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EPA Removes Major Exclusions from RCRA

Posted on 4/15/2015 by Scott Dunsmore

On April 8, 2015, US EPA made two significant revisions to its Resource Conservation and Recovery Act (RCRA) regulations. The revisions—related to the comparable fuels and gasification rules—are effective immediately.

EPA has removed the comparable fuels exclusion at 40 CFR 261.4(a)(16) and 261.38. Previously, this exclusion allowed for "fuels which are produced from a hazardous waste, but which are comparable to some currently used fossil fuels" to be burned as fuel, exempting them from regulation as a hazardous waste under RCRA.

In addition, the Agency revised the oil-bearing hazardous secondary material exclusion at 40 CFR 261.4(a)(12) by removing gasification from the list of specific petroleum refining processes into which oil-bearing hazardous secondary materials may be inserted.

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EPA revised RCRA in response to court-ordered vacaturs of the exclusions. On June 27, 2014, the US Court of Appeals for the District of Columbia Circuit (DC Circuit) held that the unambiguous language of Section 3004(q) requires that fuels produced from hazardous wastes must remain classified as hazardous wastes under Subtitle C. [Natural Resources Defense Council v. EPA, 755 F. 3d 1010 (June 27, 2014)] The gasification rule was also vacated on June 27, 2014, when the DC Circuit held a decision similar to that of the comparable fuels ruling. [Sierra Club v. EPA, 755 F. 3d 968]

The court-ordered removals directly affect the Federal requirements and will immediately impact both states without RCRA authorization (i.e., Alaska and Iowa) and states that are authorized to oversee their own hazardous waste programs. In states with previously authorized comparable fuels and gasification rules, these particular regulations will no longer be considered part of the Federally authorized program.

In states that have adopted, but that have not yet been authorized for, similar rules, the vacaturs of the Federal rules will not change the authorization status of the State program. But in both situations, the April 8 rule allows EPA to bring enforcement actions at facilities that do not comply with the Federal hazardous waste regulations. The EPA strongly encourages states to revise their regulations as expeditiously as possible.

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Tags: hazardous, new rules, oil and gas, RCRA, recycling, waste

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