ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-HQ-RCRA-2005-0017; FRL -              ]

RIN  2050-AG57

Withdrawal of the Emission-Comparable Fuel Exclusion under RCRA

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Proposed rule.

------------------------------------------------------------------------
---------------------------------

SUMMARY:  EPA is proposing to withdraw the conditional exclusion from
regulations promulgated on December 19, 2008 under subtitle C of the
Resource Conservation and Recovery Act (RCRA) for so-called Emission
Comparable Fuel (ECF).  These are fuels produced from hazardous
secondary materials which, when burned in industrial boilers under
specified conditions, generate emissions that are comparable to
emissions from burning fuel oil in those boilers.  EPA is proposing to
withdraw this conditional exclusion because ECF appears to be better
regarded as being a discarded material and regulated as a hazardous
waste.  The exclusions for comparable fuel and synthesis gas fuel are
not addressed or otherwise affected by this proposed rule.

DATES:  Comments must be received on or before [INSERT DATE 45 DAYS
AFTER PUBLICATION IN THE FEDERAL REGISTER].  Under the Paperwork
Reduction Act, comments on the information collection provisions are
best assured of having their full effect if the Office of Management and
Budget (OMB) receives a copy of your comments on or before [insert date
thirty days after date of publication in the Federal Register.]

ADDRESSES:  Submit your comments, identified by Docket ID No.
EPA-HQ-RCRA-2005-0017, by one of the following methods:

●	  HYPERLINK "http://www.regulations.gov"  www.regulations.gov  : 
Follow the on-line instructions for submitting comments.

Email:   HYPERLINK "mailto:rcra-docket@epa.gov"  rcra-docket@epa.gov .

Fax: 202-566-9744. 

Mail: RCRA Docket, Environmental Protection Agency, Mailcode: 2822T,
1200 Pennsylvania Ave., NW., Washington, DC 20460.  Please include a
total of two copies.  We request that you also send a separate copy of
your comments to the contact person listed below (see FOR FURTHER
INFORMATION CONTACT). In addition, please mail a copy of your comments
on the information collection provisions to the Office of Information
and Regulatory Affairs, Office of Management and Budget (OMB), Attn:
Desk Officer for EPA, 725 17th St. NW., Washington, DC 20503. 

Hand Delivery:  RCRA Docket, EPA Docket Center (2822T), EPA West, Room
3334, 1301 Constitution Ave., NW., Washington, DC.  Such deliveries are
only accepted during the Docket’s normal hours of operation, and
special arrangements should be made for deliveries of boxed information.
 Please include a total of two copies.  We request that you also send a
separate copy of each comment to the contact person listed below (see
FOR FURTHER INFORMATION CONTACT).

Instructions:  Direct your comments to Docket ID No
EPA-HQ-RCRA-2005-0017.  EPA's policy is that all comments received will
be included in the public docket without change and may be made
available online at   HYPERLINK "http://www.regulations.gov" 
www.regulations.gov , including any personal information provided,
unless the comments include information claimed to be Confidential
Business Information (CBI) or other information the disclosure of which
is restricted by statute.  Clearly mark the part or all of the
information that you claim to be CBI.  The   HYPERLINK
"http://www.regulations.gov"  www.regulations.gov  website is an
“anonymous access” system, which means EPA will not know your
identity or contact information unless you provide it in the body of
your comment.  If you send an e-mail comment directly to EPA without
going through   HYPERLINK "www.regulations.gov"  www.regulations.gov ,
your e-mail address will be automatically captured and included as part
of the comment that is placed in the public docket and made available on
the Internet.  If you submit an electronic comment, EPA recommends that
you include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit.  If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment.  Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.  For additional
information about EPA’s public docket, visit the EPA Docket Center
homepage at   HYPERLINK "http://www.epa.gov/epahome/dockets.htm" 
http://www.epa.gov/epahome/dockets.htm .  We also request that
interested parties who would like information they previously submitted
to EPA to be considered as part of this action, to identify the relevant
information by docket entry numbers and page numbers.

Docket: All documents in the docket are listed in the   HYPERLINK
"http://www.regulations.gov"  www.regulations.gov  index.  Although
listed in the index, some information is not publicly available, e.g.,
CBI or other information whose disclosure is restricted by statute. 
Certain other material, such as copyrighted material, will be publicly
available only in hard copy.  Publicly available docket materials are
available either electronically in   HYPERLINK
"http://www.regulations.gov"  www.regulations.gov  or in hard copy at
the RCRA Docket, EPA/DC, EPA West, Room 3334, 1301 Constitution Ave.,
NW., Washington, DC.  The Public Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday, excluding legal holidays. The
telephone number for the Public Reading Room is (202) 566-1744, and the
telephone number for the RCRA Docket is (202) 566-0270.

FOR FURTHER INFORMATION CONTACT:   Mary Jackson, Materials Recovery and
Waste Management Division, Office of Resource Conservation and Recovery,
Mailcode: 5304P, Environmental Protection Agency, 1200 Pennsylvania
Ave., NW, Washington, D.C.  20460; telephone number: (703) 308-8453; fax
number: (703) 308-8433; email address:   HYPERLINK
"mailto:jackson.mary@epa.gov"  jackson.mary@epa.gov  .

SUPPLEMENTARY INFORMATION:

General Information 

A.  Does This Action Apply to Me?

Categories and entities potentially affected by this action include:

Example of Potentially Affected Entities



NAICS Code	Industry Description

3251	Basic Chemical Manufacturing

3241	Petroleum and Coal Products Manufacturing

4884	Support Activities for Road Transportation

5622	Waste Treatment and Disposal

3252	Resin, Synthetic Rubber, and Artificial Synthetic Fibers and
Filaments Manufacturing

3259	Other Chemical Product and Preparation Manufacturing

3254	Pharmaceutical and Medicine Manufacturing

9281	National Security and International Affairs

3255	Paint, Coating, and Adhesive Manufacturing

5614	Business Support Services



This table is not intended to be exhaustive, but rather provides a guide
for readers regarding entities likely to be impacted by this action. 
This table lists examples of the types of entities EPA is aware of that
could potentially be regulated by this action.  Other types of entities
not listed could also be affected.  To determine whether your facility,
company, business, organization, etc., is affected by this action, you
should examine the applicability criteria in this proposed rule.  If you
have any questions regarding the applicability of this action to a
particular entity, consult the person listed in the preceding FOR
FURTHER INFORMATION CONTACT section.

B.  What Should I Consider as I Prepare My Comments for EPA?

1.  Submitting CBI.  Do not submit this information to EPA through  
HYPERLINK "www.regulations.gov%20"  www.regulations.gov  or e-mail. 
Send or deliver information identified as CBI to the following address: 
Ms. LaShan Haynes, RCRA Document Control Officer, EPA (Mail Code 5305W),
Attention Docket ID No. EPA-HQ-RCRA-2005-0017, 1200 Pennsylvania Avenue,
NW, Washington DC, 20460.  Clearly mark the part or all of the
information that you claim to be CBI.  For CBI information in a disk or
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as
CBI and then identify electronically within the disk or CD ROM the
specific information that is claimed as CBI.  In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information claimed
as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with
the procedures set forth in 40 CFR part 2.

2. Tips for Preparing Your Comments. When submitting comments, remember
to:

Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).

Follow directions - The agency may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.

Explain why you agree or disagree; suggest alternatives and substitute
language for your requested changes.

Describe any assumptions and provide any technical information and/or
data that y  TOC \o "1-3" \h \z \u   ou used.

If you estimate potential costs or burdens, explain how you arrived at
your estimate in sufficient detail to allow for it to be reproduced.

Provide specific examples to illustrate your concerns, and suggest
alternatives.

Explain your views as clearly as possible, 

Make sure to submit your comments by the comment period deadline
identified.

