[Federal Register Volume 63, Number 189 (Wednesday, September 30, 1998)]
[Rules and Regulations]
[Pages 52183-52185]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-26166]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 372

[OPPTS-400133; FRL-6033-5]
RIN 2070-AC71


Clarification of Combustion for Energy Recovery; Toxic Chemical 
Release Reporting; Community Right-to-Know

AGENCY: Environmental Protection Agency (EPA).

ACTION: Clarification of final rule.

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SUMMARY: EPA is providing clarification regarding the combustion for 
energy recovery of chemicals covered by section 313 of the Emergency 
Planning and Community Right-to-Know Act of 1986 (EPCRA) and section 
6607 of the Pollution Prevention Act of 1990 (PPA).

FOR FURTHER INFORMATION CONTACT: Sara Hisel McCoy, 202-260-7937 or e-
mail: [email protected], for specific information 
regarding this document or for further information on EPCRA section 
313, the Emergency Planning and Community Right-to-Know Information 
Hotline, Environmental Protection Agency, Mail code 5101, 401 M St., 
SW., Washington, DC 20460, Toll free: 1-800-535-0202, in Virginia and 
Alaska: 703-412-9877, or Toll free TDD: 1-800-553-7672.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Document Apply To Me?

    You may be potentially affected by this document if you combust 
EPCRA section 313 toxic chemicals in waste for energy recovery on-site 
or transfer these toxic chemicals off-site for this purpose. 
Potentially affected categories and entities may include, but are not 
limited to the following:

------------------------------------------------------------------------
                                               Examples of Potentially
                 Category                        Interested Entities
------------------------------------------------------------------------
Industry; facilities that manufacture,      Manufacturing, Metal mining,
 process, or otherwise use certain           Coal mining, Electric
 chemicals                                   utilities, Commercial
                                             hazardous waste treatment,
                                             Chemicals and allied
                                             products-wholesale,
                                             Petroleum bulk terminals
                                             and plants wholesale, and
                                             Solvent Recovery services
------------------------------------------------------------------------
Facilities with hazardous waste boilers     Cement kilns
 and industrial furnaces
------------------------------------------------------------------------

    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be interested in this 
document. Other types of entities not listed in this table may also be 
interested in this document. Additional businesses that may be 
interested in this document are those covered under 40 CFR part 372, 
subpart B. If you have any questions regarding whether a particular 
entity is covered by this section of the CFR, consult the technical 
person listed in the ``FOR FURTHER INFORMATION CONTACT'' section.

B. How Can I Get Additional Information or Copies of This Document or 
Other Support Documents?

    1. Electronically. You may obtain electronic copies of this 
document from the EPA Internet Home Page at http://www.epa.gov/. On the 
Home Page select ``Laws and Regulations'' and then look up the entry 
for this document under the ``Federal Register - Environmental 
Documents''. You can also go directly to the ``Federal Register'' 
listings at http://www.epa.gov/homepage/fedrgstr/. You may also obtain 
electronic copies of related documents at http://www.epa.gov/opptintr/
tri/industry.htm.
    2. In person or by phone. If you have any questions or need 
additional information about this action, please contact the technical 
person identified in the ``FOR FURTHER INFORMATION CONTACT'' section. 
In addition, the official record for this document, including the 
public version, has been established under docket control number OPPTS-
400133. A public version of this record, including printed, paper 
versions of any electronic comments, which does not include any 
information claimed as Confidential Business Information (CBI), is 
available for inspection from 12 noon to 4 p.m., Monday through Friday, 
excluding legal holidays. The official record is located in the TSCA 
Nonconfidential Information Center, Rm. NE-B607, 401 M St., SW., 
Washington, DC. The TSCA Nonconfidential Information Center telephone 
number is 202-260-7099.

