The Arizona Department of Weights and Measures is breaking the law and endangering the environment by refusing to test recycled oil that is burned as fuel by heavy industry, according to an official at the Arizona Department of Environmental Quality.
Service stations and other maintenance shops must pay disposal services to cart off the oil they drain out of crankcases, and much of it ends up as fuel used in the manufacture of asphalt and cement. State law sets levels of heavy metals, PCBs and other by-products of engine wear that end up in used oil and that can be burned without releasing those substances into the atmosphere.
Furthermore, solvents such as degreasing agents accidentally or intentionally find their way into the used oil and need to be disposed of at substantially greater expense to the mechanic. If those chemicals are unwittingly burned, they can release dioxins or phosgene gas--a nerve gas--into the air we breathe.
The responsibility for testing used oil, both at the service stations and at the industries that burn it, belongs to ADWM, which is supposed to report all infractions to the Department of Environmental Quality. ADWM has not made any reports of finding hazardous wastes in used oil since May 1993.
Sharon Rhoades, the chief enforcement officer for ADWM, admits that her department has only done 16 such tests in the last 17 months--less than what used to be done in a day by a single inspector. John Hays, the department's director, claims he just doesn't have the manpower to make more tests. But disgruntled ADWM employees say they were told to avoid taking samples they thought might be contaminated.
Which leaves mechanics and oil recyclers to do as they please. And since it costs them substantially more to properly dispose of oil tainted with hazardous waste, they have an incentive to pass the oil off as untainted.
"It's an industry for laundering hazardous waste," says Robert Verville, who is in charge of used-oil compliance for ADEQ. Verville says "it's easy" for mechanics with hazardous wastes to blend them into used oil. "No one's going to find out about it. You send it to a burner who can't efficiently burn it," he says.
The 1990 used-oil regulations arose in part out of the Persian Gulf threat to pinch the oil supply. "The legislature finds that millions of gallons of used oil are generated each year in this state," began the text of Senate Bill 1215, "and that this oil is a valuable petroleum resource which can be burned for energy recovery thereby conserving virgin petroleum products."
And from an environmental standpoint, there was concern that oil recyclers in states with stricter hazardous-waste-disposal laws would ship their contaminated oils here to be burned as cheap fuel instead of destroyed at high cost to whoever generated the mess.
Because ADWM already had a lab to test gasoline octane, the legislature ordered that it test used oil, as well. The department's inspectors took samples from mechanical shops that generated the oil, heavy industries that burned it, and could even stop the tankers transporting it in between.
The legislature also demanded that the results of the tests be monitored by the Department of Environmental Quality.
"When we first started the program, we were experiencing anywhere from a 25 to 30 percent failure rate," says John Taylor, a Weights and Measures inspector from Tucson who lost his job in a reduction-in-force in June. Used oil with too-high levels of heavy metals were mislabeled, and inspectors turned up more than 200 instances of hazardous waste contamination during the first two years of the program.
Even though the law demands that used oil be recycled, according to a 1993 ADWM report, two million to four million gallons of used oil somehow disappear each year; that much more virgin oil is sold than what appears in the possession of recyclers, which suggests that it is dumped illegally.
Forty-two Arizona companies bought more than three million gallons of used oil last year to be burned as fuel. Each of those companies pays to DEQ a "burner penalty" of 6 cents per gallon of "on-specification" oil, that is, clean used oil. Used oil contaminated by heavy metals such as arsenic, lead and cadmium, or by PCBs, is called "off-specification" and can only be burned in furnaces that prevent those substances from escaping into the atmosphere; its users pay a higher use penalty of 20 cents per gallon burned.
From those fees, ADEQ collects approximately $190,000 per year, then pays half of that to ADWM to be funneled back into its used-oil testing program.
Though the penalties are still being paid and the funds split between the two agencies, no one is checking to see that any of the oil is what it is said to be. ADEQ doesn't have the budget; ADWM isn't keeping its part of the deal. The oil keeps burning.
"We've surmised that people are sending off-specification oil to burners who don't know what's happening because they have to rely on a marketer saying, 'Yes, it's this quality of fuel,' when it's not," says ADEQ's Verville.
Or worse still, industries are burning oil contaminated with hazardous wastes. Used solvents are expensive to dispose of; while it costs about $5.50 to get rid of a 55-gallon drum of clean used oil, according to Verville, it costs $125 to $150 per drum to cart off the hazardous wastes. If no one is checking, it might tempt a shop owner or even larger business to cheat and mix it together.
