[Federal Register Volume 64, Number 61 (Wednesday, March 31, 1999)]
[Proposed Rules]
[Pages 15324-15334]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-7915]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 372

[OPPTS-400136; FRL-6051-1]


Combustion for Energy Recovery Toxic Release Inventory Reporting; 
Notice of Receipt of Petition

AGENCY: Environmental Protection Agency (EPA).

ACTION: Notice of receipt of petition and request for comments.

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SUMMARY: This document announces the receipt of a petition from Safety 
Kleen Corporation (Safety Kleen) requesting that EPA modify its current 
interpretation of combustion for energy recovery under section 313 of 
the Emergency Planning and Community Right-to-Know Act (EPCRA) and 
section 6607 of the Pollution Prevention Act (PPA). The petition was 
submitted pursuant to sections 553(e) and 555(e) of the Administrative 
Procedure Act (APA). Also, as part of this document, EPA is publishing 
the main text of the petition. Finally, EPA is seeking comments from 
interested or potentially affected parties concerning issues associated 
with the current interpretation of combustion for energy.

DATES: Written comments in response to this request for comments must 
be received on or before June 1, 1999.

ADDRESSES: Comments may be submitted by mail, electronically, or in 
person. Please follow the detailed instructions for each method as 
provided in Unit II. of this document.

FOR FURTHER INFORMATION CONTACT: For specific information regarding 
this document contact: Sara Hisel McCoy at (202) 260-7937, e-mail: 
[email protected]. For further information on EPCRA section 313, 
contact the Emergency Planning and Community Right-to-Know Hotline, 
Environmental Protection Agency, Mail Code 5101, 401 M St. SW., 
Washington DC 20460, Toll-free: 1-800-424-9346, in Virginia and Alaska: 
703-412-9877 or Toll free TDD: 800-553-7672.

SUPPLEMENTARY INFORMATION:

I. General Information

A. Does This Document Apply To Me?

    This document does not make any changes to existing regulations, 
however you may be interested in this document if you combust toxic 
chemicals in waste on-site or transfer these toxic chemicals off-site 
for this purpose. Potentially interested 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             Facilities regulated under
 incinerators                                Subtitle C of the Resource
                                             Conservation and Recovery
                                             Act
------------------------------------------------------------------------


    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 as well as the appendices to the petition 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/
fedrgstr/. You may also obtain electronic copies of the complete

[[Page 15325]]

petition and appendices at http://www.epa.gov/opptintr/tri/.
    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. 
Copies of a complete petition including the appendices to the Safety 
Kleen petition are also available by calling the EPCRA Hotline at 1-
800-424-9346, in Virginia and Alaska: 703-412-9877 or Toll free TDD: 
800-553-7672. In addition, the official record for this document, 
including the public version, has been established under docket control 
number OPPTS-400136. This record includes not only the documents 
physically contained in the docket, but all of the doucments included 
as references in those documents. 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 20460. The TSCA Nonconfidential 
Information Center telephone number is 202-260-7099.

II. How Can I Respond To This Document?

A. How and To Whom Do I Submit the Comments?

    You may submit comments through the mail, in person, or 
electronically. Be sure to identify the appropriate docket control 
number, OPPTS-400136, in your correspondence.
    1. By mail. Submit written comments to: Document Control Office 
(7407), Office of Pollution Prevention and Toxics (OPPT), Environmental 
Protection Agency, 401 M St., SW., Rm. G-099, East Tower, Washington, 
DC 20460.
    2. In person or by courier. Deliver written comments to: Document 
Control Office in Rm. G-099, East Tower, Waterside Mall, 401 M St., 
SW., Washington, DC, Telephone: 202-260-7093.
    3. Electronically. Submit your comments and/or data electronically 
by e-mail to: [email protected]. Please note that you should not submit 
any information electronically that you consider to be CBI. Electronic 
comments must be submitted as an ASCII file avoiding the use of special 
characters and any form of encryption. Comment and data will also be 
accepted on disks in WordPerfect 5.1/6.1 or ASCII file format. All 
comments and data in electronic form must be identified by the docket 
control number OPPTS-400136. Electronic comments on this document may 
also be filed online at many Federal Depository Libraries.

B. How Should I Handle CBI Information That I Want To Submit To the 
Agency?

    You may claim information that you submit in response to this 
document as CBI by marking any part or all of that information as CBI. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2. A copy of the comment that does 
not contain CBI must be submitted for inclusion in the public record. 
Information not marked confidential will be included in the public 
docket by EPA without prior notice. If you have any questions about CBI 
or the procedures for claiming CBI, please consult with the technical 
person identified in the ``FOR FURTHER INFORMATION CONTACT'' section.

III. Background

    Section 313 of EPCRA requires certain facilities manufacturing, 
processing, or otherwise using listed toxic chemicals in amounts above 
reporting threshold levels, to report their releases of such chemicals 
annually. These facilities must also report other waste management 
activities for such chemicals, pursuant to section 6607 of the PPA, 42 
U.S.C. 13106. Specifically, these facilities must report the quantities 
of toxic chemicals in wastes that are released (including disposed), 
treated for destruction, combusted for energy recovery or recycled on-
site or transferred off-site for such purposes.
    In the final industry expansion rule (62 FR 23891, May 1, 1997) 
(FRL-5578-3), EPA interpreted combustion for energy recovery to include 
the combustion of a section 313 chemical that is (1)(a) a Resource 
Conservation and Recovery Act (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. Also, currently EPA defines an energy recovery device 
as a boiler or industrial furnace as defined in 40 CFR 372.3.
    On March 18, 1998, the Environmental Protection Agency received a 
petition from Safety Kleen Corporation requesting EPA to modify its 
guidance regarding EPA's interpretation of the term ``combustion for 
energy recovery'' under section 313 of the EPCRA and section 6607 of 
the PPA. (Note: At the time of the submission of this petition, the 
company that petitioned EPA was known as Laidlaw Environmental 
Services. Subsequent to this submission, the company has changed its 
name to Safety Kleen Corporation. Therefore the references in the text 
of the petition to Laidlaw Environmental Services refer to Safety Kleen 
Corporation).
    EPA is reproducing Safety Kleen's petition in its entirety (except 
for the appendices and the table of contents) in Unit IV. of this 
document, to solicit public comment on its content. In addition, in 
Unit V. of this document, EPA is soliciting comment on specific issues 
associated with the petition on combustion for energy recovery.

