[Federal Register Volume 75, Number 114 (Tuesday, June 15, 2010)]
[Rules and Regulations]
[Pages 33712-33724]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-14097]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-HQ-RCRA-2005-0017; FRL-9160-9]
RIN 2050-AG57


Withdrawal of the Emission-Comparable Fuel Exclusion Under RCRA

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This final action withdraws 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 withdrawing 
this conditional exclusion because the Agency has concluded that ECF is 
more appropriately classified as 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 final rule.

DATES: This final rule is effective June 15, 2010.

ADDRESSES: The official public docket is identified by Docket ID No. 
EPA-HQ-RCRA-2005-0017. All documents in the docket are listed in the 
http://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 http://www.regulations.gov or in hard copy at the RCRA Docket, EPA/
DC, EPA West, Room 3334, 1301 Constitution Ave.,

[[Page 33713]]

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: 5302P, 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:

                Example of Potentially Affected Entities
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          NAICS code                      Industry description
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3241.........................  Petroleum and Coal Products
                                Manufacturing.
3251.........................  Basic Chemical Manufacturing.
3252.........................  Resin, Synthetic Rubber, and Artificial
                                Synthetic Fibers and Filaments
                                Manufacturing.
3254.........................  Pharmaceutical and Medicine
                                Manufacturing.
3255.........................  Paint, Coating, and Adhesive
                                Manufacturing.
3259.........................  Other Chemical Product and Preparation
                                Manufacturing.
3273.........................  Cement Manufacturing.
4884.........................  Support Activities for Road
                                Transportation.
5614.........................  Business Support Services.
5622.........................  Waste Treatment and Disposal.
9281.........................  National Security and International
                                Affairs.
------------------------------------------------------------------------

    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 final 
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. Docket Copying Costs

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

C. 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 final rule will also be available on the Internet. Following 
the Administrator's signature, a copy of this document will be posted 
at http://www.epa.gov/hwcmact. This Web site also provides other 
information related to the NESHAP for hazardous waste combustors.

D. 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 rule?
    B. Who is affected by the rule?
III. Final Rule
IV. State Authority
    A. Applicability of the Rule in Authorized States
    B. Effect on State Authorization
V. 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 Risks and Safety Risks
    H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    I. National Technology Transfer and Advancement Act
    J. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations
    K. Congressional Review Act

I. Statutory Authority

    This regulation is 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.

II. Background

A. What is the intent of the rule?

    This rule withdraws the conditional exclusion from regulation under 
subtitle C of RCRA for Emission Comparable Fuel, as codified at Sec.  
261.38.\1\ The conditional exclusion stated 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. 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 discussed in the 
proposed rule, (Withdrawal of the ECF Exclusion Proposed Rule (74 FR 
64643, December 8, 2009)), the existing subtitle C permitting process 
provides for the necessary review on the operation of the combustion 
units and the storage units to assure that the appropriate storage and 
combustion conditions are met.
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    \1\ See 73 FR 77954 (December 19, 2008).
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    This rule does not affect the exclusions for comparable fuel and 
synthesis gas fuel that were promulgated in 1998 \2\ (also codified in 
Sec.  261.38). In addition, this rule 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 is affected by the rule?

    Entities that generate, burn, and store ECF would be potentially 
affected by this final rule. The rationale for the exclusion was that 
ECF is not a solid (and hazardous) waste as generated, and hence is not 
subject to the subtitle C regulations. Under today's rule, ECF is again 
classified as a hazardous waste, and all entities managing such 
hazardous secondary materials are again subject to all applicable 
subtitle C hazardous waste standards. Since the ECF exclusion 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, were managing hazardous secondary materials pursuant to this 
rule.

[[Page 33714]]

III. Final Rule

    On December 8, 2009, EPA proposed to withdraw the conditional 
exclusion for ECF under 261.38, including the exclusion itself in Sec.  
261.38(a), the 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). 
EPA received no major comments on the proposed rule to withdraw the ECF 
exclusion, and therefore today's action makes final, with no changes, 
the withdrawal of the conditional exclusion for ECF under Sec.  261.38, 
as previously described. (The one comment that EPA received on the 
proposal, along with EPA's response to the comment are contained in the 
docket to today's final rule.) Information on the intent and rationale 
of the exclusion can be found in the Withdrawal of the ECF Exclusion 
Proposed Rule (74 FR 64643, December 8, 2009) and is part of the record 
for this final rule.
    As noted above, this rule does not affect the exclusions 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, today's final rule does 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 hazardous waste characteristic or if it is otherwise a 
listed hazardous waste (Sec.  261.38(b)(15)); (2) clarification that 
comparable fuel tank systems 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. 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

    By removing the ECF provisions, while maintaining the more 
stringent conditions applicable to comparable fuel in today's notice, 
it leads to final regulations that are considered to be more stringent 
than the current requirements; these provisions were not promulgated 
under the authority of HSWA. Therefore, States that have adopted the 
exclusion are 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 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.

