that EPA has no basis to assume the projected DREs will be achieved by
boilers burning ECF, given that the only operating control is for
carbon monoxide. The commenter notes that DRE performance also depends
on other key operating conditions, such as the maximum demonstrated
waste feed rate, minimum combustion temperature, maximum combustion gas
velocity, minimum atomization pressure, and other operating parameters
that are defined based on performance tests.
    In addition, the commenter notes that EPA has oil emissions data
for only 12 ECF constituents and states that the de minimis emission
level established for the remaining constituents is nothing more than
an arbitrary guess. The commenter also states that the maximum
allowable emission levels should be based on the average oil emissions,
not the highest test condition average.
    Finally, another commenter states that it is surprising that EPA
establishes a de minimis emission level as high as 20 ug/dscm given
that several emissions standards for hazardous waste combustors (HWCs)
established under CAA section 112(d)(3) (MACT standards) are lower than
this level. 40 CFR Part 63, Subpart EEE. For example, the commenter
notes that the HWC MACT standard for new boilers for mercury is 6.8 ug/
dscm, and the standards for new incinerators are 8.1 ug/dscm for
mercury and 10 ug/dscm for semivolatile metals.
    Response: We use the same general approach for the final rule that
we proposed. We establish a feedrate limit for each ECF constituent,
expressed as a gas flowrate-normalized feedrate limit, that is back-
calculated from the fuel oil emission level (or surrogate emission
levels) for each constituent using a projected DRE. The fuel oil
emission level is the highest test condition average for that
constituent in the oil emissions database, or a surrogate emission
level where oil emissions data are not available. The DRE for each
constituent is projected considering the thermal stability of the
constituent and whether the constituent is a common PIC. See discussion
in Part Three, Section II.B.3 above.
    We disagree with the commenter's views that 99.99 percent DRE
cannot be projected for ECF constituents. We have explained that the
extensive ECF boiler design and operating conditions will ensure good
combustion and a minimum of 99.99 percent DRE for the ECF constituents
in the feed.\97\ See

discussion in Part Three, Section III.B.3 above.
---------------------------------------------------------------------------

    \97\ Please note that, although we project DREs of less than
99.99% for ECF constituents that are commonly formed as PICs, the
feed-related DREs for these ECF constituents are 99.99% or higher.
That is, the DRE of the compound in the feed is at least 99.99%.
(The conditions on burning are at least equivalent to the controls
on hazardous waste boilers that ensure 99.99% DRE under Sec.
266.110.) The measured or apparent DRE, however, can be lower than
99.99% for these compounds because, at low feedrates of the
compound, the PIC contribution of the compound from the destruction
of other compounds can provide a significant contribution to
emissions relative to the residual from 99.99% destruction of the
compound in the feed.
---------------------------------------------------------------------------

    In response to the commenter's views on the de minimis emission
levels we discussed at proposal, we have revised our approach to
identify surrogate emission levels for ECF constituents for which we do
not have oil emissions data. See discussion above in Part Three,
Section III.B.3. For the final rule, we identify a surrogate emission
level of 0.02 ug/dscm for the two PAHs for which we do not have oil
emissions data, and a surrogate emission level of 18 ug/dscm for the
oxygenates for which we do not have oil emissions data. Consequently,
we are not identifying de minimis emission levels.
    Finally, we also disagree with the commenter's view that the
maximum allowable emission level for the 12 ECF constituents for which
we have oil emissions data should be based on the average oil emissions
rather than the highest test condition average. We have explained
previously why it is reasonable to establish the allowable emission
levels for these constituents as the highest test condition average
rather than another metric, such as the average test condition average
or the 95th percentile test condition average. See Part Three, Section
II.B.3 above.

C. Use of WMPT To Rank ECF Constituents According to Hazard Potential

    Comment: Several commenters argue that EPA's use of the WMPT
methodology to rank ECF constituents by their hazard potential is
flawed because it does not assess exposure.
    Response: As stated at proposal, our hazard ranking effort was not
a full quantitative risk assessment, but rather a screening-level
ranking of hazardous compounds based on potential chronic (i.e., long-
term) risks to human health and the environment. 72 FR at 33318. As
such, we consider it appropriate to apply the WMPT's use of a small
number of relatively simple measures (i.e., combination of
bioaccumulation and persistence factors) to represent the exposure
potential of each chemical.
    Moreover, we note that the final rule does not rely on the WMPT-
based hazard ranking procedure to support maintaining the comparable
fuel specifications for the PAHs and naphthalene and for establishing
special firing rate limits for benzene and acrolein, as proposed. 72 FR
at 33299-301. Because the final rule establishes a feedrate limit for
each ECF constituent which provides objective assurance that emissions
of ECF constituents from ECF burners will be comparable to emissions
from fuel oil boilers, the proposed restrictions on PAHs, naphthalene,
benzene, and acrolein are not included in the final rule.

D. Request To Expand Primary Fuel Condition

    Comment: Several commenters state that fuels other than fossil
fuel, fuel derived from fossil fuel, or tall oil having a minimum
heating value of 8,000 Btu/lb should be allowed as primary fuel to meet
the condition that ECF must be cofired with at least 50 percent primary
fuel. Commenters state that the following fuels should also be
considered primary fuel: Comparable fuel excluded under Sec.
261.38(a)(1); hydrogen gas, and alcohol fuels.
    Response: To consider other fuels as a primary fuel, we would need
information describing their fuel-related properties given that we rely
on the primary fuel to provide the hot, stable flame needed to ensure a
99.99% DRE and good combustion. For example, we would need to know the
range of most of the parameters defined by the proximate and ultimate
analyses of the fuels, as well as their viscosity. Commenters did not
provide any description of ``hydrogen gas'' or ``alcohol fuels.''
Consequently, we cannot assess whether these fuels should be considered
primary fuel.
    We agree with commenters, however, that comparable fuel excluded
under Sec.  261.38(a)(1) should be allowed as a primary fuel, provided
that the as-fired heating value is at least 8,000 Btu/lb, consistent
with the minimum heating value requirement for the other primary fuels.
Given that existing comparable fuel has a composition and physical
properties related to combustion that are the same as fuel oil, it is
reasonable to consider it a primary fuel, provided the as-fired heating
value is at least 8,000 Btu/lb.

E. Minimum Primary Fuel Firing Rate

    Comment: Several commenters state that the proposed minimum 50
percent firing rate for primary fuel should be reduced. One commenter
suggested that the minimum primary fuel firing rate requirement should
be reduced to 20 percent, while other commenters argued that there
should be no minimum primary fuel firing rate requirement.
    In addition, a commenter states that EPA failed to support the
primary fuel firing rate requirement with data or a sound basis. The
commenter believes that, because ECF must have a heating value of at
least 8,000 Btu/lb and can exceed the comparable fuel specifications
solely for hydrocarbons and oxygenates, there is no reason that the ECF
firing rate should be limited at all.
    Another commenter notes that most boilers use a primary fuel, such
as natural gas, for startup, but then switch to other, nonfossil fuels
after steady-state conditions are attained. These boilers easily
maintain compliance with the RCRA standards for hazardous waste
boilers, including very low CO levels (e.g., below 3 ppmv), according
to the commenter.
    Response: As discussed at proposal, EPA conducted a program of
parametric testing in the mid-1980s of boilers burning waste fuels to
identify design and operating conditions that would ensure 99.99
percent DRE and good combustion conditions. 72 FR at 33293. We proposed
operating conditions for ECF boilers based on the conclusions of that
extensive testing, including the requirement to burn at least 50
percent primary fuel. Commenters that suggest that a lower (or no)
primary fuel firing rate would still ensure 99.99 percent DRE and good
combustion conditions simply note that low CO levels can be maintained,
which is evidence of good combustion conditions. These commenters did
not provide information, however, documenting the properties of any of
the fuels being fired to the boiler, or whether good combustion
conditions were maintained over a range of boiler loads. While we
believe that maintaining CO levels at or below 100 ppmv (measured
continuously) is a principal factor for ensuring good combustion
conditions, other conditions are also necessary to help ensure good
combustion under a regulatory exclusion without the oversight of an
operating permit program. Moreover, we note that hazardous waste
boilers must comply with a 50 percent minimum primary fuel requirement
to obtain a waiver of the DRE standard. See Sec.  266.110.

F. Request To Increase the Minimum 8,000 Btu/lb Requirement for ECF

    Comment: Several commenters argue that the proposed 8,000 Btu/lb
minimum as-fired heating value for ECF is much too low because it is
not comparable to the 18,000 Btu/lb heating value of fuel oil.
    Response: A principle of the ECF exclusion is that the emissions
from burning ECF are comparable to the emissions from burning fuel oil
when ECF is burned under the conditions set out in the exclusion.
Although the concentrations of hydrocarbons and oxygenates in ECF may
be higher than in fuel oil, these constituents themselves exhibit fuel
value; in addition, the emissions of those

compounds from a boiler burning ECF are comparable to the emissions of
these compounds from a boiler burning fuel oil given the level of
destruction achieved by ECF boilers operating under good combustion
conditions. Similarly, the heating value of ECF need not be comparable
to the heating value of fuel oil to assure emission comparability,
although we would note, as we did at proposal, that the minimum heating
value of fossil fuels normally burned in industrial boilers are in the
range of 8,000 Btu/lb. 72 FR at 33296. We establish a minimum 8,000
Btu/lb heating value for ECF to help ensure that ECF combusts well so
that ECF emissions will be comparable to emissions from burning fuel
oil in the same units.