Used-oil transporters sign manifests for each load they pick up, certifying that they have analyzed the oil and that it is clean. DEQ's checks of such manifests suggest that little analysis is being done.
"They're saying that it's on-specification and certifying that it is," says Verville. "But when we go out there and ask them, 'How do you know?', they answer, 'Well, it looks like oil.' Unfortunately, that isn't a valid answer." Before ADWM stopped taking regular oil samples in May 1993, a single inspector might take 15 to 20 oil samples a day. Current ADWM personnel claim they collected 2,200 such samples between January and May 1993, when the program virtually ended. The last hazardous waste report was sent to Verville at ADEQ on May 19, 1993.
ADWM had closed its own lab facilities, then shopped for an outside lab to conduct gasoline tests, according to Sharon Rhoades, the department's chief enforcement officer, thereby saving more than $100,000 a year.
The in-house laboratory, according to Rhoades, was inefficient. "We couldn't get results within eight days when we pulled samples," she says.
One current department employee disputes that claim. "We could turn samples out in less than 24 hours," that person says, explaining that the lab would often remain open pending a test so that inspectors would know if they had to dash out immediately and close a business down. "Eight days! That's ridiculous!"
Furthermore, Rhoades says that the old method of testing oil was a waste of effort because the department "had no control over where the oil went from that point. We were spinning our wheels by going to all these facilities and taking all those samples, finding violations, and yet the product went on down the line."
Verville and at least three ADWM employees deny that assertion, claiming that they put immediate stop-sales on such contaminated product. Then ADEQ would ride herd on the offenders until the product was legally destroyed.
In May 1994, a year after ADWM stopped testing used oil, its department heads apparently became nervous about political repercussions if ADEQ complained, and so they ordered that 16 samples be taken over a period of several weeks to satisfy the letter of the law.
All three ADWM employees told New Times that inspectors were specifically ordered to avoid finding hazardous waste contamination.
"They were told to go out and survey the premises of the business," says John Taylor, who was still with the department when the cursory tests were restarted, "and if the oil looked like it might be bad, drive on down the street and find a place where they wouldn't find anything to rock the boat."
Geoffrey Gonsher, ADWM's deputy director, responds, "I don't know where those statements are coming from, but they certainly didn't come from management." Nevertheless, two current ADWM employees confirm the allegation, and vouch for Taylor's credibility.
Gonsher, meanwhile, turned all questions over to Rhoades, who says her department has seen a 43 percent reduction in force over the last 18 months, which has resulted in fewer inspections. Gasoline pumps, for example, are now checked every two years instead of every year, and other inspections are to be done on a random basis, which an employee dismissed as meaning "when they feel like it."
"We don't physically have the time to do it all, even though the law says to," admits director John Hays, whose department also regulates scales and pumps that measure consumer purchases. "We can't keep up with the grocery stores and the gas stations as we would like to."
In the case of used-oil inspection, ADWM may be dragging its feet because its managers feel that such a task should belong to ADEQ.
"Our biggest concern is consumer protection," says Hays. "It really is an environmental program that is not in line with consumer protection."
Jim Lemmon, a consultant who drafted the 1990 legislation on behalf of the Arizona Public Health Association, disagrees. "That's simply not true," he says. "The real problem is with the [corporate] consumer who thinks he is buying clean oil but is really buying hazardous waste."
The current employees fear the department is being systematically dismantled for political reasons, and they point not to Hays, but to deputy director Gonsher as the primary hatchet man. "[Gonsher] has completely destroyed this department," says one employee. "They let people do anything they want. He's getting orders from someplace. We have become a nothing division."
The general perception is that the department is too cozy with the industries it's supposed to be watching.
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"They changed the whole perspective of the agency," says another current staffer. "We work with business; and [business] only occasionally makes mistakes. So we were told to lay off, make no waves."
Rhoades responds: "We're not ashamed of that. We are working very hard to have a partnership with industry. I know a lot of people would like to believe that the average business out there is willing to cheat at every turn, but it simply isn't true."
The suspicion among the rank and file is that business is telling the department to lay off and that the orders to do so are coming from the Governor's Office. Rhoades confesses, "The Governor's Office was fully aware of every move we were making," regarding the cutback in oil testing. Which would imply that the Governor's Office doesn't mind if the state's regulatory agencies defy their legislative mandates.