IV. Safety Kleen's Petition

    STATEMENT OF INTEREST
    Laidlaw Environmental Services Inc., and its wholly-owned 
subsidiary companies, is a full service company engaged in the 
blending, incineration, treatment, disposal, destruction, and 
transportation of hazardous and toxic wastes. Our interests are 
directly affected by the issues addressed in this petition.
    I. EXECUTIVE SUMMARY
    In 1991, the EPA designated ``Energy Recovery'' as an acceptable 
method of handling toxic organic chemicals under the Toxic Release 
Inventory program. To receive credit for ``Energy Recovery'' a 
generator has to transfer energetic (> 5,000 Btus/lb) toxic organic 
chemicals to an ``energy or materials recovery device''. The Agency 
defines an ``energy or materials recovery device'' as a Boiler or 
Industrial Furnace.
    Present guidance on ``Energy Recovery'' does not allow a 
generator to claim credit for the energy recovered when energetic 
toxic chemicals are used to destroy other toxic organics in a 
hazardous waste incinerator. This two-tiered approach to the 
recognition, or lack of recognition, of the process of ``Energy 
Recovery'', depending on the type of unit combusting the toxic 
organic chemicals has led to a situation where globally there is no 
reduction in the use of fossil fuel.
    TRI data for 1991-95 show that annually larger quantities of 
energetic toxic organic chemicals are being transferred to EPA 
designated ``energy or materials recovery devices'', while reduced 
percentages of these same chemicals are being shipped to hazardous 
waste incinerators. While ``energy or materials recovery devices'' 
may be using less fossil fuel because they may be utilizing the 
energy from these toxic chemicals in their processes, incinerators 
have had to substitute fossil fuels on a Btu for Btu basis for every 
Btu of energetic toxic organic chemicals they have lost.
    This situation has led to a game where a preferential 
designation has provided ``energy or materials recovery devices'' 
with an advantage in procuring high energy

[[Page 15326]]

organic chemicals, and incinerators have been placed at a 
comparative disadvantage in procuring these same chemicals. However, 
this is a ``zero-sum game'' because both EPA designated ``energy or 
materials recovery devices'' and incinerators utilize the energy 
from these chemicals in their process, and the movement of waste 
energy from one type of unit to the other also necessitates the 
movement of fossil fuel from one type of unit to another. In 
reality, there are no global net energy savings.
    Laidlaw maintains that in light of the data presented in this 
petition, EPA should recognize that:
    - Sufficient energy input is necessary to properly destroy all 
forms of toxic organic chemicals in a hazardous waste incinerator;
    - Hazardous waste incinerators harness the Btus from high energy 
organics to destroy less energetic toxic organic chemicals;
    - Incinerators are forced to use fossil fuels to supplement the 
energy input as the highest Btu energetic wastes are diverted from 
incinerators; and
    - Hazardous waste incinerators perform ``Energy Recovery'' in 
the process of using high energy toxic organic chemicals to destroy 
low energy organics.
    Laidlaw requests and recommends in this petition that the EPA 
modify its guidance on ``Energy Recovery'' to include the combustion 
of high energy toxic organic chemicals for the purpose of destroying 
low energy toxic organic chemicals in a hazardous waste incinerator.
    II. THE EMERGENCY PLANNING AND COMMUNITY RIGHT TO KNOW ACT
    The Emergency Planning and Community Right to Know Act 
(``EPCRA'') was signed into law in 1986. The law was designed to 
prevent an occurrence in the U.S. of the type of tragedy that befell 
Bhopal, India just a couple of years prior to its passage. EPCRA was 
a comprehensive statute that greatly enhanced the knowledge of the 
states, local governments, workers, and citizens about the chemicals 
handled at facilities around the nation. This statute also put into 
place the mechanisms to handle unplanned releases of chemicals from 
a facility, so that threats to the local community, and workers 
would be minimized.
    EPCRA, for the first time, provided minimum reporting 
requirements for facilities handling one or more ``extremely 
hazardous substances'' (defined in 40 CFR, Part 355, Appendices A 
and B) above a threshold limit. Depending on the specific section of 
EPCRA, a facility had to notify its State Emergency Response 
Commission (``SERC''), Local Emergency Planning Committee 
(``LEPC''), Local Fire Department, and/or the EPA about the 
extremely hazardous substances on-site. More Specifically, under 
EPCRA\1\ a facility must report:
    - EPCRA Sections 302-303: If a facility has one or more 
extremely hazardous substances on-site in quantities greater than a 
threshold level, it must notify its SERC and LEPC that it is subject 
to the emergency planning requirements of these sections, a facility 
representative must be designated to participate in the local 
emergency planning process, and the facility must provide 
information necessary for the development and implementation of a 
local emergency plan;
    - EPCRA Section 304: The facility must notify the LEPC and SERC 
immediately after the release of any extremely hazardous substance, 
or CERCLA hazardous substance, at or above the Reportable Quantity 
(``RQ'') established for the substance, the facility must furnish a 
written statement with details of the release after the initial 
notification;
    - EPCRA Section 311: The facility must submit to the LEPC, SERC, 
and local fire department a list, or copies, of Material Data Safety 
Sheets (``MSDSs'') for any Occupational Safety and Health 
Administration (``OSHA'') defined hazardous chemicals or extremely 
hazardous substances that are present on-site above defined 
threshold limits;
    - EPCRA Section 312: The facility must submit annually to the 
LEPC, SERC, and the local fire department a report on the hazardous 
chemicals or extremely hazardous substances on-site that includes 
the type of hazard the material may pose, quantities of the material 
stored on-site, and the location and type of storage for the 
materials; and
    - EPCRA Section 313: Facilities in certain EPA defined SIC 
codes, meeting size and threshold requirements, are required to 
report annually to the EPA (and some states) the amounts of 
chemicals listed in EPCRA's Section 313 released or otherwise 
managed.
    EPCRA's Section 313 (a copy of this section is included in this 
submission as Appendix 1) is more commonly known as the Toxic 
Release Inventory (``TRI'') and is the subject of the information in 
this petition (the issues addressed in this petition are specific to 
TRI, and do not pertain to the other facets of EPCRA.)
    III. THE TOXIC RELEASE INVENTORY
    EPCRA established the legal framework for the Toxic Release 
Inventory The TRI program was designed to provide information to the 
public and regulators about the fate of designated toxic chemicals 
(chemicals referenced in Section 313) at a facility, local, state, 
and national level. The EPCRA statute required that this collected 
TRI information be maintained in a computer database, and be readily 
available to ``any person'' requesting it.
    EPCRA outlined, at a minimum, the types of facility that had to 
submit TRI reports and the information to be contained on those 
reports. The statute provided discretion to the Environmental 
Protection Agency as to what types of facility they can require to 
report TRI information in the future, and the types of information 
they can require on the TRI report in the future. EPCRA also allowed 
the Agency, but to a lesser extent than in other areas, discretion 
to add or subtract chemicals from the Section 313 list.
    TRI reporting by facilities was initially required for the 
calender year 1987, with subsequent reports required annually on a 
calender year basis. While TRI reporting was initially required only 
for facilities with SIC codes between 20 and 39 (these facilities 
also had to meet employee size and threshold limits for the quantity 
of Section 313 chemicals to qualify for reporting requirements), in 
May of 1997 the EPA finalized rulemaking that expanded the types of 
industries to be included in TRI reporting. At the time of this 
petition the facilities\1\ meeting the following criteria are 
required to report TRI information:
    - The facility must be in SIC code 10 (except 1011, 1081, and 
1094), or 12 (except 1241), or 20-39 (manufacturing facilities), or 
4911 (limited to facilities that combust coal and/or oil for the 
purpose of generating power for distribution in commerce), 4931 
(limited to facilities that combust coal and/or oil for the purpose 
of generating power for distribution in commerce) and 4939 (limited 
to facilities that combust coal and/or oil for the purpose of 
generating power for distribution in commerce), or 4953 (limited to 
facilities regulated under RCRA subtitle C), or 5169, or 5171, or 
7389 (limited to facilities primarily engaged in solvent recovery 
services on a contract or fee basis) hereafter ``covered SIC 
codes''; and,
    - Facility must have 10 or more full-time employees (or the 
total hours worked by all employees is greater than 20,000 hours), 
and
    - The facility manufactures (defined to include importation), or 
processes, or otherwise uses any Section 313 chemical in quantities 
greater than the established threshold in the course of a calendar 
year.
    In addition to the recent industry expansion, other facets of 
the TRI program have changed over the years. The list of chemicals 
to be tracked for TRI purposes changes almost annually, and today 
this number is almost double the starting number. Also, the type of 
information required to be reported has changed over the years. 
Originally the EPCRA\2\ statute required, at a minimum, the 
following information be included on each TRI report:
    (g) Form
    (1) Information required
    Not later than June 1, 1987 the Administrator shall publish a 
uniform toxic chemical release form for facilities covered by this 
section. If the Administrator does not publish such a form, owners 
and operators of facilities subject to the requirements of this 
section shall provide the information required under this subsection 
by letter postmarked on or before the date on which the form is due. 
Such form shall -
    (A) provide for the name and location of, and principal business 
activities at, the facility;
    (B) include an appropriate certification, signed by a senior 
official with management responsibility for the person or persons 
completing the report, regarding the accuracy and completeness of 
the report; and
    (C) provide for submission of each of the following items of 
information for each listed toxic chemical known to be present at 
the facility:
    (I) Whether the toxic chemical at the facility is manufactured, 
processed, or otherwise used, and the general category or categories 
of use of the chemical.
    (ii) An estimate of the maximum amounts (in ranges) of the toxic 
chemical present at the facility at any time during the preceding 
calendar year.
    (iii) For each wastestream, the waste treatment or disposal 
methods employed, and an estimate of the treatment efficiency

