What is the rationale for excluding emission-comparable fuel from the definition of solid waste?
Emission-comparable fuel (ECF) meets the comparable fuel specifications in Table 1 to §261.38 (except the specifications for hydrocarbons and oxygenates), and the specifications for heating value and viscosity as generated. ECF has substantial fuel value and the hydrocarbon and oxygenate constituents provide substantial fuel value. In addition, emissions from burning ECF are comparable to emissions from burning fuel oil. Consequently, ECF is a fuel product when burned and stored under the conditions of the exclusion. Classifying such material as a fuel product and not as a waste promotes RCRA’s resource recovery goals without creating a risk from burning greater than those posed by fossil fuel. Under these circumstances, EPA has discretion to classify such material as a fuel product, and not as a waste. See generally Safe Foods and Fertilizer v. EPA, 350 F. 3d 1263, 1269-71 (D.C. Cir. 2004) (secondary materials physically comparable to virgin products which would be used in their place