	3. Docket Copying Costs:

You may copy a maximum of 100 pages from any regulatory docket at no
charge. Additional copies are 15 cents/page.

	4. How Do I Obtain a Copy of This Document and Other Related
Information?

In addition to being available in the docket, an electronic copy of
today’s proposed rule will also be available on the Worldwide Web
(WWW).  Following the Administrator’s signature, a copy of this
document will be posted on the WWW at   HYPERLINK
"http://www.epa.gov/hwcmact"  http://www.epa.gov/hwcmact .  This website
also provides other information related to the NESHAP for hazardous
waste combustors.

	5. Index of contents

The information presented in this preamble is organized as follows:

  TOC \o "1-2" \h \z \u    HYPERLINK \l "_Toc234131975"  I. Statutory
Authority	  PAGEREF _Toc234131975 \h  5  

  HYPERLINK \l "_Toc234131976"  II. Background	  PAGEREF _Toc234131976
\h  5  

  HYPERLINK \l "_Toc234131977"  A. What Is the Intent of the Proposed
Rule?	  PAGEREF _Toc234131977 \h  5  

  HYPERLINK \l "_Toc234131978"  B. Who Will Be Affected by the Proposed
Rule?	  PAGEREF _Toc234131978 \h  6  

  HYPERLINK \l "_Toc234131979"  III. Summary of the Proposed Rule	 
PAGEREF _Toc234131979 \h  6  

  HYPERLINK \l "_Toc234131980"  IV. Rationale for Proposing to Revoke
the Exclusion for ECF	  PAGEREF _Toc234131980 \h  7  

  HYPERLINK \l "_Toc234131981"  A. ECF May Be Classified as a Waste
Rather than as a Product	  PAGEREF _Toc234131981 \h  7  

  HYPERLINK \l "_Toc234131982"  B. Why EPA Now Proposes to Reclassify
ECF as a Waste	  PAGEREF _Toc234131982 \h  8  

  HYPERLINK \l "_Toc234131983"  V. State Authority	  PAGEREF
_Toc234131983 \h  9  

  HYPERLINK \l "_Toc234131984"  A. Applicability of the Rule in
Authorized States	  PAGEREF _Toc234131984 \h  9  

  HYPERLINK \l "_Toc234131985"  B. Effect on State Authorization	 
PAGEREF _Toc234131985 \h  10  

  HYPERLINK \l "_Toc234131986"  VI. Statutory and Executive Order
Reviews	  PAGEREF _Toc234131986 \h  10  

  HYPERLINK \l "_Toc234131987"  A. Executive Order 12866:  Regulatory
Planning and Review	  PAGEREF _Toc234131987 \h  10  

  HYPERLINK \l "_Toc234131988"  B. Paperwork Reduction Act	  PAGEREF
_Toc234131988 \h  11  

  HYPERLINK \l "_Toc234131989"  C. Regulatory Flexibility Act	  PAGEREF
_Toc234131989 \h  12  

  HYPERLINK \l "_Toc234131990"  D. Unfunded Mandates Reform Act	 
PAGEREF _Toc234131990 \h  13  

  HYPERLINK \l "_Toc234131991"  E. Executive Order 13132:  Federalism	 
PAGEREF _Toc234131991 \h  13  

  HYPERLINK \l "_Toc234131992"  F. Executive Order 13175:  Consultation
and Coordination with Indian Tribal Governments	  PAGEREF _Toc234131992
\h  14  

  HYPERLINK \l "_Toc234131993"  G. Executive Order 13045:  Protection of
Children from Environmental Health and Safety Risks	  PAGEREF
_Toc234131993 \h  14  

  HYPERLINK \l "_Toc234131994"  H. Executive Order 13211:  Actions that
Significantly Affect Energy Supply, Distribution or Usage	  PAGEREF
_Toc234131994 \h  14  

  HYPERLINK \l "_Toc234131995"  I. National Technology Transfer
Advancement Act	  PAGEREF _Toc234131995 \h  14  

  HYPERLINK \l "_Toc234131996"  J. Executive Order 12898:  Federal
Actions to Address Environmental Justice in Minority Populations and
Low-Income Populations	  PAGEREF _Toc234131996 \h  14  

 

I. Statutory Authority

The emission-comparable fuel (ECF) regulations were promulgated under
the authority of sections 1004 and 2002 of the Solid Waste Disposal Act
of 1970, as amended by the Resource Conservation and Recovery Act of
1976 (RCRA), as amended by the Hazardous and Solid Waste Amendments of
1984 (HSWA), 42 U.S.C. 6903 and 6912.  Withdrawal of the rule would be
issued under the same authority, and hazardous waste fuels are regulated
pursuant to section 3004 (q) of RCRA. 

II. Background

A. What Is the Intent of the Proposed Rule?

This rule proposes to withdraw the conditional exclusion from regulation
under subtitle C of RCRA for ECF, as codified at §261.38.  The
conditional exclusion states that hazardous secondary materials that
meet all of the hazardous constituent specifications applicable to
comparable fuel, except concentration limits for oxygenates and
hydrocarbons, and that are stored and burned under prescribed
conditions, are not discarded and thus, are not solid wastes.  

EPA notes, however, that classification of ECF as a non-waste is not
legally compelled, and an alternative classification is permissible.  As
discussed in more detail in the following section, ECF is a hazardous
secondary material which can reasonably be regarded as discarded when
stored and burned because:  (1) the material can have substantially
higher concentrations of hazardous oxygenates and hydrocarbons than fuel
oil, and thus, lacking physical identity to fossil fuel, combustion of
the material may be considered to be similar to incinerating or
destroying it, a form of discarding; (2) the exclusion is conditioned on
extensive, substantive requirements on burning, similar to the
requirements for permitted hazardous waste combustors, which conditions
are needed to prevent discard; and (3) the exclusion is conditioned on
extensive, substantive requirements on storage, similar to the
requirements for permitted hazardous waste storage units.  EPA has the
authority to adopt conditional exclusions from the definition of solid
waste; however, when conditions grow ever more elaborate and extensive
and are more and more comparable (or identical) to those required for
the management of hazardous waste, the question is raised as to whether
the material is discarded because of the necessity for waste
management-like conditions on its handling.  Put another way, the
conditions can become a surrogate for RCRA’s cradle-to-grave hazardous
waste management system, and the hazardous secondary materials to which
such conditions pertain can be classified as discarded.  Given the
elements of discard involved in combusting ECF, and the extensive waste
management-related types of conditions EPA developed for this
conditional exclusion, it is now EPA’s view, subject to consideration
of public comment, that these materials should be classified as solid
waste and, when listed or when exhibiting a characteristic, hazardous
wastes rather than as products.  

This proposal would not affect the exclusions for comparable fuel and
synthesis gas fuel that were promulgated in 1998 (also codified in
§261.38), nor is EPA soliciting comment on those exclusions or
otherwise reconsidering or reopening them.  In addition, this proposal
does not affect the clarifications and revisions to the conditions for
comparable fuel that EPA promulgated concurrently with the ECF
exclusion.

B. Who Will Be Affected by the Proposed Rule?

Entities that generate, burn, and store ECF would be potentially
affected by this proposed rule.  The basic structure of the exclusion is
that ECF is not a solid (and hazardous) waste as generated, and hence is
not subject to the subtitle C regulations.  Under today’s proposal to
withdraw the exclusion of ECF, ECF would again be classified as a
hazardous waste, and all entities managing such hazardous secondary
materials would again be subject to all applicable subtitle C hazardous
waste standards.  Since the rule was promulgated in December 2008 and
became effective in January 2009, and since we are not aware that any
states have adopted or applied for authorization for this rule, we would
expect that very few facilities, if any, are managing their hazardous
secondary materials pursuant to this rule.  However, the Agency requests
comments on whether any generators or burners are managing ECF pursuant
to the terms of the conditional exclusion.

