ASSESSMENT OF THE POTENTIAL COSTS, BENEFITS, AND OTHER IMPACTS 

of the 

WITHDRAWAL OF THE EMISSION-COMPARABLE FUEL EXCLUSION 

UNDER RCRA – FINAL RULE 

 

Economics and Risk Analysis Staff 

Office of Resource Conservation and Recovery 

U. S. Environmental Protection Agency 

1200 Pennsylvania Ave., N. W. 

Washington, DC 20460 

May 11, 2010 
2

BACKGROUND 

Regulatory Background 

The comparable fuels exclusion (CFE) final rule was promulgated in 1998. This rule 

excluded from the regulatory definition of hazardous waste fuel-grade hazardous secondary 

materials with specifications comparable to fossil fuels. The exclusion could be applied to liquid 

hazardous secondary materials, but not to solids or used oils. Following promulgation, several 

members of the regulated community expressed concern about constraints in the rule that 

prevented beneficial fuel use for much of the potentially eligible hazardous secondary materials. 

The Office of Management and Budget (OMB), in their 2005 report on regulatory reform1

, 

recommended that EPA remove these constraints to achieve the full potential of the exclusion. 

Following additional data collection, review, and assessment, the Agency promulgated the 

emission-comparable fuel final rule (ECF final rule) in December 2008.2 This rule expanded the 

CFE to include hazardous secondary materials which, when burned in industrial boilers meeting 

certain conditions, would generate emissions comparable to those from burning fuel oil. The 

Agency is now finalizing the withdrawal of the ECF final rule. 

Analytical Background 

The Agency published an economic assessment in support of the ECF final rule.3 Under 

the assumption that all 50 states would adopt the rule, this assessment estimated net social 

benefits (cost savings) of $13.4 million per year, with an estimated 118,500 tons/year of ECF 

excluded. Our primary data source at the time of this analysis4 does not identify a management 

method code for wastes that are combusted in an incinerator and where that waste may have a 

heating value that is used beneficially in lieu of fossil or other fuels. As a result, we assumed that 

ECF burned in a hazardous waste incinerator is burned for destruction only (no energy value 

derived from the material), as reported by these facilities to EPA’s Biennial Reporting System 

under H040.5 

Upon further consideration, the Agency has determined that material qualifying as ECF 

but reported under hazardous waste management code H040 is likely to provide some level of 

heating value to incinerators. As a result, we developed a revised economic assessment that 

accounted for H040 heating value to incinerators. This revised assessment estimated benefits 

(cost savings) of $6.6 million per year with up to 117,100 tons of ECF excluded per year. This 

document6

 was developed as a supplementary assessment to the May 14, 2008 Assessment and 

should not be considered as the economic assessment in support of this withdrawal of the ECF 

Final Rule. 

 

1 Office of Management and Budget (OMB), Office of Information and Regulatory Affairs (OIRA), Regulatory 

Reform of the U.S. Manufacturing Sector – 2005

2 Expansion of RCRA Comparable Fuel Exclusion-Final Rule, December 19, 2008 (effective January 20, 2009). 3

 U.S. EPA, Assessment of the Potential Costs, Benefits, and Other Impacts of the Expansion of the RCRA 

Comparable Fuel Exclusion—Final Rule, May 14, 2008. 4

 USEPA, “2005 National Biennial Report” 

5

 U.S. EPA, 2005 Hazardous Waste Report Instructions and Forms, EPA Form 8700-13 A/B, October 2005. 6

 U.S. EPA, Revised Assessment of the Potential Costs, Benefits, and Other Impacts of the Expansion of the RCRA 

Comparable Fuel Exclusion-Final Rule, July 15, 2009 
3

PURPOSE

The purpose of this document is to present estimated impacts associated with the 

withdrawal of the December 19, 2008 ECF final rule. Estimated impacts include costs, benefits, 

small entity, and other impacts. Impacts presented in this paper are based on findings contained 

in the July 15, 2009 revised assessment document. 

BASELINE CHARACTERIZATION 

Proper baseline characterization is critical for the accurate assessment of impacts 

associated with any regulatory action. The proper baseline for this action should reflect the level 

of ECF final rule implementation from the date of this rule to the date of full and final 

implementation of the ECF rule. Full implementation of the ECF final rule was expected to 

occur over several months, if not years for those states and facilities projected to adopt the rule. 

