[Federal Register Volume 73, Number 245 (Friday, December 19, 2008)]
[Rules and Regulations]
[Pages 77954-78017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29956]
[[Page 77953]]
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Part IV
Environmental Protection Agency
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40 CFR Part 261
Expansion of RCRA Comparable Fuel Exclusion; Final Rule
Federal Register / Vol. 73, No. 245 / Friday, December 19, 2008 /
Rules and Regulations
[[Page 77954]]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 261
[EPA-HQ-RCRA-2005-0017; FRL-8753-4]
RIN 2050-AG24
Expansion of RCRA Comparable Fuel Exclusion
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: This final action adds a new exclusion to the rules
implementing subtitle C of the Resource Conservation and Recovery Act
(RCRA). The rule already provides exclusions for comparable fuels and
synthesis gas. These fuels are energy-rich hazardous secondary
materials which would otherwise be hazardous wastes, but which have the
same hazardous constituent concentrations as fossil fuels that would be
burned in their place. EPA is establishing a new category of excluded
fuel that has its own set of conditions, some of which overlap with the
comparable fuels exclusion. These newly excluded hazardous secondary
materials are called ``emission-comparable fuel'' (ECF). ECF is a
hazardous secondary material that, when generated, is handled in such a
way that it is not discarded in any phase of management, but rather is
handled as a valuable commodity. ECF meets all of the hazardous
constituent specifications (over 160) for comparable fuel, with the
exception of those for oxygenates and hydrocarbons (constituents which
contribute energy value to the fuel). The rule specifies conditions on
burning ECF which assure that emissions from industrial boilers burning
ECF are comparable to emissions from industrial boilers burning fuel
oil. The ECF exclusion also includes conditions for tanks and
containers storing ECF to assure that discard does not occur.
DATES: This final rule is effective January 20, 2009.
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., Confidential Business
Information (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., 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, Hazardous Waste
Minimization and Management Division, Office of Solid Waste, 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: [email protected].
SUPPLEMENTARY INFORMATION:
General Information
A. Does This Action Apply to Me?
Categories and entities potentially affected by this action
include:
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Examples of potentially regulated
Category NAICS code SIC code entities
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Any industry that generates or combusts 562 49 Waste Management and Remediation
hazardous waste as defined in the final rule. Services.
327 32 Non-mettalic Mineral Products
Manufacturing.
325 28 Chemical Manufacturing.
324 29 Petroleum and Coal Products
Manufacturing.
331 33 Primary Metals Manufacturing.
333 38 Machinery Manufacturing.
326 306 Plastic and Rubber Products
Manufacturing.
488, 561 49 Administration and Support
Services.
421 50 Scrap and waste materials.
422 51 Wholesale Trade, Non-durable
Goods, N.E.C.
512, 541, 812 73 Business Services, N.E.C.
512, 514, 541, 711 89 Services, N.E.C.
924 95 Air, Water and Solid Waste
Management.
336 37 Transportation Equipment
Manufacturing.
928 97 National Security.
334 35 Computer and Electronic Products
Manufacturing.
339 38 Miscellaneous Manufacturing.
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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
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 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
this rule will also be available on the Worldwide Web (WWW). Following
the Administrator's signature, a copy of this document will be posted
on the WWW at http://www.epa.gov/hwcmact. This Web site also provides
other information related to the NESHAP (National Emission Standards
for Hazardous Air Pollutants) for hazardous waste combustors.
D. Index of Contents
The information presented in this preamble is organized as follows:
[[Page 77955]]
Part One: Background
I. Statutory Authority
II. Background
A. What Is the Intent of the Rule?
B. Who Will Be Affected by This Rule?
C. What Is the Relationship Between This Rule and the Existing
Exclusion for Comparable Fuel?
Part Two: Summary of the Final Rule
I. What Is ECF?
II. What Are the Storage Conditions for ECF?
A. What Are the Conditions for Storage?
1. Discharge Prevention Conditions That Are Adopted From SPCC
Requirements
2. Containment Conditions That Are Adopted From Hazardous Waste
Storage Requirements
3. Emergency Procedure Conditions That Are Adopted From
Hazardous Waste Storage Requirements
4. Fugitive Air Emissions Conditions That Are Adopted From the
NESHAP for Organic Liquid Distribution, the NESHAP for Tanks, the
NESHAP for Containers, and the NESHAP for Equipment Leaks
B. What Are the Alternative Storage Conditions?
C. What Are the Other Storage Conditions?
1. Underground Storage of ECF Is Prohibited
2. What Are the Conditions for Closure of RCRA Storage Units
That Become ECF Storage Units?
3. What Are the Conditions for Closure of Storage Units?
4. What Are the Conditions for Management of Incompatible ECF
and Other Materials?
III. What Are the Conditions for ECF Burners?
A. What Types of Combustors May Burn ECF?
B. What Are the Operating Conditions for Burners?
IV. What Are the Recordkeeping, Notification, and Certification
Conditions?
A. Fuel Analysis Plans
B. Sampling and Analysis
C. Speculative Accumulation and Legitimacy
D. Notifications
1. ECF Generator Notification
2. ECF Burner Notifications
3. Notification of Closure of a Tank or a Container Storage Unit
E. Burner Certification
F. Recordkeeping
1. ECF Generator Recordkeeping Requirements
2. ECF Burner Recordkeeping Requirements
G. Transportation
H. Ineligible RCRA Hazardous Waste Codes
V. What Are the Consequences of Failure To Comply With a Condition?
VI. What Conditions Apply to Spills and Leaks?
VII. What Are the Clarifications and Revisions to the Existing
Conditions for Comparable Fuel?
Part Three: What Are the Major Changes Since Proposal?
I. What Are the Major Changes to the Emission-Comparable Fuel
Specification?
II. What Are the Major Changes to the Storage Conditions?
A. Storage in Containers Is Allowed
B. Alternative Storage Conditions Are Provided
C. Conditions To Control Fugitive Air Emissions From Tank
Systems Are Revised
D. Storage in Underground Storage Tanks Is Prohibited
III. What Are the Major Changes to the Burner Conditions?
A. What Types of Devices May Burn Emission-Comparable Fuel?
B. What Are the Changes to the Burner Conditions?
1. Comparable Fuel May Be Primary Fuel
2. The 50 Percent Primary Fuel Firing Rate Is Based on Heat or
Mass Input
3. A Feedrate Limit for Each ECF Constituent Is Established
4. Additional Operating Parameters Must Be Linked to the ECF
Automatic Feed Cutoff System
5. Burners Must Provide Operator Training
IV. What Are the Major Changes to the Implementation Conditions?
A. What Are the Changes to the Analysis Plan Provisions for
Burners?
B. What Are the Changes to the Notification Provisions?
1. Initial Notification
2. Notification of Closure of a Tank or a Container Storage Unit
C. What Are the Changes to the Consequences of Failure to Comply
With a Condition of the Exclusion?
Part Four: What Are the Responses to Major Comments?
I. Scope of the ECF Exclusion
II. Legal Rationale for the ECF Exclusion
A. EPA's Interpretation of the Solid Waste Disposal Act (SWDA)
1. Hazardous Waste Burned for Energy Recovery
2. SWDA Sec. 3004(q)
3. Impact of the Exclusion on SWDA Sec. 3001(f)
4. Factors for Use in Determining an Exclusion
B. EPA's Use of Safe Foods and Fertilizers (SFAF) To Justify the
Exclusion
1. The Term ``Discarded'' With Regard to Hazardous Waste Burned
for Energy Recovery
2. Application of the Identity Principle to ECF
3. Need for a Risk Assessment
4. Applicability of the Market-Participation Theory to ECF
III. Conditions for Storage of ECF
A. Storage in Containers
B. Alternative Hazardous Waste Storage Conditions
C. Air Emission Controls for Tanks
D. Definitions of Tank Cars and Tank Trucks
E. Adequacy of the ECF Storage Conditions
F. Management of Residues in Tanks
G. Closure Conditions for ECF Tanks
H. Financial Assurance for ECF Tanks
I. Waiver of RCRA Closure Requirements for Tanks Storing
Hazardous Wastes That Are Subsequently Excluded ECF
IV. Rationale for Comparable Emissions
A. Appropriate Benchmark Fuel for ECF Emissions
B. Impact of ECF Exclusion on Emissions of Air Pollutants
C. Assurance of 99.99% DRE of ECF Constituents
D. Use of Available Emissions to Document ECF Emissions Will Be
Comparable to Fuel Oil Emissions
1. Use of Hazardous Waste Boiler Emissions Data
2. Concern That EPA's Oil Emissions Data Base Has Emissions Data
for Only 12 of 37 ECF Constituents
3. Concern That EPA's Oil Emissions Data Base Is Too Sparse To
Establish Benchmarks
4. Concern That EPA Did Not Evaluate the Oil Emissions Data Base
for Probable Outliers
5. Concern That the Level of Detection Is Needed for Nondetect
Data Points in the Hazardous Waste Boiler Data Base
6. Concern Regarding the Concentration of ECF Constituents in
Hazardous Waste Boiler Fuels
7. Concern Whether EPA Has Adequately Considered PIC Emissions
V. Conditions for Burning ECF
A. Applicability of ECF Exclusion to Other Combustors
B. EPA's Approach To Identify Feedrate Limits for ECF
Constituents
C. Use of WMPT To Rank ECF Constituents According to Hazard
Potential
D. Request To Expand Primary Fuel Condition
E. Minimum Primary Fuel Firing Rate
F. Request To Increase the Minimum 8,000 Btu/lb Requirement for
ECF
G. Request for Periodic CO Monitoring
H. Request That Additional Operating Parameters Should Be Linked
to the ECF Automatic Feed Cutoff System
I. Request That Burner Conditions Should Not Apply to MEK and
Isobutanol
VI. Implementation of the ECF Exclusion
A. Reasonable Efforts To Ensure Compliance With the Conditions
of Exclusion by Off-Site, Unaffiliated Burners
1. Reasonable Efforts Provision in the Final Rule
2. Consequence of Failure To Comply With a Condition of
Exclusion
3. Reasonable Efforts
B. Fuel Analysis Plans
1. Use of Process Knowledge
2. Quarterly Waste Analysis Testing
C. Intermediate Handlers
VII. Costs and Benefits of the ECF Exclusion
A. Concern That the Economic Analysis Did Not Account for the
Increased Risk Likely To Result From the Exclusion
B. Impacts Associated With Hazardous Waste Currently Blended
With ECF
C. Concern That the Economic Analysis Underestimates the
Quantity of Hazardous Secondary Materials Qualifying for the
Exclusion
D. Concern That the Economic Analysis Underestimates the
Percentage of
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Qualifying Hazardous Secondary Materials That Would Be Excluded From
RCRA Subtitle C Regulation Under the Exclusion
E. Concern That the Economic Analysis Does Not Consider Joint
Impacts With the Proposed Definition of Solid Waste Rule
F. Concern That the Economic Analysis Underestimates the Value
of Coal
G. Concern That the Economic Analysis Overestimates the Per Unit
Cost of Incineration
H. Concern That EPA Overestimates the Price That ECF Would
Command on the Open Market
I. Concern That Revenue Losses for Commercial Incinerators and
Cement Kilns Are Not Reflected in EPA's Estimates of the Social
Costs (Savings) of the Rule
J. Concern That EPA Has Not Evaluated the Adverse Consequences
to National Waste Management Networks That Might Result if Some
States Adopt the Rule and Others Do Not
Part Five: State Authority
I. Applicability of the Rule in Authorized States
II. Effect on State Authorization
Part Six: Costs and Benefits of the Final Rule
I. Introduction
II. Baseline Specification
III. Analytical Methodology, Primary Data Sources, and Key
Assumptions
IV. Key Analytical Limitations
V. Findings
Part Seven: Statutory and Executive Order Reviews
I. Executive Order 12866: Regulatory Planning and Review
II. Paperwork Reduction Act
III. Regulatory Flexibility Act
IV. Unfunded Mandates Reform Act of 1995
V. Executive Order 13132: Federalism
VI. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
VII. E.O. 13045 ``Protection of Children From Environmental Health
Risks and Safety Risks''
VIII. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
IX. National Technology Transfer Advancement Act
X. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
XI. Congressional Review Act
Part One: Background
I. Statutory Authority
These regulations are 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?
Section 261.38 states that hazardous secondary materials (i.e.,
spent materials, sludges and byproducts) which have fuel value and
whose hazardous constituent levels are comparable to those found in
fuel oil that could be burned in their place are not solid wastes, and
hence not hazardous wastes. These materials are called comparable
fuels. This rule adds an additional group of materials to the
exclusions in section 261.38. These materials are hazardous secondary
materials that, as generated, are not discarded, but are treated as
valuable commodities through all phases of management through operation
of conditions on their storage and burning, and based on their
substantial physical identity with fuel oil. These hazardous secondary
materials must meet all of the hazardous constituent specifications for
comparable fuel except those for oxygenates and hydrocarbons,
constituents with high energy content \1\ that contribute to the energy
value of these materials. These excluded fuels are termed ``emission-
comparable fuel'' (``ECF'') because the emissions from an industrial
boiler burning these hazardous secondary materials are comparable to
the emissions from an industrial boiler burning fuel oil, the fossil
fuel for which ECF would often substitute.\2\ In other words, ECF and
fuel oil are comparable from an emissions standpoint, although the
concentrations of oxygenates and hydrocarbons may be higher in the ECF
than in fuel oil.
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\1\ The hydrocarbons and oxygenates listed in Table 1 to Sec.
261.38 have a heating value in the range generally of 10,000 Btu/lb
to 18,000 Btu/lb. See USEPA, ``Final Technical Support Document for
the Expansion of the Comparable Fuels Exclusion,'' November 2008,
Table 2-1. Fuel oil typically has a heating value of approximately
19,300 Btu/lb.
\2\ Fuel oil is a common, but not predominant, fuel for
industrial boilers.
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EPA wishes to make clear the basic fact pattern regarding the
generation and management of ECF in order to establish the fact
situation to which the rule applies. The rule applies to hazardous
secondary materials which are not discarded in the first instance. ECF
must meet the specifications established for hazardous constituents in
comparable fuels, except with respect to hydrocarbons and oxygenates--
constituents which provide substantial fuel value. These emission-
comparable fuels must meet the specifications for those hazardous
constituents, as well as the specifications for minimum heating value
and maximum viscosity, as generated. Hazardous secondary materials may
not undergo processing to destroy or otherwise remove the hazardous
constituents to meet the specifications, or to meet the heating value
or viscosity specifications (i.e., such materials, by definition,
cannot be ECF). Based on limited current practice for those materials
currently classified as comparable fuels under existing Sec. 261.38,
EPA expects most ECF to be used on-site.\3\ ECF would be used and
stored under largely the same conditions as would the virgin fuel--fuel
oil--which would often be displaced by ECF.
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\3\ All comparable fuel currently excluded under Sec. 261.38 is
burned on-site (i.e., at the site of generation), according to a
survey conducted by the American Chemistry Council. See EPA Docket
No. EPA-HQ-RCRA-2005-0017-0003. In addition, we estimate that 19 of
the 34 burners projected to use ECF will burn on-site ECF which they
generate themselves. See discussion in Part Six of this preamble.
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Under these circumstances, the rule excludes ECF from being a solid
waste, i.e., determines that ECF is not discarded, from its point of
generation. Throughout its management cycle, ECF is subject to
conditions which provide objective assurance that discard has not
occurred. These include conditions on tank and container storage, drawn
largely from conditions applicable to containers and tanks storing fuel
oil and organic product and by-products, which conditions assure
containment, spill prevention, and minimization of fugitive air
emissions. Transport conditions are the same as for all other hazardous
materials, including product fuels. Conditions on burning (again drawn
largely from standard practices for assuring that industrial boilers
operate efficiently) assure that emissions of hazardous constituents
which may be present in different concentrations than fuel oil would be
no different than the emissions if the same boiler burned fuel oil. The
combination of ECF's substantial physical identity with fuel oil, and
identical emission profiles with fuel oil, assures that ECF is not
discarded when burned. For all of these reasons, EPA is taking the
position that ECF may reasonably be classified as a non-discarded fuel
product.
Based on the quantity of hazardous secondary materials eligible for
this exclusion, the total quantity of hazardous secondary materials
excluded from the RCRA hazardous waste regulations is expected to
increase substantially. Specifically, we estimate that approximately
13,000 tons per year of hazardous secondary materials are currently
excluded under the existing comparable fuel exclusion, while we
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project that up to an additional 118,500 tons per year may be excluded
under the ECF exclusion.
These additional hazardous secondary materials can now be used as
fuel without imposing regulatory costs on generators, primarily the
manufacturing sector. However, the expanded comparable fuel exclusion
is not likely to increase the amount of hazardous secondary materials
used as fuel because these high Btu materials, even though not
currently excluded from RCRA, are currently used in industrial furnaces
and incinerators for their fuel value. Put another way, it is likely
that the same amount of energy will be recovered from these hazardous
secondary materials whether they are classified as wastes or non-
wastes, and the same amount of fossil fuel would be displaced.
Nonetheless, continuing to regulate these hazardous secondary materials
as hazardous wastes would: (1) Impose costs on a material which can
legitimately be classified as a non-discarded product, rather than as a
waste; and (2) preclude the opportunity to market the materials as
boiler fuels, given that use is currently constrained to a relatively
small universe of RCRA-permitted burners.
B. Who Will Be Affected by This Rule?
Entities that generate, burn, and store ECF are potentially
affected by this rule. The basic structure of the exclusion is that ECF
is not a solid (and hazardous) waste as generated, and hence is not
subject to subtitle C regulation. Thus, entities managing hazardous
secondary materials classified as hazardous waste fuels under current
rules can manage these fuels without being subject to full subtitle C
regulation so long as they satisfy the conditions on ECF set out in
this rule. Burners, which are limited to certain industrial boilers
(including utility boilers) can burn ECF provided the boilers meet
prescribed design and operating conditions, as discussed below in Part
II, Section III.B.\4\ These entities will benefit from lower operating
costs because of lower (or eliminated) waste management fees and
because these hazardous secondary materials will substitute for fuels
which would otherwise be purchased.
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\4\ Under the final rule, ECF can also be burned in hazardous
waste combustors operating under a RCRA permit. See discussion in
Part Two, Section III.A of the preamble.
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Commercial hazardous waste combustors that are currently managing
hazardous waste fuels that qualify as ECF, on the other hand, might
find themselves unable to continue to charge hazardous waste management
fees for the excluded hazardous secondary materials. Consequently,
commercial hazardous waste combustors might lose the waste management
revenues for burning ECF, and, if they choose to no longer burn the
material, may need to meet their heat input requirements by using other
waste fuels or fossil fuels.
C. What Is the Relationship Between This Rule and the Existing
Exclusion for Comparable Fuel?
On June 19, 1998 (63 FR 33782 and Sec. 261.38), EPA promulgated
standards to exclude from the definition of solid waste certain
hazardous secondary material fuels that meet specification levels for
hazardous constituents and physical properties that affect burning
which are comparable to the same levels in fossil fuels (typically fuel
oil). EPA's goal was to ensure that these excluded fuels, which are so
similar in composition to commercial fuels, are properly classified as
non-discarded products, not as wastes.
During the ten years that the comparable fuel exclusion has been
part of the hazardous waste regulations, several stakeholders have
pointed out that there are many hazardous secondary materials currently
classified as hazardous wastes which have fuel value, and which have
substantially the same composition as fossil fuels, but which do not
satisfy the terms of the exclusion. Independently, in 2003, EPA began
examining the effectiveness of the current comparable fuel program as
part of an effort to promote the energy conservation component of the
Resource Conservation Challenge \5\ to determine whether other
hazardous secondary materials currently classified as hazardous wastes
could be appropriately excluded as comparable fuel.\6\
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\5\ See http://www.epa.gov/epaoswer/osw/conserve/strat-plan/strat-plan.htm#rccplan.
\6\ As noted above, the same amount of energy is recovered from
excluded fuels whether they are burned in units subject to subtitle
C rules, or in industrial boilers.
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As part of this effort, EPA contacted the American Chemistry
Council (ACC) in early 2003 to determine how much waste is currently
excluded as comparable fuel and whether there were additional
quantities of other high Btu hazardous secondary materials that could
potentially be considered comparable fuel. As a result of ensuing
discussions, we proposed in June 2007 to expand the exclusion for
comparable fuel to establish a new category of excluded fuel--ECF. 72
FR 33284 (June 15, 2007). In this notice, we are responding to public
comments on the proposed rule, summarizing changes to the proposed
rule, and promulgating a final rule.
Part Two: Summary of the Final Rule
I. What Is ECF?
ECF is a hazardous secondary material which is excluded from the
RCRA hazardous waste regulations if it meets prescribed specifications
and conditions respecting its storage and burning. These conditions
assure that ECF is not ``part of the waste disposal problem.'' American
Mining Congress v. EPA, 907 F. 2d 1179, 1186 (DC Cir. 1990) citing
American Mining Congress v. EPA, 824 F. 2d 1177, 1186 (DC Cir. 1987).
The ECF fuel specifications (Sec. 261.38(a)(2)) are the same as those
that are applicable to comparable fuel, except the specifications in
Table 1 to Sec. 261.38 for hydrocarbons and for oxygenates do not
apply, and the minimum heating value specification is 8,000 Btu/lb. The
exclusion applies from the point of generation of the ECF.
ECF must meet the specifications as generated. Hazardous secondary
materials may not be treated by blending or other means to meet the
specifications, including the minimum heating value and maximum
viscosity specifications. ECF product may, however, be commingled with
other fuels to facilitate handling and storage, provided that the ECF
continues to meet the specifications.\7\
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\7\ Please note that the proposal included a conforming
amendment adding a reference to ECF to Sec. 261.38(a)(5), a
provision addressing treatment of hazardous constituents to meet the
hazardous constituent specifications. 72 FR at 33324. EPA has no
information that this practice occurs, did not estimate any costs
for the practice in assessing compliance costs for the proposed or
final rule, and received no comment on the issue. EPA is
consequently not finalizing the proposal to amend this provision.
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II. What Are the Storage Conditions for ECF?
ECF may be stored in tanks and containers under conditions that
prevent releases of hazardous secondary materials to the environment.
The storage conditions are adopted from a collection of requirements
for storage of fuel oil and other materials: discharge prevention
requirements adopted from the Spill Prevention, Control, and
Countermeasure (SPCC) requirements for oil storage facilities;
containment and emergency procedure requirements adopted from the
hazardous waste storage requirements, and fugitive air emission
controls adopted from several NESHAP (National Emission Standards for
Hazardous Air Pollutants) for organic products, by-products, and
feedstocks. See Sec. 261.38(c)(1). The final rule also provides
alternative storage
[[Page 77958]]
conditions, however, that are adopted solely from the controls for
hazardous waste storage facilities. See Sec. 261.38(e). We provide
these alternative storage conditions for the convenience of owners and
operators because: (1) They provide equivalent protection of human
health and the environment; (2) they are less complex than the suite of
conditions that are adopted from requirements for fossil fuels and
other products; and (3) facilities that are currently storing hazardous
waste that becomes ECF under the exclusion are already complying with
these conditions.
The storage conditions adopted from the collection of SPCC
provisions, hazardous waste provisions, and NESHAP provisions are
discussed below in Section II.A. The alternative storage conditions
adopted solely from the hazardous waste storage requirements are
discussed below in Section II.B.
A. What Are the Conditions for Storage?
1. Discharge Prevention Conditions That Are Adopted From SPCC
Requirements
We are adopting particular SPCC provisions under 40 CFR Part 112
that pertain to discharge prevention for oils managed at onshore
facilities: Sec. Sec. 112.2, 112.3(d), 112.3(e), 112.5(a), 112.5(b),
112.7, and 112.8. See Sec. 261.38(c)(1)(iii). These provisions require
compliance with the SPCC Plan requirements for discharge prevention,
other than those pertaining to containment. See Sec.
261.38(c)(1)(iii).
2. Containment Conditions That Are Adopted From Hazardous Waste Storage
Requirements
We are adopting the hazardous waste provisions for containment for
storage units: (1) For tanks, Sec. 264.193 (b) and (c), Sec.
264.193(d)(1) through (d)(3), and Sec. 264.193 (e) and (f); and (2)
for containers, Sec. 264.175(b).
For tanks, the adopted provisions are those for engineered
secondary containment and for leak detection. Engineered secondary
containment means the use of an external liner, vault, or double-walled
tank. See Sec. 261.38(c)(1)(iv)(A).
For containers, the adopted provisions are those for a containment
system comprised of a base underlying the containers which is free of
cracks or gaps and is sufficiently impervious to contain leaks, spills,
and accumulated precipitation until the collected material is detected
and removed. The containment system must be designed to contain 10% of
the volume of containers or the volume of the largest container,
whichever is greater. See Sec. 261.38(c)(1)(iv)(B).
3. Emergency Procedure Conditions That Are Adopted From Hazardous Waste
Storage Requirements
We are adopting provisions from hazardous waste storage
requirements for preparedness and prevention, emergency procedures, and
response to leaks or spills. See Sec. 261.38(c)(v).
The following conditions ensure preparedness and prevention: (1)
You must provide the emergency equipment required by adopted Sec.
264.32(a) though (d); (2) you must test and maintain equipment related
to emergency procedures; (3) you must ensure access to communications
or alarm systems by facility personnel; and (4) you must make
arrangements with local authorities as required by adopted Sec.
264.37(a).
The following conditions establish emergency procedures: (1) An
emergency coordinator must be available at all times; and (2) the
emergency coordinator must manage imminent or actual emergency
situations according to the provisions of Sec. 261.38(c)(1)(v)(B)(2).
To address a response to leaks or spills from tank systems, and the
disposition of leaking or unfit-for-use tank systems, the provisions of
Sec. 264.196 are adopted, except for the closure provisions of Sec.
264.196(e)(1) and (4).
4. Fugitive Air Emissions Conditions That Are Adopted From the NESHAP
for Organic Liquid Distribution, the NESHAP for Tanks, the NESHAP for
Containers, and the NESHAP for Equipment Leaks
All ECF tanks systems, containers with a capacity greater than 0.1
cubic meters (26 gallons), and equipment that contains or contacts ECF
(e.g., valves and pumps) are subject to conditions to control fugitive
air emissions. The conditions are adopted from the organic liquid
distribution (OLD) NESHAP, the NESHAP for containers (Level 1 or Level
2 controls), the NESHAP for tanks (Level 1 or Level 2 controls),\8\ and
the NESHAP for equipment leaks.
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\8\ As discussed below, we also provide as alternative tank
controls three control alternatives for hazardous waste tanks under
Subpart CC, Part 63, that are not included under the NESHAP.
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a. Tanks. Tanks containing ECF that are currently subject to the
OLD requirements under Sec. 63.2346 (Part 63, Subpart EEEE) are not
subject to any additional conditions to control fugitive emissions
(under Sec. 261.38(c)(vi)(B) and (C), and (c)(vii)), with one
exception. If your tank is subject to Items 1 through 5 in Table 2 to
Subpart EEEE, rather than Item 6 because the annual average vapor
pressure of regulated organic HAP \9\ is less than 11.1 psia, you must
consider the annual average vapor pressure of the RCRA oxygenates
listed under Sec. 261.38(c)(1)(vi)(B)(3) to determine if your tank
must also satisfy the more stringent controls (drawn from the other OLD
controls) we are adopting for ECF. See Sec. 261.38(c)(vi)(A)(2).
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\9\ Organic HAP regulated by Subpart EEEE, Part 63 are listed in
Table 1 to Subpart EEEE.
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Tanks that are not currently subject to the OLD requirements under
Sec. 63.2346, and that store ECF that meets the expanded definition of
organic liquid which we are adopting for ECF under Sec.
261.38(c)(vi)(B)(4),\10\ are subject (as a condition) to emission
limits adopted from the OLD NESHAP as a function of the tank design
capacity and the annual average vapor pressure of the RCRA oxygenates
and the organic HAP in the ECF. See Sec. 261.38(c)(1)(vi)(C)(5).
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\10\ An organic liquid for purposes of Sec. 261.38(c)(vi) means
emission comparable fuel that: (1) Contains 5 percent by weight or
greater of the RCRA oxygenates as well as organic HAP listed in
Table 1 to Part 63, Subpart EEEE; and (2) has an annual average true
vapor pressure of 0.7 kilopascals (0.1 psia) or greater.
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Finally, ECF tanks that are not subject to the adopted OLD
requirements (i.e., tanks storing ECF that meets the adopted definition
of organic liquid under Sec. 261.38(c)(vi)(B)(4), but for which OLD
controls are not adopted under Sec. 63.2346, and tanks storing ECF
that does not meet the adopted and expanded definition of organic
liquid) are subject to the following conditions:
For tanks that meet the tank capacity and vapor pressure
criteria for hazardous waste tanks under Sec. 264.1084(b)(1) for Level
1 control:
[cir] The NESHAP provisions for Level 1 control under Subpart OO,
Part 63, Sec. Sec. 63.901 through 63.907; or
[cir] The NESHAP provisions for organic liquid distribution under
Subpart EEEE, Part 63 under Item 1.a.i or 1.a.ii in Table 2 to Subpart
EEEE, which require 95% emissions reduction via venting to a control
device under provisions of Subpart SS, Part 63, or Level 2 tank
emissions control under Subpart WW, Part 63, or routing emissions to a
fuel gas system or back to a process under Sec. 63.984 of Subpart SS,
Part 63, or vapor balancing emissions to the transport vehicle from
which the storage tank is filled under Sec. 63.2346(a)(4); or
[cir] Hazardous waste tank controls under Subpart CC, Part 264,
under Sec. 264.1084(d)(3), (d)(4), or (d)(5) for use of venting to a
control device, or a pressure tank, or a tank located inside an
enclosure that is vented through a
[[Page 77959]]
closed-vent system to an enclosed combustion control device, and the
associated provisions under Sec. Sec. 63.1081 (definitions),
264.1083(c) (determination of vapor pressure), 264.1084(j) (transfer to
a tank), 264.1087 (closed-vent systems and control devices), and
264.89(b) (recordkeeping).
For tanks that do not meet the tank capacity and vapor
pressure criteria for hazardous waste tanks under Sec. 264.1084(b)(1)
and are, thus, subject to Level 2 control, the air emission controls
are the same as for Level 1 control, except that the Level 1 controls
under Subpart OO, Part 63, are not applicable.
The air emission conditions for ECF tanks are summarized in the
table below:
----------------------------------------------------------------------------------------------------------------
Adopted old NESHAP conditions (subpart
EEEE, part 63) for tanks storing ECF
that meets the definition of organic Adopted conditions
Tank capacity (gallons) Vapor pressure liquid \1\ for tanks not
(psia) ---------------------------------------- subject to adopted
Reconstructed or old controls
Existing sources new sources
----------------------------------------------------------------------------------------------------------------
<5,000.......................... <11.1............. .................. .................. A or C
>=11.1............ .................. .................. A or D
>=5,000 to <10,000.............. <4.0.............. .................. .................. A or C
>=4.0 to <11.1.... A A A or C
>11.1............. B B A or D
>=10,000 to <20,000............. <=0.1............. .................. .................. A or C
>=0.1 to >4.0..... .................. A A or C
>=4.0 to >11.1.... A A A or C
>=11.1............ B B A or D
>=20,000 to <40,000............. <=0.1............. .................. .................. A or C
>=0.1 to >4.0..... .................. A A or C
>=4.0 to >11.1.... A A A or D
>=11.1............ B B A or D
>=40,000 to <50,000............. <=0.1............. .................. .................. A or C
>=0.1 to >0.75.... .................. A A or C
>=0.75 to >4.0.... .................. A A or D
>=4.0 to >11.1.... A A A or D
>=11.1............ B B A or D
>=50,000........................ <=0.1............. .................. .................. A or C
>=0.1 to >0.75.... A A A or C
>=0.75 to >11.1... A A A or D
>=11.1............ B B A or D
----------------------------------------------------------------------------------------------------------------
\1\ Organic liquid means emission comparable fuel that: (1) Contains 5 percent by weight or greater of the RCRA
oxygenates as well as organic HAP listed in Table 1 to Part 63, Subpart EEEE; and (2) has an annual average
true vapor pressure of 0.7 kilopascals (0.1 psia) or greater.
Notes:
A: 95% emissions reductions via venting to a control device under Subpart SS, Part 63; or Level 2 tank control
under Subpart WW, Part 63; or route emissions to a fuel gas system or back to a process under 63.984 of
Subpart SS, Part 63; or vapor balancing emissions to the transport vehicle from which the storage tank is
filled under 63.2346(a)(4) of Subpart EEEE, Part 63.
B: 95% emissions reductions via venting to a control device under Subpart SS, Part 63; or route emissions to a
fuel gas system or back to a process under 63.984 of Subpart SS, Part 63; or vapor balancing emissions to the
transport vehicle from which the storage tank is filled under 63.2346(a)(4) of Subpart EEEE, Part 63.
C: Level 1 control under Subpart OO, Part 63, or venting to a control device under 264.1086(d)(3), or a pressure
tank under 264.1084(d)(4) of; or tank located inside an enclosure that is vented to an enclosed combustion
control device under 264.1084(d)(5).
D: Venting to a control device under 264.1086(d)(3); pressure tank under 264.1084(d)(4); or tank located inside
an enclosure that is vented to an enclosed combustion control device under 264.1084(d)(5).
b. Containers. Containers that store ECF are subject to the adopted
OLD provisions (see Sec. 261.38(c)(1)(vi)(C)(3)) in order to be
excluded. However, these provisions establish standards for containers
only in a specific situation: Containers with a capacity greater than
55 gallons that are being loaded at a transfer rack at a new facility
with ECF that meets the definition of organic liquid and where the
annual volume of ECF is 800,000 gallons or more. See Items 9 and 10 in
Table 2 to adopted Subpart EEEE.
To ensure that air emissions are controlled for other ECF
containers as they are for containers storing liquids containing
volatile organics (assuring that ECF is handled as are other
commodities rather than being discarded), we adopt the national
emission controls for containers under Subpart PP, Part 63. Subpart PP
prescribes three levels of air emission controls: Level 1, Level 2, and
Level 3. To determine which level of control would apply to ECF
containers, we adopt the applicability criteria for hazardous waste
containers under Sec. 264.1086(b)(1). See Sec. 261.38(c)(vii)(B)(1)
and (c)(vii)(B)(2). Those applicability criteria specify whether Level
1 or Level 2 national emission controls for containers apply,
considering the size of the container and whether it is ``in light
material service.'' \11\ Under these adopted controls as conditions for
the exclusion, an ECF container having a design capacity greater than
0.1 cubic meters (26 gallons) satisfies the conditions if it: (1) Meets
the applicable U.S. Department of Transportation (DOT) regulations on
packaging hazardous materials for transportation; and (2) is kept
closed unless ECF is being added or removed from the container.
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\11\ An ECF container is in light material service if: (1) The
vapor pressure of one or more of the organic components in the ECF
is greater than 0.3 kilopascals (kPa) at 20 [deg]C; and (2) the
total concentration of the pure organic components having a vapor
pressure greater than 0.3 kilopascals (kPa) at 20 [deg]C is equal to
or greater than 20 percent by weight. See Sec. 264.1031.
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c. Equipment Leaks. For tanks and containers that are conditioned
on meeting the adopted OLD requirements, air emissions from leaks from
equipment that contains or contacts ECF at a storage unit are
controlled under the adopted OLD requirements
[[Page 77960]]
(Sec. 63.2346(c)). For tanks and containers that are not conditioned
on meeting the adopted OLD requirements, equipment leaks are subject to
adopted NESHAP controls for equipment leaks, as discussed below. See
Sec. 261.38(c)(1)(vi)(C)(3), (c)(1)(vii)(A)(3), and (c)(1)(vii)(B)(3).
The OLD NESHAP subjects storage units to the following Part 63
NESHAP for equipment leaks if a facility has a tank or container
subject to air emission control under Table 2 to Subpart EEEE: Subpart
TT (Level 1 control), or Subpart UU (Level 2 control), or Subpart H.
For equipment leaks that are not conditioned on meeting OLD, we
adopt as conditions the same suite of NESHAP controls that are required
under OLD, and apply those controls to all equipment that stores or
contacts ECF at a storage unit. The adopted NESHAP controls are: (1)
Subpart TT, Part 63, (Level 1 control), except for Sec. 63.1000; or
(2) Subpart UU (Level 2 control), except for Sec. 63.1019; or (3)
Subpart H, except for Sec. Sec. 63.160, 63.162(b) and (e), and 63.183.
B. What Are the Alternative Storage Conditions?
The rule establishes alternative storage conditions that we adopt
from the hazardous waste storage standards under 40 CFR Part 264. See
Sec. 261.38(e). You may comply with these alternative conditions in
lieu of the conditions just enumerated in Section II.A above. If you
choose to meet these alternative conditions, you must substitute the
term ``emission-comparable fuel'' for each occurrence of the term
``hazardous waste'' or ``waste.''
The alternative conditions for your ECF tank or container storage
unit provide controls for: (1) Security; (2) inspections; (3) personnel
training; (4) handling ignitable, reactive, or incompatible materials;
(5) preparedness and prevention; (6) contingency plan and emergency
procedures; and (7) air emission controls for equipment leaks.
Specifically, if you store ECF in a container, to maintain the
exclusion, you must comply with conditions governing the use and
management of those containers. Those conditions address: (1) The
condition of the containers; (2) compatibility of the ECF with the
containers; (3) management of the containers; (4) inspections; (5)
containment; (6) special requirements for ignitable or reactive ECF;
and (7) air emission controls.
On the other hand, if you store ECF in a tank, to maintain the ECF
exclusion, you must comply with conditions that address: (1)
Containment and detection of releases; (2) general operating
requirements; (3) inspections; (4) response to leaks or spills and
disposition of leaking or unfit-for-use tank systems; (5) ignitable or
reactive materials; (6) incompatible materials; and (7) air emission
controls.
C. What Are the Other Storage Conditions?
1. Underground Storage of ECF Is Prohibited
The final rule prohibits storage of ECF in underground tanks (i.e.
a hazardous secondary material stored in an underground tank by
definition cannot be ECF): A tank the volume of which (including the
volume of underground pipes connecting thereto) is 10 percent or more
beneath the surface of the ground.\12\ In the preamble to the proposed
rule, we requested comment on whether generators or burners would be
likely to store ECF in underground tanks. We did not receive any
information to indicate that ECF would be stored in underground tanks.
Given the additional complexity to the rule that would result from the
need to adopt air emission controls, as well as preparedness and
prevention and emergency procedure provisions for underground storage
tanks, we conclude that allowing the use of underground storage tanks
for ECF would unnecessarily complicate the rule for very little
benefit, or (more likely) no benefit at all.
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\12\ See Sec. 280.12.
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2. What Are the Conditions for Closure of RCRA Storage Units That
Become ECF Storage Units?
The rule waives the RCRA closure requirements in 40 CFR Parts 264
and 265 for those interim status and permitted storage units, and
generator accumulation units exempt from the permitting requirements
under Sec. 262.34 of this chapter, that store ECF, provided that: (1)
The storage unit has been used to store only the hazardous waste that
is subsequently excluded as ECF under the conditions of Sec. 261.38;
and (2) the storage unit will be used to store only that ECF.
3. What Are the Conditions for Closure of Storage Units?
Like any other product storage unit which goes out of service, tank
systems and container storage units would not be required to undergo
closure under the RCRA hazardous waste regulations (unless liquids or
accumulated solids were not cleaned from the tank system or container
within 90 days of cessation of operation as an ECF storage unit), when
the unit ceases operation as a product storage unit. See Sec.
261.4(c). However, if an ECF storage unit ceases to be operated to
store ECF product, but has not been cleaned by removing all liquids and
accumulated solids within 90 days of cessation of ECF storage
operations, the tank system or container would become subject to the
RCRA Subtitle C regulations.13 14 See Sec. 261.38(b)(13).
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\13\ This provision also applies to currently excluded
comparable fuel.
\14\ If the tank is used to actively accumulate hazardous waste
after being taken out of service as an ECF (or comparable fuel)
product tank, the tank may be eligible for the provisions under
Sec. 262.34 that waive the permit requirements for generator tanks
that accumulate hazardous waste for not more than 90 days.
---------------------------------------------------------------------------
Discarded liquids and accumulated solids removed from a tank system
or container that ceases to be operated for storage of ECF product are
solid wastes. This material is hazardous waste if it exhibits a
characteristic of hazardous waste or if the ECF no longer meets a
condition of the exclusion and is otherwise listed as a hazardous
waste. Similarly, liquids and accumulated solids removed from a tank
system or container are solid wastes (and if identified or listed,
hazardous wastes) if at any time they do not meet the ECF
specifications and other conditions of the exclusion.\15\
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\15\ This assumes that all hazardous secondary materials claimed
to be ECF and stored in a tank or container properly met the
conditions for the exclusion. If not, however, any liquid or
accumulated solids removed from the tank or container, at any time,
would be hazardous waste, and therefore subject to regulation as
hazardous waste from the point of generation.
---------------------------------------------------------------------------
4. What Are the Conditions for Management of Incompatible ECF and Other
Materials?