We are also not aware of any commercial hazardous waste combustors that
are no longer receiving newly excluded hazardous secondary materials
subject to the ECF rule, because the materials are now being managed
under the ECF conditional exclusion.  To the extent this is occurring,
however, the commercial hazardous waste combustors in question would
have lost the waste management revenues for those diverted fuels and may
have needed to meet their heat input requirements by using other waste
fuels or fossil fuels.  Under today’s proposal to withdraw the ECF
exclusion, those hazardous secondary materials that were managed as
excluded ECF would again be classified as hazardous waste fuels.  Thus,
those affected commercial hazardous waste combustors may have the
opportunity to provide hazardous waste management services for hazardous
secondary materials managed as ECF.  However, as noted above, we suspect
that very few facilities, if any, are already managing ECF under the
conditional exclusion.  If that is the case, commercial hazardous waste
combustors have likely experienced very little change.

III. Summary of the Proposed Rule

This proposed rule would withdraw the conditional exclusion for ECF
under §261.38, including the exclusion itself in §261.4(a)(16),
specifications and associated conditions applicable to ECF under
§261.38(a), the implementation conditions applicable to ECF under
§261.38(b), the storage and burning conditions for ECF under
§261.38(c), the provisions for failure to comply with the conditions
for the ECF exclusion under §261.38(d)(2), the alternative storage
conditions for ECF under §261.38(e), and the notification of closure of
an ECF storage unit under §261.38(f).

As noted above, this proposed rule would not affect, however, the
exclusion for comparable fuel or synthesis gas fuel, including the
specifications and associated conditions for these materials under
§261.38(a), the implementation conditions applicable to these materials
under §261.38(b), and the provision for failure to comply with the
conditions for exclusion of these materials under §261.38(d)(1).

Finally, the proposed rule would not affect the clarifications and
revisions to the conditions for comparable fuel that EPA promulgated
concurrently with the ECF exclusion; specifically:  (1) clarification
that comparable fuel that is spilled or leaked and that no longer meets
the conditions of the exclusion must be managed as a hazardous waste if
it exhibits a characteristic of hazardous waste or if it is otherwise a
listed hazardous waste (§261.38(b)(15)); (2) clarification that
comparable fuel tank system and container storage units become subject
to the RCRA hazardous waste facility standards if not cleaned of liquids
and accumulated solids within 90 days of ceasing operations as a
comparable fuel storage unit (§261.38(b)(13)); (3) waiver of the RCRA
closure requirements for tank systems and container storage units that
were used only to store hazardous wastes that are subsequently excluded
as comparable fuel (§261.38(b)(14)); (4) clarification that boiler
residues, including bottom ash and emission control residue, from
burning comparable fuel would be subject to regulation as hazardous
waste if they exhibit a hazardous waste characteristic
(§261.38(b)(12)); and (5) a condition requiring that the one-time
notice by the generator to regulatory officials must include an estimate
of the average and maximum monthly and annual quantity of comparable
fuel for which an exclusion is claimed (§261.38(b)(2)(i)(A)).  

IV. Rationale for Proposing to Revoke the Exclusion for ECF

A. ECF May Be Classified as a Waste Rather than as a Product

Since 1998, hazardous secondary materials (i.e., spent materials,
sludges, byproducts, and off-specification commercial chemical products)
which have fuel value and whose hazardous constituent levels are
comparable to those found in fuel oil that could be burned in their
place have been excluded from the definition of solid waste (and, hence,
cannot be hazardous waste).  See §261.38.  These materials are called
comparable fuels.  

On December 19, 2008, EPA added an additional group of hazardous
secondary materials to the exclusions in §261.38.  These are hazardous
secondary materials that, as generated, are handled as fuel products
through all phases of management.  The rule sought to assure that this
will occur through a series of conditions on the circumstances of their
storage and burning, and based on their substantial physical identity
--except for their level of hydrocarbons and oxygenates -- with fuel
oil.  These hazardous secondary materials must meet all of the hazardous
constituent specifications for comparable fuel, except those for
oxygenates and hydrocarbons.  These excluded fuels are termed
“emission-comparable fuel” (or “ECF”) because the emissions from
an industrial boiler burning these hazardous secondary materials under
the conditions of the exclusion are comparable to the emissions from an
industrial boiler burning fuel oil, the fossil fuel for which ECF could
substitute.  See 73 FR at 77956.

However, ECF is a hazardous secondary material which can also be
reasonably considered to be discarded when burned (and when
accumulated/stored prior to burning).  ECF can have substantially higher
concentrations of hazardous oxygenates and hazardous hydrocarbons than
does fuel oil.  These constituents contribute fuel value (and are often
found at some level in petroleum-based fuel products albeit less than
allowed in ECF); however, several of these compounds (e.g., polycyclic
aromatic hydrocarbons, naphthalene, benzene, and acrolein) are also
highly toxic to human health and to the environment.  EPA based the ECF
exclusion on its view that these hazardous compounds would be destroyed
in the combustion process, to the extent that their concentration in the
emissions would be comparable to that in the emissions from the
combustion of fuel oil in industrial boilers.  However, to have
confidence that the emissions would in fact be comparable, EPA needed to
condition the exclusion on extensive, substantive requirements on
burning that are in fact similar to the requirements for permitted
hazardous waste combustors—including conditions on the type of unit in
which ECF can be combusted, constituent-by-constituent feedrate limits
controlling the amount of ECF which may be burned (some of which are
miniscule), and boiler operating conditions (e.g., CO control,
dioxin/furan control, automatic ECF cutoff systems, and operator
training).  See §261.38(c)(2).  In the case of ECF, because it was
necessary to preclude discard by meeting conditions tantamount to
satisfying the substantive subtitle C regulatory regime, EPA concludes
that the hazardous secondary material is more waste-like than
product-like. 

Similarly, the exclusion contains extensive conditions on storage that
are virtually identical to the requirements for permitted hazardous
waste storage units.  See §261.38(c)(1).  That is, while EPA has the
authority to establish storage conditions in order to identify hazardous
secondary materials that are not discarded, the collection of storage
conditions on products and by-products that EPA adopted for ECF to
prevent discard are so similar to the requirements for hazardous waste
storage units under Subparts I and J of Part 264 that they become a
surrogate to those required for the management of hazardous waste, and
thus, the material may be more waste-like than product-like, and can
reasonably be classified as discarded.  Put another way, if it is
necessary to preclude discard by meeting conditions tantamount to
satisfying the substantive subtitle C regulatory regime, then the
secondary material may be classified as a waste in the first instance.

B. Why EPA Now Proposes to Reclassify ECF as a Waste

We have explained how ECF could be classified as a waste rather than as
a product.  We explain here the rationale underlying EPA’s proposal
choosing to reclassify ECF as a waste.

The fundamental premise of the ECF rule is that ECF is no more hazardous
than burning fuel oil, because combustion of this material will have
comparable emissions.  However, to ensure that the material does not
pose greater risks, EPA felt compelled to promulgate a very detailed set
of conditions—the equivalent of a detailed regulatory scheme—for
both the storage and combustion of ECF.  As noted, the conditions of the
exclusion are virtually the same in many critical instances as the
substantive rules which apply while storing and combusting hazardous
waste.  For example, EPA concluded that burning ECF can lead to greater
concentrations of hazardous constituents in air emissions under
“normal” combustion conditions.  Therefore, EPA imposed special
design and operational conditions to ensure effective combustion of ECF,
which are similar to the requirements for industrial boilers burning
hazardous wastes under the exemption from stack emissions testing for
destruction and removal efficiency (DRE) provided by 40 CFR 266.110. 
Therefore, upon further consideration, the Agency believes that burning
of ECF under the conditional exclusion is really not much different from
burning hazardous waste in a hazardous waste combustion unit.  We note
that a number of commenters on the proposed rule raised these same
concerns. 

