent than 279.45(g)(1) because aboveground tanks must be labeled or marked with their design and working capacities.

*51. Subparagraph 374-2.5(f)(6)(ii) requires that fill pipes for underground tanks must be labeled with the tank’s capacity and is therefore more stringent than the analogous federal provision, 40 CFR 279.45(g)(2).

*52. Transfer facilities are subject to closure re quirements at paragraph 374-2.5(f)(8). There is no analogous federal provision.

*53. By paragraph 374-2.5(g)(1) and (g)(2), transfer facilities subject to Part 360 permitting also must maintain copies of invoices in addition to the recordkeeping requirements of incoming and outgoing shipments that transporters are subjected to at 279.46(a) and (b).

*54. By 374-2.5(g)(1)(vi) and (g)(2)(vi), the records of incoming and outgoing shipments

must indicate whether the used oil is on or off- specification, and if it is on-specification, records must indicate the method employed to determine it as such. Applies to facilities subject to Part 360 permitting, and is therefore both broader in scope and more stringent than the analogous federal requirements of 279.46(a) and (b).

*55. By paragraph 374-2.5(g)(3), transfer facilities subject to Part 360 permitting must includeon their records of used oil shipments to foreign countries whether the used oil is on or offspecification, and if it is on-specification, the records must indicate the method employed to determine it as such. Analogous federal provision 279.46(c) does not require this.

*56. Subparagraph 374-2.5(g)(4)(i) requires that transfer facilities subject to Part 360 permitting must maintain shipment records for seven years. This is more stringent than analogous federal provision 279.46(d) which allows all used oil transporters, including transfer facilities, to maintain records for just three years. It is also broader in scope than the federal provision because there is no permitting requirement for used oil transfer facilities under federal regulations.

*57. Paragraph 374-2.6(a)(2) has no Federal analog. It concerns used oil processing at facilities that are also permitted hazardous waste facilities. The provision specifies conditions where the facilities will be subject to Part 360 permitting as used oil processors.

*58. Paragraph 374-2.6(a)(3) subjects used oil processors/re-refiners to Part 360 permitting requirements which are broader in scope compared to 279.50(b) of the federal regulations.- 12 - *59. Subdivision 374-2.6(c), concerning general facility standards for processors/re-refiners, is more stringent than Section 279.52 of the federal regulations because NY subjects used oil collection centers and transfer facilities to these requirements.

*60. 374-2.6(c)(1)(ii)(‘c’) of state regulations is more stringent than the analogous federal provision 279.52(a)(2)(iii) because the state provision lists several additional items of personal safety equipment.

*61. Clause 374-2.6(c)(1)(iv)(‘b’) is more stringent than the analogous federal provision 279.52(a)(4)(ii) because an emergency summoning device is always required in state regulation.

*62. In addition to the comments stated in item 59 of this document, paragraph 374-2.6(c)(2) of NY’s regulations is more stringent than the analogous 279.52(b) of the federal regulations because processors, re-refiners, collection centers, and transfer facilities are also subject to the contingency plan permit application requirements of subdivision 360-1.9(h).

*63. Clause 374-2.6(c)(2)(i)(‘b’) is more stringent than the analogous federal provision 279.52(b)(1)(ii) because the state places responsibility for carrying out the contingency plan in an emergency on the facility operator.

*64. Clause 374-2.6(c)(2)(ii)(‘a’) is more stringent than the analogous federal provision 279.52(b)(2)(i) because the state requires that contingency plans must also include actions to be taken if the facility is shut down for more than 24 hours.

*65. Clause 374-2.6(c)(2)(ii)(‘f’) is more stringent than the analogous federal provision 279.52(b)(2)(vi) because the state always requires that evacuation plans be included in a facility’s contingency plan. The federal provision only requires preparation of an evacuation plan if there is a possibility that an evacuation may be necessary.

*66. Subclause 374-2.6(c)(2)(vi)(‘d’)(‘2’) is more stringent than the analogous federal provision 279.52(b)(6)(iv)(B) because the state requires the emergency coordinator to also notify the NYSDEC’s Spill Hotline if a spill has occurred.