V. Statutory and Executive Order Reviews

A. Executive Order 12866: Regulatory Planning and Review

    This action is not a ``significant regulatory action'' under the 
terms of Executive Order (EO) 12866 (58 FR

[[Page 33715]]

51735, October 4, 1993) and is therefore not subject to review under 
the EO. Our impact assessment \5\ suggests that lost benefits would be, 
at most, $6.6 million per year. If fewer States were to have adopted 
the December 2008 exclusion rule, the value of lost benefits would be 
smaller.
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    \5\ Assessment of the Potential Costs, Benefits, and Other 
Impacts of the Withdrawal of the Emission-Comparable Fuel Exclusion 
Under RCRA--Final Rule, May 11, 2010.
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B. Paperwork Reduction Act

    The information collection requirements in this final 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 requirements are not enforceable until OMB 
approves them.
    The Information Collection Request (ICR) document prepared by EPA 
has been assigned EPA ICR number 1361.15. Withdrawing the ECF exclusion 
will 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 were not required to comply with the paperwork, reporting, and 
recordkeeping requirements under the subtitle C hazardous waste 
regulations. However, ECF generators and burners were 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 32,900 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 will result in a reporting and recordkeeping 
burden of 32,900 hours and a cost of $1.3 million in capital, and 
operation and maintenance costs, again assuming full adoption by 
authorized States. However, since we believe this has not occurred, the 
new burden would be significantly less. If authorized States have not 
adopted the rule, withdrawing the ECF conditional exclusion will 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). EPA has 
established a public docket for this final rule, which includes the ICR 
prepared in support of the final action. The Docket ID number is EPA-
HQ-RCRA-2005-0017.
    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.

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 today's rule on small 
entities, small entity is defined as: (1) A small business, as defined 
by 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 today's final rule on 
small entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. The small 
entities directly regulated by this final rule are facilities that 
generate, burn on-site, and store ECF. 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. A 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.
    We have determined that this final rule 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 actually begun to comply 
with this rule. However, any cost impacts to potentially affected small 
entities are not expected to be significant. The May 14, 2008 economic 
assessment \6\ identified 34 facilities projected to take advantage of 
the ECF final rule (see Appendix E to the economic assessment 
document). Based on the corporate ownership of these facilities, one 
facility was confirmed as a small business based on the Small Business 
Administration size standards.\7\ The size category of one other 
facility was undetermined. All other facilities were found to be owned 
by large businesses or the Federal government (e.g., DOE). For the one 
identified small business and the one of undetermined size, impacts to 
these companies was estimated to be up to a maximum of one percent of 
gross annual revenues. This impact estimate was based on the average 
annual gross revenues for the NAICS category (2002 Census data) and the 
average cost savings per generator, as reported in Exhibit 15 of the 
revised assessment.\8\ This impact finding assumes both ``small 
businesses'' have fully implemented the ECF final rule and would 
therefore experience cost increases as a result of this withdrawal. 
However, as discussed above, we suspect that very few facilities, if 
any, have begun to comply with this rule.
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    \6\ USEPA, ``Assessment of the Potential Costs, Benefits, and 
Other Impacts of the Expansion of the RCRA Comparable Fuel 
Exclusion-Final Rule,'' May 14, 2008.
    \7\ http://www.sba.gov/idc/groups/public/documents/sba_homepage/serv_sstd_tablepdf.pdf.
    \8\ 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.
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D. Unfunded Mandates Reform Act

    This 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 are not expected to exceed 
$6.6 million. Thus, this final rule is not subject to the requirements 
of sections 202 or 205 of UMRA.
    This 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

[[Page 33716]]

small governments are known to own or manage any of the potentially 
affected entities.

E. Executive Order 13132: Federalism

    This action does not have federalism implications. It will 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 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 
final rule.

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 final rule 
will neither impose substantial direct compliance costs on Tribal 
governments nor preempt Tribal law. Thus, Executive Order 13175 does 
not apply to this action.
    Although Executive Order 13175 does not apply to this action, EPA 
specifically solicited comment on the proposed action from Tribal 
officials. No comments were received.

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

    This action is not subject to EO 13045 (62 FR 19885, April 23, 
1997) because it is not economically significant as defined in EO 
12866, and because the Agency does not believe the environmental health 
or safety risks addressed by this final rule present a disproportionate 
risk to children. This action's health and risk assessments are 
contained in the original document(s) that established these materials 
as hazardous waste.

H. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 (66 FR 28355 
(May 22, 2001)), because it is not a significant regulatory action 
under Executive Order 12866.

I. National Technology Transfer and 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 when the Agency decides not to use 
available and applicable voluntary consensus standards.
    Because EPA is withdrawing the conditional exclusion for ECF under 
Sec.  261.38, EPA is not using 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 final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it increases the 
level of environmental protection for all affected populations without 
having any disproportionately high and adverse human health or 
environmental effects on any population, including any minority or low-
income population. This action reverses the ECF final rule thereby 
reinstating the more stringent management requirements for these 
materials.

K. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A Major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective June 15, 2010.

List of Subjects in 40 CFR Part 261

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

    Dated: June 7, 2010.
Lisa P. Jackson,
Administrator.

0
For the reasons set out in the preamble, title 40, chapter I, of the 
Code of Federal Regulations is amended as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

0
1. The authority citation for part 261 continues to read as follows:


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


0
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.
* * * * *
0
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;

[[Page 33717]]

    (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 constituents 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 constituents 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 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

[[Page 33718]]

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 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

[[Page 33719]]

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 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 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. 2010-14097 Filed 6-14-10; 8:45 am]
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