G. Request for Periodic CO Monitoring

    Comment: Several commenters argue that periodic rather than
continuous CO monitoring should be allowed.\98\ One commenter states
that, because EPA is already requiring that CO emissions be controlled
for ECF at a level four times more stringent than that required of
industrial boilers, plus imposing many other conditions, requiring
continuous CO emission monitoring for all combustion units is a costly
requirement that would not result in any additional margin of safety
for ECF combustion units. The commenter notes that the cost for
installing a CO CEMS (continuous emission monitoring system) with an
automatic ECF feed cutoff system would be approximately $800,000, and
operating and maintenance cost would be approximately $50,000.
---------------------------------------------------------------------------

    \98\ Please note that we requested comment at proposal on
whether periodic CO monitoring should be allowed rather than
continuous monitoring. 72 FR at 33295-96. We stated that commenters
must explain and provide supporting information why periodic
monitoring is sufficient, including how the owner or operator would
ensure that the boiler is operating under good combustion conditions
during those times that the boiler is not being monitored for CO.
---------------------------------------------------------------------------

    Response: As we stated in the proposal, the Agency needed
information from commenters that would explain and provide support on
why periodic monitoring was sufficient. No such information was
provided that explained how the owner or operator would ensure that the
boiler is operating under good combustion conditions during those times
that the boiler is not being monitored for CO. Consequently, the final
rule requires continuous CO monitoring.
    We also disagree with the commenter that provided cost information.
Specifically, we estimated the costs of a CO CEMS and automatic ECF
feed cutoff system to be relatively modest.\99\ That is, we estimated
the annualized cost of a CO CEMS is approximately $5,800 for a boiler
that is not already equipped with the system, while the annualized cost
of an automatic ECF feed cutoff system is approximately $3,800. The
commenter did not provide comments on our cost estimates.
---------------------------------------------------------------------------

    \99\ See USEPA, ``Draft Technical Support Document for the
Expansion of the Comparable Fuels Exclusion,'' May 2007, Section
7.5.
---------------------------------------------------------------------------

H. Request That Additional Operating Parameters Should Be Linked to the
ECF Automatic Feed Cutoff System

    Comment: A commenter states that additional operating parameters
must be linked to the ECF AFCOS to ensure that the boiler continuously
complies with the operating conditions and that emissions will remain
comparable to fuel oil emissions. The commenter notes that boiler
operators may not be in attendance at all times, and therefore
parameters in addition to CO and gas temperature at the inlet to a
fabric filter or electrostatic precipitator (if primary fuel other than
coal is burned) must be linked to the ECF AFCOS. Specifically:
     To ensure compliance with the minimum boiler load limit of
40 percent, an indicator of boiler load (e.g., steam production rate)
must be linked to the ECF AFCOS;
     To ensure compliance with the minimum primary fuel firing
rate, an indicator of the primary fuel firing rate must be linked to
the ECF AFCOS;
     To ensure compliance with the ECF constituent feedrate
limits, an indicator of the ECF feedrate must be linked to the ECF
AFCOS.
    Response: We agree with the commenter for the reasons the commenter
provides. The final rule, therefore, requires that five parameters must
be linked to the ECF AFCOS: (1) CO CEMS; (2) gas temperature at the
inlet to the fabric filter or electrostatic precipitator (if primary
fuel other than coal is burned); (3) indicator of boiler load; (4)
indicator of primary fuel feedrate; and (5) indicator for ECF feedrate.
See Sec.  261.38(c)(2)(ii)(G).

I. Request That Burner Conditions Should Not Apply to MEK and
Isobutanol

    Comment: EPA received comments that it should consider eliminating
constituent limits and other burner controls for methyl ethyl ketone
and isobutanol because neither contaminate is considered a HAP under
the CAA.
    Response: EPA's framework for this rule, as proposed, is based on
the comparability of emissions of RCRA hazardous constituents from
hazardous secondary materials to such emissions from fuel oil, as
opposed to risk, and we did not take comment on an exclusion approach
based on zero or de minimis risk. Therefore, we do not believe it is
appropriate to make this change for purposes of this final rule without
seeking additional comment from other interested parties. Therefore, we
are not including any change to the rule based on this comment.
However, EPA may consider expanding its emission-comparable fuel
approach to include this concept in future rulemaking for these
chemicals and others that are not listed as hazardous air pollutants.

VI. Implementation of the ECF Exclusion

A. Reasonable Efforts To Ensure Compliance With the Conditions of
Exclusion by Off-Site, Unaffiliated Burners

    At proposal, we requested comment on whether the final rule should
include a ``reasonable efforts'' provision that would provide that the
failure of an off-site, unaffiliated burner to meet the proposed
conditions or restrictions of the exclusion would not mean that ECF was
considered a hazardous waste when handled by the generator, as long as
the generator can adequately demonstrate that he has made reasonable
efforts to ensure that the hazardous secondary material will be managed
by the burner under the conditions of the exclusion. Although the ECF
exclusion requires the generator to obtain a certification from the
burner that the ECF will be stored and burned under the conditions of
the exclusion, a ``reasonable efforts'' provision would require the
generator to take reasonable independent and proactive measures to
ensure that the burner will manage ECF under the conditions of the
exclusion. 72 FR at 33312.
    We explained that, to achieve this benefit, the generator would
have to exercise a type of ``environmental due diligence'' in reviewing
the operations of the burner in advance of transferring the hazardous
secondary materials. We stated that we believe that a reasonable
efforts provision might involve methods, such as audits (including site
visits), that a number of generators of hazardous secondary materials
now use to maintain their commitment to sound environmental
stewardship, and to minimize their potential regulatory and liability
exposures. These audits are frequently performed by third parties.
    We also requested comment on whether a reasonable efforts provision
should include criteria that define

reasonable efforts, and what those criteria should be.
1. Reasonable Efforts Provision in the Final Rule
    The final rule states that an excluded fuel--ECF, comparable fuel,
and synthesis gas fuel--loses its exclusion if any person managing the
fuel fails to comply with the conditions of the exclusion, in which
case the hazardous secondary material must be managed as a 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). See Sec.  261.38(d)(2).
    The rule states further, however, that the burner rather than the
generator will be liable for discarding a hazardous waste if an off-
site, unaffiliated burner \100\ fails to comply with a condition of the
exclusion, provided that the generator has made reasonable efforts to
ensure that the burner complies with the conditions of the exclusion.
The reasonable efforts must be based on an objective evaluation by the
generator, both prior to the first shipment of ECF and every three
years thereafter, that the burner will manage the ECF under the
conditions of the exclusion.
---------------------------------------------------------------------------

    \100\ An unaffiliated burner is a boiler or hazardous waste
combustor located at a facility that is not owned by the same parent
company that generated the ECF.
---------------------------------------------------------------------------

    Specifically, reasonable efforts by the generator must include, at
a minimum, affirmative answers to the following questions prior to
shipping ECF to a burner, and must be repeated at a minimum of every
three years thereafter: (1) Has the burner submitted the notification
to the RCRA and CAA Directors required under Sec.  261.38(c)(5)(i), and
has the burner published the public notification of burning activity as
required under Sec.  261.38(b)(2)(i); (2) does publicly available
information indicate that the burner facility has had any formal
enforcement actions taken against the facility in the previous three
years for violations of the RCRA hazardous waste regulations and has
been classified a significant noncomplier with RCRA Subtitle C, and if
yes, does the generator have credible evidence that the burner will
nonetheless manage the ECF under the conditions of Sec.  261.38; and
(3) does the burner have the equipment and trained personnel to manage
the ECF under the conditions of Sec.  261.38? \101\
---------------------------------------------------------------------------

    \101\ In the final definition of solid waste rulemaking, the
reasonable efforts provision also asked several additional
questions, including: (1) Does the reclamation facility intend to
reclaim the hazardous secondary materials legitimately pursuant to
Sec.  261.2(g); (2) has the reclamation facility notified the
appropriate authorities that the financial assurance condition is
satisfied per Sec.  261.4(a)(24)(v)(F); and (3) if residuals are
generated by the reclamation facility, is the facility prepared to
manage them properly as hazardous waste. These questions are not
appropriate in this instance because: (1) The specifications and
conditions in the ECF exclusion define the legitimacy of the
operation and thus, an independent determination does not need to be
made; (2) there is no financial assurance requirement in this final
rule; and (3) any residuals that are generated by the combustion of
ECF are not expected to contain levels of containments above those
found in residuals from the burning of fuel oil, including
hydrocarbons and oxygenates as they themselves have fuel value and
will be combusted.
---------------------------------------------------------------------------

    In making these reasonable efforts, the generator may use any
credible evidence available, including information obtained from the
burner and information obtained from a third party. The generator must
maintain for a minimum of three years documentation and certification
that reasonable efforts were made for each burner facility to which ECF
is shipped. The documentation and certification must be made available
upon request by a regulatory authority within 72 hours, or within a
longer period of time as specified by the regulatory authority. The
certification statement must be signed and dated by an authorized
representative of the generator company; and incorporate the following
language: ``I hereby certify in good faith and to the best of my
knowledge that, prior to arranging for transport of emission-comparable
fuel to [insert name(s) of burner facility], reasonable efforts were
made to ensure that the emission-comparable fuel would be burned under
the conditions prescribed by Sec.  261.38, and that such efforts were
based on current and accurate information.''
    The reasonable efforts provisions for ECF parallels the reasonable
efforts provisions in the recently promulgated Revisions to the
Definition of Solid Waste,\102\ as they would reasonably apply to ECF.
---------------------------------------------------------------------------

    \102\ See Sec.  261.4(a)(24(v)(B) and the discussion in the
preamble to the final rule for the Revisions to the Definition of
Solid Waste in Section VIII.C.2 (see 73 FR 64668, October 30, 2008).
---------------------------------------------------------------------------

    Rationale for the Questions. The first question addresses whether
the burner has submitted the initial notification to the RCRA and CAA
regulatory authorities required under Sec.  261.38(c)(5)(i), and
whether the burner has published the public notification of burning
activity as required under Sec.  261.38(b)(2)(ii). The notification to
the regulatory authorities documents the burner's intention to burn
ECF, describes the ECF burning activities, and certifies that the
burner will store and burn ECF under the conditions of the exclusion.
This notification is a one-time notification unless there is a
substantive change in the information provided in the notice. It is
important that the generator confirm that the burner has complied with
this condition of the exclusion because the notification identifies the
burner to the regulatory authorities and confirms that the burner is
aware of their responsibilities to comply with the conditions of the
exclusion.
    The public notification of burning activity required under Sec.
261.38(b)(2)(ii) must be submitted for publication in a major newspaper
of general circulation local to the site where the ECF will be burned
and must contain general facility information and: (1) An estimate of
the average and maximum monthly and annual quantity of the ECF to be
burned; and (2) the name and mailing address of the regulatory
authorities to whom the generator submitted a claim for the exclusion.
This notice is important because it gives the public the opportunity to
bring to the regulatory authority's attention any circumstance that
might aid the authority in its monitoring and enforcement efforts.\103\
---------------------------------------------------------------------------

