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EPA Finalizes Changes to Solid Waste Rule; NORA's Quick Analysis

Friday, January 4, 2013  
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EPA Finalizes Changes to Solid Waste Rule
Further analysis to be given at 2013 NORA Winter Meeting in February

The U.S. Environmental Protection Agency (EPA) finalized changes to the Solid Waste Rule on December 20, 2012. NORA sued EPA in early 2011 concerning this legislation that could potentially threaten classifications of on-spec and off-spec used oil. EPA pulled back the original final rule due to pressure by the U.S. Senate, NORA and others.

NORA's full team of experts will complete a detailed review of the rule to analyze how it affects NORA members. An update will be given at the 2013 NORA Winter Meeting in Las Vegas. Click here to register for the 2013 NORA Winter Meeting.

A quick analysis by NORA General Counsel Chris Harris:
My quick review of the preamble to the final Non-Hazardous Secondary Materials rule reveals that EPA has reversed its position and now will allow the contaminant comparison between off-spec used oil and coal. That was our basic message in NORA’s comments and in subsequent meetings and communications with EPA and OMB. 

However, NORA or its members will still have to go through the petition process (allegedly "streamlined”) with EPA. In addition, if we make the comparison between used oil and coal, only burners such as steel mills and cement kilns (which can burn both coal and oil) will be able to burn off-spec used oil.

EPA has opened the door to a comparison between on-spec and off-spec used oil. So presumably an off-spec used oil fuel whose contaminant levels are slightly elevated over the on-spec used oil fuel could be burned in an oil-fired furnace or boiler. We’d still have to get through the petition process to get there.

Also, while I have not read the entire rule, I doubt that EPA addressed our flashpoint argument -- i.e. flashpoint is not a contaminant so an off-spec used oil fuel that is off-spec only because of flashpoint should be placed in the on-spec category for the purposes of the NHSM rule. We should probably seek a guidance (clarification) letter from EPA on that point.

Below in bold is the key sentence in the preamble. (NORA is the "commenter.”):

Comment: In the proposed rule, EPA specifically addressed used oil stating: "Used oil is a special case and does not need to undergo the contaminant comparison. If it meets the specifications in 40 CFR part 279.11, it is a traditional fuel. If it does not meet the specifications (i.e., it is ‘‘off-spec’’ oil),it is a solid waste under the 2011 NHSM final rule.” 76 FR 80481, fn. 44. Some commenters argued that off-spec used oil fuel, however, could satisfy all of EPA’s legitimacy criteria, including a contaminant comparison with coal, a traditional fuel. Thus, if a combustion unit is "designed to burn” both coal and oil, the facility should be able to use coal as the traditional fuel for the purposes of determining whether the contaminants are comparable—even when the NHSM at issue is off- spec used oil, as defined in 40 CFR part 279.11.

Response: The Agency agrees with the commenter that contaminants in off-spec used oil burned for energy recovery in facilities that are designed to burn coal may be compared to coal for purposes of determining whether the off-spec used oil is a waste or non-waste product fuel.

Click here for additional information on non-hazardous secondary material regulations.

About NORA

NORA, An Association of Responsible Recyclers represents over 325 leading companies involved in responsibly recycling used oil and related materials that would otherwise negatively impact the environment. NORA members work every day to ensure that more than a billion gallons per year of used oil and related materials are collected, recycled and given another useful life. NORA has been defending and promoting the industry since 1985. For more information on NORA, visit

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