As a matter of policy, the nature of these requirements related to
burning ECF is such that, in EPA’s view, they are most appropriately
applied through a careful review process, overseen by the regulator with
an opportunity for public comment.  For example, a formal review of an
ECF burner’s operations would ensure that the boiler meets the design
conditions, and that the required operating limits (e.g., CO limit, ECF
feedrate limit, boiler load, gas temperature for dioxin/furan control)
are properly monitored and linked to an automatic ECF feed cutoff
system.  However, facilities that burn ECF, under the ECF rule, would
satisfy these conditions absent the formal process to apply for and
obtain an operating permit.  That is, facilities would be allowed to
comply with this complicated set of operating conditions without any
type of review process.  Although the Agency contemplated that the
authorized permitting authority would ensure compliance through
enforcement oversight rather than through the permitting process, the
Agency now believes it is important that each ECF burner undergoes a
thorough review on the operation of the combustion unit as part of the
existing subtitle C permitting structure.  Indeed, EPA, on
reconsideration (but subject to consideration of public comment), has
concluded that the ECF rule will actually require more resources and
more attention from the regulatory agency than a subtitle C approach to
reach a comparable level of assurance that appropriate combustion
conditions are met.  Under the ECF rule, the burden would be on state
enforcement personnel to ensure that the conditions are met after the
fact, while under a permit system, the burden is on the regulated entity
to demonstrate to the regulatory authority that the terms of the
regulations are met.  In many cases, regulations that are directly
enforced make sense, but where regulations govern specialized combustion
conditions, and where technical judgments are important in determining
compliance, the permit process provides important protections.

With respect to storage, ECF contains higher (potentially unlimited)
concentrations of toxic hydrocarbons and oxygenates than fuel oil, and
so poses a greater storage hazard than fuel oil.  In addition, ECF may
often behave as a dense non-aqueous phase liquid and be more difficult
to contain than fuel oil should it leak or spill.  Several of these
toxic hydrocarbons and oxygenates are also highly volatile, causing
concern for the hazard that fugitive air emissions may pose and
resulting in the need for fugitive emission controls.   In addition, ECF
storage units may be improperly closed, which could result in spills or
leaks of ECF given that storage units are not subject to closure and
financial assurance conditions under the present rule,   All of these
factors are reasons why a thorough review on the operation of the
storage units should be undertaken as part of the existing subtitle C
permitting structure, as opposed to a self-implementing structure. 
Thus, given all of these potentials for harm in storage – all of which
are classic damage pathways for waste storage – EPA is proposing to
remove the exclusion for ECF when ECF is stored.  

For all these reasons, EPA now concludes, subject to consideration of
public comment, that it is more straightforward and more appropriate
simply to apply the hazardous waste rules directly, i.e., to reclassify
ECF as solid waste subject to a hazardous waste determination and, if
hazardous, the RCRA cradle-to-grave management system.  

V. State Authority

A. Applicability of the Rule in Authorized States

Under section 3006 of RCRA, EPA may authorize qualified States to
administer their own hazardous waste programs in lieu of the federal
program within the state.  Following authorization, EPA retains
enforcement authority under sections 3008, 3013, and 7003 of RCRA,
although authorized states have primary enforcement responsibility.  The
standards and requirements for State authorization are found at 40 CFR
part 271.

Prior to enactment of the Hazardous and Solid Waste Amendments of 1984
(HSWA), a State with final RCRA authorization administered its hazardous
waste program entirely in lieu of EPA administering the federal program
in that State.  The federal requirements no longer applied in the
authorized State, and EPA could not issue permits for any facilities in
that State, since only the State was authorized to issue RCRA permits. 
When new, more stringent federal requirements were promulgated, the
State was obligated to enact equivalent authorities within specified
time frames.  However, the new federal requirements did not take effect
in an authorized State until the State adopted the federal requirements
as State law.

In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which was
added by HSWA, new requirements and prohibitions imposed under HSWA
authority take effect in authorized States at the same time that they
take effect in unauthorized States.  EPA is directed by the statute to
implement these requirements and prohibitions in authorized States,
including the issuance of permits, until the State is granted
authorization to do so.  While States must still adopt HSWA related
provisions as State law to retain final authorization, EPA implements
the HSWA provisions in authorized States until the States do so.

Authorized States are required to modify their programs only when EPA
enacts federal requirements that are more stringent or broader in scope
than the existing federal requirements.  RCRA section 3009 allows the
States to impose standards more stringent than those in the federal
program (see also 40 CFR 271.1).  Therefore, authorized States may, but
are not required to, adopt federal regulations, both HSWA and non-HSWA,
that are considered less stringent than previous Federal regulations.

B. Effect on State Authorization

The provisions in today’s notice are not being proposed under the
authority of HSWA and are considered to be more stringent than current
requirements.  States that have adopted the exclusion would be required
to modify their programs to remove the exclusion for ECF because they
must conform to Federal regulations that are more stringent than the
authorized State regulations.  States that adopted the comparable fuel
exclusion promulgated on June 19, 1998 and codified at §261.38, but
that have not adopted the ECF exclusion, will still need to revise their
programs to adopt the more stringent conditions applicable to comparable
fuel (see 73 FR at 77963-64) that were promulgated concurrently with the
ECF exclusion on December 19, 2008.

Section 271.21(e)(2) of EPA's State authorization regulations (40 CFR
part 271) requires that States with final authorization modify their
programs to reflect Federal program changes and submit the modifications
to EPA for approval.  The deadline by which the States will need to
modify their programs is determined by the date of promulgation of a
final rule in accordance with §271.21(e)(2).  Once EPA approves the
modification, the State requirements would become RCRA subtitle C
requirements.

VI. Statutory and Executive Order Reviews

A. Executive Order 12866:  Regulatory Planning and Review

Under Executive Order (EO) 12866   SEQ CHAPTER \h \r 1 (58 FR 51735,
October 4, 1993), this action is a "significant regulatory action.”   
SEQ CHAPTER \h \r 1 Pursuant to the terms of Executive Order 12866, the
Agency, in conjunction with the Office of Management and Budget (OMB),
has determined that this proposed rule is a significant regulatory
action because it proposes to withdraw a rule that OMB previously
determined contains novel policy issues, as defined under part 3(f)(4)
of the Order.  Accordingly, EPA submitted this action to OMB for review
under EO 12866.  Any changes made in response to OMB recommendations
have been documented in the docket for this action. 

This proposed withdrawal of the RCRA Conditional Exclusion for ECF would
result in lost benefits to society.  The economic assessment
(Assessment) prepared in support of the December 2008 final rule
estimated total annual net social benefits (i.e., net resource savings)
of $13.4 million per year, assuming all authorized states were to adopt
the rule (which as noted earlier, has not been the case).  The benefits
estimate was based on the best available data and information at the
time of the analysis.  However, upon further research and assessment, we
have determined that one of our key analytical assumptions, derived from
data reporting limitations, may not reflect actual waste management
patterns, as reported.  Adjusting for this discrepancy results in a
revised annual net social benefits estimate of approximately $6.6
million, again assuming that the current rule were to be adopted by all
authorized states.  Actual net social benefits are likely lower (since
most states have not adopted the rule).  This adjustment indicates that
the net annual social benefits lost by withdrawing the final rule would
not be as large as originally estimated.  

  SEQ CHAPTER \h \r 1 The revised net social benefits findings for the
final rule is significantly below the $100 million threshold established
under part 3(f)(1) of the Order.  Thus, this proposal is not considered
to be an economically significant action. 