    \103\ The public, furthermore, would have the ability to bring a
citizen suit for failure to comply with a condition of the
exclusion.
---------------------------------------------------------------------------

    The second question focuses on the compliance history of the
burner. Although consideration of compliance data is an imperfect tool
for determining whether a burner would comply fully with the conditions
of the exclusion, we believe that publicly available compliance data
are a reasonable starting point for evaluating a facility's
performance. Facility-specific enforcement data on compliance status,
ongoing enforcement actions by both EPA and the states, and specific
case information for formal enforcement actions are readily available
on EPA's public Web site at http://www.epa.gov/echo/. ``Formal
enforcement'' is a written document that mandates compliance and/or
initiates a civil or administrative process, with or without appeal
rights before a trier of fact that results in an enforceable agreement
or order and an appropriate sanction. For EPA, formal enforcement
action is a referral to the U.S. Department of Justice for the
commencement of a civil action in the appropriate U.S. District Court,
or the filing of an administrative complaint, or the issuance of an
order, requiring compliance and a sanction. For states, formal
enforcement action is a referral to the state's Attorney General for
the commencement of a civil or administrative action in the appropriate
forum, or the filing of an administrative

complaint, or the issuance of an order, requiring compliance and a
sanction. ``Significant non-complier'' is a defined term in EPA's
Hazardous Waste Civil Enforcement Response Policy and means the
violators have caused actual exposure or a substantial likelihood of
exposure to hazardous waste or hazardous waste constituents; are
chronic or recalcitrant violators; or deviate substantially from the
terms of a permit, order, agreement, or from the RCRA statutory or
regulatory requirements. In evaluating whether there has been actual or
likely exposure to hazardous waste or hazardous waste constituents, EPA
and the states consider both the environmental and human health
concerns, including the potential exposure of workers to hazardous
waste or hazardous waste constituents. For both terms, see EPA's
Hazardous Waste Civil Enforcement Response Policy (Dec. 2003) at http:/
/www.epa.gov/compliance/resources/policies/civil/rcra/finalerp1203.pdf.
    We do not believe that evaluating this publicly available
information, which a generator would likely already be familiar with
based on its own regulated activities, is difficult for a generator,
nor is interpreting the data and deriving conclusions about facilities,
since the data base specifically notes whether a facility is alleged to
be a ``significant non-complier'' (i.e., identified as a ``SNC'' or in
``significant noncompliance''). We also note that since many states
already provide compliance information to EPA and the public through
the EPA Web site, we do not believe that a generator's review of such
information would pose a significant new burden for state agencies.
    While a facility designated as a significant non-complier and the
subject of a formal enforcement action does not mean that the facility
would not comply with the conditions of the exclusion, it does raise
questions that we believe the emission-comparable fuel generator should
investigate. That is, if any formal enforcement actions were taken
against the facility in the previous three years for such noncompliance
and the facility was alleged to be a significant noncomplier, we would
expect that the burner would adequately explain to the emission-
comparable fuel generator how it has resolved any issues or how the
issues are unrelated to managing emission-comparable fuel under the
conditions of the exclusion. Additionally, if the generator obtains
reasonable information that the enforcement matters have been corrected
and the facility is back in compliance, then that would satisfy this
aspect of the reasonable efforts determination. The generator also may
wish to make a similar investigation of facilities designated as
significant noncompliers by EPA or a state even if no formal
enforcement action has been taken.
    The third question focuses on the technical capability of the
burner to comply with the conditions of the exclusion. If a burner was
found not to have the storage and burner equipment necessary to comply
with the conditions of the exclusion, or not to be in conformance with
the storage and burner personnel training conditions of the exclusion
or otherwise not to have adequately trained personnel to operate and
maintain the equipment, the generator should not ship ECF to the
facility. A generator may answer this question using audit reports,
information provided by industry or waste management associations,
documents provided by the burner, and other relevant information, which
could include an evaluation by a qualified engineer. A generator may
also make a common sense inquiry of a burner that includes requesting
an explanation of the kind of equipment used for ECF storage and
burning; review of equipment specifications; and demonstrations of the
facility training program, and training records. Specific questions
and/or a site visit also may be appropriate.
    Credible Evidence. We believe that a generator should be allowed to
use any credible evidence available in making reasonable efforts,
including information provided by the burner and/or by a third party,
in lieu of personally performing an assessment. For example, the
generator might hire an independent auditor to review the burner's
operations, produce audit reports as a consortium of generators using
the same burners, or rely on an assessment by a trade association. We
encourage this type of pooling of information to reduce the burden on
generators and to take advantage of specialized technical expertise.
    2. Consequence of Failure to Comply With a Condition of Exclusion
    Comment: A commenter argued that the provision that ``noncompliance
with the operating conditions by a burner renders the ECF a hazardous
waste from the point of generation'' is a poison pill, draconian enough
that it may prevent facilities from using the exclusion. The commenter
believes that noncompliance by the burner of an operating condition
should be handled simply as a violation by the burner without
consequences to the generator.
    Response: Noncompliance with a condition for exclusion of a
hazardous waste simply means that the material remains a hazardous
waste. EPA uses RCRA Section 3007 authority to inspect facilities that
manage excluded materials. If a condition of the exclusion is not being
satisfied, the material is no longer excluded. Any related enforcement
action would involve noncompliance with the handling and management
requirements for hazardous waste.\104\
---------------------------------------------------------------------------

    \104\ Please note, however, that a generator who complies with
the reasonable efforts provisions of Sec.  261.38(d) would not be
liable for management of a hazardous waste if an off-site
unaffiliated burner fails to comply with a condition of the
exclusion.
---------------------------------------------------------------------------

3. Reasonable Efforts
    Comment: Several commenters support a reasonable efforts provision,
but state that EPA should not prescribe the criteria that qualify as
reasonable efforts. These commenters believe that differences in
operations (e.g., ECF quantity; ECF composition and firing rate; boiler
size) at ECF burner facilities should dictate the level of effort that
is needed to meet the ``reasonable efforts'' provision.
    Other commenters do not support a reasonable efforts provision.
They believe that the best way to ensure adherence with the burner
operating conditions under the potentially limited oversight of an
exclusion is to provide an incentive for the generator to ensure that
the burner complies with the conditions. They believe the provision
that noncompliance by a burner renders the ECF a hazardous waste from
the point of generation provides that incentive. Several of these
commenters also believe that the examples of reasonable efforts EPA
provided at proposal (e.g., frequency of audits) should be added as
conditions of the exclusion to help ensure compliance by burners.
    Response: We agree with those commenters that state that a
reasonable efforts provision is warranted because the generator should
not be liable for actions by a burner that are truly beyond the control
of the generator. Although we understand the argument made by those
commenters that believe holding the generator liable (i.e., via the
provision that failure to comply with the conditions of the exclusion
renders the ECF a hazardous waste from the point of generation)
provides a good incentive to ensure that only burners that are willing
and capable of managing ECF under the conditions of the exclusion will
manage ECF, we believe that the measures required by this rule to
document and certify that reasonable

efforts have been made to ensure that an off-site, unaffiliated burner
complies with the conditions of the exclusion will also ensure that
responsible and capable burners manage ECF. (Of course, in most
instances, we project that the generator and burner are the same
entity, in which case failure to satisfy a condition results in that
entity being held accountable for managing ECF as a waste, without
exception.)
    We do not agree with those commenters that believe the rule should
require prescriptive measures (rather than the generic questions
required by this rule) to implement a reasonable efforts provision, or
that such prescriptive measures should be included as a condition of
the exclusion. The measures necessary for generators to make reasonable
efforts that an ECF burner is willing and capable of complying with the
conditions of the exclusion, and, in fact, is complying with the
conditions over time, will be specific to each situation (e.g.,
relationship of the burner to the generator; experience of the burner
with managing hazardous waste; ECF quantity; ECF composition and firing
rate; boiler size). Specifying prescriptive measures, such as requiring
that the generator conduct an audit of the burner's operations and that
the audits must be conducted annually, may not provide adequate
measures in some situations, and may be unnecessary in others.

B. Fuel Analysis Plans

1. Use of Process Knowledge
    Comment: A commenter states that fuel analysis plans for ECF should
require testing for all ECF constituents and there must be no allowance
for the use of process knowledge in lieu of analysis.
    Response: Sampling and analysis provisions for ECF are the same as
for existing comparable fuels, which allow the generator to use process
knowledge to determine whether the fuel meets the ECF specifications,
except for constituents listed under Sec.  261.38(b)(6)(i). Allowing
process knowledge to determine whether ECF meets the specifications is
reasonable given that generators of solid waste may use process
knowledge to determine if the waste exhibits a characteristic of
hazardous waste, including the toxicity characteristic. See Sec.
262.11(c)(2). If a generator uses process knowledge to make the
determination that ECF meets the specifications, any information used
to make that determination must be included in the ECF fuel analysis
plan. See Sec.  261.38(b)(4)(i)(E).
2. Quarterly Waste Analysis Testing
    Comment: A commenter states that the frequency of analysis of ECF
needs to be on a quarterly basis rather than an annual basis given the
higher loading of hazardous constituents allowed under this exclusion.
    Response: The rule requires retesting annually, at a minimum, or
after a process change that could change the chemical or physical
properties of the ECF. See Sec.  261.38(b)(6)(ix). We do not believe
that a generic requirement to retest quarterly is warranted. The
consequences of improperly claiming the ECF exclusion are severe-if the
ECF fails to meet the specification under Sec.  261.38(a)(2), it loses
the exclusion and must be managed as hazardous waste from the point of
generation. In addition, the owner or operator of the facility may also
be subject to an enforcement action if management of the hazardous
secondary material was not in compliance with the regulations.