ECF generators and burners must take precautions to prevent the
mixing of ECF and other materials which could result in reactions which
could: (1) Generate extreme heat or pressure, fire or explosions, or
violent reactions; (2) produce uncontrolled hazardous mists, fumes,
dusts, or gases; (3) produce uncontrolled flammable fumes or gases; or
(4) damage the structural integrity of the storage unit or facility.
See Sec. 261.38(c)(1)(viii). ECF generators must document how they
will take precautions to avoid these situations. This documentation
must be kept on-site for three years.
III. What Are the Conditions for ECF Burners?
ECF must be burned in particular combustors under prescribed
conditions to be eligible for the exclusion.
[[Page 77961]]
A. What Types of Combustors May Burn ECF?
To be excluded, ECF may be burned in an industrial or utility
boiler that is a watertube type of steam boiler that does not feed fuel
using a stoker or stoker-type mechanism. To be considered a boiler, a
combustor must meet the definition of boiler under Sec. 260.10. To be
considered an industrial boiler, the boiler must be located on the site
of a facility engaged in a manufacturing process where substances are
transformed into new products, including the component parts of
products, by mechanical or chemical processes. To be considered a
utility boiler, the boiler must be used to produce electric power,
steam, heated or cooled air, or other gases or fluids for sale. See
Sec. 261.38(b)(3)(i)(B).
ECF may also continue to be burned in any hazardous waste combustor
operating under a RCRA permit issued under Part 270, provided the ECF
is burned under the same operating requirements that apply to hazardous
waste burned by the combustor (i.e., ECF must be burned as though it
were hazardous waste). Those hazardous waste operating requirements
apply in lieu of the conditions for burning ECF under Sec.
261.38(c)(2), except that the ECF constituent feedrate limits under
Sec. 261.38(c)(2)(ii)(C) continue to apply.\16\ \17\ The hazardous
waste operating requirements serve as conditions for exclusion of the
ECF. Consequently, if the burner fails to comply with the hazardous
waste operating requirements when burning ECF, the ECF loses the
exclusion and must be managed as hazardous waste from the point of
generation.\18\
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\16\ Although the hazardous waste combustor operating
requirements ensure that 99.99% DRE and good combustion is achieved,
the ECF constituent feedrate limits are needed to ensure that
emissions from the hazardous waste combustor are comparable to fuel
oil emissions.
\17\ In addition, to implement the ECF feedrate limits, the ECF
automatic feed cutoff system requirements under Sec.
261.38(c)(2)(ii)(G) that apply to monitoring the constituent
feedrate limits as specified under Sec. 261.38(c)(2)(ii)(G)(1)(ii)
also apply to HWCs.
\18\ See discussion in Part Four, Section V.A, below for the
rationale for this provision.
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B. What Are the Operating Conditions for Burners?
ECF must be burned under the following operating conditions to be
excluded, as provided by Sec. 261.38(c)(2)(ii):\19\ \20\
---------------------------------------------------------------------------
\19\ Note, however, that if ECF is burned in a hazardous waste
combustor operating under a RCRA permit, these operating conditions
do not apply, except for the ECF constituent feedrate limits. In
this situation, all operating requirements that apply to hazardous
waste burning apply as conditions for burning ECF.
\20\ Please note also that boiler operators must be trained to
operate and maintain the boiler and monitoring systems to ensure
compliance with the burner conditions. See Sec. 261.38(c)(2)(iii).
---------------------------------------------------------------------------
The feedrate of ECF constituents (i.e., oxygenates and
hydrocarbons) must not exceed the limits provided by Table 2 to Sec.
261.38; \21\
---------------------------------------------------------------------------
\21\ See discussion in Part Three, Section III.B.3 below for the
rationale for this provision and how it will be implemented. See
also Sec. 261.38(c)(2)(ii)(C).
---------------------------------------------------------------------------
Carbon monoxide (CO) concentrations in the stack gas must
be monitored continuously, must be linked to an automatic ECF feed
cutoff system, and must not exceed 100 ppmv on an hourly rolling
average (corrected to 7% oxygen);
The boiler must fire at least 50% primary fuel on a
heating value and mass basis, and the primary fuel must be fossil fuel,
fuels derived from fossil fuel, tall oil, or comparable fuel with a
heating value of 8,000 Btu/lb or greater;
The boiler load must be 40% or greater;
Key operating parameters (i.e., CO; gas temperature at the
inlet to the electrostatic precipitator (ESP) or fabric filter (FF)
unless coal is the primary fuel; indicator of boiler load; ECF
feedrate; primary fuel feedrate) must be linked to a system that
automatically cuts off the ECF feed if the limits on the parameters are
exceeded;
ECF must be fired into the primary fuel flame zone;
The ECF firing system must provide proper atomization; and
If the boiler is equipped with an ESP or FF and does not
fire coal as the primary fuel, the combustion gas temperature at the
inlet to the ESP or FF must be continuously monitored, must be linked
to the automatic ECF feed cutoff system, and must not exceed 400 [deg]F
on an hourly rolling average.
IV. What Are the Recordkeeping, Notification, and Certification
Conditions?
A. Fuel Analysis Plans
ECF generators must develop a fuel analysis plan prior to sampling
and analysis of their ECF to determine if the ECF meets the exclusion
specifications. See Sec. 261.38(b)(4).
ECF burners may also be required to develop a fuel analysis plan as
a condition of the exclusion. Specifically, when burning ECF, burners
must know the as-fired heating value and the as-fired concentration of
the ECF constituents for each fuel fed to the boiler. If a burner does
not receive from the generator documentation of the heating value and
concentration of the ECF constituents for each shipment or use the
default values for primary fuels provided by Sec. 261.38(c)(2)(ii)C),
the burner must develop a fuel analysis plan.\22\
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\22\ As noted earlier, EPA expects that in the majority of
situations, the generator and burner of the ECF will be the same. In
this case, the fuel analysis plan required for burners may be
incorporated in the generator's fuel analysis plan.
---------------------------------------------------------------------------
All sampling and analysis plans must document: (1) Sampling,
analysis, and statistical analysis protocols that were employed; (2)
sensitivity and bias of the measurement process; (3) precision of the
analytical results for each batch of fuel tested; and (4) the results
of the statistical analysis.
B. Sampling and Analysis
ECF must meet all of the specifications for comparable fuel, except
the specifications for hydrocarbons and oxygenates. Sampling and
analysis is required for all constituents (unless the generator uses
process knowledge as discussed below) because, even though the
specifications for hydrocarbons and oxygenates are not applicable, the
concentrations of those constituents must be known to demonstrate
compliance with the feed rate limits for each constituent under Sec.
261.38(c)(2)(ii)(C) (i.e., to satisfy this condition of the exclusion).
The generator must document the claim that specific hazardous
constituents meet the exclusion specifications based on process
knowledge. Just as for comparable fuel, the following cannot be
determined to ``not be present'' in the fuel based on process
knowledge: (1) A hazardous constituent that causes the ECF to exhibit
the toxicity characteristic or hazardous constituents that were the
basis for the waste code in 40 CFR 268.40; (2) a hazardous constituent
detected in previous analysis of the ECF; (3) a hazardous constituent
introduced into the process that generates the ECF; or (4) a hazardous
constituent that is a byproduct or side reaction to the process that
generates the ECF.
Regardless of which method a generator uses, testing or process
knowledge, the generator is responsible for ensuring that the ECF meets
all constituent specifications at all times. If at any time the ECF
fails to meet any of the specifications, or other conditions of the
exclusion, the ECF loses the exclusion and is subject to regulation as
hazardous waste from the point of generation.
[[Page 77962]]
C. Speculative Accumulation and Legitimacy
This rule adopts the same speculative accumulation provisions for
ECF under Sec. 261.38(b)(7) as those applying to existing comparable
fuel and to any recycled hazardous waste under Sec. 261.2(c)(4).
Generators and burners must ``turn over'' annually at least 75 percent
of the ECF on hand at the beginning of each calendar year. See the
definition of ``accumulated speculatively'' in Sec. 261.1(c)(8). An
ECF generator must burn or ship off site for burning during the
calendar year at least 75% of the ECF on hand on January 1. An ECF
burner must burn during the calendar year at least 75% of the ECF on
hand on January 1. Although there is no formal recordkeeping
requirement associated with the speculative accumulation provision, the
burden of proof is on the generator and burner to demonstrate that the
ECF has not been speculatively accumulated.
In addition, as like all other hazardous secondary materials being
recycled, ECF must satisfy legitimacy criteria assuring that recycling
is not a sham for waste management. See, e.g. 72 FR 14197-198. Here,
the ECF constituent specifications (identical concentrations of most
hazardous constituents in ECF and fuel oil), substantial heating value
in the oxygenates and hydrocarbons present in higher concentrations
than in fuel oil, and conditions on burning assuring the same emissions
from a boiler burning ECF as from burning fuel oil, all assure that ECF
will be recycled legitimately.
D. Notifications
In order to be excluded, ECF generators and burners must comply
with the same notification requirements that apply to comparable fuel
burners and generators, along with a few additional notification
conditions.
1. ECF Generator Notification
The ECF generator is the person who initially generates the
hazardous secondary material (otherwise classified as a hazardous
waste) and who documents and certifies that the material meets the ECF
exclusion criteria. The generator must submit a one-time initial
notification \23\ to the RCRA and CAA regulatory authorities under
Sec. 261.38(b)(2)(i)(A) which contains general facility identification
information, a certification stating that the generator is meeting the
conditions under Sec. 261.38, and ECF-specific information including:
---------------------------------------------------------------------------
\23\ Please note that, if the generator currently claims an
exclusion for comparable fuel and has previously submitted a
notification for the comparable fuel, the generator must submit an
additional notification to claim an exclusion for ECF.
---------------------------------------------------------------------------
An estimate of the average and maximum monthly and annual
quantity of hazardous secondary material for which the ECF exclusion is
claimed;
An estimate of the annual quantity of each hazardous
secondary material stream for which the ECF exclusion is claimed; and
An estimate of the maximum concentration of each ECF
constituent (i.e., hydrocarbons and oxygenates) in each ECF stream for
which the ECF exceeds the comparable fuel specification levels in Table
1 to Sec. 261.38.
2. ECF Burner Notifications
All ECF burners must publish a public notice in a major newspaper
of general circulation local to the facility that provides information
including (see Sec. 261.38(b)(2)(ii)):
General facility identification information; and
An estimate of the average and maximum monthly and annual
quantity of ECF to be burned.
In addition, ECF burners must submit a one-time initial
notification to the RCRA and CAA regulatory authorities providing
general facility identification information and ECF-specific
information including (see Sec. 261.38(c)(5)):
An estimate of the maximum annual quantity of ECF that
will be burned; and
An estimate of the maximum as-fired concentrations of each
hydrocarbon and oxygenate for which the ECF exceeds the comparable fuel
specification levels in Table 1 to Sec. 261.38.\24\
---------------------------------------------------------------------------
\24\ EPA proposed that burners notify as to the estimated amount
of ECF burned monthly and annually (see 72 FR at 3310), but did not
propose that the notification include concentration of ECF
constituents. However, the proposed rule did not include conditions
on the feedrate of ECF constituents, although EPA solicited comment
on that possibility, and is adopting that approach in this final
rule. EPA views notification of ECF constituent levels as a logical
corollary to the rule's feedrate provisions.
---------------------------------------------------------------------------
Finally, ECF burners must submit a notification to the RCRA and CAA
regulatory authorities within 5 days of exceeding an operating limit
that is linked to the ECF automatic feed cutoff system. The
notification must document: (1) The exceedance; (2) the measures the
burner has taken to manage the material as a hazardous waste; and (3)
the measures the burner has taken to notify the generator that the
burner has failed to comply with a condition of the exclusion.
3. Notification of Closure of a Tank or a Container Storage Unit
ECF generators and burners that store ECF in a tank or container
must submit a notification to the RCRA regulatory authority when a tank
or a container storage area goes out of ECF service.\25\ The
notification must state the date when the tank or container storage
unit is no longer used to store ECF. A tank or container storage unit
is out of ECF service if it no longer is used to store ECF that is
destined to be burned under the conditions of the exclusion.
---------------------------------------------------------------------------
\25\ This provision is useful in assessing inspection
priorities, and in assuring that tanks and containers are closed
pursuant to the subtitle C standards if accumulated solids and
liquids are not removed within 90 days of cessation of operation as
an ECF storage unit. However, EPA considers the provision to be
legally severable from the other conditions attached to the
management of ECF.
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E. Burner Certification
ECF burners intending to accept ECF from off-site generators must
provide the ECF generator with a one-time written, signed statement
that includes the following: (1) A certification that the burner will
meet the conditions under Sec. 261.38 and that the State in which the
burner is located is authorized to exclude ECF under Sec. 261.38; and
(2) general facility identification information.
F. Recordkeeping
ECF generators are subject to the same recordkeeping requirements
that currently apply to comparable fuel generators. ECF burners are
also subject to recordkeeping requirements as a condition of exclusion.
Records must be maintained for three years.
1. ECF Generator Recordkeeping Requirements
As a condition of exclusion, ECF generators must maintain records
containing information including: (1) Documentation of compliance with
the applicable conditions of the exclusion; (2) the monthly and annual
quantities of each hazardous secondary material that is excluded; and
(3) for each off-site shipment, name and address of the burner,
quantity of ECF shipped and delivered, date of shipment and delivery,
and a cross-reference to the record of information used to document
that the fuel meets the ECF specification. See Sec. 261.38(b)(8).
2. ECF Burner Recordkeeping Requirements
ECF burners must keep a record of information required to comply
with the operating requirements under Sec. 261.38(c)(2) in order to be
excluded.
[[Page 77963]]
Off-site burners must also keep records of each shipment of ECF
received, including: (1) The name, address, and EPA ID number of the
generator;\26\ (2) the quantity of ECF delivered; and (3) the date of
delivery.
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\26\ ECF generators (and off-site burners) must obtain an EPA ID
number. See Sec. Sec. 261.38(b)(2)(i)(A)(1) and (c)(4).
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G. Transportation
DOT requirements applicable to hazardous materials under 49 CFR
Parts 171-180 apply to ECF. Those standards include a requirement for a
shipping paper.
H. Ineligible RCRA Hazardous Waste Codes
Consistent with the current comparable fuel exclusion, hazardous
wastes listed for the presence of dioxins or furans are not eligible
for the ECF exclusion. See Sec. 261.38(b)(11).
V. What Are the Consequences of Failure To Comply With a Condition?
It is the responsibility of the generator claiming the exclusion to
demonstrate eligibility.\27\ More specifically, to be eligible for this
exclusion, the person claiming the exclusion must document that ECF
meets the ECF specifications under Sec. 261.38(a)(2), as well as the
other conditions of the exclusion, including: the conditions
prohibiting blending and diluting to achieve the specifications under
Sec. 261.38(a)(4) and (a)(7); the implementation conditions under
Sec. 261.38(b); and the special conditions for managing ECF under
Sec. 261.38(c).
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\27\ The burden for demonstrating with appropriate documentation
compliance with the conditions of an exclusion in an enforcement
action is on the person claiming the exclusion. 40 CFR 261.2(f).
---------------------------------------------------------------------------
After the exclusion for a hazardous secondary material has been
claimed, the conditions of the exclusion must continue to be met to
maintain the exclusion.\28\ If any person managing ECF fails to meet a
condition of the exclusion, the exclusion is lost and the fuel must be
managed as a hazardous waste from the point of generation. Therefore,
except as discussed below, EPA (or an authorized state) could choose to
bring an enforcement action under RCRA section 3008(a) for all
violations of the RCRA subtitle C requirements occurring from the time
the hazardous secondary material is generated through the time that it
is ultimately burned. See Sec. 261.38(d).
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\28\ Separate and distinct from any requirement or condition
established under this rule, all generators of a secondary
material--including ECF generators under this exclusion--have a
continuing obligation to conduct proper hazardous waste
determinations, including notifying the appropriate government
official if they are generating a hazardous waste. 40 CFR 262.11.
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If, however, the generator that claims the exclusion for ECF that
is burned in an off-site, unaffiliated burner \29\ documents in the
operating record that it has made reasonable efforts to ensure that the
burner complies with the conditions of the exclusion, the hazardous
secondary material will not be considered a hazardous waste when
managed by the generator upon a finding that the burner has not
complied with a condition of the exclusion. The reasonable efforts must
be based on an objective evaluation, both prior to the first shipment
and periodically thereafter, that the burner would manage the ECF under
the applicable conditions of Sec. 261.38. See discussion in Part Four,
Section VI.A below.
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\29\ An unaffiliated burner is a boiler or hazardous waste
combustor located at a facility that is not owned by the same parent
company that generated the ECF.
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VI. What Conditions Apply to Spills and Leaks?
ECF that is spilled or leaked, not cleaned up immediately and which
no longer meets the conditions of the exclusion, is ``discarded.''
Thus, it is a solid waste. Such spilled or leaked ECF is a hazardous
waste if it exhibits a characteristic of hazardous waste or if the ECF
were otherwise a listed hazardous waste.
Furthermore, the exclusion would not affect the obligation to
promptly respond to and remediate any releases of ECF that may occur.
Management of the released material not in compliance with applicable
Federal and State hazardous waste requirements could result in an
enforcement action. For example, a person who spilled or released ECF
and failed to immediately clean it up could potentially be subject to
enforcement for illegal disposal of ECF. See, for example, Sec.
264.1(g)(8). In addition, the release could potentially be addressed
through enforcement orders, such as orders under RCRA sections 3013 and
7003.
In addition, ECF that is spilled or leaked and can no longer be
burned under the conditions of the exclusion is a waste (it is a
hazardous waste if it exhibits a characteristic of hazardous waste or
if the ECF were otherwise a listed hazardous waste) and must be managed
in accordance with existing federal and state regulations. Furthermore,
if an ECF tank system or container ceases to be operated to store ECF
product, but has not been cleaned by removing all liquids and
accumulated solids within 90 days of cessation of the ECF storage
operations, the tank system or container would become subject to the
RCRA subtitle C hazardous waste regulations.\30\ (This is the same
principle that applies to any product storage unit when it goes out of
service. See Sec. 261.4(c).) Liquids and accumulated solids removed
from a tank system or container that ceases to be operated for storage
of ECF product are waste (they are hazardous wastes if they exhibit a
characteristic of hazardous waste or if the ECF were otherwise a listed
hazardous waste).
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\30\ If the storage unit is used to actively accumulate
hazardous waste after being taken out of service as an ECF product
storage unit, the storage unit may be eligible for the provisions
under Sec. 262.34 that waive the permit requirements for generator
storage units that accumulate hazardous waste for not more than 90
days.
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VII. What Are the Clarifications and Revisions to the Existing
Conditions for Comparable Fuel?
We are amending several provisions that apply to the comparable
fuel conditions for the same reasons that we are applying the amended
provisions to ECF. Specifically, those amendments are:
We are clarifying the consequences of failure to satisfy
the conditions of the existing comparable fuel exclusion. That is, we
are clarifying that excluded 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 characteristic of hazardous waste or
if it is otherwise a listed hazardous waste. See Sec. 261.38(b)(15).
We are clarifying the status of tank systems and container
storage units that cease to be operated as comparable fuel storage
units. That is, the tank system and container storage unit 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. We are also clarifying that
discarded liquids and accumulated solids removed from the tank and
container after the tank or container ceases to be operated for storage
of comparable fuel must be managed as hazardous waste if they exhibit a
characteristic of hazardous waste or if they are otherwise listed
hazardous wastes. See Sec. 261.38(b)(13).
We are waiving the RCRA closure requirements for tank
systems and container storage units that are used only to store
hazardous wastes that are subsequently excluded as comparable fuel. See
Sec. 261.38(b)(14), and discussion above in Part Two, Section II.C.2.
[[Page 77964]]
We are clarifying the regulatory status of boiler
residues, including bottom ash and emission control residue. That is,
these wastes would be hazardous if they exhibit a hazardous waste
characteristic. See Sec. 261.38(b)(12).
We are requiring that the one-time notice by the generator
to regulatory officials include an estimate of the average and maximum
monthly and annual quantity of comparable fuel for which an exclusion
is claimed.\31\ See Sec. 261.38(b)(2)(i)(A). This condition applies
prospectively to generators that newly claim the exclusion and to
generators that must submit a revised notification because of a
substantive change in the information required by the notice.
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\31\ Providing an estimate of excluded quantities would help
regulatory officials establish inspection and monitoring priorities.
Omission of this condition was an oversight when the exclusion was
initially promulgated. We conditioned the exclusion on the burner
issuing a public notice that included this information (see existing
Sec. 261.38(c)(1)(ii)(D)), but we inadvertently did not specify
that the generator who claims the exclusion was to provide this same
information to regulatory officials.
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In addition, please note that, as proposed, the final rule
restructures the current conditions for comparable fuel (and syngas
fuel) to make the regulatory language more readable given that the
regulation must accommodate the exclusion for ECF. See 72 FR at 33289.
Consequently, we have redrafted the entire section for clarity. In
addition, we proposed certain technical corrections to several
provisions of the rule.\32\ Those language changes are purely technical
and are promulgated in this final rule. As explained at proposal, we
did not reexamine, reconsider, or otherwise reopen these provisions for
comment.
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\32\ See memorandum from Bob Holloway, USEPA, to Docket ID No.
EPA-HQ-RCRA-2005-20017, dated January 10, 2007.
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Part Three: What Are the Major Changes Since Proposal?
I. What Are the Major Changes to the Emission-Comparable Fuel
Specification?
Under the final rule, the specifications in Table 1 to Sec. 261.38
do not apply to hydrocarbons and oxygenates in ECF. See Sec.
261.38(a)(2)(ii)(B).
The proposed rule would have continued to apply the specifications
to naphthalene and the 10 PAHs listed in Table 1 to Sec. 261.38. We
were concerned that, when ECF with high concentrations of the
hydrocarbons or oxygenates for which the specifications would not apply
is burned, emissions of those compounds may be somewhat higher than
from burning fuel oil, even though the boiler is operating under good
combustion conditions and achieving 99.99 percent destruction and
removal efficiency for organic compounds in the feed. If,
notwithstanding the conditions proposed for burning, emissions of
naphthalene or the PAHs from burning ECF under a particular situation
were higher than emissions from burning fuel oil, we were concerned
that ECF emissions may not remain protective.
Given that the final rule (unlike the proposed rule) establishes
feedrate limits for each ECF constituent,\33\ we now have objective
assurance that a boiler burning ECF will have emissions comparable to a
boiler burning fuel oil. Consequently, it is no longer necessary to
continue to apply the specifications to naphthalene and the 10 PAHs.
See discussion of the need for feedrate limits, and an explanation of
how they are derived, in Part Three, Section III.B.3 below.\34\
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\33\ ECF constituent means the hydrocarbons and oxygenates in
Table 1 to Sec. 261.38, for which the specifications do not apply
for ECF.
\34\ In addition to these changes to the ECF specification, the
final rule also requires that ECF must meet the viscosity
specification as generated. Viscosity is a specification that must
be met (for both ECF and comparable fuel) before a hazardous
secondary material is excluded as a fuel product. Given that ECF may
not be treated to meet the specifications, ECF must meet the
viscosity (and other) specifications as generated.
---------------------------------------------------------------------------
In addition, the specification for minimum heating value under the
final rule is 8,000 Btu/lb, and the ECF must meet this specification as
generated. The proposed rule would have established a minimum heating
value specification of 5,000 Btu/lb, but would have required an as-
fired minimum heating value of 8,000 Btu/lb. 72 FR at 33296. The final
rule establishes a minimum 8,000 Btu/lb specification as generated
consistent with the principle that the conditions which assure that ECF
is not discarded all apply to ECF as generated. A heating value for
ECF, as-fired, of 8,000 Btu/lb is one of those conditions--it is
necessary to assure that emissions from a boiler burning ECF are
comparable to a boiler burning fuel oil. This assures that ECF is
comparable to fuel oil when burned from the standpoint of physical
composition and emissions, and confirms that ECF is reasonably
classified as a fuel product and not as a discarded waste. Accordingly,
the final rule requires as a condition of the exclusion that the
minimum heating value specification applies to ECF as it is generated.
See also discussion in Part Two, Section I above.
II. What Are the Major Changes to the Storage Conditions?
A. Storage in Containers Is Allowed
The final rule allows storage of ECF in containers. The proposed
rule would have allowed storage only in tanks, but requested comment on
whether generators would be likely to store ECF in containers. Several
commenters stated that limiting ECF storage to tanks would render small
volume facilities ineligible without a rational basis. We believe this
is a valid critique and have, therefore, established in the final rule
conditions for storage of ECF in containers based on the same
principles that we used to establish conditions for storage of ECF in
tanks. See Sec. 261.38(c)(1).
B. Alternative Storage Conditions Are Provided
The final rule establishes alternative storage conditions that are
adopted solely from the hazardous waste storage requirements under Part
264. See Sec. 261.38(e). These controls are of comparable stringency
to those drawn from the storage requirements for fuel products and
organic liquid products and by-products. You may comply with these
conditions in lieu of the collection of storage conditions adopted from
the storage requirements for other materials: Discharge prevention
requirements adopted from the SPCC requirements for oil storage
facilities; containment and emergency procedure requirements adopted
from the hazardous waste storage requirements; and fugitive air
emission controls adopted from several NESHAP (National Emission
Standards for Hazardous Air Pollutants). See discussion in Part Four,
Section III.B for the rationale for these alternative conditions.
C. Conditions To Control Fugitive Air Emissions From Tank Systems Are
Revised
In response to comments on the proposed rule, we reevaluated the
controls for air emissions from tanks and determined that: (1) We
proposed conditions to expand the applicability of the OLD controls to
tank capacity/ECF vapor pressure scenarios that would result in
controls more stringent than those that apply to hazardous waste tanks;
(2) there are several other tank capacity/ECF vapor pressure scenarios
for which OLD is not applicable and for which we inadvertently did not
propose conditions to expand OLD control; and (3) we inadvertently did
not propose conditions to control air emissions for tanks that store
ECF that does not meet
[[Page 77965]]
the adopted definition of organic liquid, and thus would not be subject
to OLD control. We have addressed these issues and revised the fugitive
air emission conditions for tanks, as discussed in Part Four, Section
III.C below.
D. Storage in Underground Storage Tanks Is Prohibited
Storage of ECF in underground storage tanks is prohibited, as
discussed in Part II, Section II.C.1, above. Although the proposed rule
would have allowed storage in underground tanks, the final rule
prohibits such storage to avoid adding further complexity to the rule
for a practice that commenters did not indicate would be widely used,
if used at all.
III. What Are the Major Changes to the Burner Conditions?
A. What Types of Devices May Burn Emission-Comparable Fuel?
Under the proposed rule, ECF could be burned only in an industrial
or utility boiler that is a watertube type of steam boiler that does
not feed fuel using a stoker or stoker-type mechanism. The final rule
also allows ECF to be burned in hazardous waste combustors operating
under a RCRA permit and in compliance with the applicable requirements
under Subpart O, Part 264, Subpart H, Part 266, and Subpart EEE, Part
63, under the condition that the ECF is burned under the same operating
requirements that apply to hazardous waste burned by the combustor. The
ECF burner operating conditions do not apply to hazardous waste
combustors, except for the ECF constituent feedrate limits. See
discussion in Part Four, Section V.A below, and Sec.
261.38(c)(2)(i)(B).
B. What Are the Changes to the Burner Conditions?
1. Comparable Fuel May Be Primary Fuel
To meet the condition that ECF must be fired with at least 50
percent primary fuel on a heat or mass input basis, the final rule adds
comparable fuel with an as-fired heating value of 8,000 Btu/lb or
higher to the list of fuels that may be used as a primary fuel.
Consequently, you may use the following fuels as primary fuel, provided
that they have an as-fired heating value of 8,000 Btu/lb or higher:
Fossil fuel; fuels derived from fossil fuel; tall oil; or comparable
fuel. See discussion in Part Four, Section V.D below, and Sec.
261.38(c)(2)(ii)(A) and (B).
2. The 50 Percent Primary Fuel Firing Rate Is Based on Heat and Mass
Input
A minimum of 50 percent of the fuel fired to the boiler must be
primary fuel, determined on a total heat and mass input basis.\35\ The
proposed rule inadvertently stated that the minimum 50 percent firing
rate condition must be determined on a total heat input or volume input
basis, whichever results in a greater volume feedrate of primary fuel.
A mass basis for the calculation of the primary fuel firing rate is
more appropriate than a volume basis because it is consistent with the
mass feedrate limits for the ECF constituents, as discussed below. We
also note that the parallel provision for hazardous waste boilers for
which the DRE standard is waived (see Sec. 266.110) bases the 50
percent minimum primary fuel requirement on a heat or mass input,
whichever results in the greater mass input of primary fuel.\36\
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\35\ We note that this condition was worded at proposal as ``The
50 percent primary fuel firing rate shall be determined on a total
heat or volume input basis, whichever results in the greater volume
feedrate of primary fuel fired.'' As a practical matter, this means
that the primary fuel must provide at least 50% of the heat input to
the boiler and at least 50% of the volume input of fuels to the
boiler. To ensure that the meaning is clear, the final rule
expresses the condition as follows: The primary fuel shall comprise
at least 50% of the total fuel heat input to the boiler and at least
50% of the total fuel mass input to the boiler. (Note further that
we explain in the preamble that we meant to specify the mass input
at proposal rather than the volume input.) As an example of how the
condition works, if the primary fuel were to provide 60% of the heat
input to the boiler but only 40% of the fuel mass input, the mass
input must be increased to at least 50%.
\36\ We note further that, when EPA initially promulgated the
Sec. 266.110 provisions, the rule established the 50 percent
primary fuel firing rate on a heat input or volume input, whichever
resulted in the greater volume input of primary fuel. EPA
subsequently amended the provision, however, to change the volume
basis to a mass basis. See 56 FR at 42510 (Aug. 27, 1991).
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3. A Feedrate Limit for Each ECF Constituent Is Established
The final rule establishes in Table 2 to Sec. 261.38 as a
condition of the exclusion a maximum allowable feedrate limit
normalized by gas flowrate for each ECF constituent \37\ for which the
specification does not apply under paragraph (a)(2)(ii)(B). The gas
flowrate-normalized feedrate limits have the units, ug/dscm, and are
converted to feedrate limits, kg/hr of ECF constituents, by multiplying
by the stack gas flowrate, dscm/hr. Although we did not propose
regulatory language for feedrate limits for ECF constituents, we
discussed at proposal the approach we would use to establish the
limits, and presented example limits. 72 FR at 33315-16.\38\ We have
considered comments on the proposed approach and have refined the
approach for the final rule, as discussed below.
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\37\ ECF constituent means the hydrocarbons and oxygenates
listed in Table 1 to Sec. 261.38 and for which the specifications
do not apply for ECF.
\38\ As discussed at proposal (72 FR at 33314), we requested
comment on establishing feedrate limits for each ECF constituent in
response to a peer review comment stating that it may be problematic
to conclude that ECF emissions would invariably be comparable to
emissions from burning fuel oil. This is because ECF could have
unlimited concentrations of hydrocarbons and oxygenates and that
combustion is generally considered to be a constant percent
reduction process. Thus, as the concentration of an organic
constituent in the feed increases, the concentration of the compound
in the emissions may also increase.
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The ECF constituent feedrate limits provide objective assurance
that the emissions from ECF burning are comparable to the emissions
from burning fuel oil: Emissions of ECF constituents from an industrial
boiler burning ECF will be comparable to emissions of those compounds
from an industrial boiler burning fuel oil. The proposed rule would
have addressed this issue by continuing to apply the comparable fuel
specifications to PAHs and naphthalene because: (1) When ECF with high
concentrations of the hydrocarbons or oxygenates for which the
specifications would not apply is burned, emissions of those compounds
may be somewhat higher than from burning fuel oil, even though the
boiler is operating under good combustion conditions; and (2) higher
emissions of PAHs and naphthalene would raise protectiveness concerns
because these compounds pose a relatively high hazard compared to other
hydrocarbons and the oxygenates listed in Table 1 to Sec. 261.38. 72
FR at 33299. Given that the final rule provides objective assurance
through conditions on the feedrate for each ECF constituent that the
emissions from ECF burning are comparable to the emissions from burning
fuel oil that would often otherwise be the fuel of choice, the
rationale for continuing to apply the specifications for these
compounds is no longer valid.
Similarly, the proposed 25 percent maximum ECF firing rate limit
when benzene or acrolein concentrations exceed two percent is no longer
needed. See 72 FR at 33299. The limitation (through conditions) of
feedrate of each ECF constituent is a more direct way than the proposed
firing rate limit on ECF as a whole to assure that emissions from
burning ECF would be comparable to emissions from burning fuel oil.
We discuss below how we derived the feedrate limits and how they
are implemented.
[[Page 77966]]
a. Overview of Approach to Establishing Feedrate Limits. To
calculate the ECF constituent feedrate limits, we first identified the
industrial boiler fuel oil emission level for each constituent (i.e.,
measured levels of that constituent in emissions from industrial
boilers burning fuel oil) or, where fuel oil emissions data were not
available for a specific ECF constituent, a surrogate emission level.
We then projected a DRE for each constituent, considering available DRE
data, the thermal stability of the compound, and whether the compound
is commonly formed as a product of incomplete combustion (PIC). We then
back-calculated a maximum feedrate limit that is normalized by stack
gas flowrate, and that has the units, ug/dscm. The gas flowrate-
normalized feedrate is converted to an ECF constituent feedrate limit
(i.e., kg/hr) by multiplying by the boiler gas flowrate (i.e., dscm/
hr).
b. Fuel Oil Emission Levels. We have industrial boiler fuel oil
emissions data for 12 of the 37 ECF constituents.\39\ We used the
highest test condition average emissions to establish the maximum
allowable emission levels for these 12 constituents. It is reasonable
to use the highest test condition average as the maximum allowable
emission level rather than the average or 95th percentile because the
data base is not robust--the full range of boiler emissions may not be
represented by the limited data base. Using the highest test condition
average is a reasonable means of accounting for emissions variability.
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\39\ We have oil emissions data for benzene, naphthalene,
toluene, acrolein and eight of 10 PAHs.
---------------------------------------------------------------------------
For the other 25 ECF constituents-the two PAHs and the oxygenates
other than acrolein--we identified surrogates for industrial boiler oil
emission levels.\40\ For the two PAHs, we identify a surrogate oil
emission level of 0.02 ug/dscm using emission data from other PAHs for
which we do have emission data from oil-burning boilers. This approach
is reasonable because: (1) 0.02 ug/dscm is at the low end of the range
of emission levels for PAHs from oil-burning boilers \41\; and it is
appropriate to select from the low end of this range because PAHs are
more toxic than the other hydrocarbons and the oxygenates \42\; and (2)
available emissions data indicate that PAHs are emitted at
substantially lower levels--less than 0.6 ug/dscm--than either the
oxygenates or the other hydrocarbons and the emission level we selected
are consistent with these data.
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\40\ For more information than provided in the preamble, see
USEPA, ``Final Technical Support Document for the Expansion of the
Comparable Fuels Exclusion,'' November 2008, Section 6.3.
\41\ The oil emissions data for the eight PAHs are: 0.005 ug/
dscm; 0.02 ug/dscm; 0.04 ug/dscm; 0.1 ug/dscm; 0.1 ug/dscm, 0.16 ug/
dscm; 0.18 ug/dscm; and 0.61 ug/dscm.
\42\ See the relative hazard ranking for the ECF constituents in
USEPA, ``Final Technical Support Document for the Expansion of the
Comparable Fuels Exclusion,'' November 2008, Section 2.4.
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For the oxygenates, we identified a surrogate oil emission level of
18 ug/dscm because: (1) It is the only available emission level in our
data base for an oxygenate (i.e., acrolein) from a boiler burning fuel
oil; (2) it is in the range of emission levels for oxygenates from
other combustion sources \43\; and (3) although it is not at the low
end of the range of oxygenate emissions from combustion sources, it is
an appropriate surrogate emission level because it would result in de
minimis health risk.\44\
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\43\ Hazardous waste boilers operating under good combustion
conditions can emit oxygenates in the range of 0.6 ug/dscm to 130
ug/dscm, and coal boilers can emit oxygenates in the range of 1.6
ug/dscm to 38 ug/dscm. See USEPA, ``Final Technical Support Document
for the Expansion of the Comparable Fuels Exclusion,'' November
2008, Section 6.3.
\44\ Maximum annual ground level concentrations of the
oxygenates will be orders of magnitude lower than the reference air
concentrations (RfCs) for the oxygenates other than acrolein. (The
RfC is an estimate of a continuous inhalation exposure concentration
to people (including sensitive subgroups) that is likely to be
without risk of deleterious effects during a lifetime.) See USEPA,
``Final Technical Support Document for the Expansion of the
Comparable Fuels Exclusion,'' November 2008, Section 6.3. Although
the RfC for acrolein is much lower than the RfCs for the other
oxygenates such that maximum annual ground level concentrations of
acrolein from burning ECF could approach this RfC, we have emissions
data for acrolein from an oil-burning boiler and therefore do not
need to identify (and justify) a surrogate emission level to back-
calculate a feedrate limit.
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c. Projected Destruction and Removal Efficiencies (DREs). We
projected DREs for each of the 37 ECF constituents considering the
available DRE data, the thermal stability of the compound, and whether,
even under good combustion conditions, the compound is commonly formed
as a PIC.\45\
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\45\ For purposes of this discussion, PICs are compounds in
emissions that are formed from the incomplete destruction of organic
compounds in the ECF and other boiler fuels.
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As discussed at proposal, we investigated the DRE data available
for hazardous waste-fired liquid fuel boilers to project a DRE for the
ECF constituents.\46\ We have both DRE and feedrate data for
approximately 200 runs from 27 boilers for 10 compounds. Two of those
compounds are ECF constituents: Benzene and toluene. Based on analysis
of those data (i.e., the DRE data for the ECF constituents and other
compounds), it was reasonable to project a DRE for ECF constituents in
the feed of 99.99 percent for thermal stability class 1 and 2 compounds
(which are more difficult to destroy), and a DRE for ECF constituents
in the feed of 99.995 percent for class 3-7 compounds.\47\
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\46\ See 72 FR at 33315-16, and Document No. EPA-HQ-RCRA-2005-
0017-0067 and Document No. EPA-HQ-RCRA-2005-0017-0068.
\47\ The Thermal Stability ranking classifies (generally)
hazardous compounds according to their gas phase thermal stability
under oxygen-starved conditions. Compounds are ranked according to
the temperature required to destroy 99% of the compound in 2 seconds
under oxygen-starved conditions. See USEPA, ``Guidance on Setting
Permit Conditions and Reporting Trial Burn Results, Volume II of the
Hazardous Waste Incineration Guidance Series,'' January 1989, Table
D-1.
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During development of the final rule and in response to public
comment,\48\ however, we concluded that, for ECF constituents that are
commonly formed as PICs (i.e., benzene, naphthalene, phenol, and
toluene),\49\ the effective, measured DRE may be lower (i.e., appearing
to be less efficient destruction evidenced by emissions of the
compound), particularly at low constituent feedrates, even under good
combustion conditions, considering the total emissions of the compound:
Emissions from unburned compounds in the feed, and emissions
attributable to PIC formation during the incomplete destruction of
other compounds in the ECF and other boiler fuels. Although the DRE for
the quantity of the compound in the feed to the boiler would be at
least 99.99% under good combustion conditions, the effective, measured
DRE of compounds that are common PICs may be lower than 99.99% when
they are fed at low feedrates. This is because at low feedrates, the
portion of the compound in the emissions that is attributable to PICs,
rather than unburned compound in the feed, can be substantial. As the
compound feedrate increases, emissions of the compound attributable to
unburned compound in the feed mask the quantity of the compound present
as a PIC, and the effective, measured DRE becomes more representative
of the feed-related DRE. Because ECF constituents can be fed at low
feedrates, however, the DRE used to calculate the ECF constituent
feedrate limits for the constituents that are common PICs--benzene,
naphthalene, phenol, and toluene--must account for the proportion of
the emissions of the constituent that is emitted as unburned compound
in the feed relative to the portion of emissions attributable to PICs
[[Page 77967]]
at low feedrates. Thus, the DREs used to calculate the feedrate limits
for the common PICs may be lower than the DREs associated with higher
feedrates where the PIC contribution is masked by unburned compound in
the feed.50 51
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\48\ See USEPA, ``Comment Response Document for the Exclusion of
Emission-Comparable Fuel,'' October 2008, Section 4.7, Comment No.
126A.9.
\49\ USEPA, ``Final Technical Support Document for the Expansion
of the Comparable Fuels Exclusion,'' November 2008, Section 6.3.
\50\ If the DRE associated with high ECF constituent feedrates
were used to calculate the ECF constituent feedrate limits,
emissions from burning ECF at low feedrates would be higher than
from burning fuel oil. This is because the allowable emissions of
the compound would be calculated assuming incorrectly that the PIC
contribution would not be significant at low feedrates. When the PIC
contribution is considered, emissions of the compound would be
higher than from fuel oil emissions.