*67. Clause 374-2.6(c)(2)(vi)(‘i’) is more stringent than the analogous federal provision 279.52(b)(6)(ix) because a written report must also be submitted to the NYSDEC Regional Director in the Region where the incident occurred as well as to the EPA Regional

Administrator.

*68. Paragraph 374-2.6(d)(1) of NY’s regulations is more stringent than 279.53(a), (b), (b)(1), and (b)(2) of the federal regulations because total halogen determinations at a used oil processor/re-refiner must be made upon each incoming load of used oil by a sampling method in accordance with Appendix 19 of 6 NYCRR, and tested in accordance with SW-846. Furthermore, subparagraph 374-2.6(d)(1)(i) adds to the stringency by requiring that if the samples are not tested at an acceptable laboratory, then 5% of the tests must be split sampled and tested at a laboratory acceptable to the department.

69. The exemption from hazardous waste regulation for used oil-CESQG hazardous waste mixtures is included as another example of rebutting the rebuttable presumption at paragraph- 13 - 374-2.6(d)(2). However, this is a clarifica tion of the analogous federal provision 279.53(c) and does not affect the comparative stringency of the state provision.

*70. Subparagraph 374-2.6(d)(2)(i) is more stringent than 279.53(c) of the federal regulations because rebuttable presumption analyses at a used oil processor/re-refiner must be performed by

ELAP certified labs.

*71. In accordance with paragraph 374-2.6(d)(3), if facility owner or operator does not rebut the presumption, the load must be rejected and the department Regional Solid & Hazardous Materials engineer must be notified. There is no analogous federal provision.

*72. Paragraph 374-2.6(d)(4) is broader in scope than federal regulations because it states that used oil containing 50 ppm or greater of PCBs is a hazardous waste, unless the PCBs were derived solely from small capacitors. There is no analogous federal provision.

*73. In addition to the federally based requirements derived from 279.54, subdivision 374- 2.6(e) subjects processors/re-refiners to the broader in scope permitting requirements of Subpart

360-14.

74. Due to the different definition for “underground tank” in state used oil regulations, it is necessary to cite 374-2.6(e)(2)(i)(‘b’) together with 374-2.6(e) for full equivalency with 279.54.

*75. In addition to compliance with the closure requirements of 40 CFR 280, as cited in federal regulation at 279.54, owners and operators of underground used oil tanks must comply with the closure requirements of 6 NYCRR 613.9 of the state’s Petroleum Bulk Storage regulations.

*76. Paragraph 374-2.6(e)(1) and subparagraphs (e)(1)(i) and (e)(1)(ii) are more stringent than analogous 279.54(a) because the state provisions require that used oil storage units must also be in compliance with local fire and building codes and with the NYS Uniform Fire Prevention and Building Code.

*77. Paragraph 374-2.6(e)(2) and subparagraphs (e)(2)(i), (e)(2)(ii) and (e)(2)(iii) are more stringent than federal regulation because thes e provisions require that above and underground used oil tanks be in compliance with Petroleum Bulk Storage standards of 6 NYCRR Parts 612 - 614, including registration, inst allation, closure, inspection, and repair requirements. However, tanks licensed under Part 610 do not need to be registered under Part 612. There is no analogous federal requirement.

*78. 374-2.6(e)(5)(i) is more stringent than 279.54(f)(1) because aboveground tanks must be labeled or marked with their design and working capacities. *79. Subparagraph 374-2.6(e)(5)(ii) requires that fill pipes for underground tanks must be labeled with the tank’s capacity and is therefore more stringent than the analogous federal provision, 40 CFR 279.45(f)(2).

*80. Subparagraph 374-2.6(e)(7)(i) of NY’s regulations is more stringent than the analogous 279.54(h) of federal regulations because state re gulations specify that closure of aboveground tanks at processor/refiners must commence within 180 days after storage or processing has- 14 - ceased.

*81. Clause 374-2.6(e)(7)(i)(‘a’) of state regulation is more stringent than the analogous 279.54(h)(1)(i) of the federal regulations because the state provision says that closure of aboveground tanks must also be in conformance to section 613.9 of the Petroleum Bulk Storage regulations.

