NORA News Alert: EPA Releases Proposed Rules Affecting Used Oil Industry 

1. On-spec used oil will not be classified as a solid waste and will continue to be regulated by Part 279.

2. Off-spec used oil will be classified as a solid waste and will have to meet stringent standards of Section 129 of the Clean Air Act.

3. The space heater exemption will be eliminated if the space heater burns off-spec used oil.

d. Used Oil. As indicated in the ANPRM, we consider off-specification (or “off-spec”) used oil that is collected from repair shops to have been discarded. Used oil that meets the on- specification (or “on-spec”) levels and properties of 40 CFR 279.11 is considered be a legitimate non-waste fuel product. We requested comment on whether off-spec used oil managed pursuant to the 40 CFR part 279 used oil management standards and which is burned for energy recovery in certain types of combustion devices should be considered a legitimate non-waste fuel.

Comments:

Most commenters believe that off-spec (and on-spec) used oil should not be classified as a solid waste. Various reasons were provided in support. Specifically, one commenter reasoned that off-spec used oil should not be treated as a solid waste if it has been delivered to a legitimate recycler for processing. Designation as a solid waste would lead to costly burning in hazardous waste incinerators, burning in uncontrolled space heaters, and more undesirable disposal methods. Many commenters also referred to Congress’ intent to manage used oil differently and EPA’s regulatory structure for the management of used oil as evidence that used oil should not be classified as a solid waste. They added that used oil is typically neither disposed of, thrown away, nor abandoned, but is collected and contained. Used oil is a valuable product that is subject to EPA’s recycling presumption. Btu content is not necessarily lower than on-spec used oil or virgin fuel, and contaminants, such as water, flashpoint, and metals can be effectively addressed. In a similar, but slightly different view, a number of commenters argued that on-spec and off-spec used oil should be included in the list of traditional fuels. Since neither is discarded, the presumption is that it is recycled. Only one commenter thought that off-spec used oil should continue to be considered a solid waste within the RCRA framework.

EPA’s Response:

We agree with the commenters who said that on-spec used oil should not be classified as a solid waste. Based upon how we define traditional fuels (i.e. fuels that have been historically managed as valuable fuel products rather than being managed as waste materials), we believe that on-spec used oil should be considered a traditional fuel. In accordance with 40 CFR part 279, once used oil is determined to be on-spec, it is no longer regulated under the used oil management standards. Used oil that has been determined to be on-spec has verified that it contains contaminants at levels below the maximum concentration limits established in the standards, such that the emissions resulting from the burning of on-spec used oil will not pose an increased threat to human health or the environment than the emissions resulting from the burning of virgin oil or diesel. This is because the contaminants of concern (i.e., those for which maximum concentration levels have been set) present in on-spec used oil are either at the same concentration or a lower concentration than virgin refined fuel oil.

This approach is supported by Safe Food and Fertilizer v. EPA, 350 F.3d 1263 (D.C. Cir. 2003). The decision upheld an EPA rule that excluded from the definition of solid waste certain recycled materials used to make zinc fertilizers (and the fertilizers themselves) as long as they were not speculatively accumulated, met certain handling, storage and reporting conditions, and were “identical” to fertilizers made from raw materials, i.e., they had concentration levels for certain chemicals that fall below specified thresholds. 350 F.3d at 1265. We believe on-spec used oil satisfies these criteria.

In regard to off-spec used oil, we disagree that it should not be classified as a solid waste. The used oil regulations are structured such that off-spec used oil is managed within the constraints of the used oil management standards until it is processed into on-spec used oil or it is properly disposed of. It may only be burned in specific types of combustion devices.36 Although off-spec used oil may be managed within the control of the generator, it contains contaminants at levels that are not comparable to traditional fuels, and thus would not be considered a legitimate non-waste fuel per the legitimacy criteria. Therefore, today’s proposed rule considers off-spec used oil as a solid waste subject to the CAA section 129 requirements, as wells as state, and local requirements, unless it is processed to meet the on-spec used oil limits specified in 40 CFR 279.11.

It also should be noted that off-spec used oil may be burned in used oil-fired space heaters pursuant to 40 CFR part 279, provided: 1) the heater burns only used oil that the owner or operator generates or used oil received from household do-it-yourself used oil generators; 2) the heater is designed to have a maximum capacity of not more than 0.5 million Btu per hour; and 3) the combustion gases from the heater are vented to the ambient air. The RCRA used oil regulations base this provision on a finding that uncontrolled emissions from these sources do not pose a significant threat to human health and the environment. However, consistent with our determination that off-spec used oil be considered a solid waste when burned as a fuel, we believe that off-spec used oil managed within the control of the generator would not qualify for the generator controlled exclusion when burned in a used oil fired-space heater, since contaminant levels are not comparable to traditional fuels. Therefore, we are proposing that off- spec used oil combusted at a unit that is within the control of the generator would be solid waste. We request comment on this approach, as well as any supporting information.