C. Intermediate Handlers

    Comment: The rule requires ECF to be handled only by a generator,
transporter, or a burner; ECF must not be handled by a broker or an
intermediate handler. A commenter notes that small volume generators
would be able to participate in the ECF program if an intermediary
handler would be allowed to accumulate ECF from several small
generators, perform allowable blending, complete the analysis, and
market the ECF to the burner.
    Response: Because blending of the hazardous secondary materials to
meet the ECF specifications is specifically prohibited under Sec.
261.38(a)(4) and (b)(7), the Agency continues to exclude brokers or
intermediate handlers from handling ECF and being eligible for the
conditional exclusion. See 63 FR at 33801 for a discussion of the
rationale for prohibiting dilution to meet the specifications.\105\
---------------------------------------------------------------------------

    \105\ Note that, as with hazardous waste and consistent with the
recently promulgated Revisions to the Definition of Solid Waste in
the context of hazardous secondary materials, ECF can be held up to
10 days at a transfer facility and still be considered as being in
transport.
---------------------------------------------------------------------------

VII. Costs and Benefits of the ECF Exclusion

    During the public comment period for the proposed rule, we received
several comments related to the economic analysis. These comments were
submitted primarily from four organizations and raised concerns about
ten specific aspects of our economic assessment. Presented below are
brief individual summaries of the ten key issues raised by the
commenters, followed by our responses. For a more complete discussion
of these comments, see USEPA, ``Assessment of the Potential Costs,
Benefits, and other Impacts of the Expansion of the RCRA Comparable
Fuel Exclusion,'' April 2008, a copy of which is in the Docket to this
final rule.

A. Concern That the Economic Analysis Did Not Account for the Increased
Risk Likely To Result From the Exclusion

    Comment: The economic analysis did not account for the increased
risk likely to result from the exclusion. Several commenters allege
that emissions of criteria pollutants, greenhouse gases, and hazardous
air pollutants will increase as a result of the rule and that
occupational risk will also increase under the proposed exclusion.
Therefore, commenters submit that the Agency does not fully capture the
social costs associated with the rule.
    Response: The commenters argue that the economic analysis did not
fully address the social costs associated with the rule, because of the
increased risk likely to result from the exclusion. While we will
address each of the emission categories that the commenters identify,
it should also be noted that the final rule allows hazardous waste
combustors to continue to burn ECF. Thus, the amount of ECF that may
eventually be diverted from hazardous waste combustors is a function of
the combustors' fuel pricing procedures, and is probably less than what
we estimated at proposal.
    With respect to SOX and NOX emissions, the
increase is based on the potential for cement kilns to substitute coal
for the hazardous secondary materials that may be diverted to other
facilities as a result of the exclusion. As outlined above in Section
IV.B of this Part, we recognize that cement kilns' SOX
emissions could increase if the exclusion causes them to increase their
consumption of coal. The magnitude of such an increase will depend on
the quantity of ECF diverted from cement kilns. We estimate that
SOX emissions will increase by 570 tpy nationwide under our
estimate of the ECF quantity that could potentially be diverted from
cement kilns, and by 2,300 tpy under the commenter's estimate of the
quantity of ECF and hazardous waste fuels that may be diverted. The
Economic Assessment for the final rule addresses the cost of
controlling these emissions.
    Regarding NOX, although we agree that cement kilns'
NOX emissions could increase as a result of the exclusion,
we believe that such an increase is unlikely.

As described in Section IV.B of this Part, we believe that cement kilns
could operate at a fractionally lower oxygen concentration without
significant cost to prevent their NOX emissions from
increasing. Similarly, EPA does not believe that the commenters'
concerns with respect to CO2 emissions are valid. See
Section IV.B of this Part for a detailed discussion of this issue as
well.
    With respect to hazardous air pollutants, the commenters' argument
that burning ECF as a replacement for natural gas in boilers will
result in an increase in emissions of toxic metals assumes that ECF
contains the maximum metals concentrations allowed by the comparable
fuel specifications provided in Table 1 to Sec.  261.38 and that
boilers' emissions will be uncontrolled. In many cases, however, the
metals concentrations of ECF are likely to be below the Sec.  261.38
fuel specifications. Moreover, even in a worst case, metals emissions
from burning ECF will be no higher than if the boiler chose to burn
fuel oil.
    The commenters' argument that burning ECF as a replacement for
natural gas in boilers will result in an increase in emissions of
organic HAP is based on the differences between the AP-42 emission
factors for fuel oil and natural gas. As discussed in Section IV.B of
this Part, however, facilities can choose which fuels to burn in their
boilers. The fact that burning fuel oil, or ECF with emissions
comparable to fuel oil, in lieu of natural gas or coal may result in
higher or lower emissions of air pollutants has no bearing on whether
hazardous secondary materials should be excluded from the definition of
solid waste if they are managed similar to fossil fuels, their
emissions are comparable to those from burning fuel oil, and they are
physically identical with respect to most hazardous constituents (and
there is no aspect of discard in other management phases, e.g., storage
and transport).
    Finally, any potential occupational impacts associated with this
action would be addressed under the jurisdiction of OSHA and DOT
authorities.

B. Impacts Associated With Hazardous Waste Currently Blended With ECF

    Comment: A commenter asserts that to produce waste fuel that meets
the specifications required by cement kilns, fuel blenders (and, to a
lesser extent, kilns themselves) currently blend ECF with lower-Btu,
more highly contaminated waste. The resulting fuel mixture takes the
place of coal in the cement production process. If ECF is diverted away
from fuel blenders as a result of the rule, the commenter claims that
the low-Btu waste that blenders currently mix with ECF will be diverted
away from blenders and cement kilns to commercial incinerators. The
economic analysis does not account for this effect and therefore,
according to commenters, underestimates economic impacts likely to be
realized by blenders and cement kilns as a result of the rule.
    Response: EPA acknowledges that, if cement kilns' fuel pricing
procedures result in ECF being diverted from cement kilns, the
diversion of ECF could preclude them from accepting wastes that are
currently blended with ECF. These wastes, which must be blended with
higher quality fuels (e.g., ECF) to meet the fuel requirements for
cement kilns, could be diverted from cement kilns to commercial
hazardous waste incinerators, according to the commenter. The Economic
Assessment for the final rule evaluates the potential economic impacts
associated with such transfers. These impacts include reduced revenues
for cement kilns, increased fuel costs for cement kilns, and increased
revenues for commercial incinerators.

C. Concern That the Economic Analysis Underestimates the Quantity of
Hazardous Secondary Materials Qualifying for the Exclusion

    Comment: Based on the results of a survey of Cement Kiln Recycling
Coalition (CKRC) members, CKRC and Environomics estimate that as much
as 146,000 tpy of hazardous secondary materials managed by cement kilns
may be excluded as ECF, as opposed to the 48,400 tpy presented in EPA's
economic analysis for the proposed rule.
    Response: We recognize that the quantity of ECF burned by cement
kilns may be different than suggested by the National Biennial Report
data available for the proposed rule. However, because this database
represents the only comprehensive source of data for ECF generators,
the Agency relies on the Biennial Report data to assess the impacts of
the exclusion. We will use the most recently available quality-
controlled nationwide data to prepare the assessment for the final
rule.

D. Concern That the Economic Analysis Underestimates the Percentage of
Qualifying Hazardous Secondary Materials That Would Be Excluded From
RCRA Subtitle C Regulation Under the Exclusion

    Comment: EPA's analysis of the proposed rule suggests that 39.9
percent of the qualifying waste managed by cement kilns would be
excluded under the rule. To develop this estimate, EPA simulated the
decision-making process of ECF generators based, in part, on the fuel
savings that generators would realize if they use the exclusion. For
each generator with an eligible boiler onsite, EPA estimated these fuel
savings based on the weighted average price of the fuels used by the
generator. The commenter suggests that this approach leads to an
underestimation of the fuel savings realized by generators because
generators would likely use ECF to displace their most expensive fuel.
Therefore, EPA is also likely to underestimate the percentage of
eligible waste excluded under the proposed rule and the corresponding
economic losses experienced by cement kilns. Thus, the commenter
asserts that as much as 100 percent of the waste qualifying for the
exclusion will be excluded.
    Response: To the extent that the quantity of hazardous secondary
materials diverted from kilns may be different than that estimated in
the economic assessment for the proposed rule, we agree that the
corresponding impacts may also be different than estimated. However, it
remains unclear how low and moderate-Btu waste currently mixed with ECF
will necessarily be diverted to incinerators.\106\ It is our
understanding that such wastes could be blended with other fuels such
as diesel, kerosene, used motor oil, or used lubricants to create fuel
blends suitable for cement kilns. In addition, as discussed previously,
the final rule allows ECF to continue to be burned in cement kilns. The
amount of ECF that may be diverted from cement kilns will be a function
of their fuel pricing procedures.
---------------------------------------------------------------------------

    \106\ Moreover, any such waste fuels that may be diverted from
cement kilns to incinerators would be used for their fuel value (as
is the case for cement kilns) in the incinerator to combust wastes
with little or no heating value.
---------------------------------------------------------------------------

E. Concern That the Economic Analysis Does Not Consider Joint Impacts
With the Proposed Definition of Solid Waste Rule

    Comment: A commenter expressed concern that the Agency's economic
assessment of the proposed ECF exclusion does not consider potential
joint impacts with the proposed revisions to the Definition of Solid
Waste Rule. Because several facilities may be affected by both rules,
the commenter alleges that the combined impacts of the rules may be
greater than the summed impacts of each rule alone.
    Response: We disagree with this comment. The revisions to the
Definition of Solid Waste Rule, in both the proposal and supplemental
proposal, have reiterated that ``no

changes are proposed for recycling materials that are: * * * (3) burned
for energy recovery.'' Neither the burning of hazardous secondary
materials for energy recovery nor the blending of hazardous secondary
materials for use as fuel are eligible for exclusion from RCRA
regulations under the Definition of Solid Waste proposals. Thus, no
meaningful joint impacts are expected. It is important to note,
however, that some waste streams could potentially be excluded from the
full RCRA Subtitle C regulations under either the Definition of Solid
Waste rule or the emission comparable fuels exclusion. Therefore, the
joint impact of the two rules could be less than (rather than greater
than, as suggested by the comment) the sum of the impacts of each rule
when estimated individually.

