On April 8, 2015, the Environmental Protection Agency (EPA) published a final rule (80 FR 18777-18780) amending the Resource Conservation and Recovery Act (RCRA) hazardous waste regulations by removing the comparable fuels exclusions in 40 CFR 261.4(a)(16) and 40 CFR 261.38 and the gasification exclusion in 40 CFR 261.4(a)(12)(i).
Impact on Generators Previously Utilizing the Comparable Fuels Exclusion
As a result of this rule change wastes previously managed as comparable fuels must now be managed as hazardous wastes. In addition, generators that previously managed a waste as a comparable fuel must now secure off-site disposal or treatment of those wastes at a permitted hazardous waste treatment facility or if they intend to continue to burn the hazardous waste fuels on-site the generator is required to obtain applicable hazardous waste treatment permits (e.g., incineration and storage permits).
On June 27, 2014, the United States Court of Appeals for the District of Columbia Circuit vacated the comparable fuels and gasification exclusions. In the decision, the court stated that the unambiguous language of Section 3004(q) of the Solid Waste Disposal Act of 1970 requires that fuels produced from hazardous wastes must remain classified as hazardous wastes. Section 3004(q) states that EPA “shall” promulgate regulations as “may” be necessary to protect human health and the environment from the production of fuels from “any” materials identified as a hazardous waste under RCRA.
On November 3, 2014, the court granted EPA’s motion to stay the issuance of the vacatur of the comparable fuels and gasification exclusions until March 30, 2014, in order to allow affected facilities time to come into compliance with the hazardous waste regulations.
On March 30, 2015, the Court issued its mandate making the vacatur of the comparable fuels and gasification exclusions effective. The court’s mandate reinstates the regulatory status of the materials as if the vacated rules (exclusions) never existed. This requires the wastes to be managed as hazardous wastes in compliance with the generation, transportation, treatment, storage, and/or disposal of hazardous wastes after March 30, 2015.
COMPARABLE FUELS EXCLUSION
EPA promulgated the Comparable Fuels Exclusion in 1998. The exclusion provided that fuels made from hazardous wastes were excluded from the RCRA definition of solid waste if the materials/wastes were sufficiently comparable to commercial fossil fuels for which they were substituted with respect to levels of hazardous constituents and physical properties such as viscosity and heating value. EPA found that the comparable fuels would pose no greater risk than commercial fuels when burned, and could classified as non-waste fuels rather than as sold and hazardous waste fuels.
In 2008, EPA promulgated the gasification exclusion that determined that oil-bearing hazardous secondary materials were excluded from the definition of solid waste and the hazardous waste rules if they were inserted into a gasification unit located at a petroleum refinery to produce synthesis gas.
EPA has identified 31 facilities that appear to be managing previously-excluded comparable fuels but NO facilities currently operating under the gasification exclusion.
The vacatur of the comparable fuels and gasification exclusions became effective on April 1, 2015.
The amendments of the hazardous waste regulations to remove the exclusions became effective on April 8, 2015.
The link below will allow you to view/print the final rule.