B. Paperwork Reduction Act

The information collection requirements in this proposed rule have been
submitted for approval to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.  The
Information Collection Request (ICR) document prepared by EPA has been
assigned EPA ICR number 1361.14.  Withdrawing the ECF exclusion would
result in an increase in the reporting and recordkeeping burden for ECF
generators and burners, back to the level prior to promulgation of the
exclusion.  That is, under the ECF conditional exclusion, because ECF
was no longer classified as a hazardous waste, the generator and burner
would not be required to comply with the paperwork, reporting, and
recordkeeping requirements under the subtitle C hazardous waste
regulations.  However, ECF generators and burners would be subject to an
annual public reporting and recordkeeping burden for the collection of
information required under the conditional exclusion.  Thus, overall,
the reporting and recordkeeping burden for ECF generators and burners
resulted in a net annual reduction of 32,899 hours (assuming that all
authorized states adopted the rule, which has not occurred) and a
savings of $1.3 million in capital and operation and maintenance costs
(based on the same assumption).  Therefore, withdrawing the ECF
conditional exclusion would result in a reporting and recordkeeping
burden of 32,899 hours and a cost of $1.3 million in capital, and
operation and maintenance costs, assuming full adoption by authorized
states.  Since this has not occurred, the new burden would be far less.

Moreover, this is primarily an academic exercise as we have no knowledge
that any generators have made use of the ECF conditional exclusion.  If
that is indeed the case, withdrawing the ECF conditional exclusion would
not change the reporting and recordkeeping burden from what existed
prior to promulgation of the conditional exclusion.  OMB has previously
approved the information collection requirements contained in the
existing regulations at 40 CFR 261.38 under the provisions of the
Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and has assigned OMB
control number 2050 –0073.  Burden is defined at 5 CFR 1320.3(b).

An agency may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.  The OMB control numbers for EPA's regulations
in 40 CFR are listed in 40 CFR part 9.  

To comment on the Agency's need for this information, the accuracy of
the provided burden estimates, and any suggested methods for minimizing
respondent burden, EPA has established a public docket for this rule,
which includes this ICR, under Docket ID number EPA-HQ-RCRA-2005-0017.
Submit any comments related to the ICR to EPA and OMB.  See ADDRESSES
section at the beginning of this notice for where to submit comments to
EPA.  Send comments to OMB at the Office of Information and Regulatory
Affairs, Office of Management and Budget, 725 17th Street, NW,
Washington, DC 20503, Attention: Desk Officer for EPA.  Since OMB is
required to make a decision concerning the ICR between 30 and 60 days
after [Insert date of publication in the Federal Register], a comment to
OMB is best assured of having its full effect if OMB receives it by
[Insert date 30 days after publication in the Federal Register.].  The
final rule will respond to any OMB or public comments on the information
collection requirements contained in this proposal.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (RFA) generally requires an agency to
prepare a regulatory flexibility analysis of any rule subject to notice
and comment rulemaking requirements under the Administrative Procedure
Act or any other statute unless the agency certifies that the rule will
not have a significant economic impact on a substantial number of small
entities.  Small entities include small businesses, small organizations,
and small governmental jurisdictions.

For purposes of assessing the impacts of this rule on small entities,
small entity is defined as:  (1) a small business as defined by the
Small Business Administration’s (SBA) regulations at 13 CFR 121.201;
(2) a small governmental jurisdiction that is a government of a city,
county, town, school district or special district with a population of
less than 50,000; and (3) a small organization that is any
not-for-profit enterprise which is independently owned and operated and
is not dominant in its field.

After considering the economic impacts of this proposed rule on small
entities, I certify that this action would not have a significant
economic impact on a substantial number of small entities.  In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the primary
purpose of the regulatory flexibility analyses is to identify and
address regulatory alternatives “which minimize any significant
economic impact of the rule on small entities.”  5 USC 603 and 604. 
Thus, an agency may certify that a rule will not have a significant
economic impact on a substantial number of small entities if the rule
relieves regulatory burden, or otherwise has a positive economic effect
on all of the small entities subject to the rule.  

We have determined that the affected ECF generators are not owned by
small governmental jurisdictions or nonprofit organizations.  Therefore,
only small businesses were analyzed for small entity impacts.  For the
purposes of the impact analyses, small entity is defined either by the
number of employees or by the dollar amount of sales.  The level at
which a business is considered small is determined for each North
American Industrial Classification System (NAICS) code by the Small
Business Administration.

This rule, as proposed, is projected to result in increased costs to
companies that may have started to use the conditional exclusion, as
identified in the ECF Final Rule, although we suspect that very few
facilities, if any, have begun to comply with this rule.  However, the
[reversed] cost impacts to potentially affected entities are not
expected to be significant, as discussed under the Regulatory
Flexibility section of the May 14, 2008 Assessment document.  As a
result, the rule would not result in significant adverse economic
impacts to affected small entities.  We continue to be interested in the
potential impacts of the proposed rule on small entities and welcome
comments on issues related to such impacts.

D. Unfunded Mandates Reform Act

This proposed rule does not contain a Federal mandate that may result in
expenditures of $100 million or more for State, local, and tribal
governments, in the aggregate, or the private sector in any one year. 
Total annual cost impacts of this action, as proposed, are not expected
to exceed $6.6 million.  Thus, this proposed rule is not subject to the
requirements of sections 202 or 205 of UMRA.

This proposed rule is also not subject to the requirements of section
203 of UMRA because it contains no regulatory requirements that might
significantly or uniquely affect small governments. No small governments
are known to own or manage any of the affected entities.  

E. Executive Order 13132:  Federalism

Executive Order 13132, entitled “Federalism” (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
“meaningful and timely input by state and local officials in the
development of regulatory policies that have federalism implications.”
 “Policies that have federalism implications” is defined in the
Executive Order to include regulations that have “substantial direct
effects on the states, on the relationship between the national
government and the states, or on the distribution of power and
responsibilities among the various levels of government.” 

This proposed rule does not have federalism implications.  It would not
have substantial direct effects on the states, on the relationship
between the national government and the states, or on the distribution
of power and responsibilities among the various levels of government, as
specified in Executive Order 13132.  This proposed rulemaking primarily
and directly affects generators and burners of ECF.  There are no state
and local government bodies that would incur direct compliance costs by
this rulemaking.  Thus, Executive Order 13132 does not apply to this
proposed rule.  

In the spirit of Executive Order 13132 and consistent with EPA policy to
promote communications between EPA and state and local governments, EPA
specifically solicits comment on this proposed rule from state and local
officials.  

F. Executive Order 13175:  Consultation and Coordination with Indian
Tribal Governments

	This action does not have tribal implications, as specified in
Executive Order 13175 (65 FR 67249, November 9, 2000).  This proposed
rule would neither impose substantial direct compliance costs on tribal
governments nor preempt tribal law.  Thus, Executive Order 13175 does
not apply to this action.  

EPA did not consult directly with representatives of Tribal governments
in the process of developing this proposal.  Thus, EPA solicits comments
on this proposed rule from Tribal officials.

G. Executive Order 13045:  Protection of Children from Environmental
Health and Safety Risks

This action is not subject to EO 13045 (62 F.R. 19885, April 23, 1997)
because it is not economically significant as defined in EO 12866, and
because the Agency does not have reason to believe the environmental
health or safety risks addressed by this proposed action will present a
disproportionate risk to children.  

H. Executive Order 13211:  Actions that Significantly Affect Energy
Supply, Distribution or Usage

This proposed rule is not a “significant energy action” as defined
in Executive Order 13211 (66 FR 28355, May 22, 2001)), because it is not
likely to have a significant adverse effect on the supply, distribution,
or use of energy. 