[[Page 15327]]

typically achieved by such methods for that wastestream.
    (iv) The annual quantity of the toxic chemical entering each 
environmental medium.
    The data outlined in sections i-iv was the basic TRI data 
mandated by EPCRA and these sections formed the basis for the 
original Form R (TRI reporting form) until reporting year 1991. In 
1991 the next statute to impact TRI, the Pollution Prevention act of 
1990, modified some of the reporting requirements for TRI.
    IV. THE POLLUTION PREVENTION ACT OF 1990
    In November, 1990 the Pollution Prevention Act of 1990 (``PPA'') 
was signed into law (a copy of this Act is included in this 
submission as Appendix 2). This statute established pollution 
prevention as a ``national objective'', and noted\3\:
    ``There are significant opportunities for industry to reduce or 
prevent pollution at the source through cost-effective changes in 
production, operation, and raw materials use... The opportunities 
for source reduction are often not realized because existing 
regulations, and the industrial resources they require for 
compliance, focus upon treatment and disposal, rather than source 
reduction... Source reduction is fundamentally different and more 
desirable than waste management and pollution control.''
    The Pollution Prevention Act established a hierarchy of methods 
for dealing with real or potential pollutants. Following is an 
outline of this hierarchy in order of preference:
    - Wherever feasible, pollution should be prevented or reduced at 
the source;
    - Pollution that cannot be prevented should be recycled in an 
environmentally sound manner;
    - Pollution that cannot be prevented or recycled should be 
treated; and
    - Pollution that cannot be prevented, recycled, or treated 
should be disposed or released into the environment as a last 
resort.
    In addition to this hierarchy, the Act\4\ authorized a state 
grant program to promote source reduction by businesses, established 
the Office of Pollution Prevention and Toxics, an independent office 
to carry out the functions required by the PPA, and directed the EPA 
to:
    - Facilitate the adoption of source reduction techniques by 
businesses and federal agencies;
    - Establish standard methods of measurement for source 
reduction;
    - Review regulations to determine their effect on source 
reduction;
    - Investigate opportunities to use federal procurement to 
encourage source reduction;
    - Develop improved methods for providing public access to data 
collected under federal environmental statutes;
    - Develop a training program on source reduction opportunities, 
model source reduction auditing procedures, a source reduction 
clearinghouse, and an annual award program; and
    - Report to Congress within 18 months, and biennially 
afterwards, on actions needed to implement a strategy to promote 
source reduction, and an assessment of the clearinghouse and grant 
program.
    Finally, the PPA made the first statutorily mandated changes to 
the TRI reporting requirements since EPCRA established the 
requirement for TRI reporting in 1986. Under the Pollution 
Prevention Act, facilities already required to report TRI 
information to the EPA were now required to provide information on 
pollution prevention and recycling for each TRI chemical reported. 
Specifically, Section 6607 of the PPA\3\ established the following 
requirements for source reduction and recycling data collection:
    (a)Reporting Requirements- Each owner or operator of a facility 
required to file an annual toxic chemical release form under section 
313 of the Superfund Amendments and Reauthorization Act of 1986 
(``SARA'') for any toxic chemical shall include with each such 
annual filing a toxic chemical source reduction and recycling report 
for the preceding calender year. The toxic chemical source reduction 
and recycling report shall cover each toxic chemical required to be 
reported in the annual toxic chemical release form filed by the 
owner or operator under section 313(c) of that Act. This section 
shall take effect with the annual report filed under section 313 for 
the first full calender year beginning after the enactment of this 
subtitle.
    (b)Items Included in the Report- The toxic chemical source 
reduction and recycling report required under subsection (a) shall 
set forth each of the following on a facility-by-facility basis for 
each toxic chemical:
    (1) The quantity of any chemical entering any waste stream (or 
otherwise released into the environment) prior to recycling, 
treatment, or disposal during the calender year for which the report 
is filed and the percentage change from the previous year. The 
quantity reported shall not include any amount reported under 
paragraph (7). When actual measurements of the quantity of a toxic 
chemical entering the waste streams are not readily available, 
reasonable estimates should be made base on best engineering 
judgment.
    (2) The amount of the chemical from the facility which is 
recycled (at the facility or elsewhere) during such calender year, 
the percentage change from the previous year, and the process of 
recycling used.
    (3) The source reduction practices used with respect to that 
chemical during such year at the facility. Such practices shall be 
reported in accordance with the following categories unless the 
Administrator finds other categories to be more appropriate:
    (A) Equipment, technology, process, or procedure modifications.
    (B) Reformulation or redesign of products.
    (C) Substitution of raw materials.
    (D) Improvement in management, training, inventory control, 
materials handling, or other general operational phases of 
industrial facilities.
    (4) The amount expected to be reported under paragraph (1) and 
(2) for the two calender years immediately following the calender 
year for which the report is filed. Such amount shall be expressed 
as a percentage change from the amount reported in paragraphs (1) 
and (2).
    (5) A ratio of production in the reporting year to production in 
the previous year. The ration should be calculated to most closely 
reflect all activities involving the toxic chemical. In specific 
industrial classifications subject to this section, where a 
feedstock or some variable other than production is the primary 
influence on waste characteristics or volumes, the report may 
provide an index based on that primary variable for each toxic 
chemical. The Administrator is encouraged to develop production 
indexes to accommodate individual industries for use on a voluntary 
basis.
    (6) The techniques which were used to identify source reduction 
opportunities. Techniques listed should include, but are not limited 
to, employee recommendations, external and internal audits, 
participative team management, and material balance audits. Each 
type of source reduction listed under paragraph (3) should be 
associated with the techniques or multiples of techniques used to 
identify the source reduction technique.
    (7) The amount of any toxic chemical released into the 
environment which resulted from a catastrophic event, remedial 
action, or other one-time event, and is not associated with 
production processes during the reporting year.
    (8)The amount of the chemical from the facility which is treated 
(at the facility or elsewhere) during such calender year and the 
percentage change from the previous year. For the first year of 
reporting under this subsection, comparison with the previous year 
is required only to the extent such information is available.
    (c)SARA Provisions- The provisions of sections 322, 325 (c), and 
326 of the Superfund Amendments and Reauthorization Act of 1986 
shall apply to the reporting requirements of this section in the 
same manner as to the reports required under section 313 of that 
Act. The Administrator may modify the form required for purposes of 
reporting information under section 313 of that Act to the extent he 
deems necessary to include the additional information required under 
this section.
    (d) Additional Optional Information- Any person filing a report 
under this section for any year may include with the report 
additional information regarding source reduction, recycling, and 
other pollution control techniques in earlier years.
    (e) Availability of Data- Subject to section 322 of the 
Superfund Amendments and Reauthorization Act of 1986, the 
Administrator shall make data collected under this section publicly 
available in the same manner as the data collected under section 313 
of the Superfund Amendments and Reauthorization Act of 1986.
    The new requirements of the PPA mandated that EPA make changes 
to the TRI reporting form and the program. EPA incorporated these 
changes in to the Form R for the 1991 reporting year. Although it 
was not specifically covered in the PPA, the Agency formalized the 
category of Energy Recovery at this time.
    V. STRUCTURE OF TRI DATA REQUIREMENTS
    Data for TRI reporting is submitted to the EPA on a completed 
``Form R'' (a copy of the

