RCRA Comparable Fuels Exclusion

Written by: Angie Martin, PE CHMM & Jim Brossman, Senior Consultant


According to the EPA, “”On June 27, 2014, the United States Court of Appeals vacated the ‘Comparable Fuels Rule’, which provided an exclusion from RCRA hazardous waste regulations for certain fuels derived from hazardous waste. EPA, recognizing the potential impact of this decision, has filed a motion with the court requesting a 30-day delay in the effective date of the decision (currently scheduled for August 11, 2014, absent petitions for appeal or rehearing) in order to gather information to help plan for orderly transition consistent with the opinion. At the end of that time, EPA may seek a further stay of the mandate if it determines that additional time is necessary for facilities to come into compliance with the applicable requirements.”

Update: On August 7, 2014, the court granted a stay of the mandate through September 17, 2014.

We expect to see a notice in the Federal Register very soon withdrawing the rule (40 CFR 261.4(a)(16) and 261.38). States are expected to follow so as not to be less stringent than the federal government. Generators using this exemption will need to do a proper waste determination on wastes and possibly will need to ship wastes that were being burned onsite to an off-site Resource Conservation and Recovery Act (RCRA) permitted facility (TSD) — presumably incinerator or supplemental fuel/cement kiln.

What was the Comparable Fuels Exemption?

The comparable fuels exclusion was an exemption only available for liquids that met the comparable fuels specifications for BTU value, viscosity, and maximum hazardous constituent concentration. Materials that met the specifications would not be solid wastes (and therefore not hazardous wastes) if burned in an industrial furnace, utility boiler or hazardous waste incinerator.

The types of materials EPA thought would meet the terms of the exclusion included alcohols, oils, and other organic liquid wastes. In addition to BTU and viscosity requirements, there were hazardous constituent concentration limits for over 200 compounds included in the exclusion. The standard for most of these constituents was non-detection.

Due to the low specifications, and restrictions on blending to meet most specifications, the types of facilities that claimed the exemption were usually pharmaceutical manufacturers or other facilities that generated large volumes of lightly contaminated spent solvents which they typically wanted to burn in an on-site boiler. Although it was self-implementing, general market knowledge indicated that few facilities attempted to qualify for this exclusion due to the low constituent standards and the analytical burden required to demonstrate compliance.

Does this affect other fuel type exclusions?

No. Fuel-for-fuel and Used Oil exclusions are still in effect as before.

This decision does not appear to impact the reclamation and reuse of off-specification fuels since those materials are not solid wastes (or hazardous wastes) when destined for recovery and reuse as fuel.

What does this mean for generators? 

If you are a generator who has been using this exemption, it may be time to consider performing a new proper waste determination and a review of your disposal arrangements. Be sure to include a review of compliance concerns regarding tanks that were product tanks becoming waste accumulation tanks. Don’t hesitate to seek environmental compliance help if you are unsure of the specific implications for your materials and facilities.

For further information on this subject visit the EPA’s webpage on the Comparable Fuels Rule.

If you believe that you may be using this exemption, Heritage can assist you in making a proper waste determination, disposal arrangements, as well as compliance consulting regarding a potential change in generator status or tanks that were product tanks becoming waste accumulation tanks. Contact a Heritage Representative today.

The Hazardous Waste Identification Process

The cornerstone of a successful hazardous waste management system is the proper identification of hazardous wastes. RCRA regulations at 40 CFR 262.11 require that any person who produces or generates a waste must determine if that waste is hazardous. 262.11 also provides four steps for generators to utilize in the process of hazardous waste identification. These are:

  • Is the waste a “solid waste”?
  • Is the waste specifically excluded from the RCRA regulations?
  • Is the waste a “listed” hazardous waste?
  • Does the waste exhibit a characteristic of hazardous waste?

So, in order to properly identify hazardous waste, it stands to reason that we should work our way through those four points.

Is the waste a “solid waste”?

As with many things, the first step in hazardous waste identification is pretty intuitive. We must first determine if the material is a waste. After all, if it is not a waste it can’t be a hazardous waste. That said, determining whether or not something is a waste can get tricky. Take glass bottles for example, one person could see them as something to discard while another may see them as valuable due to their ability to be recycled.

Because of this ambiguity, the EPA developed a set of regulations to assist in determining whether or not a material is a waste. RCRA uses the term “solid waste” in place of “waste. Under RCRA, the term “solid waste” means any waste, whether it is a solid, semisolid, or liquid. The first section of the RCRA hazardous waste identification regulations focuses on the definition of solid waste and is a good place to look if you are confused about this step.

Is the waste excluded?

While solid wastes are rather abundant, just a small percentage of them qualify as hazardous wastes. You might think that distinguishing between hazardous and nonhazardous wastes is a simple matter of chemical and toxicological analysis. This, however, is not the case. We must first consider other factors before evaluating the hazard posed by the chemical composition of a waste.

Due to the fact that regulating some wastes may be impractical, unfair, or otherwise undesirable, the EPA has created exclusions. Household waste, for example, can contain dangerous chemicals, like solvents and pesticides, but making households subject to the strict RCRA waste management regulations would create a number of practical problems. Congress and EPA exempted or excluded certain wastes, like household wastes, from the hazardous waste definition and regulations.

Determining whether or not a waste is excluded or exempted from hazardous waste regulation is the second step in the RCRA hazardous waste identification process. Only after determining that a solid waste is not somehow excluded from hazardous waste regulation should the analysis proceed to evaluate the actual chemical hazard that a waste poses. Check 40 CFR to see if the waste you generate is excluded for any reason.

Is the waste a “listed” hazardous waste?

The EPA has studied hundreds of different waste streams and listed the wastes accordingly. Listed wastes are described or listed on four different lists that can be found at 40 CFR 261, Subpart D. These four lists are:

  • The F list — The F list designates particular solid wastes from certain common industrial or manufacturing processes as hazardous. Because the processes producing these wastes can occur in different sectors of industry, the F list wastes are known as wastes from nonspecific sources. The F list is codified in the regulations at §261.31.
  • The K list — The K list designates particular solid wastes from certain specific industries as hazardous. K list wastes are known as wastes from specific sources. The K list is found at §261.32.
  • The P list and the U list — These two lists are similar in that both list pure or commercial grade formulations of certain specific unused chemicals as hazardous. Both the P list and U list are codified in §261.33.

The third step in hazardous waste identification is determining which (if any) of these lists your waste belongs on.

Does the waste exhibit a characteristic of hazardous waste?

We’ve talked about the characteristics of hazardous waste before. There are four different characteristics; ignitability, corrosivity, reactivity, and toxicity. If you need a refresher on the definitions of these characteristics check out our “Characteristics of Hazardous Waste,” post or our infographic depicting them.

The final step in the hazardous waste identification process is determining if your waste displays any of the four hazardous waste characteristics.