33712 Federal Register / Vol. 75, No. 114 / Tuesday, June 15, 2010 / Rules and Regulations 

I. National Technology Transfer and 

Advancement Act 

Section 12(d) of the National 

Technology Transfer and Advancement 

Act of 1995 (‘‘NTTAA’’), Public Law No. 

104–113, section 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 

action does not involve technical 

standards. Therefore, EPA did not 

consider the use of any voluntary 

consensus standards. 

J. Executive Order 12898: Federal 

Actions To Address Environmental 

Justice in Minority Populations and Low 

Income Populations 

Executive Order 12898 (59 FR 7629) 

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 

determined that this 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. 

K. Congressional Review Act 

The Congressional Review Act (CRA), 

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 the 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 sixty days from the date 

of publication in the Federal Register if 

no adverse comment is received. 

List of Subjects in 40 CFR Part 228 

Environmental protection, Water 

pollution control. 

Authority: This action is issued under the 

authority of Section 102 of the Marine 

Protection, Research, and Sanctuaries Act, 33 

U.S.C. 1401, 1411, 1412. 

Dated: June 3, 2010. 

Dennis J. McLerran, 

Regional Administrator, Region 10. 

■ For the reasons set out in the 

preamble, EPA amends chapter I, title 

40 of the Code of Federal Register as 

follows: 

PART 228—[AMENDED] 

■ 1. The authority citation for part 228 

continues to read as follows: 

Authority: 33 U.S.C. 1412 and 1418. 

■ 2. Section 228.15 is amended by 

revising paragraphs (n)(3) and (n)(4) to 

read as follows: 

§ 228.15 Dumping sites designated on a 

final basis. 

* * * * * 

(n) * * * 

(3) Coos Bay, OR Dredged Material Site 

F 

(i) Location: 43°22′54.8887′′ N., 

124°19′28.9905′′ W.; 43°21′32.8735′′ N., 

124°20′37.7373′′ W.; 43°22′51.4004′′ N., 

124°23′32.4318′′ W.; 43°23′58.4014′′ N., 

124°22′35.4308′′ W. (NAD 83). 

(ii) Size: 4.45 kilometers long and 2.45 

kilometers wide. 

(iii) Depth: Ranges from 6 to 51 

meters. 

(iv) Primary Use: Dredged material 

determined to be suitable for ocean 

disposal. 

(v) Period of Use: Continuing Use. 

(vi) Restriction: Disposal shall be 

limited to dredged material determined 

to be suitable for unconfined disposal; 

Disposal shall be managed by the 

restrictions and requirements contained 

in the currently-approved Site 

Management and Monitoring Plan 

(SMMP); Monitoring, as specified in the 

SMMP, is required. 

(4) Coos Bay, OR Dredged Material Site 

H 

(i) Location: 43°23′53′′ N., 124°22′48′′ 

W.; 43°23′42′′ N., 124°23′01′′ W.; 

43°24′16′′ N., 124°23′26′′ W.; 43°24′05′′ 

N., 124°23′38′′ W. 

(ii) Size: 0.13 square nautical mile. 

(iii) Depth: Averages 55 meters. 

(iv) Primary Use: Dredged material. 

(v) Period of Use: Continuing use. 

(vi) Restriction: Disposal shall be 

limited to dredged material in the Coos 

Bay area of type 2 and 3, as defined in 

the site designation final EIS. 

* * * * * 

[FR Doc. 2010–14242 Filed 6–14–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 261 

[EPA–HQ–RCRA–2005–0017; FRL–9160–9] 

RIN 2050–AG57 

Withdrawal of the EmissionComparable Fuel Exclusion Under 

RCRA 

AGENCY: Environmental Protection 

Agency (EPA). 

ACTION: Final rule. 

SUMMARY: This final action withdraws 

the conditional exclusion from 

regulations promulgated on December 

19, 2008 under subtitle C of the 

Resource Conservation and Recovery 

Act (RCRA) for so-called Emission 

Comparable Fuel (ECF). These are fuels 

produced from hazardous secondary 

materials which, when burned in 

industrial boilers under specified 

conditions, generate emissions that are 

comparable to emissions from burning 

fuel oil in those boilers. EPA is 

withdrawing this conditional exclusion 

because the Agency has concluded that 

ECF is more appropriately classified as 

a discarded material and regulated as a 

hazardous waste. The exclusions for 

comparable fuel and synthesis gas fuel 

are not addressed or otherwise affected 

by this final rule. 