[[Page 15328]]

1996 Form R is included in this submission as Appendix 3). Regulated 
facilities must submit a completed Form R to the EPA that summarizes 
activity for the previous calender year by July 1 of the subsequent 
calender year.
    Form R is available both in electronic and hard copy form. The 
hard copy form is accompanied by a set of instructions\5\ that 
include guidance on the most common TRI issues. TRI data 
requirements are listed on the Form R. The Form R is broken into two 
parts, Part I: Facility Identification Information, and Part II: 
Chemical Specific Information.
    Part I is one page in length consisting of five sections that 
identify the reporting year; any trade secret information; the 
facility; the parent company; and a certification by a responsible 
official of the reporting entity.
    Part II is specific to each chemical a facility is reporting. It 
is four pages long, and is broken into eight sections that identify 
the toxic chemical; the mixture it may be in; the activities and 
use(s) of the chemical at the facility; the maximum amount of the 
chemical on-site during the year; the quantity of the chemical 
released to each environmental media during the year; the quantity 
of the chemical transferred in waste to off-site locations; on-site 
treatment, energy recovery, or recycling processes for the chemical; 
and source reduction and recycling activities.
    This petition is concerned with the definition of the 
information required in Part II of the Form R. Specifically this 
petition is requesting EPA reevaluate its definition of ``Energy 
Recovery'' and various types of ``Incineration'' that are used in 
Section 6: Transfers to Off-Site Locations in light of the data 
provided within this petition.
    VI. TRI CATEGORIZATION OF OFF-SITE TRANSFERS
    Data on transfers of toxic chemicals to off-site locations must 
be reported in Part II, Section 6 of Form R. Section 6 is itself 
composed of two primary subsections: 6.1 Discharges to Publicly 
Owned Treatment Works (POTWs); and 6.2 Transfers to other Off-Site 
Locations. This petition is concerned with the categorization of 
some of the data in subsection 6.2, specifically 6.2C ``Type of 
Waste Treatment/ Disposal/ Recycling/ Energy Recovery'' for 
transfers to other off-site locations.
    In the instructions\5\ for completing Form R, methods and codes 
are listed that are applicable to completing subsection 6.2C (a list 
of these methods and codes is included in this submission as 
Appendix 4). There are eight codes listed for Disposal, six codes 
listed for Waste Treatment, five codes for Recycling, and two codes 
for Energy Recovery. Within the method ``Waste Treatment'' there are 
two codes designated for Incineration:
    - M50 Incineration/Thermal Treatment; and
    - M54 Incineration/Insignificant Fuel Value
    listed under the method of waste treatment. There is another 
code that could include toxic chemicals eventually bound for 
incineration, M95 Transfer to Waste Broker-Waste Treatment, however 
this code also includes toxic chemicals that are bound for several 
other types of treatment.
    The method ``Energy Recovery'' contains two codes and they are 
solely for Energy Recovery:
    - M56 Energy Recovery; and
    - M92 Transfer to Waste Broker-Energy Recovery.
    This method of ``Energy Recovery'' and its corresponding codes 
were not specifically mandated by either EPCRA or the PPA. In 
subsection 6.2C of Form R the EPA decided to go beyond the statutory 
mandates of the Pollution Prevention Act of 1990 and the Emergency 
Planning and Community Right to Know Act of 1986 and create a method 
of off-site transfer, Energy Recovery, that implies a positive 
connotation in comparison to Incineration, which is considered Waste 
Treatment.
    Under the PPA, Waste Treatment is the third method in order of 
preference for dealing with toxic chemicals, behind source reduction 
and recycling. Energy Recovery is not listed in the PPA, or in 
EPCRA, but due to its recognition in TRI it is marketed by service 
providers and treated by generators and many states with hazardous 
waste taxes as a form of Recycling.
    In the recent final rule\6\ on the expansion of industries 
required to report TRI information, the Agency provided its general 
interpretation of what Energy Recovery is (page 23852):
    ``EPA believes that for the purposes of the PPA, reporting 
quantities ``combusted for energy recovery'' should be restricted to 
devices where energy is produced from the combustion of the toxic 
chemical and harnessed.''
    Several lines after this broad definition, the Agency becomes 
more specific:
    ``Specifically, EPA interprets ``combustion for energy 
recovery'' as the combustion of a toxic chemical that (1) is (I) a 
RCRA hazardous waste or waste fuel, (ii) a constituent of a RCRA 
hazardous waste or waste fuel, or (iii) a spent or contaminated 
``otherwise used'' material; and that (2) has a heating value 
greater than or equal to 5,000 Btus per pound in an ``energy or 
materials recovery device.''. . . EPA considers an ``energy or 
materials recovery device'' to be an industrial furnace or boiler as 
defined in 40 CFR 372.3.''
    However, a toxic chemical combusted in an ``energy or materials 
recovery device'' can also be considered as being ``treated for 
destruction'' if the chemical contained less than 5,000 Btus per 
pound:
    ``EPA considers any toxic chemical that is burned and meets the 
criteria described in part (1) of the interpretation, but which has 
a heating value less than 5,000 Btus per pound, as provided in part 
(2) of the definition interpretation, to be ``treated for 
destruction'' rather than ``combusted for energy recovery.'' This is 
regardless of the type of device in which it is combusted.''
    Therefore under EPA's guidance, an ``energy or materials 
recovery device'' can perform both Energy Recovery and Treatment for 
Destruction depending on the energy value of the toxic chemical 
being combusted.
    In this same final rule EPA defines Treatment for Destruction 
as:
    ``Treatment for destruction means the destruction of the toxic 
chemical in waste such that the substance is no longer the toxic 
chemical subject to reporting under EPCRA section 313. This 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 as defined at 40 CFR 260.10.''
    Under this guidance on Treatment for Destruction and Energy 
Recovery, the determinant of whether the energy from a toxic 
chemical is ``recovered'' is the type of unit that performs the 
combustion, not whether the energy from the combustion is actually 
harnessed and used to replace fossil fuel.
    VII. DESCRIPTION OF AN ``ENERGY OR MATERIALS RECOVERY DEVICE''
    EPA defines an ``energy or materials recovery device'' to be an 
industrial furnace or boiler as it is described in 40 CFR 372.3:
    ``(1) Boiler means an enclosed device using controlled flame 
combustion and having the following characteristics:
    (I) The unit must have physical provisions for recovering and 
exporting thermal energy in the form of steam, heated fluids, or 
heated gases; and
    (ii) The unit's combustion chamber and primary energy recovery 
sections(s) must be of integral design. To be of integral design, 
the combustion chamber and the primary energy recovery section(s) 
(such as waterwalls and superheaters) must be physically formed into 
one manufactured or assembled unit. A unit in which the combustion 
chamber and the primary energy recovery section(s) are joined only 
by ducts or connections carrying flue gas is not integrally 
designed; however, secondary energy recovery equipment (such as 
economizers or air preheaters) need not be physically formed into 
the same unit as the combustion chamber and the primary energy 
recovery section. The following units are not precluded from being 
boilers solely because they are not of integral design: process 
heaters (units that transfer energy directly to a process stream), 
and fluidized bed combustion units; and
    (iii) While in operation, the unit must maintain a thermal 
energy recovery efficiency of at least 60 percent, calculated in 
terms of the recovered energy compared with the thermal value of the 
fuel; and
    (iv) The unit must export and utilize at least 75 percent of the 
recovered energy, calculated on an annual basis. In this 
calculation, no credit shall be given for recovered heat used 
internally in the same unit. (Examples of internal use are the 
preheating of fuel or combustion air, and the driving of induced or 
forced draft fans or feedwater pumps); or
    (2) The unit is one which the Regional Administrator has 
determined, on a case-by-case basis, to be a boiler, after 
considering the standards in Sec. 260.32 of this chapter.
    Industrial furnace means any of the following enclosed devices 
that are integral components of manufacturing processes and that use 
thermal treatment to accomplish recovery of materials or energy:

[[Page 15329]]

    (1) Cement kilns.
    (2) Lime kilns.
    (3) Aggregate kilns.
    (4) Phosphate kilns.
    (5) Coke ovens.
    (6) Blast furnaces.
    (7) Smelting, melting and refining furnaces (including 
pyrometallurgical devices such as cupolas, reverberator furnaces, 
sintering machine, roasters, and foundry furnaces).
    (8) Titanium dioxide chloride process oxidation reactors.
    (9) Methane reforming furnaces.
    (10) Pulping liquor recovery furnaces.
    (11) Combustion devices used in the recovery of sulfur values 
from spent sulfuric acid.
    (12) Halogen acid furnaces (HAFs) for the production of acid 
from halogenated hazardous waste generated by chemical production 
facilities where the furnace is located on the site of a chemical 
production facility, the acid product has a halogen acid content of 
at least 3%, the acid product is used in a manufacturing process, 
and, except for hazardous waste burned as fuel, hazardous waste fed 
to the furnace has a minimum halogen content of 20% as-generated.
    (13) Such other devices as the Administrator may, after notice 
and comment, add to this list on the basis of one or more of the 
following factors:
    (I) The design and use of the device primarily to accomplish 
recovery of material products;
    (ii) The use of the device to burn or reduce raw materials to 
make a material product;
    (iii) The use of the device to burn or reduce secondary 
materials as effective substitutes for raw materials, in processes 
using raw materials as principal feedstocks;
    (iv) The use of the device to burn or reduce secondary materials 
as ingredients in an industrial process to make a material product;
    (v) The use of the device in common industrial practice to 
produce a material product; and
    (vi) Other factors, as appropriate.''
    The present guidance that the EPA uses for an ``energy or 
materials recovery device'' for the purposes of TRI reporting does 
not include the hazardous waste incinerator.
    VIII. DESCRIPTION OF A HAZARDOUS WASTE INCINERATOR
    A typical hazardous waste incinerator consists of a primary 
combustion chamber, secondary combustion chamber, and an air 
pollution control system.
    The primary combustion chamber can be a rotary kiln, fluidized 
bed, fixed hearth, or liquid injection assembly. Typically, 
commercial incinerators utilize a rotary kiln as the primary 
combustion chamber, and this form of primary combustion chamber will 
be the one described in greater detail in this section.
    Both solid and liquid wastes are introduced into the rotary 
kiln, in which the temperature is typically above 1800 deg. F. 
Liquid wastes generally are pumped into the kiln through nozzles 
which atomize the waste into fine droplets for optimal combustion. 
Solid wastes are fed into the kiln either in bulk or containers 
(drums).
    While the kiln is brought up to operating temperature utilizing 
fossil fuels such as natural gas or fuel oil, once the permitted 
temperature is reached operators try to maintain this temperature by 
feeding energetic liquid and solid wastes. If the wastes do not 
contain sufficient energy to maintain the permitted temperature the 
operator must supplement the waste feed with fossil fuels.
    The kiln is set on an incline and rotates during operation 
causing the solid wastes fed into it to slowly migrate from the feed 
end to the discharge end utilizing gravity. The rotation and incline 
of the kiln tumbles the solid wastes inside assuring they are 
exposed on all sides to the high temperature and airflow in the 
kiln. A large fan draws excess air (containing oxygen) over the 
rotating solids and towards the secondary combustion chamber. The 
high temperature of the kiln causes the some of the organics in the 
waste feed to combust and be destroyed, while others volatilize and 
migrate with the combustion gas and excess air toward the secondary 
combustion chamber for combustion and destruction. Inorganic 
material that has not been volatilized is fed out of the discharge 
end of the kiln as ash into awaiting containers.
    The secondary combustion chamber, often known as an afterburner, 
is brought up to permitted temperature along with the primary 
combustion chamber utilizing fossil fuels. Typically temperatures in 
the secondary combustion chamber are maintained at 2200 deg. F. Once 
permitted temperature is achieved, the operator can begin feeding 
atomized energetic liquid wastes to maintain this temperature. If 
the liquid waste feed does not contain sufficient energy to maintain 
the permitted temperature, the operator will supplement this waste 
feed with fossil fuel.
    The volatilized organics and excess air from the kiln are mixed 
with air and passed through the hot flame1 of the 
secondary combustion chamber. Generally all feeds into the secondary 
combustion chamber are retained within it for 2.5-3 seconds. While 
the organic vapors are in the secondary combustion chamber the 
temperature, air turbulence, and excess oxygen work to break the 
chemical bonds of the organics to form primarily carbon dioxide, 
water, and acid gasses. In addition to these byproducts, some 
inorganic particulate matter is also mixing with the turbulent air 
of the secondary combustion chamber.
---------------------------------------------------------------------------