I. National Technology Transfer Advancement Act

Section 12(d) of the National Technology Transfer and Advancement Act of
1995 (“NTTAA”), Public Law No. 104-113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus standards in its regulatory
activities unless to do so would be inconsistent with applicable law or
otherwise impractical.  Voluntary consensus standards are technical
standards (e.g., materials specifications, test methods, sampling
procedures, and business practices) that are developed or adopted by
voluntary consensus standards bodies.  NTTAA directs EPA to provide
Congress, through OMB, explanations when the Agency decides not to use
available and applicable voluntary consensus standards. 

Because EPA is proposing to withdraw the conditional exclusion for ECF
under §261.38, EPA is not considering the use of any voluntary
consensus standards.

J. Executive Order 12898:  Federal Actions to Address Environmental
Justice in Minority Populations and Low-Income Populations

Executive Order (EO) 12898 (59 FR 7629, Feb. 16, 1994) establishes
federal executive policy on environmental justice.  Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission by
identifying and addressing, as appropriate, disproportionately high and
adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.  

EPA has determined that this proposed rule would not have
disproportionately high and/or adverse human health or environmental
effects on minority or low-income populations because it would require
ECF to be managed under the RCRA Subtitle C hazardous waste regulations,
thereby potentially reducing exposures to the public, including to
minority and low-income populations. 

List of Subject in 40 CFR part 261

	Environmental protection, Hazardous waste, Recycling, Reporting and
recordkeeping requirements.

Dated:

______________________________________________

                                                                        
                       

Lisa P. Jackson,								

Administrator.

For the reasons set out in the preamble, title 40, chapter I, of the
Code of Federal Regulations is proposed to be amended as follows: 

PART 261—IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

1. The authority citation for part 261 continues to read as follows:

Authority:  42 U.S.C. 6903, 6912(b), 6925.

2. Section 261.4 is amended by revising paragraph (a)(16) to read as
follows:

§ 261.4 Exclusions.

(a)* 	*	*

(16) Comparable fuels or comparable syngas fuels that meet the
requirements of §261.38.

*	*	*	*	*

3. Section 261.38 is revised to read as follows:

§ 261.38 Exclusion of comparable fuel and syngas fuel.

(a) Specifications for excluded fuels.  Wastes that meet the
specifications for comparable fuel or syngas fuel under paragraphs
(a)(1) or (a)(2) of this section, respectively, and the other
requirements of this section, are not solid wastes.

(1) Comparable fuel specifications. .—(i) Physical
specifications.—(A) Heating value.  The heating value must exceed
5,000 BTU/lbs. (11,500 J/g).

(B) Viscosity.  The viscosity must not exceed: 50 cS, as-fired.

(ii) Constituent specifications. For compounds listed in Table 1 to this
section, the specification levels and, where non-detect is the
specification, minimum required detection limits are:  (see Table 1 of
this section).

(2) Synthesis gas fuel specifications. —Synthesis gas fuel (i.e.,
syngas fuel) that is generated from hazardous waste must:

(i) Have a minimum Btu value of 100 Btu/Scf;

(ii) Contain less than 1 ppmv of total halogen;

(iii) Contain less than 300 ppmv of total nitrogen other than diatomic
nitrogen (N2);

(iv) Contain less than 200 ppmv of hydrogen sulfide; and

(v) Contain less than 1 ppmv of each hazardous constituent in the target
list of appendix VIII constituents of this part.

(3) Blending to meet the specifications.  (i) Hazardous waste shall not
be blended to meet the comparable fuel specification under paragraph
(a)(1) of this section, except as provided by paragraph (a)(3)(ii) of
this section:

(ii) Blending to meet the viscosity specification.  A hazardous waste
blended to meet the viscosity specification for comparable fuel shall:

(A) As generated and prior to any blending, manipulation, or processing,
meet the constituent and heating value specifications of paragraphs
(a)(1)(i)(A) and (a)(1)(ii) of this section;

(B) Be blended at a facility that is subject to the applicable
requirements of parts 264, 265, or 267 or §262.34 of this chapter; and

(C) Not violate the dilution prohibition of paragraph (a)(6) of this
section.

(4) Treatment to meet the comparable fuel specifications.  (i) A
hazardous waste may be treated to meet the specifications for comparable
fuel set forth in paragraph (a)(1) of this section provided the
treatment:

(A) Destroys or removes the constituent listed in the specification or
raises the heating value by removing or destroying hazardous
constituents or materials;

(B) Is performed at a facility that is subject to the applicable
requirements of parts 264, 265, or 267, or §262.34 of this chapter; and

(C) Does not violate the dilution prohibition of paragraph (a)(6) of
this section.

(ii) Residuals resulting from the treatment of a hazardous waste listed
in subpart D of this part to generate a comparable fuel remain a
hazardous waste.

(5) Generation of a syngas fuel. (i) A syngas fuel can be generated from
the processing of hazardous wastes to meet the exclusion specifications
of paragraph (a)(2) of this section provided the processing:

(A) Destroys or removes the constituent listed in the specification or
raises the heating value by removing or destroying constituents or
materials;

(B) Is performed at a facility that is subject to the applicable
requirements of parts 264, 265, or 267, or §262.34 of this chapter or
is an exempt recycling unit pursuant to §261.6(c); and

(C) Does not violate the dilution prohibition of paragraph (a)(6) of
this section.

(ii) Residuals resulting from the treatment of a hazardous waste listed
in subpart D of this part to generate a syngas fuel remain a hazardous
waste.

(6) Dilution prohibition.  No generator, transporter, handler, or owner
or operator of a treatment, storage, or disposal facility shall in any
way dilute a hazardous waste to meet the specifications of paragraphs
(a)(1)(i)(A) or (a)(1)(ii) of this section for comparable fuel, or
paragraph (a)(2) of this section for syngas. 

(b) Implementation.--(1) General.--(i) Wastes that meet the
specifications provided by paragraph (a) of this section for comparable
fuel or syngas fuel are excluded from the definition of solid waste
provided that the conditions under this section are met.  For purposes
of this section, such materials are called excluded fuel; the person
claiming and qualifying for the exclusion is called the excluded fuel
generator and the person burning the excluded fuel is called the
excluded fuel burner.  

(ii) The person who generates the excluded fuel must claim the exclusion
by complying with the conditions of this section and keeping records
necessary to document compliance with those conditions.

(2) Notices.  (i) Notices to state RCRA and CAA Directors in authorized
states or regional RCRA and CAA Directors in unauthorized states.  (A)
The generator must submit a one-time notice, except as provided by
paragraph (b)(2)(i)(C) of this section, to the Regional or State RCRA
and CAA Directors, in whose jurisdiction the exclusion is being claimed
and where the excluded fuel will be burned, certifying compliance with
the conditions of the exclusion and providing the following
documentation:

(1) The name, address, and RCRA ID number of the person/facility
claiming the exclusion;

(2) The applicable EPA Hazardous Waste Code(s) that would otherwise
apply to the excluded fuel;

(3) The name and address of the units meeting the requirements of
paragraphs (b)(3) and (c) of this section, that will burn the excluded
fuel; 

(4) An estimate of the average and maximum monthly and annual quantity
of material for which an exclusion would be claimed, except as provided
by paragraph (b)(2)(i)(C) of this section; and

(5) The following statement, which shall be signed and submitted by the
person claiming the exclusion or his authorized representative:

Under penalty of criminal and civil prosecution for making or submitting
false statements, representations, or omissions, I certify that the
requirements of 40 CFR 261.38 have been met for all comparable fuels
identified in this notification.  Copies of the records and information
required at 40 CFR 261.38(b)(8) are available at the generator's
facility.  Based on my inquiry of the individuals immediately
responsible for obtaining the information, the information is, to the
best of my knowledge and belief, true, accurate, and complete.  I am
aware that there are significant penalties for submitting false
information, including the possibility of fine and imprisonment for
knowing violations.

(B) If there is a substantive change in the information provided in the
notice required under this paragraph, the generator must submit a
revised notification.

(C) Excluded fuel generators must include an estimate of the average and
maximum monthly and annual quantity of material for which an exclusion
would be claimed only in notices submitted after December 19, 2008 for
newly excluded fuel or for revised notices as required by paragraph
(b)(2)(i)(B) of this section.

(ii) Public notice. Prior to burning an excluded fuel, the burner must
publish in a major newspaper of general circulation local to the site
where the fuel will be burned, a notice entitled “Notification of
Burning a Fuel Excluded Under the Resource Conservation and Recovery
Act” and containing the following information:

(A) Name, address, and RCRA ID number of the generating facility(ies);

(B) Name and address of the burner and identification of the unit(s)
that will burn the excluded fuel;

(C) A brief, general description of the manufacturing, treatment, or
other process generating the excluded fuel;

(D) An estimate of the average and maximum monthly and annual quantity
of the excluded fuel to be burned; and

(E) Name and mailing address of the Regional or State Directors to whom
the generator submitted a claim for the exclusion.

(3) Burning.  The exclusion applies only if the fuel is burned in the
following units that also shall be subject to Federal/State/local air
emission requirements, including all applicable requirements
implementing section 112 of the Clean Air Act:

(i) Industrial furnaces as defined in §260.10 of this chapter;

(ii) Boilers, as defined in §260.10 of this chapter, that are further
defined as follows:

(A) Industrial boilers located on the site of a facility engaged in a
manufacturing process where substances are transformed into new
products, including the component parts of products, by mechanical or
chemical processes; or

(B) Utility boilers used to produce electric power, steam, heated or
cooled air, or other gases or fluids for sale;

(iii) Hazardous waste incinerators subject to regulation under subpart O
of parts 264 or 265 of this chapter and applicable CAA MACT standards.

(iv) Gas turbines used to produce electric power, steam, heated or
cooled air, or other gases or fluids for sale. 

(4) Fuel analysis plan for generators.  The generator of an excluded
fuel shall develop and follow a written fuel analysis plan which
describes the procedures for sampling and analysis of the material to be
excluded.  The plan shall be followed and retained at the site of the
generator claiming the exclusion. 

(i) At a minimum, the plan must specify:

(A) The parameters for which each excluded fuel will be analyzed and the
rationale for the selection of those parameters;

(B) The test methods which will be used to test for these parameters;

(C) The sampling method which will be used to obtain a representative
sample of the excluded fuel to be analyzed;

(D) The frequency with which the initial analysis of the excluded fuel
will be reviewed or repeated to ensure that the analysis is accurate and
up to date; and

(E) If process knowledge is used in the determination, any information
prepared by the generator in making such determination.

(ii) For each analysis, the generator shall document the following:

(A) The dates and times that samples were obtained, and the dates the
samples were analyzed;

(B) The names and qualifications of the person(s) who obtained the
samples;

(C) A description of the temporal and spatial locations of the samples;

(D) The name and address of the laboratory facility at which analyses of
the samples were performed;

(E) A description of the analytical methods used, including any clean-up
and sample preparation methods;

(F) All quantitation limits achieved and all other quality control
results for the analysis (including method blanks, duplicate analyses,
matrix spikes, etc.), laboratory quality assurance data, and the
description of any deviations from analytical methods written in the
plan or from any other activity written in the plan which occurred;

(G) All laboratory results demonstrating whether the exclusion
specifications have been met; and

(H) All laboratory documentation that support the analytical results,
unless a contract between the claimant and the laboratory provides for
the documentation to be maintained by the laboratory for the period
specified in paragraph (b)(9) of this section and also provides for the
availability of the documentation to the claimant upon request.

(iii) Syngas fuel generators shall submit for approval, prior to
performing sampling, analysis, or any management of an excluded syngas
fuel, a fuel analysis plan containing the elements of paragraph
(b)(4)(i) of this section to the appropriate regulatory authority.  The
approval of fuel analysis plans must be stated in writing and received
by the facility prior to sampling and analysis to demonstrate the
exclusion of a syngas.  The approval of the fuel analysis plan may
contain such provisions and conditions as the regulatory authority deems
appropriate.

(5) Excluded fuel sampling and analysis. (i) General.  For wastes for
which an exclusion is claimed under the specifications provided by
paragraphs (a)(1)or (a)(2) of this section, the generator of the waste
must test for all the constituents in appendix VIII to this part, except
those that the generator determines, based on testing or knowledge,
should not be present in the fuel.  The generator is required to
document the basis of each determination that a constituent with an
applicable specification should not be present.  The generator may not
determine that any of the following categories of constituents with a
specification in Table 1 to this section should not be present:

(A) A constituent that triggered the toxicity characteristic for the
constituents that were the basis for listing the hazardous secondary
material as a hazardous waste, or constituents for which there is a
treatment standard for the waste code in 40 CFR 268.40;

(B) A constituent detected in previous analysis of the waste;

(C) Constituents introduced into the process that generates the waste;
or

(D) Constituents that are byproducts or side reactions to the process
that generates the waste.

Note to paragraph (b)(5):  Any claim under this section must be valid
and accurate for all hazardous constituents; a determination not to test
for a hazardous constituent will not shield a generator from liability
should that constituent later be found in the excluded fuel above the
exclusion specifications.

(ii) Use of process knowledge.  For each waste for which the comparable
fuel or syngas exclusion is claimed where the generator of the excluded
fuel is not the original generator of the hazardous waste, the generator
of the excluded fuel may not use process knowledge pursuant to paragraph
(b)(5)(i) of this section and must test to determine that all of the
constituent specifications of paragraphs (a)(1) and (a)(2) of this
section, as applicable, have been met.  

(iii) The excluded fuel generator may use any reliable analytical method
to demonstrate that no constituent of concern is present at
concentrations above the specification levels.  It is the responsibility
of the generator to ensure that the sampling and analysis are unbiased,
precise, and representative of the excluded fuel.  For the fuel to be
eligible for exclusion, a generator must demonstrate that:

(A) The 95% upper confidence limit of the mean concentration for each
constituent of concern is not above the specification level; and

(B) The analyses could have detected the presence of the constituent at
or below the specification level.

(iv) Nothing in this paragraph preempts, overrides or otherwise negates
the provision in §262.11 of this chapter, which requires any person who
generates a solid waste to determine if that waste is a hazardous waste.

(v) In an enforcement action, the burden of proof to establish
conformance with the exclusion specification shall be on the generator
claiming the exclusion.

(vi) The generator must conduct sampling and analysis in accordance with
the fuel analysis plan developed under paragraph (b)(4) of this section.

(vii) Viscosity condition for comparable fuel.  (A) Excluded comparable
fuel that has not been blended to meet the kinematic viscosity
specification shall be analyzed as-generated.

(B) If hazardous waste is blended to meet the kinematic viscosity
specification for comparable fuel, the generator shall:

(1) Analyze the hazardous waste as-generated to ensure that it meets the
constituent and heating value specifications of paragraph (a)(1) of this
section; and

(2) After blending, analyze the fuel again to ensure that the blended
fuel meets all comparable fuel specifications.

(viii) Excluded fuel must be re-tested, at a minimum, annually and must
be retested after a process change that could change its chemical or
physical properties in a manner than may affect conformance with the
specifications.

(7) Speculative accumulation.  Excluded fuel must not be accumulated
speculatively, as defined in §261.1(c)(8).  

(8) Operating record.  The generator must maintain an operating record
on site containing the following information:

(i) All information required to be submitted to the implementing
authority as part of the notification of the claim:

(A) The owner/operator name, address, and RCRA ID number of the person
claiming the exclusion;

(B) For each excluded fuel, the EPA Hazardous Waste Codes that would be
applicable if the material were discarded; and

(C) The certification signed by the person claiming the exclusion or his
authorized representative.