DATES: This final rule is effective June 

15, 2010. 

ADDRESSES: The official public docket is 

identified by Docket ID No. EPA–HQ– 

RCRA–2005–0017. All documents in the 

docket are listed in the http:// 

www.regulations.gov index. Although 

listed in the index, some information is 

not publicly available, e.g., CBI or other 

information whose disclosure is 

restricted by statute. Certain other 

material, such as copyrighted material, 

will be publicly available only in hard 

copy. Publicly available docket 

materials are available either 

electronically in http:// 

www.regulations.gov or in hard copy at 

the RCRA Docket, EPA/DC, EPA West, 

Room 3334, 1301 Constitution Ave., 

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Federal Register / Vol. 75, No. 114 / Tuesday, June 15, 2010 / Rules and Regulations 33713 

1See 73 FR 77954 (December 19, 2008). 

2See 63 FR 33782 (June 19, 1998). 

3See 73 FR at 77963–64. 

NW., Washington, DC. The Public 

Reading Room is open from 8:30 a.m. to 

4:30 p.m., Monday through Friday, 

excluding legal holidays. The telephone 

number for the Public Reading Room is 

(202) 566–1744, and the telephone 

number for the RCRA Docket is (202) 

566–0270. 

FOR FURTHER INFORMATION CONTACT: 

Mary Jackson, Materials Recovery and 

Waste Management Division, Office of 

Resource Conservation and Recovery, 

Mailcode: 5302P, Environmental 

Protection Agency, 1200 Pennsylvania 

Ave., NW., Washington, DC 20460; 

telephone number: (703) 308–8453; fax 

number: (703) 308–8433; e-mail address: 

jackson.mary@epa.gov. 

SUPPLEMENTARY INFORMATION: 

General Information 

A. Does this action apply to me? 

Categories and entities potentially 

affected by this action include: 

EXAMPLE OF POTENTIALLY AFFECTED

ENTITIES

NAICS 

code Industry description 

3241 .. Petroleum and Coal Products Manufacturing. 

3251 .. Basic Chemical Manufacturing. 

3252 .. Resin, Synthetic Rubber, and Artificial Synthetic Fibers and Filaments Manufacturing. 

3254 .. Pharmaceutical and Medicine Manufacturing. 

3255 .. Paint, Coating, and Adhesive Manufacturing. 

3259 .. Other Chemical Product and Preparation Manufacturing. 

3273 .. Cement Manufacturing. 

4884 .. Support Activities for Road Transportation. 

5614 .. Business Support Services. 

5622 .. Waste Treatment and Disposal. 

9281 .. National Security and International 

Affairs. 

This table is not intended to be 

exhaustive, but rather provides a guide 

for readers regarding entities likely to be 

impacted by this action. This table lists 

examples of the types of entities EPA is 

aware of that could potentially be 

regulated by this action. Other types of 

entities not listed could also be affected. 

To determine whether your facility, 

company, business, organization, etc., is 

affected by this action, you should 

examine the applicability criteria in this 

final rule. If you have any questions 

regarding the applicability of this action 

to a particular entity, consult the person 

listed in the preceding FOR FURTHER

INFORMATION CONTACT section. 

B. Docket Copying Costs 

You may copy a maximum of 100 

pages from any regulatory docket at no 

charge. Additional copies are 15 cents/ 

page. 

C. How do I obtain a copy of this 

document and other related 

information? 

In addition to being available in the 

docket, an electronic copy of today’s 

final rule will also be available on the 

Internet. Following the Administrator’s 

signature, a copy of this document will 

be posted at http://www.epa.gov/ 

hwcmact. This Web site also provides 

other information related to the 

NESHAP for hazardous waste 

combustors. 