    1The flame of the secondary combustion chamber is derived from 
the combustion of energetic liquid wastes, fossil fuel, or a 
combination of the two.
---------------------------------------------------------------------------

    The combustion gas from the secondary combustion chamber flows 
to the air pollution control system (APCS) for cooling and cleansing 
prior to discharge to the atmosphere. APCSs have a variety of 
configurations, but their purpose is to cool and remove the acid 
gasses, particulate, and volatilized inorganics contained in the 
secondary combustion chamber off gasses.
    IX. ENERGY REQUIREMENTS OF A HAZARDOUS WASTE INCINERATOR
    Hazardous waste incinerators thermally decompose organic 
compounds. They do this by introducing the organic material into an 
environment where the temperature, residence time, air turbulence, 
and oxygen level are designed and controlled to achieve strict 
destruction and removal efficiencies (``DRE'') for each permitted 
organic.
    Hazardous waste incinerators are permitted to burn toxic 
chemicals after a lengthy and comprehensive permitting process. This 
process is overseen by the state and/or federal environmental 
agency. Towards the end of this process, a trial burn for the 
permitted incineration unit is conducted. The purpose of the trial 
burn is to verify that the unit meets state and federal guidelines, 
and to set the operating parameters the unit must operate under 
while destroying toxic chemicals. Once a trial burn is successfully 
completed and a permit is issued the incineration facility is 
allowed to combust hazardous waste under the terms of the permit and 
operating parameters of the trial burn.
    As mentioned earlier, temperature, time, turbulence, and oxygen 
are four of the key conditions needed to properly destroy organic 
compounds. Generally to achieve good combustion of organics, 
incinerators must maintain a minimum temperature of greater than 
2,000 deg. F in the secondary combustion chamber, a residence time 
greater than a couple of seconds, and a minimum oxygen level of 3% 
in the post combustion zone. All permitted hazardous waste burning 
incinerators have operating parameters set around these numbers 
(there are many other operating parameters that must be met to 
combust toxic chemicals; however, for the purpose of this petition, 
these other parameters do not need to be listed).
    An incinerator does not combust toxic chemicals until it is 
operating within the permitted parameters. To reach the temperature 
required for toxic chemical combustion the incinerator will burn 
fossil fuel, generally a combination of fuel oil and natural gas. 
Once the minimum temperature is reached (and all other parameters 
are within permitted levels), operators begin feeding toxic organic 
chemicals to the incinerator for combustion.
    Just like the fossil fuel they are replacing, these toxic 
chemicals have energy content and provide energy to the incinerator 
to maintain the permitted temperature. However, waste toxic 
chemicals are significantly more variable than refined fossil fuels 
in their energy content and composition. The BTU content of toxic 
organic chemicals varies greatly depending on the composition of the 
compounds. The BTU content also varies depending on the purity of 
the organic and what impurities it is mixed with (soil, water, 
etc.).
    Ideally, the incinerator operator tries to blend a mixture of 
relatively pure, high energy waste, with other lower energy wastes 
(highly chlorinated or fluorinated wastes, contaminated media, etc.) 
so that combustion of all toxic chemicals is achieved without the 
addition of fossil fuel. Remember, to combust wastes a minimum 
temperature must be maintained within the incinerator. The amount of 
energy required to do this is dependent on the size of the 
incinerator;

[[Page 15330]]

however, once the minimum temperature is achieved this energy can 
come from fossil fuel or the waste organic chemicals (if the waste 
has sufficient energy content).
    Since the advent of the ``Energy Recovery'' designation for off-
site transfers, data indicate that incinerators are using increasing 
quantities of fossil fuel to combust the less energetic organic 
wastes they are receiving. The ``Energy Recovery'' designation is 
not available for toxic chemicals shipped to incinerators, and 
because of this a distortion has occurred that preferentially 
directs high energy wastes to go to ``energy or materials recovery 
devices''. Incinerators are not considered ``energy or materials 
recovery devices'', and must replace these high energy wastes with 
fossil fuel to be able to burn the less energetic wastes they still 
receive.
    X. IMPACT OF ``ENERGY RECOVERY'' DESIGNATION
    The impact of providing the ``Energy Recovery'' designation for 
the transfer of TRI regulated toxic organic chemicals shipped to an 
``energy or materials recovery device'' was steady and predictable. 
The favorable connotations of ``Energy Recovery'' has induced 
manufacturers to transfer their high energy wastes to ``energy or 
materials recovery devices'' from incinerators.
    This shifting of waste to ``energy or materials recovery 
devices'' allows the manufacturer to achieve some of the recycling 
goals they have established. Also, the ``Energy Recovery'' 
designation has led, in some instances, to regressive state tax 
structures that tax waste going to an incinerator at a higher rate 
than waste going to ``Energy Recovery''
    With all of these incentives to ship high energy wastes to 
``energy or materials recovery devices'', and what experience 
indicated was occurring in the marketplace and at incineration 
facilities, it appeared that larger quantities of organic TRI 
chemicals were going to ``Energy Recovery''. To test our hypothesis 
we queried the TRI database for trends in the Off-Site Transfer of 
organic chemicals. We queried the database for the total of all 
chemicals going to each type of off-site transfer for the years 
1991-95 (1991 was the first year the ``Energy Recovery'' designation 
was formally available, and 1995 is the last year TRI data is now 
available.) For consistency and comparability of data, we searched 
for information only on the ``core chemicals'' that were listed for 
all five years.
    The database we searched was the TRI database available through 
RTKnet. Following is the concluding data (a spreadsheet summarizing 
all of the data from this search is included as Appendix 5) we 
queried from this database.
[GRAPHIC] [TIFF OMITTED] TP31MR99.020


                                 Table 1
------------------------------------------------------------------------
                                             TOTAL POUNDS TRANSFERRED TO
                   YEAR                            ENERGY RECOVERY
------------------------------------------------------------------------
1991                                        400,285,225
1992                                        427,987,876
1993                                        445,839,753
1994                                        455,895,352
1995                                        486,366,712
------------------------------------------------------------------------


    As you can see from the above chart and table, there has been a 
steady increase in the quantity of TRI toxic chemicals being 
transferred off-site to energy recovery. Now lets contrast this to 
the data for TRI toxic chemicals being transferred to incineration.