\51\ Please note that, because we cannot quantify the increase
in DRE as feedrate increases, we projected a constant DRE across all
feedrates. Nonetheless, we conducted an analysis of DREs at higher
feedrates by drawing curves that bound the worst DREs at higher
feedrates. That analysis corroborated the ECF constituent feedrate
limits calculated by assuming a constant DRE across feedrates.
Although the analysis indicates that higher DREs are achieved at
higher feedrates, those higher DREs are not high enough to provide
comparable emissions, i.e., applying those DREs to the associated
feedrates would result in emissions exceeding fuel oil emission
levels. See USEPA, ``Final Technical Support Document for the
Expansion of the Comparable Fuels Exclusion,'' November 2008,
Section 6.3, and the memorandum from Bob Holloway, USEPA, to Docket
ID Number EPA-HQ-RCRA-2005-0017, entitled ``Projecting DREs to
Calculate ECF Constituent Feedrate Limits: Bounding Analysis to
Investigate the Relationship Between DRE and Feedrate,'' dated
November 24, 2008.
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Although 14 ECF constituents are thermal stability class 1 or 2
compounds for which we project a feed-related (not effective) DRE of
99.99%, three of those compounds are common PICs: Benzene, naphthalene,
and toluene. For these three compounds, we believe it is reasonable to
consider reducing the feed-related DRE by an order of magnitude to
project a default, effective DRE of 99.9% to account for PIC emissions
at low feedrates of these compounds. We note, however, that we have
substantial DRE data for benzene (from two boilers at one source)
documenting (effective) DREs below 99.9 percent at low feedrates in the
range allowed for ECF. Consequently, we project a DRE for benzene of
99.7% because it is at the low end of the range of DREs achieved at the
low feedrates at which benzene in ECF may be fed.\52\ In addition, we
note that, for toluene, we have approximately 20 DRE runs at low
feedrates (i.e., the same low feedrates for which benzene DREs were
well below 99.99%), all of which are above 99.99%.\53\ We also have
more than 20 DRE runs for toluene at moderate feedrates, and all but
one of those runs achieved greater than 99.99% DRE. The lowest run
achieved 99.987% DRE. Consequently, we believe that a projected DRE of
99.99% is appropriate and is more in line with the measured DREs for
toluene than the nominal order of magnitude reduction in feed-related
DRE for common PICs that we would otherwise apply. We did not have DRE
data for naphthalene at proposal, and therefore use the default order
of magnitude reduction in DRE to account for PICs (i.e., 99.9%).
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\52\ USEPA, ``Final Technical Support Document for the Expansion
of the Comparable Fuels Exclusion,'' November 2008, Section 6.3.
\53\ USEPA, ``Final Technical Support Document for the Expansion
of the Comparable Fuels Exclusion,'' November 2008, Figure 6-2.
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For similar reasons, for the thermal stability class 3 compound
that is a common PIC--phenol--we project an effective DRE of 99.95
percent, an order of magnitude lower than the 99.995 percent feed-
related projected DRE. We did not have DRE data for phenol at proposal,
and therefore use the default order of magnitude reduction in DRE to
account for PICs.
We also considered whether PICs from the combustion of ECF
compounds that are not themselves common PICs could cause an exceedance
of the fuel oil (or surrogate) emission levels for the ECF
constituents.\54\ We note that several ECF constituents are aromatics
(e.g., the cresols, the phthalates, and acetophenone) that could form
PICs that are ECF constituents. It is reasonable to conclude, however,
that PICs from these compounds will not cause an exceedance of the fuel
oil (or surrogate) emission levels for other ECF constituents because:
(1) Only four ECF constituents are common PICs; and (2) the projected,
effective DREs for these PICs, and thus their feedrate limits, account
for PIC emissions.
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\54\ We note that PICs from the combustion of ECF constituents
would not result in emissions of compounds other than ECF
constituents at levels greater than from oil emissions. This is
because the feedrate limits ensure that ECF constituents will not
result in emissions of ECF constituents, and by extension PICs from
those constituents, at levels higher than fuel oil.
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EPA may consider expanding the comparable emissions approach, and
revisiting the DRE analysis, in light of new data we may gather. As
part of various rulemakings and other activities, EPA may receive data
from hazardous waste combustors on emissions and feed used, which might
be used to refine the comparable emissions approach.
d. Implementation of Feedrate Limits. As discussed above, the
feedrate limits are expressed as a gas flowrate-normalized feedrate
(ug/dscm), which is the feedrate in mass/unit time normalized by stack
gas flowrate. The total feedrate limit (kg/hr) for each ECF
constituent, for total boiler fuels, is determined by the boiler gas
flowrate and the maximum ECF constituent feedrate (ug/dscm) provided by
Table 2 to Sec. 261.38. The maximum feedrate (kg/hr) of a constituent
attributable to ECF is the total boiler constituent feedrate (kg/hr)
minus the constituent feedrate (kg/hr) for all other boiler
feedstreams.
To account for ECF constituents in fuel oil used as the primary
fuel, burners may use actual concentrations of ECF constituents in
their fuel oil, or the default concentrations based on fuel oil
analysis EPA used to support the comparable fuel specification.\55\ See
Table 3 to Sec. 261.38. Burners may also use other fuels as primary
fuel, including coal and natural gas. See Sec. 261.38(c)(2)(ii)(A). If
coal is the primary fuel, burners may use actual concentrations of ECF
constituents in their coal, or default concentrations based on AP-42
emission factors. See Table 4 to Sec. 261.38. If natural gas is the
primary fuel, burners may assume the gas does not contribute ECF
constituents.
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\55\ USEPA, ``Final Technical Support Document for HWC MACT
Standards, Development of Comparable Fuel Specifications,'' May
1998, Appendix B.
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Example calculations for maximum feedrates of ECF constituents and
concentrations of constituents in ECF, and example ECF firing rate
restrictions resulting from the ECF constituent feedrate limits are
presented in USEPA, ``Final Technical Support Document for the
Expansion of the Comparable Fuels Exclusion,'' November 2008, Section
6.3.
4. Additional Operating Parameters Must Be Linked to the ECF Automatic
Feed Cutoff System
The final rule requires that additional operating parameters be
linked to the ECF automatic feed cutoff system (AFCOS) to ensure
compliance with the conditions of the exclusion. In addition to
requiring that the ECF AFCOS engage when carbon monoxide levels exceed
100 ppmv on an hourly rolling average and when the combustion gas
temperature at the inlet to the initial dry particulate matter control
device exceeds 400 [deg]F on an hourly rolling average, as proposed (72
FR at 333296 and 333298), the final rule also requires that the ECF
AFCOS engage when: (1) The emission-comparable fuel feedrate limit for
a constituent exceeds the limit provided in Table 2 to Sec. 261.38;
(2) the primary fuel firing rate is below 50 percent on either a heat
input or mass input basis; and (3) the steam production rate (or other
appropriate indicator) indicates that the boiler load
[[Page 77968]]
is below 40 percent (i.e., the automatic feed cutoff system activates
when one of the conditions on burning is about to be exceeded). See
Sec. 261.38(c)(2)(ii)(F)(1).
In addition, the final rule corrects the proposed excessive
exceedance reporting requirement to require an exceedance report within
five days of exceeding an operating limit linked to the AFCOS when ECF
is in the combustion chamber. At proposal, we inadvertently directly
adopted for ECF the excessive exceedance reporting requirements
applicable to hazardous waste combustors (HWCs). For HWCs, operating
parameters that are linked to the automatic waste feed cutoff system
are indicators that a source may have failed to maintain compliance
with an emission standard. Thus, exceeding one or more operating limits
more than 10 times in a 60 day block is considered to be excessive (and
indicating an increased possibility that an emission standard may be
exceeded), and an excessive exceedance report is required. Upon receipt
of an excessive exceedance report, the regulatory authority may review
the HWC's operations and provide additional requirements to minimize
exceedances.
For ECF burners, however, any exceedance of an operating limit
linked to the AFCOS when ECF is in the combustion chamber is a failure
to comply with a condition of the exclusion. In that event, the
material must be managed as hazardous waste from the point of
generation. Accordingly, this final rule requires that the burner
notify the regulatory authority within five days of exceeding an
operating limit linked to the AFCOS when ECF is in the combustion
chamber. Those operating parameters that are linked to the AFCOS and
for which limits are established are: (1) CO level in the stack gas;
(2) temperature at the inlet to the FF or ESP for sources not burning
coal as the primary fuel; (3) an indicator of boiler load; (4) primary
fuel firing rate; and (5) feedrate of ECF constituents. The
notification must document: (1) The exceedance; (2) the measures the
burner has taken to manage the material as a hazardous waste; and (3)
the measures the burner has taken to notify the generator that the
burner has failed to comply with a condition of the exclusion.
5. Burners Must Provide Operator Training
The final rule includes a condition requiring boiler operator
training. See Sec. 261.38(c)(2)(iii). Boiler operator training is
needed to ensure compliance with the boiler operating conditions under
Sec. 261.38(c)(2)(ii). Although we included a condition in the
proposed rule that would require operator training for storage
units,\56\ and so implied that operator training would generally be an
applicable condition, we inadvertently did not propose a parallel
condition for boiler operator training.
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\56\ See proposed Sec. 261.38(c)(1)(iii)(D) that adopts the
SPCC training provisions under Sec. 112.7(f).
---------------------------------------------------------------------------
We are correcting this omission in the final rule. The condition is
needed to assure that combustion occurs under the specified conditions,
which in turn assures emission comparability, an element of our
determination that ECF is not discarded (through destruction of the ECF
constituents) when it is burned, but rather is managed (including
burned) as a fuel commodity. The boiler operating conditions are
sufficiently complex that training is needed to ensure that boiler
operation and maintenance personnel can understand and effectively
implement the operating requirements of the conditions for exclusion,
including the continuous monitoring system requirements and the ECF
AFCOS. In fact, without such training, we do not believe that a burner
could comply with the conditions on burning, and thus, should not be
eligible for the exclusion. (Note: The boiler operator training
provision is not redundant to emergency response training requirements
under the Occupational Safety and Health Administration (OSHA)
regulations at 29 CFR 1910.120(q).)
For purposes of this provision, boiler operators are personnel that
operate or maintain the boiler when ECF is burned, including continuous
monitoring systems and the ECF AFCOS. The condition requires that
boiler operators must successfully complete a program that teaches them
to perform their duties in a way that ensures the boiler's compliance
with the operating conditions under Sec. 261.38(c)(2)(ii).
The training program must be directed by a person trained in boiler
operation procedures, and must include instruction which teaches boiler
operators procedures relevant to the positions in which they are
employed. At a minimum, the training program must be designed to ensure
that boiler operators understand the operating conditions under
paragraph (c)(2)(ii) and are able to respond effectively when the ECF
AFCOS engages an automatic cutoff of the feed of ECF. Boiler operators
must take part in an annual review of the initial training.
The boiler owner or operator must maintain the following documents
and records at the facility: (1) The job title and written description
of the position for each boiler operator position, and the name of the
employee filling each job; (2) a written description of the type and
amount of both introductory and continuing training that will be given
to each person; and (3) records that document that the required
training or job experience has been given to, and completed by, boiler
operators.
Training records on current personnel must be kept until ECF is no
longer burned in the boiler. Training records on former boiler
operators must be kept for at least three years from the date the
employee last worked as a boiler operator at the facility.
IV. What Are the Major Changes to the Implementation Conditions?
A. What Are the Changes to the Analysis Plan Provisions for Burners?
To comply with the feedrate conditions for ECF constituents
provided by Sec. 261.38(c)(2)(ii)(C) and in Table 2 to Sec. 261.38,
the final rule requires that ECF burners must know the as-fired heating
value of each fuel and the as-fired concentration of ECF constituents
in each fuel fed to the boiler (e.g., fossil fuels and ECF itself). The
proposed rule would have established feedrate conditions only on ECF
that contained more than two percent benzene or acrolein. These
proposed conditions have been superseded by the feedrate conditions for
all ECF constituents. See discussion in Section III.B.3 above.
Accordingly, the final rule expands the analysis plan requirements for
burners to implement the feedrate conditions on ECF constituents. See
Sec. 261.38(b)(2)(5).
ECF burners are subject to the fuel analysis plan conditions under
Sec. 261.38(b)(4) to determine the as-fired heating value and
concentration of ECF constituents in each fuel fed to the boiler,
except: (1) The burner may use documentation provided by the generator
for each shipment of ECF of the heating value and concentration of ECF
constituents \57\; and (2) the burner may use the default primary fuel
heating values and ECF constituent concentrations provided in Sec.
261.38(c)(2)(ii)(C)(4).
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\57\ If the burner commingles the ECF with other fuels, the
burner may use documentation provided by the generator to calculate
the as-fired heating value of the ECF and the concentration of ECF
constituents.
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B. What Are the Changes to the Notification Provisions?
1. Initial Notification
For generators of ECF, the final rule expands the information
required in the
[[Page 77969]]
one-time notification \58\ to the RCRA and CAA regulatory authority in
whose jurisdiction the exclusion is being claimed. In particular, in
addition to the general facility information and an estimate of the
average and maximum monthly and annual quantity of hazardous secondary
materials for which an exclusion would be claimed under the proposed
rule, the final rule is conditioned on the generator also providing an
estimate of the annual quantity of each ECF stream, and, for each ECF
stream, the maximum concentration of each ECF constituent that exceeds
the comparable fuel specification in Table 1 to Sec. 261.38. See Sec.
261.38(b)(2)(i)(B). This additional information characterizing the ECF
will assist the regulatory authorities establish monitoring and
enforcement priorities.
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\58\ If there are subsequent, substantive changes in the
information provided in the notification, the generator must submit
a revised notification to the regulatory authorities.
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For burners of ECF that receive the fuel from an offsite generator,
the final rule also expands the information required in the one-time
notification from the burner to the RCRA and CAA regulatory authority
in whose jurisdiction the exclusion is being claimed. In particular, in
addition to the general facility information and certification of
compliance with the storage and burner conditions of the exclusion
required under the proposed rule, the final rule also requires the
burner to: (1) Provide an estimate of the maximum annual quantity of
ECF that will be burned, and an estimate of the maximum as-fired
concentrations of each ECF constituent for which the ECF exceeds the
specifications for comparable fuel in Table 1 to Sec. 261.38; and (2)
provide documentation that ECF will be fired into the flame zone of the
primary fuel.\59\ See Sec. 261.38(c)(5). This additional information
characterizing the ECF and boiler operating conditions will assist
regulatory authorities to establish monitoring and enforcement
priorities.
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\59\ See discussion in Part Four, Section IV.C regarding the
rationale for documenting that ECF will be fired into the flame zone
of the primary fuel, and guidance on acceptable documentation.
---------------------------------------------------------------------------
2. Notification of Closure of a Tank or a Container Storage Unit
ECF generators and burners that store ECF in a tank or container
must submit a notification to the RCRA regulatory authority when a tank
or a container storage area goes out of ECF service. The notification
must state the date when the tank or container storage unit is no
longer used to store ECF. A tank or container storage unit is out of
ECF service if it no longer is used to store ECF that is destined to be
burned under the conditions of the exclusion.
C. What Are the Changes to the Consequences of Failure To Comply With a
Condition of the Exclusion?
As proposed, an excluded fuel (i.e., existing comparable fuel,
synthesis gas fuel, and ECF) loses its exclusion if any person managing
the fuel fails to comply with the conditions of the exclusion under
Sec. 261.38, and the hazardous secondary material must be managed as a
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).
The final rule provides a ``reasonable efforts'' provision,
however, to address generator liability when an offsite, unaffiliated
burner fails to comply with a condition of the exclusion for ECF.\60\
If the generator who claims the exclusion for ECF that is burned in an
off-site, unaffiliated boiler \61\ documents in the operating record
that reasonable efforts have been made to ensure that the burner
complies with the conditions of exclusion, the burner rather than the
generator will be liable for discarding a hazardous waste upon a
finding that the burner has not complied with a condition of exclusion.
See Sec. 261.38(d)(2).
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\60\ A reasonable efforts provision is not provided for
comparable fuel and synthesis gas fuel generators because there are
minimal conditions on burners for those excluded fuels, and the
generator can readily determine if the burner has complied with
those conditions. Comparable fuel and syngas fuel burners must: (1)
Publish a public notice of their intent to burn excluded fuel, as
required by Sec. 261.38(b)(2(ii); and (2) submit a certification to
the generator, as required by Sec. 261.38(b)(10)(i).
\61\ The rule defines an unaffiliated burner as a boiler or
hazardous waste combustor located at a facility that is not owned by
the same parent company that generated the ECF.
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The reasonable efforts must be based on an objective evaluation by
the generator, both prior to the first shipment and periodically
thereafter, that the burner would manage the ECF under the applicable
conditions of Sec. 261.38. Reasonable efforts by the generator must
include, at a minimum, affirmative answers to the following questions
prior to shipping the ECF to the burner, and must be repeated every
three years thereafter: (1) Has a burner submitted the notification to
the RCRA and CAA Directors required under Sec. 261.38(c)(5)(i), and
has the burner published the public notification of burning activity as
required under Sec. 261.38(b)(2)(ii); (2) are there any unresolved
significant violations of environmental regulations at the burner
facility, or any formal enforcement actions taken against the facility
in the previous three years for violations of environmental
regulations, and if yes, does the generator have credible evidence that
the burner will nonetheless manage the ECF under the conditions of
Sec. 261.38; and (3) does the burner have the equipment and trained
personnel to manage the ECF under the conditions of Sec. 261.38.
In making these reasonable efforts, the generator may use any
credible evidence available, including information obtained from the
burner and information obtained from a third party. The generator must
maintain for a minimum of three years documentation and certification
that reasonable efforts were made for each burner facility to which ECF
is shipped.
Part Four: What Are the Responses to Major Comments?
I. Scope of the ECF Exclusion
Comment: Several commenters state that EPA's decision not to
address their analytical concerns about demonstrating compliance with
the existing exclusion is a significant ``missed opportunity'' to
increase the usefulness of the existing exclusion. They claim that
matrix interferences and detection limit problems make it difficult or
impossible to demonstrate comparability for many waste fuels. These
same commenters also urge EPA to allow for blending to meet the
specification limits for hydrocarbons and oxygenates.
Response: Regarding the commenters' analytic concerns, we explained
at proposal that the specifications in Table 1 to Sec. 261.38 for
volatile organic compounds that were not detected in fuel oil or
gasoline were based on the low levels of detection achievable for fuel
oil rather than the much higher levels of detection achievable for
gasoline.\62\ 72 FR at 33287-88. Given that only benzene, toluene, and
naphthalene were detected in our benchmark fuels--fuel oils and
gasoline--we used this approach for most of the volatile organic
compounds. We acknowledged this deviation from establishing the
specification for undetected compounds as the highest level of
detection in a benchmark fuel and explained that the levels of
detection for volatile compounds in gasoline were inflated because of
matrix effects. Commenters believe that we should consider the fact
that many hazardous secondary materials used as a fuel may pose the
same matrix effects
[[Page 77970]]
as gasoline, such that the fuel oil-based specifications would not be
reasonably achievable.
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\62\ EPA promulgated these specifications in 1998, 63 FR 33782
(June 19, 1998).
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We continue to believe that it would not be appropriate to consider
increasing the specifications for all volatile organic compounds and
base them on the higher levels of detection in gasoline rather than
fuel oil levels of detection because most of the compounds (e.g.,
halogenated compounds) would simply not be expected to be found in fuel
oil or gasoline. As a result, use of the higher detection limits would
result in specification levels that could exclude hazardous secondary
materials that are not comparable to fuel oil or gasoline. Rather, only
certain hydrocarbons would be expected to be in these fuels. We
explained at proposal that we could potentially also consider
oxygenates, however, because they are within a class of compounds that
are added to fuels to enhance combustion.
It appeared, however, that this potential revision would not likely
result in additional hazardous secondary materials being conditionally
excluded. In discussions with the chemical industry during the
development of the proposed rule, they did not identify any hazardous
secondary materials that cannot meet the current specifications using
analytical methodologies recommended for the matrix in question, but
that could qualify for exclusion if the specifications for volatile
hydrocarbons and oxygenates were increased to the levels of detection
for gasoline that we experienced when sampling the benchmark fuels.
Although the commenters reiterate their concerns about analytic issues,
they again have not identified any hazardous secondary materials that
would be conditionally excluded from regulation if the specifications
for volatile hydrocarbons and oxygenates were increased to the levels
of detection for gasoline. We continue to be unable to identify the
problem. Consequently, the final rule does not revise the
specifications for volatile hydrocarbons and oxygenates.
With respect to commenters' concern regarding allowing blending to
meet the specification limits for hydrocarbons and oxygenates, in
discussions with the chemical industry during the development of the
proposed rule, they again did not identify any hazardous secondary
materials that would be conditionally excluded from regulation if
blending were allowed. Consequently, we did not pursue this approach
further. Even though the commenters reiterate their concerns about
blending in response to the proposed rule, commenters again have not
identified any hazardous secondary materials that would be excluded if
blending to meet the specifications for hydrocarbons and oxygenates
were allowed. Consequently, EPA is finalizing this aspect of the rule,
as proposed.
II. Legal Rationale for the ECF Exclusion
A. EPA's Interpretation of the Solid Waste Disposal Act (SWDA)
1. Hazardous Waste Burned for Energy Recovery
Comment: A commenter states that EPA's claim that hazardous
secondary material that is otherwise a hazardous waste can be
classified as a fuel if it is burned for energy recovery under certain
combustion conditions contravenes the Solid Waste Disposal Act (SWDA).
The commenter believes that the text of the Act makes clear that
burning a material that would otherwise qualify as a hazardous waste
does not transform that material into something other than a waste,
regardless of whether energy is recovered from the combustion process
and regardless of the conditions under which it is burned. The text of
the SWDA demonstrates that Congress was well aware that waste is burned
for energy recovery, but did not intend that combusting a hazardous
secondary material for energy recovery would transform that material
from a regulated waste to an unregulated fuel, according to the
commenter. The commenter states that Sec. 3004(q) requires EPA to
issue standards applicable to facilities that produce fuel from
hazardous waste, facilities that ``burn, for purposes of energy
recovery, any fuel produced'' from hazardous waste, and persons who
distribute or market fuel produced from hazardous waste. 42 U.S.C.
6924(q)(1)(A)-(C).
Response: The final rule does not exclude from the definition of
solid waste fuels produced from hazardous waste. The rule states that
ECF is not a solid waste due to the combination of management practices
(determined via conditions on the exclusion) and the physical identity
of ECF to the fossil fuels for which it can substitute which
demonstrate objectively that the hazardous secondary material can
permissibly be classified as non-discarded. ECF will be stored subject
to conditions similar to or identical to those which apply to
commercial fuels, products, or by-products. It will be burned under
conditions such that emissions will not be different from the fuel oil
that could be burned in its place. It is largely physically identical
to fuel oil with respect to hazardous constituent concentrations. To be
ECF, the secondary material as initially generated must meet the
hazardous constituent specification, as well as the other
specifications, and then be subject to all other conditions. Such
materials can permissibly be considered not to be discarded and hence
not solid wastes.
EPA sees nothing in Sec. 3004(q) which supports the commenter's
contention that such materials must be classified as discarded. The
provision only applies to hazardous wastes, so the first inquiry must
necessarily be whether the material at issue--ECF--is discarded.
Section 3004(q) does not itself address that question. The commenter's
statement that Sec. 3004(q) requires EPA to develop rules that
regulate emissions from burning hazardous waste for energy recovery is
correct, but does not address whether ECF is discarded--i.e., is solid
waste in the first instance. Under section 3004 (q), a hazardous
secondary material must first be a hazardous (and solid) waste before
restrictions can apply to burning it for energy recovery.
2. SWDA Sec. 3004(q)
Comment: The commenter notes that Sec. 3004(q) further expressly
provides ``[f]or purposes of this subsection, the term `hazardous waste
listed under section 6921 of this title' includes any commercial
chemical product which is listed under section 6921 of this title and
which, in lieu of its original intended use, is (i) produced for use as
(or as a component of) a fuel, (ii) distributed as a fuel, or (iii)
burned as a fuel.'' 42 U.S.C. 6924(q)(1) (emphasis added). Thus, the
commenter states that Sec. 3004(q) makes clear that Congress intended
any material that qualifies as hazardous waste to be regulated as
hazardous waste regardless of whether it is turned into a fuel,
marketed or distributed as a fuel, or burned as a fuel for energy
recovery. The commenter notes that Congress emphasized this point by
making clear that such materials are ``waste'' even if they are
``commercial chemical product[s]'' rather than materials that were not
deliberately produced for sale or some other purpose.
Response: The reference to ``commercial chemical products'' refers
to those hazardous secondary materials listed in Sec. 261.33 and does
not classify as wastes materials listed in that section which are
themselves ordinary fuels. At the time of the 1984 amendments, EPA had
in place a rule (former Sec. Sec. 261.2 and 261.33) which did not
classify those listed commercial chemicals burned as fuels as
discarded. Congress in promulgating Sec. 3004(q) made clear that
[[Page 77971]]
commercial chemical products listed in Sec. 261.33 not produced as
fuels were to be classified as hazardous wastes when burned for energy
recovery. Congress made equally clear that listed commercial chemical
products which were themselves ordinary fuels (for example, benzene,
toluene, and xylene) were not to be classified as wastes (see Sec.
3004(q)(1)) (reference to listed commercial chemical products includes
only those products listed in Sec. 261.33 which are not used for their
original intended purpose but instead are burned as a fuel; see also
H.R. Rep. 98-198, 98th Cong. 1st session 40 (same)). This has been
EPA's consistent interpretation of this provision. See 61 FR at 17459
(April 19, 1996) (commercial chemical benzene, toluene, and xylene are
not discarded when used as fuels since they are themselves fuels); 50
FR at 49168 n. 8 (Nov. 29, 1985) (pipeline interface from transport of
toluene not a waste when burned for energy recovery, under the same
principle).
This provision has been construed narrowly as applying solely to
commercial chemical products used as fuels in lieu of their normal use.
AMC I, 824 F. 2d at 1189. ECF is not such a material. See also related
responses below.
Comment: The same commenter states that the legislative history of
Sec. 3004(q) confirms that fuel produced from hazardous waste must be
regulated as hazardous waste. The commenter notes that, before Sec.
3004(q) was amended, EPA had created a regulatory provision that
``provided that unused commercial chemical products were solid wastes
only when `discarded' '' and defined that term as ``abandoned (and not
recycled) by being disposed, burned, or incinerated (but not burned for
energy recovery).'' American Mining Congress v. EPA, 824 F.2d 1177,
1188-1189 (DC Cir. 1987) (``AMC I'') (quoting 1983 regulatory
provisions) (emphasis added). To ``override'' that regulatory
provision, Congress added the following language to Sec. 3004(q),
according to the commenter: ``for purposes of this subsection, the term
`hazardous waste listed under section 6921 of this title' includes any
commercial chemical product which is listed under section 6921 of this
title and which, in lieu of its original intended use, is (i) produced
for use as (or as a component of) a fuel, (ii) distributed as a fuel,
or (iii) burned as a fuel.''' 824 F.2d at 1188-1189 (quoting 42 U.S.C.
6924(q)(1)) (emphasis added). The commenter notes that the House Report
on this amendment expressly states:
Hazardous waste, as used in this provision, includes not only
wastes identified or listed as hazardous under EPA's regulations,
but also includes any commercial chemical product (and related
materials) listed pursuant to 40 CFR 261.33, which is not used for
its original intended purpose but instead is burned or processed as
fuel. (Under current EPA regulations, burning is not deemed to be a
form of discard; hence listed commercial chemical products, unlike
spent materials, by products or sludges, are not deemed to be a
``waste'' when burned as fuel. They are only ``waste'' when actually
discarded or intended for discard.)
824 F.2d at 1189 (quoting H.R. Rep. No. 198, 98th Cong., 1st Session
40).
According to the commenter, the House Report affirms that ``EPA
already has the authority to regulate the blending and burning of
hazardous wastes for purposes of energy recovery'' and explains that
their objective is ``to accelerate the agency's rulemaking and close a
major gap in the present regulations and to set an outside deadline for
the regulation of all burning of hazardous wastes.'' H.R. Rep. No. 198,
98th Cong., 1st Session 42 (emphasis added). The House Report
reiterates that the legislation ``corrects a major deficiency in the
present RCRA regulations by requiring EPA to exercise its existing
authority over hazardous waste-derived fuels by regulating their
production, distribution and use.'' Id. at 39. In summary, the House
Report states:
EPA has asserted its jurisdiction over burning and blending of
hazardous waste for energy recovery * * * However, the committee
still believes, as it did last year, that legislation is necessary
to assure that the committee's objective in compelling EPA to
develop and implement a comprehensive regulatory program over
burning and blending for energy recovery are [sic] achieved, within
the timetable set by the committee. The provisions of Section 6 do
not grant EPA any new statutory authority; RCRA now provides EPA
full authority to regulate hazardous wastes that are blended or
burned for energy recovery and to regulate the owners and operators
of the blending and burning facilities. The committee wants to
assure that EPA will exercise its authority over all facilities that
blend or burn hazardous waste for energy recovery.
Id. at 39 (emphasis added). The commenter states that, as the DC
Circuit concluded from the amendment to Sec. 3004 and the House
Report, Congress deliberately addressed the burning of commercial
chemical fuels by ``deeming the offending materials to be `discarded'
'' and therefore within the statutory definition of `solid waste.' ''
824 F.2d at 1189.
Response: The DC Circuit's analysis directly contradicts this
comment. In American Mining Congress v. EPA (``AMC I''), 824 F.2d 1177,
1188-89, the DC Circuit, citing the same legislative history as the
comment, stated that the provision making non-fuel commercial chemicals
hazardous wastes was limited in scope and did not change the need to
first define any other hazardous secondary materials as solid wastes.
The court noted that EPA regulation in 1983 had provided that unused
commercial chemical products were solid wastes only when discarded,
which the Agency had defined as not including burning for energy
recovery. As a result, in the 1985 RCRA amendments, ``Congress
addressed this problem by deeming the offending materials to be
`discarded' and therefore within the statutory definition of `solid
waste.' This specific measure did not, however, revamp the basic
definitional section of the statute.'' AMC I at 1189.
The Court rejected, as circular, the implication in this argument,
and others, that a statutory statement that certain materials are, or
are not, solid or hazardous wastes, somehow, changes the definitional
provisions of RCRA. See AMC I at 1187, 1188, 1191. With respect to
3004(q), in particular, the court stated:
EPA argues that [section 3004(q)(1)] evinces Congressional
intent to include recycled in-process materials within the
definition of ``solid waste.'' We note at the outset that this
provision is likewise a subsection of [section 3004] and is
therefore directed towards hazardous waste treatment facilities. The
ever-present circularity problem thus looms here as well.
AMC I at 1188.
Therefore, a hazardous secondary material can be excluded from the
definition of solid waste even if it is burned for energy recovery.
Comment: The same commenter states that the structure of Sec.
3004(q) reinforces Congress' clear intent. Sections 3004(q)(2)(A) and
(B) contain two exemptions from the requirements of Sec. 3004(q)(1)
pertaining to facilities that burn, produce, distribute and market
hazardous waste fuel. The presence of these very narrow exemptions from
the regulations clearly indicates that Congress considered exactly
which fuels should be exempted from these requirements, according to
the commenter. The commenter states that the Act allows only a narrow
exemption for petroleum refinery wastes containing oil that are
converted into petroleum coke at the same facility at which such wastes
were generated, unless the resulting coke product would exceed one or
more characteristics by which a substance would be identified as a
hazardous waste under section 6921 of the Act. 42 U.S.C. 6924(q)(2)(A).
The
[[Page 77972]]
commenter states that the second exemption pertains to facilities that
burn de minimis quantities of fuel under certain specified
circumstances. According to the commenter, the exclusion is also
narrowly defined and requires that the Administrator determine that (1)
such wastes are burned at the same facility at which such wastes are
generated; (2) the waste is burned to recover useful energy as
determined by the Administrator on the basis of the design and
operating characteristics of the facility and the heating value and
other characteristics of the waste; and (3) the waste is burned in a
type of device determined by the Administrator to be designed and
operated at a destruction and removal efficiency sufficient such that
protection of human health and environment is assured. 42 U.S.C.
6924(q)(2)(B).
Response: The commenter again supposes that the hazardous secondary
materials at issue are wastes, the issue to be determined. This type of
circularity in reasoning was rejected, with respect to these very
provisions, by the DC Circuit in AMC I. See 824 F.2d at 1187-88 and
previous response. In addition, as also just explained, statutory
exemptions for hazardous secondary materials that have already become
wastes do not affect the basic definitional provision as to what
constitutes a waste in the first place. AMC I, 824 F.2d at 1187-88 and
n.16.
Comment: The same commenter states that the exclusion would deprive
Sec. 3004(q) of meaning and, indeed, is a transparent attempt by the
Agency to circumvent Sec. 3004 and elevate the current
administration's policy goal of excusing hazardous waste combustion
from pollution control requirements over Congress' decision that the
burning of hazardous waste and fuel produced from hazardous waste must
be regulated under the SWDA.
Response: This exclusion does not deprive Sec. 3004(q) of
practical meaning. Of the current universe of 1,943,000 tons per year
\63\ of hazardous waste burned for energy recovery, EPA estimates that
this rule will reclassify only 118,500 tons per year (or approximately
six percent) under the conditional exclusion. In any case, the issue is
whether ECF must be considered discarded even though it is physically
identical to, or has emissions comparable to, fossil fuels and is
otherwise managed so that discard does not occur when it is burned,
transported, or stored.
---------------------------------------------------------------------------
\63\ See 70 FR at 59530.
---------------------------------------------------------------------------
Comment: The same commenter states that SWDA Sec. 3004(r) further
confirms that Congress did not intend EPA to exempt hazardous waste
from SWDA regulation just because it is burned for energy recovery. The
commenter notes that Sec. 3004(r) expressly prohibits ``any person''
from distributing or marketing ``any fuel which is produced from
hazardous waste identified or listed under section 6921 of this title
or any fuel which otherwise contains any hazardous waste'' without a
label warning that such fuel ``CONTAINS HAZARDOUS WASTES'' and lists
the hazardous wastes contained therein. 42 U.S.C. 6924(r)(1). The
commenter also notes that Section 3004(r)(2) then provides a limited
exception from that labeling requirement covering only ``fuels produced
from petroleum refining waste containing oil if--(A) such materials are
generated and reinserted onsite into the refining process; (B)
contaminants are removed; and (C) such refining waste containing oil is
converted into petroleum-derived fuel products at a facility at which
crude oil is refined into petroleum products * * * '' 42 U.S.C. Sec.
6924(r)(2). Section 3004(r)(3) then provides EPA with authority to
create one further narrow exception from the labeling requirements for
``fuels produced from oily materials, resulting from normal petroleum
refining, production, and transportation processes, if (A) contaminants
are removed and (B) such oily materials are converted along with normal
process streams into petroleum-derived fuel products at a facility at
which crude oil is refined into petroleum products'' 42 U.S.C.
6924(r)(3). Both of the limited exceptions described in Sec.
3004(r)(2) and (3) are applicable ``unless the Administrator determines
otherwise as may be necessary to protect human health and the
environment.'' 42 U.S.C. Sec. 6924(r)(2) and (3). The commenter
believes that, by requiring the labeling of all fuel produced from
hazardous waste as hazardous waste and providing only limited
exceptions, which are conditioned on protection of human health and the
environment, Sec. 3004(r) further confirms that Congress intended that
hazardous wastes and fuels produced from hazardous wastes do not cease
to be hazardous wastes just because they are burned for energy
recovery. EPA's proposed exclusion deprives Sec. 3004(r) of meaning,
and is a transparent attempt to circumvent the limitations that section
imposes on the agency's discretion, according to the commenter.
Response: EPA disagrees with this comment. Although hazardous
wastes used as fuels are subject to the hazardous waste regulations,
the exclusion promulgated here is limited to that ECF that meets the
hazardous constituent specifications, as well as the other
specifications, as generated; that is, before it is a solid waste.
Thus, because section 3004(r), like Sec. 3004(q), is written in terms
of wastes, requiring in the first instance that a determination be made
as to whether a hazardous secondary material is a waste before the
provision can apply, we disagree with the commenter. For the reasons
already given, EPA has reasonably determined that ECF, in the first
instance, is not discarded.
3. Impact of the Exclusion on SWDA Sec. 3001(f)
Comment: The same commenter states that EPA's proposal also
circumvents Sec. 3001(f) and deprives it of meaning. The Agency
asserts authority to declare that listed wastes are not wastes if they
are burned for energy recovery under certain combustion conditions.
But, Sec. 3001(f) provides procedures for excluding listed waste from
listing and thus from regulation as hazardous waste. 42 U.S.C. 6921(f).
EPA thus deprives Sec. 3001(f) of meaning with regard to wastes that
are burned for energy recovery by interpreting the SWDA as allowing it
to exclude such wastes from the SWDA requirements--i.e., effectively to
delist them--without following the SWDA's delisting requirements.
Response: Section 3001(f) is not relevant here. It establishes a
mechanism for delisting listed hazardous wastes--i.e., evaluating
whether they are still hazardous. The issue here is whether the
hazardous secondary materials are wastes in the first instance, which
does not turn on an evaluation of hazard, but rather on whether they
are discarded.
4. Factors for Use in Determining an Exclusion
Comment: The same commenter states that the statute does not
provide authority for EPA to broadly exclude hazardous waste fuels from
the definition of solid waste based on factors that are absent in the
statute and that are contrary to its clear provisions and the intent of
Congress. The commenter states that EPA does not contend that the
material it purports to exclude is anything other than hazardous waste,
except to the extent that it is burned for energy recovery. According
to the commenter, the Agency's reliance on combustion with energy
recovery to transform a material that is otherwise undisputedly a
hazardous waste into a non-waste fuel
[[Page 77973]]
contravenes Congress' plainly expressed intent that hazardous waste
burned as fuel is still hazardous waste.
Response: As noted above, this is not EPA's position. EPA's
determination that ECF is not discarded is based on factors reasonably
relevant to that inquiry, namely the combination of management
conditions and physical identity which provide objective assurance that
ECF will not be discarded when stored, transported, or burned. With
respect to burning, EPA is stating that hazardous secondary materials
which are physically identical to normal fuels, except with respect to
particular hydrocarbon and oxygenate constituents which actually impart
fuel value to the material, need not be classified as ``discarded''
when they are burned under conditions where they are managed like fuel
oil and the emissions from a boiler burning ECF will be no different
than from a boiler burning the fuel oil that would often be used in
ECF's place. With respect to storage and transport, EPA is stating that
ECF will again be managed like a product (fuel oil or some other type
of organic liquid) or otherwise stored to assure that discard has not
occurred.
B. EPA's Use of Safe Foods and Fertilizers (SFAF) to Justify the
Exclusion
1. The Term ``Discarded'' With Regard to Hazardous Waste Burned for
Energy Recovery
Comment: A commenter states EPA's attempted reliance on Safe Foods
and Fertilizers (SFAF), 72 FR at 33290, is misplaced. SFAF addresses
EPA's exemption of certain ``recycled materials'' from SWDA
requirements. 350 F.3d at 1268. The SFAF Court found that the term
``discarded'' is ambiguous with respect to these materials. The
commenter states that it did not find that the term is ambiguous with
respect to material that otherwise qualifies as hazardous waste, but is
burned for energy recovery. Indeed, any such finding would have been
directly at odds with the text and legislative history of the SWDA, as
well as with binding prior precedent, according to the commenter.
Response: The comment misreads Safe Food. The Safe Food court held
that materials were reasonably classified as non-wastes--not
discarded--based on a set of conditions under which EPA had determined
that ``market participants treat the exempted materials more like
valuable products than like negatively-valued wastes, managing them in
ways inconsistent with discard, and that the fertilizers derived from
these recycled feedstocks are chemically indistinguishable from
analogous commercial products made from virgin materials.'' 350 F. 3d
at 1269. The same principles are applicable to ECF. ECF will be managed
as a valuable product due to the conditions on management which
objectively assure lack of discard, and ECF is indistinguishable from
fuel oil with respect to physical composition and emissions--emissions
of hazardous constituents from boilers burning ECF will be the same as
those from a boiler burning fuel oil.
2. Application of the Identity Principle to ECF
Comment: The same commenter states that EPA does not argue that
emission-comparable fuels are ``chemically indistinguishable'' from
analogous commercial products (ordinary fuel). EPA apparently believes
that it need not show chemical identity. Instead, EPA rests its case on
an assertion that it need only show that the ``secondary materials are
physically comparable to virgin products which would be used in their
place, or which pose similar or otherwise low risks when used in the
same manner as the virgin product.'' 72 FR 33290.
The commenter states that EPA's version of ``comparable'' identity
in lieu of ``chemically indistinguishable'' identity is unreasonable
and contrary to the ruling in SFAF. The SFAF Court required that the
secondary materials be ``indistinguishable in the relevant respects.''
