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Natural Resources Defense Council v. Environmental Protection Agency

ELR Citation: 44 ELR 20141
Nos. 98-1379, (D.C. Cir., 06/27/2014)

The D.C. Circuit vacated EPA's comparable fuels exclusion, which exempts all fuels deemed comparable to non-hazardous waste-derived fossil fuels from the requirements set forth in RCRA §3004(q). Section 3004(q) directs EPA to establish standards applicable to all facilities that produce, burn for energy recovery, or distribute/market fuels derived from specific listed hazardous waste. The exclusion, however, exempts "comparable fuels" from the §3004(q) mandate if they meet "specification levels comparable to fossil fuels for concentrations of hazardous constituents and for physical properties that affect burning,” such as heating value and viscosity. The exclusion also imposes notification requirements. But the exclusion is inconsistent with the plain language of §3004(q), which requires that EPA establish standards applicable to all fuel derived from hazardous waste. EPA argued that by setting criteria for exclusion from §3004(q), the exclusion itself is a “standard” within the meaning of the statute, but this theory was not part of EPA’s rationale when it promulgated the rule and is entirely post hoc. In sum, given the plain intent of Congress, EPA lacked discretion to create the comparable fuels exclusion to exempt from regulation fuels that are derived from a listed hazardous waste and therefore subject to mandatory regulation under §3004(q).