[[Page 15331]]

[GRAPHIC] [TIFF OMITTED] TP31MR99.021



                                 Table 2
------------------------------------------------------------------------
                                             TOTAL POUNDS TRANSFERRED TO
                   YEAR                             INCINERATION
------------------------------------------------------------------------
1991                                        166,532,302
1992                                        135,767,217
1993                                        136,025,939
1994                                        136,423,218
1995                                        141,932,667
------------------------------------------------------------------------


    In contrast to the data for Energy Recovery, the quantity of TRI 
toxic chemicals going to incineration has dropped significantly over 
the 1991-95 time frame. Most of this drop occurred in the 1991-92 
time frame.
[GRAPHIC] [TIFF OMITTED] TP31MR99.022


                                                     Table 3
----------------------------------------------------------------------------------------------------------------
                                          TOTAL POUNDS
                                      TRANSFERRED TO ENERGY    PERCENTAGE OF TOTAL    PERCENTAGE OF TOTAL POUNDS
                YEAR                      RECOVERY AND         POUNDS TRANSFERRED          TRANSFERRED FROM
                                          INCINERATION        FROM ENERGY RECOVERY           INCINERATION
----------------------------------------------------------------------------------------------------------------
1991                                 566,817,527             70.6%                   29.4%
1992                                 563,755,093             75.9%                   24.1%

[[Page 15332]]

 
1993                                 581,865,692             76.6%                   23.4%
1994                                 592,318,570             77.0%                   23.0%
1995                                 628,299,379             77.4%                   22.6%
----------------------------------------------------------------------------------------------------------------


    Finally, combining the data for off-site transfers to 
incineration and energy recovery show that in every year but one 
(1992) the quantity of TRI toxic chemicals going to some form of 
combustion is increasing. While the total quantity going to 
combustion is increasing, the share, and total quantity, of these 
toxic chemicals going to incineration is decreasing and the share, 
and total quantity, going to energy recovery is increasing.
    The data indicates that the positive connotation of the ``Energy 
Recovery'' designation has shifted large quantities of toxic 
chemicals away from incineration and into EPA classified ``energy or 
materials recovery devices''. This data then leads to a question of 
whether this movement of high energy wastes from incinerators to 
``energy or materials recovery devices'' actually saves energy on a 
net basis, or just transfers the need for fossil fuel from ``energy 
or materials recovery devices'' to incinerators.
    XI. INCINERATORS NEED HIGH ENERGY WASTE FUEL TO REPLACE FOSSIL 
FUEL
    As stated in Section VIII of this petition, once an incinerator 
is operating within its permitted levels it can begin combusting 
toxic organic chemicals. Just like the fossil fuel they are 
replacing, these toxic chemicals have energy content and provide 
energy to the incinerator to maintain the permitted temperature. 
Ideally, the incinerator operator tries to blend a mixture of 
relatively pure, high energy waste, with other lower energy wastes 
(highly chlorinated or fluorinated wastes, contaminated media, etc.) 
so that combustion of all toxic chemicals is achieved without the 
addition of fossil fuel. Unfortunately, since the EPA designation of 
``Energy Recovery'' is not available to incinerators, large 
quantities of high energy toxic chemicals have migrated from 
incinerators to ``energy or materials recovery devices''. This 
movement of energetic wastes away from incinerators forces the 
incinerator operator to find other sources of energy to maintain the 
unit within its permitted limits. The only other source of energy 
available is fossil fuel.
    The data in this area confirms that from 1991-95 fossil fuel 
usage has increased at incineration sites (Laidlaw Environmental 
Services, Inc. raw data is attached as Appendix 6). Laidlaw combined 
supplemental energy use data from its subsidiaries that had the type 
of data needed, for the years 1991-95. These subsidiaries include 
Laidlaw Environmental Services (Bridgeport), Inc. located in 
Bridgeport NJ, and Laidlaw Environmental Services (Deer Park), Inc. 
located in Deer Park, TX. Together these facilities represent about 
20% of the available commercial incineration capacity in the U.S. 
for the years 1991-95. What was found is entirely predictable based 
on the information already in this petition. Following is data on 
the Btus of fossil fuel that had to be added to the incinerator to 
fully combust a pound of toxic chemicals for the years 1991-95.
[GRAPHIC] [TIFF OMITTED] TP31MR99.023


                                 Table 4
------------------------------------------------------------------------
                                            BTUs OF FOSSIL FUEL ADDED TO
                   YEAR                       COMBUST 1 POUND OF TOXIC
                                                      CHEMICALS
------------------------------------------------------------------------
1991                                        1,894
1992                                        1,734
1993                                        1,882
1994                                        2,432
1995                                        2,605
------------------------------------------------------------------------


    The Btus of Fossil Fuel Added to Combust 1 Pound of Toxic 
Chemicals can also be converted into the total barrels of oil 
(equivalents) that are needed to combust waste at these facilities.

[[Page 15333]]

[GRAPHIC] [TIFF OMITTED] TP31MR99.024



                                 Table 5
------------------------------------------------------------------------
                                            BARRELS OF OIL (EQUIVALENTS)
                   YEAR                         USED TO COMBUST TOXIC
                                                      CHEMICALS
------------------------------------------------------------------------
1991                                        109,925
1992                                        87,931
1993                                        98,213
1994                                        120,398
1995                                        131,962
------------------------------------------------------------------------


    The above graphic and table indicate that the cited incineration 
facilities were utilizing 22,037 more barrels of oil (equivalent) to 
combust toxic chemicals in 1995 than in 1991. Due to their 
geographical location and size, the cited facilities should be 
fairly representative of the commercial hazardous waste incineration 
industry2. Therefore, extrapolating this data3 
would mean that in 1995 the entire commercial hazardous waste 
incineration industry needed a little over 110,000 more barrels of 
oil to combust the toxic chemicals they were receiving than they 
needed in 1991.
---------------------------------------------------------------------------

