[Federal Register Volume 74, Number 234 (Tuesday, December 8, 2009)]
[Proposed Rules]
[Pages 64643-64658]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-29063]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-HQ-RCRA-2005-0017; FRL-9089-5]
RIN 2050-AG57


Withdrawal of the Emission-Comparable Fuel Exclusion Under RCRA

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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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 January 22, 2010. 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 January 7, 2010.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2005-0017, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected].
     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 
http://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 http://www.regulations.gov Web site 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 http://www.regulations.gov 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

[[Page 64644]]

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 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 http://www.regulations.gov 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 http://www.regulations.gov 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, DC 20460; telephone number: (703) 
308-8453; fax number: (703) 308-8433; e-mail address: 
[email protected].

SUPPLEMENTARY INFORMATION:

General Information

A. Does This Action Apply to Me?

    Categories and entities potentially affected by this action 
include:

                Examples of Potentially Affected Entities
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            NAICS code                      Industry description
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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.
3273..............................  Cement Manufacturing.
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    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 
http://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 you 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 http://www.epa.gov/hwcmact. 
This Web site also provides other information related

[[Page 64645]]

to the NESHAP for hazardous waste combustors.
    5. Index of contents. The information presented in this preamble is 
organized as follows:

I. Statutory Authority
II. Background
    A. What Is the Intent of the Proposed Rule?
    B. Who Will Be Affected by the Proposed Rule?
III. Summary of the Proposed Rule
IV. Rationale for Proposing To Revoke the Exclusion for ECF
    A. ECF May Be Classified as a Waste Rather Than a Product
    B. Why EPA Now Proposes To Reclassify ECF as a Waste
V. State Authority
    A. Applicability of the Rule in Authorized States
    B. Effect on State Authorization
VI. Statutory and Executive Order Reviews
    A. Executive Order 12866: Regulatory Planning and Review
    B. Paperwork Reduction Act
    C. Regulatory Flexibility Act
    D. Unfunded Mandates Reform Act
    E. Executive Order 13132: Federalism
    F. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    G. Executive Order 13045: Protection of Children from 
Environmental Health and Safety Risks
    H. Executive Order 13211: Actions That Significantly Affect 
Energy Supply, Distribution, or Usage
    I. National Technology Transfer Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

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 Sec.  
261.38.\1\ 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.
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    \1\ See 73 FR 77954 (December 19, 2008).
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    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 \2\ (also codified 
in Sec.  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.\3\
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    \2\ See 63 FR 33782 (June 19, 1998).
    \3\ See 73 FR at 77963-64.
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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.

[[Page 64646]]

III. Summary of the Proposed Rule

    This proposed rule would withdraw the conditional exclusion for ECF 
under Sec.  261.38, including the exclusion itself in Sec.  
261.4(a)(16), specifications and associated conditions applicable to 
ECF under Sec.  261.38(a), the implementation conditions applicable to 
ECF under Sec.  261.38(b), the storage and burning conditions for ECF 
under Sec.  261.38(c), the provisions for failure to comply with the 
conditions for the ECF exclusion under Sec.  261.38(d)(2), the 
alternative storage conditions for ECF under Sec.  261.38(e), and the 
notification of closure of an ECF storage unit under Sec.  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 
Sec.  261.38(a), the implementation conditions applicable to these 
materials under Sec.  261.38(b), and the provision for failure to 
comply with the conditions for exclusion of these materials under Sec.  
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 (Sec.  261.38(b)(15)); (2) clarification that 
the 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 (Sec.  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 (Sec.  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 (Sec.  261.38(b)(12)); and (5) a condition \4\ 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 (Sec.  
261.38(b)(2)(i)(A)).
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    \4\ 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.
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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 Sec.  261.38.\5\ These materials 
are called comparable fuels.
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    \5\ See 63 FR 33782 (June 19, 1998).
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    On December 19, 2008,\6\ EPA added an additional group of hazardous 
secondary materials to the exclusions in Sec.  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.
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    \6\ See 73 FR 77954.
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    However, ECF is a hazardous secondary material because the material 
can have substantially higher concentrations of hazardous oxygenates 
and hydrocarbons than fuel oil, and thus, lacking physical identity to 
fossil fuel, can also be reasonably considered to be discarded when 
burned (and when accumulated/stored prior to burning). Hazardous 
oxygenates and hydrocarbons 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 
\7\ 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 ensure 
comparable emissions, EPA conditioned 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),\8\ and boiler 
operating conditions (e.g., CO control, dioxin/furan control, automatic 
ECF cutoff systems, and operator training). See Sec.  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.
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    \7\ USEPA, ``Final Technical Support Document for the Exclusion 
of Emission Comparable Fuels,'' November 2008, Section 2.4.
    \8\ 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 co-
fired 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 co-fired 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.
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    Similarly, the exclusion contains extensive conditions on storage 
that are virtually identical to the requirements for permitted 
hazardous waste storage units. See Sec.  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