D. Index of Contents 

The information presented in this 

preamble is organized as follows: 

I. Statutory Authority 

II. Background 

A. What is the intent of the rule? 

B. Who is affected by the rule? 

III. Final Rule 

IV. State Authority 

A. Applicability of the Rule in Authorized 

States 

B. Effect on State Authorization 

V. Statutory and Executive Order Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

B. Paperwork Reduction Act 

C. Regulatory Flexibility Act 

D. Unfunded Mandates Reform Act 

E. Executive Order 13132: Federalism 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

I. National Technology Transfer and 

Advancement Act 

J. Executive Order 12898: Federal Actions 

To Address Environmental Justice in 

Minority Populations and Low-Income 

Populations 

K. Congressional Review Act 

I. Statutory Authority 

This regulation is promulgated under 

the authority of sections 1004 and 2002 

of the Solid Waste Disposal Act of 1970, 

as amended by the Resource 

Conservation and Recovery Act of 1976 

(RCRA), as amended by the Hazardous 

and Solid Waste Amendments of 1984 

(HSWA), 42 U.S.C. 6903 and 6912. 

II. Background 

A. What is the intent of the rule? 

This rule withdraws the conditional 

exclusion from regulation under subtitle 

C of RCRA for Emission Comparable 

Fuel, as codified at § 261.38.1 The 

conditional exclusion stated that 

hazardous secondary materials that 

meet all of the hazardous constituent 

specifications applicable to comparable 

fuel, except concentration limits for 

oxygenates and hydrocarbons, and that 

are stored and burned under prescribed 

conditions, are not discarded and, thus, 

are not solid wastes. The fundamental 

premise of the ECF rule is that ECF is 

no more hazardous than burning fuel 

oil, because combustion of this material 

will have comparable emissions. 

However, to ensure that the material 

does not pose greater risks, EPA felt 

compelled to promulgate a very detailed 

set of conditions—the equivalent of a 

detailed regulatory scheme—for both 

the storage and combustion of ECF. As 

discussed in the proposed rule, 

(Withdrawal of the ECF Exclusion 

Proposed Rule (74 FR 64643, December 

8, 2009)), the existing subtitle C 

permitting process provides for the 

necessary review on the operation of the 

combustion units and the storage units 

to assure that the appropriate storage 

and combustion conditions are met. 

This rule does not affect the 

exclusions for comparable fuel and 

synthesis gas fuel that were 

promulgated in 1998 2 (also codified in 

§ 261.38). In addition, this rule does not 

affect the clarifications and revisions to 

the conditions for comparable fuel that 

EPA promulgated concurrently with the 

ECF exclusion.3

B. Who is affected by the rule? 

Entities that generate, burn, and store 

ECF would be potentially affected by 

this final rule. The rationale for the 

exclusion was that ECF is not a solid 

(and hazardous) waste as generated, and 

hence is not subject to the subtitle C 

regulations. Under today’s rule, ECF is 

again classified as a hazardous waste, 

and all entities managing such 

hazardous secondary materials are again 

subject to all applicable subtitle C 

hazardous waste standards. Since the 

ECF exclusion was promulgated in 

December 2008 and became effective in 

January 2009, and since we are not 

aware that any States have adopted or 

applied for authorization for this rule, 

we would expect that very few facilities, 

if any, were managing hazardous 

secondary materials pursuant to this 

rule. 

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33714 Federal Register / Vol. 75, No. 114 / Tuesday, June 15, 2010 / Rules and Regulations 

4Please note that this condition applies 

prospectively to generators that newly claim the 

comparable fuel exclusion after December 19, 2008 

and to generators that must submit a revised 

notification after December 19, 2008 because of a 

substantive change in the information required by 

the notice. 

III. Final Rule 

On December 8, 2009, EPA proposed 

to withdraw the conditional exclusion 

for ECF under 261.38, including the 

exclusion itself in § 261.38(a), the 

specifications and associated conditions 

applicable to ECF under § 261.38(a), the 

implementation conditions applicable 

to ECF under § 261.38(b), the storage 

and burning conditions for ECF under 

§ 261.38(c), the provisions for failure to 

comply with the conditions for the ECF 

exclusion under § 261.38(d)(2), the 

alternative storage conditions for ECF 

under § 261.38(e), and the notification 

of closure of an ECF storage unit under 

§ 261.38(f). EPA received no major 

comments on the proposed rule to 

withdraw the ECF exclusion, and 

therefore today’s action makes final, 

with no changes, the withdrawal of the 

conditional exclusion for ECF under 

§ 261.38, as previously described. (The 

one comment that EPA received on the 

proposal, along with EPA’s response to 

the comment are contained in the 

docket to today’s final rule.) Information 

on the intent and rationale of the 

exclusion can be found in the 

Withdrawal of the ECF Exclusion 

Proposed Rule (74 FR 64643, December 

8, 2009) and is part of the record for this 

final rule. 