*82. Subparagraph 374-2.6(e)(7)(ii) of state regula tion is more stringent than the analogous 279.54(h)(2) of the federal regulations because the state provision says that compliance with closure requirements must commence within 180 days after storage in containers has

ceased.

*83. Subdivision 374-2.6(f) of state regulation is more stringent than the analogous federal provision 279.55 because the state provision says that any changes to the used oil quality control plan (called the analysis plan in federal regulations) must be approved by the department.

*84. Paragraph 374-2.6(f)(1) of the state regulations is more stringent than the analogous federal provisions 279.55(a), (a)(1), (a)(2), and (a)(3) because under the state provision, the quality control plan must describe how all incoming loads of used oil will be tested for total halogen content. Reliance upon generator knowledge of the halogen content is not acceptable. Thus, there are no analogous provisions in state regulations to 279.55(a)(1), (a)(2) intro, and (a)(3).

*85. Subparagraph 374-2.6(f)(2)(i) requires that the quality control plan must include a detailed flow diagram which indicates where on a nd off-specification used oils are handled and is thereby more stringent than the analogous federal provision of 279.55(b).

*86. Subparagraph 374-2.6(f)(2)(v) states that the quality control plan must include a description of precautions taken to prevent contamination of on-specification used oil that is stored on-site. Federal regulations have no analogous provision.

87. Reserved.

*88. 374-2.6(f)(3), (f)(3)(i), (f)(3)(ii), and (f)(3)( iii) detail how the quality control plan must include a description of procedures to be employed if a load of used oil transported to the facility is suspected or determined to be a hazardous waste and the subsequent notification procedures to the department. There is no analogous provision in federal regulation.

*89. Paragraph 374-2.6(g)(1) of the state regulations is more stringent than the analogous 279.56(a) because the state requires that Processors/re-refiners ensure and confirm that their transporters are permitted under Part 364 (this is also a broader in scope provision). The requirement that processors/re-refiners must keep copies of invoices is more stringent than the analogous Federal provision because the Federal requirement allows for other types of records besides invoices (this point also applies to 374- 2.6(g)(2) being more stringent than 279.56(b)).

*90. By 374-2.6(g)(1)(vi) and (g)(2)(vi), the records of incoming and outgoing shipments at a processor/re-refiner must indicate whether the used oil is on or off-specification, and if it is onspecification, records must indicate the method employed to determine it as such. There is no- 15 - analogous federal requirement in 279.56(a) and (b).

*91. Paragraph 374-2.6(g)(3) is more stringent than the analogous 279.56(c) because the shipment records must be maintained for 7 years instead of 3.

*92. Clauses 374-2.6(h)(1)(‘a’) and (‘b’) requires that the processor/re-refiner’s operating record must also include the facility’s used oil tracking records, and that inspection records must be kept for 7 years. These operating record requirements are not included in the analogous 279.57(a) of the federal regulations.

*93. New York at paragraph 374-2.6(h)(2) is more stringent than federal regulations at 279.57(b) because the state requires that the processor/re-refiner submit an annual report instead of a biennial letter, which must be sent to th e department’s Central Office and Regional Office.

*94. The state’s 374-2.6(h)(2)(i) is more stringent than 279.57(b)(1) of the federal standards because this provision requires that the report must also include the facility’s contact person, phone number, and location.

*95. Subparagraph 374-2.6(h)(2)(iii) requires that the processor/re-refiner’s annual report must include a list of each storage tank and its capacity. There is no analogous federal provision.

*96. Paragraph 374-2.6(h)(2)(iv) and subparagraphs (2)(iv)(‘a’), (‘b’), and (‘c’) are more stringent than the analogous 279.57(b)(3) of the federal regulation because the state requires that the annual report must also include a monthly summary of all incoming and outgoing loads, including names, addresses, and EPA ID numbers of originating and receiving facilities, and a summary of the type of used oil accepted. If received from numerous facilities from one load, the transporter’s name, Part 364 permit number (referring to a broader in scope state program),

and EPA ID number can be used instead.