F. Concern That the Economic Analysis Underestimates the Value of Coal

    Comment: EPA's economic analysis of the proposed rule
underestimates the cost of coal. While EPA assumes the cost of coal to
be $1.80 per MMBtu, a commenter estimates that cement kilns pay
approximately $2.56 to $3.00 per MMBtu of coal, based on a survey of
those cement kilns that burn hazardous waste as a fuel. Therefore,
EPA's analysis underestimates the coal replacement costs incurred by
cement kilns as a result of the rule.
    Response: We agree that the cost of coal used for the proposed rule
may be lower than the current cost. When we conducted the economic
analysis at proposal, we used coal pricing information from the Energy
Information Administration's (EIA's) Annual Coal Report 2004. This was
the most recent publicly available source of annual coal prices at the
time. Because coal prices have been trending upward, the coal pricing
data in this publication are lower than current prices. For the
economic assessment of the final rule, we use coal pricing data from
EIA's Annual Coal Report 2006. Adjusting the data in this document for
inflation, we assume a coal price of approximately $2.23 per MMBtu for
the economic analysis of the final rule.

G. Concern That the Economic Analysis Overestimates the Per Unit Cost
of Incineration

    Comment: A commenter alleges that EPA's incineration cost estimate
of $0.96 per gallon is an overestimate. The commenter argues that these
data are outdated and do not reflect current market conditions and that
incinerators currently charge $0.10 to $0.15 per gallon to manage waste
with properties consistent with ECF. Because this cost is significantly
lower than the unit cost used in the analysis, the commenter claims
that the Agency overestimates the management cost savings associated
with the rule.
    Response: We note that the price of incinerating ECF is subject to
uncertainty. At the time of our analysis for the proposed rule, ETC's
2004 price information from the hazardous waste incineration industry
represented the most recent publicly available data on the cost of
incineration, and it is still the most recent publicly available data
on the cost of incineration. The Agency prefers, when possible, to use
the most recent publicly available data when conducting our economic
assessments. However, to address the commenter's concerns regarding our
potential overestimation of the cost of incinerating ECF, we use the
low end of the reported range of costs in the Environmental Technology
Council's 2004 data release ($0.41 per gallon) for our economic
assessment of the final rule.

H. Concern That EPA Overestimates the Price That ECF Would Command on
the Open Market

    Comment: In its economic assessment of the proposed rule, EPA
estimates that the market price of ECF ($5.58 per MMBtu) will be
approximately 26 percent less than that of conventional fuel (i.e., a
composite of natural gas, fuel oil, and coal). A commenter asserts that
the market price of ECF is likely to be considerably lower than this
value and that EPA has overestimated the fuel savings of the rule. To
support this point, the commenter cites the market price of $0.50-$3.00
per MMBtu for used oil. Because used oil is a cleaner fuel than ECF,
the market price for ECF is likely to be no higher than the price of
used oil.
    Response: We understand that the market price of ECF would be
uncertain because of the regulatory requirements associated with
storing and burning this hazardous secondary material. The Agency
disagrees, however, with the commenter's assessment of the price that
ECF would command on the open market. Although the commenter claims
that the price of used fuel oil is between $0.50 and $3.00 per MMBtu,
the 2005 Department of Energy Study entitled, ``Used Oil Study and
Recommendations to Address Energy Policy Act of 2005 Section 1838''
indicates that the price of used oil is discounted 25 to 35 percent
from the price of residual oil. Based on the 2006 residual oil price of
$1.22 per gallon reported in DOE's Petroleum Marketing Annual 2006 and
an assumed thermal value of 6.287 MMBtu per barrel, this translates to
a used oil price of $5.28 to $6.10 per MMBtu. EPA's estimated value of
$5.58 per MMBtu for ECF, therefore, falls within this range.

I. Concern That Revenue Losses for Commercial Incinerators and Cement
Kilns Are Not Reflected in EPA's Estimates of the Social Costs
(Savings) of the Rule

    Comment: EPA estimates that commercial incinerators and cement
kilns, combined, will experience annual revenue losses of approximately
$5 million as a result of the rule. Because these losses are not
incorporated into the estimated costs of the rule, a commenter states
that EPA overestimates the cost savings likely to result from the
exclusion.
    Response: EPA disagrees with the commenter's suggestion that the
Agency should deduct the reduction in commercial incinerator and cement
kiln revenues from the estimated net cost value presented in the
economic assessment document. As described in the methodology section
of the economic assessment document, these reductions in revenues do
not represent an expenditure of resources and, therefore, are not a
social cost.

J. Concern That EPA Has Not Evaluated the Adverse Consequences to
National Waste Management Networks That Might Result if Some States
Adopt the Rule and Others Do Not

    Comment: To the extent that some states do not adopt the
regulation, the ECF rule will lead to inconsistent requirements across
state lines, according to a commenter. The commenter asserts that EPA's
analysis fails to account for the adverse consequences associated with
the patchwork of state regulations that will likely emerge as a result
of the exclusion.
    Response: We agree with the commenter that inconsistencies in waste
management regulations across state lines may create inefficiencies
within the national hazardous waste management system. For this reason,
we encourage all states to adopt the ECF rule. Because adoption of the
rule must occur at the state level, however, determinations with
respect to adoption are outside of EPA's authority.\107\
---------------------------------------------------------------------------

    \107\ We note also that the current exclusion for comparable
fuel, as well as other exclusions or exemptions, must also be
adopted at the state level to become effective. Thus, the fact that
some states may not adopt the ECF exclusion is not unexpected.
---------------------------------------------------------------------------

    We disagree, however, with the commenter's characterization of the
Agency's analysis of the partial implementation scenario in the

Economic Assessment document. Although the analysis estimates impacts
when only a limited number of states adopt the proposed rule, the
commenter's characterization of this assessment as a scaling analysis
is incorrect. Rather than scaling the national results, we focused this
partial implementation analysis on 16 states with laws that either: (a)
Prohibit them from promulgating standards that are more stringent than
the federal regulations; or (b) require them to undertake additional
legislative action to enact standards more stringent than federal
regulations.

Part Five: State Authority

I. 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. When EPA authorizes a state to implement the
RCRA hazardous waste program, EPA determines whether the state program
is consistent with the federal program, and whether it is no less
stringent. This process, codified in 40 CFR 271, ensures national
consistency and minimum standards, while providing flexibility to the
states in implementing rules. Following authorization, EPA retains
enforcement authority under sections 3008, 3013, and 7003 of RCRA,
although authorized states have primary enforcement responsibility. In
making this determination, EPA evaluates the state requirements to
ensure they are no less stringent than the federal requirements.
    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.
    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 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. Authorized states may,
but are not required to, adopt federal regulations that are considered
less stringent than previous federal regulations. Because this rule
would eliminate specific requirements for hazardous secondary materials
that are currently managed as hazardous waste, state programs would no
longer need to include those specific requirements in order to be
consistent with EPA's regulations.

II. Effect on State Authorization

    These regulations are not promulgated under the authority of HSWA.
Thus, this exclusion is applicable on the effective date only in those
states that do not have final RCRA authorization. Moreover, authorized
states are required to modify their program only when EPA promulgates
Federal regulations that are more stringent or broader in scope than
the authorized state regulations. For those changes that are less
stringent or reduce the scope of the Federal program, states are not
required to modify their program. This is a result of section 3009 of
RCRA, which allows states to impose more stringent regulations than the
Federal program. This final rule is considered to be less stringent
than the current standards. Therefore, authorized states are not
required to modify their programs to adopt regulations consistent with
and equivalent to today's standards, although EPA strongly encourages
states to do so.
    Some states incorporate the federal regulations by reference or
have specific state statutory requirements that their state program can
be no more stringent than the federal regulations. In those cases, EPA
anticipates that the exclusions in this notice would be adopted by
these states, consistent with state laws and state administrative
procedures, unless they take explicit action as specified by their
respective state laws to decline the proposed revisions.

Part Six: Costs and Benefits of the Final Rule

I. Introduction

    The value of any regulatory action is traditionally measured by the
net change in social welfare that it generates. The Agency's economic
assessment conducted as part of EPA's obligations under Executive Order
12866 evaluates costs, cost savings (benefits), waste quantities
affected, and other impacts, such as environmental justice, children's
health, unfunded mandates, regulatory takings, and small entity
impacts. To conduct this analysis, we prepared a baseline
characterization for ECF, developed and implemented a methodology for
examining impacts, and followed appropriate guidelines and procedures
for examining equity considerations, children's health, and other
impacts. Because EPA's data were limited, the estimated findings from
these analyses should be viewed as national, not site-specific impacts.