As noted above, this rule does not 

affect the exclusions for comparable fuel 

or synthesis gas fuel, including the 

specifications and associated conditions 

for these materials under § 261.38(a), the 

implementation conditions applicable 

to these materials under § 261.38(b), and 

the provision for failure to comply with 

the conditions for exclusion of these 

materials under § 261.38(d)(1). 

Finally, today’s final rule does not 

affect the clarifications and revisions to 

the conditions for comparable fuel that 

EPA promulgated concurrently with the 

ECF exclusion; specifically: (1) 

Clarification that comparable fuel that is 

spilled or leaked and that no longer 

meets the conditions of the exclusion 

must be managed as a hazardous waste 

if it exhibits a hazardous waste 

characteristic or if it is otherwise a 

listed hazardous waste (§ 261.38(b)(15)); 

(2) clarification that comparable fuel 

tank systems and container storage units 

become subject to the RCRA hazardous 

waste facility standards if not cleaned of 

liquids and accumulated solids within 

90 days of ceasing operations as a 

comparable fuel storage unit 

(§ 261.38(b)(13)); (3) waiver of the RCRA 

closure requirements for tank systems 

and container storage units that were 

used only to store hazardous wastes that 

are subsequently excluded as 

comparable fuel (§ 261.38(b)(14)); (4) 

clarification that boiler residues, 

including bottom ash and emission 

control residue, from burning 

comparable fuel would be subject to 

regulation as hazardous waste if they 

exhibit a hazardous waste characteristic 

(§ 261.38(b)(12)); and (5) a condition 4

requiring that the one-time notice by the 

generator to regulatory officials must 

include an estimate of the average and 

maximum monthly and annual quantity 

of comparable fuel for which an 

exclusion is claimed 

(§ 261.38(b)(2)(i)(A)). 

IV. State Authority 

A. 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. Following 

authorization, EPA retains enforcement 

authority under sections 3008, 3013, 

and 7003 of RCRA, although authorized 

States have primary enforcement 

responsibility. The standards and 

requirements for State authorization are 

found at 40 CFR part 271. 

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. 

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. 

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 may, but are not required to, 

adopt Federal regulations, both HSWA 

and non-HSWA, that are considered less 

stringent than previous Federal 

regulations. 

B. Effect on State Authorization 

By removing the ECF provisions, 

while maintaining the more stringent 

conditions applicable to comparable 

fuel in today’s notice, it leads to final 

regulations that are considered to be 

more stringent than the current 

requirements; these provisions were not 

promulgated under the authority of 

HSWA. Therefore, States that have 

adopted the exclusion are required to 

modify their programs to remove the 

exclusion for ECF because they must 

conform to Federal regulations that are 

more stringent than the authorized State 

regulations. States that adopted the 

comparable fuel exclusion promulgated 

on June 19, 1998 and codified at 

§ 261.38, but that have not adopted the 

ECF exclusion, will still need to revise 

their programs to adopt the more 

stringent conditions applicable to 

comparable fuel (see 73 FR at 77963–64) 

that were promulgated concurrently 

with the ECF exclusion on December 19, 

2008. 

Section 271.21(e)(2) of EPA’s State 

authorization regulations (40 CFR part 

271) requires that States with final 

authorization modify their programs to 

reflect Federal program changes and 

submit the modifications to EPA for 

approval. The deadline by which the 

States will need to modify their 

programs is determined by the date of 

promulgation of a final rule in 

accordance with § 271.21(e)(2). Once 

EPA approves the modification, the 

State requirements would become RCRA 

subtitle C requirements. 

V. Statutory and Executive Order 

Reviews 

A. Executive Order 12866: Regulatory 

Planning and Review 

This action is not a ‘‘significant 

regulatory action’’ under the terms of 

Executive Order (EO) 12866 (58 FR 

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Federal Register / Vol. 75, No. 114 / Tuesday, June 15, 2010 / Rules and Regulations 33715 

5Assessment of the Potential Costs, Benefits, and 

Other Impacts of the Withdrawal of the EmissionComparable Fuel Exclusion Under RCRA—Final 

Rule, May 11, 2010. 

