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62
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Aug. 6
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JOURNAL OF PROCEEDINGS
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As indicated above, the net effect of subsection (f)(2)(i),
when read together with subsection (f)(1), is to permit the
disposal of used oil by burning under certain circumstances.
Subsection (f)(2)(ii), in turn, specifically excepts from
the provisions of subsection (f)(2)(i) certain burning of
used oil by fire departments and owners of farmland. In so
doing, the bill can be read as excepting these persons from
the permissive aspects of subsection (f)(2)(ii), thus
subjecting fire departments and farmland owners once again
to the general ban found in subsection (f)(1) — prohibiting
the burning of used oil even if federal and State emissions
standards are met. Such a result, however, is not described
or reflected in the title to House Bill 1277 and, therefore,
could not be given effect.
Another, and perhaps more likely, reading — one that
is at least consistent with the bill's title -- is that fire
departments and farmland owners are to be exempt from the
ban imposed by subsection (f)(2)(ii) and, in effect,
permitted to burn used oil even if the emissions from such
burning do not meet federal and State air quality standards.
This interpretation, however, does not account for the
retention, in subsection (f)(1), of the general unqualified
ban against disposing used oil by "incineration"; moreover,
this interpretation would run afoul of the Supremacy Clause,
as discussed below.
The effect of the amendment to subsection (f)(3) is, if
anything, even more unclear. It is possible to read
subsection (f)(1) and subsection (f)(3) together as
effectively banning the use of used oil as a fuel by all
persons, except certain utilities, even if such use comports
with air quality standards: subsection (f)(3), as originally
enacted, is an exception to subsection (f)(1); by narrowing
that exception to apply only to certain utilities, the bill
effectively places all other users of used oil as a fuel
under the unqualified prohibition of subsection (f)(1). If
so read, the effect of the bill would be (i) to generally
permit any person to "dispose" of used oil "by burning11 so
long as no violation of air quality standards occur, but
(ii) to preclude such disposal if, in the course of burning
the used oil, the oil is also being used "as a fuel."
Whether that distinction was intended is unclear. Moreover,
the resultant blanket prohibition against the use by
nonutilities of used oil as a fuel, even if that use
complies with air quality standards, is not at all described
or reflected in the bill's title.
In addition, the literal language of subsection (f)(3),
indicating that the provisions of "this subsection" do not
apply to the use of used oil as a fuel by certain utilities,
suggests a different reading: that subsection (f)(3) was
intended as an exception to the provisions of the entire
subsection, including those in subsection (f)(2). As such,
subsection (f)(3) would purport to permit certain utilities
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