[Federal Register Volume 80, Number 67 (Wednesday, April 8, 2015)]
[Rules and Regulations]
[Pages 18777-18780]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-07992]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 260 and 261

[EPA-HQ-RCRA-2015-0118; FRL_9923-12-OSWER]


Response to Vacaturs of the Comparable Fuels Rule and the 
Gasification Rule

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: The Environmental Protection Agency (EPA) is revising 
regulations associated with the comparable fuels exclusion and the 
gasification exclusion, originally issued by EPA under the Resource 
Conservation and Recovery Act (RCRA). These revisions implement 
vacaturs ordered by the United States Court of Appeals for the District 
of Columbia Circuit (D.C. Circuit), on June 27, 2014.

DATES: Effective April 8, 2015.

ADDRESSES: EPA has established a docket for this action under Docket ID 
No. EPA-HQ-RCRA-2015-0118. All documents in the docket are listed in 
the www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, is 
not placed on the internet and will be publicly available only in hard 
copy form. Publicly available docket materials are available either 
electronically through www.regulations.gov or in hard copy at the EPA 
Docket Center, EPA/DC, WJC West Building, 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: Office of Resource Conservation and 
Recovery, Materials Recovery and Waste Management Division, MC 5304P, 
Environmental Protection Agency, 1200 Pennsylvania Ave. NW., 
Washington, DC 20460, Tracy Atagi, at (703) 308-8672, 
([email protected]) or Frank Behan, at (703) 308-8476, 
[email protected].

SUPPLEMENTARY INFORMATION: 

Preamble Outline

I. General Information
II. Statutory Authority
III. Which regulations is EPA removing?
IV. Background on the Comparable Fuels Rule and the Gasification 
Rule
V. When will the final rule become effective?
VI. State Authorization
VII. Statutory and Executive Order (EO) Reviews

[[Page 18778]]

I. General Information

A. Does this action apply to me?

    Today's final rule applies to generators, transporters, and 
facilities treating, storing, disposing or otherwise managing hazardous 
wastes previously excluded from RCRA regulation under the comparable 
fuels rule or previously excluded from RCRA regulation under the 
gasification rule. EPA has not identified any entities currently 
operating under the gasification rule, but has identified 31 facilities 
that appear to be managing previously-excluded comparable fuels. A list 
of these facilities is available in the docket for today's rule (Docket 
ID no. EPA-HQ-RCRA-2015-0118).

B. Why is EPA issuing a final rule?

    Section 553 of the Administrative Procedure Act, 5 U.S.C. 
553(b)(3)(B), provides that, when an agency for good cause finds that 
notice and public procedure are impracticable, unnecessary or contrary 
to the public interest, the Agency may issue a rule without providing 
notice and an opportunity for public comment. EPA has determined that 
there is good cause for removing these provisions without prior 
proposal and opportunity for comment, because these revisions are 
consistent with court orders vacating these rules. As a matter of law, 
the orders issued by the United States Court of Appeals for the 
District of Columbia Circuit on June 27, 2014, vacated the ``comparable 
fuels rule'' and the gasification rule issued by EPA under the Resource 
Conservation and Recovery Act (RCRA), 42 U.S.C. 6901, et seq. It is, 
therefore, unnecessary to provide notice and an opportunity for comment 
on this action, which merely carries out the court's orders. For the 
same reasons, EPA finds that it has good cause to make the revisions 
effective under 5 U.S.C. 553(d) and section 3010(b) of RCRA 42 U.S.C. 
6930(b).

II. Statutory Authority

    These regulations are promulgated under the authority of sections 
2002, 3001, 3002, 3003, 3004, 3006, 3007, 3010, and 3017 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. 6921, 6922, 6923, and 6924. 
This statute is commonly referred to as ``RCRA.''

III. Which regulations is EPA removing?

    EPA is removing provisions at 40 CFR 261.4(a)(16) and 40 CFR 261.38 
related to comparable fuels, and revising 40 CFR 261.4(a)(12)(i) by 
removing gasification from the list of specific petroleum refining 
processes into which oil-bearing hazardous secondary materials may be 
inserted. The effect of the removal of 40 CFR 261.4(a)(16) and 261.38 
will be to make comparable fuels that were previously excluded from the 
RCRA definition of solid waste subject to regulation under RCRA 
subtitle C. The removal of gasification from 40 CFR 261.4(a)(12)(i) 
will prevent hazardous secondary materials generated at petroleum 
refineries from being inserted into gasifiers at refineries without 
being deemed hazardous wastes and therefore being subject to hazardous 
waste regulations under RCRA subtitle C. As a result of these 
previously excluded materials now being identified as hazardous waste 
under 40 CFR 261.3, facilities burning these materials will be subject 
to regulation as Hazardous Waste Combustors under 40 CFR part 63 
subpart EEE, as well as applicable regulations under RCRA subtitle C.