6USEPA, ‘‘Assessment of the Potential Costs, 

Benefits, and Other Impacts of the Expansion of the 

RCRA Comparable Fuel Exclusion-Final Rule,’’ May 

14, 2008. 

7http://www.sba.gov/idc/groups/public/ 

documents/sba_homepage/serv_sstd_tablepdf.pdf. 

8USEPA, ‘‘Revised Assessment of the Potential 

Costs, Benefits, and Other Impacts of the Expansion 

of the RCRA Comparable Fuel Exclusion-Final 

Rule,’’ July 15, 2009. 

51735, October 4, 1993) and is therefore 

not subject to review under the EO. Our 

impact assessment 5 suggests that lost 

benefits would be, at most, $6.6 million 

per year. If fewer States were to have 

adopted the December 2008 exclusion 

rule, the value of lost benefits would be 

smaller. 

B. Paperwork Reduction Act 

The information collection 

requirements in this final rule have been 

submitted for approval to the Office of 

Management and Budget (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 Collection Request 

(ICR) document prepared by EPA has 

been assigned EPA ICR number 1361.15. 

Withdrawing the ECF exclusion will 

result in an increase in the reporting 

and recordkeeping burden for ECF 

generators and burners, back to the level 

prior to promulgation of the exclusion. 

That is, under the ECF conditional 

exclusion, because ECF was no longer 

classified as a hazardous waste, the 

generator and burner were not required 

to comply with the paperwork, 

reporting, and recordkeeping 

requirements under the subtitle C 

hazardous waste regulations. However, 

ECF generators and burners were subject 

to an annual public reporting and 

recordkeeping burden for the collection 

of information required under the 

conditional exclusion. Thus, overall, the 

reporting and recordkeeping burden for 

ECF generators and burners resulted in 

a net annual reduction of 32,900 hours 

(assuming that all authorized States 

adopted the rule, which has not 

occurred) and a savings of $1.3 million 

in capital and operation and 

maintenance costs (based on the same 

assumption). Therefore, withdrawing 

the ECF conditional exclusion will 

result in a reporting and recordkeeping 

burden of 32,900 hours and a cost of 

$1.3 million in capital, and operation 

and maintenance costs, again assuming 

full adoption by authorized States. 

However, since we believe this has not 

occurred, the new burden would be 

significantly less. If authorized States 

have not adopted the rule, withdrawing 

the ECF conditional exclusion will not 

change the reporting and recordkeeping 

burden from what existed prior to 

promulgation of the conditional 

exclusion. OMB has previously 

approved the information collection 

requirements contained in the existing 

regulations at 40 CFR 261.38 under the 

provisions of the Paperwork Reduction 

Act, 44 U.S.C. 3501 et seq. and has 

assigned OMB control number 2050– 

0073. Burden is defined at 5 CFR 

1320.3(b). EPA has established a public 

docket for this final rule, which 

includes the ICR prepared in support of 

the final action. The Docket ID number 

is EPA–HQ–RCRA–2005–0017. 

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. 

C. 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. 

For purposes of assessing the impacts 

of today’s rule on small entities, small 

entity is defined as: (1) A small 

business, as defined by 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 today’s final rule on small 

entities, I certify that this action will not 

have a significant economic impact on 

a substantial number of small entities. 

The small entities directly regulated by 

this final rule are facilities that generate, 

burn on-site, and store ECF. 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. A 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. 

We have determined that this final 

rule is projected to result in increased 

costs to companies that may have 

started to use the conditional exclusion, 

as identified in the ECF Final Rule, 

although we suspect that very few 

facilities, if any, have actually begun to 

comply with this rule. However, any 

cost impacts to potentially affected 

small entities are not expected to be 

significant. The May 14, 2008 economic 

assessment 6 identified 34 facilities 

projected to take advantage of the ECF 

final rule (see Appendix E to the 

economic assessment document). Based 

on the corporate ownership of these 

facilities, one facility was confirmed as 

a small business based on the Small 

Business Administration size 

standards.7 The size category of one 

other facility was undetermined. All 

other facilities were found to be 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 was estimated to be up to a 

maximum of one percent of gross 

annual revenues. This impact estimate 

was 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.8

This impact finding assumes both 

‘‘small businesses’’ have fully 

implemented the ECF final rule and 

would therefore experience cost 

increases as a result of this withdrawal. 

