Faxback 11105
9494.1985(01)

OCT 1 1985

Mr. Thomas A. Waite
Senior Attorney
Boeing Computer Services
P.O. Box Box 24346
Seattle, WA 98124

Dear Mr. Waite:

This letter is in response to your letter dated August
30, 1985, and is a follow-up to our previous telephone
conversations regarding the regulatory status of a mixture of
lubricating oil and two jet airplane fuels which are sent to
a refinery where the fuel mixture is processed to produce
petroleum products. In particular, you indicate that in
performing repairs on F-4 type airplanes, the fuel contained
in the fuel cells (JP-4-type fuel) is first drained. To remove
the remaining fuel from the fuel cells, a mixture of JP-5
type airplane fuel and lubricating oil is then injected into
the fuel cells to decrease the volatility of any JP-4 type
fuel remaining in the fuel cells; put another way, the JP-5/
lubricating oil mixture is used to remove any JP-4 that remains
in the fuel cells. This JP-5/lubricating oil mixture is used
until the flashpoint of the mixture is lowered to approximately
120° F. At this point, the material is pumped to a tanker
truck and sent to a nearby refinery where the fuel mixture
is placed in the refinery process to produce petroleum products.

You believe this mixture (when sent to the refinery) is
an off-specification, non-listed, commercial product and as
such would not be subject to regulation when sent for
reclamation. (Your letter lays out your basis for making
this argument.) I cannot agree with you. As we discussed
previously, the JP-5/lubricating oil mixture is used like a
solvent to remove the remaining JP-4 from the fuel cells; as
such, the contaminated JP-5/lubricating oil is a spent material--
a material that has been used and as a result of contamination
can no longer serve the purpose for which it was produced
without processing.1/ Spent materials that are hazardous2/


1/ Even if you are correct that the JP-5/lubricating oil
mixture is not a solvent, this mixture would still be
defined as a spent material.

2/ As you indicate in your letter, this mixture (when sent
to the refinery) has a flash point about 120° F and thus,
would exhibit the ignitability characteristic.


-2-

(whether or not they are listed) are defined as solid wastes
when they are used to produce a fuel. Therefore, this material
is subject to EPA's authority under the hazardous waste rules.3/

However, based on your letter and my re-evaluation of
the facts, this material is currently exempt from regulation.
In particular, secondary materials that are used to produce a
fuel are only subject to regulation if the material is either
listed or a sludge. See §266.36. Since this material is a spent
material that is hazardous only because it exhibits a characteristic,
the material is currently exempt from regulation.4/ Thus, the
material can go from your maintenance facility to the refinery
without a manifest and the refinery need not get a storage
permit, at this time.5/ You should be aware, however, that
this exemption is only temporary; the Agency expects to make
final its rulemaking regarding burning and blending (proposed
on January 11, 1985) which is likely to remove this exemption.
At that time, the transport of this material and the storage
of it at the refinery may be subject to regulation.

I hope this answers your questions; please feel free to
give me a call if I can be any further assistance.

Sincerely yours,


Matthew A. Straus, Chief
Waste Identification Branch

cc: Dennis Murphy, Kansas Department of Health and the Environment
M. Sanderson, EPA Region VII



3/ As you are aware, this interpretation is under the Federal
hazardous waste rules; the States' regulations may not
reflect this interpretation until they adopt the January 4
rulemaking.

4/ Since this material contains approximately 80 percent JP-5
type airline fuel and only 20 percent lubricating oil,
this material is not a used oil. Thus, this material would
not come under the used oil exemption in §261.6(a)(3)(iii).

5/ In discussions with both State and Regional personnel, I
have learned that this material is no longer being sent
to a petroleum refinery. If this material is not being
used as a fuel or used to produce a fuel, the interpretation
given is no longer correct. You would need to consult the
January 4 rules to determine the regulatory status of the
JP-5/lubricating oil mixture.