IV. Background on the Comparable Fuels Rule and the Gasification Rule

A. The Comparable Fuels Rule

    EPA promulgated the Comparable Fuels Rule in 1998.\1\ The rule 
provided that fuels made from materials identified as hazardous wastes 
were excluded from the RCRA definition of solid waste if, as generated 
or after treatment and blending, they were sufficiently comparable to 
commercial fossil fuels for which they were substituted with respect to 
levels of hazardous constituents and physical properties that affect 
fuel burning efficiency, such as viscosity and heating value. Because 
the fuels, as burned, would contain contaminants no greater than 
commercial fossil fuels, and were otherwise indistinguishable from the 
fossil fuels that would be burned in their place, EPA found that the 
comparable fuels would pose no greater risk than commercial fuels when 
burned, and could be legitimately classified as non-waste fuels rather 
than as solid and hazardous waste fuels.
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    \1\ See ``Hazardous Waste Combustors; Revised Standards,'' 63 FR 
33782 (June 19, 1998).
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    The Agency took the position that comparable fuels were not being 
``discarded'' within the meaning of the definition of solid waste in 
RCRA section 1004(27), 42 U.S.C. 6903(27). RCRA defines solid wastes, 
for relevant purposes, as materials that have been discarded in the 
plain sense of the term, meaning that the material has been thrown 
away, disposed of or abandoned. Under RCRA a material regulated as a 
hazardous waste must first be a solid waste--that is, a discarded 
material. Thus, even though the comparable fuels were derived from 
materials that are listed hazardous wastes, EPA had concluded that 
fuels that met specified comparability criteria were not solid wastes 
because they looked no different from commercial fuels.
    The comparable fuels rule was vacated by United States Court of 
Appeals for the District of Columbia Circuit (D.C. Circuit), on June 
27, 2014 (Natural Resources Defense Council v. EPA, 755 F. 3d 1010 
(June 27, 2014)). In its decision, the court held that the unambiguous 
language of section 3004(q) requires that fuels produced from hazardous 
wastes must remain classified as hazardous wastes under subtitle C 
(other than in limited specified instances not relevant here). Section 
3004(q), according to the court, unequivocally provides that EPA 
``shall'' promulgate regulations as ``may'' be necessary to protect 
human health and the environment for the production of fuels from 
``any'' materials identified as hazardous waste under RCRA. All 
hazardous secondary materials from which the comparable fuels were made 
were identified in RCRA regulations as hazardous wastes.
    On November 3, 2014, the court granted EPA's motion to stay the 
issuance of the mandate for the comparable fuels rule until March 30, 
2015, in order to allow affected facilities time to come into 
compliance with applicable subtitle C regulations.

B. Gasification Rule

    Under the gasification rule, which was promulgated in 2008,\2\ EPA 
determined that oil-bearing hazardous secondary materials, even though 
otherwise identified as hazardous wastes under RCRA if discarded, are 
not in fact discarded and not solid wastes if they are inserted into a 
gasification unit located at a petroleum refinery to produce synthesis 
gas.\3\ Therefore, they were excluded from hazardous waste regulation.
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    \2\ See ``Regulation of Oil-Bearing Hazardous Secondary 
Materials From the Petroleum Refining Industry Processed in a 
Gasification System To Produce Synthesis Gas,'' 73 FR 57-72 (Jan. 2, 
2008).
    \3\ Synthesis gas is a type of fuel that may be burned for the 
recovery of energy.
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    The gasification rule was vacated by United States Court of Appeals 
for the District of Columbia Circuit (D.C. Circuit), on June 27, 2014. 
(Sierra Club

[[Page 18779]]

v. EPA, 755 F. 3d 968).The court held, similar to its decision on the 
Comparable Fuels Rule, that the Gasification Rule violates the plain 
language of RCRA section 3004(q) because fuels produced from hazardous 
wastes remain solid and hazardous wastes. Thus, all hazardous wastes 
inserted into a gasification unit at petroleum refineries remain 
subject to RCRA regulations as hazardous wastes.
    The court issued its mandate for the vacatur of the gasification 
rule on November 3, 2014.

V. When will the final rule become effective?

    The removal of the comparable fuels exclusion and the revisions 
removing gasification as an exclusion are effective immediately.