II. Baseline Specification

    Proper baseline specifications are vital to the accurate assessment
of incremental costs, benefits, and other economic impacts associated
with a rule that would expand the exclusion for hazardous secondary
materials used as a fuel. The baseline essentially describes the world
absent any expanded exclusion. The incremental impacts of this action
are evaluated by assessing post-rule responses with respect to baseline
conditions and actions. The baseline, as applied in this analysis, is
assumed to be the point at which the final rule is published. A full
discussion of the baseline specification is presented in the Assessment
\108\ document completed for this action.
---------------------------------------------------------------------------

    \108\ USEPA, ``Assessment of the Potential Costs, Benefits, and
Other Impacts of the Expansion of the RCRA Comparable Fuel
Exclusion--Final Rule,'' April 2008.
---------------------------------------------------------------------------

III. Analytical Methodology, Primary Data Sources, and Key Assumptions

    We developed a simplified four-step approach for assessing the cost
and economic impacts associated with this action. First, we identified
all potentially eligible hazardous secondary materials currently
generated in the U.S. We next determined the tonnage of such material
that is likely to qualify for the exclusion. An economic threshold
analysis was next applied to the likely eligible hazardous secondary
material (i.e. currently-classified waste) to

determine which facilities could be expected to benefit from the
exclusion. For example, for a generator with a fossil fuel boiler on-
site, the model assumes that the facility will use the exclusion if the
total benefits (cost savings) realized by the generator are projected
to exceed the total costs incurred to take advantage of the exclusion.
Finally, we aggregated all facilities that are likely to use the
exclusion to derive estimates for total costs, cost savings, and
economic impacts (ECF quantities affected).
    The analytical model for this analysis derives both cost savings
and costs associated with the exclusion. Cost savings include: fuel
cost savings (net of baseline fuel recovery), avoided hazardous waste
management costs, transportation cost savings, tracking cost savings,
and storage cost savings. These factors may be considered economic
benefits of the action. The model also assesses relevant costs of the
exclusion. These include: burner storage costs, boiler retrofit costs,
hazardous secondary material analytical costs, raw materials
replacement cost (related to the hazardous secondary material that is
recycled in the baseline), recordkeeping costs, and transport costs.
    The net social benefits are calculated as the difference between
the social benefits (cost savings) and social costs. The total net
social benefits of the rule are then calculated by aggregating the net
social impacts associated with each facility expected to use the
exclusion. Because this rule establishes ``emissions'' comparable
fuels, impacts to human health and the environment are assumed to be
comparable, or generally unchanged as compared to virgin fuels, and are
therefore not included in our monetized assessment.
    The primary data sources used in this analysis are the 2005
Biennial Report (2005 BR),\109\ the 1996 National Hazardous Waste
Constituent Survey (NHWCS),\110\ the 2002 National Emissions Inventory
(NEI),\111\ the ACC Survey data,\112\ and information provided in the
engineering analysis developed by EERGC. The 2005 BR data were used to
derive the potentially eligible hazardous secondary materials currently
generated in the U.S. This is the only national database available that
has been reviewed by the Agency to ensure data quality. The 1996 NHWCS
reflects dated information, but was the only quality controlled data
source available that provided the necessary constituent information on
a nationwide basis, across all industries. The NEI data were used to
make a determination of whether an eligible boiler is located at each
facility. The EERGC engineering analysis provided all necessary
engineering cost information.\113\
---------------------------------------------------------------------------

    \109\ U.S. EPA, 2005 National Biennial Report, database and
supporting documentation available for download at http://
www.epa.gov/epaoswer/hazwaste/data/biennialreport/
    \110\ U.S. EPA, National Hazardous Waste Constituent Survey,
database and supporting documentation available for download at
http://www.epa.gov/epaoswer/hazwaste/id/hwirwste/economic.html
    \111\ U.S. EPA, 2002 National Emissions Inventory, databases and
supporting documentation available for download at http://
www.epa.gov/ttn/chief/net/2002inventory.html
    \112\ American Chemistry Council (ACC) voluntary membership
survey of waste generation and management.
    \113\ USEPA, ``Draft Technical Support Document for Expansion of
the Comparable Fuel Exclusion,'' May 2007, Section 7.
---------------------------------------------------------------------------

    Data limitations have required us to apply several assumptions in
our analysis. The most critical assumptions are:
     The ECF is assumed to be burned in nonhazardous waste
boilers that meet the conditions of the exclusion;
     The ECF is assumed to have an average heating value of
12,200 Btu/lb. (This is based on our assessment of the National
Hazardous Waste Constituent Survey);
     A facility that can use the exclusion, and has a
nonhazardous waste boiler on-site that could burn ECF, would burn this
material on-site rather than sending it off-site;
     The number of facilities purchasing ECF is assumed to
equal the number of generating facilities expected to send their ECF
off-site; and,
     All excluded ECF generated in a particular state that is
sent offsite by the generating facility is assumed to be shipped the
same distance. (Average shipment distances for each state are derived
from hazardous waste shipped off-site, as reported in the Biennial
Report database.)

IV. Key Analytical Limitations

    The primary analytical limitations are associated with our estimate
of the availability of on-site boilers, and our estimate of ECF
qualifying for the exclusion. Nationwide data are not available to
indicate whether each affected generating facility has a boiler on-site
that can burn ECF. Using the NEI data, we made a determination of
whether an eligible boiler is located at each facility. This
determination may misrepresent which boilers could burn ECF and which
boilers could not. To estimate how much hazardous secondary material
qualifies as ECF, we used the ACC survey data, and data derived from
the NHWCS. The data presented in the NHWCS are the most comprehensive
nationwide data available. However, these data are from 1993, and may
not fully reflect the characteristics of today's hazardous secondary
materials.

V. Findings

    This rule is projected to result in a benefit to society in the
form of net cost savings to the private sector, on a nationwide basis,
thereby allowing for the more efficient use of limited resources
elsewhere in the economy. This is accomplished without compromising
protection of human health and the environment by ensuring comparable
emissions from the burning of high Btu value hazardous secondary
materials.
    The total net social benefits projected as a result of this rule
are estimated at $13.4 million per year. Avoided waste management and
fuel costs represent the vast majority of all benefits (cost savings).
Transportation, boiler retrofits, and burner storage costs represent
the majority of the costs. This estimate assumes all 50 states adopt
the rule, which is unlikely to occur. As a sensitivity analysis, we
estimated impacts to only those 16 states that have statutes
prohibiting them from promulgating standards that are more stringent
than the Federal regulations or with statutes that require additional
legislative action to enact standards more stringent than the Federal
regulations. The total net social benefits under this scenario are
estimated at $10.1 million per year.
    Approximately 222,500 tons (U.S. short tons) of currently-
classified hazardous secondary materials are expected to qualify for
the exclusion with approximately 118,500 tons/year actually excluded.
Of the excluded total, our data indicate that approximately 48,900 tons
are not burned for energy recovery in the baseline. Of this total, the
vast majority is reported under BR management code H040--Incineration
for thermal destruction other than use as a fuel.\114\
---------------------------------------------------------------------------

    \114\ We note that the BR does not identify a management method
code for wastes that are combusted in an incinerator and where the
heating value of the wastes is used beneficially in lieu of fossil
or other fuels to combust other waste with little or no heating
value. Thus, it is probable that the vast majority of the waste that
we identify as likely to be excluded as ECF, and which is currently
combusted in incinerators, is currently being burned for energy
recovery.
---------------------------------------------------------------------------

    We also analyzed the two primary regulatory options considered by
the Agency.\115\ Annual net social benefits

under the first option (less stringent requirements) were found to be
$14.1 million. The additional cost savings primarily reflect reduced
burner and generator storage requirements. Under the second option
(more stringent requirements), net social benefits are estimated at
$10.9 million per year. The reduced net benefits are largely reflected
in increased burner storage requirements and greater tracking costs.
Reduced fuel and management costs account for the vast majority of all
cost savings under both options, as with the final rule. Under these
two options, generators are projected to exclude an estimated 100,200
to 118,800 tons of ECF per year, out of the 222,500 tons/year
qualifying.
---------------------------------------------------------------------------

    \115\ Alternative Option A would impose conditions that are less
stringent than those under the final rule (e.g., boiler operator
training would not be required; dikes and berms would be allowed for
secondary containment for tanks rather than a liner, double-wall, or
vault). Alternative Option B would impose conditions that are more
stringent than those under the final rule (e.g., closure and
financial requirements for storage units; manifests for shipments).
See USEPA, ``Assessment of the Potential Costs, Benefits, and other
Impacts of the Expansion of the RCRA Comparable Fuel Exclusion,''
April 2008, Exhibit ES-1.
---------------------------------------------------------------------------

    We believe that it is important to not only understand the change
in economic efficiency, as presented above, but to also understand the
primary distributional effects associated with this change. Hazardous
waste commercial incinerators and cement kilns are projected to
experience impacts associated with this action. These effects include
revenue losses and fuel replacement costs for cement kilns, plus
revenue increases for commercial incinerators. Commercial kilns and
blenders are projected to experience estimated revenue losses ranging
from $3.2 to $6.5 million per year, while commercial incinerators may
experience revenue changes from a decrease of $0.4 million to an
increase of approximately $2.8 million per year. The losses for cement
kilns represent less than 1 percent of the current annual waste
management revenues earned by these facilities. In addition, the shift
of ECF and hazardous wastes with which ECF is currently blended away
from commercial kilns represents a fuel loss to these facilities. We
estimate that the annual cost of replacing this hazardous waste fuel is
approximately $1.7 to 2.9 million per year.
    Although impacts to these groups may be considered a cost in
accounting terms, they do not represent a real resource cost of the
rule. The actual net benefits of this action reflect the impacts to
these groups to the extent that there are real resource impacts, but do
not include transfers from one facility to another.
    The findings presented here reflect numerous analytical assumptions
and limitations. Furthermore, we have analyzed additional scenarios and
sensitivity analyses that are not presented in this Preamble. Readers
wishing to gain a full understanding of our analytical methodology,
data, findings, assumptions, and limitations are encouraged to read the
Assessment document prepared in support of this final rule, and
available in the Docket to this rule.