SFAF at 1269. The Court explains that it does not believe that
affirmance of the EPA's principle requires literal identity, so long as
the differences are so slight as to be substantively meaningless when
viewed from the ``perspective based on health and environmental
risks.'' Id. at 1270. The commenter states further that, in the case of
the zinc fertilizers at issue in SFAF, EPA pointed to two risk
assessments that purported to show that the secondary materials
presented risks ``considerably below levels that we estimate (albeit
roughly) to be safe for humans and ecosystems.'' Id. citing 67 FR at
48,403/3.
Response: The ``identity'' principle, as described by the Safe Food
court, refers to ``contaminant limits assuring substantial chemical
identity'' with products made from virgin materials. 350 F.3d at 1269.
Where contaminant levels in the excluded fertilizer differed
substantially from those in the virgin fertilizer for which it
substituted, the Court further decided it could affirm EPA's identity
principle as a basis for exclusion if, based on the Agency's analysis
of health and environmental risks, the differences are so slight as to
be substantively meaningless. See 350 F. 3d at 1270 ( ``the apparent
differences in the EPA's exclusion ceilings and the contaminant levels
in the virgin fertilizer samples lose their significance when put in
proper perspective--namely, a perspective based on health and
environmental risks.'').
Here, there are no ``apparent differences'' in environmental effect
from burning ECF in place of fuel oil. We have explained at proposal,
in this preamble, and in supporting documents that the conditions on
burning--including in particular that the ECF constituent feedrate
limits coupled with the requirement of identical concentrations of most
hazardous constituents for ECF and for fuel oil--will ensure that there
will be no difference in environmental effect between burning ECF or
fuel oil in a boiler. Because there is no end environmental difference
between burning the hazardous secondary material and the virgin fossil
fuel for which it could substitute, ECF meets the ``identity'' test
under Safe Food. See 350 F. 3d at 1270-71 (physical difference not
considered determinative of discard where that difference does not
result in adverse environmental effect).\64\
---------------------------------------------------------------------------
\64\ Please note, however, that we have shown that the emissions
from the ECF oxygenates other than acrolein would result in maximum
annual average ground level concentrations that would be orders of
magnitude lower than their reference air concentrations (RfCs). See
discussion in Part Three, Section III.B.3 of the preamble. Although
acrolein emissions may result in maximum annual average ground level
concentrations that approach the RfC, acrolein emissions from
burning ECF will be no greater than measured acrolein emissions from
an oil-fired industrial boiler.
---------------------------------------------------------------------------
3. Need for a Risk Assessment
Comment: The same commenter states that EPA has not presented a
risk assessment in the record to show that storage, transport, burning
and disposal of ECF presents no risk of harm to health and the
environment. EPA performed a ``risk screening'' pertaining only to the
burning of ECF, but a screening is not an adequate substitute for an
assessment, and the screening did not address the potential threats
posed by storage, transportation and management of waste residuals.
Response: Again, the comment misreads Safe Food. The Court
evaluated several identity scenarios which required different levels of
analysis depending on the contaminant levels in the final product. See
350 F.3d at 1269-72. The type of analysis varied from chemical to
chemical and the various chemicals required different
[[Page 77974]]
levels of analysis depending on how they related to the virgin
materials and what kinds of assessment of risk were needed by EPA. It
is instructive to review the Court's analysis to evaluate how it
relates to the Agency's analysis of ECF.
As in the comment to this rule, the petitioners in Safe Food
objected to the ``factual predicate'' of EPA's identity principle
because the petitioners argued that the levels EPA picked were not
``identical'' to what was found in products made from virgin materials.
350 F.3d at 1269. Of particular difficulty was the situation in which,
for some cases, contaminant levels in the recycled products would
appear to be ``sometimes considerably higher'' than in products made
from virgin materials. Id. In general, the court determined that it
could affirm EPA's determination if, based on the Agency's analysis of
health and environmental risks, the differences are so slight as to be
substantively meaningless and found that ``the apparent differences in
the EPA's exclusion ceilings and the contaminant levels in the virgin
fertilizer samples lose their significance when put in proper
perspective--namely, a perspective based on health and environmental
risks.'' 350 F.3d at 1270.
For four contaminants--lead, arsenic, mercury and cadmium--EPA
picked levels in the recycled fertilizer product that were related to
the ``concentration levels found in virgin materials.'' 350 F.3d at
1271; see 350 F.3d at 1270 (Table titled ``Comparison of EPA Limit and
Virgin Commercial Samples * * *''). In addition, the court relied on
risk assessments performed by industry to determine that the levels
``do not endanger human health or the environment until they are
present in concentrations between 20 and 372 times'' the levels EPA
allowed in its regulations. 350 F.3d at 1270. In response to the
petitioners' argument that the industry studies should be given no
weight, the court deferred to EPA's technical judgment that, even
though the studies could be more rigorous, they were ``a good enough
benchmark for * * * levels that were tiny fractions of the risk
thresholds.'' Id. Accordingly, the court found that the levels of these
contaminants ``did not undermine the EPA's application of its identity
principle.'' Id.
For dioxin, EPA needed a more rigorous analysis. In that case, EPA
did not set the limit on concentration levels found in virgin
materials, but instead set a limit of 8 parts per trillion (ppt),
``similar to the average background dioxin concentration in soil.''
Even though commercial fertilizers had levels much lower at 1 ppt,
basic risk findings from prior risk assessments showed that dioxin did
not pose a risk at background levels and no comments on the rule
challenged the basic risk determinations. The court, therefore, found
that EPA was reasonable that the 8 ppt standard was ``'identical'
enough'' to support a finding that the excluded fertilizers were
products rather than wastes. 350 F.3d at 1271.
The court made a different decision for chromium and remanded the
decision to the Agency to ``clarify'' the chromium level. 350 F.3d at
1271-72. The industry study did not show the high risk thresholds for
chromium as it did for the other contaminants. Also, EPA did not report
such a risk threshold in the final rule and the court found that the
results of an EPA risk study on chromium ``are not easily translatable
by lay judges into a form comparable with the proposed exclusion
ceiling.'' 350 F.3d at 1271. Moreover, the court found ``particularly
striking'' the difference between the chromium level for fertilizers
made from recycled hazardous secondary materials and for chromium in
fertilizer made from virgin materials. EPA set a level at 21.3 parts
per million (ppm) for recycled fertilizer. However, of twenty virgin
fertilizer samples reported, six reported chromium--one of 8 ppm and
five less than 1 ppm. Thus, EPA's level was double the highest sample,
ten times the sample mean, and twenty times the sample median, with
nothing the court could understand which indicated that these
differences were trivial from a health and environment perspective.
In summary, for none of the contaminants at issue was EPA required
to perform a full ``risk assessment'' to determine that there is ``no
risk of harm to human health or the environment,'' as the commenter
would have it. Instead, the Court found it reasonable for EPA to rely
on information commensurate with the relationship of products made with
virgin materials to products made with non-discarded hazardous
secondary materials. In some cases (dioxin and chromium), EPA needed a
more rigorous analysis. 350 F.3d at 1271. For other materials (heavy
metals), EPA's analysis was less rigorous and nonetheless appropriate.
EPA's analysis for ECF falls well within the parameters evaluated
by the court in Safe Food. As noted in the response to the previous
comment, there is no end environmental difference between the
activities of burning for energy recovery of fuel oil and ECF. This
rule thus does not pose the issues the Safe Food court faced regarding
dioxin or chromium levels, although it should be noted that EPA's
approach here resulting in no increase of emissions of ECF constituents
from a boiler burning ECF compared to that boiler burning fuel oil has
similarities with the approach to dioxin upheld in Safe Food where the
specification was established to assure no increases in ambient levels
of that contaminant from use of the excluded fertilizer. There thus is
no need to justify differing environmental outcomes from burning by
showing de minimis risk.
We have also explained that the conditions on storage of ECF,
although based substantially on controls applicable to analogous
products, are enhanced to assure that discard is not occurring through
conditions relating to primary and secondary containment (e.g.,
secondary containment and leak detection conditions for tanks;
containment system conditions for containers). Thus, the storage
conditions under the exclusion are equivalent to the storage
requirements currently applicable to ECF currently classified as
hazardous waste or to analogous fossil fuels or product or by-product
organic liquids. Finally, with respect to the hazards associated with
the transportation of ECF, we note that ECF is subject to DOT's
requirements for hazardous materials. Thus, ECF is subject to the same
packaging, labeling, marking, and placarding requirements as hazardous
waste, and each ECF shipment must be accompanied by a DOT hazardous
material shipping paper. These controls assure that ECF's market
participation when stored and transported will be as a valued
commodity, without discard.
4. Applicability of the Market--Participation Theory to ECF
Comment: The same commenter states that, although the SFAF test
clearly comprises two parts, EPA fails to address the second part of
the test, which is that ``market participants must treat the materials
more like valuable products then like negatively-valued waste.''
Presently, the record shows that hazardous wastes that can be burned as
fuel, which are not eligible for the existing comparable fuels
exclusion, are largely shipped to hazardous waste incinerators and
cement kilns for incineration. Generators of such hazardous waste are
required to store and transport such waste under stringent subtitle C
regulation. The wastes are presently not treated like valuable
products, i.e., as feedstock for commercial products or valuable fuel
for energy production. In the case at issue in SFAF, the materials were
``feedstocks in a non-discarded final
[[Page 77975]]
product'' (the zinc fertilizer). Here, the hazardous waste is not a
feedstock in a non-discarded final product. EPA must demonstrate why it
believes that ECF meets the market participation test set forth in
SFAF.
Response: The commenter misreads EPA's determination with respect
to the exclusion in this rule. EPA is finding that when ECF is stored,
transported and burned under the conditions set forth in the rule--
i.e., when ECF participates in the market--market participants will
manage ECF as a valuable commodity, not as a waste. They will do so
because: (1) Pursuant to the conditions set out for the exclusion,
storage of the material will include storage safeguards to which fuel
oil and product organic liquids are subject, plus additional conditions
to assure containment; (2) the conditions on burning assure that
burning will occur under the same optimized combustion conditions as
product fuel oil when carefully combusted in industrial boilers; (3)
the feedrate conditions assure that emissions of ECF constituents from
a boiler burning ECF will be comparable to (i.e., the same as)
emissions from a boiler burning fuel oil; and (4) the physical
composition conditions assure that the remaining hazardous constituents
are present in no greater concentrations than in fuel oil. Thus, it is
reasonable for EPA to determine that the conditions of the rule provide
an objective assurance of ECF not being discarded in the first instance
and, ultimately, used as a valuable fuel commodity by market
participants under the same conditions and with the same emissions as
valuable fuel commodities, e.g., fuel oil.
``Market participation'' and ``identity'' are also more closely
related than the commenter would have it. Physical identity of a
hazardous secondary material with a commercial product for which it
substitutes is itself an aspect of market participation, assuring that
the hazardous secondary material will be managed as a valuable
commodity--the commodity to which it is identical, and not be
discarded. Cf. Safe Foods, 350 F.3d at 1269 (``[n]obody questions that
virgin fertilizers and feedstocks are products rather than wastes. Once
one accepts that premise, it seems eminently reasonable to treat
materials that are indistinguishable in the relevant respects as
products as well''). Thus, the exclusion for the zinc fertilizers at
issue in Safe Foods contains no conditions on market participation
beyond meeting the hazardous constituent concentration specifications,
plus sampling of the fertilizers to document that the fertilizers meet
those specification levels, whereas more market participation
conditions attached to the hazardous secondary materials used to
produce the excluded fertilizers. See 40 CFR section 261.4(a)(21) and
(20). In any event, evaluated separately, EPA believes that the rule is
entirely consistent with the market participation and identity
principles set out in Safe Foods.
Finally, in response to the commenter's statement that hazardous
waste fuels that are currently sent to hazardous waste incinerators and
cement kilns are burned for incineration, we note that these materials
are burned for energy recovery in lieu of fossil fuels. Cement kilns
burn hazardous waste fuels in lieu of coal to provide the heat to
calcine limestone to produce clinker product, and hazardous waste
incinerators burn hazardous waste fuels in lieu of fuel oil or natural
gas to provide heat to combust wastes with little or no heating value.
III. Conditions for Storage of ECF
A. Storage in Containers
Comment: In response to a request for comment at proposal as to
whether generators would be likely to store ECF in containers, several
commenters state that storage in containers should be allowed to enable
smaller volume ECF generators to use the exclusion. Other commenters
oppose allowing storage in containers. One commenter states that
storage of ECF in drums may easily allow indiscriminate mixing of other
wastes due to the lack of adequate controls. Another commenter states
that storage of ECF in containers should not be allowed because, absent
hazardous waste standards and permit requirements, container storage
would pose a hazard to the public.
Response: We agree with the commenters that support allowing
storage of ECF in containers. Therefore, the final rule allows storage
of ECF in containers under conditions that are similar to the
conditions for storage in tanks. As discussed below, the conditions for
ECF container storage are adopted from the provisions applicable to
commercial products analogous to ECF or are equivalent to the hazardous
waste container requirements under Subparts CC and BB of Part 264
(which controls are based on those for containers storing organic
liquid products or byproducts).
Regarding the commenter's concern for the potential for
indiscriminate mixing of waste with ECF, if ECF does not meet the
specifications under Sec. 261.38(a)(2), the material loses the
exclusion and must be managed as a hazardous waste from the point of
generation. In addition, ECF must meet the specifications for exclusion
as-generated; blending, dilution, or other treatment is not allowed to
meet the specifications.
The discharge prevention conditions for container storage are
adopted from the SPCC requirements and the emergency procedure
provisions are adopted from the hazardous waste storage requirements
for containers and are identical to those adopted for ECF tanks. This
is appropriate because container storage can pose the same types of
hazards as tank storage.
The conditions to provide containment for container storage are
adopted from the requirements for used oil stored at burner
facilities,\65\ coupled with the controls adopted from the hazardous
waste container requirements to address the additional hazards that ECF
container storage can pose. We note that we mentioned at proposal that
if the final rule allowed container storage, we would subject
containers to conditions similar to those that apply to hazardous waste
containers. See 72 FR at 33301. We adopt the containment conditions for
containers from the containment requirements for hazardous waste
container storage units under Sec. 264.173. This is appropriate
because: (1) These requirements include the requirements for used oil
container storage, as well as provisions that address the hazards that
ECF containers can pose; and (2) ECF container storage units are
currently subject to those containment requirements, which address
hazards that remain after the ECF exclusion is claimed.
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\65\ See Sec. 279.64(b) and (c) requiring that containers be in
good condition and stored in an area with a containment system
comprised of dikes, berms, or walls surrounding a floor, which are
impervious to used oil.
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To establish conditions to control fugitive air emissions from
containers and leaks from equipment that contains or contacts ECF at
the container storage unit, our principles are as follows. First, we
adopt the OLD NESHAP controls that apply to containers. This is
appropriate for the reasons discussed at proposal in the context of
adopting the OLD NESHAP controls for tanks. See 72 FR 33305. Second,
for containers that are not subject to the OLD NESHAP, we adopt the
NESHAP emission standards for containers under Subpart PP, Part 63.
This is appropriate because the Agency developed these standards for
storage of organic liquid feedstock, products, and by-products by
manufacturing facilities, and ECF is an organic liquid product. Third,
to determine the applicability of the Level
[[Page 77976]]
1 or Level 2 controls under Subpart PP, we adopt the container size and
other criteria (i.e., whether the ECF meets the definition of a ``light
liquid'') that the Agency established for hazardous waste containers
under Sec. 264.1086(b)(1). These hazardous waste container
applicability criteria establish the applicability of Level 1 or Level
2 controls under Sec. 264.1086(c) and (d) which are equivalent to the
Level 1 or Level 2 controls under Subpart PP. It is reasonable to adopt
the hazardous waste container applicability criteria because ECF
containers pose air emission hazards that remain after the ECF
exclusion is claimed. Finally, we do not adopt provisions under Subpart
PP that are not relevant, such as the applicability of the subpart to
other Part 63 subparts, enforcement of the subpart under the CAA, and
provisions for site-specific waivers or approval of alternative
provisions.
By applying these principles, we establish the following air
emission conditions for containers.
Containers Subject to the OLD NESHAP. We adopt the fugitive air
emission conditions for container storage units from the OLD NESHAP.
See Sec. 261.38(c)(1)(vi). Although the OLD NESHAP controls air
emissions during distribution operations, it does not address air
emissions from other aspects of container management, such as storage
and unloading liquids from containers. In fact, the OLD NESHAP is
applicable to ECF containers only when ECF that meets the adopted
definition of organic liquid \66\ is being loaded into a container with
a capacity greater than 55 gallons at a transfer rack at a new facility
where the annual volume of ECF is 800,000 gallons or more. See Items 9
and 10 in Table 2 to adopted Subpart EEEE which subject such containers
generally to Level 3 control under Subpart PP, Part 63. Consequently,
we adopt other controls as conditions for containers that are not
subject to the OLD NESHAP, as discussed below.
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\66\ The ``adopted definition of organic liquid'' means ECF that
contains 5 percent or greater by weight of the RCRA oxygenates, as
well as organic HAP listed in Table 1 to Subpart EEEE, and that has
an annual average true vapor pressure of 0.1 psia or greater. See
Sec. 261.38(c)(1)(vi)(B)(4).
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We also adopt the OLD NESHAP provisions that control leaks from
equipment (e.g., pumps, valves) that contain or contact ECF in a
storage unit that has a container subject to control under Items 9 or
10 in Table 2 to adopted Subpart EEEE. These provisions under adopted
Sec. 63.2346(c) require compliance with the applicable requirements of
the following NESHAP subparts: Subpart TT (Level 1 control), or Subpart
UU (Level 2 control), or Subpart H.
Containers That Are Not Subject to the OLD NESHAP. To ensure that
air emissions from other ECF containers are controlled, we adopt in
this final rule the applicability criteria for hazardous waste
containers under Sec. 264.1086(b)(1) to determine the applicability of
the Level 1 or Level 2 national emission controls under Subpart PP,
Part 63. Using the hazardous waste container applicability criteria for
ECF containers is consistent with our principle of ensuring that
controls through conditions are provided for the storage hazards that
remain after the ECF exclusion is claimed, thus assuring safe handling
commensurate with ECF's classification as a product and ensuring that
it does not become part of the waste disposal problem. See AMC II, 907
F.2d at 1186. The national emission standards for Level 1 and Level 2
controls under Subpart PP are appropriate because they apply to
containers storing raw materials, products, and by-products at
manufacturing facilities and are equivalent to the Level 1 and Level 2
controls required for hazardous waste containers under Sec.
264.1086(c) and (d).
Under these adopted provisions, a container having a design
capacity greater than 0.1 cubic meters (26 gallons) can comply with the
conditions if it: (1) Meets the applicable DOT regulations on packaging
hazardous materials for transportation; and (2) is kept closed unless
ECF is being added or removed from the container.
To control leaks from equipment that contains or contacts ECF at
container storage units, we adopt the equipment leak provisions from
the OLD NESHAP. The OLD NESHAP subjects containers to the Part 63
NESHAP for equipment leaks if the facility has a tank or container
subject to air emission controls under Table 2 to Subpart EEEE: Subpart
TT (Level 1 control), or Subpart UU (Level 2 control), or Subpart H.
These are alternative controls. Owners and operators can elect to
comply with a level of control among these alternatives. For ECF
equipment leaks for equipment not subject to OLD, we adopt the same
NESHAP controls required under OLD, and use the hazardous waste
equipment leak applicability criterion under Sec. 264.1050(b) to
determine when those controls, as conditions, apply.\67\ As a practical
matter, the controls will apply to all equipment that contains or
contacts ECF in a container storage unit. This is because Sec.
264.1050(b) subjects equipment that contains or contacts hazardous
waste with an organic concentration of at least 10 percent by weight to
the equipment leak requirements. Given that ECF will invariably have an
organic concentration of at least 10 percent, the adopted equipment
leak controls apply to all equipment that contains or contacts ECF in a
container storage unit.
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\67\ As discussed elsewhere in the preamble, it is reasonable to
use the hazardous waste applicability criteria to establish
applicability of the equipment leak controls for ECF equipment given
our principle of controlling hazards that remain after the ECF
exclusion is claimed.
---------------------------------------------------------------------------
In adopting the NESHAP equipment leak controls for equipment that
contains or contacts ECF, we are omitting those provisions that are not
relevant (e.g., applicability provisions referencing other Part 63
subparts; CAA enforcement). Consequently, we are adopting the following
alternative conditions: (1) Subpart TT, Part 63, (Level 1 control),
except for Sec. 63.1000; (2) Subpart UU (Level 2 control), except for
Sec. 63.1019; and (3) Subpart H, except for Sec. Sec. 63.160,
63.162(b) and (e), and 63.183.
B. Alternative Hazardous Waste Storage Conditions
We requested comment at proposal on whether the conditions to
control air emissions from tank systems would be easier to understand
and implement if we simply adopted the hazardous waste provisions under
Part 264, Subparts AA, BB, and CC rather than adopting controls under
the OLD NESHAP.
Comment: Several commenters suggest that the Agency adopt the
hazardous waste storage requirements for ECF storage units in lieu of
the collection of SPCC, OLD NESHAP, and hazardous waste storage
controls that we proposed to avoid the complications created by
adapting and then adopting those controls for ECF.\68\
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\68\ We note that the collection of adopted controls is even
more complicated in the final rule given the need to adopt controls
for containers, and the need to adopt air emission controls for
tanks and containers that would not be subject to the adopted
provisions of the OLD NESHAP. See discussion below in the preamble
in Part Four, Section III.C.
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Response: While we acknowledge that the adapted and adopted
controls on ECF storage are complicated, and that hazardous waste
generators and burners may not be familiar with them, we believe it is
appropriate to retain those conditions. Those conditions are our best
effort to ensure that ECF is subject (via conditions) to controls for
analogous products and that address hazards that remain after the ECF
exclusion is claimed, assuring that in its management, ECF will not
become ``part of the waste disposal problem'' (AMC I,
[[Page 77977]]
824 F. 2d at 1186), and so is not discarded.
Nonetheless, we understand commenters' concerns and have,
therefore, provided alternative storage conditions that are adopted
solely from the hazardous waste storage requirements under Part 264,
Subparts I (containers), J (tanks), AA (closed vent systems and control
devices), BB (equipment leaks), and CC (air emissions from tanks and
containers).\69\ These conditions are coupled with the other general
requirements that apply to hazardous waste storage units to ensure
containment and protection of human health and the environment, and
which address security; inspections; personnel training; ignitable,
reactive, and incompatible material; preparedness and prevention; and a
contingency plan and emergency procedures. See Sec. 261.38(e). ECF
storage units are currently subject to these conditions and the
conditions parallel the suite of conditions adopted from the SPCC
provisions, the OLD NESHAP, and the hazardous waste provisions that are
the base storage conditions provided under Sec. 261.38(c)(1)(ii-viii).
---------------------------------------------------------------------------
\69\ As noted, the Subpart AA, BB, and CC controls are
themselves adapted from controls for product and byproduct organic
liquids, and so are analogous to controls used for product container
storage.
---------------------------------------------------------------------------
C. Air Emission Controls for Tanks
Comment: One commenter states that the air emission controls for
tanks adopted from the OLD NESHAP under Subpart EEEE, Part 63, are not
equivalent to the hazardous waste tank controls that currently apply to
ECF and could allow an increase in hazardous air emissions. The
commenter notes that tanks not meeting the adopted OLD criteria for
design capacity and ECF vapor pressure would not be subject to the OLD
controls, while those tanks are currently subject to the hazardous
waste tank air emission controls. In addition, the commenter notes that
the OLD vapor pressure criterion for organic HAP and RCRA oxygenates in
ECF for determining applicability of air emission controls is based on
the ``annual average true vapor pressure,'' while the vapor pressure
criterion for applicability of the hazardous waste tank air emission
controls is based on the ``maximum organic vapor pressure.'' The
commenter believes that the OLD controls may not be adequately
protective and, therefore, the hazardous waste tank controls should be
adopted for ECF tanks.
Response: We continue to believe that, because ECF is a product, it
should be subject to the same controls that apply to analogous
products. This provides an objective indication that the materials are
not discarded. Consequently, it is reasonable to adopt conditions for
storage of ECF from the OLD NESHAP, as discussed at proposal. See 72 FR
at 33305.
Nonetheless, as discussed previously in this preamble and at
proposal, the OLD NESHAP does not address hazards from the storage of
ECF that remain after the exclusion is claimed because certain types of
ECF storage activities would not be subject to that rule. Consequently,
we proposed to adopt provisions of the OLD controls so that those
controls address all ECF tanks. See 72 FR at 33306.
In light of the commenter's concerns, we have reviewed the proposed
tank air emission controls and conclude that: (1) We inadvertently
proposed to expand the applicability of the adopted OLD controls to two
tank capacity and ECF vapor pressure scenarios that would have
established controls that are more stringent than the hazardous waste
tank controls for those scenarios; (2) there are additional tank
capacity and ECF vapor pressure scenarios where ECF that meets the
adopted definition of an organic liquid would not be subject to the
adopted OLD controls, but should be to assure that all ECF is subject
to the controls for product organic liquids, or controls comparable
thereto; (3) we inadvertently did not propose to adopt air emission
controls for tanks that store ECF that does not meet the adopted
definition of organic liquid and these tanks need to be subject (via
condition) to product organic liquid controls, or controls comparable
thereto, when all other tanks storing ECF are; and (4) it is reasonable
to adopt the OLD definition of annual average vapor pressure rather
than the hazardous waste definition of maximum organic vapor pressure.
We discuss these issues below.
Proposal To Expand OLD Controls to Additional Tank Capacity and ECF
Vapor Pressure Situations. We explained at proposal that the OLD NESHAP
would not require controls for two tank size/vapor pressure scenarios:
(1) Existing, reconstructed, or new ECF tanks with a capacity less than
5,000 gallons handling ECF with a RCRA oxygenate and organic HAP vapor
pressure equal to or greater than 76.6 kPa; and (2) existing ECF tanks
with a capacity in the range of 5,000 gallons to 50,000 gallons
handling ECF with a RCRA oxygenate and organic HAP vapor pressure in
the range of 5.2 kPa (0.75 psia) to 76.6 kPa. (11.1 psia).\70\ See 72
FR at 33306-07. Consequently, we proposed to adopt the OLD NESHAP
controls for those two tank size/vapor pressure scenarios. In
retrospect, however, we do not believe it is appropriate to expand OLD
control to those tank capacity/vapor pressure scenarios because the
adopted OLD controls would be more stringent than the hazardous waste
controls that currently apply to the ECF tank. See discussion below
where we explain how the final rule provides appropriate controls via
conditions for those two scenarios.
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\70\ Please note that, as discussed in this section, we have
since determined that there are other tank capacity/vapor pressure
scenarios for which OLD would not apply, and OLD would not apply to
tanks storing ECF where ECF does not meet the adopted definition of
organic liquid.
---------------------------------------------------------------------------
Air Emission Conditions for Tanks and Containers that Are Not
Subject to Conditions Adopted from Part 63, Subpart EEEE. We have
determined since proposal that, in addition to the two scenarios
discussed above, there are other ECF tanks that would not be subject to
the adopted OLD controls even though they are currently subject to
hazardous waste tank controls: (1) Tanks with a design capacity in the
range of 5,000 to 50,000 gallons when the ECF meets the adopted
definition of organic liquid and has a vapor pressure in the range of
0.1 psia to 0.75 psia; and (2) all tanks storing ECF that does not meet
the adopted definition of organic liquid (i.e., ECF that contains less
than five percent by weight of the RCRA oxygenates, as well as organic
HAP, or has an annual average vapor pressure less than 0.1 psia).
The final rule establishes conditions to control air emissions for
these ECF tank scenarios--ECF tanks that are not subject to the adopted
OLD controls, but that are currently subject to the hazardous waste
tank air emission controls. See Sec. 261.38(c)(1)(vii). Using the
hazardous waste tank applicability criteria for tank capacity and ECF
vapor pressure under Sec. 264.1084(b)(1) is consistent with our
primary principle stated at proposal for establishing tank air emission
controls: Emissions should be controlled to a level comparable to
levels currently required given that air emissions from storage and
handling of ECF can pose the same hazards as storage and handling of
the hazardous waste. See 72 FR at 33306.
We therefore use the hazardous waste tank capacity/vapor pressure
applicability criteria that designate whether Level 1 or Level 2
emissions control apply to establish conditions for ECF tanks that
provide at least equivalent control. Rather than adopting the hazardous
waste tank controls
[[Page 77978]]
verbatim, however, we adopt a suite of alternative NESHAP controls that
are equivalent to the hazardous waste tank controls. This is
appropriate because ECF is a product and these controls apply to tanks
storing organic liquid feedstocks, products, and by-products at
manufacturing facilities.
To establish a suite of alternative controls for ECF tanks that are
equivalent to the hazardous waste tank Level 1 controls, we adopt: (1)
The Level 1 national emission standards for tank air emissions provided
by Subpart OO, Part 63; (2) the OLD controls designated under Item 1 in
Table 2 to Subpart EEEE,\71\ Part 63; and (3) three additional
alternative control measures provided for (Level 2) control for
hazardous waste tanks-venting to a control device, a pressure tank, and
a tank located in an enclosure that is vented to a combustion control
device.\72\
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\71\ These OLD controls are equivalent to Level 2 hazardous
waste tank controls (e.g., alternative controls include an internal
or external floating roof).
\72\ Although our preference is to adopt NESHAP controls for ECF
tanks, it is reasonable to adopt hazardous waste tank controls as
alternatives to the adopted NESHAP controls.
---------------------------------------------------------------------------
To establish a suite of alternative controls for ECF tanks that are
equivalent to the hazardous waste tank Level 2 controls, we adopt: (1)
The OLD controls designated under Item 1 in Table 2 to Subpart EEEE,
Part 63; and (2) the three additional alternative control measures
provided for (Level 2) control for hazardous waste tanks-venting to a
control device, a pressure tank, and a tank located in an enclosure
that is vented to a combustion control device.
Finally, the tank air emission controls include conditions to
control air emissions from leaks from equipment that contains or
contacts ECF. We adopt the same equipment leak conditions for tank
storage units that we adopted for container storage units, and for the
same reasons: (1) Subpart TT, Part 63, (Level 1 control), except for
Sec. 63.1000; or (2)Subpart UU (Level 2 control), except for Sec.
63.1019; or (3) Subpart H, except for Sec. Sec. 63.160, 63.162(b) and
(e), and 63.183. See discussion in Part Four, Section III.A above.
Vapor Pressure Criterion. It is reasonable to adopt the OLD
definition of annual average vapor rather than the hazardous waste
definition of maximum organic vapor pressure to establish the
applicability of the adopted OLD controls. The OLD controls are equally
or more stringent than the hazardous waste controls for all tank
capacity/vapor pressure scenarios that are applicable to ECF tanks. For
ECF tanks that are not subject to the adopted OLD controls, the
hazardous waste tank vapor pressure definition under Sec. 264.1083(c)
applies when determining the applicability of the adopted controls as
discussed above, and those adopted controls are at least equivalent to
the hazardous waste tank controls. Consequently, adopting the OLD
definition of vapor pressure will still ensure that tank air emission
controls are equivalent to hazardous waste tank air emission controls.
D. Definitions of Tank Cars and Tank Trucks
Comment: A commenter states that the definition of tank cars and
tank trucks in the proposed rule is unclear.
Response: The final rule does not use the terms tank car or tank
truck. These terms are used, however, in the adopted SPCC requirements.
Although the SPCC requirements do not explicitly define these terms, a
tank car is a container used to transport ECF by rail, and a tank truck
is a container used to transport ECF by roadway.
E. Adequacy of the ECF Storage Conditions
Comment: Several commenters believe that ECF storage poses a
greater hazard than fuel oil, the product that EPA states is most
analogous to ECF. The commenters believe that the hazardous waste
storage controls are needed to address the hazards posed by storage of
ECF.
Response: We stated at proposal that fuel oil is the most analogous
product to ECF and, thus, the ECF exclusion would typically be
conditioned on meeting storage controls that are applicable to fuel oil
as a means of assuring lack of discard. We also stated, however, that
additional controls are necessary to minimize the potential for
releases to the environment (i.e., discard). See 72 FR at 33301. The
SPCC controls, coupled with the other controls (e.g., secondary
containment, preparedness and prevention, emergency procedures, air
emissions) are equivalent to the controls that apply to hazardous waste
storage units. Consequently, the storage of ECF will pose no greater
hazard than storage of hazardous waste based upon the conditions drawn
from the requirements for storage of organic liquids and hazardous
wastes.
F. Management of Residues in Tanks
Comment: A commenter states that the management of residues in
tanks and containers during operation is not addressed. The commenter
believes that the final rule should be clear that solids and other
wastes generated as a result of managing ECF are hazardous waste
irrespective of when they are generated.
Response: As proposed, the final rule states that 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 the excluded fuel product (i.e.,
ECF or comparable fuel) are subject to regulation as hazardous waste if
identified or listed as a hazardous waste. In addition, 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 the excluded fuel product are solid wastes
subject to regulation as hazardous waste if the waste exhibits a
characteristic of hazardous waste under Sec. Sec. 261.21 through
261.24 or if the fuel were otherwise listed under Sec. Sec. 261.31
through 261.33 when the exclusion was claimed. See Sec.
261.38(b)(13)(i) and (ii).
We inadvertently did not address the situation raised by the
commenter, however; that is, where residues may be removed from an ECF
container or tank that remains in ECF service, and where the ECF no
longer meets the specification for the exclusion. We agree with the
commenter that such hazardous secondary materials should be managed as
a hazardous waste if it exhibits a characteristic of hazardous waste
under Sec. Sec. 261.21 through 261.24 or if the hazardous secondary
material would otherwise have been listed as a hazardous waste when the
exclusion was claimed. See Sec. 261.38(b)(13)(iii).
G. Closure Conditions for ECF Tanks
Comment: Commenters state that EPA should apply the closure
requirements to ECF storage units. They argue that EPA appears to
disregard the fact that facilities may store substantial amounts of ECF
in these tank systems for significant periods of time. Acknowledging
that spilling, seepage and releases routinely occur during waste
storage, the closure requirements provide assurance that the party
responsible for the management of the ECF performs a comprehensive
cleanup in a timely manner when the waste storage unit is no longer
used to store such material. EPA's failure to impose closure
requirements violates SWDA section 3004(a) that requires EPA to impose
such performance standards on facilities that store, treat or dispose
of hazardous waste ``as may be necessary to protect human health or the
environment.'' 42 U.S.C. 6924(a). In addition, the failure of EPA to
impose
[[Page 77979]]
such requirements contravenes the statutory mandates of SWDA section
1003. 42 U.S.C. 6902. Further, commenters state that there is no reason
to leave the decontamination and decommissioning of a unit that stored
hazardous waste to the discretion of the owner/operator when RCRA
regulations provide explicit direction on how to close such units
safely. EPA provides nothing in the record that indicates that a
``regulatory authority,'' presumably the state solid waste agency where
the owner/operator is located, will have any expertise ``to ensure that
the unit is cleaned properly.'' Id.
The commenters also state that facilities may avoid liability for
environmental damage discovered after the facilities have closed.
Without CERCLA liability, state and federal taxpayers will pay the
financial costs to clean up these facilities, while people in
communities across the nation pay the human health and environmental
cost associated with the contamination. Because the proposal could
significantly reduce or even altogether eliminate facility and
particularly generator liability at some Superfund sites, taxpayers
will be required, through EPA-funded actions, to pay for cleanups. The
commenters suggest that preparation of a closure procedure should be
required and submitted to the local agency at least 90 days in advance
of initiating closure activities. This plan would also include
provisions to sample and potentially remediate soils in the area of the
storage tanks and loading and/or unloading areas. The Agency can then
have an opportunity to review and modify the provisions as necessary,
similar to the authority for the Director to require modifications to
the SPCC Plan if it is found to be deficient.
Response: We explained at proposal that closure of an ECF tank
would be addressed the same as closure of any other product tank that
goes out of service.\73\ The tank system would not be required to
undergo closure according to the RCRA hazardous waste regulations
unless liquids or accumulated solids were not cleaned from the tank
system within 90 days of cessation of operation as an ECF storage unit.
See 72 FR at 33308. Liquids and accumulated solids removed from a tank
system that ceases to be operated for storage/transport of ECF product
are solid wastes. They are hazardous waste if they exhibit a
characteristic of hazardous waste or if the ECF were otherwise listed.
See Sec. 261.38(b)(13).
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\73\ We note also that analogous products are not subject to
closure requirements.
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In retrospect, however, and considering the comments on this issue,
we believe it is reasonable to require generators and burners to notify
the RCRA regulatory authority when an ECF tank or an ECF container
storage unit goes out of service. Therefore, the final rule includes
this provision as a condition of the exclusion. See Sec. 261.38(f).
The notification must state the date when the tank system or container
storage unit is no longer used to store ECF. This information will
enable the regulatory authority to know which units are operating under
the conditional exclusion and to enforce the hazardous waste closure
provisions if liquids or accumulated solids are not removed from the
ECF tank system or ECF container storage unit within 90 days of
cessation of operation as an ECF storage unit.
H. Financial Assurance for ECF Tanks
Comment: Several commenters note that EPA fails to impose financial
assurance requirements on facilities that store and burn ECF.
Commenters argue that given the increased threat to health and the
environment posed by the relaxed restrictions on the storage and
burning of ECF, EPA's failure to require that such facilities maintain
financial assurance to address potential remediation, without any
justification in the record, is arbitrary, capricious and in violation
of law. Although ECF that is not managed in compliance with the
conditions would lose the exclusion and must be managed as hazardous
waste, commenters state that there is no provision for ensuring that
generators or burners are financially prepared to dispose of
accumulated ECF in this event. Commenters believe that generators and
burners should be required to provide adequate financial assurance,
similar to the existing RCRA mechanisms, to manage ECF. Waiting until
the ECF is mismanaged and only then imposing the applicable RCRA
hazardous waste regulations, including the financial assurance
regulations, may not result in adequate funds being available in the
event that mismanagement and abandonment occurs, according to the
commenters. Considering EPA's current focus on ensuring adequate
financial assurance for hazardous waste facilities, commenters believe
that the lack of coverage proposed for ECF units seems arbitrary and
contrary to common sense. In fact, commenters note that financial
assurance has been, and continues to be, an important part of EPA's
verification that finances are available to close hazardous waste
storage tanks, and not leaving the problem for local and state
governments.
Under the proposed ECF exclusion, industrial boiler facilities
could manage potentially large volumes of ECF with no financial
assurance for proper closure of the storage units and no insurance for
third-party harm. Commenters note that EPA also proposed to revise the
definition of solid waste (DSW) for recyclable materials, and there EPA
recognized the necessity of requiring financial assurance for
reclamation facilities. Commenters believe that, if facilities that
conduct solvent distillation, metals recovery, and similar recycling
are required to have financial assurance, then boiler facilities that
recycle hazardous waste by burning ECF fuels must meet the same
condition. Commenters also note that EPA's Damage Case Study in the DSW
rulemaking includes numerous sites where organic hazardous wastes
similar to ECF were mismanaged causing environmental harm and cleanup
costs. EPA's rationale for financial assurance in the DSW rulemaking
applies equally and with full force to the ECF proposal, according to
commenters. Commenters state that there is no rational basis for
including financial assurance in one rule on recycling and not in this
rule.
Response: In response to the commenter's view that financial
assurance provisions should be required for ECF storage units given
that the Agency proposed financial assurance provisions for reclamation
facilities under the proposed Definition of Solid Waste (72 FR 14172),
we note that the proposed financial responsibility conditions in that
proposed rule only apply to hazardous secondary materials that are
being reclaimed. Such materials are not usable in their current form
and must be reclaimed before they can be a useful product. The
financial assurance condition in the Definition of Solid Waste proposal
would safeguard against the abandonment or out-of-control accumulation
of spent materials awaiting reclamation that led to certain of the
damage incidents involving waste reclamation. Those situations are not
present for ECF. That is, the hazardous secondary materials must meet
objective product specifications as-generated, and will be stored and
otherwise managed as is fossil fuel or other organic liquids. EPA thus
does not believe that the financial assurance provisions are
appropriate to assure legitimate recycling and management of ECF, as is
the case for other products.
[[Page 77980]]
I. Waiver of RCRA Closure Requirements for Tanks Storing Hazardous
Wastes That Are Subsequently Excluded ECF
Comment: A commenter recommends that waiver of the RCRA closure
requirements for tanks used only to store hazardous wastes that are
subsequently excluded as comparable fuel under Sec. 261.38(b)(14)
should include consideration of whether there is evidence of a release
from the tank system to surrounding soils and/or groundwater and
whether the tank system is subject to corrective action due to prior
releases before waiving the closure requirements.
Response: The obligation under Sec. 264.101 to address facility-
wide corrective action at permitted facilities, which attaches at
permit issuance, is not affected by this final rule, and remains in
effect until corrective action at the facility is completed.\74\ Owners
and operators of permitted and interim status facilities with
corrective action obligations should refer to the Agency's February 25,
2003, guidance entitled, ``Final Guidance on Completion of Corrective
Action Activities at RCRA Facilities'' (see 68 FR 8757) for a detailed
discussion of corrective action completion. Therefore, an owner or
operator of a facility that manages only hazardous secondary materials
that are excluded under this final rule, and who seeks to terminate the
facility's permit by modifying the permit term, must still demonstrate
as part of the permit modification request that the corrective action
obligations at the facility have been addressed. The Agency's
corrective action authority at such facilities is not affected by this
rulemaking and the Agency thus retains its authority to address
corrective action at such facilities using all authorities applicable
prior to this rulemaking.