(ii) A brief description of the process that generated the excluded
fuel.  If the comparable fuel generator is not the generator of the
original hazardous waste, provide a brief description of the process
that generated the hazardous waste;

(iii) The monthly and annual quantities of each fuel claimed to be
excluded;

(iv) Documentation for any claim that a constituent is not present in
the excluded fuel as required under paragraph (b)(5)(i) of this section;

(v) The results of all analyses and all detection limits achieved as
required under paragraph (b)(4) of this section;

(vi) If the comparable fuel was generated through treatment or blending,
documentation of compliance with the applicable provisions of paragraphs
(a)(3) and (a)(4) of this section;

(vii) If the excluded fuel is to be shipped off-site, a certification
from the burner as required under paragraph (b)(10) of this section;

(viii) The fuel analysis plan and documentation of all sampling and
analysis results as required by paragraph (b)(4) of this section; and

(ix) If the generator ships excluded fuel off-site for burning, the
generator must retain for each shipment the following information
on-site:

(A) The name and address of the facility receiving the excluded fuel for
burning;

(B) The quantity of excluded fuel shipped and delivered;

(C) The date of shipment or delivery;

(D) A cross-reference to the record of excluded fuel analysis or other
information used to make the determination that the excluded fuel meets
the specifications as required under paragraph (b)(4) of this section;
and

(E) A one-time certification by the burner as required under paragraph
(b)(10) of this section.

(9) Records retention.  Records must be maintained for a period of three
years.  

(10) Burner certification to the generator.  Prior to submitting a
notification to the State and Regional Directors, a generator of
excluded fuel who intends to ship the excluded fuel off-site for burning
must obtain a one-time written, signed statement from the burner:

(A) Certifying that the excluded fuel will only be burned in an
industrial furnace, industrial boiler, utility boiler, or hazardous
waste incinerator, as required under paragraph (b)(3) of this section;

(B) Identifying the name and address of the facility that will burn the
excluded fuel; and

(C) Certifying that the state in which the burner is located is
authorized to exclude wastes as excluded fuel under the provisions of
this section.

(11) Ineligible waste codes.  Wastes that are listed as hazardous waste
because of the presence of dioxins or furans, as set out in appendix VII
of this part, are not eligible for these exclusions, and any fuel
produced from or otherwise containing these wastes remains a hazardous
waste subject to the full RCRA hazardous waste management requirements.

(12) Regulatory status of boiler residues.  Burning excluded fuel that
was otherwise a hazardous waste listed under §§261.31 through 261.33
does not subject boiler residues, including bottom ash and emission
control residues, to regulation as derived-from hazardous wastes.

(13) Residues in containers and tank systems upon cessation of
operations.  (i) Liquid and accumulated solid residues that remain in a
container or tank system for more than 90 days after the container or
tank system ceases to be operated for storage or transport of excluded
fuel product are subject to regulation under parts 262 through 265, 267,
268, 270, 271, and 124 of this chapter.

(ii) Liquid and accumulated solid residues that are removed from a
container or tank system after the container or tank system ceases to be
operated for storage or transport of excluded fuel product are solid
wastes subject to regulation as hazardous waste if the waste exhibits a
characteristic of hazardous waste under §§261.21 through 261.24 or if
the fuel were otherwise a hazardous waste listed under §§261.31
through 261.33 when the exclusion was claimed.

(iii) Liquid and accumulated solid residues that are removed from a
container or tank system and which do not meet the specifications for
exclusion under paragraphs (a)(1) or (a)(2) of this section are solid
wastes subject to regulation as hazardous waste if:

(A) The waste exhibits a characteristic of hazardous waste under
§§261.21 through 261.24; or 

(B) The fuel were otherwise a hazardous waste listed under §§261.31
through 261.33.  The hazardous waste code for the listed waste applies
to these liquid and accumulated solid resides.

(14) Waiver of RCRA Closure Requirements.  Interim status and permitted
storage and combustion units, and generator storage units exempt from
the permit requirements under §262.34 of this chapter, are not subject
to the closure requirements of 40 CFR Parts 264, 265, and 267 provided
that the storage and combustion unit has been used to manage only
hazardous waste that is subsequently excluded under the conditions of
this section, and that afterward will be used only to manage fuel
excluded under this section. 

(15) Spills and leaks.  (i) Excluded fuel that is spilled or leaked and
that therefore no longer meets the conditions of the exclusion is
discarded and must be managed as a hazardous waste if it exhibits a
characteristic of hazardous waste under §§261.21 through 261.24 or if
the fuel were otherwise a hazardous waste listed in §§261.31 through
261.33.

(ii) For excluded fuel that would have otherwise been a hazardous waste
listed in §§261.31 through 261.33 and which is spilled or leaked, the
hazardous waste code for the listed waste applies to the spilled or
leaked material.

(16) Nothing in this section preempts, overrides, or otherwise negates
the provisions in CERCLA Section 103, which establish reporting
obligations for releases of hazardous substances, or the Department of
Transportation requirements for hazardous materials in 49 CFR parts 171
through 180.

(c) Failure to comply with the conditions of the exclusion.  An excluded
fuel loses its exclusion if any person managing the fuel fails to comply
with the conditions of the exclusion under this section, and the
material must be managed as hazardous waste from the point of
generation.  In such situations, EPA or an authorized state agency may
take enforcement action under RCRA section 3008(a).

 

 	See 73 FR 77954 (December 19, 2008).

 	See 63 FR 33782 (June 19, 1998).

 	See 73 FR at 77963-64.

 	Please note that this condition applies prospectively to generators
that newly claim the comparable fuel exclusion after December 19, 2008
and to generators that must submit a revised notification after December
19, 2008 because of a substantive change in the information required by
the notice.

 	See 63 FR 33782 (June 19, 1998).

 	See 73 FR 77954.

 	We note that the maximum firing rate for ECF containing a polynuclear
aromatic hydrocarbon (among the hydrocarbons which can be present in
unlimited concentrations in ECF) when the ECF is cofired with natural
gas is 0.55% on a heat input basis (i.e., the ECF can contribute only
0.55% of the heat input to the boiler), and the maximum firing rate for
such an ECF would be virtually zero if it were to be cofired with fuel
oil.  See USEPA, “Final Technical Support Document for the Exclusion
of Emission Comparable Fuels,” November 2008, Table 6-5.  These
feedrate restrictions are needed to ensure that emissions from burning
ECF are comparable to emissions from burning fuel oil, but are so
restrictive that they indicate the hazardous secondary material is more
waste-like than product-like since virtually none of it could be burned
in order to preserve emission comparability.

 	USEPA, “Assessment of the Potential Costs, Benefits, and Other
Impacts of the Expansion of the RCRA Comparable Fuel Exclusion-Final
Rule,” May 14, 2008.

 	Our primary data source, USEPA, “2005 National Biennial Report,”
does not identify a management method code for wastes that are combusted
in an incinerator and where the heating value of the wastes is used
beneficially in lieu of fossil or other fuels to combust other waste
with little or no heating value.  Thus, the vast majority of the waste
that we identify as likely to be excluded as ECF, and which is currently
combusted in incinerators, may already be burned for energy recovery.

 	USEPA, “Revised Assessment of the Potential Costs, Benefits, and
Other Impacts of the Expansion of the RCRA Comparable Fuel
Exclusion-Final Rule,” June 2, 2009.

 	This $100 million threshold applies to both costs, and cost savings.

 	USEPA, “Assessment of the Potential Costs, Benefits, and Other
Impacts of the Expansion of the RCRA Comparable Fuel Exclusion-Final
Rule,” May 14, 2008.

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