VI. State Authorization

A. Applicability of Rules in Authorized States

    Under section 3006 of RCRA, EPA may authorize a qualified state to 
administer and enforce a hazardous waste program within the state in 
lieu of the federal program, and to issue and enforce permits in the 
state. A state may receive authorization by following the approval 
process described in 40 CFR 271.21 (see 40 CFR part 271 for the overall 
standards and requirements for authorization). EPA continues to have 
independent authority to bring enforcement actions under RCRA sections 
3007, 3008, 3013, and 7003. An authorized state also continues to have 
independent authority to bring enforcement actions under state law.
    After a state receives initial authorization, new federal 
requirements promulgated under RCRA authority existing prior to the 
1984 Hazardous and Solid Waste Amendments (HSWA) do not apply in that 
state until the state adopts and receives authorization for equivalent 
state requirements. In contrast, under RCRA section 3006(g) (42 U.S.C. 
6926(g)), new federal requirements and prohibitions imposed under 
subtitle C pursuant to HSWA provisions take effect in authorized states 
at the same time that they take effect in unauthorized states. As such, 
EPA carries out the HSWA requirements and prohibitions in authorized 
states, including the issuance of new permits implementing those 
requirements, until EPA authorizes the state to 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(i)). Therefore, authorized states are 
not required to adopt federal regulations that are considered less 
stringent than previous federal regulations or that narrow the scope of 
the RCRA program. Previously authorized hazardous waste regulations 
would continue to apply in those states.

B. Effect on State Authorization of D.C. Circuit Court Vacaturs

    On March 30, 2015, the D.C. Circuit Court issued its mandate, 
effectuating the vacatur of the comparable fuels rule, as described 
earlier in this document. The mandate for the gasification rule was 
issued on November 3, 2014. The court's vacaturs mean that these 
federal rules are legally null and void. Therefore, the court's 
mandates reinstate the regulatory status of the materials previously in 
effect as if the vacated rules never existed. Because excluded 
comparable fuels and gasified hazardous waste were, or would have been, 
previously regulated as discarded solid waste, these materials, if 
hazardous, must be handled as hazardous waste in compliance with 
requirements applicable to the generation, transportation, treatment, 
storage, or disposal of hazardous waste after March 30, 2015. At the 
federal level, because the effect of the vacaturs means, in essence, 
that these rules should not have been promulgated, this document simply 
removes them from the exclusions in the federal regulations. At the 
state level, because no state rules were challenged in the litigation, 
the court decision does not affect any state exclusions. However, the 
vacaturs do have an impact on the authorization status of states. The 
multiple scenarios that exist in the states are discussed below.
1. States Without Final RCRA Authorization
    For states that have no RCRA authorization status (Iowa, Alaska), 
the vacaturs simply mean that the federal rules will no longer be in 
effect in those states and by this document, EPA is alerting interested 
parties of the removal of the vacated rules from the Code of Federal 
Regulations. The subject materials are federally regulated and EPA may 
bring enforcement actions under RCRA Section 3008 at facilities that do 
not comply with the RCRA hazardous waste regulations. The state 
programs are completely unaffected by the vacaturs and these states do 
not have to modify their programs in any way regardless of how they 
currently regulate the materials.
2. States That Have Final Authorization but Did Not Promulgate Similar 
Rules
    For states that have been authorized under RCRA but did not adopt 
rules similar to the comparable fuels and gasification rules (and 
therefore were not authorized for them), there were no federal 
comparable fuels and gasification rules in effect prior to vacatur 
because the federal comparable fuels and gasification rules were less 
stringent than the federal hazardous waste regulations and states were 
not required to adopt or become authorized for these rules. Therefore, 
these vacaturs will have no effect on the authorization status in these 
states. The subject materials remain regulated under the authorized 
state hazardous waste program and EPA may continue to bring enforcement 
actions under RCRA Section 3008 at facilities that do not comply with 
the RCRA hazardous waste regulations. These states do not have to 
modify their programs.
3. States That Adopted Similar Rules But Are Not Yet Authorized for 
Them
    For states that have adopted similar rules but have not yet been 
authorized for them, the vacatur of the federal rules will not change 
the authorization status of the state programs. The authorization 
status that was established prior to the adoption of the state 
counterpart rules remains in effect and EPA may continue to bring 
enforcement actions under RCRA Section 3008 at facilities that do not 
comply with the RCRA hazardous waste regulations. The vacaturs and 
subsequent removal of the federal rules will result in state programs 
that are less stringent than the federal program as long as state 
provisions that exclude the subject materials from regulation remain in 
effect in the state programs. EPA encourages these states to 
expeditiously remove these rules from their programs.
4. States That Adopted Similar Rules and Have Been Authorized for Them
    For states that have previously been authorized for the comparable 
fuels and gasification rules, the effect of the vacaturs is that the 
previously authorized comparable fuels and gasification rules from the 
state program will no longer be considered part of the federally 
authorized program. Thus, EPA may bring enforcement actions under RCRA 
Section 3008 at facilities that do not comply with the RCRA hazardous 
waste regulations. In other words, the authorization status of the 
state program that was in place prior to authorization of the state 
comparable fuels and gasification rules is reinstated with regard to 
these rules. EPA strongly

[[Page 18780]]

encourages these states to proceed expeditiously to remove these 
counterpart rules. Once the counterpart rules are removed, these states 
should notify their EPA regional office by letter to verify the status 
of the state program.