*97. Subparagraphs 374-2.6(h)(2)(v), (vi), (vii), and (viii) requires that the processor/rerefiner’s annual report must include results of chemical analyses, descriptions of spills or emergencies, list of rejected loads, and a description of operational changes. Rejected load list must include transporter’s Part 364 permit number (referring to a broader in scope requirement). These subparagraphs are more stringent than federal regulations because there is no analogous federal provision.

*98. Subdivision 374-2.6(i) is more stringent and broader in scope than the analogous 279.58 of the federal regulations because the state provision requires that the transporter be permitted under Part 364, unless exempt. *99. Paragraph 374-2.7(a)(2) of NY regulations is more stringent and broader in scope than the analogous 279.60(b) of the federal regulations because the state subjects used oil burners to Air Quality regulations of Parts 201 and 225, including Part 201 permitting requirements.

*100. Subparagraph 374-2.7(a)(2)(ii) is broader in scope than the analogous federal standards of 279.60(b)(2) because in NY, burners who transport used oil are subject to Part 364, if applicable, including permitting requirements.

101. Subclause 374-2.7(b)(1)(ii)(‘c’)(‘3’) had been modified from the federal 279.61(a)(2)(iii)- 16 - to clarify the original intent of EPA, i.e., venting to the outside ambient air - see 50 FR 49194 (11/29/85). The modification has no effect on stringency.

102. Subparagraph 374-2.7(c)(2)(ii) substitutes the word “must” instead of “should” as it appears in the analogous federal provision 279.62(b)(2), which describes the contents of a letter requesting an EPA identification number. Base d upon the Federal Register Preamble for 40 CFR 279, at 57 FR 41589 (09/10/92), the requirements stating the contents of the letter requesting an EPA identification number were not intended to be permissive and therefore the state modification represents a clarification and not increased stringency.

*103. Paragraph 374-2.7(c)(3) is more stringent than federal regulations because the state requires the burner to notifiy the department’s Regional Headquarters in the Region where the burner facility is located. There is no analogous federal provision.

104. Paragraph 374-2.7(d)(3) adds to the parent hetical portion of its federal analog, 279.63(c) by including the exemption from hazardous waste regulation for used oil-CESQG hazardous waste mixtures as another example of rebutting the rebuttable presumption. This is a

clarification that neither increases or decreases the stringency of the state provision compared to

the federal.

*105. The state regulations adds the provision 374- 2.7(d)(3)(i) which states that analyses to rebut the presumption at used oil burner facilities must be conducted by labs certified by the Environmental Laboratory Approval Program (ELAP). This is more stringent than the federal provision 279.63(c).

*106. 374-2.7(d)(4) states that NY regulates used oil containing greater than 50 ppm of PCBs as a hazardous waste. This provision is thereby broader in scope than federal used oil regulations. There is no analogous federal provision.

*107. Record retention at burner facilities must include those concerning PCB content, in accordance with paragraph 374-2.7(d)(5). This is more stringent than the analogous 279.63(d) of federal regulations which do not require records concerning PCB content.

108. Due to the different definition for “underground tank” in state regulations, it is necessary to cite 374-2.7(e)(2)(i)(‘b’) together with 374-2.7(e) for full equivalency with 279.64 of the federal regulations.

*109. In accordance with subparagraphs 374-2.7(e)(1)(i) and (ii), storage of used oil must also be in compliance with local and state fire and building codes, including NFPA-30. The federal regulations do not address this at 279.64(a).

*110. Subparagraphs 374-2.7(e)(2)(i), (ii) and (iii) require that above and underground tanks at burner facilities must be in compliance with Petroleum Bulk Storage standards of 6 NYCRR Parts 612 - 614, including more stringent registrati on, installation, closure, inspection, and repair requirements. However, tanks licensed under Part 610 do not need to be registered. Aboveground tanks meeting the 40 CFR 280 definition of an underground tank must also be in compliance with the Federal UST regulations. There is no analogous federal requirement.- 17 - *111. In addition to being labeled “Used Oil” as per 279.64(f)(1), aboveground tanks must also be labeled with their design and working capacities, in accordance with subparagraph 374- 2.7(e)(7)(i).