However, as discussed above, we 

suspect that very few facilities, if any, 

have begun to comply with this rule. 

D. Unfunded Mandates Reform Act 

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. Total annual cost impacts of 

this action are not expected to exceed 

$6.6 million. Thus, this final rule is not 

subject to the requirements of sections 

202 or 205 of UMRA. 

This rule is also not subject to the 

requirements of section 203 of UMRA 

because it contains no regulatory 

requirements that might significantly or 

uniquely affect small governments. No 

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33716 Federal Register / Vol. 75, No. 114 / Tuesday, June 15, 2010 / Rules and Regulations 

small governments are known to own or 

manage any of the potentially affected 

entities. 

E. Executive Order 13132: Federalism 

This action 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. This rulemaking 

primarily and directly affects generators 

and burners of ECF. There are no State 

and local government bodies that would 

incur direct compliance costs by this 

rulemaking. Thus, Executive Order 

13132 does not apply to this final rule. 

F. Executive Order 13175: Consultation 

and Coordination With Indian Tribal 

Governments 

This action does not have Tribal 

implications, as specified in Executive 

Order 13175 (65 FR 67249, November 9, 

2000). This final rule will neither 

impose substantial direct compliance 

costs on Tribal governments nor 

preempt Tribal law. Thus, Executive 

Order 13175 does not apply to this 

action. 

Although Executive Order 13175 does 

not apply to this action, EPA 

specifically solicited comment on the 

proposed action from Tribal officials. 

No comments were received. 

G. Executive Order 13045: Protection of 

Children From Environmental Health 

Risks and Safety Risks 

This action is not subject to EO 13045 

(62 FR 19885, April 23, 1997) because 

it is not economically significant as 

defined in EO 12866, and because the 

Agency does not believe the 

environmental health or safety risks 

addressed by this final rule present a 

disproportionate risk to children. This 

action’s health and risk assessments are 

contained in the original document(s) 

that established these materials as 

hazardous waste. 

H. Executive Order 13211: Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use 

This action is not subject to Executive 

Order 13211 (66 FR 28355 (May 22, 

2001)), because it is not a significant 

regulatory action under Executive Order 

12866. 

I. National Technology Transfer and 

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. 

Because EPA is withdrawing the 

conditional exclusion for ECF under 

§ 261.38, EPA is not using any voluntary 

consensus standards. 

J. 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 

increases the level of environmental 

protection for all affected populations 

without having any disproportionately 

high and adverse human health or 

environmental effects on any 

population, including any minority or 

low-income population. This action 

reverses the ECF final rule thereby 

reinstating the more stringent 

management requirements for these 

materials. 

K. 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 June 15, 2010. 

List of Subjects in 40 CFR Part 261 

Environmental protection, Hazardous 

waste, Recycling, Reporting and 

recordkeeping requirements. 

Dated: June 7, 2010. 

Lisa P. Jackson, 

Administrator. 

■ 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 

■ 1. The authority citation for part 261 

continues to read as follows: 

Authority: 42 U.S.C. 6903, 6912(b), 6925. 

■ 2. Section 261.4 is amended by 

revising paragraph (a)(16) to read as 

follows: 

§ 261.4 Exclusions. 

(a) * * * 

(16) Comparable fuels or comparable 

syngas fuels that meet the requirements 

of § 261.38. 

* * * * * 

■ 3. Section 261.38 is revised to read as 

follows: 

§ 261.38 Exclusion of comparable fuel and 

syngas fuel. 

(a) Specifications for excluded fuels. 

Wastes that meet the specifications for 

comparable fuel or syngas fuel under 

paragraphs (a)(1) or (a)(2) 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) 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; 

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(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. 

