In a final rule that was immediately effective, EPA on April 8, 2015, removed the comparable fuels exclusion and the gasification exclusion issued under the Resource Conservation and Recovery Act (RCRA). 80 Fed. Reg. 18777. EPA had to delete the provisions, as both had been vacated by the U.S. Court of Appeals for the D.C. Circuit in 2014. EPA promulgated the comparable fuels exemption in 1998. 63 Fed. Reg. 33782.
Codified at 40 CFR Sections 261.4(a)(16) and 261.38, the rule excluded from the RCRA definition of solid waste fuels made from materials identified as hazardous wastes 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 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. The comparable fuels rule was vacated by the D.C. Circuit on June 27, 2014. Natural Resources Defense Council v. EPA, 755 F. 3d 1010 (June 27, 2014). The court held that the unambiguous language of RCRA Section 3004(q) requires that fuels produced from hazardous wastes must remain regulated as hazardous wastes.
EPA promulgated the gasification rule in 2008. 73 Fed. Reg. 57 (Jan. 2, 2008) and codified it at 40 CFR Section 261.4(a)(12)(i). Under the rule, EPA determined that oil-bearing hazardous secondary materials are not RCRA solid wastes if they are inserted into a gasification unit located at a petroleum refinery to produce synthesis gas. EPA thus excluded them from regulation as a solid waste. This rule was similarly vacated by the D.C. Circuit on June 27, 2014. Sierra Club 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.