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\74\ Please note that this response is also applicable to ECF
container storage units, and to comparable fuel storage units.
---------------------------------------------------------------------------
At some facilities, corrective action obligations will likely
continue to be addressed through the corrective action provisions of
the permit. In these cases, maintenance of the permit would ensure that
facility-wide corrective action will be addressed. Thus, in these
cases, the permit would not be terminated by modifying the permit term,
but would be modified to remove the provisions that applied to the now-
excluded hazardous secondary material. The facility's permit would,
thereafter, only address corrective action.
In other cases, however, EPA or an authorized state may have
available an alternative federal or state enforcement mechanism, or
other federal or state cleanup authority, through which it could choose
to address the facility's cleanup obligations, rather than continue to
pursue corrective action under a permit. In these cases, where the
alternate authority would ensure that facility-wide corrective action
will be addressed, maintenance of the permit would not be necessary.
EPA has long taken the position that RCRA treatment, storage, and
disposal facilities are still subject to unfulfilled corrective action
obligations, after they cease hazardous waste treatment, storage, or
disposal activities. The Agency discussed the issue of its corrective
action authority to address non-SWMU-related releases at RCRA
treatment, storage, or disposal facilities in the May 1, 1996, Advance
Notice of Proposed rulemaking (see 61 FR 19442-3). There, the Agency
stated, ``[g]iven the legislative history of RCRA section 3004(u),
which emphasizes that RCRA facilities should be adequately cleaned up,
in part, to prevent the creation of new Superfund sites, EPA believes
that corrective action authorities can be used to address all
unacceptable risks to human health and the environment from RCRA
facilities. In the permitting context, remediation of non-SWMU related
releases may be required under the ``omnibus'' authority. In other
contexts, orders under RCRA sections 3008(h) or 7003 may require
remedial action to address releases regardless of whether a SWMU is
present.
IV. Rationale for Comparable Emissions
A. Appropriate Benchmark Fuel for ECF Emissions
Comment: A commenter states that ECF emissions should be comparable
to emissions from an industrial boiler burning natural gas rather than
fuel oil. The commenter notes that an EPA document \75\ states that
approximately 80% of industrial boilers burn natural gas as the primary
fuel, and approximately 51% of U.S. industrial boiler capacity
(measured as MMBtu/hr) uses natural gas as the primary fuel. Only 11%
of industrial boilers with 8% of boiler capacity are fired with oil.
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\75\ Energy and Environmental Analysis, Inc., ``Characterization
of the U.S. Industrial Commercial Boiler Population, May 2005, p. 2-
5.
---------------------------------------------------------------------------
Response: Identifying the most analogous fossil fuel to ECF is a
major consideration for establishing conditions of the exclusion for
storage and burning. Those conditions must ensure that ECF is stored
and burned under conditions similar to those applicable to the most
analogous product (and that also address hazards that remain after the
exclusion is claimed).
The fact that most industrial boilers burn natural gas as the
primary fuel is not a principle factor in determining the most
analogous fossil fuel to ECF. ECF is a liquid fuel, as is fuel oil,
that is subject to the constituent specifications and maximum viscosity
specification for comparable fuel excluded under Sec. 261.38(a),
except for the specifications for the 37 hydrocarbons and oxygenates.
(In addition, ECF must also meet a minimum heating value
specification.) Those specifications ensure that comparable fuel has
constituent concentrations and properties relevant to burning that are
comparable to fuel oil, a fossil fuel that also is burned in industrial
boilers.\76\ Thus, fuel oil is the most analogous fossil fuel to ECF,
is burned in boilers, and consequently remains a reasonable benchmark
for comparison in determining comparability of emissions.
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\76\ The specifications for only three compounds, benzene,
naphthalene, and toluene, are based on concentrations in gasoline.
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B. Impact of ECF Exclusion on Emissions of Air Pollutants
Comment: A commenter states that the ECF exclusion will result in
an increase in air pollutants because: (1) The vast majority of
industrial boilers burn natural gas which is a cleaner fuel than ECF;
and (2) ECF will be diverted from cement kilns and must be replaced
with coal. The commenter states that a high-end estimate of the
quantity of hazardous waste fuels that could be displaced from cement
kilns could be 146,000 tpy rather than EPA's estimate of 48,400 tpy. In
addition, the commenter estimates that the 146,000 tpy of hazardous
waste fuels that could potentially be diverted from cement kilns would
increase emissions of air pollutants when fired in natural gas boilers
of: 16.1 tpy of toxic metals and 4,012 lb/yr of organic hazardous air
pollutants (HAP). In addition, cement kilns would replace the diverted
hazardous waste fuels with coal, which could increase emissions of SOx
by as much as 6,502 tpy and NOx by as much as 4,256 tpy, according to
the commenter. Finally, the commenter estimates that emissions of the
greenhouse gas, CO2, could increase as much as 381,000 tpy
because the ECF that is diverted from use as a fuel in cement kilns
could be incinerated.
The commenter also estimates that the ECF exclusion could result in
as much as 292,000 tpy of hazardous waste being diverted from cement
kilns because the typical fuel blend for cement kilns
[[Page 77981]]
prepared by commercial fuel blenders contains approximately 15 to 25%
of hazardous secondary materials that would qualify as ECF.\77\ For
fuel blenders to meet the specification for cement kilns, the commenter
states that the loss of ECF will mean the possible elimination of
certain other waste streams that require blending with higher-quality
material, such as the hazardous secondary materials that will qualify
as ECF. Fuel blenders estimate that they could lose other nonblendable
hazardous wastes of a quantity that would be in a range from one-half
up to an equal volume of lost ECF. That is, for every ton of ECF that
is lost, the commenter believes that between one-half and one ton of
other hazardous wastes would not be able to be blended to produce fuel
usable at cement kilns. The commenter believes that most of the
hazardous waste that is lost because blendable ECF fuel is no longer
available probably would require incineration in the future. This other
hazardous waste is lower in Btu value \78\ and may require thermal
treatment; thus, incineration is the most likely alternative outlet for
these hazardous wastes.
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\77\ Docket No. EPA-HQ-RCRA-2005-0017-0126.3, pp. 34-35.
\78\ The commenter provides the example of a waste stream that
may contain flammable solvents with 80% water but that, EPA
presumes, has a heating value greater than 5,000 Btu/lb as-generated
and is thus considered to be burned for its heating value rather
than for destruction.
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Response: We would first note that the final rule allows ECF to be
burned in cement kilns that burn hazardous waste fuels. Thus, cement
kilns may compete with industrial boilers for ECF and can largely
determine through their fuel pricing procedures how much ECF may be
diverted. However, the fact that ECF may be diverted from cement kilns
to other types of burning units is not relevant to an analysis of
whether ECF is reasonably classifiable as a nondiscarded material.
Nevertheless, EPA has evaluated this comment as part of its obligations
under Executive Order 12866 to evaluate costs and benefits of major
rules.
The commenter's argument that burning ECF as a replacement for
natural gas in boilers will result in an increase in emissions of toxic
metals is derived from assuming that ECF contains the maximum levels of
metals allowed by the comparable fuel specifications provided in Table
1 to Sec. 261.38 and that the emissions will be uncontrolled. While
this may be theoretically possible (it is in fact enormously unlikely
that every constituent would be present at the maximum level), it
simply reflects that facilities can choose which fuel to burn in their
boilers: Natural gas, fuel oil, coal, or other fuels, including
comparable fuel or ECF. The comparable fuel specifications for metals
apply to ECF and ensure that comparable fuel and ECF contain toxic
metals at no higher concentrations than found in fuel oil. Thus,
burning ECF in lieu of natural gas will result in emissions of toxic
metals no greater than if a boiler decides to burn fuel oil in lieu of
natural gas.
Also, the commenter's argument that burning ECF as a replacement
for natural gas in boilers will result in an increase in emissions of
organic HAP is derived from comparing AP-42 emission factors \79\ for
fuel oil and natural gas. As discussed above, facilities can choose
which fuels to burn in their boilers. The fact that burning fuel oil,
or ECF with emissions comparable to fuel oil, in lieu of natural gas or
coal may result in higher or lower emissions of air pollutants has no
bearing on whether hazardous secondary materials should be excluded
from the definition of solid waste if they are managed similar to
fossil fuels, their emissions are comparable to those from burning fuel
oil, and they are physically identical with respect to most hazardous
constituents (and there is no aspect of discard in other management
phases, e.g., storage and transport).
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\79\ See http://www.epa.gov/ttn/chief/ap42/.
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Potential Increase in NOX and SOX Emissions. The commenter's
argument that there will be an increase in SOX and
NOX emissions is premised on the need for cement kilns to
replace the hazardous secondary materials that will be excluded as ECF
with coal.\80\ SOX emissions will increase if coal contains
higher concentrations of sulfur than ECF. The commenter believes that
NOX emissions will increase because burning hazardous
secondary materials in cement kilns reduces the formation of thermal
NOX (i.e., the hazardous secondary material changes the
shape of the flame and reduces flame temperatures, thus reducing
NOX formed at high temperatures from the nitrogen in air).
In response, we note that the state regulatory authority will determine
under the State Implementation Plan (SIP) if any increase in emissions
of either SO2 or NO2 must be further controlled
pursuant to the area's attainment or maintenance of the relevant
National Ambient Air Quality Standard (NAAQS).
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\80\ We note that SO2 and NO2 are criteria
air pollutants for which EPA has established NAAQS. In addition,
NOX emissions are precursors for ground-level ozone (also
a criteria pollutant controlled with a NAAQS), and both
NOX and SOX contribute to fine particulates
(i.e., PM2.5), a criteria pollutant that is also controlled with a
NAAQS.
---------------------------------------------------------------------------
Nonetheless, we have estimated the increase in NOX and
SOX emissions at cement kilns that may be caused by the
diversion of ECF from cement kilns to boilers, and the cost of
controlling those emissions so that there is no net increase in
emissions.81 82 Although we estimated at proposal that
48,400 tpy of ECF could be diverted from cement kilns, the commenter
has estimated that as much as 292,000 tpy \83\ of hazardous secondary
materials may be diverted. Consequently, we estimated the impacts of
the exclusion considering that range of diverted materials.\84\
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\81\ See USEPA, ``Comment Response Document for the Expansion of
the Comparable Fuels Exclusion,'' October 2008, Section 4.1.
\82\ We note that these costs may not be incurred if the state
regulatory authority under the SIP determines that the increase in
SOX emissions will not result in an exceedance of the
NAAQS.
\83\ The commenter states that as much as 146,000 tpy of
hazardous secondary materials may be diverted from cement kilns as
ECF, and that another 146,000 tpy of hazardous waste may be diverted
to incinerators because the wastes can no longer be blended with the
higher quality hazardous secondary materials (i.e., ECF) to meet the
fuel specifications for cement kilns.
\84\ We reiterate that we conducted this analysis to meet our
obligations under Executive Order 12866 to evaluate costs and
benefits of major rules. These impacts have no bearing on whether
ECF is a ``solid waste.''
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Regarding NOX emissions, we have determined in the study
that the commenter used as an example of the potential increase in
NOX emissions may not accurately represent the impact of
reducing the ECF firing rate on NOX emissions. The study
involved NOX emissions testing at a cement facility under
two test conditions where coal was fired with and without hazardous
waste fuel. The tests showed a substantial decrease in NOX
(and SOX) emissions when hazardous waste fuel was fired at a
50 percent mass input rate. Other key parameters that can affect
NOX emissions also varied during those tests, however: The
type of coal and the raw material composition. Those parameters may
affect the excess air requirements, flame temperature, and flame
profile, which can affect NOX emissions. Consequently, we
conducted an independent analysis of the impact on NOX
emissions of reducing the hazardous waste fuel firing rate using
NOX equilibrium calculations to assess flame temperatures
and the resultant impact on NOX formation. We determined
that NOX emissions may increase by a total of 130 to 530 tpy
nationwide for the 20 cement kilns burning hazardous waste fuels. Given
the small average increase in NOX
[[Page 77982]]
emissions at each kiln (i.e., from 7-27 tpy), we believe the emission
reductions could be achieved without significant cost by minor
adjustments to boiler operating parameters, such as operating at a
fractionally lower oxygen concentration.
Regarding SOX emissions, we note that the higher sulfur
content of the coal that may replace ECF is not likely to increase
SOX emissions at eight of the 20 kilns that burn hazardous
waste. That is, eight of the kilns are preheater/precalciner kilns
where SOX emissions attributable to fuels are scrubbed from
the combustion gas by the limestone as the combustion gas passes
through the preheater/precalciner cyclones. The remaining 12 long wet
or long dry kilns do not provide this scrubbing effect, however, and
fuel-related sulfur will result in an increase in SOX
emissions. We estimate that SOX emissions will increase by
570 tpy nationwide under our estimate that 48,400 tpy of ECF may be
diverted, and by 2,300 tpy under the commenter's estimate that 292,000
tpy of ECF may be diverted. To control these SOX emissions,
we have estimated that the annualized cost of dry scrubbing would range
from $1.1 million to $1.7 million. We have revised our economic impact
analysis of the ECF exclusion to account for these costs.
Potential Increase in CO2 Emissions. Finally, we do not accept the
commenter's argument that emissions of the greenhouse gas
CO2 (an air pollutant under the Clean Air Act) could
increase because ECF is diverted from use as a fuel in cement kilns.
Although the commenter explains that hazardous waste fuels that have
high water or ash content must be blended with higher quality waste
fuels, such as ECF, to meet the commercial specifications for cement
kiln fuels, the heating value of those lower quality fuels nonetheless
provides useful heat input to the cement kiln.\85\ If those low quality
fuels can no longer be blended to produce cement kiln fuel because
there is less high quality fuel available because of the ECF exclusion,
those low quality fuels may be diverted to hazardous waste
incinerators. Those fuels will not be simply treated for destruction by
incineration, however. Those fuels will provide useable heat energy to
treat other hazardous wastes with little or negative heating value,
thus reducing the incinerator's need to provide supplemental heat input
from fossil fuel (e.g., natural gas). This is the same role that (we
presume) those lower quality fuels played in cement kilns--providing
useable heat to displace fossil fuel. Thus, there should not be an
increase in CO2 emissions.
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\85\ Note: If these lower quality fuels are not themselves fuels
prior to blending such that burning in a cement kiln would be
destruction, as opposed to providing heat input, then blending these
lower quality fuels with high quality fuels at a cement kiln would
constitute ``sham'' recycling. This would raise the question of
whether the clinker product is derived-from hazardous waste.
---------------------------------------------------------------------------
C. Assurance of 99.99% DRE of ECF Constituents
Comment: Several commenters state that the conditions for burning
ECF are not adequate to ensure 99.99% DRE. Specifically, commenters
question why hazardous waste combustors are subject under MACT and RCRA
to a DRE emissions demonstration and limits on multiple operating
parameters (e.g., minimum combustion chamber temperature; indicator of
maximum gas flowrate; waste feedrate limits) if 99.99% DRE can be
assured simply by complying with the conditions for burning ECF.
A commenter notes further that EPA states that the two primary
operating conditions to ensure 99.99% DRE and good combustion are that
CO levels remain below 100 ppmv and that ECF is fired into the flame of
the primary fuel. EPA states that ECF must be fired into the flame of
the primary fuel to avoid total ignition failure whereby low CO levels
may not ensure good combustion.\86\ Yet, the commenter notes that the
exclusion does not require the burner to document that, in fact, ECF is
fired into the flame zone so that CO will be a valid indicator of good
combustion. Another commenter that is generally in favor of the
exclusion questions why the other burner operating conditions are
needed if the two primary operating conditions are to maintain CO
emissions below 100 ppmv and to fire ECF into the flame zone of the
primary fuel.
---------------------------------------------------------------------------
\86\ Under total ignition failure, CO may be low because the
fuel is not combusted. Rather, the fuel is simply volatilized,
resulting in high hydrocarbon emissions.
---------------------------------------------------------------------------
Response: ECF Conditions Ensure 99.99% DRE. The boiler operating
conditions for burning ECF are provided under Sec.
261.38(c)(2)(ii)(C). The principal operating conditions that ensure
good combustion are: (1) Continuous monitoring of CO emissions to
ensure that levels remain below 100 ppmv; and (2) firing the ECF into
the flame of the primary fossil fuel, which must comprise at least 50%
of the boiler's fuel requirements. The ECF boiler operating conditions
are less rigorous (at least facially) than requirements to ensure
99.99% DRE for hazardous waste combustors under the MACT standards of
40 CFR Part 63, Subpart EEE and the RCRA standards of 40 CFR Part 264,
Subpart O, and Part 266, Subpart H. Those hazardous waste combustor
requirements include a requirement to conduct a DRE emission test and
to establish operating limits on several parameters based on the levels
achieved during the DRE test.
A demonstration test that an ECF boiler is achieving 99.99% DRE is
not needed, however, because the ECF boiler design and operating
conditions ensure that 99.99% DRE will be achieved.\87\ Because 99.99%
DRE is assured, the operating limits that must be established for
hazardous waste combustors under a DRE demonstration test to ensure
that DRE is maintained are not needed for ECF boilers. As explained at
proposal (72 FR at 33294), EPA concluded from substantial boiler
testing in the mid-1980's that boilers cofiring hazardous waste fuels
with fossil fuels where the hazardous waste provides less than 50
percent of the boiler's fuel requirements and CO levels remain below
100 ppmv can achieve 99.99% DRE under a wide range of operating
conditions (e.g., load changes, waste feed rate changes, excess air
rate changes). Based on that testing (which is fully documented in the
record to the 1991 boiler and industrial furnace rulemaking (56 FR
7134, Feb. 21, 1991), and has been added to the docket for this rule),
EPA promulgated a provision in the Boiler and Industrial Furnace final
rule whereby the DRE demonstration (and associated operating limits)
are waived for boilers burning hazardous waste. See Sec. 266.110. The
ECF boiler conditions in this rule are equivalent to the hazardous
waste boiler provisions for waiving the DRE demonstration.\88\ Thus,
the ECF boiler
[[Page 77983]]
conditions will also ensure that (at least) 99.99% DRE is achieved.
---------------------------------------------------------------------------
\87\ Please note that we are referring to DRE of an organic
compound in a feedstream, not the effective, measured DRE of
compounds that are common PICs, even under good combustion
conditions. If DRE is measured for compounds that are common PICs
(e.g., benzene, toluene, naphthalene, and phenol), and those
compounds are fed at low rates, the amount of the compound present
as a PIC may be large enough relative to the amount of the unburned
compound contributed by the feed such that less than 99.99%
effective DRE may be measured.
\88\ The ECF boiler conditions are actually more stringent than
the requirements for waiving the DRE demonstration for hazardous
waste boilers. ECF may not be burned in process heaters because of
concern that combustion gas may be quenched to cool the gas to
provide temperatures needed to heat process fluids appropriately,
such that the temperature quench may preclude complete combustion of
organic compounds and emissions would no longer be comparable. In
addition, the ECF cannot exceed a particle size of 200 mesh (74
microns) to ensure good combustion, while the DRE waiver for
hazardous waste boilers requires that only 70% of particles pass a
200 mesh screen.
---------------------------------------------------------------------------
A Demonstration That ECF Is Fired into the Flame Zone Is Needed. We
agree with the commenter, however, that an ECF boiler should be
required to document that ECF is, in fact, fired into the flame zone of
the primary fuel, thus ensuring that CO is a valid indicator of good
combustion (i.e., that CO is not low simply because ECF is not being
combusted). If ECF were inadvertently not fired into the flame zone of
the primary fuel, CO levels could be low even though hydrocarbon (HC)
emissions could be high. Organic compounds in the feed could be simply
volatilized rather than combusted, vitiating emission comparability.
Although it is unlikely that ECF would not be fired into the primary
fuel flame zone (which is necessary for the boiler to derive the full
heating value from the fuel), this situation could potentially occur
due to poor design or installation of the ECF firing system.
Accordingly, the final rule requires the burner to document by
information or testing that ECF will be fired directly into the primary
fuel flame zone. The documentation must be included in the initial
notification to the RCRA and CAA regulatory authorities. See Sec.
261.38(c)(5)(i)(H).
A one-time HC test when burning ECF under reasonable worst-case
conditions demonstrating that HC levels are below 10 ppmv, while CO is
below 100 ppmv, would be one way to make the demonstration. A HC level
of 10 ppmv or below is indicative of good combustion conditions and is
the MACT emission standard for hazardous waste boilers. 70 FR at 59462-
63. Operating conditions during the HC test should include: (1) The
highest ECF firing rate anticipated; (2) the lowest ECF heating value
anticipated; (3) the lowest primary fuel firing rate and heating value
anticipated; and (4) the lowest boiler load anticipated. Although we
have revised our economic impacts analysis for the exclusion to account
for the cost of a one-time HC test for all boilers burning ECF,
information other than HC testing could be used to document that ECF is
fired into the primary fuel flame zone. That is, HC testing is not
required if other documentation can be provided to show that the ECF is
fired into the primary fuel flame zone. For example, documentation
could be provided that the ECF is fired in the same firing system
(e.g., via concentric firing nozzles) as primary fuel.
D. Use of Available Emissions Data To Document ECF Emissions Will Be
Comparable to Fuel Oil Emissions
Comment: A commenter states that EPA's analysis purporting to
document that emissions from burning ECF will be comparable to
emissions from burning fuel oil in an industrial boiler is riddled with
flaws.
Response: Although we address each of the commenter's major
concerns below,\89\ we acknowledge that, absent a robust data base,
stakeholders could reasonably have opposing views on the issues.
Nonetheless, we believe that our technical evaluation at proposal was
reliable. However, we note that the issue of whether available data
support a finding that ECF emissions will be comparable to fuel oil
emissions has been superseded by including conditions in the final rule
that establish a feedrate limit for each ECF constituent. The feedrate
limits provide objective assurance that emissions from a boiler burning
ECF will be comparable to emissions from a boiler burning fuel oil. See
discussion in Part Three, Section III.B.3 above.
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\89\ We provide responses to all of the commenter's concerns in
USEPA, ``Comment Response Document for Expansion of the Comparable
Fuel Exclusion,'' October 2008, Section 4.
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1. Use of Hazardous Waste Boiler Emissions Data
Comment: The commenter states that, absent emissions data from
burning ECF in industrial boilers, EPA uses hazardous waste boiler
emissions data as a surrogate. This is an indirect comparison, however,
filled with huge data gaps.
Response: Hazardous waste boiler emissions data are a reasonable
surrogate for ECF boiler emissions data because the combustion of
organic compounds in ECF will be controlled by conditions on ECF
burners that are at least as stringent as the controls on hazardous
waste boilers. 72 FR at 33291. Although hazardous waste boiler
emissions data are an indirect comparison, we believe they are still a
valid comparison. We respond to the commenter's concerns about data
gaps below.
2. Concern That EPA's Oil Emissions Data Base Has Emissions Data for
Only 12 of 37 ECF Constituents
Comment: The commenter states that EPA's oil emissions data base
contains data on only 12 of the 37 hydrocarbons and oxygenates listed
in Table 1 to Sec. 261.38 for which the specifications would no longer
apply. Absent a fuel oil emissions benchmark, EPA cannot conclude that
ECF emissions are comparable, according to the commenter.
Response: As discussed above in Part Three, Section III.B.3, the
final rule establishes feedrate conditions for each ECF constituent
that will ensure that ECF emissions are comparable to fuel oil
emissions. The feedrate conditions are established by back-calculating
from industrial boiler fuel oil emission levels (or surrogate emission
levels) using projected destruction and removal efficiencies. We have
oil emission levels for 12 ECF constituents and establish surrogate oil
emission levels for the remaining ECF constituents. Those surrogate
emission levels are representative of oil emission levels (for the
PAHs) and, for the oxygenates, are reasonable surrogates that result in
de minimis health risk.\90\
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\90\ We note that the fuel oil emission level for acrolein
(i.e., 18 ug/dscm) may result in maximum annual average ground level
concentrations that approach the reference air concentration (RfC)
(as may occur when boilers burn fuel oil). Although we use the
acrolein oil emission level as a surrogate emission level for the
other ECF oxygenates, maximum annual average ground level
concentrations for those other oxygenates will be orders of
magnitude below their RfCs.
---------------------------------------------------------------------------
3. Concern That EPA's Oil Emissions Data Base Is Too Sparse To
Establish Benchmarks
Comment: The commenter states that, of the 12 ECF constituents for
which EPA has oil emissions data, data for seven of the constituents
are too sparse to establish a benchmark. That is, for seven of the ECF
constituents, oil emissions data are available for only one or two
boilers, and are insufficient to establish a benchmark. The commenter
believes that EPA then compounds the problem of too few data by using a
95th percentile as the benchmark for comparison to the hazardous waste
boiler emissions data.
Response: We believe it is reasonable to use the available oil
emissions data for these 12 ECF constituents. We also note, however,
that because the limited oil emissions data are not likely to represent
the total range of oil emissions data, we use the highest test
condition average for these 12 ECF constituents to establish the ECF
constituent feedrate limits discussed above in Part Three, Section
III.B.3.
4. Concern That EPA Did Not Evaluate the Oil Emissions Data Base for
Probable Outliers
Comment: The commenter states that the oil emissions data used as
benchmarks may overstate emission levels given that the Agency did not
evaluate the data for outliers.
[[Page 77984]]
Response: We concur that an outlier analysis should be performed on
the oil emissions data for the ECF constituents where sufficient data
are available to identify high outliers. We performed that analysis for
the final rule and determined that the highest test condition for
toluene has a run variance that is a high outlier, even though the test
condition average is not a high outlier relative to the other test
condition averages.\91\ Consequently, the highest test condition
average for toluene is 120 ug/dscm, rather than 350 ug/dscm.
---------------------------------------------------------------------------
\91\ See USEPA, ``Final Technical Support Document for the
Expansion of the Comparable Fuels Exclusion,'' November 2008,
Section 6.3.
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5. Concern That the Level of Detection Is Needed for Nondetect Data
Points in the Hazardous Waste Boiler Data Base
Comment: The commenter states that EPA should present the level of
detection for hazardous waste boiler emissions data that are reported
as nondetect. If the level of detection for the hazardous waste boiler
emissions for an ECF constituent is higher than the oil emissions
benchmark, the Agency cannot conclude that emissions are comparable,
according to the commenter.
Response: The level of detection for the nondetect data in the
hazardous waste boiler emissions data base is not readily available.
While we agree that this is a limitation of the data base, the level of
detection for the hazardous waste boiler emissions data would be
helpful only if it were below the highest oil emission data level for
an ECF constituent. As the commenter notes, if the level of detection
were higher than the oil emissions data, we would not know whether the
hazardous waste boiler emissions level were higher or lower than the
oil emissions level. Moreover, as noted previously, our analysis
comparing hazardous waste boiler emissions data (as a surrogate for ECF
emissions data) to fuel oil emissions data has been superseded in the
final rule by establishing feedrate limits for each ECF constituent.
The feedrate limits provide objective assurance that the ECF emissions
will be comparable to the fuel oil emissions.
6. Concern Regarding the Concentration of ECF Constituents in Hazardous
Waste Boiler Fuels
Comment: The commenter states that the concentration of ECF
constituents in the hazardous waste boiler fuels must be provided to
determine whether hazardous waste boiler emissions are comparable to
the fuel oil emissions. The commenter believes that, given that
emissions will increase as feeds increase, it is important to know
whether the hazardous waste feeds had the same concentrations of ECF
constituents as allowed for ECF (i.e., 100%). EPA must establish
concentration limits for each ECF constituent consistent with the
hazardous waste fuel concentrations that document comparable emissions,
according to the commenter.
Response: We agree that emissions of ECF constituents can be
expected to increase with increased feedrate. To address this concern,
the final rule establishes a feedrate limit for each ECF constituent
that will ensure that emissions of those constituents from a boiler
burning ECF are comparable to emissions of those constituents from a
boiler burning fuel oil. As mentioned above, these feedrate limits
provide objective assurance of comparable emissions and effectively
supersede our analysis comparing hazardous waste boiler emissions with
oil emissions.
7. Concern Whether EPA Has Adequately Considered PIC Emissions
Comment: The commenter states that the hazardous waste boiler
emissions (as a surrogate for ECF emissions) document that emissions of
PICs that are not ECF constituents are higher than the emissions from
oil-fired boilers.
Response: At proposal, we examined each compound that our data base
indicated may be emitted by hazardous waste boilers at levels higher
than fuel oil boilers and explained why the seeming exceedance should
not be considered as documentation that ECF emissions are not
comparable to oil emissions.\92\ The reasons for explaining the
exceedances include: (1) Dichloromethane is a common lab contaminant;
(2) ethyl benzene and phenathrene were emitted at de minimis levels
(i.e., neither were emitted at concentrations above 8 ug/dscm); and (3)
the hazardous waste boilers were often not operated under the stringent
conditions that will be required for ECF boilers, such that combustion
conditions may have been less than optimum resulting in higher
emissions than will result from ECF burning.
---------------------------------------------------------------------------
\92\ See USEPA, ``Draft Technical Support Document for the
Expansion of the Comparable Fuels Exclusion,'' May 2007, Section
5.5.1.
---------------------------------------------------------------------------
Nonetheless, we agree with the commenter that PIC emissions must be
considered in making a finding that ECF emissions will be comparable to
oil emissions. For the final rule, we have objectively accounted for
PIC emissions in establishing a feedrate limit for each ECF
constituent. See discussion above in Part Three, Section III.B.3.
V. Conditions for Burning ECF
A. Applicability of ECF Exclusion to Other Combustors
Comment: Several commenters state that combustors other than
watertube boilers that are not stoker-fired should be allowed to burn
ECF, such as: hazardous waste combustors (HWCs) operating under a RCRA
permit, process heaters, thermal oxidizers, fire tube boilers, and
stoker-fired boilers. Several commenters also state that EPA should
allow ECF to be burned in the same types of combustion units allowed to
burn existing comparable fuel.\93\
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\93\ Under Sec. 261.38(b)(3)(i) of the final rule, comparable
fuel must be burned in a hazardous waste incinerator operating under
a RCRA permit, an industrial furnace, or an industrial or utility
boiler.
---------------------------------------------------------------------------
Response: We agree with the commenters that state that the
exclusion should allow ECF to be burned in HWCs. Therefore, the final
rule allows ECF to be burned in HWCs (i.e., incinerators, cement kilns,
lightweight aggregate kilns, boilers (including stoker-fired boilers,
firetube boilers, and process heaters), and halogen acid production
furnaces) operating under a RCRA permit,\94\ provided the ECF is burned
under the operating requirements that would be applicable if the ECF
were a hazardous waste. See Sec. 261.38(c)(2)(i). Thus, the operating
requirements applicable to the hazardous waste will apply to burning of
ECF as a fuel (as a condition of the exclusion) in lieu of the ECF
burner operating conditions under Sec. 261.38(c)(2)(ii), with one
exception. The ECF feedrate limits under Sec. 261.38(c)(2)(ii)(C)
continue to apply to HWCs. Although the RCRA and CAA operating
requirements applicable to hazardous waste ensure 99.99 percent DRE and
good combustion conditions, the ECF constituent feedrate limits are
also needed to ensure that ECF emissions from HWCs will be comparable
to fuel oil emissions (for the same reasons the feedrate limits are
needed for ECF boilers).\95\ \96\ In addition,
[[Page 77985]]
to implement the ECF constituent feedrate limits, the ECF automatic
feed cutoff system requirements under Sec. 261.38(c)(2)(ii)(G) that
apply to monitoring the constituent feedrate limits as specified under
Sec. 261.38(c)(2)(ii)(G)(1)(ii) also apply to HWCs.
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\94\ Although all hazardous waste combustors must obtain a RCRA
operating permit, the principal substantive operating requirements
derive from the NESHAP under Subpart EEE, Part 63. As a condition of
the exclusion, ECF must be burned under all of the operating
requirements applicable to hazardous waste, whether they derive from
the NESHAP or RCRA (e.g., RCRA requirements for startup, shutdown,
and malfunctions).
\95\ Even though the ECF burner operating conditions under Sec.
261.38(c)(2)(ii) ensure 99.99% DRE and good combustion, the feedrate
limits under paragraph (c)(2)(ii)(C) are needed to ensure that ECF
emissions are comparable to fuel oil emissions because combustion is
generally a constant percent reduction process. The greater the
constituent feedrate, the greater the (residual) emission rate of
the constituent.
\96\ HWCs must comply with the ECF constituent feedrate limit
conditions because the generator has claimed the exclusion for ECF
and realized some benefits of the exclusion (e.g., waived closure
requirements; no hazardous waste manifest). The other substantive
benefits of the ECF exclusion that accrue to off-site ECF burners
(e.g., no RCRA permit requirement for the storage unit or combustor;
no closure or financial assurance requirements) may not be realized
by HWCs, however, because the HWC is already subject to those
controls. Of course, if the generator did not claim the exclusion,
the ECF constituent feedrate conditions would not apply to the HWC.
---------------------------------------------------------------------------
Several other commenters suggest that the rule allow ECF to be
burned in a RCRA-permitted hazardous waste combustor under the CO
monitoring condition only. These commenters believe that the other
hazardous waste operating requirements should not apply. These
commenters state that ECF should be allowed to be burned, for example,
during startup or shutdown, provided that the CO limit of 100 ppmv is
met. We disagree. Complying with the CO condition alone may not ensure
99.99 percent DRE and good combustion. We note that hazardous waste may
be burned in a hazardous waste combustor during startup and shutdown
provided that the combustor is operating under the operating limits in
the permit. Those operating limits include operating parameters (e.g.,
minimum combustion chamber temperature) in addition to a CO limit of
100 ppmv to ensure 99.99 percent DRE and overall good combustion.
(Those other operating limits for hazardous waste combustors (i.e.,
other than the CO limit of 100 ppmv) help ensure good combustion of
hazardous waste just as the other ECF burner conditions help ensure
good combustion of ECF.) Therefore, the hazardous waste combustor
operating requirements for hazardous waste must apply at all times that
ECF is burned.
Commenters stating that other combustors, including those that are
eligible to burn comparable fuel (i.e., other than hazardous waste
combustors operating under requirements applicable to hazardous waste),
should be allowed to burn ECF did not provide adequate supporting
information that such combustors would achieve 99.99% DRE and good
combustion conditions. We acknowledge that many types of combustors can
achieve 99.99% DRE and good combustion conditions when burning
hazardous waste fuels or ECF under various conditions, under the
regulatory oversight provided by an operating permit program (which
among other things, establishes site-specific parametric monitoring
requirements to assure that the source continues operating under the
conditions of the successful trial burn). We are concerned, however,
that these combustors may not always be able to achieve 99.99% DRE and
good combustion conditions under all situations when complying with the
ECF operating conditions under the exclusion. We explained at proposal
that there is a greater potential for poor distribution of combustion
gases and localized cold spots in firetube and stoker boilers that can
result in poor combustion conditions. 72 FR at 33294. Although a
commenter states that modern firetube boilers equipped with modern
controls do not have the potential for cold spots and poor combustion,
the commenter did not suggest how we could distinguish such modern
firetube boilers from others, and did not indicate whether those
boilers could operate efficiently under a wide range of conditions
(e.g., boiler load). Similarly, another commenter states that their
process heaters do not quench the combustion gas to reduce gas
temperatures to avoid overheating a process fluid, a concern we
expressed at proposal that could adversely affect combustion efficiency
by interrupting the complete combustion of organic compounds. 72 FR at
33294. The commenter did not suggest, however, how we could distinguish
between process heaters that may quench the combustion gas and those
that do not.
B. EPA's Approach To Identify Feedrate Limits for ECF Constituents
Comment: A commenter argues that the approach EPA discussed at
proposal to establish feedrate limits--back-calculating from oil
emission levels using projected DREs--is flawed. The commenter believes
that EPA has no basis to assume the projected DREs will be achieved by
boilers burning ECF, given that the only operating control is for
carbon monoxide. The commenter notes that DRE performance also depends
on other key operating conditions, such as the maximum demonstrated
waste feed rate, minimum combustion temperature, maximum combustion gas
velocity, minimum atomization pressure, and other operating parameters
that are defined based on performance tests.
In addition, the commenter notes that EPA has oil emissions data
for only 12 ECF constituents and states that the de minimis emission
level established for the remaining constituents is nothing more than
an arbitrary guess. The commenter also states that the maximum
allowable emission levels should be based on the average oil emissions,
not the highest test condition average.
Finally, another commenter states that it is surprising that EPA
establishes a de minimis emission level as high as 20 ug/dscm given
that several emissions standards for hazardous waste combustors (HWCs)
established under CAA section 112(d)(3) (MACT standards) are lower than
this level. 40 CFR Part 63, Subpart EEE. For example, the commenter
notes that the HWC MACT standard for new boilers for mercury is 6.8 ug/
dscm, and the standards for new incinerators are 8.1 ug/dscm for
mercury and 10 ug/dscm for semivolatile metals.
Response: We use the same general approach for the final rule that
we proposed. We establish a feedrate limit for each ECF constituent,
expressed as a gas flowrate-normalized feedrate limit, that is back-
calculated from the fuel oil emission level (or surrogate emission
levels) for each constituent using a projected DRE. The fuel oil
emission level is the highest test condition average for that
constituent in the oil emissions database, or a surrogate emission
level where oil emissions data are not available. The DRE for each
constituent is projected considering the thermal stability of the
constituent and whether the constituent is a common PIC. See discussion
in Part Three, Section II.B.3 above.
We disagree with the commenter's views that 99.99 percent DRE
cannot be projected for ECF constituents. We have explained that the
extensive ECF boiler design and operating conditions will ensure good
combustion and a minimum of 99.99 percent DRE for the ECF constituents
in the feed.\97\ See
[[Page 77986]]
discussion in Part Three, Section III.B.3 above.
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\97\ Please note that, although we project DREs of less than
99.99% for ECF constituents that are commonly formed as PICs, the
feed-related DREs for these ECF constituents are 99.99% or higher.
That is, the DRE of the compound in the feed is at least 99.99%.
(The conditions on burning are at least equivalent to the controls
on hazardous waste boilers that ensure 99.99% DRE under Sec.
266.110.) The measured or apparent DRE, however, can be lower than
99.99% for these compounds because, at low feedrates of the
compound, the PIC contribution of the compound from the destruction
of other compounds can provide a significant contribution to
emissions relative to the residual from 99.99% destruction of the
compound in the feed.
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In response to the commenter's views on the de minimis emission
levels we discussed at proposal, we have revised our approach to
identify surrogate emission levels for ECF constituents for which we do
not have oil emissions data. See discussion above in Part Three,
Section III.B.3. For the final rule, we identify a surrogate emission
level of 0.02 ug/dscm for the two PAHs for which we do not have oil
emissions data, and a surrogate emission level of 18 ug/dscm for the
oxygenates for which we do not have oil emissions data. Consequently,
we are not identifying de minimis emission levels.
Finally, we also disagree with the commenter's view that the
maximum allowable emission level for the 12 ECF constituents for which
we have oil emissions data should be based on the average oil emissions
rather than the highest test condition average. We have explained
previously why it is reasonable to establish the allowable emission
levels for these constituents as the highest test condition average
rather than another metric, such as the average test condition average
or the 95th percentile test condition average. See Part Three, Section
II.B.3 above.
C. Use of WMPT To Rank ECF Constituents According to Hazard Potential
Comment: Several commenters argue that EPA's use of the WMPT
methodology to rank ECF constituents by their hazard potential is
flawed because it does not assess exposure.
Response: As stated at proposal, our hazard ranking effort was not
a full quantitative risk assessment, but rather a screening-level
ranking of hazardous compounds based on potential chronic (i.e., long-
term) risks to human health and the environment. 72 FR at 33318. As
such, we consider it appropriate to apply the WMPT's use of a small
number of relatively simple measures (i.e., combination of
bioaccumulation and persistence factors) to represent the exposure
potential of each chemical.
Moreover, we note that the final rule does not rely on the WMPT-
based hazard ranking procedure to support maintaining the comparable
fuel specifications for the PAHs and naphthalene and for establishing
special firing rate limits for benzene and acrolein, as proposed. 72 FR
at 33299-301. Because the final rule establishes a feedrate limit for
each ECF constituent which provides objective assurance that emissions
of ECF constituents from ECF burners will be comparable to emissions
from fuel oil boilers, the proposed restrictions on PAHs, naphthalene,
benzene, and acrolein are not included in the final rule.
D. Request To Expand Primary Fuel Condition
Comment: Several commenters state that fuels other than fossil
fuel, fuel derived from fossil fuel, or tall oil having a minimum
heating value of 8,000 Btu/lb should be allowed as primary fuel to meet
the condition that ECF must be cofired with at least 50 percent primary
fuel. Commenters state that the following fuels should also be
considered primary fuel: Comparable fuel excluded under Sec.