(3) Blending to meet the 

specifications. (i) 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)(3)(ii) of this section: 

(ii) Blending to meet the viscosity 

specification. A hazardous waste 

blended to meet the viscosity 

specification for comparable fuel shall: 

(A) 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; 

(B) Be blended at a facility that is 

subject to the applicable requirements of 

parts 264, 265, or 267 or § 262.34 of this 

chapter; and 

(C) Not violate the dilution 

prohibition of paragraph (a)(6) of this 

section. 

(4) Treatment to meet the comparable 

fuel specifications. (i) A hazardous 

waste may be treated to meet the 

specifications for comparable fuel set 

forth in paragraph (a)(1) of this section 

provided the treatment: 

(A) Destroys or removes the 

constituents 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, 265, or 267, or § 262.34 of this 

chapter; and 

(C) Does not violate the dilution 

prohibition of paragraph (a)(6) 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. 

(5) 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)(2) of this section provided 

the processing: 

(A) Destroys or removes the 

constituents 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, 265, or 267, or § 262.34 of this 

chapter or is an exempt recycling unit 

pursuant to § 261.6(c); and 

(C) Does not violate the dilution 

prohibition of paragraph (a)(6) 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. 

(6) Dilution prohibition. 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)(2) of 

this section for syngas. 

(b) Implementation.—(1) General.—(i) 

Wastes that meet the specifications 

provided by paragraph (a) of this section 

for 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; 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 complying with the conditions of 

this section and keeping 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 Code(s) 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)(C) 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 comparable 

fuels 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) If there is a substantive change in 

the information provided in the notice 

required under this paragraph, the 

generator must submit a revised 

notification. 

(C) Excluded 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 fuel or for revised 

notices as required by paragraph 

(b)(2)(i)(B) 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. The exclusion 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: 

(i) Industrial furnaces as defined in 

§ 260.10 of this chapter; 

(ii) Boilers, as defined in § 260.10 of 

this chapter, that are further defined as 

follows: 

(A) Industrial boilers located on the 

site of a facility engaged in a 

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manufacturing process where 

substances are transformed into new 

products, including the component 

parts of products, by mechanical or 

chemical processes; or 

(B) Utility boilers used to produce 

electric power, steam, heated or cooled 

air, or other gases or fluids for sale; 

(iii) Hazardous waste incinerators 

subject to regulation under subpart O of 

parts 264 or 265 of this chapter and 

applicable CAA MACT standards. 

(iv) Gas turbines used to produce 

electric power, steam, heated or cooled 

air, or other gases or fluids for sale. 

(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) Excluded fuel sampling and 

analysis. (i) General. For wastes for 

which an exclusion is claimed under 

the specifications provided by 

paragraphs (a)(1) or (a)(2) of this section, 

the generator of the waste 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 waste; 

(C) Constituents introduced into the 

process that generates the waste; or 

(D) Constituents that are byproducts 

or side reactions to the process that 

generates the waste. 

Note to paragraph (b)(5): 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 excluded 

fuel above the exclusion specifications. 

(ii) Use of process knowledge. For 

each waste 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)(5)(i) of this section and must test to 

determine that all of the constituent 

specifications of paragraphs (a)(1) and 

(a)(2) of this section, as applicable, have 

been met. 

(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 

preempts, overrides or otherwise 

negates the provision in § 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 asgenerated. 

(B) If hazardous waste is blended to 

meet the kinematic viscosity 

specification for comparable fuel, the 

generator shall: 

(1) Analyze the hazardous waste asgenerated 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 

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properties in a manner than may affect 

conformance with the specifications. 

(6) (Reserved) 

(7) Speculative accumulation. 

Excluded fuel must not be accumulated 

speculatively, as defined in 

§ 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)(5)(i) 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)(3) and (a)(4) 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. Prior to submitting a 

notification to the State and Regional 

Directors, a generator of excluded fuel 

who intends to ship the excluded fuel 

off-site for burning must obtain a onetime written, signed statement from the 

burner: 

(i) 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; 

(ii) Identifying the name and address 

of the facility that will burn the 

excluded fuel; and 

(iii) 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 

the full RCRA hazardous waste 

management requirements. 