Part Seven: Statutory and Executive Order Reviews

I. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action is a ``significant regulatory action,'' since this action
may raise novel legal or policy issues [3(f)(4)]. Accordingly, EPA
submitted this action to the Office of Management and Budget (OMB) for
review under EO 12866. Any changes made in response to OMB
recommendations have been documented in the docket for this action.
    This rule is projected to result in benefits to society in the form
of cost savings. The total net cost savings are estimated at $13.4
million per year. This figure is significantly below the $100 million
threshold \116\ established under part 3(f)(1) of the Order. Thus, this
rule is not considered to be an economically significant action.
However, in an effort to comply with the spirit of the Executive Order,
we have prepared an economic assessment in support of this action. This
document is entitled: Assessment of the Potential Costs, Benefits, and
Other Impacts of the Expansion of the RCRA Comparable Fuel Exclusion-
Final Rule. The RCRA docket established for this rulemaking maintains a
copy of this Assessment for public review. Interested persons are
encouraged to read this document.
---------------------------------------------------------------------------

    \116\ This $100 million threshold applies to both costs, and
cost savings.
---------------------------------------------------------------------------

II. Paperwork Reduction Act

    The information collection requirements in this rule have been
submitted for approval to 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 under this rule is planned to be collected in order
to ensure that the conditions of the exclusion from RCRA under 40 CFR
261.38 are being met. The responses to the collection of information
are mandatory under 40 CFR 261.38, and are necessary for EPA to fulfill
its congressional mandate to protect public health and the environment.
The information will, however, be collected only to the extent
necessary for the implementation of this rule, and will not collect any
information related to the trade secrets of the stakeholders. EPA will
protect from public disclosure all confidential business information
obtained under this rule.
    This promulgated rule is deregulatory. The 64 respondents
generating and burning excluded ECF would be subject to an annual
public reporting and recordkeeping burden for the collection of
information required under this rule of 37,373 hours, and a capital,
and operation and maintenance cost of $1.4 million. However, because
the excluded fuel would no longer be considered hazardous waste, the
generator would not be required to comply with the paperwork,
reporting, and recordkeeping requirements under the Subtitle C
hazardous wastes regulations. Therefore, the reporting and
recordkeeping burden associated with ECF would result in a net annual
reduction of 32,899 hours and savings of $1.3 million in capital, and
operation and maintenance costs. The frequency of responses varies with
the type of response. Burden is defined at 5 CFR 1320.3(b).
    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. When this ICR is
approved by OMB, the Agency will publish a technical amendment to 40
CFR part 9 in the Federal Register to display the OMB control number
for the approved information collection requirements contained in this
final rule.

III. 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.
    The RFA provides default definitions for each type of small entity.
Small entities are defined as: (1) A small business as defined by the
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 this final rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the rule on small entities,'' 5 U.S.C. 603 and 604.
Thus, an agency may certify that a rule will not have a significant
economic impact on a substantial number of small entities if the rule
relieves regulatory burden, or otherwise has a positive economic effect
on all of the small entities subject to the rule. 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. For the purposes of
the impact analyses, 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.
    This rule is projected to result in benefits in the form of cost
savings to companies that use the exclusion. As a result, the rule
would not result in adverse impacts for any small businesses that
generate ECF. Our analysis indicates that one or two cement kilns may
be owned by small businesses, as defined by the SBA for the relevant
NAICS code. Lost revenue plus fuel replacement costs to these
facilities have been found to represent less than 3% of the average
annual waste receipt revenues to these facilities, and considerably
less impacts when clinker/cement revenues are included. As a result,
these impacts are not significant. Furthermore, these impacts are not a
direct economic impact of the rule.
    The reader is encouraged to review our regulatory flexibility
screening analysis prepared in support of this determination. This
analysis is incorporated into the Assessment document, which is
available in the Docket to this final rule.

IV. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
    This final rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments or the private sector. The UMRA generally excludes from the
definition of ``Federal intergovernmental mandate'' duties that arise
from participation in a voluntary federal program. This rule is a
voluntary program because the States are not required to adopt these
requirements as a condition of authorization (or otherwise). In any
event, EPA has determined that 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. The total net benefits (cost savings) of this
action are estimated to be $13.4 million per year.
    Finally, EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. Small governments are not affected by this action.

V. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by state and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that 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.''
    This final rule 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. The rule focuses on modified
requirements for facilities generating ECF, without affecting the
relationships between Federal and state governments. Thus, Executive
Order 13132 does not apply to this rule.
    Although section 6 of Executive Order 13132 does not apply, EPA did
consult with representatives of state governments in developing this
rule. Representatives from the states of North Carolina, Georgia,
Missouri, Louisiana, and Oregon provided valuable input and review.

VI. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This final rule does not have
tribal implications, as specified in

Executive Order 13175. No Tribal governments are known to own or
operate facilities generating or burning hazardous secondary materials
subject to this rule. Thus, Executive Order 13175 does not apply to
this rule.

VII. EO 13045 ``Protection of Children From Environmental Health Risks
and Safety Risks''

    This action is not subject to Executive Order 13045 (62 F.R. 19885,
April 23, 1997) because it is not economically significant as defined
in Executive Order 12866, and because the Agency does not believe the
environmental health or safety risks addressed by this action present a
disproportionate risk to children. A health and risk assessment in
support of this action is unnecessary due to the comparable emission
nature of this action.

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

    This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a
significant regulatory action under Executive Order 12866.
    This rule will not seriously disrupt energy supply, distribution
patterns, prices, imports or exports. Furthermore, this rule is
designed to improve economic efficiency by expanding the use of fuels
that are hazardous secondary materials.

IX. National Technology Transfer 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.
    This rulemaking involves environmental monitoring or measurement.
Consistent with the Agency's Performance Based Measurement System
(``PBMS''), EPA has decided not to require the use of specific,
prescribed analytic methods. Rather, the rule will allow the use of any
method that meets the prescribed performance criteria. The PBMS
approach is intended to be more flexible and cost-effective for the
regulated community; it is also intended to encourage innovation in
analytical technology and improved data quality. EPA is not precluding
the use of any method, whether it constitutes a voluntary consensus
standard or not, as long as it meets the performance criteria
specified.

X. 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 does not
affect the level of protection provided to human health or the
environment. This rule is designed to allow for the use of hazardous
secondary materials as fuel under a comparable emission standard,
resulting in no incremental increase in risk to human health and the
environment, when compared to the burning of virgin fuels.

XI. 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 January 20, 2009.

List of Subjects in 40 CFR Part 261

    Hazardous waste, Recycling, Reporting and recordkeeping
requirements.

    Dated: December 12, 2008.
Stephen L. Johnson,
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, emission-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, emission-comparable fuel,
and syngas fuel.

    (a) Specifications for excluded fuels. Materials that meet the
specifications for comparable fuel, emission-comparable fuel, or syngas
fuel under paragraphs (a)(1), (a)(2), or (a)(3) 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) Emission-comparable fuel specifications--The specifications
shall be met as-generated. (i) Physical specifications.--(A) Heating
value. The heating value must be 8,000 BTU/lbs (18,400 J/g) or greater.
    (B) Viscosity. The viscosity must not exceed 50 cs.
    (ii) Constituent specifications--(A) Except as provided by
paragraph (a)(2)(ii)(B) of this section, for