261.38(a)(1); hydrogen gas, and alcohol fuels.
Response: To consider other fuels as a primary fuel, we would need
information describing their fuel-related properties given that we rely
on the primary fuel to provide the hot, stable flame needed to ensure a
99.99% DRE and good combustion. For example, we would need to know the
range of most of the parameters defined by the proximate and ultimate
analyses of the fuels, as well as their viscosity. Commenters did not
provide any description of ``hydrogen gas'' or ``alcohol fuels.''
Consequently, we cannot assess whether these fuels should be considered
primary fuel.
We agree with commenters, however, that comparable fuel excluded
under Sec. 261.38(a)(1) should be allowed as a primary fuel, provided
that the as-fired heating value is at least 8,000 Btu/lb, consistent
with the minimum heating value requirement for the other primary fuels.
Given that existing comparable fuel has a composition and physical
properties related to combustion that are the same as fuel oil, it is
reasonable to consider it a primary fuel, provided the as-fired heating
value is at least 8,000 Btu/lb.
E. Minimum Primary Fuel Firing Rate
Comment: Several commenters state that the proposed minimum 50
percent firing rate for primary fuel should be reduced. One commenter
suggested that the minimum primary fuel firing rate requirement should
be reduced to 20 percent, while other commenters argued that there
should be no minimum primary fuel firing rate requirement.
In addition, a commenter states that EPA failed to support the
primary fuel firing rate requirement with data or a sound basis. The
commenter believes that, because ECF must have a heating value of at
least 8,000 Btu/lb and can exceed the comparable fuel specifications
solely for hydrocarbons and oxygenates, there is no reason that the ECF
firing rate should be limited at all.
Another commenter notes that most boilers use a primary fuel, such
as natural gas, for startup, but then switch to other, nonfossil fuels
after steady-state conditions are attained. These boilers easily
maintain compliance with the RCRA standards for hazardous waste
boilers, including very low CO levels (e.g., below 3 ppmv), according
to the commenter.
Response: As discussed at proposal, EPA conducted a program of
parametric testing in the mid-1980s of boilers burning waste fuels to
identify design and operating conditions that would ensure 99.99
percent DRE and good combustion conditions. 72 FR at 33293. We proposed
operating conditions for ECF boilers based on the conclusions of that
extensive testing, including the requirement to burn at least 50
percent primary fuel. Commenters that suggest that a lower (or no)
primary fuel firing rate would still ensure 99.99 percent DRE and good
combustion conditions simply note that low CO levels can be maintained,
which is evidence of good combustion conditions. These commenters did
not provide information, however, documenting the properties of any of
the fuels being fired to the boiler, or whether good combustion
conditions were maintained over a range of boiler loads. While we
believe that maintaining CO levels at or below 100 ppmv (measured
continuously) is a principal factor for ensuring good combustion
conditions, other conditions are also necessary to help ensure good
combustion under a regulatory exclusion without the oversight of an
operating permit program. Moreover, we note that hazardous waste
boilers must comply with a 50 percent minimum primary fuel requirement
to obtain a waiver of the DRE standard. See Sec. 266.110.
F. Request To Increase the Minimum 8,000 Btu/lb Requirement for ECF
Comment: Several commenters argue that the proposed 8,000 Btu/lb
minimum as-fired heating value for ECF is much too low because it is
not comparable to the 18,000 Btu/lb heating value of fuel oil.
Response: A principle of the ECF exclusion is that the emissions
from burning ECF are comparable to the emissions from burning fuel oil
when ECF is burned under the conditions set out in the exclusion.
Although the concentrations of hydrocarbons and oxygenates in ECF may
be higher than in fuel oil, these constituents themselves exhibit fuel
value; in addition, the emissions of those
[[Page 77987]]
compounds from a boiler burning ECF are comparable to the emissions of
these compounds from a boiler burning fuel oil given the level of
destruction achieved by ECF boilers operating under good combustion
conditions. Similarly, the heating value of ECF need not be comparable
to the heating value of fuel oil to assure emission comparability,
although we would note, as we did at proposal, that the minimum heating
value of fossil fuels normally burned in industrial boilers are in the
range of 8,000 Btu/lb. 72 FR at 33296. We establish a minimum 8,000
Btu/lb heating value for ECF to help ensure that ECF combusts well so
that ECF emissions will be comparable to emissions from burning fuel
oil in the same units.
G. Request for Periodic CO Monitoring
Comment: Several commenters argue that periodic rather than
continuous CO monitoring should be allowed.\98\ One commenter states
that, because EPA is already requiring that CO emissions be controlled
for ECF at a level four times more stringent than that required of
industrial boilers, plus imposing many other conditions, requiring
continuous CO emission monitoring for all combustion units is a costly
requirement that would not result in any additional margin of safety
for ECF combustion units. The commenter notes that the cost for
installing a CO CEMS (continuous emission monitoring system) with an
automatic ECF feed cutoff system would be approximately $800,000, and
operating and maintenance cost would be approximately $50,000.
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\98\ Please note that we requested comment at proposal on
whether periodic CO monitoring should be allowed rather than
continuous monitoring. 72 FR at 33295-96. We stated that commenters
must explain and provide supporting information why periodic
monitoring is sufficient, including how the owner or operator would
ensure that the boiler is operating under good combustion conditions
during those times that the boiler is not being monitored for CO.
---------------------------------------------------------------------------
Response: As we stated in the proposal, the Agency needed
information from commenters that would explain and provide support on
why periodic monitoring was sufficient. No such information was
provided that explained how the owner or operator would ensure that the
boiler is operating under good combustion conditions during those times
that the boiler is not being monitored for CO. Consequently, the final
rule requires continuous CO monitoring.
We also disagree with the commenter that provided cost information.
Specifically, we estimated the costs of a CO CEMS and automatic ECF
feed cutoff system to be relatively modest.\99\ That is, we estimated
the annualized cost of a CO CEMS is approximately $5,800 for a boiler
that is not already equipped with the system, while the annualized cost
of an automatic ECF feed cutoff system is approximately $3,800. The
commenter did not provide comments on our cost estimates.
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\99\ See USEPA, ``Draft Technical Support Document for the
Expansion of the Comparable Fuels Exclusion,'' May 2007, Section
7.5.
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H. Request That Additional Operating Parameters Should Be Linked to the
ECF Automatic Feed Cutoff System
Comment: A commenter states that additional operating parameters
must be linked to the ECF AFCOS to ensure that the boiler continuously
complies with the operating conditions and that emissions will remain
comparable to fuel oil emissions. The commenter notes that boiler
operators may not be in attendance at all times, and therefore
parameters in addition to CO and gas temperature at the inlet to a
fabric filter or electrostatic precipitator (if primary fuel other than
coal is burned) must be linked to the ECF AFCOS. Specifically:
To ensure compliance with the minimum boiler load limit of
40 percent, an indicator of boiler load (e.g., steam production rate)
must be linked to the ECF AFCOS;
To ensure compliance with the minimum primary fuel firing
rate, an indicator of the primary fuel firing rate must be linked to
the ECF AFCOS;
To ensure compliance with the ECF constituent feedrate
limits, an indicator of the ECF feedrate must be linked to the ECF
AFCOS.
Response: We agree with the commenter for the reasons the commenter
provides. The final rule, therefore, requires that five parameters must
be linked to the ECF AFCOS: (1) CO CEMS; (2) gas temperature at the
inlet to the fabric filter or electrostatic precipitator (if primary
fuel other than coal is burned); (3) indicator of boiler load; (4)
indicator of primary fuel feedrate; and (5) indicator for ECF feedrate.
See Sec. 261.38(c)(2)(ii)(G).
I. Request That Burner Conditions Should Not Apply to MEK and
Isobutanol
Comment: EPA received comments that it should consider eliminating
constituent limits and other burner controls for methyl ethyl ketone
and isobutanol because neither contaminate is considered a HAP under
the CAA.
Response: EPA's framework for this rule, as proposed, is based on
the comparability of emissions of RCRA hazardous constituents from
hazardous secondary materials to such emissions from fuel oil, as
opposed to risk, and we did not take comment on an exclusion approach
based on zero or de minimis risk. Therefore, we do not believe it is
appropriate to make this change for purposes of this final rule without
seeking additional comment from other interested parties. Therefore, we
are not including any change to the rule based on this comment.
However, EPA may consider expanding its emission-comparable fuel
approach to include this concept in future rulemaking for these
chemicals and others that are not listed as hazardous air pollutants.
VI. Implementation of the ECF Exclusion
A. Reasonable Efforts To Ensure Compliance With the Conditions of
Exclusion by Off-Site, Unaffiliated Burners
At proposal, we requested comment on whether the final rule should
include a ``reasonable efforts'' provision that would provide that the
failure of an off-site, unaffiliated burner to meet the proposed
conditions or restrictions of the exclusion would not mean that ECF was
considered a hazardous waste when handled by the generator, as long as
the generator can adequately demonstrate that he has made reasonable
efforts to ensure that the hazardous secondary material will be managed
by the burner under the conditions of the exclusion. Although the ECF
exclusion requires the generator to obtain a certification from the
burner that the ECF will be stored and burned under the conditions of
the exclusion, a ``reasonable efforts'' provision would require the
generator to take reasonable independent and proactive measures to
ensure that the burner will manage ECF under the conditions of the
exclusion. 72 FR at 33312.
We explained that, to achieve this benefit, the generator would
have to exercise a type of ``environmental due diligence'' in reviewing
the operations of the burner in advance of transferring the hazardous
secondary materials. We stated that we believe that a reasonable
efforts provision might involve methods, such as audits (including site
visits), that a number of generators of hazardous secondary materials
now use to maintain their commitment to sound environmental
stewardship, and to minimize their potential regulatory and liability
exposures. These audits are frequently performed by third parties.
We also requested comment on whether a reasonable efforts provision
should include criteria that define
[[Page 77988]]
reasonable efforts, and what those criteria should be.
1. Reasonable Efforts Provision in the Final Rule
The final rule states that an excluded fuel--ECF, comparable fuel,
and synthesis gas fuel--loses its exclusion if any person managing the
fuel fails to comply with the conditions of the exclusion, in which
case the hazardous secondary material must be managed as a 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). See Sec. 261.38(d)(2).
The rule states further, however, that the burner rather than the
generator will be liable for discarding a hazardous waste if an off-
site, unaffiliated burner \100\ fails to comply with a condition of the
exclusion, provided that the generator has made reasonable efforts to
ensure that the burner complies with the conditions of the exclusion.
The reasonable efforts must be based on an objective evaluation by the
generator, both prior to the first shipment of ECF and every three
years thereafter, that the burner will manage the ECF under the
conditions of the exclusion.
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\100\ An unaffiliated burner is a boiler or hazardous waste
combustor located at a facility that is not owned by the same parent
company that generated the ECF.
---------------------------------------------------------------------------
Specifically, reasonable efforts by the generator must include, at
a minimum, affirmative answers to the following questions prior to
shipping ECF to a burner, and must be repeated at a minimum of every
three years thereafter: (1) Has the burner submitted the notification
to the RCRA and CAA Directors required under Sec. 261.38(c)(5)(i), and
has the burner published the public notification of burning activity as
required under Sec. 261.38(b)(2)(i); (2) does publicly available
information indicate that the burner facility has had any formal
enforcement actions taken against the facility in the previous three
years for violations of the RCRA hazardous waste regulations and has
been classified a significant noncomplier with RCRA Subtitle C, and if
yes, does the generator have credible evidence that the burner will
nonetheless manage the ECF under the conditions of Sec. 261.38; and
(3) does the burner have the equipment and trained personnel to manage
the ECF under the conditions of Sec. 261.38? \101\
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\101\ In the final definition of solid waste rulemaking, the
reasonable efforts provision also asked several additional
questions, including: (1) Does the reclamation facility intend to
reclaim the hazardous secondary materials legitimately pursuant to
Sec. 261.2(g); (2) has the reclamation facility notified the
appropriate authorities that the financial assurance condition is
satisfied per Sec. 261.4(a)(24)(v)(F); and (3) if residuals are
generated by the reclamation facility, is the facility prepared to
manage them properly as hazardous waste. These questions are not
appropriate in this instance because: (1) The specifications and
conditions in the ECF exclusion define the legitimacy of the
operation and thus, an independent determination does not need to be
made; (2) there is no financial assurance requirement in this final
rule; and (3) any residuals that are generated by the combustion of
ECF are not expected to contain levels of containments above those
found in residuals from the burning of fuel oil, including
hydrocarbons and oxygenates as they themselves have fuel value and
will be combusted.
---------------------------------------------------------------------------
In making these reasonable efforts, the generator may use any
credible evidence available, including information obtained from the
burner and information obtained from a third party. The generator must
maintain for a minimum of three years documentation and certification
that reasonable efforts were made for each burner facility to which ECF
is shipped. The documentation and certification must be made available
upon request by a regulatory authority within 72 hours, or within a
longer period of time as specified by the regulatory authority. The
certification statement must be signed and dated by an authorized
representative of the generator company; and incorporate the following
language: ``I hereby certify in good faith and to the best of my
knowledge that, prior to arranging for transport of emission-comparable
fuel to [insert name(s) of burner facility], reasonable efforts were
made to ensure that the emission-comparable fuel would be burned under
the conditions prescribed by Sec. 261.38, and that such efforts were
based on current and accurate information.''
The reasonable efforts provisions for ECF parallels the reasonable
efforts provisions in the recently promulgated Revisions to the
Definition of Solid Waste,\102\ as they would reasonably apply to ECF.
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\102\ See Sec. 261.4(a)(24(v)(B) and the discussion in the
preamble to the final rule for the Revisions to the Definition of
Solid Waste in Section VIII.C.2 (see 73 FR 64668, October 30, 2008).
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Rationale for the Questions. The first question addresses whether
the burner has submitted the initial notification to the RCRA and CAA
regulatory authorities required under Sec. 261.38(c)(5)(i), and
whether the burner has published the public notification of burning
activity as required under Sec. 261.38(b)(2)(ii). The notification to
the regulatory authorities documents the burner's intention to burn
ECF, describes the ECF burning activities, and certifies that the
burner will store and burn ECF under the conditions of the exclusion.
This notification is a one-time notification unless there is a
substantive change in the information provided in the notice. It is
important that the generator confirm that the burner has complied with
this condition of the exclusion because the notification identifies the
burner to the regulatory authorities and confirms that the burner is
aware of their responsibilities to comply with the conditions of the
exclusion.
The public notification of burning activity required under Sec.
261.38(b)(2)(ii) must be submitted for publication in a major newspaper
of general circulation local to the site where the ECF will be burned
and must contain general facility information and: (1) An estimate of
the average and maximum monthly and annual quantity of the ECF to be
burned; and (2) the name and mailing address of the regulatory
authorities to whom the generator submitted a claim for the exclusion.
This notice is important because it gives the public the opportunity to
bring to the regulatory authority's attention any circumstance that
might aid the authority in its monitoring and enforcement efforts.\103\
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\103\ The public, furthermore, would have the ability to bring a
citizen suit for failure to comply with a condition of the
exclusion.
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The second question focuses on the compliance history of the
burner. Although consideration of compliance data is an imperfect tool
for determining whether a burner would comply fully with the conditions
of the exclusion, we believe that publicly available compliance data
are a reasonable starting point for evaluating a facility's
performance. Facility-specific enforcement data on compliance status,
ongoing enforcement actions by both EPA and the states, and specific
case information for formal enforcement actions are readily available
on EPA's public Web site at http://www.epa.gov/echo/. ``Formal
enforcement'' is a written document that mandates compliance and/or
initiates a civil or administrative process, with or without appeal
rights before a trier of fact that results in an enforceable agreement
or order and an appropriate sanction. For EPA, formal enforcement
action is a referral to the U.S. Department of Justice for the
commencement of a civil action in the appropriate U.S. District Court,
or the filing of an administrative complaint, or the issuance of an
order, requiring compliance and a sanction. For states, formal
enforcement action is a referral to the state's Attorney General for
the commencement of a civil or administrative action in the appropriate
forum, or the filing of an administrative
[[Page 77989]]
complaint, or the issuance of an order, requiring compliance and a
sanction. ``Significant non-complier'' is a defined term in EPA's
Hazardous Waste Civil Enforcement Response Policy and means the
violators have caused actual exposure or a substantial likelihood of
exposure to hazardous waste or hazardous waste constituents; are
chronic or recalcitrant violators; or deviate substantially from the
terms of a permit, order, agreement, or from the RCRA statutory or
regulatory requirements. In evaluating whether there has been actual or
likely exposure to hazardous waste or hazardous waste constituents, EPA
and the states consider both the environmental and human health
concerns, including the potential exposure of workers to hazardous
waste or hazardous waste constituents. For both terms, see EPA's
Hazardous Waste Civil Enforcement Response Policy (Dec. 2003) at http://www.epa.gov/compliance/resources/policies/civil/rcra/finalerp1203.pdf.
We do not believe that evaluating this publicly available
information, which a generator would likely already be familiar with
based on its own regulated activities, is difficult for a generator,
nor is interpreting the data and deriving conclusions about facilities,
since the data base specifically notes whether a facility is alleged to
be a ``significant non-complier'' (i.e., identified as a ``SNC'' or in
``significant noncompliance''). We also note that since many states
already provide compliance information to EPA and the public through
the EPA Web site, we do not believe that a generator's review of such
information would pose a significant new burden for state agencies.
While a facility designated as a significant non-complier and the
subject of a formal enforcement action does not mean that the facility
would not comply with the conditions of the exclusion, it does raise
questions that we believe the emission-comparable fuel generator should
investigate. That is, if any formal enforcement actions were taken
against the facility in the previous three years for such noncompliance
and the facility was alleged to be a significant noncomplier, we would
expect that the burner would adequately explain to the emission-
comparable fuel generator how it has resolved any issues or how the
issues are unrelated to managing emission-comparable fuel under the
conditions of the exclusion. Additionally, if the generator obtains
reasonable information that the enforcement matters have been corrected
and the facility is back in compliance, then that would satisfy this
aspect of the reasonable efforts determination. The generator also may
wish to make a similar investigation of facilities designated as
significant noncompliers by EPA or a state even if no formal
enforcement action has been taken.
The third question focuses on the technical capability of the
burner to comply with the conditions of the exclusion. If a burner was
found not to have the storage and burner equipment necessary to comply
with the conditions of the exclusion, or not to be in conformance with
the storage and burner personnel training conditions of the exclusion
or otherwise not to have adequately trained personnel to operate and
maintain the equipment, the generator should not ship ECF to the
facility. A generator may answer this question using audit reports,
information provided by industry or waste management associations,
documents provided by the burner, and other relevant information, which
could include an evaluation by a qualified engineer. A generator may
also make a common sense inquiry of a burner that includes requesting
an explanation of the kind of equipment used for ECF storage and
burning; review of equipment specifications; and demonstrations of the
facility training program, and training records. Specific questions
and/or a site visit also may be appropriate.
Credible Evidence. We believe that a generator should be allowed to
use any credible evidence available in making reasonable efforts,
including information provided by the burner and/or by a third party,
in lieu of personally performing an assessment. For example, the
generator might hire an independent auditor to review the burner's
operations, produce audit reports as a consortium of generators using
the same burners, or rely on an assessment by a trade association. We
encourage this type of pooling of information to reduce the burden on
generators and to take advantage of specialized technical expertise.
2. Consequence of Failure to Comply With a Condition of Exclusion
Comment: A commenter argued that the provision that ``noncompliance
with the operating conditions by a burner renders the ECF a hazardous
waste from the point of generation'' is a poison pill, draconian enough
that it may prevent facilities from using the exclusion. The commenter
believes that noncompliance by the burner of an operating condition
should be handled simply as a violation by the burner without
consequences to the generator.
Response: Noncompliance with a condition for exclusion of a
hazardous waste simply means that the material remains a hazardous
waste. EPA uses RCRA Section 3007 authority to inspect facilities that
manage excluded materials. If a condition of the exclusion is not being
satisfied, the material is no longer excluded. Any related enforcement
action would involve noncompliance with the handling and management
requirements for hazardous waste.\104\
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\104\ Please note, however, that a generator who complies with
the reasonable efforts provisions of Sec. 261.38(d) would not be
liable for management of a hazardous waste if an off-site
unaffiliated burner fails to comply with a condition of the
exclusion.
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3. Reasonable Efforts
Comment: Several commenters support a reasonable efforts provision,
but state that EPA should not prescribe the criteria that qualify as
reasonable efforts. These commenters believe that differences in
operations (e.g., ECF quantity; ECF composition and firing rate; boiler
size) at ECF burner facilities should dictate the level of effort that
is needed to meet the ``reasonable efforts'' provision.
Other commenters do not support a reasonable efforts provision.
They believe that the best way to ensure adherence with the burner
operating conditions under the potentially limited oversight of an
exclusion is to provide an incentive for the generator to ensure that
the burner complies with the conditions. They believe the provision
that noncompliance by a burner renders the ECF a hazardous waste from
the point of generation provides that incentive. Several of these
commenters also believe that the examples of reasonable efforts EPA
provided at proposal (e.g., frequency of audits) should be added as
conditions of the exclusion to help ensure compliance by burners.
Response: We agree with those commenters that state that a
reasonable efforts provision is warranted because the generator should
not be liable for actions by a burner that are truly beyond the control
of the generator. Although we understand the argument made by those
commenters that believe holding the generator liable (i.e., via the
provision that failure to comply with the conditions of the exclusion
renders the ECF a hazardous waste from the point of generation)
provides a good incentive to ensure that only burners that are willing
and capable of managing ECF under the conditions of the exclusion will
manage ECF, we believe that the measures required by this rule to
document and certify that reasonable
[[Page 77990]]
efforts have been made to ensure that an off-site, unaffiliated burner
complies with the conditions of the exclusion will also ensure that
responsible and capable burners manage ECF. (Of course, in most
instances, we project that the generator and burner are the same
entity, in which case failure to satisfy a condition results in that
entity being held accountable for managing ECF as a waste, without
exception.)
We do not agree with those commenters that believe the rule should
require prescriptive measures (rather than the generic questions
required by this rule) to implement a reasonable efforts provision, or
that such prescriptive measures should be included as a condition of
the exclusion. The measures necessary for generators to make reasonable
efforts that an ECF burner is willing and capable of complying with the
conditions of the exclusion, and, in fact, is complying with the
conditions over time, will be specific to each situation (e.g.,
relationship of the burner to the generator; experience of the burner
with managing hazardous waste; ECF quantity; ECF composition and firing
rate; boiler size). Specifying prescriptive measures, such as requiring
that the generator conduct an audit of the burner's operations and that
the audits must be conducted annually, may not provide adequate
measures in some situations, and may be unnecessary in others.
B. Fuel Analysis Plans
1. Use of Process Knowledge
Comment: A commenter states that fuel analysis plans for ECF should
require testing for all ECF constituents and there must be no allowance
for the use of process knowledge in lieu of analysis.
Response: Sampling and analysis provisions for ECF are the same as
for existing comparable fuels, which allow the generator to use process
knowledge to determine whether the fuel meets the ECF specifications,
except for constituents listed under Sec. 261.38(b)(6)(i). Allowing
process knowledge to determine whether ECF meets the specifications is
reasonable given that generators of solid waste may use process
knowledge to determine if the waste exhibits a characteristic of
hazardous waste, including the toxicity characteristic. See Sec.
262.11(c)(2). If a generator uses process knowledge to make the
determination that ECF meets the specifications, any information used
to make that determination must be included in the ECF fuel analysis
plan. See Sec. 261.38(b)(4)(i)(E).
2. Quarterly Waste Analysis Testing
Comment: A commenter states that the frequency of analysis of ECF
needs to be on a quarterly basis rather than an annual basis given the
higher loading of hazardous constituents allowed under this exclusion.
Response: The rule requires retesting annually, at a minimum, or
after a process change that could change the chemical or physical
properties of the ECF. See Sec. 261.38(b)(6)(ix). We do not believe
that a generic requirement to retest quarterly is warranted. The
consequences of improperly claiming the ECF exclusion are severe-if the
ECF fails to meet the specification under Sec. 261.38(a)(2), it loses
the exclusion and must be managed as hazardous waste from the point of
generation. In addition, the owner or operator of the facility may also
be subject to an enforcement action if management of the hazardous
secondary material was not in compliance with the regulations.
C. Intermediate Handlers
Comment: The rule requires ECF to be handled only by a generator,
transporter, or a burner; ECF must not be handled by a broker or an
intermediate handler. A commenter notes that small volume generators
would be able to participate in the ECF program if an intermediary
handler would be allowed to accumulate ECF from several small
generators, perform allowable blending, complete the analysis, and
market the ECF to the burner.
Response: Because blending of the hazardous secondary materials to
meet the ECF specifications is specifically prohibited under Sec.
261.38(a)(4) and (b)(7), the Agency continues to exclude brokers or
intermediate handlers from handling ECF and being eligible for the
conditional exclusion. See 63 FR at 33801 for a discussion of the
rationale for prohibiting dilution to meet the specifications.\105\
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\105\ Note that, as with hazardous waste and consistent with the
recently promulgated Revisions to the Definition of Solid Waste in
the context of hazardous secondary materials, ECF can be held up to
10 days at a transfer facility and still be considered as being in
transport.
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VII. Costs and Benefits of the ECF Exclusion
During the public comment period for the proposed rule, we received
several comments related to the economic analysis. These comments were
submitted primarily from four organizations and raised concerns about
ten specific aspects of our economic assessment. Presented below are
brief individual summaries of the ten key issues raised by the
commenters, followed by our responses. For a more complete discussion
of these comments, see USEPA, ``Assessment of the Potential Costs,
Benefits, and other Impacts of the Expansion of the RCRA Comparable
Fuel Exclusion,'' April 2008, a copy of which is in the Docket to this
final rule.
A. Concern That the Economic Analysis Did Not Account for the Increased
Risk Likely To Result From the Exclusion
Comment: The economic analysis did not account for the increased
risk likely to result from the exclusion. Several commenters allege
that emissions of criteria pollutants, greenhouse gases, and hazardous
air pollutants will increase as a result of the rule and that
occupational risk will also increase under the proposed exclusion.
Therefore, commenters submit that the Agency does not fully capture the
social costs associated with the rule.
Response: The commenters argue that the economic analysis did not
fully address the social costs associated with the rule, because of the
increased risk likely to result from the exclusion. While we will
address each of the emission categories that the commenters identify,
it should also be noted that the final rule allows hazardous waste
combustors to continue to burn ECF. Thus, the amount of ECF that may
eventually be diverted from hazardous waste combustors is a function of
the combustors' fuel pricing procedures, and is probably less than what
we estimated at proposal.
With respect to SOX and NOX emissions, the
increase is based on the potential for cement kilns to substitute coal
for the hazardous secondary materials that may be diverted to other
facilities as a result of the exclusion. As outlined above in Section
IV.B of this Part, we recognize that cement kilns' SOX
emissions could increase if the exclusion causes them to increase their
consumption of coal. The magnitude of such an increase will depend on
the quantity of ECF diverted from cement kilns. We estimate that
SOX emissions will increase by 570 tpy nationwide under our
estimate of the ECF quantity that could potentially be diverted from
cement kilns, and by 2,300 tpy under the commenter's estimate of the
quantity of ECF and hazardous waste fuels that may be diverted. The
Economic Assessment for the final rule addresses the cost of
controlling these emissions.
Regarding NOX, although we agree that cement kilns'
NOX emissions could increase as a result of the exclusion,
we believe that such an increase is unlikely.
[[Page 77991]]
As described in Section IV.B of this Part, we believe that cement kilns
could operate at a fractionally lower oxygen concentration without
significant cost to prevent their NOX emissions from
increasing. Similarly, EPA does not believe that the commenters'
concerns with respect to CO2 emissions are valid. See
Section IV.B of this Part for a detailed discussion of this issue as
well.
With respect to hazardous air pollutants, the commenters' argument
that burning ECF as a replacement for natural gas in boilers will
result in an increase in emissions of toxic metals assumes that ECF
contains the maximum metals concentrations allowed by the comparable
fuel specifications provided in Table 1 to Sec. 261.38 and that
boilers' emissions will be uncontrolled. In many cases, however, the
metals concentrations of ECF are likely to be below the Sec. 261.38
fuel specifications. Moreover, even in a worst case, metals emissions
from burning ECF will be no higher than if the boiler chose to burn
fuel oil.
The commenters' argument that burning ECF as a replacement for
natural gas in boilers will result in an increase in emissions of
organic HAP is based on the differences between the AP-42 emission
factors for fuel oil and natural gas. As discussed in Section IV.B of
this Part, however, facilities can choose which fuels to burn in their
boilers. The fact that burning fuel oil, or ECF with emissions
comparable to fuel oil, in lieu of natural gas or coal may result in
higher or lower emissions of air pollutants has no bearing on whether
hazardous secondary materials should be excluded from the definition of
solid waste if they are managed similar to fossil fuels, their
emissions are comparable to those from burning fuel oil, and they are
physically identical with respect to most hazardous constituents (and
there is no aspect of discard in other management phases, e.g., storage
and transport).
Finally, any potential occupational impacts associated with this
action would be addressed under the jurisdiction of OSHA and DOT
authorities.
B. Impacts Associated With Hazardous Waste Currently Blended With ECF
Comment: A commenter asserts that to produce waste fuel that meets
the specifications required by cement kilns, fuel blenders (and, to a
lesser extent, kilns themselves) currently blend ECF with lower-Btu,
more highly contaminated waste. The resulting fuel mixture takes the
place of coal in the cement production process. If ECF is diverted away
from fuel blenders as a result of the rule, the commenter claims that
the low-Btu waste that blenders currently mix with ECF will be diverted
away from blenders and cement kilns to commercial incinerators. The
economic analysis does not account for this effect and therefore,
according to commenters, underestimates economic impacts likely to be
realized by blenders and cement kilns as a result of the rule.
Response: EPA acknowledges that, if cement kilns' fuel pricing
procedures result in ECF being diverted from cement kilns, the
diversion of ECF could preclude them from accepting wastes that are
currently blended with ECF. These wastes, which must be blended with
higher quality fuels (e.g., ECF) to meet the fuel requirements for
cement kilns, could be diverted from cement kilns to commercial
hazardous waste incinerators, according to the commenter. The Economic
Assessment for the final rule evaluates the potential economic impacts
associated with such transfers. These impacts include reduced revenues
for cement kilns, increased fuel costs for cement kilns, and increased
revenues for commercial incinerators.
C. Concern That the Economic Analysis Underestimates the Quantity of
Hazardous Secondary Materials Qualifying for the Exclusion
Comment: Based on the results of a survey of Cement Kiln Recycling
Coalition (CKRC) members, CKRC and Environomics estimate that as much
as 146,000 tpy of hazardous secondary materials managed by cement kilns
may be excluded as ECF, as opposed to the 48,400 tpy presented in EPA's
economic analysis for the proposed rule.
Response: We recognize that the quantity of ECF burned by cement
kilns may be different than suggested by the National Biennial Report
data available for the proposed rule. However, because this database
represents the only comprehensive source of data for ECF generators,
the Agency relies on the Biennial Report data to assess the impacts of
the exclusion. We will use the most recently available quality-
controlled nationwide data to prepare the assessment for the final
rule.
D. Concern That the Economic Analysis Underestimates the Percentage of
Qualifying Hazardous Secondary Materials That Would Be Excluded From
RCRA Subtitle C Regulation Under the Exclusion
Comment: EPA's analysis of the proposed rule suggests that 39.9
percent of the qualifying waste managed by cement kilns would be
excluded under the rule. To develop this estimate, EPA simulated the
decision-making process of ECF generators based, in part, on the fuel
savings that generators would realize if they use the exclusion. For
each generator with an eligible boiler onsite, EPA estimated these fuel
savings based on the weighted average price of the fuels used by the
generator. The commenter suggests that this approach leads to an
underestimation of the fuel savings realized by generators because
generators would likely use ECF to displace their most expensive fuel.
Therefore, EPA is also likely to underestimate the percentage of
eligible waste excluded under the proposed rule and the corresponding
economic losses experienced by cement kilns. Thus, the commenter
asserts that as much as 100 percent of the waste qualifying for the
exclusion will be excluded.
Response: To the extent that the quantity of hazardous secondary
materials diverted from kilns may be different than that estimated in
the economic assessment for the proposed rule, we agree that the
corresponding impacts may also be different than estimated. However, it
remains unclear how low and moderate-Btu waste currently mixed with ECF
will necessarily be diverted to incinerators.\106\ It is our
understanding that such wastes could be blended with other fuels such
as diesel, kerosene, used motor oil, or used lubricants to create fuel
blends suitable for cement kilns. In addition, as discussed previously,
the final rule allows ECF to continue to be burned in cement kilns. The
amount of ECF that may be diverted from cement kilns will be a function
of their fuel pricing procedures.
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\106\ Moreover, any such waste fuels that may be diverted from
cement kilns to incinerators would be used for their fuel value (as
is the case for cement kilns) in the incinerator to combust wastes
with little or no heating value.
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E. Concern That the Economic Analysis Does Not Consider Joint Impacts
With the Proposed Definition of Solid Waste Rule
Comment: A commenter expressed concern that the Agency's economic
assessment of the proposed ECF exclusion does not consider potential
joint impacts with the proposed revisions to the Definition of Solid
Waste Rule. Because several facilities may be affected by both rules,
the commenter alleges that the combined impacts of the rules may be
greater than the summed impacts of each rule alone.
Response: We disagree with this comment. The revisions to the
Definition of Solid Waste Rule, in both the proposal and supplemental
proposal, have reiterated that ``no
[[Page 77992]]
changes are proposed for recycling materials that are: * * * (3) burned
for energy recovery.'' Neither the burning of hazardous secondary
materials for energy recovery nor the blending of hazardous secondary
materials for use as fuel are eligible for exclusion from RCRA
regulations under the Definition of Solid Waste proposals. Thus, no
meaningful joint impacts are expected. It is important to note,
however, that some waste streams could potentially be excluded from the
full RCRA Subtitle C regulations under either the Definition of Solid
Waste rule or the emission comparable fuels exclusion. Therefore, the
joint impact of the two rules could be less than (rather than greater
than, as suggested by the comment) the sum of the impacts of each rule
when estimated individually.
F. Concern That the Economic Analysis Underestimates the Value of Coal
Comment: EPA's economic analysis of the proposed rule
underestimates the cost of coal. While EPA assumes the cost of coal to
be $1.80 per MMBtu, a commenter estimates that cement kilns pay
approximately $2.56 to $3.00 per MMBtu of coal, based on a survey of
those cement kilns that burn hazardous waste as a fuel. Therefore,
EPA's analysis underestimates the coal replacement costs incurred by
cement kilns as a result of the rule.
Response: We agree that the cost of coal used for the proposed rule
may be lower than the current cost. When we conducted the economic
analysis at proposal, we used coal pricing information from the Energy
Information Administration's (EIA's) Annual Coal Report 2004. This was
the most recent publicly available source of annual coal prices at the
time. Because coal prices have been trending upward, the coal pricing
data in this publication are lower than current prices. For the
economic assessment of the final rule, we use coal pricing data from
EIA's Annual Coal Report 2006. Adjusting the data in this document for
inflation, we assume a coal price of approximately $2.23 per MMBtu for
the economic analysis of the final rule.
G. Concern That the Economic Analysis Overestimates the Per Unit Cost
of Incineration
Comment: A commenter alleges that EPA's incineration cost estimate
of $0.96 per gallon is an overestimate. The commenter argues that these
data are outdated and do not reflect current market conditions and that
incinerators currently charge $0.10 to $0.15 per gallon to manage waste
with properties consistent with ECF. Because this cost is significantly
lower than the unit cost used in the analysis, the commenter claims
that the Agency overestimates the management cost savings associated
with the rule.
Response: We note that the price of incinerating ECF is subject to
uncertainty. At the time of our analysis for the proposed rule, ETC's
2004 price information from the hazardous waste incineration industry
represented the most recent publicly available data on the cost of
incineration, and it is still the most recent publicly available data
on the cost of incineration. The Agency prefers, when possible, to use
the most recent publicly available data when conducting our economic
assessments. However, to address the commenter's concerns regarding our
potential overestimation of the cost of incinerating ECF, we use the
low end of the reported range of costs in the Environmental Technology
Council's 2004 data release ($0.41 per gallon) for our economic
assessment of the final rule.
H. Concern That EPA Overestimates the Price That ECF Would Command on
the Open Market
Comment: In its economic assessment of the proposed rule, EPA
estimates that the market price of ECF ($5.58 per MMBtu) will be
approximately 26 percent less than that of conventional fuel (i.e., a
composite of natural gas, fuel oil, and coal). A commenter asserts that
the market price of ECF is likely to be considerably lower than this
value and that EPA has overestimated the fuel savings of the rule. To
support this point, the commenter cites the market price of $0.50-$3.00
per MMBtu for used oil. Because used oil is a cleaner fuel than ECF,
the market price for ECF is likely to be no higher than the price of
used oil.
Response: We understand that the market price of ECF would be
uncertain because of the regulatory requirements associated with
storing and burning this hazardous secondary material. The Agency
disagrees, however, with the commenter's assessment of the price that
ECF would command on the open market. Although the commenter claims
that the price of used fuel oil is between $0.50 and $3.00 per MMBtu,
the 2005 Department of Energy Study entitled, ``Used Oil Study and
Recommendations to Address Energy Policy Act of 2005 Section 1838''
indicates that the price of used oil is discounted 25 to 35 percent
from the price of residual oil. Based on the 2006 residual oil price of
$1.22 per gallon reported in DOE's Petroleum Marketing Annual 2006 and
an assumed thermal value of 6.287 MMBtu per barrel, this translates to
a used oil price of $5.28 to $6.10 per MMBtu. EPA's estimated value of
$5.58 per MMBtu for ECF, therefore, falls within this range.
I. Concern That Revenue Losses for Commercial Incinerators and Cement
Kilns Are Not Reflected in EPA's Estimates of the Social Costs
(Savings) of the Rule
Comment: EPA estimates that commercial incinerators and cement
kilns, combined, will experience annual revenue losses of approximately
$5 million as a result of the rule. Because these losses are not
incorporated into the estimated costs of the rule, a commenter states
that EPA overestimates the cost savings likely to result from the
exclusion.
Response: EPA disagrees with the commenter's suggestion that the
Agency should deduct the reduction in commercial incinerator and cement
kiln revenues from the estimated net cost value presented in the
economic assessment document. As described in the methodology section
of the economic assessment document, these reductions in revenues do
not represent an expenditure of resources and, therefore, are not a
social cost.
J. Concern That EPA Has Not Evaluated the Adverse Consequences to
National Waste Management Networks That Might Result if Some States
Adopt the Rule and Others Do Not
Comment: To the extent that some states do not adopt the
regulation, the ECF rule will lead to inconsistent requirements across
state lines, according to a commenter. The commenter asserts that EPA's
analysis fails to account for the adverse consequences associated with
the patchwork of state regulations that will likely emerge as a result
of the exclusion.
Response: We agree with the commenter that inconsistencies in waste
management regulations across state lines may create inefficiencies
within the national hazardous waste management system. For this reason,
we encourage all states to adopt the ECF rule. Because adoption of the
rule must occur at the state level, however, determinations with
respect to adoption are outside of EPA's authority.\107\
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\107\ We note also that the current exclusion for comparable
fuel, as well as other exclusions or exemptions, must also be
adopted at the state level to become effective. Thus, the fact that
some states may not adopt the ECF exclusion is not unexpected.
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We disagree, however, with the commenter's characterization of the
Agency's analysis of the partial implementation scenario in the
[[Page 77993]]
Economic Assessment document. Although the analysis estimates impacts
when only a limited number of states adopt the proposed rule, the
commenter's characterization of this assessment as a scaling analysis
is incorrect. Rather than scaling the national results, we focused this
partial implementation analysis on 16 states with laws that either: (a)
Prohibit them from promulgating standards that are more stringent than
the federal regulations; or (b) require them to undertake additional
legislative action to enact standards more stringent than federal
regulations.
Part Five: State Authority
I. 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. When EPA authorizes a state to implement the
RCRA hazardous waste program, EPA determines whether the state program
is consistent with the federal program, and whether it is no less
stringent. This process, codified in 40 CFR 271, ensures national
consistency and minimum standards, while providing flexibility to the
states in implementing rules. Following authorization, EPA retains
enforcement authority under sections 3008, 3013, and 7003 of RCRA,
although authorized states have primary enforcement responsibility. In
making this determination, EPA evaluates the state requirements to
ensure they are no less stringent than the federal requirements.
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.
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 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. Authorized states may,
but are not required to, adopt federal regulations that are considered
less stringent than previous federal regulations. Because this rule
would eliminate specific requirements for hazardous secondary materials
that are currently managed as hazardous waste, state programs would no
longer need to include those specific requirements in order to be
consistent with EPA's regulations.
II. Effect on State Authorization
These regulations are not promulgated under the authority of HSWA.
