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[Federal: U.S.] RCRA Compliance & waste management : EPA Withdraws RCRA Comparable Fuels and Gasification Exclusions

The U.S. Environmental Protection Agency (EPA) is removing two exclusions under the Resource Conservation and Recovery Act (RCRA), known as the comparable fuels exclusion and the gasification exclusion.  The action implements the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) vacaturs, which were ordered on June 27, 2014, to withdraw these exclusions.  This action is effective as of April 8, 2015.

Regulatory exclusions in response to two 2014 D.C. Circuit decisions

The EPA has removed two RCRA regulatory exclusions in response to two 2014 D.C. Circuit decisions, Sierra Club v. EPA, 755 F.3d 968 (D.C. Cir. 2014) and Natural Resources Defense Council v. EPA, 755 F.3d 1010 (D.C. Cir. 2014).  The Court held that the EPA’s determination to exclude certain fuel products and byproducts from RCRA regulation pursuant to 40 C.F.R. Section 261.4(a) was erroneous.

  • In 2008, the EPA promulgated the gasification rule, which pertained to residual materials from the petroleum refining process that are inserted into a refinery’s gasification unit.
  • Since this process produces synthesis gas, which can be used to recover energy, EPA decided to exclude these residual materials from hazardous waste regulation. 
  • However, the Court read RCRA Section 6924(q) to mean that such material must be regulated, and as a result the EPA has removed the gasification exclusion from 40 CFR 261.4(a)(12)(i).  Residual materials from this process are now regulated as hazardous waste under RCRA subtitle C.

RCRA regulations Reminder

In 1998, the EPA adopted the comparable fuels exclusion, which classified hazardous-derived fuels as a fuel product rather than solid waste, under 40 CFR 261.4(a)(16).  Under this exclusion, fuels made from hazardous waste were not solid waste if they were sufficiently comparable to commercial fossil fuels.

Again relying on RCRA Section 6924(q), the Court ruled that the EPA’s decision to exclude comparable fuels from RCRA regulations was erroneous.  In response, the EPA has removed this provision as well, along with 40 CFR 261.38, to make comparable fuels subject to the solid waste regulations under RCRA subtitle C.  

Red-on-line EHS Legal specialist


Response to Vacaturs of the Comparable Fuels Rule and the Gasification Rule, Federal Register, 80 FR 18777, April 8, 2015.

Sierra Club v. EPA, Case No. 08-1144, US Court of Appeals, District of Columbia, decided June 27, 2014 

Natural Resource Defense Council (NRDC) et al., v. EPA, Case No. 98-1379, US Court of Appeals, District of Columbia, decided June 27, 2014

Solid Waste Disposal Act of December 31, 2002 (Resource Conservation and Recovery Act)

Hazardous Waste Identification and Listing, 40 CFR Part 261

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