II. Background

    In the Federal Register of May 1, 1997 (62 FR 23834) (FRL-5578-3), 
EPA issued a final rule entitled ``Addition of

[[Page 52184]]

Facilities in Certain Industry Sectors; Revised Interpretation of 
Otherwise Use; Toxic Release Inventory Reporting; Community Right-to-
Know'' (hereinafter referred to as the ``industry expansion rule''). 
That rule added seven industry groups to the list of facilities subject 
to the reporting requirements of EPCRA section 313, 42 U.S.C. 11023 and 
section 6607 of the Pollution Prevention Act (PPA) 42 U.S.C. 13106(a). 
In addition, this rule which promulgated definitions at 40 CFR 372.3 
for several terms relevant to the rulemaking, defined ``treatment for 
destruction'' to mean:

    [T]he destruction of a toxic chemical in waste such that the 
substance is no longer the toxic chemical subject to reporting under 
EPCRA section 313. Treatment for destruction does not include the 
destruction of a toxic chemical in waste where the toxic chemical 
has a heat value greater than 5,000 British thermal units and is 
combusted in any device that is an industrial furnace or boiler.

    With this notice, EPA is clarifying this definition, preamble 
language to the facility expansion rule, and other related documents. 
This document supersedes any inconsistent information and specifically 
the interpretation of ``combustion for energy recovery'' as it is 
expressed in section 2 of the EPA document entitled ``Section 313 
Emergency Planning and Community Right-to-Know Act Guidance Document 
for RCRA Subtitle C TSD Facilities and Solvent Recovery Facilities'' 
(EPA 745-B-97-015).

III. Description of Clarification

    This document clarifies that EPA's references to 5,000 British 
Thermal Units per chemical per pound (Btu/chemical/lb) in the 
definition of ``treatment for destruction'' in 40 CFR 372.3 and in the 
preamble to the facility expansion rule and other documents in 
explaining ``combustion for energy recovery'' is not intended to 
function as a regulatory floor at this time for determining the heating 
value at which energy may be recovered. EPA referenced 5,000 Btu/
chemical/lb in the definition of ``treatment for destruction'' to 
clarify its definition of that term. The reference to 5,000 Btu/
chemical/lb in the definition of ``treatment for destruction'' is 
intended to identify a ceiling for determining whether ``treatment for 
destruction'' has occurred. Thus, EPA did not intend to issue a final 
statement on whether ``combustion for energy recovery'' may occur if a 
toxic chemical that has less than 5,000 Btu value is combusted in an 
energy recovery device. However, a toxic chemical that is a metal or a 
metal compound is never combusted for energy recovery. Therefore, in 
preparing a Form R pursuant to EPCRA section 313, a facility may not 
report metals or metal compounds as being combusted for energy 
recovery. EPA recognizes that for purposes of the Resource Conservation 
and Recovery Act (RCRA), there may be some circumstances when energy 
recovery may be obtained for a waste stream with a Btu value of less 
than 5,000. EPA will formally address this issue in a rulemaking to 
implement section 6607 of the Pollution Prevention Act.

IV. Example of Clarification

    Subsequent to publishing the facility expansion rule, EPA published 
six documents for the seven industries newly added to the EPCRA section 
313 reporting requirements. These documents include: ``Section 313 
Emergency Planning and Community Right-to-Know Act Guidance Document 
for RCRA Subtitle C TSD Facilities and Solvent Recovery Facilities'' 
(EPA 745-B-97-015), ``Section 313 Emergency Planning and Community 
Right-to-Know Act Guidance Document for Metal Mining Facilities'' (EPA 
745-B-97-011), ``Section 313 Emergency Planning and Community Right-to-
Know Act Guidance Document for Chemical Distribution Facilities'' (EPA 
745-B-97-013), ``Section 313 Emergency Planning and Community Right-to-
Know Act Guidance Document for Coal Mining Facilities'' (EPA 745-B-97-
012), ``Section 313 Emergency Planning and Community Right-to-Know Act 
Guidance Document for Petroleum Bulk Facilities'' (EPA 745-B-97-014), 
and ``Section 313 Emergency Planning and Community Right-to-Know Act 
Guidance Document Electricity Generating Facilities'' (EPA 745-B-97-
016). EPA is amending section 2 of these documents to reflect the 
Agency's clarification concerning EPCRA section 313 toxic chemicals 
burned for energy recovery. An example of this clarification is 
provided as follows:

    Combustion for energy recovery is interpreted by EPA to include 
the combustion of a section 313 chemical that is (1) (a) a RCRA 
hazardous waste or waste fuel, (b) a constituent of a RCRA hazardous 
waste or waste fuel, or (c) a spent or contaminated ``otherwise 
used'' material; and that (2) has a significant heating value and is 
combusted in an energy or materials recovery device. Energy or 
materials recovery devices are boilers and industrial furnaces as 
defined in 40 CFR 372.3 (see 62 FR 23891, May 1, 1997). If a 
reported toxic chemical is incinerated but does not contribute 
energy to the process (e.g., metal, metal compounds, and 
chloroflorocarbons), it must be considered treatment for 
destruction. In determining whether an EPCRA section 313 listed 
chemical is combusted for energy recovery, the facility should 
consider the heating value of the section 313 chemical and not of 
the chemical stream.