Thus, this exclusion is applicable on the effective date only in those
states that do not have final RCRA authorization. Moreover, authorized
states are required to modify their program only when EPA promulgates
Federal regulations that are more stringent or broader in scope than
the authorized state regulations. For those changes that are less
stringent or reduce the scope of the Federal program, states are not
required to modify their program. This is a result of section 3009 of
RCRA, which allows states to impose more stringent regulations than the
Federal program. This final rule is considered to be less stringent
than the current standards. Therefore, authorized states are not
required to modify their programs to adopt regulations consistent with
and equivalent to today's standards, although EPA strongly encourages
states to do so.
Some states incorporate the federal regulations by reference or
have specific state statutory requirements that their state program can
be no more stringent than the federal regulations. In those cases, EPA
anticipates that the exclusions in this notice would be adopted by
these states, consistent with state laws and state administrative
procedures, unless they take explicit action as specified by their
respective state laws to decline the proposed revisions.
Part Six: Costs and Benefits of the Final Rule
I. Introduction
The value of any regulatory action is traditionally measured by the
net change in social welfare that it generates. The Agency's economic
assessment conducted as part of EPA's obligations under Executive Order
12866 evaluates costs, cost savings (benefits), waste quantities
affected, and other impacts, such as environmental justice, children's
health, unfunded mandates, regulatory takings, and small entity
impacts. To conduct this analysis, we prepared a baseline
characterization for ECF, developed and implemented a methodology for
examining impacts, and followed appropriate guidelines and procedures
for examining equity considerations, children's health, and other
impacts. Because EPA's data were limited, the estimated findings from
these analyses should be viewed as national, not site-specific impacts.
II. Baseline Specification
Proper baseline specifications are vital to the accurate assessment
of incremental costs, benefits, and other economic impacts associated
with a rule that would expand the exclusion for hazardous secondary
materials used as a fuel. The baseline essentially describes the world
absent any expanded exclusion. The incremental impacts of this action
are evaluated by assessing post-rule responses with respect to baseline
conditions and actions. The baseline, as applied in this analysis, is
assumed to be the point at which the final rule is published. A full
discussion of the baseline specification is presented in the Assessment
\108\ document completed for this action.
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\108\ USEPA, ``Assessment of the Potential Costs, Benefits, and
Other Impacts of the Expansion of the RCRA Comparable Fuel
Exclusion--Final Rule,'' April 2008.
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III. Analytical Methodology, Primary Data Sources, and Key Assumptions
We developed a simplified four-step approach for assessing the cost
and economic impacts associated with this action. First, we identified
all potentially eligible hazardous secondary materials currently
generated in the U.S. We next determined the tonnage of such material
that is likely to qualify for the exclusion. An economic threshold
analysis was next applied to the likely eligible hazardous secondary
material (i.e. currently-classified waste) to
[[Page 77994]]
determine which facilities could be expected to benefit from the
exclusion. For example, for a generator with a fossil fuel boiler on-
site, the model assumes that the facility will use the exclusion if the
total benefits (cost savings) realized by the generator are projected
to exceed the total costs incurred to take advantage of the exclusion.
Finally, we aggregated all facilities that are likely to use the
exclusion to derive estimates for total costs, cost savings, and
economic impacts (ECF quantities affected).
The analytical model for this analysis derives both cost savings
and costs associated with the exclusion. Cost savings include: fuel
cost savings (net of baseline fuel recovery), avoided hazardous waste
management costs, transportation cost savings, tracking cost savings,
and storage cost savings. These factors may be considered economic
benefits of the action. The model also assesses relevant costs of the
exclusion. These include: burner storage costs, boiler retrofit costs,
hazardous secondary material analytical costs, raw materials
replacement cost (related to the hazardous secondary material that is
recycled in the baseline), recordkeeping costs, and transport costs.
The net social benefits are calculated as the difference between
the social benefits (cost savings) and social costs. The total net
social benefits of the rule are then calculated by aggregating the net
social impacts associated with each facility expected to use the
exclusion. Because this rule establishes ``emissions'' comparable
fuels, impacts to human health and the environment are assumed to be
comparable, or generally unchanged as compared to virgin fuels, and are
therefore not included in our monetized assessment.
The primary data sources used in this analysis are the 2005
Biennial Report (2005 BR),\109\ the 1996 National Hazardous Waste
Constituent Survey (NHWCS),\110\ the 2002 National Emissions Inventory
(NEI),\111\ the ACC Survey data,\112\ and information provided in the
engineering analysis developed by EERGC. The 2005 BR data were used to
derive the potentially eligible hazardous secondary materials currently
generated in the U.S. This is the only national database available that
has been reviewed by the Agency to ensure data quality. The 1996 NHWCS
reflects dated information, but was the only quality controlled data
source available that provided the necessary constituent information on
a nationwide basis, across all industries. The NEI data were used to
make a determination of whether an eligible boiler is located at each
facility. The EERGC engineering analysis provided all necessary
engineering cost information.\113\
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\109\ U.S. EPA, 2005 National Biennial Report, database and
supporting documentation available for download at http://www.epa.gov/epaoswer/hazwaste/data/biennialreport/
\110\ U.S. EPA, National Hazardous Waste Constituent Survey,
database and supporting documentation available for download at
http://www.epa.gov/epaoswer/hazwaste/id/hwirwste/economic.html
\111\ U.S. EPA, 2002 National Emissions Inventory, databases and
supporting documentation available for download at http://www.epa.gov/ttn/chief/net/2002inventory.html
\112\ American Chemistry Council (ACC) voluntary membership
survey of waste generation and management.
\113\ USEPA, ``Draft Technical Support Document for Expansion of
the Comparable Fuel Exclusion,'' May 2007, Section 7.
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Data limitations have required us to apply several assumptions in
our analysis. The most critical assumptions are:
The ECF is assumed to be burned in nonhazardous waste
boilers that meet the conditions of the exclusion;
The ECF is assumed to have an average heating value of
12,200 Btu/lb. (This is based on our assessment of the National
Hazardous Waste Constituent Survey);
A facility that can use the exclusion, and has a
nonhazardous waste boiler on-site that could burn ECF, would burn this
material on-site rather than sending it off-site;
The number of facilities purchasing ECF is assumed to
equal the number of generating facilities expected to send their ECF
off-site; and,
All excluded ECF generated in a particular state that is
sent offsite by the generating facility is assumed to be shipped the
same distance. (Average shipment distances for each state are derived
from hazardous waste shipped off-site, as reported in the Biennial
Report database.)
IV. Key Analytical Limitations
The primary analytical limitations are associated with our estimate
of the availability of on-site boilers, and our estimate of ECF
qualifying for the exclusion. Nationwide data are not available to
indicate whether each affected generating facility has a boiler on-site
that can burn ECF. Using the NEI data, we made a determination of
whether an eligible boiler is located at each facility. This
determination may misrepresent which boilers could burn ECF and which
boilers could not. To estimate how much hazardous secondary material
qualifies as ECF, we used the ACC survey data, and data derived from
the NHWCS. The data presented in the NHWCS are the most comprehensive
nationwide data available. However, these data are from 1993, and may
not fully reflect the characteristics of today's hazardous secondary
materials.
V. Findings
This rule is projected to result in a benefit to society in the
form of net cost savings to the private sector, on a nationwide basis,
thereby allowing for the more efficient use of limited resources
elsewhere in the economy. This is accomplished without compromising
protection of human health and the environment by ensuring comparable
emissions from the burning of high Btu value hazardous secondary
materials.
The total net social benefits projected as a result of this rule
are estimated at $13.4 million per year. Avoided waste management and
fuel costs represent the vast majority of all benefits (cost savings).
Transportation, boiler retrofits, and burner storage costs represent
the majority of the costs. This estimate assumes all 50 states adopt
the rule, which is unlikely to occur. As a sensitivity analysis, we
estimated impacts to only those 16 states that have statutes
prohibiting them from promulgating standards that are more stringent
than the Federal regulations or with statutes that require additional
legislative action to enact standards more stringent than the Federal
regulations. The total net social benefits under this scenario are
estimated at $10.1 million per year.
Approximately 222,500 tons (U.S. short tons) of currently-
classified hazardous secondary materials are expected to qualify for
the exclusion with approximately 118,500 tons/year actually excluded.
Of the excluded total, our data indicate that approximately 48,900 tons
are not burned for energy recovery in the baseline. Of this total, the
vast majority is reported under BR management code H040--Incineration
for thermal destruction other than use as a fuel.\114\
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\114\ We note that the BR does not identify a management method
code for wastes that are combusted in an incinerator and where the
heating value of the wastes is used beneficially in lieu of fossil
or other fuels to combust other waste with little or no heating
value. Thus, it is probable that the vast majority of the waste that
we identify as likely to be excluded as ECF, and which is currently
combusted in incinerators, is currently being burned for energy
recovery.
---------------------------------------------------------------------------
We also analyzed the two primary regulatory options considered by
the Agency.\115\ Annual net social benefits
[[Page 77995]]
under the first option (less stringent requirements) were found to be
$14.1 million. The additional cost savings primarily reflect reduced
burner and generator storage requirements. Under the second option
(more stringent requirements), net social benefits are estimated at
$10.9 million per year. The reduced net benefits are largely reflected
in increased burner storage requirements and greater tracking costs.
Reduced fuel and management costs account for the vast majority of all
cost savings under both options, as with the final rule. Under these
two options, generators are projected to exclude an estimated 100,200
to 118,800 tons of ECF per year, out of the 222,500 tons/year
qualifying.
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\115\ Alternative Option A would impose conditions that are less
stringent than those under the final rule (e.g., boiler operator
training would not be required; dikes and berms would be allowed for
secondary containment for tanks rather than a liner, double-wall, or
vault). Alternative Option B would impose conditions that are more
stringent than those under the final rule (e.g., closure and
financial requirements for storage units; manifests for shipments).
See USEPA, ``Assessment of the Potential Costs, Benefits, and other
Impacts of the Expansion of the RCRA Comparable Fuel Exclusion,''
April 2008, Exhibit ES-1.
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We believe that it is important to not only understand the change
in economic efficiency, as presented above, but to also understand the
primary distributional effects associated with this change. Hazardous
waste commercial incinerators and cement kilns are projected to
experience impacts associated with this action. These effects include
revenue losses and fuel replacement costs for cement kilns, plus
revenue increases for commercial incinerators. Commercial kilns and
blenders are projected to experience estimated revenue losses ranging
from $3.2 to $6.5 million per year, while commercial incinerators may
experience revenue changes from a decrease of $0.4 million to an
increase of approximately $2.8 million per year. The losses for cement
kilns represent less than 1 percent of the current annual waste
management revenues earned by these facilities. In addition, the shift
of ECF and hazardous wastes with which ECF is currently blended away
from commercial kilns represents a fuel loss to these facilities. We
estimate that the annual cost of replacing this hazardous waste fuel is
approximately $1.7 to 2.9 million per year.
Although impacts to these groups may be considered a cost in
accounting terms, they do not represent a real resource cost of the
rule. The actual net benefits of this action reflect the impacts to
these groups to the extent that there are real resource impacts, but do
not include transfers from one facility to another.
The findings presented here reflect numerous analytical assumptions
and limitations. Furthermore, we have analyzed additional scenarios and
sensitivity analyses that are not presented in this Preamble. Readers
wishing to gain a full understanding of our analytical methodology,
data, findings, assumptions, and limitations are encouraged to read the
Assessment document prepared in support of this final rule, and
available in the Docket to this rule.
Part Seven: Statutory and Executive Order Reviews
I. Executive Order 12866: Regulatory Planning and Review
Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993),
this action is a ``significant regulatory action,'' since this action
may raise novel legal or policy issues [3(f)(4)]. Accordingly, EPA
submitted this action to the Office of Management and Budget (OMB) for
review under EO 12866. Any changes made in response to OMB
recommendations have been documented in the docket for this action.
This rule is projected to result in benefits to society in the form
of cost savings. The total net cost savings are estimated at $13.4
million per year. This figure is significantly below the $100 million
threshold \116\ established under part 3(f)(1) of the Order. Thus, this
rule is not considered to be an economically significant action.
However, in an effort to comply with the spirit of the Executive Order,
we have prepared an economic assessment in support of this action. This
document is entitled: Assessment of the Potential Costs, Benefits, and
Other Impacts of the Expansion of the RCRA Comparable Fuel Exclusion-
Final Rule. The RCRA docket established for this rulemaking maintains a
copy of this Assessment for public review. Interested persons are
encouraged to read this document.
---------------------------------------------------------------------------
\116\ This $100 million threshold applies to both costs, and
cost savings.
---------------------------------------------------------------------------
II. Paperwork Reduction Act
The information collection requirements in this rule have been
submitted for approval to 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 under this rule is planned to be collected in order
to ensure that the conditions of the exclusion from RCRA under 40 CFR
261.38 are being met. The responses to the collection of information
are mandatory under 40 CFR 261.38, and are necessary for EPA to fulfill
its congressional mandate to protect public health and the environment.
The information will, however, be collected only to the extent
necessary for the implementation of this rule, and will not collect any
information related to the trade secrets of the stakeholders. EPA will
protect from public disclosure all confidential business information
obtained under this rule.
This promulgated rule is deregulatory. The 64 respondents
generating and burning excluded ECF would be subject to an annual
public reporting and recordkeeping burden for the collection of
information required under this rule of 37,373 hours, and a capital,
and operation and maintenance cost of $1.4 million. However, because
the excluded fuel would no longer be considered hazardous waste, the
generator would not be required to comply with the paperwork,
reporting, and recordkeeping requirements under the Subtitle C
hazardous wastes regulations. Therefore, the reporting and
recordkeeping burden associated with ECF would result in a net annual
reduction of 32,899 hours and savings of $1.3 million in capital, and
operation and maintenance costs. The frequency of responses varies with
the type of response. Burden is defined at 5 CFR 1320.3(b).
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. When this ICR is
approved by OMB, the Agency will publish a technical amendment to 40
CFR part 9 in the Federal Register to display the OMB control number
for the approved information collection requirements contained in this
final rule.
III. 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.
The RFA provides default definitions for each type of small entity.
Small entities are defined as: (1) A small business as defined by the
Small
[[Page 77996]]
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 this final rule on small
entities, I certify that this action will not have a significant
economic impact on a substantial number of small entities. In
determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the
primary purpose of the regulatory flexibility analyses is to identify
and address regulatory alternatives ``which minimize any significant
economic impact of the rule on small entities,'' 5 U.S.C. 603 and 604.
Thus, an agency may certify that a rule will not have a significant
economic impact on a substantial number of small entities if the rule
relieves regulatory burden, or otherwise has a positive economic effect
on all of the small entities subject to the rule. 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. For the purposes of
the impact analyses, 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.
This rule is projected to result in benefits in the form of cost
savings to companies that use the exclusion. As a result, the rule
would not result in adverse impacts for any small businesses that
generate ECF. Our analysis indicates that one or two cement kilns may
be owned by small businesses, as defined by the SBA for the relevant
NAICS code. Lost revenue plus fuel replacement costs to these
facilities have been found to represent less than 3% of the average
annual waste receipt revenues to these facilities, and considerably
less impacts when clinker/cement revenues are included. As a result,
these impacts are not significant. Furthermore, these impacts are not a
direct economic impact of the rule.
The reader is encouraged to review our regulatory flexibility
screening analysis prepared in support of this determination. This
analysis is incorporated into the Assessment document, which is
available in the Docket to this final rule.
IV. Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. Before promulgating an EPA rule for which a written statement
is needed, section 205 of the UMRA generally requires EPA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective or least burdensome alternative
that achieves the objectives of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.
This final rule contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments or the private sector. The UMRA generally excludes from the
definition of ``Federal intergovernmental mandate'' duties that arise
from participation in a voluntary federal program. This rule is a
voluntary program because the States are not required to adopt these
requirements as a condition of authorization (or otherwise). In any
event, EPA has determined that 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. The total net benefits (cost savings) of this
action are estimated to be $13.4 million per year.
Finally, EPA has determined that this rule contains no regulatory
requirements that might significantly or uniquely affect small
governments. Small governments are not affected by this action.
V. Executive Order 13132: Federalism
Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
``meaningful and timely input by state and local officials in the
development of regulatory policies that have federalism implications.''
``Policies that have federalism implications'' is defined in the
Executive Order to include regulations that 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.''
This final rule 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. The rule focuses on modified
requirements for facilities generating ECF, without affecting the
relationships between Federal and state governments. Thus, Executive
Order 13132 does not apply to this rule.
Although section 6 of Executive Order 13132 does not apply, EPA did
consult with representatives of state governments in developing this
rule. Representatives from the states of North Carolina, Georgia,
Missouri, Louisiana, and Oregon provided valuable input and review.
VI. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
Executive Order 13175, entitled ``Consultation and Coordination
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000),
requires EPA to develop an accountable process to ensure ``meaningful
and timely input by tribal officials in the development of regulatory
policies that have tribal implications.'' This final rule does not have
tribal implications, as specified in
[[Page 77997]]
Executive Order 13175. No Tribal governments are known to own or
operate facilities generating or burning hazardous secondary materials
subject to this rule. Thus, Executive Order 13175 does not apply to
this rule.
VII. EO 13045 ``Protection of Children From Environmental Health Risks
and Safety Risks''
This action is not subject to Executive Order 13045 (62 F.R. 19885,
April 23, 1997) because it is not economically significant as defined
in Executive Order 12866, and because the Agency does not believe the
environmental health or safety risks addressed by this action present a
disproportionate risk to children. A health and risk assessment in
support of this action is unnecessary due to the comparable emission
nature of this action.
VIII. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use
This rule is not subject to Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a
significant regulatory action under Executive Order 12866.
This rule will not seriously disrupt energy supply, distribution
patterns, prices, imports or exports. Furthermore, this rule is
designed to improve economic efficiency by expanding the use of fuels
that are hazardous secondary materials.
IX. National Technology Transfer 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.
This rulemaking involves environmental monitoring or measurement.
Consistent with the Agency's Performance Based Measurement System
(``PBMS''), EPA has decided not to require the use of specific,
prescribed analytic methods. Rather, the rule will allow the use of any
method that meets the prescribed performance criteria. The PBMS
approach is intended to be more flexible and cost-effective for the
regulated community; it is also intended to encourage innovation in
analytical technology and improved data quality. EPA is not precluding
the use of any method, whether it constitutes a voluntary consensus
standard or not, as long as it meets the performance criteria
specified.
X. 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 does not
affect the level of protection provided to human health or the
environment. This rule is designed to allow for the use of hazardous
secondary materials as fuel under a comparable emission standard,
resulting in no incremental increase in risk to human health and the
environment, when compared to the burning of virgin fuels.
XI. 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 January 20, 2009.
List of Subjects in 40 CFR Part 261
Hazardous waste, Recycling, Reporting and recordkeeping
requirements.
Dated: December 12, 2008.
Stephen L. Johnson,
Administrator.
0
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
0
1. The authority citation for part 261 continues to read as follows:
Authority: 42 U.S.C. 6903, 6912(b), 6925.
0
2. Section 261.4 is amended by revising paragraph (a)(16) to read as
follows:
Sec. 261.4 Exclusions.
(a) * * *
(16) Comparable fuels, emission-comparable fuels, or comparable
syngas fuels that meet the requirements of Sec. 261.38.
* * * * *
0
3. Section 261.38 is revised to read as follows:
Sec. 261.38 Exclusion of comparable fuel, emission-comparable fuel,
and syngas fuel.
(a) Specifications for excluded fuels. Materials that meet the
specifications for comparable fuel, emission-comparable fuel, or syngas
fuel under paragraphs (a)(1), (a)(2), or (a)(3) 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) Emission-comparable fuel specifications--The specifications
shall be met as-generated. (i) Physical specifications.--(A) Heating
value. The heating value must be 8,000 BTU/lbs (18,400 J/g) or greater.
(B) Viscosity. The viscosity must not exceed 50 cs.
(ii) Constituent specifications--(A) Except as provided by
paragraph (a)(2)(ii)(B) of this section, for
[[Page 77998]]
compounds listed in Table 1 of this section the specification levels
and, where nondetect is the specification, minimum required detection
limits, are: (see Table 1 of this section).
(B) Specifications not applicable. The specification levels in
Table 1 to this section do not apply for the following hydrocarbons and
oxygenates under the special conditions provided under this section for
emission-comparable fuel:
(1) Benzo(a)anthracene (CAS No. 56-55-3).
(2) Benzene (CAS No. 71-43-2).
(3) Benzo(b)fluoranthene (CAS No. 205-99-2)
(4) Benzo(k)fluoranthene (CAS No. 207-08-9)
(5) Benzo(a)pyrene (CAS No. 50-32-8)
(6) Chrysene (CAS No. 218-01-9)
(7) Dibenzo(a,h)anthracene (CAS No. 52-70-3)
(8) 7,12-Dimethylbenz(a)anthracene (CAS No. 57-97-6)
(9) Flouranthene (CAS No. 206-44-0)
(10) Indeno(1,2,3-cd)pyrene (CAS No. 193-39-5)
(11) 3-Methlycholanthrene (CAS No. 56-49-5)
(12) Naphthalene (CAS No. 91-20-3)
(13) Toluene (CAS No. 108-88-3).
(14) Acetophenone (CAS No. 98-86-2).
(15) Acrolein (CAS No. 107-02-8).
(16) Allyl alcohol (CAS No. 107-18-6).
(17) Bis(2-ethylhexyl)phthalate [Di-2-e thylhexyl phthalate] (CAS
No.117-81-7).
(18) Butyl benzyl phthalate (CAS No. 85-68-7).
(19) o-Cresol [2-Methyl phenol] (CAS No. 95-48-7).
(20) m-Cresol [3-Methyl phenol] (CAS No. 108-39-4).
(21) p-Cresol [4-Methyl phenol] (CAS No.106-44-5).
(22) Di-n-butyl phthalate (CAS No. 84-74-2).
(23) Diethyl phthalate (CAS No. 84-66-2).
(24) 2,4-Dimethylphenol (CAS No. 105-67-9).
(25) Dimethyl phthalate (CAS No. 131-11-3).
(26) Di-n-octyl phthalate (CAS No. 117-84-0).
(27) Endothall (CAS No. 145-73-3).
(28) Ethyl methacrylate (CAS No. 97-63-2).
(29) 2-Ethoxyethanol [Ethylene glycol monoethyl ether] (CAS No.
110-80-5).
(30) Isobutyl alcohol (CAS No. 78-83-1).
(31) Isosafrole (CAS No. 120-58-1).
(32) Methyl ethyl ketone [2-Butanone] (CAS No. 78-93-3).
(33) Methyl methacrylate (CAS No. 80-62-6).
(34) 1,4-Naphthoquinone (CAS No. 130-15-4).
(35) Phenol (CAS No. 108-95-2).
(36) Propargyl alcohol [2-Propyn-1-ol] (CAS No. 107-19-7).
(37) Safrole (CAS No. 94-59-7).
(3) 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;
(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.
(4) Blending to meet the specifications. (i) Comparable fuel. (A)
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)(4)(i)(B) of this section:
(B) Blending to meet the viscosity specification. A hazardous waste
blended to meet the viscosity specification for comparable fuel shall:
(1) 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;
(2) Be blended at a facility that is subject to the applicable
requirements of parts 264 and 265, or Sec. 262.34 of this chapter; and
(3) Not violate the dilution prohibition of paragraph (a)(7) of
this section.
(ii) Emission-comparable fuel. Hazardous waste shall not be treated
by blending or other means to meet the emission-comparable fuel
specifications under paragraph (a)(2) of this section. Emission-
comparable fuel must meet those specifications as-generated by the
original generator of the material. Emission-comparable fuel that has
met the specifications under paragraph (a)(2) of this section as-
generated, and that is subsequently commingled with other materials,
must continue to meet the specifications.
(5) Treatment to meet the comparable fuel specifications. (i) A
hazardous waste may be treated to meet the specifications for
comparable fuel under paragraph (a)(1) of this section provided the
treatment:
(A) Destroys or removes the constituent 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 and 265, or Sec. 262.34 of this chapter; and
(C) Does not violate the dilution prohibition of paragraph (a)(7)
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.
(6) 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)(3) of this section provided the
processing:
(A) Destroys or removes the constituent 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 and 265, or Sec. 262.34 of this chapter or
is an exempt recycling unit pursuant to Sec. 261.6(c); and
(C) Does not violate the dilution prohibition of paragraph (a)(7)
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.
(7) Dilution prohibition for comparable fuel, emission-comparable
fuel, and syngas fuel. (i) Comparable fuel and syngas fuel. 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)(3) of this section
for syngas.
(ii) Emission-comparable fuel. Emission-comparable fuel shall not
be generated by means of dilution.
(b) Implementation.--(1) General.--(i) Materials that meet the
specifications provided by paragraph (a) of this section for comparable
fuel, emission-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, and 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 compliance with the conditions of this section and keep
records necessary to document compliance with those conditions.
[[Page 77999]]
(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 Codes 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)(D) 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
emission-comparable fuel/comparable fuel (specify which) 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) Generators of emission-comparable fuel must also include in the
notices:
(1) An estimate of the annual quantity of each material for which
an emission-comparable fuel exclusion would be claimed; and
(2) An estimate of the maximum concentration of each compound in
Table 2 to this section in each emission-comparable fuel stream for
which the fuel exceeds the comparable fuel specifications for those
compounds in Table 1 to this section.
(C) If there is a substantive change in the information provided in
the notice required under this paragraph (b)(2)(i), the generator must
submit a revised notification.
(D) Comparable fuel and syngas 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 comparable fuel or
syngas fuel or for revised notices as required by paragraph
(b)(2)(i)(C) 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. (i) Comparable fuel and syngas fuel. The exclusion for
fuels meeting the specifications under paragraphs (a)(1) or (a)(3) of
this section 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:
(A) Industrial furnaces as defined in Sec. 260.10 of this chapter;
(B) Boilers, as defined in Sec. 260.10 of this chapter, that are
further defined as follows:
(1) Industrial boilers located on the site of a facility engaged in
a manufacturing process where substances are transformed into new
products, including the component parts of products, by mechanical or
chemical processes; or
(2) Utility boilers used to produce electric power, steam, heated
or cooled air, or other gases or fluids for sale;
(C) Hazardous waste incinerators subject to regulation under
subpart O of parts 264 or 265 of this chapter or applicable CAA MACT
standards.
(D) Gas turbines used to produce electric power, steam, heated or
cooled air, or other gases or fluids for sale.
(ii) Emission-comparable fuel. The exclusion for fuel meeting the
specifications under paragraph (a)(2) of this section applies only if
the fuel is burned under the conditions provided by paragraph (c) of
this section.
(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.
[[Page 78000]]
(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) Analysis plans for burners of emission-comparable fuel. An
emission-comparable fuel burner is subject to the fuel analysis plan
requirements under paragraph (b)(4) of this section to determine, for
each fuel fed to the boiler when burning emission-comparable fuel, the
as-fired heating value and the as-fired concentration of each compound
listed in paragraph (a)(2)(ii)(B) of this section, except for fuels
under the situations described below:
(i) Coal or fuel oil used as primary fuels, when the burner uses
the heating values and compound concentrations for these fuels provided
in paragraph (c)(2)(ii)(C) of this section and Tables 3 and 4 to Sec.
261.38;
(ii) Emission-comparable fuel, when the burner receives
documentation of this information from the generator for each shipment
of emission-comparable fuel, provided that the emission-comparable fuel
is not blended with other fuels before firing to the burner.
(iii) Emission-comparable fuel, when the burner receives
documentation of this information from the generator for each shipment
of emission-comparable fuel, and the emission-comparable fuel is
blended with other fuels before firing to the burner, provided that:
(A) The burner has determined the heating value of the other fuels
and the concentration of each compound listed in paragraph
(a)(2)(ii)(B) of this section for the other fuels; and;
(B) The burner determines by calculation the as-fired heating value
of the blended emission-comparable fuel and the as-fired concentration
of each compound listed in paragraph (a)(2)(ii)(B) of this section of
the blended emission-comparable fuel.
(6) Excluded fuel sampling and analysis. (i) General. For
comparable fuel, emission-comparable fuel, and syngas for which an
exclusion is claimed under the specifications provided by paragraphs
(a)(1), (a)(2), or (a)(3) of this section, the generator of the
material 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 material;
(C) Constituents introduced into the process that generates the
material; or
(D) Constituents that are byproducts or side reactions to the
process that generates the material.
Note to paragraph (b)(6)(i): 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 fuel/syngas above the exclusion specifications.
(ii) Use of process knowledge. (A) Comparable fuel and syngas. For
each material 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)(6)(i) of this
section and must test to determine that all of the constituent
specifications of paragraphs (a)(1) and (a)(3) of this section, as
applicable, have been met.
(B) Emission-comparable fuel. Emission-comparable fuel must meet
the specifications for exclusion as-generated. Thus, the generator may
use process knowledge to determine that compounds listed in Appendix
VIII to this part are not present in the emission-comparable fuel.
(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 (b)(6) preempts, overrides or
otherwise negates the provision in Sec. 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 as-generated.
(B) If hazardous waste is blended to meet the kinematic viscosity
specification for comparable fuel, the generator shall:
(1) Analyze the hazardous waste as-generated 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 properties in a manner that may affect conformance with the
specifications.
(ix) An emission-comparable fuel burner must determine, for each
fuel fired to the burner, the as-fired heating value of the emission-
comparable fuel and the as-fired concentration of each compound listed
in paragraph (a)(2)(ii)(B) of this section using information provided
by the generator, information provided by paragraph (c)(2)(ii)(C) of
this section and Tables 3 and 4 to this section, by sampling and
analysis, or by calculation when emission-comparable fuel is commingled
with other fuels and the heating value of the emission comparable fuel
and the concentration of each compound listed in paragraph
(a)(2)(ii)(B) of this section is known for the fuels prior to
commingling.
(7) Speculative accumulation. Excluded fuel must not be accumulated
speculatively, as defined in Sec. 261.1(c)(8).
(8) Operating record. The generator must maintain an operating
record on
[[Page 78001]]
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)(6) 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)(4) and (a)(5) 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.--(i) Comparable fuel
and syngas fuel. Prior to submitting a notification to the State and
Regional Directors, a generator of comparable fuel or syngas fuel
excluded under paragraphs (a)(1) or (a)(3) of this section who intends
to ship the excluded fuel off-site for burning must obtain a one-time
written, signed statement from the burner:
(A) 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;
(B) Identifying the name and address of the facility that will burn
the excluded fuel; and
(C) Certifying that the state in which the burner is located is
authorized to exclude wastes as excluded fuel under the provisions of
this section.
(ii) Emission-comparable fuel. Prior to submitting a notification
to the State and Regional Directors, a generator of emission-comparable
fuel who intends to ship the excluded fuel off-site for burning must
obtain a one-time written, signed statement from the burner:
(A) Certifying that the excluded fuel will be stored under the
conditions of paragraphs (c)(1) or (e) of this section and burned under
the conditions of paragraph (c)(2) of this section, and that the burner
will comply with the notification, reporting, and recordkeeping
conditions of paragraph (c)(5) of this section;
(B) Identifying the name and address of the facility that will burn
the excluded fuel; and
(C) 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 full RCRA hazardous waste management
requirements.
(12) Regulatory status of boiler residues. Burning excluded fuel
that was otherwise a hazardous waste listed under Sec. Sec. 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,
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 Sec. Sec. 261.21 through
261.24 or if the fuel were otherwise a hazardous waste listed under
Sec. Sec. 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
Sec. Sec. 261.21 through 261.24; or
(B) If the fuel were otherwise a hazardous waste listed under
Sec. Sec. 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 Sec. 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 Sec. Sec. 261.21 through
261.24 or if the fuel were otherwise a hazardous waste listed in
Sec. Sec. 261.31 through 261.33.
(ii) For excluded fuel that would have otherwise been a hazardous
waste listed in Sec. Sec. 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
[[Page 78002]]
Department of Transportation requirements for hazardous materials in 49
CFR parts 171 through 180.
(c) Special conditions for emission-comparable fuel. The following
additional conditions apply to emission-comparable fuel--fuel that
meets the specifications under paragraph (a)(2) of this section.
(1) Storage. (i) General. Emission-comparable fuel may be stored in
a container or tank under the conditions of paragraphs (c)(1)(iii)
through (c)(1)(viii) of this section, or alternative conditions under
paragraph (e) of this section.
(ii) Prohibition on underground storage. Emission-comparable fuel
shall not be stored in an underground tank. An underground tank is a
tank the volume of which (including the volume of underground pipes
connecting thereto) is 10 percent or more beneath the surface of the
ground.
(iii) Spill prevention, control, and countermeasures (SPCC)
requirements. Emission-comparable fuel storage tanks and containers
with a capacity equal to or greater than 0.1 m\3\ (26 gallons) are
subject to the following Spill Prevention, Control, and Countermeasures
(SPCC) requirements adopted from 40 CFR Part 112. To satisfy the
adopted conditions, you must substitute the term ``emission-comparable
fuel'' for the term ``oil,'' and by substituting the term ``release of
emission-comparable fuel to the environment'' for the term ``discharge
as described in Sec. 112.1(b).''
(A) Section 112.2, Definitions. These definitions apply to the
adopted SPCC requirements under paragraphs (c)(1)(iii)(B) through
(c)(1)(iii)(D) of this section.
(B) Sections 112.3(d) and 112.3(e) of this chapter, Requirement to
Prepare and Implement a Spill Prevention, Control, and Countermeasure
Plan. (1) You must prepare a SPCC Plan in writing, and in accordance
with the adopted provisions of Sec. Sec. 112.7 and 112.8 of this
chapter;
(2) The SPCC Plan must be reviewed and certified according to the
provisions of Sec. 112.3(d) of this chapter and must be made available
to the Regional Administrator according to the provisions of Sec.
112.3(e) of this chapter;
(3) You must amend your SPCC Plan as directed by the Regional
Administrator upon a finding that amendment is necessary to prevent and
contain releases of emission-comparable fuel from your facility. You
must implement the amended SPCC Plan as soon as possible, but not later
than six months after you amend your SPCC Plan, unless the Regional
Administrator specifies another date;
(C) Sections 112.5(a) and 112.5(b) of this chapter, Amendment of
Spill Prevention, Control, and Countermeasures Plan by Owners or
Operators. (1) You must comply with the provisions of Sec. 112.5(a)
and (b) of this chapter by substituting the term ``release of emission-
comparable fuel to the environment'' for the term ``discharge as
described in Sec. 112.1(b);''
(2) You must have a Professional Engineer certify any technical
amendment to your Plan in accordance with Sec. 112.3(d) of this
chapter.
(D) Section 112.7 of this chapter, General Requirements for Spill
Prevention, Control, and Countermeasure Plans. (1) You must comply with
the requirements of Sec. 112.7, except for paragraphs (a)(2), (c),
(d), and (k) of that section.
(2) Your Plan may deviate from the requirements Sec. 112.7(g),
(h)(2), (h)(3) and (i), and the adopted provisions of Sec. 112.8,
where applicable to a specific facility, if you provide equivalent
protection by some other means of spill prevention, control, or
countermeasure. Where your Plan does not conform to the applicable
requirements in Sec. 112.7(g), (h)(2), (h)(3) and (i) and the adopted
provisions of Sec. 112.8 of this chapter, you must state the reasons
for nonconformance in your Plan and describe in detail alternate
methods and how you will achieve equivalent environmental protection.
If the Regional Administrator determines that the measures described in
your Plan do not provide equivalent environmental protection, he may
require that you amend your Plan.
(E) Section 112.8 of this chapter, Spill Prevention, Control, and
Countermeasure Plan Requirements for Onshore Facilities, except for
paragraph (b) of this section (facility drainage), paragraph (c)(2) of
this section (secondary containment for bulk storage containers),
paragraph (c)(4) of this section (protection of completely buried
storage tanks), and paragraph (c)(11) of this section (secondary
containment for mobile containers), with the following revisions:
(1) You must inspect at least weekly areas where portable
containers are stored to look for leaking containers and for
deterioration of containers and the containment system caused by
corrosion or other factors.
(2) Section 112.8(d)(1) of this chapter applies to all buried
piping irrespective of the installation or replacement date.
(iv) Containment and detection of releases--(A) Tanks. To prevent
the release of emission comparable fuel or hazardous constituents to
the environment, you must provide secondary containment for emission-
comparable fuel tank systems as prescribed by the following
requirements adopted from Sec. 264.193 of this chapter. To satisfy the
adopted conditions, you must substitute the term ``emission-comparable
fuel'' for the term ``waste,'' and substitute the term ``document in
the record'' for the term ``demonstrate to the Regional
Administrator.''
(1) Section 264.193(b) of this chapter, which prescribes general
performance standards for secondary containment systems;
(2) Section 264.193(c) of this chapter, which prescribes minimum
requirements for secondary containment systems;
(3) Section 264.193(d)(1) through (3), which prescribes permissible
secondary containment devices;
(4) Section 264.193(e) of this chapter, which prescribes design and
operating requirements for the permissible secondary containment
devices; and
(5) Section 264.193(f) of this chapter, which prescribes secondary
containment requirements for ancillary equipment.
(B) Portable containers. To prevent the release of emission
comparable fuel or hazardous constituents to the environment, you must
provide containment for emission-comparable fuel container storage
units as prescribed by the provisions of Sec. 264.175(b) of this
chapter, which are hereby adopted for emission-comparable fuel
container storage units. To satisfy the adopted condition, you must
substitute the term ``emission-comparable fuel'' for each occurrence of
the term ``waste.''
(v) Preparedness and prevention, emergency procedures and response
to releases.--(A) Preparedness and prevention.--(1) Required equipment.
Your facility must be equipped with the equipment required under Sec.
264.32(a) through (d) of this chapter in a manner that it can be used
in emergencies associated with storing and handling emission-comparable
fuel.
(2) Testing and maintenance of equipment. You must test and
maintain as necessary to assure proper operation in times of emergency
all communications or alarm systems, fire protection equipment, spill
control equipment, and decontamination equipment required for your
emission-comparable fuel tank system or container storage unit.
(3) Access to communications or alarm system. Whenever emission
comparable fuel is distributed into or
[[Page 78003]]
out of the tank system or container storage unit, all personnel
involved in the operation must have immediate access to an internal
alarm or emergency communication device, either directly or through
visual or voice contact with another employee.
(4) Arrangements with local authorities. You must comply with Sec.
264.37(a) of this chapter. If state or local authorities decline to
enter into the arrangements prescribed by Sec. 264.37(a) of this
chapter, you must keep a record documenting the refusal.
(B) Emergency procedures.--(1) Emergency coordinator. At all times,
there must be at least one employee either on the facility premises or
on call (i.e., available to respond to an emergency by reaching the
facility within a short period of time) with the responsibility for
coordinating all emergency response measures. This emergency
coordinator must be thoroughly familiar with all aspects of the
facility's Spill Prevention, Control, and Countermeasures (SPCC) Plan
required under paragraph (c)(1)(iii) of this section, all emission-
comparable fuel operations and activities at the facility, the location
and characteristics of emission-comparable fuel handled, the location
of all records within the facility pertaining to emission-comparable
fuel, and the facility layout. In addition, this person must have the
authority to commit the resources needed to carry out the SPCC Plan.
(2) Emergency procedures.--(i) Whenever there is an imminent or
actual emergency situation relating to the emission-comparable fuel
tank system or container storage unit, the emergency coordinator (or
his designee when the emergency coordinator is on call) must
immediately activate internal facility alarms or communication systems,
where applicable, to notify all facility personnel and notify
appropriate state or local agencies with designated response roles if
their help is needed.
(ii) Whenever there is a release, fire, or explosion relating to
the emission-comparable fuel tank system or container storage unit, the
emergency coordinator must immediately identify the character, exact
source, amount, and aerial extent of any released materials. He may do
this by observation or review of facility records, and, if necessary,
by chemical analysis.
(iii) Concurrently, the emergency coordinator must assess possible
hazards to human health or the environment that may result from the
release, fire, or explosion. This assessment must consider both direct
and indirect effects of the release, fire, or explosion (e.g., the
effects of any toxic, irritating, or asphyxiating gases that are
generated, or the effects of any hazardous surface water run-off from
water or chemical agents used to control fire and heat-induced
explosions).
(iv) If the emergency coordinator determines that the facility has
had a release, fire, or explosion associated with the emission-
comparable fuel tank system or container storage unit which could
threaten human health or the environment outside the facility, he must
report his findings as provided by paragraph (c)(1)(v)(B)(2)(v) of this
section.
(v) If the emergency coordinator's assessment indicates that
evacuation of local areas may be advisable, he must immediately notify
appropriate local authorities. He must be available to help appropriate
officials decide whether local areas should be evacuated, and he must
immediately notify either the government official designated as the on-
scene coordinator for that geographical area, (in the applicable
regional contingency plan under part 300 of this title) or the National
Response Center (using their 24-hour toll free number 800/424-8802).
The report must include: the name and telephone number of the reporter;
the name and address of the facility; the time and type of incident
(e.g., release, fire); the name and quantity of material(s) involved,
to the extent known; the extent of injuries, if any; and the possible
hazards to human health, or the environment, outside the facility.