*112. In addition to being labeled “Used Oil” at the fill pipe as per 279.64(f)(2), underground tanks must also include the tank capacity on the label, in accordance with subparagraph 374- 2.7(e)(7)(ii).

*113. Paragraph 374-2.7(f)(1) requires that used oil burners must ensure and confirm that the transporters they use are permitted under Part 364. This is both more stringent and broader in scope than the analogous federal provision, 279.65(a).

*114. Tracking records must be kept for 7 years according to paragraph 374-2.7(f)(2) of state regulations. This is more stringent than the analogous federal provision 279.65(b), which only requires record retention for 3 years.

*115. Subparagraph 374-2.7(g)(1)(i) requires that the burner must also notify the department’s Regional office as well as the EPA. The analogous federal provision, 279.66(a)(1), only requires that the burner notify the EPA.

*116. The certification described in 374-2.7(g)(1) must be kept by the burner for 7 years according to paragraph 374-2.7(g)(2) of state regulations. This is more stringent than the analogous federal provision 279.66(b), which only requi res certification retention for 3 years.

*117. Paragraph 374-2.8(c)(2) requires that a marketer of on-specification used oil must keep records of the analysis or other information documenting that the oil is on specification for seven years. This is more stringent than the analogous federal provision, 279.72(b), which only requires that these records be kept for 3 years.

*118. Paragraph 374-2.8(e)(3) is more stringent than the analogous federal provision 279.74(c) because the state provision requires that the marketer must keep delivery records for seven years.

*119. Subparagraph 374-2.8(f)(1)(i) is more stringent than the analogous federal provision 279.75(a)(1) because the state provision requires that the burner provide to the marketer

certification that the burner notified both the state DEC and the federal EPA. The federal provision requires that certification includes notification to EPA only.

*120. Paragraph 374-2.8(f)(2) is more stringent than the analogous federal provision 279.75(b) because the state requires that the aforesaid certification must be maintained for seven years. Federal regulations only require 3 year retention.

121. Federal standards for used oil disposal at 40 CFR 279, Subpart I differ from the analogous state standards at Section 374-2.9 becau se in New York, burning used oil for energyrecovery is considered a form of disposal. However, 374-2.9 is not applicable as long as the offspecification used oil is burned for energy recovery in accordance with Section 374-2.7 and the Air regulations.

*122. Paragraph 374-2.9(a)(1) references the broader in scope permitting requirements of 6- 18 - NYCRR Part 201 and the more stringent manage ment standards of Part 225. There is no analogous requirement in the federal used oil regulation.

*123. Subdivision 374-2.9(c) is more stringent than the analogous 279.82(a) of federal regulations because the state’s prohibition on the use of used oil as a dust suppressant is absolute. It is also for this reason that the state’s used oil regulations have no provisions analogous to 279.82(b) and (c), which detail how a state can petition the EPA to allow the use of used oil as a dust suppressant and lists the states that have received this allowance.

Subpart 360-14, Used Oil Management Facilities

*1. Subdivision 360-14.1(a) states conditions wh en used oil requirements are applicable, and where permitting requirements of Subpart 360-1 are a pplicable. It also states that Subpart 374-2 is applicable whenever used oil is being managed (except DIYs), and it delineates used oil requirements at sites that also manage hazardous waste.

*2. Subdivision 360-14.1(b) provides exempti ons from Part 360 permitting for various used oil facility types and operations.

*3. Subdivision 360-14.1(c) compares used oil to waste oil, and delineates which waste oils shall be regulated as used oils.

*4. Section 360-14.2 provides definitions; some of them are copied from Subpart 374-2, many of which are 40 CFR 279 based, but there are other definitions that are derived from Article 23, Title 23 of the State’s Environmental Conservation Law (ECL), including “fuel oil”, “lube stock”, “lubricating oil”, “used engine lubricati ng oil”, “used engine lubricating oil retention facility”. It also includes a definition for “waste oil”, derived from Article 27, Title 3 of the

ECL.