(12) Regulatory status of boiler 

residues. Burning excluded fuel that 

was otherwise a hazardous waste listed 

under §§ 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, 

267, 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 §§ 261.21 

through 261.24 or if the fuel were 

otherwise a hazardous waste listed 

under §§ 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 §§ 261.21 

through 261.24; or 

(B) The fuel were otherwise a 

hazardous waste listed under §§ 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 § 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 §§ 261.21 through 261.24 or 

if the fuel were otherwise a hazardous 

waste listed in §§ 261.31 through 

261.33. 

(ii) For excluded fuel that would have 

otherwise been a hazardous waste listed 

in §§ 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) Failure to comply with the 

conditions of the exclusion. An 

excluded fuel loses its exclusion if any 

person managing the fuel fails to 

comply with the conditions of the 

exclusion under this section, and the 

material must be managed as 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). 

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[FR Doc. 2010–14097 Filed 6–14–10; 8:45 am] 

BILLING CODE 6560–50–C 

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 300 

[EPA–HQ–SFUND–1999–0013; FRL–9162–3] 

National Oil and Hazardous 

Substances Pollution Contingency 

Plan; National Priorities List: Partial 

Deletion of the Many Diversified 

Interests, Inc. Superfund Site 

AGENCY: Environmental Protection 

Agency. 

ACTION: Direct final rule. 

SUMMARY: The Environmental Protection 

Agency (EPA) Region 6 is publishing a 

direct final Notice of Deletion of the 

soils of Operable Unit 1 and the 

underlying ground water of the 

approximately 8-acre western portion of 

Operable Unit 1 of the Many Diversified 

Interests, Inc. (MDI) Superfund Site 

located in Houston, Texas (Harris 

County), from the National Priorities 

List (NPL). The NPL, promulgated 

pursuant to Section 105 of the 

Comprehensive Environmental 

Response, Compensation, and Liability 

Act (CERCLA) of 1980, as amended, is 

an appendix of the National Oil and 

Hazardous Substances Pollution 

Contingency Plan (NCP). This direct 

final partial deletion is being published 

by EPA with the concurrence of the 

State of Texas, through the Texas 

Commission on Environmental Quality, 

because EPA has determined that all 

appropriate response actions at these 

identified parcels under CERCLA have 

been completed. However, this partial 

deletion does not preclude future 

actions under Superfund. 

This partial deletion pertains to the 

soils of Operable Unit 1 and the 

underlying ground water of the 

approximately 8-acre western portion of 

Operable Unit 1 of the MDI Superfund 

Site. Operable Unit 2, Operable Unit 3, 

and the ground water underlying the 

remainder of Operable Unit 1 will 

remain on the NPL and are not being 

considered for deletion as part of this 

action. 

DATES: This direct final partial deletion 

is effective August 16, 2010 unless EPA 

receives adverse comments by July 15, 

2010. If adverse comments are received, 

EPA will publish a timely withdrawal of 

the direct final partial deletion in the 

Federal Register informing the public 

that the partial deletion will not take 

effect. 

ADDRESSES: Submit your comments, 

identified by Docket ID No. EPA–HQ– 

SFUND–1999–0013, by one of the 

following methods: 

• http://www.regulations.gov: Follow 

internet on-line instructions for 

submitting comments. 

• E-mail: Rafael Casanova, 

casanova.rafael@epa.gov. 

• Fax: 214–665–6660. 

• Mail: Rafael A. Casanova; U.S. 

Environmental Protection Agency, 

Region 6; Superfund Division (6SF–RA); 

1445 Ross Avenue, Suite 1200; Dallas, 

Texas 75202–2733. 

• Hand Delivery: U.S. Environmental 

Protection Agency, Region 6; 1445 Ross 

Avenue, Suite 700; Dallas, Texas 75202– 

2733; Contact: Rafael A. Casanova (214) 

665–7437. Such deliveries are only 

accepted during the Docket’s normal 

hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

Instructions: Direct your comments to 

Docket ID No. EPA–HQ–AFUND–1999– 

0013. EPA’s policy is that all comments 

received will be included in the public 

docket without change and may be 

made available online at http:// 

www.regulations.gov, including any 

personal information provided, unless 

the comment includes information 

claimed to be Confidential Business 

Information (CBI) or other information 

whose disclosure is restricted by statute. 

Do not submit information that you 

consider to be CBI or otherwise 

protected through http:// 

www.regulations.gov or e-mail. The 

http://www.regulations.gov Web site is 


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