    2To determine the Barrels of Oil Equivalents multiply the BTUs 
from Table 4 times the total lbs. in Appendix 6, divide this number 
by 19,000 BTUs/lb oil, divide again by 7lbs/gallon, and divide again 
by 42 gallons/barrel.
    3The cited facilities represented approximately 20% of the 
commercial incineration capacity, to extrapolate to the entire 
capacity the cited numbers are multiplied by five.
---------------------------------------------------------------------------

    To compare the change in fossil fuel needs for incinerators 
between 1991 and 1995, a model was constructed that kept 
incineration's share of the TRI toxic chemical market the same in 
1991 and 1995 we find:

                                 Table 6
------------------------------------------------------------------------
 
------------------------------------------------------------------------
INCINERATION'S 1991 SHARE                   29.4%
INCINERATION'S 1995 SHARE                   22.6%
INCINERATION'S 1995 POUNDS OF TRI TOXIC     141,932,667
 CHEMICALS
INCINERATION'S PROJECTED 1995 POUNDS OF     184,720,017
 TRI TOXIC CHEMICALS USING 1991 SHARE
DIFFERENCE IN POUNDS                        42,787,350
ENERGY VALUE OF DIFFERENCE ASSUMING 15,000  641,810,000,000 BTU's
 BTU/LB
BARRELS OF OIL EQUIVALENT OF ENERGY         114,899
 VALUE\4\
------------------------------------------------------------------------
\4\Assumes oil is 19,000 Btus/lb, and has a density of 7 lbs./gal


    This model is hypothetical, and only looks at the quantity of 
energetic toxic chemicals incinerators would receive if they 
maintained their 1991 share of the market.
    However, the results are very interesting. The model's energy 
from toxic chemicals, 114,899 barrels of oil (equivalents), 
incinerator's lost because of the ``Energy Recovery'' designation 
given to ``energy or materials recovery devices'' is almost exactly 
equal to the additional amount of fossil fuel, 110,000 barrels of 
oil (equivalents), that incinerators had to burn in 1995.
    This information strongly indicates that the ``Energy Recovery'' 
designation did not actually reduce the use of fossil fuels. It only 
shifted the high energy toxic chemicals from incinerators to 
``energy or materials recovery devices''. The incinerators then had 
to replace the lost energy with fossil fuels of similar energy 
content.
    XII. RECOMMENDATION TO EPA: EXPAND ENERGY RECOVERY TO INCLUDE 
COMBUSTION OF HIGH BTU WASTE AT INCINERATORS
    The treatment method of ``Energy Recovery'' is not mandated by 
either EPCRA or the PPA. It was a designation that was created 
without statutory requirement. Unfortunately, while the idea of 
``Energy Recovery'' is a noble one, the unintended impact over its 
first five years was to shift the high energy toxic chemicals from 
incinerators to ``energy or materials recovery devices'' designated 
by the EPA.
    To properly destroy the remaining toxic chemicals they received, 
incinerators had to backfill the unit with an amount of fossil fuel 
comparable to the quantity of high energy toxic chemicals that were 
lost to ``energy or materials recovery devices''. On a global basis, 
there was no ``Energy Recovery'', only a shifting of demand for 
fossil fuel.
    The main issue is what is an ``energy or materials recovery 
device''? The EPA's guidance defines it primarily as a boiler or 
industrial furnace. However, this definition overlooks the fact that 
an incinerator requires energy to perform its designed task- the 
destruction of many of the most toxic organic chemicals known to 
humanity. In destroying these toxic chemicals, the incinerator is 
providing a valuable service to the environment, economy, and the 
nation, every bit as important as the manufacture of cement or 
steam.
    To maintain, as the Agency does today, that energy from waste 
toxic chemicals is ``Recovered'' if it is used to manufacture steam 
or cement, but is ``Treated for Destruction'' if it is used to 
destroy other

[[Page 15334]]

toxic chemicals infers that harnessing energy for the proper 
destruction of organic chemicals is not recognized by the EPA as a 
valuable service.
    We do not believe this is the Agency's position, only one that 
is implied by their present guidance on this issue. We believe it is 
important, both from a philosophical and a business point, that the 
EPA recognize that their present interpretation of ``Energy 
Recovery'' devalues the important service hazardous waste 
incinerators provide by destroying all forms of toxic organic 
chemicals, and only shifts the burden for fossil fuels from one type 
of thermal device to another. In light of the information provided 
in this petition, we strongly urge the EPA to address this matter by 
issuing guidance allowing the combustion of energetic toxic organic 
chemicals in an incinerator to be considered ``Energy Recovery''
    Endnotes
    1. ``Emergency Planning and Community Right to Know Act Section 
313, Guidance for RCRA Subtitle C TSD Facilities and Solvent 
Recovery Facilities (Version 1.0)'', United States Environmental 
Protection Agency, October, 1997
    2. ``The Emergency Planning and Community Right to Know Act of 
1986'', Public Law 99-499, Title III, Section 11023, Toxic Chemical 
Release Forms, October 17, 1986
    3. ``The Pollution Prevention Act of 1990'', Public Law 101-508, 
Title VI, Sections 6601-6610, November 5, 1990
    4. ``Pollution Prevention Fact Sheet, Pollution Prevention Act 
of 1990'', United States Environmental Protection Agency, September, 
1993
    5. ``Toxic Chemical Release Inventory Reporting Form R and 
Instructions, Revised 1996 Version'' United States Environmental 
Protection Agency, May 1997
    6. ``Addition of Facilities in Certain Industry Sectors; Revised 
Interpretation of Otherwise Use; Toxic Release Inventory Reporting; 
Community Right to Know; Final Rule'' Federal Register, V 62, #84, 
May 1, 1997 Pages 23834-23892

V. Request for Comment

    With regard to this interpretation of combustion for energy 
recovery and Safety Kleen's petition, EPA is requesting comment on 
several issues. These issues include:
    1. Whether EPA should include incinerators as energy recovery 
units.
    2. Whether EPA should include other types of combustion units under 
this designation.
    3. Whether toxic chemicals with high British thermal units/pound 
values in wastes should be considered as replacements for fossil fuels 
in incinerators when the toxic chemical is in waste.
    4. Whether EPA should distinguish between toxic chemicals in waste 
used to start up incinerators and toxic chemicals in waste used for 
maintaining combustion.
    EPA is in the process of reproposing rulemaking pursuant to section 
6607 of the PPA. When reviewing comments relating to a regulatory 
definition of ``combustion for energy recovery,'' EPA will consider 
comments submitted in response to this document.

List of Subjects in 40 CFR Part 372

    Environmental protection, Chemicals, Community right-to-know, 
Hazardous substances, Intergovernmental relations, Reporting and 
recordkeeping requirements, Superfund, Toxic chemicals.

    Dated: March 19, 1999.

Susan H. Wayland,

Acting Assistant Administrator for Prevention, Pesticides and Toxic 
Substances.

[FR Doc. 99-7915 Filed 3-30-99; 8:45 am]
BILLING CODE 6560-50-F