[[Page 64647]]

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 hazardous 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 hazardous hydrocarbons and oxygenates are also highly 
volatile, raising concern about the hazard of fugitive air emissions 
and resulting in the need for fugitive emission controls. In addition, 
since storage units are not subject to closure and financial assurance 
conditions under the present rule, ECF storage units may be improperly 
closed, which could result in spills or leaks. 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

[[Page 64648]]

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 the 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 Sec.  
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 Sec.  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 (58 FR 51735, October 4, 1993), 
this action is a ``significant regulatory action.'' 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) \9\ 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, we do not believe has occurred). 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,\10\ 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.\11\ Actual net social 
benefits are likely lower since we believe 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.\12\
---------------------------------------------------------------------------

    \9\ USEPA, ``Assessment of the Potential Costs, Benefits, and 
Other Impacts of the Expansion of the RCRA Comparable Fuel 
Exclusion--Final Rule,'' May 14, 2008.
    \10\ 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.
    \11\ USEPA, ``Revised Assessment of the Potential Costs, 
Benefits, and Other Impacts of the Expansion of the RCRA Comparable 
Fuel Exclusion--Final Rule,'' July 15, 2009.
    \12\ USEPA, ``Assessment of the Potential Costs, Benefits, and 
Other Impacts of the Proposed Withdrawal of the Expansion of the 
RCRA Comparable Fuel Exclusion--Final Rule,'' July 15, 2009.
---------------------------------------------------------------------------

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 we believe this has not occurred, the new burden would be 
far less. If authorized States have not fully adopted the rule, 
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

[[Page 64649]]

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 December 8, 2009, a comment to OMB is best 
assured of having its full effect if OMB receives it by January 7, 
2010. 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 U.S.C. 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.\13\ 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.
---------------------------------------------------------------------------

    \13\ USEPA, ``Assessment of the Potential Costs, Benefits, and 
Other Impacts of the Expansion of the RCRA Comparable Fuel 
Exclusion--Final Rule,'' May 14, 2008.
---------------------------------------------------------------------------

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

    This action 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 action 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 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

[[Page 64650]]

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 Sec.  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 Subjects in 40 CFR Part 261

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

    Dated: November 30, 2009.
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:


Sec.  261.4  Exclusions.

    (a) * * *
    (16) Comparable fuels or comparable syngas fuels that meet the 
requirements of Sec.  261.38.
* * * * *
    3. Section 261.38 is revised to read as follows:


Sec.  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 Sec.  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 Sec.  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 Sec.  262.34 of this chapter 
or is an exempt recycling unit pursuant to Sec.  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

[[Page 64651]]

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 Sec.  260.10 of this chapter;
    (ii) Boilers, as defined in Sec.  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

[[Page 64652]]

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)(i):  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 Sec.  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.
    (6) [Reserved]
    (7) Speculative accumulation. Excluded fuel must not be accumulated 
speculatively, as defined in Sec.  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:
    (i) 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;
    (ii) Identifying the name and address of the facility that will 
burn the excluded fuel; and
    (iii) 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

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under Sec. Sec.  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 Sec. Sec.  261.21 through 
261.24 or if the fuel were otherwise a hazardous waste listed under 
Sec. Sec.  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 
Sec. Sec.  261.21 through 261.24; or
    (B) The fuel were otherwise a hazardous waste listed under 
Sec. Sec.  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 Sec.  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 Sec. Sec.  261.21 through 
261.24 or if the fuel were otherwise a hazardous waste listed in 
Sec. Sec.  261.31 through 261.33.
    (ii) For excluded fuel that would have otherwise been a hazardous 
waste listed in Sec. Sec.  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 a 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).
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[FR Doc. E9-29063 Filed 12-7-09; 8:45 am]
BILLING CODE 6560-50-C