    EPA is committed to amending the six documents referenced to remedy 
these inconsistencies by the end of the calendar year 1998.

V. Regulatory Assessment Requirements

A. Certain Acts and Executive Orders

    This clarification does not impose any requirements. As such, this 
action does not require review by the Office of Management and Budget 
(OMB) under Executive Order 12866, entitled Regulatory Planning and 
Review (58 FR 51735, October 4, 1993), the Paperwork Reduction Act 
(PRA), 44 U.S.C. 3501 et seq., or Executive Order 13045, entitled 
Protection of Children from Environmental Health Risks and Safety Risks 
(62 FR 19885, April 23, 1997). For the same reason, it does not require 
any action under Title II of the Unfunded Mandates Reform Act of 1995 
(UMRA) (Pub. L. 104-4), or Executive Order 12898, entitled Federal 
Actions to Address Environmental Justice in Minority Populations and 
Low-Income Populations (59 FR 7629, February 16, 1994). In addition, 
since this type of action does not require any proposal, no action is 
needed under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et 
seq.).

B. Executive Order 12875

    Under Executive Order 12875, entitled Enhancing the 
Intergovernmental Partnership (58 FR 58093, October 28, 1993), EPA may 
not issue a regulation that is not required by statute and that creates 
a mandate upon a State, local, or tribal government, unless the Federal 
government provides the funds necessary to pay the direct compliance 
costs incurred by those governments. If the mandate is unfunded, EPA 
must provide to OMB a description of the extent of EPA's prior 
consultation with representatives of affected State, local, and tribal 
governments, the nature of their concerns, copies of any written 
communications from the governments, and a statement supporting the 
need to issue the regulation. In addition, Executive Order 12875 
requires EPA to develop an effective process permitting elected 
officials and other representatives of State, local, and tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory proposals containing significant unfunded mandates.''

[[Page 52185]]

    Today's clarification does not create an unfunded Federal mandate 
on State, local, or tribal governments. The clarification does not 
impose any enforceable duties on these entities. Accordingly, the 
requirements of section 1(a) of Executive Order 12875 do not apply to 
this clarification.

C. Executive Order 13084

    Under Executive Order 13084, entitled Consultation and Coordination 
with Indian Tribal Governments (63 FR 27655, May 19, 1998), EPA may not 
issue a regulation that is not required by statute, that significantly 
or uniquely affects the communities of Indian tribal governments, and 
that imposes substantial direct compliance costs on those communities, 
unless the Federal government provides the funds necessary to pay the 
direct compliance costs incurred by the tribal governments. If the 
mandate is unfunded, EPA must provide to OMB, in a separately 
identified section of the preamble to the rule, a description of the 
extent of EPA's prior consultation with representatives of affected 
tribal governments, a summary of the nature of their concerns, and a 
statement supporting the need to issue the regulation. In addition, 
Executive Order 13084 requires EPA to develop an effective process 
permitting elected officials and other representatives of Indian tribal 
governments ``to provide meaningful and timely input in the development 
of regulatory policies on matters that significantly or uniquely affect 
their communities.''
    Today's clarification does not significantly or uniquely affect the 
communities of Indian tribal governments. This action does not involve 
or impose any requirements that affect Indian tribes. Accordingly, the 
requirements of section 3(b) of Executive Order 13084 do not apply to 
this clarification.

VI. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, does not 
apply because this action is not a rule, as that term is defined in 5 
U.S.C. 804(3).

List of Subjects in 40 CFR Part 372

    Environmental protection, Community right-to-know, Reporting and 
recordkeeping requirements, Toxic chemicals.

    Dated: September 23, 1998.

Lynn R. Goldman,

Assistant Administrator for Prevention, Pesticides and Toxic 
Substances.

[FR Doc. 98-26166 Filed 9-29-98; 8:45 am]
BILLING CODE 6560-50-F