compounds listed in Table 1 of this section the specification levels
and, where nondetect is the specification, minimum required detection
limits, are: (see Table 1 of this section).
    (B) Specifications not applicable. The specification levels in
Table 1 to this section do not apply for the following hydrocarbons and
oxygenates under the special conditions provided under this section for
emission-comparable fuel:
    (1) Benzo(a)anthracene (CAS No. 56-55-3).
    (2) Benzene (CAS No. 71-43-2).
    (3) Benzo(b)fluoranthene (CAS No. 205-99-2)
    (4) Benzo(k)fluoranthene (CAS No. 207-08-9)
    (5) Benzo(a)pyrene (CAS No. 50-32-8)
    (6) Chrysene (CAS No. 218-01-9)
    (7) Dibenzo(a,h)anthracene (CAS No. 52-70-3)
    (8) 7,12-Dimethylbenz(a)anthracene (CAS No. 57-97-6)
    (9) Flouranthene (CAS No. 206-44-0)
    (10) Indeno(1,2,3-cd)pyrene (CAS No. 193-39-5)
    (11) 3-Methlycholanthrene (CAS No. 56-49-5)
    (12) Naphthalene (CAS No. 91-20-3)
    (13) Toluene (CAS No. 108-88-3).
    (14) Acetophenone (CAS No. 98-86-2).
    (15) Acrolein (CAS No. 107-02-8).
    (16) Allyl alcohol (CAS No. 107-18-6).
    (17) Bis(2-ethylhexyl)phthalate [Di-2-e thylhexyl phthalate] (CAS
No.117-81-7).
    (18) Butyl benzyl phthalate (CAS No. 85-68-7).
    (19) o-Cresol [2-Methyl phenol] (CAS No. 95-48-7).
    (20) m-Cresol [3-Methyl phenol] (CAS No. 108-39-4).
    (21) p-Cresol [4-Methyl phenol] (CAS No.106-44-5).
    (22) Di-n-butyl phthalate (CAS No. 84-74-2).
    (23) Diethyl phthalate (CAS No. 84-66-2).
    (24) 2,4-Dimethylphenol (CAS No. 105-67-9).
    (25) Dimethyl phthalate (CAS No. 131-11-3).
    (26) Di-n-octyl phthalate (CAS No. 117-84-0).
    (27) Endothall (CAS No. 145-73-3).
    (28) Ethyl methacrylate (CAS No. 97-63-2).
    (29) 2-Ethoxyethanol [Ethylene glycol monoethyl ether] (CAS No.
110-80-5).
    (30) Isobutyl alcohol (CAS No. 78-83-1).
    (31) Isosafrole (CAS No. 120-58-1).
    (32) Methyl ethyl ketone [2-Butanone] (CAS No. 78-93-3).
    (33) Methyl methacrylate (CAS No. 80-62-6).
    (34) 1,4-Naphthoquinone (CAS No. 130-15-4).
    (35) Phenol (CAS No. 108-95-2).
    (36) Propargyl alcohol [2-Propyn-1-ol] (CAS No. 107-19-7).
    (37) Safrole (CAS No. 94-59-7).
    (3) 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;
    (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.
    (4) Blending to meet the specifications. (i) Comparable fuel. (A)
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)(4)(i)(B) of this section:
    (B) Blending to meet the viscosity specification. A hazardous waste
blended to meet the viscosity specification for comparable fuel shall:
    (1) 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;
    (2) Be blended at a facility that is subject to the applicable
requirements of parts 264 and 265, or Sec.  262.34 of this chapter; and
    (3) Not violate the dilution prohibition of paragraph (a)(7) of
this section.
    (ii) Emission-comparable fuel. Hazardous waste shall not be treated
by blending or other means to meet the emission-comparable fuel
specifications under paragraph (a)(2) of this section. Emission-
comparable fuel must meet those specifications as-generated by the
original generator of the material. Emission-comparable fuel that has
met the specifications under paragraph (a)(2) of this section as-
generated, and that is subsequently commingled with other materials,
must continue to meet the specifications.
    (5) Treatment to meet the comparable fuel specifications. (i) A
hazardous waste may be treated to meet the specifications for
comparable fuel under paragraph (a)(1) of this section provided the
treatment:
    (A) Destroys or removes the constituent 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 and 265, or Sec.  262.34 of this chapter; and
    (C) Does not violate the dilution prohibition of paragraph (a)(7)
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.
    (6) 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)(3) of this section provided the
processing:
    (A) Destroys or removes the constituent 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 and 265, 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)(7)
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.
    (7) Dilution prohibition for comparable fuel, emission-comparable
fuel, and syngas fuel. (i) Comparable fuel and syngas fuel. 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)(3) of this section
for syngas.
    (ii) Emission-comparable fuel. Emission-comparable fuel shall not
be generated by means of dilution.
    (b) Implementation.--(1) General.--(i) Materials that meet the
specifications provided by paragraph (a) of this section for comparable
fuel, emission-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, and 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 compliance with the conditions of this section and keep
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 Codes 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)(D) 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
emission-comparable fuel/comparable fuel (specify which) 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) Generators of emission-comparable fuel must also include in the
notices:
    (1) An estimate of the annual quantity of each material for which
an emission-comparable fuel exclusion would be claimed; and
    (2) An estimate of the maximum concentration of each compound in
Table 2 to this section in each emission-comparable fuel stream for
which the fuel exceeds the comparable fuel specifications for those
compounds in Table 1 to this section.
    (C) If there is a substantive change in the information provided in
the notice required under this paragraph (b)(2)(i), the generator must
submit a revised notification.
    (D) Comparable fuel and syngas 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 comparable fuel or
syngas fuel or for revised notices as required by paragraph
(b)(2)(i)(C) 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. (i) Comparable fuel and syngas fuel. The exclusion for
fuels meeting the specifications under paragraphs (a)(1) or (a)(3) of
this section 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:
    (A) Industrial furnaces as defined in Sec.  260.10 of this chapter;
    (B) Boilers, as defined in Sec.  260.10 of this chapter, that are
further defined as follows:
    (1) Industrial boilers located on the site of a facility engaged in
a manufacturing process where substances are transformed into new
products, including the component parts of products, by mechanical or
chemical processes; or
    (2) Utility boilers used to produce electric power, steam, heated
or cooled air, or other gases or fluids for sale;
    (C) Hazardous waste incinerators subject to regulation under
subpart O of parts 264 or 265 of this chapter or applicable CAA MACT
standards.
    (D) Gas turbines used to produce electric power, steam, heated or
cooled air, or other gases or fluids for sale.
    (ii) Emission-comparable fuel. The exclusion for fuel meeting the
specifications under paragraph (a)(2) of this section applies only if
the fuel is burned under the conditions provided by paragraph (c) of
this section.
    (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) Analysis plans for burners of emission-comparable fuel. An
emission-comparable fuel burner is subject to the fuel analysis plan
requirements under paragraph (b)(4) of this section to determine, for
each fuel fed to the boiler when burning emission-comparable fuel, the
as-fired heating value and the as-fired concentration of each compound
listed in paragraph (a)(2)(ii)(B) of this section, except for fuels
under the situations described below:
    (i) Coal or fuel oil used as primary fuels, when the burner uses
the heating values and compound concentrations for these fuels provided
in paragraph (c)(2)(ii)(C) of this section and Tables 3 and 4 to Sec.
261.38;
    (ii) Emission-comparable fuel, when the burner receives
documentation of this information from the generator for each shipment
of emission-comparable fuel, provided that the emission-comparable fuel
is not blended with other fuels before firing to the burner.
    (iii) Emission-comparable fuel, when the burner receives
documentation of this information from the generator for each shipment
of emission-comparable fuel, and the emission-comparable fuel is
blended with other fuels before firing to the burner, provided that:
    (A) The burner has determined the heating value of the other fuels
and the concentration of each compound listed in paragraph
(a)(2)(ii)(B) of this section for the other fuels; and;
    (B) The burner determines by calculation the as-fired heating value
of the blended emission-comparable fuel and the as-fired concentration
of each compound listed in paragraph (a)(2)(ii)(B) of this section of
the blended emission-comparable fuel.
    (6) Excluded fuel sampling and analysis. (i) General. For
comparable fuel, emission-comparable fuel, and syngas for which an
exclusion is claimed under the specifications provided by paragraphs
(a)(1), (a)(2), or (a)(3) of this section, the generator of the
material 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 material;
    (C) Constituents introduced into the process that generates the
material; or
    (D) Constituents that are byproducts or side reactions to the
process that generates the material.

    Note to paragraph (b)(6)(i): 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 fuel/syngas above the exclusion specifications.

    (ii) Use of process knowledge. (A) Comparable fuel and syngas. For
each material 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)(6)(i) of this
section and must test to determine that all of the constituent
specifications of paragraphs (a)(1) and (a)(3) of this section, as
applicable, have been met.
    (B) Emission-comparable fuel. Emission-comparable fuel must meet
the specifications for exclusion as-generated. Thus, the generator may
use process knowledge to determine that compounds listed in Appendix
VIII to this part are not present in the emission-comparable fuel.
    (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 (b)(6) 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 properties in a manner that may affect conformance with the
specifications.
    (ix) An emission-comparable fuel burner must determine, for each
fuel fired to the burner, the as-fired heating value of the emission-
comparable fuel and the as-fired concentration of each compound listed
in paragraph (a)(2)(ii)(B) of this section using information provided
by the generator, information provided by paragraph (c)(2)(ii)(C) of
this section and Tables 3 and 4 to this section, by sampling and
analysis, or by calculation when emission-comparable fuel is commingled
with other fuels and the heating value of the emission comparable fuel
and the concentration of each compound listed in paragraph
(a)(2)(ii)(B) of this section is known for the fuels prior to
commingling.
    (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)(6) 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)(4) and (a)(5) 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.--(i) Comparable fuel
and syngas fuel. Prior to submitting a notification to the State and
Regional Directors, a generator of comparable fuel or syngas fuel
excluded under paragraphs (a)(1) or (a)(3) of this section who intends
to ship the excluded fuel off-site for burning must obtain a one-time
written, signed statement from the burner:
    (A) 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;
    (B) Identifying the name and address of the facility that will burn
the excluded fuel; and
    (C) Certifying that the state in which the burner is located is
authorized to exclude wastes as excluded fuel under the provisions of
this section.
    (ii) Emission-comparable fuel. Prior to submitting a notification
to the State and Regional Directors, a generator of emission-comparable
fuel who intends to ship the excluded fuel off-site for burning must
obtain a one-time written, signed statement from the burner:
    (A) Certifying that the excluded fuel will be stored under the
conditions of paragraphs (c)(1) or (e) of this section and burned under
the conditions of paragraph (c)(2) of this section, and that the burner
will comply with the notification, reporting, and recordkeeping
conditions of paragraph (c)(5) of this section;
    (B) Identifying the name and address of the facility that will burn
the excluded fuel; and
    (C) 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 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,
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) If 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) Special conditions for emission-comparable fuel. The following
additional conditions apply to emission-comparable fuel--fuel that
meets the specifications under paragraph (a)(2) of this section.
    (1) Storage. (i) General. Emission-comparable fuel may be stored in
a container or tank under the conditions of paragraphs (c)(1)(iii)
through (c)(1)(viii) of this section, or alternative conditions under
paragraph (e) of this section.
    (ii) Prohibition on underground storage. Emission-comparable fuel
shall not be stored in an underground tank. An underground tank is a
tank the volume of which (including the volume of underground pipes
connecting thereto) is 10 percent or more beneath the surface of the
ground.
    (iii) Spill prevention, control, and countermeasures (SPCC)
requirements. Emission-comparable fuel storage tanks and containers
with a capacity equal to or greater than 0.1 m\3\ (26 gallons) are
subject to the following Spill Prevention, Control, and Countermeasures
(SPCC) requirements adopted from 40 CFR Part 112. To satisfy the
adopted conditions, you must substitute the term ``emission-comparable
fuel'' for the term ``oil,'' and by substituting the term ``release of
emission-comparable fuel to the environment'' for the term ``discharge
as described in Sec.  112.1(b).''
    (A) Section 112.2, Definitions. These definitions apply to the
adopted SPCC requirements under paragraphs (c)(1)(iii)(B) through
(c)(1)(iii)(D) of this section.
    (B) Sections 112.3(d) and 112.3(e) of this chapter, Requirement to
Prepare and Implement a Spill Prevention, Control, and Countermeasure
Plan. (1) You must prepare a SPCC Plan in writing, and in accordance
with the adopted provisions of Sec. Sec.  112.7 and 112.8 of this
chapter;
    (2) The SPCC Plan must be reviewed and certified according to the
provisions of Sec.  112.3(d) of this chapter and must be made available
to the Regional Administrator according to the provisions of Sec.
112.3(e) of this chapter;
    (3) You must amend your SPCC Plan as directed by the Regional
Administrator upon a finding that amendment is necessary to prevent and
contain releases of emission-comparable fuel from your facility. You
must implement the amended SPCC Plan as soon as possible, but not later
than six months after you amend your SPCC Plan, unless the Regional
Administrator specifies another date;