*5. Section 360-14.3 is devoted to permitting requirements for used oil transfer facilities and

collection centers.

*6. Section 360-14.4 is devoted to permitting requirements for used oil processors and rerefiners.



### SECTION V

M. Used Oil Management Program

New York State regulations governing used oil are located at 6 NYCRR Subparts 360-14

and 374-2.- 19 - Through Subpart 374-2, the Department sets management standards for all entities handling used oil except for do-it-yourself oil cha ngers (DIYs). The facility types so regulated include used oil generators, collection centers and aggregation points, transporters and transfer facilities, processors and re-refiners, and off-specification used oil burners. Requirements detailing marketing and disposal of used oil, applicable to all facility types, are also established in this Subpart. Management standards for all used oil facility types generally parallel federal 40 CFR 279 requirements. The standards for used oil generators also include provisions derived from Article 23, Title 23 of the Environmental Conservation Law. These provisions in general require that certain commercial service establishments and major retailers accept used oil at no charge from DIYs.

Many elements of the state’s used oil management program are similar to the hazardous waste program. The used oil program differs in implementation primarily due to the applicability of New York’s Part 360 Solid Waste Management Facility regulations to facilities in the State that manage used oil. This is the result of the adoption of the federal recycling presumption for used oil. The inclusion of the recycling presumption means that the State does not regulate used oil as a hazardous waste, even if the oil displays hazardous characteristics, on the assumption that the oil will be directed for recycling instead of disposal. Because of this, State regulations governing non-hazardous solid waste apply to used oil.

In State regulation, used oil falls within the definition of “solid waste”, found at section 360-1.2 of the Solid Waste Management Facilities regulations. At 360-1.7(a) the regulations state that:

(1) Except as provided for in subdivisions (b) and (c) of this section, section 360-1.13 of this Subpart or otherwise provided for in the applicable Subpart pertaining to the type of solid waste management facility in question, no person shall:

(i) construct or operate a solid waste management facility, or any phase of it, except in accordance with a valid permit issued pursuant to this Part.

Thus, while permitting of used oil facilities is not required under federal regulation, the applicability of Part 360 requires permitting for all used oil facilities unless exempted by Subpart 360-14. Owners/operators of transfer facilities, processors, re-refiners, and non-DIY used oil collection centers require permitting under Part 360. All other facility types are exempt from permitting at 360-14.1(b), but are still subject to the management standards of Subpart 374-2.

General Part 360 permitting requirements are located in Subpart 360-1, and Subpart 360-14 includes permitting requirements specific to used oil facilities. The Part 360 solid waste management facility permitting process is also subject to the same procedural requirements of Parts 621 and 624 that Part 373 hazardous waste permitting is subject to.

Permitted solid waste management facilities, including facilities managing used oil, are required under Section 360-1.12 to have financial assurance. This Section references the

hazardous waste financial assurance criteria of Section 373-2.8.- 20 - Used oil transporters are subject to Part 364, including permitting and annual reporting requirements.

All used oil tanks are also subject to the State’s Petroleum Bulk Storage (PBS) regulations, Parts 612 through 614, which include standards for tank registration, inspections,

and new tank installations.

Other differences between State and federal regulation of used oil are detailed in Section

II.B. above.

The solid waste information management database, or SWIMS, includes information pertaining to Part 360 permitted used oil facilities and Part 364 permitted used oil haulers. Information available on SWIMS also includes data derived from the annual reports that used oil haulers are required to submit under Part 364.

Outreach efforts to the public regarding used oil management include appearances at public events and the publication of informational brochures to encourage recycling. This includes brochures outlining the state’s regulatory requirements for service and retail establishments to accept DIY-generated used oil.

Regional Department staff are involved with used oil compliance, particularly in regards to used oil facilities permitted under Part 360 and to DIY-used oil take-back requirements for service stations and retailers as authorized by Article 23 of the State’s Environmental Conservation Law. Activities include Part 360 permit application review, facility inspections, public outreach, and response to citizen complaints.