September 6, 2017

Status of Off-Spec Used Oil When Burned for Energy Recovery

When Congress passed the 1990 Amendments to the CAA, they added Section 129, which requires EPA to issue standards for commercial and industrial solid waste incineration (CISWI) units. These standards have been challenged several times, and in response to the courts’ rulings, EPA has had to rework 1) the CISWI standard, and 2) the related industrial boilers maximum achievable control technology (MACT) standard. Specifically, the courts found that the CAA requires any unit combusting a solid waste to be regulated as a CISWI unit, regardless of whether the material is being burned for energy recovery or destruction. Therefore, the agency was obligated to articulate which secondary materials, when burned, constitute “solid waste” under RCRA, since the CAA requires that these rules be based (in part) on that definition. Conversely, if a secondary material is not a solid waste under RCRA, then any unit combusting that material will be subject to other CAA standards, such as the boiler MACT.

In a March 21, 2011 final rule [76 FR 15456], EPA added 40 CFR Part 241 to the regulations to define which nonhazardous secondary materials, when burned, constitute solid waste under RCRA. In that rule, the agency determined that on-spec used oil (used oil that meets the §279.11 used oil specification) meets the definition of a traditional fuel and is, therefore, not solid waste when burned in a combustion unit. (Of course, it would be a solid waste if discarded.) [§241.2] Thus, burning on-spec used oil will not subject a combustion unit to CISWI standards, but other CAA controls, such as the boiler MACT, may apply. Conversely, the March 2011 rule preamble stated that off-spec used oil is a solid waste, because it contains higher levels of contaminants than traditional fuels and does not meet the §241.3 legitimacy criteria. [76 FR 15502–3] Thus, units burning off-spec used oil (other than small space heaters exempt per §279.23) will be subject to CISWI standards.

Questions from the regulated community prompted EPA to issue guidance on the status of off-spec used oil when burned for energy recovery under both Parts 241 and 279. [RO 14895] Specifically, the Part 241 status of characteristically hazardous off-spec used oil that is burned for energy recovery (i.e., is it a solid waste or not) was discussed. The table below summarizes the agency’s guidance; note that we have added the regulatory status of on-spec used oil when burned for energy recovery for completeness.

Regulatory Status of Used Oil Burned for Energy Recovery


Type of used oil
 

Regulatory status under
40 CFR Parts 260–279
when burned for energy recovery

Regulatory status under
40 CFR Part 241
when burned for energy recovery

On-spec used oil1 that does not exhibit a characteristic as-generated

Used oil under Part 2792

Traditional fuel (not solid waste)

On-spec used oil1 that does exhibit a characteristic as-generated3

Used oil under Part 2792

Traditional fuel (not solid waste)

Off-spec used oil1 that does not exhibit a characteristic as-generated

Used oil subject to Part 279, Subpart G

NHSM, but a solid waste because it does not meet the legitimacy criteria in §241.3 [76 FR 15503]4

Off-spec used oil1 that does exhibit a characteristic as-generated3

Used oil subject to Part 279, Subpart G

Not a NHSM, but a solid waste4

“As-generated” means at the point of draining the used oil from equipment and before it is mixed with any other material; NHSM = nonhazardous secondary material as defined in §241.2.

1On-spec used oil is used oil that meets the §279.11 used oil specification. Off-spec used oil is used oil that does not meet the §279.11 used oil specification.

2If the entity who asserts that the used oil is on-spec meets the qualifying conditions in the following three sections, neither Part 279 nor any other RCRA requirement applies to this material because EPA considers it similar in composition to virgin fuel oil: §§279.72, 279.73, and 279.74(b).

3Mixtures of used oil and characteristically hazardous waste, where the resultant mixture exhibits a characteristic, are not regulated as used oil under Part 279 but instead are subject to the hazardous waste requirements in Parts 260–270 per §279.10(b)(2).

4Any unit combusting a solid waste must be regulated under the CAA as a commercial and industrial solid waste incineration unit, regardless of whether the material is being burned for energy recovery or destruction. [76 FR 15461]

Source: McCoy and Associates, Inc.; adapted from 76 FR 15502–3, RO 14895.

 


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Considerable care has been exercised in preparing this document; however, McCoy and Associates, Inc. makes no representation, warranty, or guarantee in connection with the publication of this information. McCoy and Associates, Inc. expressly disclaims any liability or responsibility for loss or damage resulting from its use or for the violation of any federal, state, or municipal law or regulation with which this information may conflict. McCoy and Associates, Inc. does not undertake any duty to ensure the continued accuracy of this information.

This document addresses issues of a general nature related to the federal RCRA regulations. Persons evaluating specific circumstances dealing with the RCRA regulations should review state and local laws and regulations, which may be more stringent than federal requirements. In addition, the assistance of a qualified professional should be enlisted to address any site-specific circumstances.