(vi) During an emergency, the emergency coordinator must take all
reasonable measures necessary to ensure that fires, explosions, and
releases do not occur, recur, or spread to other materials at the
facility. These measures must include, where applicable, stopping
processes and operations and collecting and containing released
emission-comparable fuel.
(vii) If the emission-comparable fuel tank system or container
storage unit stops operations in response to a fire, explosion, or
release, the emergency coordinator must monitor for leaks, pressure
buildup, gas generation, or ruptures in valves, pipes, or other
equipment, wherever this is appropriate.
(viii) Immediately after an emergency, the emergency coordinator
must provide for treating, storing, or disposing of recovered emission-
comparable fuel, contaminated soil or surface water, or any other
material that results from a release, fire, or explosion at the
facility.
(ix) The emergency coordinator must ensure that, in the affected
area(s) of the facility: materials that may be incompatible with the
released emission-comparable fuel is treated, stored, or disposed of
until cleanup procedures are completed; and all emergency equipment
listed in the SPCC Plan is cleaned and fit for its intended use before
operations are resumed.
(x) You must note in the record the time, date, and details of any
incident that requires implementing the SPCC Plan for the emission-
comparable fuel tank system or container storage unit. Within 15 days
after the incident, you must submit a written report on the incident to
the Regional Administrator. The report must include: the name, address,
and telephone number of the owner or operator; the name, address, and
telephone number of the facility; the date, time, and type of incident
(e.g., fire, explosion); the name and quantity of material(s) involved;
the extent of injuries, if any; an assessment of actual or potential
hazards to human health or the environment, where this is applicable;
and the estimated quantity and disposition of recovered material that
resulted from the incident.
(C) Response to leaks or spills and disposition of leaking or
unfit-for-use tank systems. (1) You must comply with the provisions of
Sec. 264.196 of this chapter, except for Sec. 264.196(e)(1) and
(e)(4) of this chapter.
(2) To satisfy the adopted provisions of Sec. 264.196, you must
substitute the term ``emission-comparable fuel'' for the terms
``hazardous waste'' and ``waste.''
(3) Unless you satisfy the requirements of Sec. 264.196(e)(2) and
(3) of this chapter, you must immediately cease using the tank system
to store emission-comparable fuel and remove any liquid and solid
residues under the conditions of paragraph (b)(13) of this section.
(vi) Air emissions conditions adopted from part 63, subpart EEEE.--
(A) Applicability--(1) If your emission-comparable fuel storage,
transfer, and transport equipment is not subject to the controls
provided by Sec. 63.2346 of this chapter, you must determine whether
you are subject to the provisions of paragraphs (c)(1)(vi)(B) and (C)
of this section:
(2) If your emission-comparable fuel storage tank is subject to the
controls provided by Sec. 63.2346 of this chapter other than those
prescribed by item 6 in Table 2 to subpart EEEE, part 63 of this
chapter (i.e., requirements for organic liquids with an annual average
true vapor pressure of the total listed organic HAP >=76.6 kilopascals
(11.1 psia)), you must determine whether the tank would be subject to
the controls prescribed by item 6 after considering the vapor pressure
of the RCRA oxygenates listed
[[Page 78004]]
in paragraph (c)(1)(vi)(B)(3) of this section as well as the organic
HAP listed in Table 1 to subpart EEEE, part 63 of this chapter. If the
annual average true vapor pressure of the total RCRA oxygenates and
Table 1 organic HAP in the emission-comparable fuel is >=76.6
kilopascals (11.1 psia), you are subject to the requirements of
paragraphs (c)(1)(vi)(B) through (C) of this section.
(B) Conditions of applicability. To satisfy the conditions under
paragraph (c)(1)(vi)(C) of this section that are adopted from part 63,
subpart EEEE of this chapter, you must:
(1) Satisfy the conditions irrespective of whether your facility is
an area source as defined by Sec. 63.2 of this chapter.
(2) Substitute the term ``RCRA oxygenates as well as organic HAP''
for each occurrence of the term ``organic HAP''; the term ``RCRA
oxygenates as well as organic HAP listed in Table 1'' for each
occurrence of the term ``organic HAP listed in Table 1''; and the term
``RCRA oxygenates as well as Table 1 organic HAP'' for each occurrence
of the term ``Table 1 organic HAP''.
(3) Use the following definition of RCRA oxygenates: The term
``RCRA oxygenates'' means the following organic compounds:
(i) Allyl alcohol (CAS No. 107-18-6);
(ii) Bis(2-ethylhexyl)phthalate [Di-2-e thylhexyl phthalate] (CAS
No.117-81-7);
(iii) 2,4-Dimethylphenol (CAS No. 105-67-9);
(iv) Ethyl methacrylate (CAS No. 97-63-2);
(v) 2-Ethoxyethanol [Ethylene glycol monoethyl ether] (CAS No. 110-
80-5);
(vi) Isobutyl alcohol (CAS No. 78-83-1);
(vii) Isosafrole (CAS No. 120-58-1);
(viii) Methyl ethyl ketone [2-Butanone] (CAS No. 78-93-3);
(ix) 1,4-Naphthoquinone (CAS No. 130-15-4);
(x) Propargyl alcohol [2-Propyn-1-ol] (CAS No. 107-19-7); and
(xi) Safrole (CAS No. 94-59-7).
(4) Use the following definition of organic liquid. Organic liquid
means emission comparable fuel that:
(i) Contains 5 percent by weight or greater of the RCRA oxygenates
as well as organic HAP listed in Table 1 to this subpart, as determined
using the procedures specified in Sec. 63.2354(c) of this chapter; and
(ii) Has an annual average true vapor pressure of 0.7 kilopascals
(0.1 psia) or greater.
(5) Use the following definition of affected source. Affected
source means the collection of activities and equipment used to
distribute organic liquids into, out of, or within a facility.
(6) Substitute the term ``subject to Sec. 261.38(c)(1)(vi)(C)of
this chapter'' for each occurrence of the term ``subject to this
subpart''.
(7) Satisfy the conditions if:
(i) Your organic liquids transfer equipment is exempt from subpart
EEEE, part 63 of this chapter, under the provisions of Sec.
63.228(c)(1) of this chapter, which exempts organic liquids transfer
equipment at facilities subject to a NESHAP other than subpart EEEE,
part 63; and
(ii) The requirements applicable to the organic liquids transfer
equipment under the other NESHAP are not equivalent to, at a minimum,
the conditions under paragraphs (c)(1)(vi)(C), (c)(1)(vii), or (e) of
this section. You must document and record your determination whether
the requirements under the other NESHAP are less stringent than the
conditions under paragraph (c)(1)(vi)(C) of this section. You may
contact the RCRA regulatory authority to assist with this
determination.
(8) Submit all notifications, reports, and other communications to
the RCRA regulatory authority rather than the CAA regulatory authority.
(C) Conditions to control air emissions under provisions adopted
from part 63, subpart EEEE of this chapter. (1) The affected source is
the equipment identified under Sec. 63.2338(b)(1) through (5) of this
chapter, except for equipment identified in Sec. 63.2338(c)(2) through
(3) of this chapter.
(2) Definitions of new, reconstructed, and existing affected
sources are provided under Sec. 63.2338(d) through (f) of this
chapter.
(3) You must comply with the emission limitations, operating
limits, and work practice standards under Sec. 63.2346 of this
chapter.
(4) You must comply with the general requirements under Sec.
63.2350 of this chapter. The startup, shutdown, and malfunction plan
required by Sec. 63.2350(c) of this chapter need not address equipment
not subject to paragraph (c)(1)(vi)(C) of this section.
(5) You must comply with the performance tests, design evaluation,
and performance evaluation requirements under Sec. 63.2354 of this
chapter. When complying with Sec. 63.2354(c) of this chapter, however,
you must determine the content of RCRA oxygenates as well as organic
HAP in the emission-comparable fuel.
(6) You must conduct performance tests and other initial compliance
demonstrations prior to managing emission-comparable fuel in the
storage unit.
(7) You must conduct subsequent performance tests by the dates
specified in Sec. 63.2362 of this chapter.
(8) You must comply with the monitoring, installation, operation,
and maintenance requirements under Sec. 63.2366 of this chapter.
(9) You must demonstrate initial compliance with the emission
limitations, operating limits, and work practice standards as required
under Sec. 63.2370 of this chapter.
(10) You must monitor and collect data to demonstrate continuous
compliance and use the collected data as required by Sec. 63.2374 of
this chapter.
(11) You must demonstrate continuous compliance with the emission
limitations, operating limits, and work practice standards as required
by Sec. 63.2378 of this chapter.
(12) You must submit the notifications and on the schedule required
by Sec. 63.2382 of this chapter, except that initial notifications
must be submitted prior to managing emission-comparable fuel in the
storage unit. Notifications must be submitted to the RCRA regulatory
authority.
(13) You must submit the reports and on the schedule required by
Sec. 63.2386 of this chapter. Reports must be submitted to the RCRA
regulatory authority.
(14) You must keep the applicable records required by Sec. 63.2390
of this chapter.
(15) You must keep records in the form, and for the duration,
required by Sec. 63.2394 of this chapter.
(16) The parts of the General Provisions that apply to you are
provided by Sec. 63.2398 of this chapter.
(17) The definitions that apply to the conditions under paragraph
(c)(1)(vi)(C) of this section are provided by Sec. 63.2406 of this
chapter, and paragraphs (c)(1)(vi)(B)(3) through (5) of this section.
(18) You are subject to the requirements in Tables 1-12 to subpart
EEEE, part 63 of this chapter.
(vii) Air emissions conditions for tanks and containers that are
not subject to conditions adopted from part 63, subpart EEEE. Tank and
container storage units that are not subject to the conditions adopted
from subpart EEEE, part 63 under paragraph (c)(1)(vi) of this section
are subject to the conditions of this paragraph.
(A) Tanks. (1) Level 1 control. (i) Applicability criteria. Tanks
that meet the following vapor pressure limitations for emission-
comparable fuel for the tank size designations are subject to the air
emission controls under paragraph (c)(1)(vii)(A)(1)(ii) of this
section:
(A) For a tank design capacity equal to or greater than 151 m\3\
(40,000
[[Page 78005]]
gallons), the annual average organic vapor pressure limit for the tank
is 5.2 kPa (0.75 psia);
(B) For a tank design capacity equal to or greater than 75 m\3\
(20,000 gallons) but less than 151 m\3\ (40,000 gallons), the annual
average organic vapor pressure limit for the tank is 27.6 kPa (4.0
psia); and
(C) For a tank design capacity less than 75 m\3\ (20,000 gallons),
the annual average vapor pressure limit for the tank is 76.6 kPa (11.1
psia);
(ii) Conditions to control emissions. You must comply with the
following requirements:
(A) NESHAP provisions for level 1 control under subpart OO, part
63. Sections 63.901 through 63.907 of this chapter; or
(B) NESHAP provisions for organic liquid distribution under subpart
EEEE, part 63. The provisions under Item 1.a.i or 1.a.ii which require
venting to a control device under provisions of subpart SS, part 63 of
this chapter, or Level 2 tank emissions control under subpart WW, part
63 of this chapter, or routing emissions to a fuel gas system or back
to a process under Sec. 63.984 of subpart SS, part 63 of this chapter,
or vapor balancing emissions to the transport vehicle from which the
storage tank is filled under Sec. 63.2346(a)(4); or
(C) Hazardous waste tank controls under subpart CC, part 264. The
provisions for additional options provided for hazardous waste tanks
under Sec. 264.1084(d)(3), (d)(4), or (d)(5) of this chapter for use
of venting to a control device, a pressure tank, or a tank located
inside an enclosure that is vented through a closed-vent system to an
enclosed combustion control device, and the associated provisions under
Sec. Sec. 63.1081 (definitions), 264.1083(c) (determination of vapor
pressure), 264.1084(j) (transfer to a tank), 264.1087 (closed-vent
systems and control devices), and 264.89(b) (recordkeeping) of this
chapter. To satisfy these adopted provisions, you must substitute the
term ``emission-comparable fuel'' for the terms ``hazardous waste'' and
``waste.''
(2) Level 2 control. (i) Applicability criteria. Tanks that do not
meet the vapor pressure limitations for emission-comparable fuel for
the tank size designations under paragraph (c)(1)(vii)(A)(1)(i) of this
section are subject to the air emission controls under paragraph
(c)(1)(vii)(A)(2)(ii) of this section.
(ii) Conditions to control emissions. To satisfy the conditions to
control emissions, you must comply with the requirements under
paragraphs (c)(1)(vii)(A)(1)(ii)(B) or (C) of this section.
(3) Equipment leaks. For each valve, pump, compressor, pressure
relief device, sampling connection system, open-ended valve or line, or
flange or other connector, and any control devices or systems used to
manage emission-comparable fuel in a tank system subject to paragraph
(c)(1)(vii)(A) of this section, you must comply with the applicable
requirements under 40 CFR part 63, subpart TT (control level 1), except
for Sec. 63.1000; or subpart UU (control level 2), except for Sec.
63.1019; or subpart H, except for Sec. Sec. 63.160, 63.162(b) and (e),
and 63.183.
(B) Containers. (1) Level 1 control. (i) Applicability criteria.
Containers that meet the following criteria are subject to the air
emission controls under paragraph (c)(1)(vii)(B)(1)(ii) of this
section:
(A) Containers having a design capacity greater than 0.1 m\3\ and
less than or equal to 0.46 m\3\;
(B) Containers having a design capacity greater than 0.46 m\3\ that
are not in light liquid service, as defined in Sec. 264.1031 of this
chapter.
(C) Containers having a design capacity greater than 0.46 m\3\ that
are in light liquid service, as defined in Sec. 264.1031 of this
chapter.
(ii) Conditions to control emissions. To satisfy the conditions on
Level I control of emissions, you must comply with the following
requirements:
(A) The NESHAP provisions for containers under subpart PP, part 63
at Sec. Sec. 63.922 (level 1 control) or 63.923 (level 2 control) of
this chapter; and
(B) The ancillary provisions under subpart PP, part 63 at
Sec. Sec. 63.921 (definitions), 63.925 (test methods and procedures),
63.926 (inspection and monitoring requirements), 63.927 (recordkeeping
requirements), and 63.928 (reporting requirements) of this chapter.
(2) Level 2 control. (i) Applicability criteria. Containers that do
not meet the criteria under paragraph (c)(1)(vii)(B)(1)(i) of this
section are subject to the air emission controls under paragraph
(c)(1)(vii)(B)(2)(ii) of this section.
(ii) Conditions to control emissions. To satisfy the conditions on
Level II control of emissions, you must comply with the following
requirements:
(A) The NESHAP provisions for containers under subpart PP, part 63
at Sec. 63.923 (level 2 control) of this chapter; and
(B) The ancillary provisions under subpart PP, part 63 at
Sec. Sec. 63.921 (definitions), 63.925 (test methods and procedures),
63.926 (inspection and monitoring requirements, 63.927 (recordkeeping
requirements), and 63.928 (reporting requirements) of this chapter.
(3) Equipment leaks. For each valve, pump, compressor, pressure
relief device, sampling connection system, open-ended valve or line, or
flange or other connector, and any control devices or systems used to
manage emission-comparable fuel in a container subject to paragraph
(c)(1)(vii)(B) of this section, you must comply with the applicable
requirements under 40 CFR part 63, subpart TT (control level 1), except
for Sec. 63.1000; or subpart UU (control level 2), except for Sec.
63.1019; or subpart H, except for Sec. Sec. 63.160, 63.162(b) and (e),
and 63.183.
(viii) Management of incompatible fuels and other materials--(A)
Generators and burners of emission-comparable fuel must document in the
fuel analysis plan under paragraph (b)(4) of this section how (e.g.,
using trial tests, analytical results, scientific literature, or
process knowledge) precautions will be taken to prevent mixing of
excluded fuels and other materials which could result in reactions
which:
(1) Generate extreme heat or pressure, fire or explosions, or
violent reactions;
(2) Produce uncontrolled toxic mists, fumes, dusts, or gases;
(3) Produce uncontrolled flammable fumes or gases; or
(4) Damage the structural integrity of the storage unit or
facility.
(B) Burners that blend emission-comparable fuel with other fuels
but that are exempt from fuel analysis requirements under paragraphs
(b)(4) and (b)(5)(iii) of this section must document in the operating
record how precautions will be taken to prevent mixing of emission-
comparable fuel with other fuels which could result in the reactions
listed in paragraph (c)(viii)(A) of this section.
(C) Incompatible fuels must not be placed in the same tank or
container.
(2) Burning. (i) Types of combustors that may burn emission-
comparable fuel. Emission-comparable fuel must be burned in a boiler
meeting the conditions of paragraph (c)(2)(i)(A) of this section or a
hazardous waste combustor under the conditions of paragraph
(c)(2)(i)(B) of this section.
(A) Boilers. Emission-comparable fuel may be burned in an
industrial or utility boiler as defined in paragraph (b)(3) of this
section but that is further restricted by being a watertube type of
steam boiler that does not feed fuel using a stoker or stoker-type
mechanism.
(B) Hazardous waste combustors. (1) Emission-comparable fuel may be
burned in an incinerator, cement kiln,
[[Page 78006]]
lightweight aggregate kiln, boiler, or halogen acid production furnace
operating under a RCRA permit issued under part 270 of this chapter and
in compliance with the applicable provisions of subpart O of part 264,
subpart H of part 266, or subpart EEE of part 63 of this chapter,
provided that the emission-comparable fuel is burned under the same
operating requirements that apply to hazardous waste burned by the
combustor.
(2) When emission-comparable fuel is burned in a hazardous waste
combustor under the provisions of paragraph (c)(2)(i)(B) of this
section, the operating conditions under paragraph (c)(2)(ii) of this
section do not apply, except for:
(i) The emission-comparable fuel constituent feedrate conditions
under paragraph (c)(2)(ii)(C) of this section continue to apply; and
(ii) The emission-comparable fuel automatic feed cutoff system
requirements under paragraph (c)(2)(ii)(G) of this section that apply
to monitoring the constituent feedrate limits as specified under
paragraph (c)(2)(ii)(G)(1)(ii) of this section continue to apply.
(ii) Operating conditions--(A) Primary fuels. (1) A minimum of 50
percent of fuel fired to the boiler shall be fossil fuel, fuels derived
from fossil fuel, tall oil, or comparable fuel meeting the
specifications provided by paragraph (a)(1) of this section. Such fuels
are termed ``primary fuel'' for purposes of this section. (Tall oil is
a fuel derived from vegetable and rosin fatty acids.) The primary fuel
shall comprise at least 50% of the total fuel heat input to the boiler
and at least 50% of the total fuel mass input to the boiler.
(2) The primary fuel firing rate shall be continuously monitored
and the minimum primary fuel firing rate limit shall be achieved on an
hourly rolling average basis;
(B) Fuel heating value. Primary fuels shall have a minimum as-fired
heating value of 8,000 Btu/lb, and each material fired in a firing
nozzle where emission-comparable fuel is fired must have a heating
value of at least 8,000 Btu/lb, as-fired;
(C) Feedrate limits for emission-comparable fuel constituents. The
total feedrate, considering all combustor feedstreams, of each
emission-comparable fuel constituent listed under paragraph
(a)(2)(ii)(B) of this section shall not exceed the limit provided by
Table 2 to this section.
(1) The feedrate limits are expressed as gas flowrate-normalized
feedrates in the units ``ug/dscm''.
(2) The feedrate limit for total combustor feedstreams expressed as
mass/unit time (kg/hr) for each emission-comparable fuel constituent is
determined by multiplying the gas flowrate-normalized feedrate limit
provided by Table 2 to this section times the combustor gas flowrate.
(3) The maximum constituent feedrate (kg/hr) attributable to
emission-comparable fuel is the total combustor constituent feedrate
(kg/hr) minus the constituent feedrate (kg/hr) for all other combustor
feedstreams.
(4) To account for emission-comparable fuel constituents in primary
fuels, burners may use measured concentrations of the constituents, or:
(i) If natural gas is used as a primary fuel, burners may assume
that natural gas does not contain emission-comparable fuel constituents
and that natural gas has a heating value of 22,000 Btu/lb;
(ii) If fuel oil is used as a primary fuel, burners may use the
default concentrations for emission-comparable fuel constituents
provided in Table 3 to this section, and assume that fuel oil has a
heating value of 19,200 Btu/lb; and
(iii) If coal is used as a primary fuel, burners may use the
default concentrations for emission-comparable fuel constituents
provided in Table 4 to this section, and assume that coal has a heating
value of 11,100 Btu/lb.
(5) The feedrate of each emission-comparable fuel constituent shall
be continuously monitored (by knowing the concentration of the
constituent in each feedstream and by monitoring the feedrate of each
feedstream), and the maximum feedrate limit for each constituent shall
not be exceeded on an hourly rolling average basis.
(D) CO CEMS. When burning emission-comparable fuel, carbon monoxide
emissions must not exceed 100 parts per million by volume, over an
hourly rolling average (monitored with a continuous emissions
monitoring system (CEMS)), dry basis and corrected to 7 percent oxygen.
You must use an oxygen CEMS to continuously correct the carbon monoxide
level to 7 percent oxygen. You must install, calibrate, maintain, and
continuously operate the CEMS in compliance with the quality assurance
procedures provided in the appendix to subpart EEE of part 63 of this
chapter (Quality Assurance Procedures for Continuous Emissions Monitors
Used for Hazardous Waste Combustors) and Performance Specification 4B
(carbon monoxide and oxygen) in appendix B, part 60 of this chapter.
(E) Dioxin/furan control--(1) If the boiler is equipped with a dry
particulate matter control device and the primary fuel is not coal, you
must continuously monitor the combustion gas temperature at the inlet
to the dry particulate matter control device, and the gas temperature
must not exceed 400 [deg]F on an hourly rolling average basis.
(2) Calibration of thermocouples. The calibration of thermocouples
must be verified at a frequency and in a manner consistent with
manufacturer specifications, but no less frequently than once per year.
(F) Calculation of rolling averages--(1) Calculation of rolling
averages upon intermittent operations. You must ignore periods of time
when one-minute values are not available for calculating the hourly
rolling average. When one-minute values become available again, the
first one-minute value is added to the previous 59 values to calculate
the hourly rolling average.
(2) Calculation of rolling averages when the emission-comparable
fuel feed is cutoff. You must continue monitoring carbon monoxide and
combustion gas temperature at the inlet to the dry particulate matter
emission control device when the emission-comparable fuel feed is
cutoff, but the source continues operating on other fuels. You must not
resume feeding emission-comparable fuel if the emission levels exceed
the limits provided in paragraphs (c)(2)(ii)(D) and (E) of this
section.
(G) Automatic fuel feed cutoff system--(1) General. You must
operate the boiler with a functioning system that immediately and
automatically cuts off the emission-comparable fuel feed, except as
provided by paragraph (c)(2)(ii)(G)(6) of this section:
(i) When the hourly rolling average carbon monoxide level exceeds
100 ppmv or the combustion gas temperature at the inlet to the initial
dry particulate matter control device (and the primary fuel is not
coal) exceeds 400 [deg]F on an hourly rolling average.
(ii) When the emission-comparable fuel feedrate limit for a
constituent exceeds the limit provided by Table 2 to this section.
(iii) When the primary fuel firing rate is below 50 percent on a
heat input and mass input basis;
(iv) When the steam production rate (or other indicator of boiler
load) indicates that the boiler load is below 40 percent;
(v) When the span value of the combustion gas temperature detector
is exceeded;
(vi) Upon malfunction of the carbon monoxide CEMS, the gas
temperature detector, the feedrate monitor(s) for the primary fuel, the
feedrate monitor(s) used to comply with the maximum feedrate limits for
emission-comparable
[[Page 78007]]
fuel constituents, or the monitor for boiler load; or
(iv) When any component of the automatic fuel feed cutoff system
fails.
(2) Failure of the automatic fuel feed cutoff system. If the
automatic emission-comparable fuel feed cutoff system fails to
automatically and immediately cut off the flow of emission-comparable
fuel (except as provided by paragraph (c)(2)(ii)(G)(6) of this section)
upon an occurrence of an event linked to the cutoff system as required
under paragraph (c)(2)(ii)(G)(1) of this section, you have failed to
comply with the emission-comparable fuel cutoff conditions of this
section. If an equipment failure prevents immediate and automatic
cutoff of the emission-comparable fuel feed, however, you must cease
feeding emission-comparable fuel as quickly as possible.
(3) Exceedance of a limit. If, notwithstanding an automatic
emission-comparable fuel feed cutoff, a limit linked to the cutoff
system under paragraphs (c)(2)(ii)(G)(1)(i) through (iv) of this
section is exceeded while emission-comparable fuel remains in the
combustion chamber, you have failed to comply with a condition of the
exclusion.
(4) Exceedance reporting. For each exceedance of a limit linked to
the cutoff system under paragraphs (c)(2)(ii)(G)(1)(i) through (iv) of
this section while emission-comparable fuel remains in the combustion
chamber (i.e., when the emission-comparable fuel residence time has not
transpired since the emission-comparable fuel feed was cutoff), you
must submit to the RCRA regulatory authority a written report within 5
calendar days of the exceedance documenting:
(i) The exceedance;
(ii) The measures you have taken to manage the material as a
hazardous waste; and
(iii) The measures you have taken to notify the generator that you
have failed to comply with a condition of the exclusion.
(5) Testing. The automatic emission-comparable fuel feed cutoff
system and associated alarms must be tested at least weekly to verify
operability, unless you document in the operating record that weekly
inspections will unduly restrict or upset operations and that less
frequent inspection will be adequate. At a minimum, you must conduct
operability testing at least monthly. You must document and record in
the operating record automatic emission-comparable fuel feed cutoff
system operability test procedures and results.
(6) Ramping down emission-comparable fuel feed. You may ramp down
the emission-comparable fuel feedrate over a period not to exceed one
minute. If you elect to ramp down the emission-comparable fuel feed,
you must document ramp down procedures in the operating record. The
procedures must specify that the ramp down begins immediately upon
initiation of automatic emission-comparable fuel feed cutoff and the
procedures must prescribe a bona fide ramping down. If a limit linked
to the cutoff system under paragraphs (c)(2)(ii)(G)(1)(i) through (iv)
of this section is exceeded during the ramp down, you have failed to
comply with that limit.
(H) Boiler load. (1) Boiler load shall not be less than 40 percent.
Boiler load is the ratio at any time of the total heat input to the
maximum design heat input.
(2) Steam production rate or other measure of boiler load shall be
monitored continuously and the minimum 40 percent load shall be
maintained on an hourly rolling average basis.
(I) Fuel atomization. The emission-comparable fuel shall be fired
directly into the primary fuel flame zone of the combustion chamber
with an air or steam atomization firing system, mechanical atomization
system, or a rotary cup atomization system under the following
conditions:
(1) Particle size. The emission-comparable fuel must pass through a
200 mesh (74 micron) screen, or equivalent;
(2) Mechanical atomization systems. Fuel pressure within a
mechanical atomization system and fuel flow rate shall be maintained
within the design range taking into account the viscosity and
volatility of the fuel;
(3) Rotary cup atomization systems. Fuel flow rate through a rotary
cup atomization system must be maintained within the design range
taking into account the viscosity and volatility of the fuel.
(J) Definition of continuous monitoring systems. (1) Continuous
monitoring systems (CMS) must sample the controlled parameter without
interruption, and evaluate the detector response at least once each 15
seconds, and compute and record the average values at least every 60
seconds.
(2) For CMS other than the CO CEMS, you must install, operate, and
calibrate the other CMS according to the manufacturer's written
specifications or recommendations, at a minimum.
(iii) Boiler operator training. (A) Boiler operators are personnel
that operate or maintain the boiler when emission-comparable fuel is
burned, including continuous monitoring systems and the emission-
comparable fuel automatic feed cutoff system.
(B) Boiler operators must successfully complete a program that
teaches them to perform their duties in a way that ensures the boiler's
compliance with the operating conditions under paragraph (c)(2)(ii) of
this section. The boiler owner or operator must ensure that this
program includes all the elements described in the document required
under paragraph (c)(2)(iii)(F) of this section.
(C) This program must be directed by a person trained in boiler
operation procedures, and must include instruction which teaches boiler
operators procedures relevant to the positions in which they are
employed.
(D) At a minimum, the training program must be designed to ensure
that boiler operators understand the operating conditions under
paragraph (c)(2)(ii) of this section and are able to respond
effectively when the emission-comparable fuel automatic feed cutoff
system engages an automatic cutoff of the feed of emission-comparable
fuel.
(E) Boiler operators must take part in an annual review of the
initial training required in paragraph (c)(2)(iii)(B) of this section.
(F) The boiler owner or operator must maintain the following
documents and records at the facility:
(1) The job title for each boiler operator position, and the name
of the employee filling each job;
(2) A written job description for each position listed under
paragraph (c)(2)(iii)(F)(1) of this section. This description may be
consistent in its degree of specificity with descriptions for other
similar positions in the same company location or bargaining unit, but
must include the requisite skill, education, or other qualifications,
and duties of employees assigned to each position;
(3) A written description of the type and amount of both
introductory and continuing training that will be given to each person
filling a position listed under paragraph (c)(2)(iii)(F)(1) of this
section; and
(4) Records that document that the training or job experience
required under paragraphs (c)(2)(iii)(B), (C), (D), and (E) of this
section has been given to, and completed by, boiler operators.
(5) Training records on current personnel must be kept until
emission-comparable fuel is no longer burned in the boiler. Training
records on former boiler operators must be kept for at least three
years from the date the employee last worked as a boiler operator at
the facility. Personnel training records may
[[Page 78008]]
accompany personnel transferred within the same company.
(3) Off-site shipments. (i) Emission-comparable fuel may not be
managed by any entity other than its generator, transporter, and
designated burner.
(ii) Emission-comparable fuel may not be exported to a foreign
country.
(4) EPA Identification Number. A burner that receives emission-
comparable fuel from an offsite generator must have or obtain an EPA
identification number from the Administrator. A burner who has not
received an EPA identification number may obtain one by applying to the
Administrator using EPA form 8700-12. Upon receiving the request, the
Administrator will assign an EPA identification number to the burner.
(5) Notification, reporting, and recordkeeping. Except as provided
by paragraph (c)(5)(iv) of this section, burners of emission-comparable
fuel are subject to the following conditions:
(i) Initial Notification. (A) Off-site burners. A burner that
receives emission-comparable fuel from an offsite generator must submit
an initial notification to the Regional or State RCRA and CAA Directors
prior to receiving the first shipment:
(1) Providing the name, address, and EPA identification number of
the burner;
(2) Certifying that the excluded fuel will be stored under the
conditions of paragraphs (c)(1) or (e) of this section and burned in a
boiler or hazardous waste combustor under the conditions of paragraph
(c)(2) of this section, and that the burner will comply with the
notification, reporting, and recordkeeping conditions of paragraph
(c)(5) of this section;
(3) Identifying the specific units that will burn the excluded
fuel;
(4) Providing an estimate of the maximum annual quantity of
emission-comparable fuel that will be burned, and an estimate of the
maximum as-fired concentrations of each constituent in Table 2 to this
section for which the emission-comparable fuel exceeds the
specifications for comparable fuel in Table 1 to this section;
(5) Providing documentation that ECF will be fired into the flame
zone of the primary fuel; and
(6) Certifying that the state in which the burner is located is
authorized to exclude wastes as excluded fuel under the provisions of
this section.
(B) On-site burners. An on-site burner must include in the one-time
generator notification required under paragraphs (b)(2)(i)(A) and (B)
of this section the information identified under paragraphs
(c)(5)(i)(A)(3) through (5) of this section.
(C) If there is a substantive change in the information provided in
the initial notification, the burner must submit a revised
notification.
(ii) Reporting. The burner must submit to the RCRA regulatory
authority reports of exceedances of operating parameter limits that are
linked to the emission-comparable fuel automatic feed cutoff system, as
required under paragraph (c)(2)(ii)(G)(4) of this section.
(iii) Recordkeeping. (A) Records of shipments. If the burner
receives a shipment of emission-comparable fuel from an offsite
generator, the burner must retain for each shipment the following
information on-site in the operating record:
(1) The name, address, and RCRA ID number of the generator shipping
the excluded fuel;
(2) The quantity of excluded fuel delivered;
(3) For ECF that would have otherwise been a hazardous waste listed
in Sec. Sec. 261.31 through 261.33, the hazardous waste code for the
listed waste; and
(4) The date of delivery;
(B) Boiler operating data. The burner must retain records of
information required to comply with the operating conditions of
paragraph (c)(2) of this section in an operating record.
(C) Records retention. The burner must retain records at the
facility for three years.
(iv) Burners that are hazardous waste combustors. Hazardous waste
combustors that burn emission-comparable fuel under the provisions of
paragraph (c)(2)(i)(B) of this section are not subject to the
provisions of paragraphs (c)(5)(i) through (iii) of this section,
except:
(A) The provisions of paragraphs (c)(5)(i)(A)(1) and (3), and
paragraphs (c)(5)(iii)(A) and (C) apply; and
(B) The initial notification required under paragraphs
(c)(5)(i)(A)(1) and (3) must include a certification that the excluded
fuel will be stored under the conditions of paragraphs (c)(1) or (e) of
this section.
(d) Failure to comply with the conditions of the exclusion. (1)
General. 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), except
as provided in paragraph (d)(2) of this section.
(2) Emission-comparable fuel burned in an off-site, unaffiliated
burner. If the generator that claims the exclusion for emission-
comparable fuel that is burned in an off-site, unaffiliated burner
documents in the operating record that reasonable efforts have been
made under this paragraph to ensure that such burner complies with the
conditions of exclusion, the burner rather than the generator will be
liable for discarding a hazardous waste upon a finding that such burner
has not complied with a condition of exclusion.
(i) In making these reasonable efforts, the generator must, at a
minimum, affirmatively answer the following questions prior to shipping
emission-comparable fuel to the burner:
(A) Has the burner submitted the notification to the RCRA and CAA
Directors required under paragraph (c)(5)(i) of this section, and has
the burner published the public notice of burning activities required
under paragraph (b)(2)(ii) of this section?
(B) Does publicly available information indicate that the burner
facility has not had any formal enforcement actions taken against the
facility in the previous three years for violations of the RCRA
hazardous waste regulations and has not been classified as a
significant non-complier with RCRA Subtitle C? In answering this
question, the emission-comparable fuel generator can rely on the
publicly available information from EPA or the state. If the burner
facility has had a formal enforcement action taken against it in the
previous three years for violations of the RCRA hazardous waste
regulations and has been classified as a significant non-complier with
RCRA Subtitle C, does the emission-comparable fuel generator have
credible evidence that the burner will manage the emission-comparable
fuel properly? In answering this question, the emission-comparable fuel
generator can obtain additional information from EPA, the state, or the
facility itself that the facility has addressed the violations, taken
remedial steps to address the violations and prevent future violations,
or that the violations are not relevant to the management of emission-
comparable fuel under the conditions of this section.
(C) Does the burner have the equipment and trained personnel to
manage the emission-comparable fuel under the conditions of this
section?
(ii) In making these reasonable efforts, the generator may use any
credible evidence available, including information obtained from the
burner and information obtained from a third party;
(iii) The generator must maintain for a minimum of three years
[[Page 78009]]
documentation and certification that reasonable efforts were made for
each burner facility to which emission-comparable fuel is shipped.
(A) Documentation and certification must be made available upon
request by a regulatory authority within 72 hours, or within a longer
period of time as specified by the regulatory authority.
(B) The certification statement must:
(1) Be signed and dated by an authorized representative of the
generator company; and
(2) Incorporate the following language: ``I hereby certify in good
faith and to the best of my knowledge that, prior to arranging for
transport of emission-comparable fuel to [insert name(s) of burner
facility], reasonable efforts were made to ensure that the emission-
comparable fuel would be stored and burned under the conditions
prescribed by Sec. 261.38, and that such efforts were based on current
and accurate information.''
(iv) Reasonable efforts must be repeated at a minimum of every
three years.
(v) An unaffiliated burner is a boiler or hazardous waste combustor
located at a facility that is not owned by the same parent company that
generated the emission-comparable fuel.
(e) Alternative storage conditions for emissions-comparable fuel.
Emission-comparable fuel may be stored in a tank or container under the
following conditions adopted from 40 CFR Part 264 in lieu of the
conditions specified under paragraphs (c)(1)(iii) through (c)(1)(viii)
of this section. When satisfying these conditions, you must substitute
the term ``emission-comparable fuel'' for each occurrence of the term
``hazardous waste'' or ``waste.'' You must document in the operating
record whether you are complying with the alternative storage
conditions of this paragraph, or the storage conditions under
paragraphs (c)(1)(iii) through (c)(1)(viii) of this section.
(1) Security. You must comply with the requirements under Sec.
264.14 of this chapter to provide security for your emission-comparable
fuel storage facility.
(2) General inspection requirements. You must comply with the
general inspection requirements under Sec. 264.15 of this chapter for
your emission-comparable fuel storage facility.
(3) Personnel training. You must comply with the personnel training
requirements under Sec. 264.16 of this chapter for emission-comparable
fuel storage facility personnel.
(4) General requirements for ignitable, reactive, or incompatible
materials. You must comply with the requirements for ignitable,
reactive, or incompatible materials managed by the emission-comparable
fuel storage facility.
(5) Preparedness and prevention. You must comply with the
preparedness and prevention requirements under Sec. Sec. 264.31
through 264.37 of this chapter with respect to your emission-comparable
fuel storage facility.
(6) Contingency plan and emergency procedures. You must comply with
the contingency plan and emergency procedure requirements under
Sec. Sec. 264.51 through 264.56 of this chapter with respect to your
emission-comparable fuel storage facility.
(7) Air emission requirements for equipment leaks. You must comply
with the requirements under Sec. Sec. 264.1051 through 264.1065 of
this chapter to control leaks from equipment used to manage emission-
comparable fuel;
(8) Use and management of containers. If you store emission-
comparable fuel in a container, you must comply with the following
requirements for use and management of those containers:
(i) Condition of containers. You must comply with the requirements
to ensure containers are in good condition under Sec. 264.171 of this
chapter;
(ii) Compatibility of emission-comparable fuel with containers. You
must comply with the requirements to ensure compatibility of emission-
comparable fuel with containers under Sec. 264.172 of this chapter;
(iii) Management of containers. You must manage containers as
prescribed by Sec. 264.173 of this chapter;
(iv) Inspections. You must inspect containers and the containment
system as prescribed by Sec. 264.174 of this chapter;
(v) Containment. You must comply with the containment provisions
under Sec. 264.175 of this chapter;
(vi) Special requirements for ignitable or reactive emission-
comparable fuel. You must comply with the provisions for ignitable or
reactive emission-comparable fuel under Sec. 264.176 of this chapter;
and
(vii) Air emission standards. You must comply with the air emission
requirements under Sec. Sec. 264.1081, 264.1086(b)(1), (c), (d), and
(f) through (h), 264.1088, and 264.1089 of this chapter.
(viii) Closed vent systems and control devices. If you use a closed
vent system or control device to comply with paragraph (e)(8)(vii) of
this section, you must comply with the requirements under Sec. Sec.
264.1033(b) through (o), and 264.1034 through 264.1036 of this chapter.
(9) Tank systems. If you store emission-comparable fuel in a tank,
you must comply with the following requirements:
(i) Containment and detection of releases. You must comply with the
requirements for containment and detection of releases under Sec.
264.193(b), (c), (d), (e), and (f) of this chapter;
(ii) General operating requirements. You must comply with the
general operating requirements under Sec. 264.194 of this chapter;
(iii) Inspections. You must comply with the inspection requirements
under Sec. 264.195 of this chapter;
(iv) Response to leaks or spills and disposition of leaking or
unfit-for-use tank systems. You must comply with the requirements
regarding response to leaks or spills and disposition of leaking or
unfit-for-use tank systems under Sec. 264.196 of this chapter, except
that Sec. 264.196(e)(1) reads for emission-comparable fuel tank
systems: ``Unless the owner/operator satisfies the requirements of
paragraphs (e)(2) through (4) of this section, the tank system must be
closed''.
(v) Special requirements for ignitable or reactive materials. You
must comply with the requirements for ignitable and reactive materials
under Sec. 264.198 of this chapter;
(vi) Special requirements for incompatible materials. You must
comply with the requirements for incompatible materials under Sec.
264.199 of this chapter; and
(vii) Air emissions. (A) You must comply with the requirements to
control air emissions under Sec. Sec. 264.1081, 264.1083(c),
264.1084(b) through (l), 264.1087 through 264.1089, and 264.1090(b)
through (d) of this chapter.
(B) Closed vent systems and control devices. If you use a closed
vent system or control device to comply with paragraph (e)(9)(vii) of
this section, you must comply with the requirements under Sec. Sec.
264.1033(b) through (o), and 264.1034 through 264.1036 of this chapter.
(f) Notification of closure of an emission-comparable fuel tank or
a container storage unit. If you store emission-comparable fuel in a
tank or container, you must submit a notification to the RCRA
regulatory authority when a container storage area or a tank system
goes out of emission-comparable fuel service which states the date when
the tank or container storage area goes out of service.
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[FR Doc. E8-29956 Filed 12-18-08; 8:45 am]
BILLING CODE 6560-50-C