METHODOLOGY AND FINDINGS 

This withdrawal of the ECF final rule seeks to reverse the newly promulgated exclusions 

to selected rules implementing subtitle C of the Resource Conservation and Recovery Act 

(RCRA). These exclusions are for energy-rich secondary materials which would otherwise be 

hazardous wastes. However, when burned under specified conditions, these ECF materials can 

be used for energy recovery in non hazardous boilers and would have emissions comparable to 

emissions from industrial boilers burning fuel oil. This document assesses the estimated impacts 

of the withdrawal based on a reversal of the benefits, as revised, for the ECF final rule. 

Based on our revised assessment for the ECF final rule, we find that this withdrawal 

could result in annual lost benefits (costs) to society of as much as $6.6 million dollars per year7

, 

with up to 117,100 tons/year of ECF moving back under full RCRA Subtitle C jurisdiction. 

However, due to baseline uncertainty, the actual impact of this action could range from 

negligible to $6.6 million, with anywhere from negligible to 117,100 tons/year of material 

diverted away from ECF. The low end of the range assumes little or no implementation of the 

ECF rule. Actual impacts of this action are likely to fall very near the low end of the range due 

to the anticipated slow implementation of the ECF final rule. 

This withdrawal is expected to result in no discernable impacts to human health and the 

environment. 

 

7

 The revised assessment also conducted a sensitivity analysis assuming an alternative average Btu level derived 

from ECF burned in incinerators. This sensitivity analysis indicated total ECF final rule benefits of approximately 

$10.6 million per year. 
4

SMALL ENTITY IMPACTS 

The May 14, 2008 economic assessment identified 34 facilities projected to take 

advantage of the ECF final rule (see Appendix E). Based on the corporate ownership of these 

facilities, one is confirmed as a small business based on the Small Business Administration size 

standards.8

 The size category of one other facility is undetermined. All other facilities are 

owned by large businesses or the federal government (e.g., DOE). For the one identified small 

business and the one of undetermined size, impacts to these companies could be up to a 

maximum one percent of gross annual revenues. This impact estimate is based on the average 

annual gross revenues for the NAICS category (2002 Census data) and the average cost savings 

per generator, as reported in Exhibit 15 of the revised assessment. This impact finding assumes 

both “small businesses” have fully implemented the ECF final rule and would experience cost 

increases as a result of this withdrawal. However, as discussed above, we anticipate that, as of 

the projected date of this withdrawal, few if any facilities are likely to have fully implemented 

the exclusion. As a result, actual impacts to the identified entities are likely to be negligible. 

EQUITY CONSIDERATIONS AND OTHER IMPACTS: 

Regulatory Planning and Review: Under Executive Order 12866 [58 FR 51735 (October 

4, 1993)], the Agency, in conjunction with the Office of Management and Budget (OMB) Office 

of Information and Regulatory Affairs (OIRA), must determine whether a regulatory action is 

“significant” and therefore subject to OMB review and the full requirements of the Executive 

Order. Pursuant to the terms of the Order, this final rule is not a significant action and therefore 

has not been submitted to OMB for review. 

This final withdrawal of the ECF final rule is expected to have no discernable impacts in 

regard to the following considerations: 

Executive Order 12898, “Federal Actions to Address Environmental Justice in Minority 

Populations and Low-Income Populations” 

Executive Order 13045: “Protection of Children from Environmental Health Risks and 

Safety Risks” 

Executive Order 13175: “Consultation and Coordination with Indian Tribal 

Governments” 

Executive Order 13132, “Federalism” 

Executive Order 12630, “Government Actions and Interference with Constitutionally 

Protected Property Rights” 

 

8

 http://www.sba.gov/idc/groups/public/documents/sba_homepage/serv_sstd_tablepdf.pdf
5

Executive Order 13211, “Actions Concerning Regulations that Affect Energy Supply, 

Distribution, or Use” 

Executive Order 12988, “Civil Justice Reform” 

Executive Order 13352, “Facilitation of Cooperative Conservation” 

 

The Unfunded Mandates Reform Act (UMRA),