VII. Statutory and Executive Order (EO) Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993) and 
Executive Order 13563 (76 FR 3821, January 21, 2011), this action is 
not a ``significant regulatory action'' and is therefore not subject to 
OMB review. Because this action is not subject to notice and comment 
requirements under the Administrative Procedures Act or any other 
statute, it is not subject to the Regulatory Flexibility Act (5 U.S.C. 
601 et seq.) or Sections 202 and 205 of the Unfunded Mandates Reform 
Act of 1999 (UMRA) (Pub. L. 104-4). In addition, this action does not 
significantly or uniquely affect small governments. This action does 
not create new binding legal requirements that substantially and 
directly affect Tribes under Executive Order 13175 (65 FR 67249, 
November 9, 2000). This action does not have significant Federalism 
implications under Executive Order 13132 (64 FR 43255, August 10, 
1999). Because this final rule has been exempted from review under 
Executive Order 12866, this final rule is not subject to Executive 
Order 13211, entitled Actions Concerning Regulations That Significantly 
Affect Energy Supply, Distribution, or Use (66 FR 28355, May 22, 2001) 
or Executive Order 13045, entitled Protection of Children from 
Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 
1997). This final rule does not contain any information collections 
subject to OMB approval under the Paperwork Reduction Act (PRA), 44 
U.S.C. 3501 et seq., nor does it require any special considerations 
under Executive Order 12898, entitled Federal Actions to Address 
Environmental Justice in Minority Populations and Low-Income 
Populations (59 FR 7629, February 16, 1994). This action does not 
involve technical standards; thus, the requirements of Section 12(d) of 
the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 
272 note) do not apply.

Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., generally 
provides that before certain actions may take effect, the agency 
promulgating the action must submit a report, which includes a copy of 
the action, to each House of the Congress and to the Comptroller 
General of the United States. This action is subject to the CRA, and 
the EPA will submit a rule report to each House of the Congress and to 
the Comptroller General of the United States. This action is not a 
``major rule'' as defined by 5 U.S.C. 804(2).

List of Subjects

40 CFR Part 260

    Environmental protection, Administrative practice and procedure, 
Confidential business information, Hazardous waste, Reporting and 
recordkeeping requirements.

40 CFR Part 261

    Environmental protection, Hazardous waste, Recycling, Solid Waste.

    Dated: April 1, 2015.
Mathy Stanislaus,
Assistant Administrator, Office of Solid Waste and Emergency Response.

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

PART 260--HAZARDOUS WASTE MANAGEMENT SYSTEM: GENERAL

0
1. The authority citation for part 260 continues to read as follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921-6927, 6930, 6934, 6935, 
6937, 6938, 6939 and 6974.

Subpart B--Definitions


Sec.  260.10  [Amended]

0
2. Section 260.10 is amended by removing the definition of 
``Gasification.''

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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

    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, 6924(y), and 
6938.


0
4. Section 261.4 is amended by revising paragraph (a)(12)(i), and 
removing and reserving paragraph (a)(16) to read as follows:


Sec.  261.4  Exclusions.

    (a) * * *
* * * * *
    (12)(i) Oil-bearing hazardous secondary materials (i.e., sludges, 
byproducts, or spent materials) that are generated at a petroleum 
refinery (SIC code 2911) and are inserted into the petroleum refining 
process (SIC code 2911--including, but not limited to, distillation, 
catalytic cracking, fractionation, or thermal cracking units (i.e., 
cokers)) unless the material is placed on the land, or speculatively 
accumulated before being so recycled. Materials inserted into thermal 
cracking units are excluded under this paragraph, provided that the 
coke product also does not exhibit a characteristic of hazardous waste. 
Oil-bearing hazardous secondary materials may be inserted into the same 
petroleum refinery where they are generated, or sent directly to 
another petroleum refinery and still be excluded under this provision. 
Except as provided in paragraph (a)(12)(ii) of this section, oil-
bearing hazardous secondary materials generated elsewhere in the 
petroleum industry (i.e., from sources other than petroleum refineries) 
are not excluded under this section. Residuals generated from 
processing or recycling materials excluded under this paragraph 
(a)(12)(i), where such materials as generated would have otherwise met 
a listing under subpart D of this part, are designated as F037 listed 
wastes when disposed of or intended for disposal.
* * * * *
    (16) [Reserved]
* * * * *


Sec.  261.38  [Removed and Reserved]

0
5. Remove and reserve Sec.  261.38.

[FR Doc. 2015-07992 Filed 4-7-15; 8:45 am]
 BILLING CODE 6560-50-P