Withdrawal of the Emission-Comparable Fuel Exclusion Under RCRA

AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

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., 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: jackson.mary@epa.gov.

SUPPLEMENTARY INFORMATION:

General Information

A. Does this action apply to me?

Categories and entities potentially affected by this action include:

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 § 261.38. 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.

This rule does not affect the exclusions for comparable fuel and synthesis gas fuel that were promulgated in 1998 (also codified in § 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.

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.

III. Final Rule

On December 8, 2009, EPA proposed to withdraw the conditional exclusion for ECF under 261.38, including the exclusion itself in § 261.38(a), the specifications and associated conditions applicable to ECF under § 261.38(a), the implementation conditions applicable to ECF under § 261.38(b), the storage and burning conditions for ECF under § 261.38(c), the provisions for failure to comply with the conditions for the ECF exclusion under § 261.38(d)(2), the alternative storage conditions for ECF under § 261.38(e), and the notification of closure of an ECF storage unit under § 261.38(f). 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 § 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 § 261.38(a), the implementation conditions applicable to these materials under § 261.38(b), and the provision for failure to comply with the conditions for exclusion of these materials under § 261.38(d)(1).

Finally, 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 (§ 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 (§ 261.38(b)(13)); (3) waiver of the RCRA closure requirements for tank systems and container storage units that were used only to store hazardous wastes that are subsequently excluded as comparable fuel (§ 261.38(b)(14)); (4) clarification that boiler residues, including bottom ash and emission control residue, from burning comparable fuel would be subject to regulation as hazardous waste if they exhibit a hazardous waste characteristic (§ 261.38(b)(12)); and (5) a condition requiring that the one-time notice by the generator to regulatory officials must include an estimate of the average and maximum monthly and annual quantity of comparable fuel for which an exclusion is claimed (§ 261.38(b)(2)(i)(A)).

IV. 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 § 261.38, but that have not adopted the ECF exclusion, will still need to revise their programs to adopt the more stringent conditions applicable to comparable fuel (see 73 FR at 77963-64) that were promulgated concurrently with the ECF exclusion on December 19, 2008.

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

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 51735, October 4, 1993) and is therefore not subject to review under the EO. Our impact assessment 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.

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 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. 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. 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.

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 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 § 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

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

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:

3. Section 261.38 is revised to read as follows: