[Federal Register Volume 72, Number 115 (Friday, June 15, 2007)]
[Proposed Rules]
[Pages 33284-33334]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-11130]



[[Page 33283]]

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Part II





Environmental Protection Agency





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40 CFR Part 261



Expansion of RCRA Comparable Fuel Exclusion; Proposed Rule

  Federal Register / Vol. 72, No. 115 / Friday, June 15, 2007 / 
Proposed Rules  

[[Page 33284]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-HQ-RCRA-2005-0017; FRL-8324-2]
RIN 2050-AG24


Expansion of RCRA Comparable Fuel Exclusion

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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SUMMARY: EPA is proposing to expand the comparable fuel exclusion under 
the rules implementing subtitle C of the Resource Conservation and 
Recovery Act (RCRA) for fuels that are produced from hazardous waste 
but which generate emissions that are comparable to emissions from 
burning fuel oil when such fuels are burned in an industrial boiler. 
Such excluded fuel would be called emission-comparable fuel (ECF). ECF 
would be subject to the same specifications that currently apply to 
comparable fuels, except that the specifications for certain 
hydrocarbons and oxygenates would not apply. The ECF exclusion would be 
conditioned on requirements including: Design and operating conditions 
for the ECF boiler to ensure that the ECF is burned under the good 
combustion conditions typical for oil-fired industrial boilers; and 
conditions for tanks storing ECF which conditions are typical of those 
for storage of commercial fuels, and are tailored for the hazards that 
ECF may pose.

DATES: Comments must be received on or before August 14, 2007. Under 
the Paperwork Reduction Act, comments on the information collection 
provisions must be received by OMB on or before July 16, 2007.

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2005-0017, by one of the following methods:
     http://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: [email protected].
     Fax: 202-566-9744.
     Mail: RCRA Docket, Environmental Protection Agency, 
Mailcode: 2822T, 1200 Pennsylvania Ave., NW., Washington, DC 20460. 
Please include a total of two copies. We request that you also send a 
separate copy of your comments to the contact person listed below (see 
FOR FURTHER INFORMATION CONTACT). In addition, please mail a copy of 
your comments on the information collection provisions to the Office of 
Information and Regulatory Affairs, Office of Management and Budget 
(OMB), Attn: Desk Officer for EPA, 725 17th St., NW., Washington, DC 
20503.
     Hand Delivery: RCRA Docket, EPA Docket Center (2822T), EPA 
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. Such 
deliveries are only accepted during the Docket's normal hours of 
operation, and special arrangements should be made for deliveries of 
boxed information. Please include a total of two copies. We request 
that you also send a separate copy of each comment to the contact 
person listed below (see FOR FURTHER INFORMATION CONTACT).
    Instructions: Direct your comments to Docket ID No. EPA-HQ-RCRA-
2005-0017. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
http://www.regulations.gov, including any personal information 
provided, unless the comments include information claimed to be 
Confidential Business Information (CBI) or other information the 
disclosure of which is restricted by statute. Do not submit information 
that you consider to be CBI or otherwise protected through http://www.regulations.gov or e-mail. Send or deliver information identified 
as CBI to the following address: Ms. LaShan Haynes, RCRA Document 
Control Officer, EPA (Mail Code 5305P), Attention Docket ID No. EPA-HQ-
RCRA-2005-0017, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. 
Clearly mark the part or all of the information that you claim to be 
CBI. The http://www.regulations.gov Web site is an ``anonymous access'' 
system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through http://www.regulations.gov, your e-mail address will be automatically captured 
and included as part of the comment that is placed in the public docket 
and made available on the Internet. If you submit an electronic 
comment, EPA recommends that you include your name and other contact 
information in the body of your comment and with any disk or CD-ROM you 
submit. If EPA cannot read your comment due to technical difficulties 
and cannot contact you for clarification, EPA may not be able to 
consider your comment. Electronic files should avoid the use of special 
characters, any form of encryption, and be free of any defects or 
viruses. For additional information about EPA's public docket, visit 
the EPA Docket Center homepage at http://www.epa.gov/epahome/dockets.htm. We also request that interested parties who would like 
information they previously submitted to EPA to be considered as part 
of this action identify the relevant information by docket entry 
numbers and page numbers.
    Docket: 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., 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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                    Category                          NAICS code         SIC code                Examples of potentially regulated entities
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Any industry that generates or combusts                           562           49  Waste Management and Remediation Services.
 hazardous waste as defined in the proposed
 rule.
                                                                  327           32  Non-metallic Mineral Products Manufacturing.

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                                                                  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 now 
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 proposed 
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. What Should I Consider as I Prepare My Comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through 
http://www.regulations.gov or e-mail. Clearly mark the part or all of 
the information that you claim to be CBI. For CBI information in a disk 
or CD ROM that you mail to EPA, mark the outside of the disk or CD ROM 
as CBI and then identify electronically within the disk or CD ROM the 
specific information that is claimed as CBI. In addition to one 
complete version of the comment that includes information claimed as 
CBI, a copy of the comment that does not contain the information 
claimed as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with 
procedures set forth in 40 CFR part 2.
    2. Tips for Preparing Your Comments. When submitting comments, 
remember to:
     Identify the rulemaking by docket number and other 
identifying information (subject heading, Federal Register date and 
page number).
     Follow directions--The agency may ask you to respond to 
specific questions or organize comments by referencing a Code of 
Federal Regulations (CFR) part or section number.
     Explain why you agree or disagree; suggest alternatives 
and substitute language for your requested changes.
     Describe any assumptions and provide any technical 
information and/or data that you used.
     If you estimate potential costs or burdens, explain how 
you arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
     Provide specific examples to illustrate your concerns, and 
suggest alternatives.
     Explain your views as clearly as possible, avoiding the 
use of profanity or personal threats.
     Make sure to submit your comments by the comment period 
deadline identified.
    3. Docket Copying Costs:
    You may copy a maximum of 100 pages from any regulatory docket at 
no charge. Additional copies are 15 cents/page.
    4. 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 
today's proposed 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 for hazardous 
waste combustors.
    5. Index of Contents
    The information presented in this preamble is organized as follows:

Part One: Background and Summary
    I. Statutory Authority
    II. Background
    A. What Is the Intent of This Proposed Rule?
    B. Who Would Be Affected by This Proposed Rule?
    C. What Is the Relationship Between the Proposed Rule and the 
Existing Exclusion for Comparable Fuel?
    1. What Modifications to the Comparable Fuel Exclusion May Be 
Warranted?
    2. How Has EPA Involved Stakeholders in Discussions Regarding 
Potential Revisions to the Comparable Fuel Exclusion?
    III. Summary of the Proposed Rule
    A. What Are the Conditions for Exclusion of Emission-Comparable 
Fuel (ECF)?
    B. What Changes Is EPA Proposing to the Conditions for Existing 
Comparable Fuel?
Part Two: Rationale for the Proposed Rule
    I. What Is the Rationale for Excluding Emission-Comparable Fuel 
From the Definition of Solid Waste?
    A. Why Would the Specifications Be Waived Only for Hydrocarbons 
and Oxygenates?
    B. Do Available Data and Information Support a Comparable 
Emissions Finding?
    1. Evaluation of Organic Emissions Data for Hazardous Waste 
Boilers
    2. Evaluation of RCRA Risk Assessments
    3. Comparative Risk Assessment for Dioxin/Furan
    II. What Conditions Would Apply to Burners of Emission-
Comparable Fuel?
    A. Why Isn't a DRE Performance Test a Critical Requirement To 
Ensure Good Combustion Conditions?
    B. What Is the Rationale for the Proposed Burner Conditions?
    1. ECF Must Be Burned in a Watertube Steam Industrial or Utility 
Boiler That Is Not Stoker-Fired
    2. CO Monitoring
    3. The Boiler Must Fire at Least 50% Primary Fuel
    4. The Boiler Load Must Be 40% or Greater
    5. The ECF Must Have an As-Fired Heating Value of 8,000 Btu/lb 
or Greater
    6. ECF Must Be Fired Into the Primary Fuel Flame Zone

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    7. The ECF Firing System Must Provide Proper Atomization
    8. Dioxin/Furan Controls for Boilers Equipped With an ESP or FF
    III. What Restrictions Would Apply to Particular Hydrocarbons 
and Oxygenates?
    A. What Is the Rationale for the Relative Hazard 
Characterization Scheme?
    B. What Are the Results of the Relative Hazard Ranking?
    C. What Firing Rate Restrictions Would Apply to Benzene and 
Acrolein?
    IV. What Conditions Would Apply to Storage of ECF?
    A. What Are the Proposed Storage Conditions?
    1. Tank Systems, Tank Cars and Tank Trucks
    2. Underground Storage Tank Systems
    3. Closure of Tank Systems
    4. Waiver of RCRA Closure for RCRA Tanks That Become ECF Tanks
    5. Management of Incompatible Waste Fuels and Other Materials
    B. What Other Options Did We Consider?
    1. Other Options We Considered to Establish Storage Conditions 
for ECF
    2. Consideration of Storage Controls for Currently Excluded 
Comparable Fuels
    V. How Would We Assure That The Conditions Are Being Satisfied?
    A. What Recordkeeping, Notification and Certificate Conditions 
Would Apply to Generators and Burners?
    1. Waste Analysis Plans
    2. Sampling and Analysis
    3. Speculative Accumulation
    4. Notifications
    5. Burner Certification
    6. Recordkeeping
    7. Transportation
    8. Ineligible RCRA Hazardous Waste Codes
    B. What If I Fail To Comply With Conditions of the Exclusion?
    C. How Would Spills and Leaks Be Managed?
    D. What Would Be the Time-Line for Meeting the Proposed 
Conditions?
    VI. What Clarifications and Revisions Are Proposed for the 
Existing Conditions for Exclusion of Comparable Fuel?
    VII. What Are the Responses to Major Comments of the Peer Review 
Panel?
    A. What Are the Reponses to Major Comments Regarding the 
Comparable Emissions Rationale?
    B. What Are the Reponses to Major Comments Regarding the 
Application of the WMPT To Rank Comparable Fuel Constituents?
Part Three: State Authority
    I. Applicability of the Rule in Authorized States
    II. Effect on State Authorization
Part Four: Costs and Benefits of the Proposed Rule
    I. Introduction
    II. Baseline Specification
    III. Analytical Methodology, Primary Data Sources, and Key 
Assumptions
    IV. Key Analytical Limitations
    V. Findings
Part Five: 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. EO 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

Part One: Background and Summary

I. Statutory Authority

    These regulations are proposed under the authority of sections 
2002, 3001, 3002, 3003, and 3004 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. 6921, 6922, 6923, and 6924.

II. Background

A. What Is the Intent of This Proposed Rule?

    Section 40 CFR 261.38 states that secondary materials (i.e., 
materials that otherwise would be hazardous wastes) which have fuel 
value and whose hazardous constituent levels are comparable to those 
found in the fossil fuels which would be burned in their place are not 
solid wastes, and hence not hazardous wastes. We are proposing to amend 
the comparable fuel exclusion by expanding the exclusion to include 
fuels that are produced from a hazardous waste but which generate 
emissions when burned in an industrial boiler that are comparable to 
emissions from burning fuel oil. In other words, the fuels would be 
comparable from an emissions standpoint but not a physical standpoint. 
The revised rule would establish a new category of excluded waste-
derived fuel called emission-comparable fuel (ECF).
    The quantity of waste fuels excluded under this approach would 
increase substantially the amount of hazardous waste fuels that would 
eligible for exclusion from the RCRA hazardous waste regulations. 
Specifically, we estimate that approximately 13,000 tons per year of 
waste fuels are currently excluded under the existing comparable fuel 
exclusion, while we project that up to an additional 107,000 tons per 
year may be excluded under the exclusion being proposed today.
    These additional hazardous secondary materials could be burned for 
energy recovery without imposing unnecessary regulatory costs on 
generators, primarily the manufacturing sector. However, the expanded 
comparable fuel exclusion may not substantially increase the amount of 
hazardous waste burned for energy recovery because high Btu wastes, 
even though not currently excluded from RCRA, are currently burned in 
industrial furnaces and incinerators for their fuel value. Nonetheless, 
continuing to regulate these waste-derived fuels as hazardous wastes 
would treat a potentially valuable fuel commodity (especially 
considering the increasing value of fuels) as a waste without a 
compelling basis.

B. Who Would Be Affected by This Proposed Rule?

    Entities that generate, burn, and store ECF are potentially 
affected by this proposal. The basic structure of the proposal is that 
ECF is no longer a solid (and hazardous) waste, and hence that each of 
these entities would not be subject to subtitle C regulation when 
managing ECF. Thus, generators of hazardous waste fuels that meet the 
conditions of the ECF exclusion could manage these fuels without being 
subject to subtitle C regulation assuming that the management 
conditions are satisfied. Burners, which are limited to certain 
industrial boilers (including utility boilers), could burn ECF provided 
the boilers meet the design and operating conditions in the proposed 
rule, as discussed in Part II, Section II. Generators would benefit 
from lower operating costs because of lower (or eliminated) waste 
management fees and because these fuels would substitute for fuels 
which would otherwise be purchased. In addition, entities storing ECF 
would not be subject to subtitle C standards provided they satisfy the 
management conditions tailored to ECF, as discussed in Part Two, 
Section IV.
    Commercial hazardous waste combustors that are currently managing 
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 waste fuels. Consequently, commercial hazardous waste 
combustors might lose the waste management revenues for those diverted 
fuels and may need to meet their heat input requirements by using other 
waste fuels or fossil fuels.

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C. What Is the Relationship Between the Proposed 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 regulatory definition of solid waste 
certain hazardous waste-derived fuels that meet specification levels 
for hazardous constituents and physical properties that affect burning 
which are comparable to the same levels in fossil fuels. EPA's goal was 
to develop a comparable fuel specification which is useable by the 
regulated community, but assures that an excluded waste-derived fuel is 
similar in composition to commercially available fuel and therefore 
poses no greater risk than burning fossil fuel.
    During the eight years that the comparable fuel exclusion has been 
part of the hazardous waste regulations, several stakeholders have 
pointed out that many hazardous wastes with fuel value 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 \1\ to determine whether other hazardous wastes 
could be appropriately excluded as comparable fuel.
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    \1\ See http://www.epa.gov/epaoswer/osw/conserve/strat-plan/strat-plan.htm#rccplan.
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    As part of this effort, we 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 wastes that could potentially be considered comparable 
fuel. ACC conducted a survey of its members and provided results to EPA 
in late 2003 indicating that approximately 13,000 tons per year of 
waste fuels are currently excluded, but that approximately 190,000 tons 
per year of additional waste fuels could potentially be excluded under 
revisions to the exclusion.\2\
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    \2\ Letter from American Chemistry Council (Carter Lee Kelly, 
Leader, Waste Issues Team, and Robert A. Elam, Director, Regulatory 
Affairs, Waste Issues Team) to Robert Springer and Matt Hale, USEPA, 
dated November 24, 2003.
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    Therefore, ACC recommended that EPA consider approaches to address 
the following barriers perceived as excluding additional quantities of 
waste fuels:
     Analytic Issues: High analysis cost and matrix 
interferences hamper meeting the detection limit requirements for 
nondetected analytes in many waste fuel matrices.
     Over-Rigid Specifications: Wastes containing 
nonhalogenated organics and oxygenates do not result in emissions 
greater than burning waste fuel meeting the specification if the 
combustor operates under good combustion conditions.
     Blending: The current exclusion bans blending to meet 
hazard constituent specifications. Flexibility is needed on blending of 
streams containing low levels of constituents, such as chromium and 
manganese attributable to corrosion from stainless steel vessels and 
pipes.
1. What Modifications to the Comparable Fuel Exclusion May Be 
Warranted?
    We are proposing in this action to expand the exclusion for 
comparable fuel to establish a new category of excluded fuel--emission-
comparable fuel (ECF). This proposal would exclude waste fuels that 
generate emissions, when burned in an industrial boiler, which are 
comparable to emissions from burning fuel oil. ECF would be subject to 
the same hazardous constituent and other specifications in Table 1 to 
Sec.  261.38 that currently apply to comparable fuels, except that the 
specifications for certain hydrocarbons and oxygenates would not apply. 
The exclusion would be based on the rationale that ECF has substantial 
fuel value, that the hydrocarbon and oxygenate constituents no longer 
subject to a specification add fuel value, and that emissions from 
burning ECF in an industrial boiler operating under good combustion 
conditions are likely not to differ from emissions from burning fossil 
fuels under those same conditions. As a result, the current 
specifications limiting the hydrocarbons and oxygenates appear to be 
unnecessary.
    The exclusion would be conditioned on the ECF being burned and 
stored under certain conditions, including: (1) Design and operating 
conditions for the ECF boiler that ensure that the ECF is burned under 
the good combustion conditions typical for oil-fired industrial 
boilers; and (2) conditions for storage in tanks which are comparable 
to those for storage of fuels and organic liquids and which are 
tailored for the hazards that ECF may pose given that ECF can have 
higher concentrations of certain hydrocarbons and oxygenates than fuel 
oil and gasoline.
    We are not proposing revisions to the comparable fuel exclusion to 
address the analytical and blending recommendations raised by ACC.
    a. Why Are We Not Proposing Revisions To Address Analytic Concerns? 
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. Given that 
only benzene, toluene, and naphthalene were detected, EPA used this 
approach for most of the volatile organic compounds. EPA acknowledged 
this deviation from establishing the specification for nondetected 
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. ACC suggested that 
EPA consider the fact that many waste fuels may pose the same matrix 
effects as gasoline, such that the fuel oil-based specifications would 
not be reasonably achievable.
    We 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 would simply not be expected 
to be found in fuel oil or gasoline. Rather, only certain hydrocarbons 
would be expected to be in these fuels. 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 revision would not likely result in additional 
hazardous waste fuel being conditionally excluded. There were very few, 
if any, waste fuels that meet the specifications for all volatile 
compounds, except for the enumerated hydrocarbons and oxygenates, and 
that also could meet revised, higher specifications for the 
hydrocarbons and oxygenates based on the levels of detection in 
gasoline. Consequently, we are not pursuing this approach further but, 
nonetheless, solicit comment on such an approach.
    b. Why Are We Not Proposing Revisions To Address Blending Concerns? 
A condition of the existing comparable fuel exclusion is that blending 
to meet the specification (except for viscosity) is prohibited to 
preclude dilution to avoid treatment.\3\ ACC noted that waste fuels 
often contain incidental contamination of metals, such as chromium and 
manganese from corrosion of stainless steel vessels and pipes, and that 
blending to meet the specifications for

[[Page 33288]]

low levels of metals appears reasonable. We believe that blending to 
meet the specifications for metals is explicitly prohibited because it 
would be inconsistent with the section 3004(m) hazardous waste 
treatment provisions (which, although not directly applicable, 
articulate important overall statutory objectives) which require 
hazardous constituents to be removed or destroyed by treatment, not 
diluted. See 63 FR at 33795.
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    \3\ See 63 FR at 33795, and existing Sec.  261.38(c)(3-4).
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    We believe, however, that blending to meet the specification for 
organic compounds that may be present in fuel oil or gasoline--
hydrocarbons--or that are within a class of compounds that are added to 
fuels to enhance combustion--oxygenates--could be considered. These 
compounds would not be diluted to avoid treatment; they would still be 
treated by combustion. However, it appears that there were very few, if 
any, additional waste fuels that would be excluded under such a 
blending provision. Nonetheless, we solicit comment on such an approach 
and its applicability to additional waste fuels.
2. How Has EPA Involved Stakeholders in Discussions Regarding Potential 
Revisions to the Comparable Fuel Exclusion?
    On December 15, 2005, EPA convened a public meeting of stakeholders 
to discuss potential revisions to the comparable fuel exclusion under 
40 CFR 261.38.\4\ Meeting notes are available in the docket for this 
rulemaking.\5\ Participants in the stakeholder meeting raised several 
issues during the meeting and our responses are included in the meeting 
notes. In addition, several participants submitted written comments 
after the meeting. These comments and our responses are available in 
the docket to today's proposal.\6\
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    \4\ See e-mail from Jim Berlow, USEPA, to Jim Pew, Earthjustice; 
Melvin Keener, Coalition for Responsible Waste Incineration; David 
Case, Environmental Technology Council; Michael Benoit, Cement Kiln 
Recycling Coalition; Barbara Simcoe, Association of State and 
Territorial Solid Waste Management Officials; and Robert Elam, 
American Chemistry Council, dated November 23, 2005.
    \5\ See memorandum from Bob Holloway, USEPA, to Docket Number 
RCRA 2005-0017, entitled ``Meeting Notes--Comparable Fuel 
Stakeholder Meeting on Dec. 15, 2005,'' dated January 4, 2006.
    \6\ USEPA, ``Response to Comments on the December 15, 2005 
Stakeholder Meeting Regarding Expanding the Comparable Fuel 
Exclusion,'' May 2007.
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III. Summary of the Proposed Rule

    Today's proposed rule would expand the comparable fuel exclusion by 
conditionally waiving the specifications for certain hydrocarbons and 
oxygenates listed in Table 1 to Sec.  261.38. This excluded waste fuel 
would be called emission-comparable fuel. We are also proposing to 
clarify the regulatory status of existing comparable fuel that no 
longer meets the conditions of the exclusion.

A. What Are the Conditions for Exclusion of Emission-Comparable Fuel 
(ECF)?

    ECF is a fuel derived from hazardous waste but which would be 
excluded from the RCRA hazardous waste regulations if it meets 
prescribed specifications and management conditions. The ECF 
specifications would be the same as those that are applicable to 
comparable fuel, except the specifications for particular hydrocarbons 
and oxygenates would not apply. See proposed Sec.  261.38(a)(2). The 
exclusion would apply from the point that ECF meets the specifications.
    Special conditions of the exclusion specific to ECF would include 
the following design and operating conditions for the ECF burner: (1) 
The burner must be a watertube steam boiler other than a stoker-fired 
boiler; (2) carbon monoxide (CO) 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); (3) the 
boiler must fire at least 50% primary fuel on a heating value or volume 
basis, whichever results in a higher volume of primary fuel, and the 
primary fuel must be fossil fuel or tall oil with a heating value not 
less than 8,000 Btu/lb; (4) the boiler load must be 40% or greater; (5) 
the ECF must have an as-fired heating value of 8,000 Btu/lb or greater; 
(6) ECF must be fired into the primary fuel flame zone; (7) the ECF 
firing system must provide proper atomization; and (8) if the boiler is 
equipped with an electrostatic precipitator (ESP) or fabric filter (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. See proposed 
Sec.  261.38(c)(2). (Please note that we specifically request comment 
on these proposed conditions, as discussed later.) The principal 
conditions that would apply to ECF boilers--waterwall steam boiler, low 
CO, burning high Btu primary fuel that is properly atomized, operating 
at boiler loads above 40%--reflect design and operating conditions 
typical for oil-fired industrial boilers that operate under good 
combustion conditions.
    In addition, ECF must be stored in tanks, tank cars, or tank 
trucks. See proposed Sec.  261.38(c)(1). These tank systems, tank cars, 
and tank trucks would be excluded from regulation if they meet 
conditions similar to those which apply to fuel oil (the product most 
analogous to ECF), along with additional conditions necessary to 
minimize the potential for releases to the environment accounting for 
the differences between ECF and fuel oil. These include: (1) Certain 
provisions of the Spill Prevention, Control, and Countermeasures (SPCC) 
requirements applicable to oil under Sec. Sec.  112.2, 112.5, 112.7, 
and 112.8; (2) secondary containment and leak detection requirements 
for tank systems, including use of liners, vaults, or double-walled 
tanks; (3) preparedness and prevention, emergency procedures, and 
response to release provisions adopted from requirements applicable to 
tank systems that store hazardous waste, and (4) fugitive air emission 
technical controls adopted from Subpart EEEE, Part 63, for organic 
liquids distribution (which would apply not only to any hazardous air 
pollutants among the oxygenates and hydrocarbons, but also would apply 
to the 11 oxygenates for which there would be no specification in this 
proposed rule and which are hazardous constituents under RCRA having 
significant vapor pressure but which are not hazardous air pollutants 
under the CAA). Underground tanks storing ECF are subject to the 
applicable requirements of 40 CFR Part 280. A further condition of the 
exclusion is that the generator must document in the waste analysis 
plan how precautions will be taken to prevent mixing of ECF and other 
materials which could result in adverse consequences from incompatible 
materials. In addition, to be excluded, ECF would need to meet all of 
the conditions applicable to existing comparable fuel, including: (1) 
The specifications under Table 1 to 261.38, except for the 
specifications for certain hydrocarbons and oxygenates; (2) prohibition 
on blending to meet the specifications, except for viscosity; \7\ (3) 
notifications to state RCRA and Clean Air Act (CAA) Directors and 
public notification; (4) waste analysis plans; (5) sampling and 
analysis conditions; (6) prohibition on speculative accumulation; (7) 
recordkeeping; (8)

[[Page 33289]]

burner certification to the generator; and (9) ineligible waste codes.
---------------------------------------------------------------------------

    \7\ ECF must have a heating value of 5,000 Btu/lb or greater as-
generated (or after bona fide treatment), but must have a heating 
value of 8,000 Btu/lb, as fired. Thus, ECF with an as-generated 
heating value below 8,000 Btu/lb may be blended with other fuels to 
achieve a heating value of 8,000 Btu/lb.
---------------------------------------------------------------------------

    ECF that has lost its exclusion because of failure to satisfy a 
condition of the exclusion must be managed as a hazardous waste from 
the point of ECF generation.\8\ In addition, ECF that is spilled or 
leaked and cannot 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 derived from a listed hazardous 
waste) and must be managed in accordance with existing federal and 
state regulations. Furthermore, if an ECF tank system 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 would become subject to the RCRA 
subtitle C hazardous waste regulations.\9\ (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 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 derived from a listed hazardous 
waste).
---------------------------------------------------------------------------

    \8\ Please note that we request 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 the material was considered waste when handled by the 
generator, as long as the generator can adequately demonstrate that 
he has made reasonable efforts to ensure that the material will be 
managed by the burner under the conditions of the exclusion. See 
discussion in Part Two, Section V.B of the preamble.
    \9\ If the tank is used to actively accumulate hazardous waste 
after being taken out of service as an ECF 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.
---------------------------------------------------------------------------

B. What Changes Is EPA Proposing to the Conditions for Existing 
Comparable Fuel?

    The proposed rule would restructure the current conditions for 
comparable fuel (and syngas fuel) to make the regulatory language more 
readable given that the regulation must accommodate the proposed 
exclusion for ECF. Consequently, we are redrafting the entire section 
for clarity. In addition, we are making technical corrections to 
several provisions of the rule.\10\ We regard these language changes as 
purely technical, and thus will accept comment only on whether the 
suggested language change expresses the current meaning of the 
provision. We are not reexamining, reconsidering, or otherwise 
reopening these provisions for comment.
---------------------------------------------------------------------------

    \10\ See memorandum from Bob Holloway, USEPA, to Docket ID No. 
EPA-HQ-RCRA-2005-0017, dated January 10, 2007.
---------------------------------------------------------------------------

    We are, however, proposing to amend several provisions that apply 
to comparable fuel for the same reasons that we are proposing to apply 
the amended provisions to ECF. We specifically request comment on 
whether these clarifications and conforming amendments are appropriate:
     We are proposing to clarify the consequences of failure to 
satisfy the conditions of the existing comparable fuel exclusion. The 
material must be managed as hazardous waste from the point of 
generation. In addition, we are proposing to clarify 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 was derived from a listed 
hazardous waste when the exclusion was claimed. See proposed Sec.  
261.38(d).
     We are proposing to clarify the status of tanks that cease 
to be operated as comparable fuel storage tanks. The tank system 
becomes 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 tank. In addition, we are proposing to 
clarify that liquids and accumulated solids removed from the tank after 
the tank ceases to be operated as a comparable fuel product tank must 
be managed as hazardous waste if they exhibit a characteristic of 
hazardous waste or if they were derived from a listed hazardous waste 
when the exclusion was claimed. See proposed Sec.  261.38(b)(13).
     We are proposing to waive the RCRA closure requirements 
for tank systems that are used only to store hazardous wastes that are 
subsequently excluded as comparable fuel. See proposed Sec.  
261.38(b)(14).
     We are proposing to clarify the regulatory status of 
boiler residues, including bottom ash and emission control residue. 
Burning excluded fuel that was derived from a listed hazardous waste 
does not subject boiler residues to regulation as derived-from 
hazardous waste. See Sec.  261.38(b)(12).
     We are proposing that the one-time notice by the generator 
to regulatory officials include an estimate of the average and maximum 
monthly and annual quantity of waste for which an exclusion would be 
claimed.\11\ See proposed Sec.  261.38(b)(2)(i)(D).
---------------------------------------------------------------------------

    \11\ Providing an estimate of excluded quantities would help 
regulatory officials establish inspection and monitoring priorities. 
This requirement was an oversight when the exclusion was initially 
promulgated. We required the burner to issue a public notice that 
included this information (see existing Sec.  261.38(c)(1)(ii)(D)), 
but we inadvertently did not require the generator who claims the 
exclusion to provide this information in his notice to regulatory 
officials.
---------------------------------------------------------------------------

Part Two: Rationale for the Proposed Rule

I. What Is the Rationale for Excluding Emission-Comparable Fuel From 
the Definition of Solid Waste?

    Emission-comparable fuel (ECF) is a fuel derived from hazardous 
waste, but which would be excluded from RCRA hazardous waste regulation 
if it meets prescribed specifications and management conditions. The 
ECF specifications would be the same as those that currently apply to 
existing comparable fuel, except the specifications for particular 
hydrocarbons and oxygenates would not apply. See proposed Sec.  
261.38(a)(2).\12\
---------------------------------------------------------------------------

    \12\ Table 1 to Sec.  261.38 provides specifications for 37 
hydrocarbons and oxygenates. For ECF, the specifications would not 
apply for those compounds, except for PAHs and naphthalene, as 
discussed in Part Two, Section III, of the text. In addition, there 
would be firing rate restrictions for ECF that contained more than 
2% benzene or acrolein.
---------------------------------------------------------------------------

    The exclusion would be based on the rationale that ECF has fuel 
value, that the hydrocarbon and oxygenate constituents no longer 
subject to a specification themselves have fuel value, and that 
emissions from burning ECF in an industrial boiler operating under good 
combustion conditions are likely not to differ from emissions from 
burning fossil fuels under those same conditions. Emissions from 
burning ECF in an industrial boiler operating under good combustion 
conditions would be comparable to emissions from burning fuel oil in an 
industrial boiler operating under the same good combustion conditions 
because operating a boiler under good combustion conditions, evidenced 
by carbon monoxide (CO) emissions below 100 ppmv (on an hourly rolling 
average), assures the destruction of organic compounds generally to 
trace levels, irrespective of the type or concentration of the organic 
compound in the feed.\13\ As

[[Page 33290]]

hydrocarbons are oxidized during combustion, eventually (ideally) to 
carbon dioxide and water, CO is formed just prior to complete oxidation 
to carbon dioxide. Because CO is difficult to oxidize, it is the rate-
limiting step in the oxidation process. Thus, low CO levels indicate 
good combustion and low levels of organic compounds.
---------------------------------------------------------------------------

    \13\ This assumes that fuels are fired into the flame zone, thus 
avoiding total ignition failure. If a waste fuel were inadvertently 
fired out of the flame zone, the fuel may not even partially 
combust. If this were to happen, CO levels could be low even though 
organic emissions could be high. ECF boilers would be required to 
fire ECF into the primary fuel flame zone. Also see USEPA, ``Draft 
Technical Support Document for Expansion of the Comparable Fuel 
Exclusion,'' May 2007, Section 5.
---------------------------------------------------------------------------

    EPA has discretion to classify such material as a fuel product, and 
not as a waste. See generally Safe Foods and Fertilizer v. EPA, 350 F. 
3d 1263, 1269-71 (D.C. Cir. 2004) (secondary materials physically 
comparable to virgin products which would be used in their place, or 
which pose similar or otherwise low risks when used in the same manner 
as the virgin product, need not be considered ``discarded'' and hence 
need not be classified as solid wastes). Given that ECF (including the 
hydrocarbon and oxygenate portion) would have legitimate energy value 
and that emissions from burning ECF are comparable to fuel oil when 
burned in an industrial boiler under the good combustion conditions 
typical of such boilers, classifying such material as a fuel product 
and not as a waste promotes RCRA's resource recovery goals without 
creating a risk from burning greater than those posed by fossil fuel. 
Under these circumstances, EPA can permissibly classify ECF as a non-
waste.
    The conditional exclusion would be an exclusion only from the RCRA 
subtitle C regulations, and not from the emergency, remediation and 
information-gathering sections of the RCRA statute [sections 3007, 
3013, and 7003]. This is consistent with the principle already codified 
for other excluded hazardous secondary materials--that the exclusion is 
only from the RCRA regulatory provisions, and not from these statutory 
authorities. See Sec.  261.1(b). We are restating this principle here 
in the interest of clarity, not to reopen the issue. The legal basis 
for the distinction of the Agency's authority under these provisions is 
that they use the broader statutory definition of solid waste (and 
hazardous waste, as well) and so need not (and should not) be read as 
being limited by the regulatory definition. See, for example, 50 FR at 
627. See also Connecticut Coastal Fishermen's Assn. v. Remington Arms, 
989 F. 2d 1305, 1313-15 (2d Cir. 1993) (EPA may permissibly ascribe 
different definitions to the term ''solid waste'' for regulatory and 
statutory purposes).
    Although ECF could have higher concentrations of particular 
hydrocarbons and oxygenates than the benchmark fossil fuels--fuel oil 
and gasoline--that EPA used to establish the specifications in Table 1 
to Sec.  261.38, higher levels of hydrocarbons and oxygenates in ECF do 
not imply that burning ECF for energy recovery constitutes waste 
management because: (1) Hydrocarbons naturally occur in virgin fuels 
\14\ and oxygenates are a class of compounds that are added to virgin 
fuels to enhance combustion; \15\ (2) the hydrocarbons and oxygenates 
have a heating value of 10,000 Btu/lb to 18,500 Btu/lb,\16\ which is 
comparable to the range for virgin fuels (e.g., coal and fuel oil); and 
(3) the hydrocarbons and oxygenates produce emissions comparable to 
virgin fuels when burned under conditions typical of those under which 
virgin fuels are burned.
---------------------------------------------------------------------------

    \14\ We explained in the final comparable fuel rule that it is 
reasonable to assume that the Table 1 hydrocarbons that we did not 
detect in fuel oil or gasoline could in fact be present at levels up 
to the detection limit. See 63 FR at 33791.
    \15\ Examples of fuel oxygenates are: Ethanol; methyl tert-butyl 
ether (MTBE), tert-amyl methyl ether (TAME); diisopropyl ether 
(DIPE); ethyl tert-butyl ether (ETBE); tert-amyl alcohol (TAA); and 
tert-butyl alcohol (TBA). For further discussion, see USEPA, ``Draft 
Technical Support Document for Expansion of the Comparable Fuel 
Exclusion,'' May 2007, Section 3.1.
    \16\ USEPA, ``Draft Technical Support Document for Expansion of 
the Comparable Fuel Exclusion,'' May 2007, Section 2.2.
---------------------------------------------------------------------------

    We note, however, that ECF can pose a greater hazard during storage 
than fuel oil given that ECF can contain higher concentrations of 
certain hazardous, volatile hydrocarbons and oxygenates. We are 
consequently proposing to condition the exclusion on certain storage 
conditions similar to those applicable to commercial products and 
commodities analogous to ECF, namely fuel oil and other commercial 
organic liquids. See discussion below in Part Two, Section IV.
    In addition, we are proposing to condition the exclusion on 
requirements for the design and operation of the ECF burner to ensure 
that ECF is burned under the good combustion conditions typical of most 
fossil fuel boilers. See discussion below in Part Two, Section II. 
These conditions should ensure that emissions from burning ECF remain 
comparable to emissions from burning fossil fuels.

A. Why Would the Specifications Be Waived Only for Hydrocarbons and 
Oxygenates?

    We are proposing not to apply the specifications for certain 
hydrocarbons and oxygenates, but are proposing to retain the 
specifications for metals and the other categories of organic compounds 
for which specifications are provided under Sec.  261.38. We would not 
apply the specifications for these hydrocarbons \17\ because: (1) It is 
reasonable to assume that these compounds may be present in fossil 
fuels (see 63 FR at 33791); and (2) when they are burned under the good 
combustion conditions typical for fossil fuel-fired boilers, emissions 
from burning these compounds would be comparable to emissions from 
burning fuel oil.
---------------------------------------------------------------------------

    \17\ Please note, however, that we are proposing to retain the 
specifications for certain hydrocarbons: PAHs (polycyclic aromatic 
hydrocarbons) and naphthalene. See discussion in the text in Part 
Two, Section III.
---------------------------------------------------------------------------

    We also would not apply the specifications for the listed 
oxygenates because they are a class of organic compounds that are added 
to fuels to enhance combustion.\18\ These compounds would burn cleanly 
under the good combustion conditions typical of a fuel oil-fired 
industrial boiler and would generate only trace or comparable levels of 
emissions.
---------------------------------------------------------------------------

    \18\ We acknowledge that oxygenates are added to fuels burned in 
internal combustion engines rather than fuels burned in industrial 
boilers. However, oxygenates burn cleanly--they do not contain 
halogens, sulfur, or nitrogen that would result in emissions of 
halogen acids and sulfur and nitrogen oxides.
---------------------------------------------------------------------------

    It is appropriate to retain the specifications for metals since 
they do not contribute energy and are not destroyed during the 
combustion process. Given that the metal specifications in Table 1 to 
Sec.  261.38 reflect levels that can be present in fuel oil, excess, 
noncontributing metals are ``along for the ride,'' suggesting 
discarding. Moreover, metals emissions would necessarily be higher than 
emissions from fuel oil if the metals specifications do not apply 
because oil-fired boilers typically lack optimized particulate control 
due to low metal content of commercially available fuel oils.
    Also, it is appropriate to retain the specifications for the other 
categories of organic compounds listed under Table 1 to Sec.  261.38--
sulfonated organics, nitrogenated organics, and halogenated organic 
compounds. These organic compounds, for the most part, are not likely 
to be found in the benchmark fuels--fuel oil and gasoline--we used to 
establish the specifications. And, unlike oxygenates, these organic 
compounds are not within a class of compounds that are added to fossil 
fuels to enhance combustion. These hazardous compounds also would 
appear to be along for the ride when present at concentrations higher 
than benchmark

[[Page 33291]]

fuels, and consequently their destruction via combustion can be viewed 
as waste management.

B. Do Available Data and Information Support a Comparable Emissions 
Finding?

    We investigated whether emissions from burning ECF in an industrial 
boiler operating under prescribed good combustion conditions would be 
comparable to emissions from burning fuel oil in an industrial boiler 
operating under good combustion conditions. We evaluated organic 
emissions data from watertube steam boilers (other than stoker-fired 
boilers) burning hazardous waste and compared those emissions against 
emissions from oil-fired industrial boilers. In addition, we conducted 
two qualitative analyses of the risk that ECF emissions may pose: (1) 
Evaluation of RCRA risk assessments for watertube steam boilers burning 
hazardous waste to determine if organic emissions had been found to 
pose a hazard to human health and the environment; and (2) a limited 
comparative risk assessment for dioxin/furan emissions.
    As discussed below, we believe that available data and information 
indicate that emissions from burning ECF under the proposed, prescribed 
conditions would be comparable to emissions from an oil-fired 
industrial watertube steam boiler operating under good combustion 
conditions.
1. Evaluation of Organic Emissions Data for Hazardous Waste Boilers
    In the absence of emissions data from boilers burning ECF, we 
evaluated organic emissions data from watertube steam boilers burning 
hazardous waste and compared those emissions against emissions from 
oil-fired industrial boilers. Using hazardous waste boiler emissions as 
a surrogate for ECF boiler emissions is a reasonable worst-case because 
the exclusion would be conditioned on the ECF boiler operating under 
conditions relating to assuring good combustion conditions that are at 
least as stringent as those required of boilers burning hazardous 
waste.\19\
---------------------------------------------------------------------------

    \19\ See discussion in Part Two, Section II, of the text 
describing the ECF boiler conditions. The CO controls for ECF 
boilers plus the requirement to fire ECF into the primary fuel flame 
zone are equivalent to the controls on organic emissions for 
hazardous waste boilers--CO controls and compliance with the 99.99% 
destruction and removal efficiency (DRE) standard. The other ECF 
boiler controls are more restrictive than controls that apply to 
hazardous waste boilers, but are appropriate to help assure that an 
ECF boiler operates under good combustion conditions given that ECF 
would be burned under a conditional exclusion absent a RCRA permit 
and the regulatory oversight typical for a RCRA hazardous waste 
combustor, and absent the extensive operating limits (e.g., 
combustion chamber temperature, maximum load) that are established 
subsequent to emissions testing to demonstrate compliance with a 
destruction and removal efficiency (DRE) standard.
---------------------------------------------------------------------------

    We obtained organic emissions data for 26 hazardous waste watertube 
steam boilers which data were generated during risk-burn testing 
required under RCRA omnibus authority codified at Sec.  270.32(b)(2). 
EPA requires this testing as necessary on a site-specific basis to 
ensure that emissions are protective of human health and the 
environment. We have data for 28 test conditions for the 26 boilers 
that provide 175 detected measurements of organic compounds, where a 
measurement is a three-run set.\20\ We also have data for hazardous 
organic compounds emitted from oil-fired industrial boilers. Those data 
were compiled in support of the NESHAP for Industrial, Commercial, and 
Institutional Boilers and Process Heaters promulgated under Part 63, 
Subpart DDDDD. See 69 FR 55218 (Sept. 13, 2004). We use oil-fired 
industrial boiler emissions data for comparison because fuel oil is the 
closest analogous fuel to ECF, and ECF could be burned only in 
industrial or utility boilers. See discussion below in Section II.B.1.
---------------------------------------------------------------------------

    \20\ A test condition is normally comprised of three test runs 
conducted under identical (controllable) operating conditions.
---------------------------------------------------------------------------

    We have emissions data for both hazardous waste boilers and oil-
fired industrial boilers for 26 hazardous organic compounds. We also 
have hazardous waste boiler emissions data for another 33 hazardous 
organic compounds for which we do not have oil-fired boiler emissions 
data for comparison. We discuss our investigation of these data below.
    a. Hazardous Organic Compounds for Which We Have Both Hazardous 
Waste Boiler and Fuel Oil Boiler Emissions Data. We have both hazardous 
waste boiler and fuel-oil boiler emissions data for 26 hazardous 
organic compounds. The great majority of the hazardous waste boiler 
test condition averages for these compounds (150, or greater than 85%) 
were unequivocally comparable to fuel oil emissions--the hazardous 
waste emissions were below the oil emissions 95th percentile level. 
There were 24 test condition averages, however, that exceeded the oil 
emissions 95th percentile level for 10 compounds.\21\ Nonetheless, we 
do not believe that these exceedances indicate that ECF emissions would 
be higher than oil-fired boiler emissions, as discussed below.
---------------------------------------------------------------------------

    \21\ Please note that we have reanalyzed the oil-fired boiler 
emissions data to identify the 95th percentile benchmarks based on 
test condition averages, rather than test runs, based on comments 
submitted by one of the peer reviewers. As discussed in Part Two, 
Section VII, although the reanalysis resulted in several additional 
exceedances of the oil emissions benchmarks, our conclusion remains 
unchanged. It is reasonable to conclude that ECF emissions will be 
either generally comparable to oil emissions or at de minimis 
levels.
---------------------------------------------------------------------------

    For 12 of the 24 exceedances, laboratory contamination of the 
sample was known or suspected. Specifically, for nine exceedances--six 
for dichloromethane, two for benzene, and one for toluene--the 
constituent being measured was found in the blank, while there were 
three additional exceedances for dichloromethane, a common lab 
contaminant that is frequently found in laboratory samples and in the 
environment. For one of these test conditions, the report indicated 
that dichloromethane is a common laboratory contaminant, implying that 
the data may be suspect. For the other two test conditions, laboratory 
contamination was not discussed in the test reports. Even if laboratory 
contamination were not an issue for these two tests, however, we note 
that these hazardous waste boilers were not operating under the 
conditions that are proposed for an ECF boiler. Both boilers were 
burning waste fuels with a heating value below the 8,000 Btu/lb minimum 
heating value that is proposed for ECF. In addition, it is unclear if 
one boiler was burning vent gas or natural gas as the primary fuel. ECF 
must be burned with at least 50% primary fuel that is fossil fuel. 
Operating under conditions less stringent than proposed for ECF boilers 
could result in higher emissions of organic compounds.
    For seven exceedances, hazardous waste boiler emissions were at 
trace levels \22\--there was a de minimis increase in emissions. Test 
condition averages were below 8 [mu]g/dscm for the exceedances for 
anthracene, benzo[a]pyrene, ethylbenzene, fluorine, 2-
methlynaphthalene, and phenanthrene.
---------------------------------------------------------------------------

    \22\ Emissions of 8 [mu]g/dscm for high molecular weight 
compounds such as these are equivalent to approximately 0.005 ppmv 
expressed as propane equivalents. Thus, these are de minimis 
concentrations considering that the hydrocarbon emission limit for 
boilers burning hazardous waste is 10 ppmv, expressed as propane 
equivalents. See Sec.  63.1217(a)(5)(ii).
---------------------------------------------------------------------------

    In addition, an exceedance for acetaldehyde was at an emissions 
level of 100 [mu]g/dscm, while oil emission levels for acetaldehyde are 
virtually comparable at 70 [mu]g/dscm. However, the hazardous waste 
boiler emissions for acetaldehyde were well below the 95th percentile 
emissions for natural gas boilers, 635 [mu]g/dscm. This is relevant 
because ECF may be burned with natural gas as the primary fuel. 
Further,

[[Page 33292]]

we note that the hazardous waste boiler was operating under conditions 
less stringent than proposed for ECF boilers--it was burning only 20% 
natural gas as the primary fuel, while it is proposed that ECF boilers 
fire at least 50% primary fuel. Thus, acetaldehyde emissions may be 
higher than they would have been if the boiler had the hot, stable 
flame that burning 50% natural gas (or fuel oil) would provide.
    Finally, there were four exceedances for benzene that we 
nonetheless believe are comparable to fuel oil emissions. Three of the 
exceedances were below the highest fuel oil emission test run level of 
200 [mu]g/dscm, while the fourth exceedance was at a level of 260 
[mu]g/dscm, just somewhat higher. More importantly, for all four 
exceedances, the hazardous waste boiler was not operating under the 
conditions proposed for an ECF boiler. For all four exceedances, the 
hazardous waste fuel had a heating value below 2,000 Btu/lb compared to 
8,000 Btu/lb that is proposed for ECF. And, for one of the exceedances, 
the hazardous waste fuel had a viscosity of 165 cSt, while the maximum 
viscosity for ECF would be 50 cSt. To reiterate, operating under 
conditions less stringent than proposed for ECF boilers could result in 
higher emissions of organic compounds.
    Notwithstanding this analysis of available emissions data, we 
acknowledge that, when ECF with higher concentrations of certain 
hydrocarbons and oxygenates than fuel oil is burned even under good 
combustion conditions, emissions of hazardous organics may be somewhat 
higher than those from burning fossil fuel. This is because combustion 
is generally a percent-reduction process. Thus, even though good 
combustion conditions may ensure a very high destruction efficiency 
(e.g., 99.9999% reduction), emission concentrations may nonetheless 
increase as the feedrate of an organic compound increases. We believe, 
however, that these increases would be de minimis because operating 
under the good combustion conditions proposed for ECF boilers ensures 
that emissions of hazardous organic compounds would generally be at 
trace levels, and, as discussed below, protective of human health and 
the environment.\23\
---------------------------------------------------------------------------

    \23\ Please note that a peer reviewer questioned whether ECF 
emissions could, in fact, be expected to be comparable to oil-fired 
boiler emissions given the unlimited concentrations of the listed 
hazardous compounds (i.e., benzene, toluene, and the oxygenates) 
that may be present in ECF. We respond to this comment in Part Two, 
Section VII of the preamble.
---------------------------------------------------------------------------

    b. Compounds for Which We Only Have Hazardous Waste Boiler 
Emissions Data. We have hazardous waste boiler emissions data for 33 
hazardous organic compounds for which we do not have oil-fired boiler 
emissions data for comparison. Average hazardous waste boiler emissions 
for each of these compounds are at trace levels--below 11 [mu]g/dscm 
\24\--except for bis(2-ethylhexyl)phthalate and chloroform.
---------------------------------------------------------------------------

    \24\ As discussed in footnote 22, emissions at this low 
concentration are in the de minimis range.
---------------------------------------------------------------------------

    We have bis(2-ethylhexyl)phthalate emissions data for 15 test 
conditions (generally comprised of three runs) representing 15 
different boilers. Test condition average emissions ranged from 0.34 
[mu]g/dscm to 600 [mu]g/dscm for the boilers, with an average of 69 
[mu]g/dscm. Although the highest test condition average--600 [mu]g/
dscm--appeared to be an outlier given that the second highest average 
was 130 [mu]g/dscm and 12 test conditions were below 42 [mu]g/dscm, we 
determined that it is not a statistical outlier.\25\ Nonetheless, we 
note that: (1) The boiler with the highest emissions--600 [mu]g/dscm--
was not operating under the conditions that are proposed for an ECF 
boiler (which could result in higher emissions)--the primary fuel 
firing rate was approximately 30% rather than a minimum of 50%, and 
boiler load was approximately 30% rather than a minimum of 40%; and (2) 
bis(2-ethylhexyl)phthalate is known to be a common lab contaminant, and 
thus the reported emissions levels may be suspect.
---------------------------------------------------------------------------

    \25\ USEPA, ``Draft Technical Support Document for Expansion of 
the Comparable Fuel Exclusion,'' May 2007, Appendix C.
---------------------------------------------------------------------------

    For chloroform, we have emissions data for 9 test conditions 
(generally comprised of three runs) representing 9 different boilers. 
Test condition average emissions ranged from 0.28 [mu]g/dscm to 270 
[mu]g/dscm for the boilers, with an average of 45 [mu]g/dscm. Although 
the highest test condition average--270 [mu]g/dscm--appeared to be an 
outlier given that the second highest average was 85 [mu]g/dscm and the 
remaining test conditions did not exceed 16 [mu]g/dscm, we determined 
that it is not a statistical outlier. We note, however, that the boiler 
with the highest emissions--270 [mu]g/dscm--was not operating under the 
conditions that are proposed for an ECF boiler--it burned a waste fuel 
with a heating value below 8,000 Btu/lb and it is not clear whether the 
boiler burned process vent gas or natural gas as primary fuel.
2. Evaluation of RCRA Risk Assessments
    In addition to the analysis of emission concentrations discussed 
above, we reviewed the RCRA risk assessments \26\ that had been 
completed by June 2006 for hazardous waste watertube steam boilers 
other than stoker-fired boilers to determine if organic emissions under 
the good combustion conditions required by the standards under Part 
266, Subpart H, may result in unacceptable risk to human health and the 
environment. We determined that such risk assessments had been 
conducted at 13 facilities and decisions on whether omnibus/additional 
permit conditions are needed to ensure emissions are protective have 
been made for nine of those facilities. A decision to include an 
omnibus permit condition to address organic emissions has been made for 
only two of the nine facilities, however.
---------------------------------------------------------------------------

    \26\ See Sec.  270.32(b)(2).
---------------------------------------------------------------------------

    The first facility operated several boilers equipped with a common 
electrostatic precipitator. Risk-based dioxin emission limitations and 
associated testing and temperature monitoring requirements were 
established in the permit based upon a finding that dioxin/furan 
emissions during an isolated test event exceeded risk levels of 
concern. During that test event, artificial chlorine spiking into the 
waste feed was conducted. During subsequent testing under the permit 
terms, chlorine spiking did not take place and compliance with the 
risk-based dioxin/furan emission limitations was demonstrated. 
Electrostatic precipitator operating temperatures during the subsequent 
tests ranged from 396 [deg]F to 418 [deg]F. We note, however, that the 
chlorine specification proposed for ECF would prohibit chlorine 
concentrations from approaching the levels present during the instances 
of chlorine spiking at this facility. In addition, we also note that 
today's proposal would require that ECF boilers (other than coal-fired 
boilers) equipped with an ESP or FF maintain a gas temperature below 
400 [deg]F as a condition of the exclusion. See discussion in Section 
II below.
    For the second facility where omnibus permit conditions were 
imposed, there was no finding of excess risk associated with any 
organic constituents. Rather, the omnibus permit conditions serve as a 
trigger for a reassessment of risk if emissions levels higher than 
those considered in the initial risk assessment were measured.
    This analysis confirms our view that organic emissions from 
hazardous waste

[[Page 33293]]

boilers operating under good combustion conditions required under 
Sec. Sec.  266.104 and 63.1217 are generally protective. It also 
confirms our view that organic emissions from ECF boilers operating 
under the good combustion conditions discussed in Section II below 
should be protective.
3. Comparative Risk Assessment for Dioxin/Furan
    Finally, we also conducted an abbreviated comparative risk 
assessment for dioxin/furan emissions from boilers burning hazardous 
waste and that meet the design conditions for an ECF boiler discussed 
below in Section II--a watertube steam boiler that is not stoker-fired. 
The abbreviated evaluation used one component of the comparative risk 
evaluation used to support the Phase II hazardous waste combustor MACT 
for boilers \27\--the Margin of Exposure (MOE) analysis.\28\ The 
emission-adjusted MOE analysis uses the risk ``safety margins'' (i.e., 
modeled MOEs) determined from the MACT Phase I comprehensive risk 
assessment for hazardous waste incinerators \29\ to determine whether, 
considering emissions alone, risks for a second universe, here, the ECF 
boilers, could rise to a level of concern.\30\ Smaller MOEs correspond 
to a greater potential for risk beyond the level of concern (i.e., 1E-
05 lifetime cancer risk). In this analysis, we: (1) Revised the dioxin/
furan emissions data base for Phase II hazardous waste boilers to 
establish a data base of boilers that meet the ECF boiler design 
conditions (i.e., by eliminating boilers other than watertube steam 
boilers that are not stoker-fired) and by adding dioxin/furan emissions 
data obtained during the evaluation of risk burns for hazardous waste 
boilers, as discussed above; (2) calculated point estimates and 
confidence intervals for the revised emissions data base; (3) combined 
the Phase I incinerator data base with the revised (i.e., ECF) boiler 
data base and conducted tests for common generalized percentiles; and 
(4) adjusted the MOE, if appropriate.\31\ The analysis indicates that 
the emissions-adjusted MOEs representing the ECF boilers are higher 
than the MOEs for the Phase I incinerators. This suggests a lower 
potential for risk for the ECF boilers compared to hazardous waste 
incinerators. This means that, within the limitations of the analyses, 
dioxin/furan emissions from ECF boilers pose no greater hazard than the 
emissions from hazardous waste incinerators, and therefore, should 
remain within levels that are protective.
---------------------------------------------------------------------------

    \27\ See 70 FR at 59536-37 (October 12, 2005).
    \28\ USEPA, ``Assessment of the Potential Costs, Benefits, & 
Other Impacts of the Hazardous Waste Combustion MACT Final Rule 
Standards,'' September 2005, Chapter 6.
    \29\ RTI International, ``Inferential Risk Analysis in Support 
of Standards for Hazardous Air Pollutant Emissions from Hazardous 
Waste Combustion,'' June 2005, Section 1.
    \30\ It must be emphasized that emission-adjusted MOEs should 
not be construed as predictions of the level of risk. Instead, they 
are only intended to provide an indication of whether risks could 
exceed a level of concern based on simplifying assumptions and as 
such, are subject to some level of uncertainty.
    \31\ See USEPA, USEPA, ``Draft Technical Support Document for 
Expansion of the Comparable Fuel Exclusion,'' May 2007, Section 
5.3.4.
---------------------------------------------------------------------------

    Based on this information--comparison of emissions concentrations 
from hazardous waste boilers and oil-fired boilers; evaluation of 
omnibus risk assessments; and evaluation of dioxin/furan risk--we 
conclude that emissions from burning ECF in a boiler under the 
conditions proposed today would be comparable to fuel oil emissions and 
would be generally protective of human health and the environment. We 
specifically request additional data and comment on our analyses and 
conclusions.

II. What Conditions Would Apply to Burners of Emission-Comparable Fuel?

    The ECF exclusion proposed today would be conditioned on burning 
ECF under conditions typical of a fuel oil-fired industrial boiler 
operating under good combustion conditions. The ECF conditions would 
ensure that the boiler maintains a hot, stable flame, and that ECF is 
properly atomized and fired into that flame. In addition, post-
combustion conditions would minimize the potential for dioxin/furan 
formation by controlling the combustion gas temperature at the inlet to 
a dry particulate matter control device for boilers so-equipped. 
Accordingly, we propose the following conditions: (1) The burner must 
be a watertube steam boiler other than a stoker-fired boiler; (2) 
carbon monoxide (CO) 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); (3) the boiler must 
fire at least 50% primary fuel on a heat input or volume basis, 
whichever results in a higher volume of primary fuel, and the primary 
fuel must be fossil fuel or tall oil with a heating value not less than 
8,000 Btu/lb; (4) the boiler load must be 40% or greater; (5) the ECF 
must have an as-fired heating value of 8,000 Btu/lb or greater; (6) ECF 
must be fired into the primary fuel flame zone; (7) the ECF firing 
system must provide proper atomization; and (8) if the boiler is 
equipped with an electrostatic precipitator (ESP) or fabric filter (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. These 
conditions are consistent with oil-fired industrial boiler design and 
operating conditions that ensure good combustion (and post-combustion 
control of dioxin/furan) and ensure that emissions from burning ECF are 
comparable to fuel oil emissions.\32\ In addition, as discussed in the 
previous section, such emissions would be at levels which are 
protective of human health and the environment.
---------------------------------------------------------------------------

    \32\ Given that burning ECF under the proposed conditions will 
destroy toxic organic compounds in the ECF generally to trace 
levels, we are proposing that burning excluded fuel that was derived 
from a hazardous waste listed under Sec. Sec.  261.31-261.33 does 
not subject boiler residues, including bottom ash and emission 
control residues, to regulation as derived-from hazardous waste. See 
proposed Sec.  261.38(b)(12).
---------------------------------------------------------------------------

    The boiler design and operating conditions that ensure a hot, 
stable flame and good combustion of ECF (i.e., all of the conditions, 
except the condition to minimize post-combustion formation of dioxin/
furan by limiting the gas temperature at the inlet to the ESP or FF) 
derive from extensive testing that EPA conducted in the mid-1980's to 
identify design and operating parameters that affect the combustion of 
hazardous organic compounds in waste fuels fired as supplementary fuel 
in boilers. See 52 FR at 16995-96 (May 6, 1987). EPA used the results 
of that testing to identify design and operating conditions that would 
ensure that waste fuel is properly atomized and fired into a hot, 
stable flame to ensure destruction of hazardous organics in the waste 
fuel to trace levels and to minimize formation of products of 
incomplete combustion (PICs) to levels that would not pose a hazard to 
human health or the environment.
    Those operating conditions also reflect typical operations for an 
oil-fired industrial boiler operating under good combustion conditions: 
(1) As discussed below, CO levels below 100 ppmv are typically achieved 
by oil-fired industrial boilers; (2) the oil fuel provides a hot, 
stable flame; and (3) boilers generally operate at loads greater than 
40% and can experience poor combustion conditions at lower loads. The 
design conditions--the boiler must be a watertube steam boiler that is 
not stoker-fired--also reflect industrial

[[Page 33294]]

boiler designs that help ensure optimum combustion efficiency. See 
discussion below in Section B.1.

A. Why Isn't a DRE Performance Test a Critical Requirement To Ensure 
Good Combustion Conditions?

    EPA concluded from the boiler testing discussed above that: (1) 
Boilers cofiring hazardous waste fuels with fossil fuels where the 
hazardous waste provides less than 50 percent of the boiler's fuel 
requirements can achieve 99.99 percent destruction and removal 
efficiency (DRE) of POHCs (principal organic hazardous constituents) 
under a wide range of operating conditions (e.g., load changes, waste 
feed rate changes, excess air rate changes); (2) when boilers are 
operated at high combustion efficiency, as evidenced by flue gas carbon 
monoxide (CO) levels of less than 100 ppmv, DRE exceeds 99.99 percent; 
(3) boilers clearly operating under poor combustion conditions, as 
evidenced, for example, by smoke emissions, still achieved 99.99 
percent DRE: (4) emissions of PICs appeared generally to increase as 
combustion efficiency decreased as evidenced by increased flue gas CO 
levels; and (5) emission of total unburned hydrocarbons (i.e., 
quantified Part 261, Appendix VIII pollutants, as well as unburned 
POHCs and other unburned organic compounds) may increase as combustion 
efficiency decreases as evidenced by an increase in flue gas CO levels. 
See 52 FR at 16995.
    These results confirm that a 99.99% DRE regulatory requirement 
(coupled with compliance with limits on operating conditions 
established during the DRE performance test) has limited utility for 
ensuring that a combustor operates under the good combustion conditions 
necessary to destroy both hazardous organics in the fuel feed and PICs 
to levels that are protective of human health.\33\ EPA has explained, 
however, why a limit on carbon monoxide emissions (i.e., 100 ppmv, 
hourly rolling average) is a conservative indicator of good combustion 
conditions for boilers (and other combustors) that will result in 
destruction of both POHCs and PICs. See 52 FR at 16998; 70 FR at 59461-
463. Of the four combustion failure modes that EPA has identified--
total ignition failure, partial ignition failure, combustion air 
failure, and rapid quench failure--only a total ignition failure could 
result in low CO and poor combustion of POHCs and PICs.\34\ Total 
ignition failure could potentially occur in a boiler if the fuel firing 
gun inadvertently directed the fuel to a location in the combustion 
chamber away from the flame zone--i.e., if the fuel were not fired into 
the flame zone. The other combustion failure modes result in high CO 
and potentially high unburned organics: \35\ partial ignition failure; 
combustion air failure; and rapid quench failure. Thus, it is important 
to ensure that waste fuels are fired into the flame zone of a boiler 
when relying on CO emission levels to ensure good combustion conditions 
(and that 99.99% DRE is achieved), as proposed for ECF boilers.
---------------------------------------------------------------------------

    \33\ We note that, for this reason, hazardous waste boilers are 
currently exempt from the requirement to demonstrate 99.99% DRE if 
the boiler complies with specific design and operating conditions, 
including the principal organic emission control requirement of 
continuously monitoring CO and compliance with a limit of 100 ppmv. 
See Sec.  266.110. We note further that the ECF boiler conditions 
proposed today are at least as stringent as the conditions provided 
by Sec.  266.110.
    \34\ See USEPA, USEPA, ``Draft Technical Support Document for 
Expansion of the Comparable Fuel Exclusion,'' May 2007, Appendix A.
    \35\ Because CO is more thermally stable than other intermediate 
combustion products, high CO emissions may or may not be indicative 
of high PIC emissions. If CO is low, however, combustion has 
progressed to the point that PIC emissions will be low (assuming 
total ignition failure is avoided). Thus, CO is considered a 
conservative indicator of good combustion. See 52 FR at 16998.
---------------------------------------------------------------------------

B. What Is the Rationale for the Proposed Burner Conditions?

    From the discussion above, it could be argued that the only 
controls needed to ensure good combustion conditions and destruction of 
hazardous organics in ECF would be continuous monitoring of carbon 
monoxide and a requirement to fire ECF into the flame zone to avoid 
total ignition failure. Notwithstanding this view, we believe it is 
appropriate to apply additional controls to help ensure that an ECF 
boiler operates under the good combustion conditions typical of an oil-
fired industrial boiler given that ECF would be burned under a 
conditional exclusion absent a RCRA permit and the regulatory oversight 
typical for a RCRA hazardous waste combustor. The proposed conditions 
would help ensure good combustion conditions by requiring that ECF has 
substantial heating value and that it is fired into a hot, stable 
flame. There are many industrial boilers that meet the design criteria 
(i.e., watertube steam boiler that is not stoker-fired) and the 
operating conditions generally reflect standard operating practice. The 
proposed conditions consequently are analogous to conditions under 
which fuel oil, the commercial product for which ECF substitutes, are 
burned. Furthermore, more than 90% of the candidate waste fuel streams 
identified by generators had heating values greater than 8,000 Btu/
lb.\36\
---------------------------------------------------------------------------

    \36\ Letter from American Chemistry Council (Carter Lee Kelly, 
Leader, Waste Issues Team, and Robert A. Elam, Director, Regulatory 
Affairs, Waste Issues Team) to Robert Springer and Matt Hale, USEPA, 
dated November 24, 2003.
---------------------------------------------------------------------------

    The rationale for each of the proposed burner conditions is 
discussed below. We specifically request comment on each of these 
proposed conditions.
1. ECF Must Be Burned in a Watertube Steam Industrial or Utility Boiler 
That Is Not Stoker-Fired
    A condition of the proposed exclusion would require the ECF burner 
to be a watertube steam boiler that does not fire fuels using a stoker 
or spreader-stoker feed system.\37\ ECF also must be burned in a boiler 
rather than in an industrial furnace, such as a cement kiln, because 
the Agency conducted nonsteady-state emissions tests (as part of the 
boiler testing program discussed above) to identify the parameters that 
affect combustion efficiency only for boilers. Industrial furnaces have 
a primary purpose other than burning fuels most efficiently and we have 
not determined the operating conditions that would ensure good 
combustion conditions absent the regulatory oversight provided by the 
RCRA hazardous waste permit program.
---------------------------------------------------------------------------

    \37\ Stoker-fired boilers are designed to burn solid fuels 
(including coal, wood, municipal wastes, etc.) on a bed. Stokers are 
mechanical or pneumatic devices that feed solid fuels onto a grate 
at the bottom of the furnace and remove the ash residue after 
combustion. See USEPA, USEPA, ``Draft Technical Support Document for 
Expansion of the Comparable Fuel Exclusion,'' May 2007, Section 
3.3.2.
---------------------------------------------------------------------------

    The boiler must be a watertube, nonstoker boiler because 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. In particular, stoker and spreader-stoker 
boilers generally burn solid fuels with a relatively large particle 
size on a bed, thus making even distribution of combustion air 
difficult. See 56 FR at 7148.
    The boiler must be a steam boiler rather than a process heater 
because process heaters can have a primary purpose other than to burn 
fuels under optimum combustion conditions. An example is a process 
heater that quenches combustion gases to reduce gas temperatures to 
avoid overheating a process fluid. Such operating conditions could 
adversely affect combustion efficiency by interrupting the complete 
combustion of organic compounds.
    Finally, the boiler must be an industrial or utility boiler as 
currently

[[Page 33295]]

required under the comparable fuel exclusion. See proposed Sec.  
261.38(c)(2)(i). This would ensure that ECF is burned in boilers that 
are capable of handling this type of fuel (e.g., rather than boilers at 
schools, apartments, or hospitals) and that would be subject to 
Federal, state, or local air emission requirements.
    We request comment on whether there are other types of combustors 
(e.g., thermal oxidizer) that may be able to burn ECF under the good 
combustion conditions comparable to an industrial watertube steam 
boiler (that is not of stoker design). Any suggestions for other types 
of combustors must include supporting information in order for the 
Agency to be able to consider it for final action.
2. CO Monitoring
    A condition of the proposed exclusion would require that combustion 
gas CO be monitored continuously, that the CO recordings be linked to 
an automatic ECF feed cutoff system, and that CO emissions not exceed 
100 ppmv on an hourly rolling average (corrected to 7% oxygen). As 
discussed above, low CO emissions, coupled with firing ECF in the 
primary fuel flame zone, are the primary controls for ensuring that the 
boiler is operating under good combustion conditions.
    EPA has used continuous CO monitoring as an indicator of good 
combustion for various types of combustors, including boilers that burn 
hazardous waste and boilers that do not burn hazardous waste. See 70 FR 
at 59463-64 for a discussion of using CO to control organic HAP under 
the NESHAP for hazardous waste boilers,\38\ and 68 FR at 1671 for a 
similar discussion in the context of the NESHAP for boilers that do not 
burn hazardous waste. We note that the NESHAP for boilers that do not 
burn hazardous waste (i.e., Industrial Boiler NESHAP) requires 
continuous CO monitoring only for new solid, liquid, or gas boilers 
with a capacity greater than 100 MM Btu/hr. The CO limit is 400 ppmv 
corrected to 3% oxygen for oil and gas boilers and 400 ppmv corrected 
to 7% oxygen for solid fuel boilers, and is based on a 30-day average. 
Boilers with a capacity in the range of 10 MM Btu/hr to 100 MM Btu/hr 
comply with the CO limit based on a 3-run average during periodic 
performance testing. See Table 1 to Subpart DDDDD, Part 63. EPA did not 
establish a CO limit for existing boilers that do not burn hazardous 
waste because: (1) CO monitoring was not floor control given that 
inadequate information was available to conclude that 6% of the sources 
were equipped with CO monitors or that 6% of the sources were subject 
to state standards for CO monitoring; and (2) CO monitoring did not 
appear to be cost-effective as a beyond-the-floor control technique. 
For new sources where MACT floor is based on the performance of the 
single best performing source within a category or subcategory, EPA 
established CO monitoring requirements based on the most stringent 
state standards for CO monitoring that applied to all large boilers 
(i.e., greater than 10 MM Btu/hr) in a subcategory (i.e., solid fuel, 
liquid, and gas boilers) and to all fuel types burned by boilers within 
the subcategory (e.g., for solid fuel boilers, coal, wood, and other 
biomass).\39\
---------------------------------------------------------------------------

    \38\ The NESHAP for hazardous waste boilers allow sources to 
continuously monitor total hydrocarbons and comply with a limit of 
10 ppmv in lieu of continuously monitoring CO and complying with a 
limit of 100 ppmv. See Sec. Sec.  63.1216(a)(5) and 63.1217(a)(5). 
We are not proposing a total hydrocarbon alternative for ECF 
boilers, however, because very few, if any, hazardous waste boilers 
elect that alternative given the complexity of maintaining a 
continuous hydrocarbon monitor. In addition, boilers that are 
designed to rapidly quench the combustion gas temperature and thus 
cannot achieve CO levels below 100 ppmv have no choice other than to 
monitor hydrocarbons if they burn hazardous waste fuels. But, these 
boilers may not be appropriate candidates for burning ECF even if 
they achieve hydrocarbon levels below 10 ppmv absent the regulatory 
oversight of a RCRA or Title V permit given that they are not 
designed to achieve optimum combustion efficiency. Nonetheless, we 
request comment on whether the rule, if finalized, should allow ECF 
boilers the option of continuously monitoring hydrocarbons and 
complying with a limit of 10 ppmv as an alternative to CO 
monitoring.
    \39\ See 68 FR at 1673 and the memorandum from Jim Eddinger, 
EPA, to Docket No. OAR-2002-0058 entitled, ``Revised MACT Floor 
Analysis for the Industrial, Commercial, and Institutional Boilers 
and Process Heaters National Emission Standards for Hazardous Air 
Pollutants Based on Public Comments,'' dated February 2004, pp. 18-
19.
---------------------------------------------------------------------------

    Notwithstanding the 400 ppmv CO limit (based on a 30-day average or 
periodic performance testing \40\) applicable to new industrial boilers 
that do not burn hazardous waste, a 100 ppmv limit (based on an hourly 
rolling average) is appropriate for ECF burners because: (1) The 
limited CO data in the Industrial Boiler NESHAP data base indicate that 
oil-fired boilers, the boiler subcategory most analogous to a boiler 
burning ECF, are achieving CO levels below 100 ppmv; \41\ (2) hazardous 
waste fuels that are proposed to be excluded as ECF are currently 
burned in boilers subject to a 100 ppmv (hourly rolling average) CO 
standard under RCRA Sec.  266.104, also indicating that a CO limit of 
100 ppmv is readily achievable; and (3) a tighter CO limit for ECF than 
the CO limit that applies to industrial boilers burning fossil fuels 
and nonhazardous waste fuels is appropriate given the greater potential 
for ECF emissions to pose a hazard to human health and the environment 
(i.e., it is reasonable and appropriate to tailor the management 
controls that apply to the most analogous product, fuel oil, to address 
the greater hazards posed by potentially high concentrations of 
hazardous organic compounds in ECF).\42\
---------------------------------------------------------------------------

    \40\ The 30-day averaging period for the Industrial Boiler 
NESHAP was adopted because boilers burning biomass under certain 
conditions (e.g., wet wood after a rain event) could not achieve the 
CO limit over a shorter averaging period. This situation is not 
relevant here. ECF boilers that burn fuel oil or natural gas as 
primary fuel can readily achieve a 100 ppmv CO limit over an hourly 
rolling average.
    \41\ See USEPA, USEPA, ``Draft Technical Support Document for 
Expansion of the Comparable Fuel Exclusion,'' May 2007, Section 3.4. 
Also, we note that EPA adopted the 400 ppmv CO limit for boilers 
that do not burn hazardous waste to accommodate the higher CO levels 
that can result from burning solids, particularly wet biomass after 
rain events. That scenario would not be applicable to a boiler 
burning ECF. ECF boilers can readily achieve CO levels below 100 
ppmv.
    \42\ The hazardous waste boiler emissions data we analyzed as a 
surrogate for ECF emissions data to determine if emission 
concentrations were comparable to fuel oil emissions were derived 
from hazardous waste boilers operating under a CO limit of 100 ppmv. 
If those boilers operated at higher CO levels and thus at lower 
combustion efficiency, emissions of toxic organic compounds may have 
been higher.
---------------------------------------------------------------------------

    We similarly do not believe that periodic rather than continuous CO 
monitoring would be appropriate for ECF boilers, even though periodic 
CO monitoring is allowed under the Industrial Boiler NESHAP to boilers 
in the size range of 10 MM Btu/hr to 100 MM Btu/hr. As discussed above, 
low CO emissions, combined with the requirement to fire ECF into the 
primary fuel flame zone, is the principal indicator of good combustion 
conditions. Periodic CO monitoring would ensure good combustion 
conditions only periodically--combustion conditions could deteriorate 
an hour, day, or week after the periodic performance test. Given the 
potential hazards that burning ECF under poor combustion conditions can 
pose compared to fossil fuels and nonhazardous waste fuels, and given 
the variability in combustion characteristics that ECF may have over 
time relative to the primary fuel, it is reasonable to condition the 
exclusion on continuous CO monitoring.\43\ Nonetheless, we specifically 
request comment on whether periodic rather than continuous

[[Page 33296]]

CO monitoring should be allowed for ECF boilers in the size range of 10 
MM Btu/hr to 100 MM Btu/hr, consistent with the Industrial Boiler 
NESHAP CO monitoring provisions for new boilers. 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 in order for the 
Agency to be able to consider it for final action.
---------------------------------------------------------------------------

    \43\ The Industrial Boiler NESHAP requires CO monitoring, albeit 
periodic monitoring, for all new boilers in the size range of 10 MM 
Btu/hr to 100 MM Btu/hr. The proposed continuous CO monitoring 
conditions for ECF boilers, irrespective of size, would apply only 
to those boilers that elect to burn ECF.
---------------------------------------------------------------------------

    Finally, we propose to specify that the CO monitor must be linked 
to an automatic ECF feed cutoff system to ensure that ECF is fired only 
when the boiler is operating under good combustion conditions--when CO 
levels are below 100 ppmv on an hourly rolling average. Linking the CO 
monitor to an automatic ECF feed cutoff system is appropriate given 
that emissions may be neither comparable to fuel oil nor protective if 
the boiler is not operating under good combustion conditions. An 
automatic feed cutoff system does not appear to be cost-prohibitive and 
would help assure effective combustion. We propose to adopt the 
provisions for automatic feed cutoff systems that apply to boilers that 
burn hazardous waste--Sec.  63.1206(c)(3)--and for the same reasons. 
See USEPA, ``Technical Support Document for HWC MACT Standards, Volume 
IV: Compliance with the HWC MACT Standards,'' July 1999, Chapter 11.
3. The Boiler Must Fire at Least 50% Primary Fuel
    A condition of the proposed exclusion would require an ECF boiler 
to fire at least 50% primary fuel on a heat input or volume basis, 
whichever results in a higher volume of primary fuel, and the primary 
fuel must be fossil fuel or tall oil with a heating value not less than 
8,000 Btu/lb. These conditions would ensure that a hot, stable flame is 
provided to help ensure optimum combustion conditions. Although a 
primary fuel firing rate of 50% is at the lower end of the range of 
reasonable values--50% to 75% primary fuel--that could have been 
selected, we believe it is a reasonable condition because it would 
ensure that the boiler is burning primarily fossil fuel (or equivalent) 
and so ensures a hot, stable flame.\44\ We also note that this 
condition would be consistent with the primary fuel requirement for 
hazardous waste boilers under Sec.  266.110 that elect to waive the DRE 
performance standard under operating conditions that ensure optimum 
combustion efficiency.
---------------------------------------------------------------------------

    \44\ ECF could be cofired with other fuels, including waste 
fuels, that may not have combustion characteristics comparable to 
fuel oil, natural gas, or ECF. Thus, absent a condition that at 
least 50% of the fuel must have a heating value of 8,000 Btu/lb or 
greater, a hot, stable flame into which ECF would be fired could not 
be assured.
---------------------------------------------------------------------------

    The primary fuel would be required to have a minimum heating value 
of 8,000 Btu/lb to reflect the low end of the range of heating values 
for fossil fuels normally fired in industrial boilers. Most coal-fired 
industrial boilers burn either subbituminous coal (with heating values 
ranging from 8,300-11,500 Btu/lb) or bituminous coal (with heating 
values ranging from 10,500 to 14,000 Btu/lb). Lignite, a low-rank coal 
that typically has a heating value below 8,000 Btu/lb, is not commonly 
burned in industrial boilers.
    Although we believe that the primary fuel would generally be fossil 
fuel--oil, natural gas, or coal (i.e., pulverized coal burned in 
suspension)--it is reasonable to allow other high-quality fuels as the 
primary fuel. Consequently, tall oil would also be allowed as a primary 
fuel. Tall oil is fuel derived from vegetable and rosin fatty acids and 
has a heating value comparable to fuel oil.
    We specifically request comment on whether a condition to require a 
minimum of 50% primary (generally fossil) fuel is appropriate to 
maintain a hot, stable flame to ensure good combustion of ECF. Any 
comments recommending an alternative minimum limit for the primary fuel 
firing rate must include supporting information in order for the Agency 
to be able to consider it for final action.
4. The Boiler Load Must Be 40% or Greater
    A condition of the proposed exclusion would require the ECF boiler 
to operate at 40% load (i.e., the heat input at any time when ECF is 
fired must be at least 40% of the maximum rated boiler heat input) or 
greater to ensure a hot, stable flame. At low loads, higher excess air 
rates are used to improve fuel/air mixing. The increased excess air 
rates, however, can also cool the flame zone and even make the flame 
unstable (e.g., as a candle flame flickers in a breeze), thereby 
increasing the likelihood of flameout. These conditions can result in 
reduced combustion efficiency. Although a lower boiler load could have 
been selected within the reasonable range of 25% to 40% of maximum 
load, we believe it is appropriate to adopt a value at the high end of 
the range to be conservative given that ECF can contain concentrations 
of certain hydrocarbons and oxygenates higher than the specifications 
listed in Table 1 to Sec.  261.38. We also note that a minimum load 
requirement of 40% would be consistent with the requirement for 
hazardous waste boilers under Sec.  266.110 that elect to waive the DRE 
performance standard under operating conditions that ensure optimum 
combustion efficiency.
    We specifically request comment on whether a condition on minimum 
boiler load of 40 percent is appropriate to maintain a hot, stable 
flame and thus ensure good combustion conditions. Any comments 
recommending an alternative minimum boiler load must include supporting 
information in order for the Agency to be able to consider it for final 
action.
5. The ECF Must Have an As-Fired Heating Value of 8,000 Btu/lb or 
Greater
    A condition of the proposed exclusion would require the ECF to have 
an as-fired heating value of 8,000 Btu/lb or greater. This is a 
reasonable minimum heating value that could have been selected within 
the range of 5,000 Btu/lb to 10,000 Btu/lb because: (1) It is the 
minimum heating value of fossil fuels normally fired in industrial 
boilers (i.e., subbituminous coal); and (2) it would help ensure that a 
hot, stable primary fuel flame is maintained. We also note that more 
than 90% of the candidate waste fuel streams identified by generators 
had heating values greater than 8,000 Btu/lb.\45\
---------------------------------------------------------------------------

    \45\ Letter from American Chemistry Council (Carter Lee Kelly, 
Leader, Waste Issues Team, and Robert A. Elam, Director, Regulatory 
Affairs, Waste Issues Team) to Robert Springer and Matt Hale, USEPA, 
dated November 24, 2003.
---------------------------------------------------------------------------

    Although ECF, like comparable fuel, would need to have a heating 
value of 5,000 Btu/lb as-generated (or after bona fide treatment as a 
hazardous waste), it must have a minimum heating value of 8,000 Btu/lb 
as-fired. Accordingly, ECF may be blended with fuels (including 
comparable fuel) other than hazardous waste to achieve an as-fired 
heating value of at least 8,000 Btu/lb. However, any fossil fuel used 
to blend ECF to achieve the minimum 8,000 Btu/lb heating value 
requirement could not be counted to achieve the proposed condition that 
the boiler must have a minimum firing rate of 50% primary fuel.
    We specifically request comment on whether a condition to require 
that ECF have an as-fired heating value of 8,000 Btu/lb or greater is 
appropriate to help ensure that the hazardous compounds that may be 
present in the ECF at high concentrations are destroyed to levels 
comparable to oil-fired boiler emissions. Any such comments on 
alternative ECF heating values must include supporting

[[Page 33297]]

information in order for the Agency to be able to consider it for final 
action.
6. ECF Must Be Fired Into the Primary Fuel Flame Zone
    As a condition of the proposed exclusion, ECF must be fired into 
the primary fuel flame zone to avoid, potentially, total ignition 
failure--a combustion failure mode characterized by poor combustion, 
high emissions of unburned organic compounds, but potentially low CO 
emissions. Under this combustion failure mode, organic compounds in ECF 
would not be exposed to the hot flame zone and may be simply 
volatilized absent combustion. Thus, under this failure mode, low CO 
emissions may not be indicative of good combustion conditions.
    As a practical matter, firing waste fuels (or any fuels) directly 
into the flame zone of the boiler is standard operating practice. 
Directing the fuel burner in a direction that avoided the flame zone 
would normally occur only inadvertently. Nonetheless, we believe it is 
prudent to propose this condition to highlight its importance in 
achieving good combustion conditions.
    We specifically request comment on whether a condition to require 
that ECF be fired into the primary fuel flame zone is appropriate to 
help ensure that the hazardous compounds that may be present in the ECF 
at high concentrations are destroyed to levels comparable to oil-fired 
boiler emissions. Any such comments must include supporting information 
in order for the Agency to be able to consider it for final action.\46\
---------------------------------------------------------------------------

    \46\ Please note that we also request comment on conditions 
(other than proper atomization) that may be appropriate for the ECF 
firing system in Part Two, Section VII, in response to comments from 
a peer reviewer.
---------------------------------------------------------------------------

7. The ECF Firing System Must Provide Proper Atomization
    As a condition of the proposed exclusion, the ECF firing system 
must provide proper atomization to ensure that the ECF droplets are not 
too large for optimum volatilization. An organic compound must be 
vaporized and mixed with air before combustion can occur. The quicker 
ECF and its constituents are vaporized and the more completely the 
volatilized compounds are mixed with air, the more rapid and efficient 
the combustion and destruction of organic constituents. Firing systems 
that atomize liquid fuels to form small droplets increase the rate of 
vaporization by providing a larger surface area per volume of fuel to 
absorb heat from the flame.
    We are proposing to allow the use of virtually all atomization 
systems commonly used to fire liquid fuels.\47\ We are, however, 
proposing to restrict the maximum size of solids that may be present in 
liquid fuels that meet the viscosity specification of 50 cSt--the as-
fired ECF must pass through a 200 mesh screen. This would ensure that 
the appropriate droplet size is achieved (to ensure volatilization and 
destruction of organic compounds) and minimize plugging of the firing 
nozzle. The acceptable atomization systems are air, steam, mechanical, 
or rotary cup atomization systems.\48\
---------------------------------------------------------------------------

    \47\ A simple lance (essentially an open pipe without any means 
of atomization), however, could not be used to fire ECF.
    \48\ Engineering Science, ``Background Information Document for 
the Development of Regulations to Control the Burning of Hazardous 
Waste in Boilers and Industrial Furnaces, Volume I: Industrial 
Boilers,'' January 1987, pp. 4-89 to 4-96.
---------------------------------------------------------------------------

    a. Air or steam atomization. Air or steam atomization systems use 
air or steam to break up the fuel into small droplets. Under ordinary 
operations, high pressure steam or air provided at 30 to 150 psig 
produces much smaller droplets than other atomization systems. Because 
of the cost of providing high pressure air and where steam is not 
readily available, low pressure (1-5 psig) burners are sometimes used.
    b. Mechanical atomization. Mechanical atomizers break up the fuel 
into small droplets by forcing it through a small, fixed orifice. A 
strong cyclonic or whirling velocity is imparted to the fuel before it 
is released through the orifice. Combustion air is provided around the 
periphery of the conical spray of fuel. The combination of combustion 
air introduced tangentially into the burner and the action of the 
swirling fuel produces effective atomization.
    The size of the droplets produced by mechanical atomization is a 
function principally of the fuel viscosity and the fuel pressure at the 
atomizing nozzle. The pressure required to produce a droplet size 
conducive to optimum combustion efficiency depends on the volatility of 
the fuel. Highly volatile materials can volatilize rapidly, even from 
larger droplets, and, thus, can be fired at pressures of 75 to 150 
psig. Less volatile fuels may require an atomization pressure as high 
as 1,000 psig to form droplets small enough to rapidly volatilize.
    Given that fuel pressure is an important factor in determining 
droplet size, we considered whether it would be appropriate to propose 
to limit the minimum fuel pressure as a condition of the exclusion.\49\ 
Optimum fuel pressure to produce an optimum droplet size, however, is a 
function of fuel volatility and fuel/air mixing. Thus, it is not 
practicable to propose specific limits on minimum fuel pressure. 
Rather, we are proposing that the boiler owner or operator be required 
to maintain fuel pressure within the atomization system design range 
considering the viscosity and volatility of the waste fuel, the fuel/
air mixing system, and other appropriate parameters. This approach 
would allow the atomization system manufacturer or designer (e.g., if 
designed and fabricated on-site) the necessary flexibility to determine 
an acceptable fuel pressure considering the specifics of the situation. 
If fuel pressure is not maintained at appropriate levels to ensure 
small droplet size and optimum combustion efficiency or, if for any 
other reason the boiler does not achieve maximum combustion efficiency, 
the boiler may not be able to achieve CO levels below 100 ppmv.
---------------------------------------------------------------------------

    \49\ Mechanical atomizers are susceptible to erosion of the 
orifices in the firing nozzle. Erosion can increase the size of the 
orifice resulting in decreased fuel pressure and increased droplet 
size. Limits on minimum fuel pressure, thus, would ensure that 
droplet size remains optimized during the course of operations by 
either increasing fuel pressure as the nozzle erodes and, more 
likely, replacing an eroded firing nozzle.
---------------------------------------------------------------------------

    c. Rotary cup atomization. The rotary cup atomizer uses centrifugal 
force to break up the fuel into droplets. It consists of an open cup 
mounted on a hollow shaft. The fuel is pumped at low pressure through 
the hollow shaft to the cup which is rotating at several thousand 
revolutions per minute. A thin film of the fuel is centrifugally torn 
from the tip of the cup. As centrifugal force drives the fuel off the 
cup, combustion air is admitted in a rotation counter to the direction 
of the cup. This counter motion of the air breaks up the conical sheets 
of fuel into droplets and provides turbulence for mixing the droplets 
with air.
    Rotary cup atomizers are typically used on smaller boilers (e.g., 
less than 30 MM Btu/hr heat input) because the maximum capacity of the 
largest unit is about 1,400 pounds of fuel per hour. In addition, 
rotary cup atomizers are not often installed on new boilers because it 
is difficult to achieve optimum fuel/air mixing over a wide range of 
fuel flow rates. Rotary cup atomizers are used because they are 
relatively inexpensive, they can handle fuels with relative high 
viscosities ranging up to 40 to 72 cSt,\50\

[[Page 33298]]

and they are relatively insensitive to solid impurities in the fuel and 
can handle waste fuels with solids that can pass through a 34 to 100 
mesh screen.\51\
---------------------------------------------------------------------------

    \50\ ECF could not have a viscosity exceeding 50 cSt given that 
it would be subject to the same specifications that apply to 
existing comparable fuel, except that the specifications for certain 
hydrocarbons and oxygenates would not apply.
    \51\ We propose that ECF must be able to pass through a 200 mesh 
(74 micron) sieve to ensure that particles are small enough to 
ensure volatilization and destruction of organic compounds.
---------------------------------------------------------------------------

    Droplet size is related primarily to the viscosity and flow rate of 
the fuel and rotational speed of the cup. Resulting combustion 
efficiency is related to volatility of the fuel and fuel/air mixing. 
Although it is impracticable to control these variables in a regulatory 
context, manufacturers and boiler owners and operators have ample 
experience with rotary cup atomizers to design units that achieve 
efficient combustion. Thus, we are proposing that owners and operators 
demonstrate that the as-fired fuel has a volatility within the design 
parameters of the firing system and limit fuel flow rates consistent 
with the design parameters of the firing system. As discussed above, 
relative to mechanical atomization systems, if, in fact, the device 
does not produce droplet sizes and fuel/air ratios conducive to 
maintaining high combustion efficiency, the boiler may not be able to 
achieve CO levels below 100 ppmv.
    We specifically request comment on whether these conditions for 
atomization of ECF are appropriate to help ensure that the hazardous 
compounds that may be present in the ECF at high concentrations are 
destroyed to levels comparable to oil-fired boiler emissions. Any such 
comments must include supporting information in order for the Agency to 
be able to consider it for final action.\52\
---------------------------------------------------------------------------

    \52\ Please note that we also request comment on conditions that 
may be appropriate for the ECF firing system in Part Two, Section 
VII, in response to comments from a peer reviewer.
---------------------------------------------------------------------------

8. Dioxin/Furan Controls for Boilers Equipped With an ESP or FF
    If a boiler is equipped with an electrostatic precipitator (ESP) or 
fabric filter (FF) and does not fire coal as the primary fuel,\53\ we 
are proposing that the combustion gas temperature at the inlet to the 
ESP or FF be continuously monitored, be linked to the automatic ECF 
feed cutoff system, and not exceed 400 [deg]F on an hourly rolling 
average. These proposed conditions would ensure that the post-
combustion, heterogeneous surface-catalyzed formation of dioxin/furan 
in an ESP or FF is minimized so that emissions from burning ECF remain 
at least comparable to those from burning fossil fuels and remain at 
levels that are protective of human health and the environment.
---------------------------------------------------------------------------

    \53\ Note that oil-fired boilers are generally not equipped with 
a particulate matter control device and that the fraction that are 
so-equipped are typically equipped with wet scrubbers rather than an 
ESP or FF. Thus, we would expect that this condition would only 
apply to a small percentage of boilers that choose to burn ECF. See 
the memorandum from Jim Eddinger, EPA, to EPA Docket No. OAR-2002-
0058, entitled, ``Revised MACT Floor Analysis for the Industrial, 
Commercial, and Institutional Boilers and Process Heaters National 
Emission Standards for Hazardous Air Pollutants Based on Public 
Comments,'' dated February 2004, Section 6.4.2.
---------------------------------------------------------------------------

    We are basing these proposed conditions on information and data 
gathered from the recently promulgated NESHAP standards for hazardous 
waste combustors. See 70 FR 59402. Specifically, we have determined 
that the surface-catalyzed formation of dioxins/furans across an ESP or 
FF can be significant when gas temperatures exceed 400 [deg]F.\54\ When 
gas temperatures are below 400 [deg]F (and the combustor is operating 
under good combustion conditions as evidenced by CO below 100 ppmv), 
however, dioxin/furan emissions are generally below 0.40 ng TEQ/dscm, 
the emission standard for most hazardous waste combustors.\55\
---------------------------------------------------------------------------

    \54\ USEPA, ``Technical Support Document for HWC MACT Standards, 
Volume III: Selection of MACT Standards and Technologies,'' July 
1999, Section 3.0; USEPA, ``Technical Support Document for HWC MACT 
Standards, Volume IV: Compliance with the HWC MACT Standards,'' 
September 2005, Section 3.2, and USEPA, ``Technical Support Document 
for HWC MACT Standards, Volume III: Selection of MACT Standards,'' 
September 2005, Section 13.3.1.1.
    \55\ See Sec. Sec.  63.1217, 63.1219, and 63.1220. See also 
USEPA, USEPA, ``Draft Technical Support Document for Expansion of 
the Comparable Fuel Exclusion,'' May 2007, Section 5.
---------------------------------------------------------------------------

    Boilers burning coal as the primary fuel would not be required to 
monitor combustion gas temperature at the inlet to an ESP or FF as a 
condition of the exclusion, however. We determined during development 
of the NESHAP for coal-fired boilers that burn hazardous waste that 
sulfur contributed by the coal is a dominant control mechanism because 
the sulfur inhibits formation of dioxins/furans.\56\ Please note, 
however, that a peer reviewer questioned whether the low sulfur coal 
that some ECF boilers may burn would also inhibit formation of dioxins/
furans. We believe that low sulfur coals would also inhibit formation 
of dioxins/furans (and, thus, a condition to limit the gas temperature 
at the inlet to the ESP or FF would not be needed), but request comment 
and supporting information on opposing views. See discussion in Section 
VII below.
---------------------------------------------------------------------------

    \56\ USEPA, ``Technical Support Document for HWC MACT Standards, 
Volume III: Selection of MACT Standards,'' September 2005, Section 
14.1.1.
---------------------------------------------------------------------------

    We are further proposing an hourly averaging period for the 
temperature limit, rather than a longer averaging period, because there 
is a nonlinear relationship between gas temperature at the ESP or FF 
and dioxin/furan emissions. Consequently, a longer averaging period 
would allow higher temperatures to be offset by lower temperatures, 
even though dioxin/furan emissions at the higher temperatures could be 
exponentially higher than emissions at the lower temperatures, and, 
thus, average dioxin/furan emissions would be substantially higher than 
if temperatures had been maintained at the average temperature.\57\
---------------------------------------------------------------------------

    \57\ USEPA, ``Technical Support Document for HWC MACT Standards, 
Volume IV: Compliance with the HWC MACT Standards,'' September 2005, 
Section 2.2.3.
---------------------------------------------------------------------------

    We also believe that there are factors other than high gas 
temperature at the inlet to an ESP or FF that may contribute to the 
post-combustion formation of dioxin/furan in boilers, but these 
situations would not occur for boilers burning ECF under the proposed 
conditions. For example, we have dioxin/furan emissions data for nine 
three-run test conditions for eight boilers burning liquid hazardous 
waste fuel and equipped with wet scrubbers, and two of the boilers have 
emissions exceeding 0.40 ng TEQ/dscm.\58\ Although the wet scrubbers on 
these boilers preclude surface-catalyzed dioxin/furan formation across 
the emission control device, the boilers nonetheless have high dioxin/
furan emissions--1.4 ng TEQ/dscm and 0.44 ng TEQ/dscm. We note, 
however, that both of these boilers are firetube boilers and one burns 
waste fuel containing 60% by weight chlorine. Firetube boilers would 
not be allowed to burn ECF under the conditions proposed today for 
reasons discussed above and, in addition, the chlorine level in the 
waste fuel for one of the boilers is orders of magnitude higher than 
the specification for chlorine in Table 1 to Sec.  261.38.\59\ It is 
speculated that the higher tube surface to combustion gas

[[Page 33299]]

volume ratio for a firetube boiler compared to a watertube boiler may 
increase the possibility of combustion gas flow over particulate matter 
that has adhered to the tubes within the 400-750 [deg]F temperature 
window, which is conducive to surface-catalyzed formation of dioxins/
furans.
---------------------------------------------------------------------------

    \58\ USEPA, ``Draft Technical Support Document for Expansion of 
the Comparable Fuel Exclusion, May 2007, Section 5.
    \59\ Although chlorine content of the feed is generally not 
considered a primary factor in formation of dioxin/furan (especially 
when other factors may predominate, such as high gas temperature at 
the inlet to the ESP or FF) because extremely small amounts of 
chlorine are sufficient to provide the chlorine for dioxin/furan 
formation, we are nonetheless concerned enough about chlorine 
content in the feed to require that hazardous waste combustors 
operate within the range of normal chlorine federate levels during 
performance testing to document compliance with the dioxin/furan 
emission standard. Thus, chlorine content of the feed may be a 
significant factor that could affect dioxin/furan formation. See 
USEPA, ``Technical Support Document for HWC MACT Standards, Volume 
IV: Compliance with the HWC MACT Standards,'' September 2005, 
Section 3.3.
---------------------------------------------------------------------------

    We also have dioxin/furan emissions data for 11 three-run test 
conditions for six different boilers that burn hazardous waste and that 
are equipped with an ESP or FF. Gas temperatures at the ESP or FF were 
generally below 400 [deg]F.\60\ Only two test conditions (from two 
boilers) were above 0.4 ng TEQ/dscm. One boiler (which would be 
ineligible to burn ECF because it is a firetube boiler) had emissions 
of 0.66 ngTEQ/dscm during one test condition. This unit burns mixed 
waste with levels of chlorine and metals above the specifications in 
Table 1 to Sec.  261.38. The second boiler (a watertube boiler), 
however, had average emissions of 2.4 ng TEQ/dscm. Although the FF for 
this boiler was operated slightly above 400 [deg]F, we note that this 
boiler burned waste fuel containing nickel at levels orders of 
magnitude higher than the specification identified in Table 1 to Sec.  
261.38. Nickel, as well as copper and iron, have been suggested to be 
responsible for the catalytic reactions that lead to post-combustion 
formation of dioxins/furans.\61\
---------------------------------------------------------------------------

    \60\ USEPA, ``Draft Technical Support Document for Expansion of 
the Comparable Fuel Exclusion, May 2007, Section 5.3.3.
    \61\ USEPA, ``Technical Support Document for HWC MACT Standards, 
Volume IV: Compliance with the HWC MACT Standards,'' September 2005, 
p. 3-17.
---------------------------------------------------------------------------

    Therefore, based on the data described above, we believe that the 
scenarios that resulted in high dioxin/furan emissions when burning 
hazardous waste fuels would not occur for ECF boilers and that a 
proposed condition that would limit the gas temperatures at the inlet 
to a dry particulate matter control device to 400 [deg]F should control 
dioxin/furan emissions generally to below 0.40 ng TEQ/dscm.\62\ 
Moreover, we note that we have dioxin/furan emissions data for 38 
three-run test conditions representing 32 different boilers burning 
hazardous waste fuel and not equipped with an emissions control device 
where the test condition average emissions were quite low--below 0.10 
ng TEQ/dscm. In addition, we have dioxin/furan emissions data for 15 
runs for oil-fired industrial boilers (i.e., not burning hazardous 
waste), and the average emissions were 0.013 ng TEQ/dscm and the 
maximum emissions were 0.042 ng TEQ/dscm.\63\ This is further 
confirmation indicating that dioxin/furan emissions from boilers 
burning ECF under the proposed conditions should be quite low.
---------------------------------------------------------------------------

    \62\ We discussed previously in the text in Part Two, Section 
I.B, that an abbreviated comparative risk assessment for dioxin/
furan emissions from hazardous waste boilers that meet the design 
conditions (i.e., watertube steam boiler that is not stoker-fired) 
for an ECF boiler indicates that dioxin/furan emissions from such a 
boiler are not likely to pose a hazard to human health or the 
environment.
    \63\ USEPA, ``Draft Technical Support Document for Expansion of 
the Comparable Fuel Exclusion, May 2007, Section 3.4.
---------------------------------------------------------------------------

III. What Restrictions Would Apply to Particular Hydrocarbons and 
Oxygenates?

    The toxicity, persistence and bioaccumulation potential for the 37 
hydrocarbons and oxygenates for which specifications have been 
established in Table 1 to Sec.  261.38 varies over a wide range. In 
addition, we acknowledge that when ECF with potentially higher 
concentrations of certain hydrocarbons and oxygenates than fuel oil is 
burned, even under good combustion conditions, emissions of hazardous 
organics maybe somewhat higher than those from burning fossil fuel 
because combustion is generally a percent-reduction process. Therefore, 
to ensure that the emissions from burning ECF as a fuel under the 
conditions proposed today remain protective, we propose to retain the 
specifications for compounds that can pose a high hazard--naphthalene 
and PAHs--and to restrict the firing rate of ECF containing 
concentrations of compounds that can pose a lower, but substantial 
hazard--benzene and acrolein. See Safe Food and Fertilizers, 353 F. 3d 
at 1271 (exclusion from the definition of solid waste can be justified 
by low risk posed by the recycling practice).
    We explain below the rationale for the approach we use to 
categorize the 37 hydrocarbons and oxygenates for which specifications 
are established in Table 1 to Sec.  261.38, according to their relative 
hazard to human health and the environment.

A. What Is the Rationale for the Relative Hazard Characterization 
Scheme?

    We categorized the 37 hydrocarbons and oxygenates for which 
specifications have been established in Table 1 to Sec.  261.38 as to 
their relative hazard.\64\ We assigned the highest hazard constituents 
to Category A, the constituents that pose intermediate hazard to 
Category B, and the other constituents to Category C. As mentioned 
above, we are proposing to retain the specifications for the Category A 
constituents, restrict the feedrate of the Category B constituents, and 
not apply the specifications in Table 1 to the Category C constituents. 
We discuss below the procedure for categorizing the constituents.
---------------------------------------------------------------------------

    \64\ Please note that we have conducted an independent peer 
review of our ranking procedures. See discussion in Part Two, 
Section VII, of the preamble.
---------------------------------------------------------------------------

    First, we used the Waste Minimization Prioritization Tool (WMPT) 
\65\ to rank the 37 hydrocarbons and oxygenates. The WMPT is a peer-
reviewed methodology which provides a screening-level assessment of 
potential chronic (i.e., long-term) risks to human health and the 
environment, considering the chemicals' toxicity, persistence and 
bioaccumulation potential.\66\
---------------------------------------------------------------------------

    \65\ USEPA, ``Waste Minimization Prioritization Tool Background 
Document for the Tier III PBT Chemical List,'' 2000.
    \66\ After several rounds of internal expert and public 
comments, EPA used the current version of the WMPT as the initial 
step in the process of identifying the initial pool of priority 
chemicals that are national priorities for voluntary pollution 
prevention activities across the agency. EPA determined the initial 
pool of priority chemical candidates based on their rank. The 
rankings are based on the higher of available scores for human 
health concern (i.e., the sum of the scores for persistence, 
bioaccumulation, and human toxicity) and ecological concern (i.e., 
the sum of the scores for persistence, bioaccumulation, and 
ecological toxicity). The priority chemical candidate pool was 
limited to those chemicals with WMPT scores of 8 or 9 (on a scale of 
3 to 9). For a more detailed description of the WMPT development 
process, see USEPA, ``Waste Minimization Prioritization Tool 
Background Document for the Tier III PBT Chemical List,'' 2000. The 
specific use of the current version of the WMPT rankings in 
developing the RCRA Prioirity Chemicals List is documented in the 
Tier III Chemical List Docket.
---------------------------------------------------------------------------

    The WMPT scoring method produces chemical-specific scores for a 
screening-level risk-based ranking of chemicals.\67\ The scoring method 
was designed to generate an overall chemical score that reflects the 
potential of a chemical to pose risk to either human health or 
ecological systems. A measure of human health concern is derived, 
consistent with the risk assessment paradigm, by jointly assessing the 
chemical's human toxicity and potential for exposure. Similarly, a 
measure of the ecological concern is derived by jointly assessing the 
chemical's ecological toxicity and potential for exposure. The WMPT 
uses a small number of relatively simple measures to represent the 
toxicity (e.g., oral Cancer Slope Factor) and exposure potential (e.g., 
Bioaccumulation Factor) of each chemical, consistent with a screening-
level approach and with other systems of this type.
---------------------------------------------------------------------------

    \67\ USEPA, ``Draft Technical Support Document for Expansion of 
the Comparable Fuel Exclusion,'' May 2007, Section 2.4.
---------------------------------------------------------------------------

    We then applied the procedures the Agency used to develop the 
Priority

[[Page 33300]]

Chemicals List \68\ from the WMPT scoring. Thus, we assigned 
constituents that scored an eight or nine to the high hazard category--
Category A.
---------------------------------------------------------------------------

    \68\ See: http://www.epa.gov/epaoswer/hazwaste/minimize/chemlist.htm.
---------------------------------------------------------------------------

    Next, we considered whether any of the remaining constituents, 
those that did not receive a WMPT score of 8 or 9, present additional 
concerns for materials managed as comparable fuels. We did this by 
further analyzing the data that WMPT used to generate Human Toxicity 
scores for the remaining constituents. We first identified constituents 
that had WMPT human toxicity scores based on inhalation as the driving 
exposure pathway. This is an appropriate screening criterion given that 
the inhalation pathway is particularly important for evaluating the 
hazard posed by air emissions. For such constituents, we then 
determined whether they posed a relatively high human toxicity hazard 
or were a known human carcinogen. If so, we assigned the constituent to 
hazard Category B.
    We assigned all other constituents to hazard Category C.\69\
---------------------------------------------------------------------------

    \69\ We also qualitatively assessed the five constituents with 
insufficient data to generate complete, aggregate WMPT scores. Even 
assuming worst-case values for their human toxicity score, none of 
these constituents would have qualified for Category A or B. Thus, 
we assigned them to Category C.
---------------------------------------------------------------------------

B. What Are the Results of the Relative Hazard Ranking?

    We assigned 11 constituents to Category A--the high hazard 
constituents. These are constituents that had WMPT scores of eight or 
nine, consistent with the Agency's procedures for identifying priority 
chemicals. Because the WMPT methodology assigns all PAHs the highest 
score for any PAH, we assigned a score of nine to all PAHs. Ten of the 
11 Category A constituents are PAHs. The only Category A constituent 
that is not a PAH, but that scored an eight or nine, was naphthalene.
    In evaluating constituents to assign to hazard Category B, we 
identified three constituents that have WMPT human toxicity scores 
based on inhalation as the driving exposure pathway: Benzene, acrolein, 
and phenol.
    Benzene is a known human carcinogen via the inhalation exposure 
pathway. There are some chemicals with sufficiently robust 
toxicological databases that the Agency not only generates a 
carcinogenic slope factor, but also designates them ``known human 
carcinogens.'' Consequently, we believe it is reasonable to assign 
benzene to Category B to restrict the feedrate (and thus emissions) of 
this compound.
    Acrolein has a WMPT human toxicity score of three because it has 
very high inhalation toxicity. Acrolein did not have a higher aggregate 
WMPT score because it had a low bioaccumulation score. Nonetheless, 
exposure via inhalation is of particular importance in the context of 
assessing the hazard posed by emissions from burning ECF. Consequently, 
we believe it is reasonable to assign acrolein to Category B.
    We did not assign phenol to Category B because it has significantly 
lower toxicity than benzene and acrolein. Phenol has a WMPT human 
toxicity score of two, rather than the highest score of three. Further, 
phenol is not known to be a carcinogen. EPA has classified phenol as a 
Group D carcinogen--not classifiable as to human carcinogenicity, based 
on a lack of data concerning carcinogenic effects in humans and 
animals. Consequently, we do not believe that phenol should be assigned 
to hazard Category B even though its WMPT human toxicity score is based 
on the inhalation pathway. The remaining constituents were assigned to 
Category C.

C. What Firing Rate Restrictions Would Apply to Benzene and Acrolein?

    As discussed above, we believe that benzene and acrolein pose a 
lower hazard than PAHs and naphthalene, but a greater hazard than the 
other hydrocarbons and oxygenates for which the specifications would 
not apply for ECF. Accordingly, we propose to restrict the firing rate 
of ECF that has benzene or acrolein concentrations exceeding 2% by 
weight, as-fired, to 25% of the heat input to the boiler (on a heat 
input or volume input basis, which ever results in the lower volume of 
ECF).
    This ECF firing rate restriction would reduce the feedrate of 
benzene and acrolein and thus ensure that emissions of these compounds 
remain at levels comparable to emissions from burning fuel oil in 
industrial boilers and protective of human health and the environment. 
Absent this firing rate restriction, ECF with high concentrations of 
benzene or acrolein could be fired at a 50% firing rate--the remaining 
50% of the fuel must be primary fossil fuel or equivalent. Thus, the 
25% firing rate restriction would reduce the feedrate of benzene and 
acrolein by half.
    We selected a 25% firing rate restriction because it is in the 
middle of the range of values that could have been reasonably 
considered--10% to 40%--given that the maximum firing rate for any ECF 
is 50%. We selected a 2% or greater benzene concentration as the 
criterion for applying the firing rate restriction because selecting a 
lower concentration cutpoint would restrict the composite benzene 
concentration in total fuels to levels lower than would be allowed if 
comparable fuel were burned as 100% of the boiler fuel. Specifically, 
we assumed that comparable fuel would generally have a heating value of 
at least 10,000 Btu/lb if it were to comprise 100% of the boiler's 
fuel. The comparable fuel specification would allow a benzene 
concentration of 4,100 mg/kg (or 0.41%) for a 10,000 Btu/lb fuel. We 
further assumed the upper range of heating values for the comparable 
fuel would be 18,000 Btu/lb. At that heating value, the comparable fuel 
could contain 7,400 mg/kg (or 0.74%) benzene.
    We then determined the benzene concentration in ECF fired at a 25% 
firing rate as a supplement to fuel oil that would result in a 
composite fuel benzene concentration equivalent to the levels allowed 
if existing comparable fuel were 100% of the boiler fuel. Virtually all 
of the benzene would be contributed by the ECF because fuel oil 
contains negligible benzene.\70\ At a 25% firing rate, the benzene 
concentration in a 10,000 Btu/lb ECF would need to exceed 1.6% for the 
benzene concentration in the composite fuels (i.e., ECF and fuel oil) 
to exceed 4,100 mg/kg, the benzene concentration in the fuel if 10,000 
Btu/lb comparable fuel were fired as the sole fuel burned. Similarly, 
at a 25% firing rate, the benzene concentration in an 18,000 Btu/lb ECF 
would need to exceed 3% for the benzene concentration in the composite 
fuels to exceed 7,400 mg/kg, the benzene concentration in the fuel if 
18,000 Btu/lb comparable fuel were fired as the sole fuel burned.
---------------------------------------------------------------------------

    \70\ The comp fuel benzene spec in 261.38 (4,100 mg/kg at 10,000 
Btu/lb) is based on levels of benzene in gasoline. Benzene in crude 
oil is concentrated in refined fractions, such as gasoline.
---------------------------------------------------------------------------

    Consequently, the reasonable range of ECF benzene concentrations 
for selecting the cutpoint to apply the 25% firing rate restriction is 
1.6% to 3%.\71\ We are proposing a cutpoint of 2% because it generally 
correlates to the average heating value of waste fuels--11,000 Btu/
lb.\72\
---------------------------------------------------------------------------

    \71\ Expanding the fuel heating value range from 8,000 Btu/lb 
(the lowest heating value allowed for ECF) to 20,000 Btu/lb (the 
highest heating value known for waste fuels that may qualify as ECF) 
would expand the benzene concentration cutpoint range to 1.3% to 
3.3%.
    \72\ If we assumed comparable fuel has the average heating value 
in our data base--11,200 Btu/lb--the benzene concentration cutpoint 
would be 1.8%.

---------------------------------------------------------------------------

[[Page 33301]]

    We then considered what cutpoint we should propose for acrolein. We 
are proposing a 2% concentration cutpoint for acrolein as well because: 
(1) Acrolein poses hazards similar to benzene and there is no basis for 
being more or less stringent on the allowable composite fuel 
concentrations; and (2) a 2% cutpoint would not control acrolein in ECF 
more stringently than it is controlled in comparable fuel (i.e., ECF 
fired at a 25% firing rate as a supplement to fuel oil and with an 
acrolein concentration of 2% would not result in a composite fuel 
acrolein concentration lower than that allowed if the boiler burned 
100% existing comparable fuel at the maximum allowable acrolein 
concentration).
    We specifically request comment on whether ECF firing rate 
restrictions are warranted for benzene and acrolein, and if so, whether 
the proposed restrictions are appropriate. Any such comment must 
include an appropriate rationale and supporting information in order 
for the Agency to be able to consider it for final action.

IV. What Conditions Would Apply to Storage of ECF?

A. What Are the Proposed Storage Conditions?

    The proposed exclusion for ECF would also be conditioned on meeting 
the storage controls applicable to the closest analogous raw material/
product--fuel oil--plus a few additional controls considered 
appropriate to minimize the potential for releases to the environment. 
The additional controls would include ``engineered'' secondary 
containment and fugitive air emission controls.
    Although we are proposing generally to apply storage controls 
applicable to the closest analogous raw material/product--fuel oil, the 
exclusion would be conditioned on more substantial ``engineered'' 
secondary containment than several of the permissible secondary 
containment methods for oil under the Spill Prevention, Control, and 
Countermeasure (SPCC) provisions. Examples of SPCC secondary 
containment provisions applicable to oil include the use of dikes, 
berms, retaining walls, spill diversion ponds and sorbent materials. We 
are proposing to apply a more substantial ``engineered'' secondary 
containment condition, such as double-walled tanks because we believe 
it important that such secondary containment address potential releases 
to groundwater. Today's proposed controls on air releases are based on 
those applicable to another comparable product, organic liquids at the 
chemical plants which often generate ECF.
    These controls are appropriate considering that ECF can contain 
higher concentrations of certain hazardous, volatile hydrocarbons and 
oxygenates than fuel oil, and so though product-like, is not precisely 
analogous. Consequently, ECF has a higher potential for releases to the 
environment and a higher potential for those releases to cause 
environmental harm. Therefore, we are proposing storage and 
recordkeeping controls to ensure that ECF is not managed so as to 
become ``part of the waste disposal problem''. American Mining Congress 
v. EPA, 907 F. 2d 1179, 1186 (D.C. Cir. 1990).
    We are also proposing that ECF be stored only in tanks (including 
USTs), tank cars, and tank trucks. ECF could not be stored in other 
containers (e.g., portable devices, such as 55 gallon drums) because: 
(1) We believe that ECF would be generated in quantities that would 
make storage in portable devices other than tank cars and tank trucks 
impractical; and (2) providing conditions to ensure adequate 
monitoring, inspections and air emission controls for storage in other 
containers would unnecessarily complicate the rule. Nonetheless, we 
request comment on whether ECF would likely be stored in vessels other 
than tanks, tank cars and tank trucks (e.g., drums positioned to 
collect process drippage that is eventually consolidated with ECF in 
acceptable tank, tank car, or tank truck). If so, and if a final rule 
were to allow storage in containers other than tank cars and tank 
trucks, we would subject those units to management conditions similar 
to those that apply to hazardous waste containers under subpart I, Part 
265, control releases.
1. Tank Systems, Tank Cars and Tank Trucks
    a. SPCC Discharge Prevention Requirements.\73\ For ECF tank 
systems, tank cars, and tank trucks, we are proposing to condition the 
exclusion on meeting certain of the discharge prevention provisions 
which apply to fuel oil, or are adapted therefrom. These are from the 
Spill Prevention, Control, and Countermeasure (SPCC) provisions under 
40 CFR Part 112 that apply to petroleum oils managed at onshore 
facilities. ECF generators and burners would comply with these 
conditions, as adopted under Sec.  261.38(c)(1)(iii), as though ECF met 
the definition of oil under Sec.  112.2.\74\ These adopted SPCC 
provisions would apply to all owners and operators of ECF tanks with a 
capacity greater than 55 gallons.\75\
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    \73\ The SPCC conditions we propose to adopt would apply to ECF 
tanks systems that are not hazardous substance underground storage 
tanks subject to Sec.  280.42(b), as well as tank cars and tank 
trucks.
    \74\ This proposed rule would neither amend nor otherwise affect 
the SPCC provisions under 40 CFR Part 112. Substantive controls from 
the SPCC rules would merely be applied to tanks storing ECF as a 
condition of those fuels being excluded from RCRA subtitle C 
controls.
    \75\ We note that the SPCC requirements under Part 112 do not 
apply to facilities that have both an aggregate capacity for 
completely buried storage of 42,000 gallons or less of oil and an 
aggregate capacity for above ground storage of 1,320 gallons or less 
of oil. See Sec.  112.1(d)(2). In addition, the SPCC requirements do 
not apply to containers with a storage capacity of less than 55 
gallons of oil. We propose to adopt the 55 gallon capacity criterion 
for applicability of the adopted SPCC provisions to ECF tanks, but 
propose to apply those SPCC provisions to tanks with a capacity 
greater than 55 gallons at all facilities managing ECF, irrespective 
of whether the aggregate tank capacity for oil and ECF is below the 
threshold in Sec.  112.1(d)(2). Applying the adopted SPCC provisions 
to all ECF tanks with a capacity greater than 55 gallons, 
irrespective of aggregate oil and ECF storage capacity at a 
facility, is appropriate because ECF can pose a greater storage 
hazard than petroleum oil, as discussed previously.
---------------------------------------------------------------------------

    The SPCC requirements under Part 112 include both discharge 
prevention requirements and requirements to ensure effective responses 
to discharges. The discharge prevention requirements for onshore 
petroleum oil tanks are implemented under a SPCC Plan and associated 
requirements under Sec. Sec.  112.1 through 112.8, and the discharge 
response requirements are implemented under a Facility Response Plan 
(FRP) and associated requirements under Sec. Sec.  112.20 and 112.21. 
We propose to adopt specific provisions of the discharge prevention 
requirements--the SPCC Plan--under Sec. Sec.  112.3, 112.5, 112.7, and 
112.8 only. We are not proposing to adopt the FRP and associated 
requirements, as discussed below in Section IV.A.1.c. In lieu of the 
FRP requirements, we are proposing to adopt more appropriate provisions 
that apply to hazardous waste tank systems and that achieve the same 
objective as the FRP requirements--specifying proactive measures to 
respond to a release of ECF.
    We propose to adopt the following SPCC Plan requirements under 
Sec.  261.38(c)(1)(iii) to prevent ECF releases from tank systems:
     Section 112.2, Definitions.\76\
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    \76\ These SPCC definitions would apply only to the adopted SPCC 
provisions.
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     Sections 112.3(d) and 112.3(e), Requirements to Prepare 
and Implement an SPCC Plan. Paragraph (d) requires that a licensed 
Professional Engineer must review and certify the Plan, and paragraph 
(e) requires that a copy of the Plan must be maintained at the facility 
and be available to the Regional

[[Page 33302]]

Administrator for on-site review. We are not adopting paragraphs (a), 
(b), (c), (f), or (g), which pertain to compliance dates for plan 
preparation and implementation and self-certification of the plan. 
Because the ECF exclusion is optional and conditional, we are proposing 
that all conditions in Sec.  261.38 must be met before ECF can be 
managed under the conditional exclusion being proposed today. Therefore 
we are not adopting any of the compliance dates provided in the SPCC 
regulations. Also, we propose not to allow self-certification of Plans 
in lieu of certification by a Professional Engineer, as allowed under 
Sec.  112.6, for those facilities with an aggregate aboveground tank 
capacity of 10,000 gallons or less, a provision the Agency recently 
promulgated.\77\ We are proposing not to adopt Sec.  112.6 because of 
the greater hazard that a release of ECF may pose. We do not view 
certification of the Plan by a Professional Engineer as an unreasonable 
burden, and believe that the value added to ensure that the Plan is 
complete, accurate, and appropriate to prevent releases is warranted 
given the hazards that ECF may pose. A more important consideration is 
that we do not believe that facilities with ECF tanks would meet the 
primary eligibility criterion for self-certification: the aggregate oil 
and ECF tank capacity must be less than 10,000 gallons. Therefore, this 
provision would add complexity and burden for States and EPA in 
implementation and enforcement with little or no off-setting benefits. 
Nonetheless, we specifically request comment on whether there may be 
facilities that store ECF in tanks that could meet the eligibility 
criterion and whether self-certification of the SPCC Plan would be 
appropriate.
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    \77\ See 71 FR 77266, December 26, 2006.
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     Sections 112.5(a) and 112.5(b), Amendment of SPCC Plan by 
Owners or Operators. This section requires that the Plan be amended by 
the owner or operator in accordance with the general requirements in 
Sec.  112.7 when there is a change in the facility design, 
construction, operation, or maintenance that materially affects its 
potential for a discharge. This section also states that owners or 
operators must complete a review and evaluation of the SPCC Plan at 
least once every five years from the date the facility becomes subject 
to this part, and that any technical amendments to the Plan must be 
certified by a Professional Engineer. We propose to adopt paragraphs 
(a) and (b), but not paragraph (c). Paragraph (c) requires 
certification of technical amendments to the Plan and references Sec.  
112.6 which allows self-certification in lieu of certification by a 
Professional Engineer. Given that we propose not to adopt Sec.  112.6 
as discussed above, we propose a condition that would require technical 
amendments to be certified by a Professional Engineer.
     Section 112.7, General Requirements for Spill Prevention, 
Control, and Countermeasure Plans. We propose to adopt Sec.  112.7, 
except for paragraph (c) secondary containment, paragraph (d) 
alternative requirements in lieu of secondary containment, and 
paragraph (k) alternative requirements in lieu of secondary containment 
for qualified oil-filled operational equipment. These paragraphs would 
not be applicable because they pertain to secondary containment which 
we propose to require under separate conditions. See discussion below. 
The Sec.  112.7 conditions we are proposing to adopt are paragraph (a) 
which requires a discussion of the facility's conformance with the 
requirements included in Sec.  112.7, and development of the Plan; 
paragraph (b) which requires a prediction of the direction, rate of 
flow and total quantity of material which could be discharged when 
experience indicates a potential for equipment failure, overflow, 
rupture or leakage; paragraph (e) which addresses conducting 
inspections and tests and keeping records; paragraph (f) which 
addresses personnel, training, and discharge prevention procedures; 
paragraph (g) which addresses security requirements; paragraph (h) 
which addresses facility tank car and tank truck loading/unloading rack 
requirements; paragraph (i) which requires a brittle fracture 
evaluation \78\ if a tank undergoes a change in service that might 
affect the risk of a discharge; and paragraph (j) which states that the 
Plan must include a complete discussion of conformance with the 
requirements in this part, as well as applicable more stringent State 
rules, regulations and guidelines.
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    \78\ This requirement only applies to field erected aboveground 
storage tanks.
---------------------------------------------------------------------------

     Section 112.8, Spill Prevention, Control, and 
Countermeasure Plan Requirements for Onshore Facilities (excluding 
production facilities). We are proposing to adopt Sec.  112.8, except 
for: Paragraph (b), facility drainage; paragraph (c)(2), secondary 
containment for bulk storage containers; paragraph (c)(9), prevention 
of releases from effluent treatment facilities; and paragraph (c)(11), 
secondary containment for mobile and portable containers. These 
provisions are not warranted because we are proposing separate 
conditions for secondary containment, as discussed below. The 
conditions we are proposing to adopt from this section are paragraph 
(a) which states that the owner or operator meet the general 
requirements for the Plan listed under Sec.  112.7, and the specific 
discharge prevention and containment procedures listed in this section; 
paragraph (c)(1) which states that a tank not be used for storage 
unless its material and construction are appropriate; paragraph (c)(3) 
which addresses the drainage of uncontaminated rainwater or effluent 
bypassing the facility treatment system; paragraph (c)(4) which states 
that any completely buried metallic storage tank installed on or after 
January 10, 1974 be protected from corrosion and regularly leak test 
such storage tanks;\79\ paragraph (c)(5) which states that partially 
buried or bunkered metallic tanks not be used for storage unless you 
protect the buried section of the tank from corrosion; paragraph (c)(6) 
which states that each aboveground tank be tested for integrity on a 
regular schedule and whenever material repairs are made and that the 
outside of the tanks be inspected frequently for signs of 
deterioration, discharges, or accumulation of ECF inside diked areas; 
paragraph (c)(7) which states that leakage through defective internal 
heating coils be controlled by monitoring the steam return and exhaust 
lines for contamination from internal heating coils that discharge into 
an open watercourse, or pass the steam return or exhaust lines through 
a settling tank, skimmer, or other separation or retention system; 
paragraph (c)(8) which states that the tank system be engineered or 
updated in accordance with good engineering practice to avoid 
discharges (e.g., overfill prevention); paragraph (c)(10) which states 
that visible discharges from tanks, tank cars, and tank trucks be 
promptly corrected; and paragraph (d) which addresses provisions 
regarding facility transfer operation, pumping, and facility process. 
We are not proposing to adopt the provision which requires that buried 
piping be provided with a protective wrapping and coating only if the 
buried piping is installed or replaced on or after August 16, 2002. 
Rather, we propose to apply this provision to all buried piping. This 
is because ECF can pose a greater hazard than oil, and in particular, 
because leaks of the

[[Page 33303]]

hazardous organic compounds present in ECF are more likely than oil to 
sink into the ground and surrounding water, and therefore create a 
greater hazard.
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    \79\ We request comment on whether we should specify that 
completely buried metallic storage tanks installed prior to January 
10, 1974 must be protected from corrosion and regularly leak 
checked.
---------------------------------------------------------------------------

    We are not proposing to adopt Sec.  112.4, Amendment of Spill 
Prevention, Control, and Countermeasure Plan by Regional Administrator. 
That section requires the owner/operator of a facility that has 
discharged more than 1000 gallons of oil in a single discharge or more 
than 42 gallons of oil in each of two discharges in any 12 month period 
to submit a report to the Regional Administrator (RA) that provides 
information including the corrective action and countermeasures taken, 
the cause of the discharge, and preventive measures to minimize the 
possibility of recurrence. That section also allows the RA to require 
the owner/operator to amend the Plan if the RA determines that the Plan 
does not meet the requirements of Part 112 or amendment is necessary to 
prevent and contain discharges from the facility. Finally, that section 
prescribes procedures that the owner/operator may use to appeal the 
RA's decision to require an amendment to the Plan. We are not proposing 
to adopt Sec.  112.4 because: (1) Given that ECF tanks would be 
required to be equipped with engineered secondary containment (as 
discussed below), we would not expect releases from ECF tanks of the 
magnitude that would trigger a report under Sec.  112.4; (2) the 
proposal already contains a provision that the owner/operator must 
amend the Plan upon a finding by the RA that amendment is necessary to 
prevent and contain releases of emission-comparable fuel (see proposed 
Sec.  2613.8(c)(1)(iii)(B)(3)), and this provision would not include 
prescribed appeal provisions given that the ECF exclusion is elective 
\80\; and (3) the proposal already contains a provision that the owner/
operator must submit a report to the RA within 24 hours of detection of 
any release of ECF to the environment, except de minimis leaks (i.e., 
less than or equal to one pound) that are immediately contained and 
cleaned-up (see Section IV.A.1 below, and proposed Sec.  
261.38(c)(1)(v)(C)).
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    \80\ Even though we are not proposing prescribed appeal 
provisions, the owner/operator could certainly explain and clarify 
why the Plan already addresses concerns the RA may express in a 
requirement to amend the Plan.
---------------------------------------------------------------------------

    b. Containment and detection of releases. Preventing the release of 
hazardous secondary materials, such as ECF, to groundwater is one of 
the primary exposure routes to be addressed under RCRA; the SPCC 
secondary containment requirements primarily address the release of oil 
to surface waters. In addition, because ECF can have higher 
concentrations of certain hazardous hydrocarbons and oxygenates, it can 
pose a greater hazard to human health and the environment than fossil 
fuel if released to the environment. Therefore, we believe that the 
secondary containment requirements in the SPCC rule are not adequate 
for ECF. Thus, we are proposing engineered secondary containment for 
the storage of ECF in tank systems.
    Engineered secondary containment means the use of an external 
liner, vault, or double-walled tank. We note that two states--Florida 
and Minnesota--require some form of engineered secondary containment 
for fuel oil and do not allow the ``non-engineered'' options allowed by 
SPCC (e.g., ponds, weirs, and absorbent materials).\81\ However, we 
have decided to propose the substantive engineered secondary 
containment provisions provided by the hazardous waste rules for tank 
systems under Sec.  264.193(b-f). Although we recognize they are 
somewhat more prescriptive than those required by Florida and 
Minnesota, we believe that persons likely to use this exclusion are 
likely to use the same tanks in which the hazardous secondary material 
is currently stored and thus, the facility would not need to retrofit 
the design of these tanks. However, the Agency does solicit comments on 
whether an alternative ``engineered'' secondary containment system that 
may not provide containment equivalent to an external liner, vault, or 
double-walled tank would also be appropriate.
---------------------------------------------------------------------------

    \81\ See Florida Administrative Code at 62-762.501, and Minn. R. 
Ch. at 7151.5400.
---------------------------------------------------------------------------

    We propose to adopt the following requirements:
     Section 264.193(b), which prescribes general performance 
standards for secondary containment systems;
     Section 264.193(c), which prescribes minimum requirements 
for secondary containment systems;
     Sections 264.193(d)(1-3), which prescribe permissible 
secondary containment devices--external liner, vault, or double-walled 
tank. We are not proposing to adopt Sec.  264.193(d)(4), which allows 
approval by the Regional Administrator of an equivalent device, because 
the exclusion is designed to be self-implementing. Nevertheless, we 
request comment on whether the final rule should allow approval of 
equivalent means of secondary containment to avoid stifling innovation 
(and potentially having to revise the rule to allow alternative means 
we believe are appropriate). In providing comments on this issue, we 
would ask that commenters specifically describe how this provision 
could work, considering that the rule is designed to be a self-
implementing regulation;
     Section 264.193(e), which prescribes design and operating 
requirements for the permissible secondary containment devices; and
     Section 264.193(f), which prescribes secondary containment 
requirements for ancillary equipment.
    To comply with the adopted hazardous waste tank secondary 
containment provisions, we propose that the term ``emission-comparable 
fuel'' be substituted for the term ``waste,'' and that the term 
``document in the record'' be substituted for the term ``demonstrate to 
the Regional Administrator.'' Demonstrations to the Regional 
Administrator to obtain a waiver are allowed for hazardous waste tank 
systems in the following situations:
     Section 264.193(c)(3), where the owner or operator can 
demonstrate to the Regional Administrator that the leak detection 
system or site conditions will not allow detection of a release within 
24 hours;
     Section 264.193(c)(4), where the owner or operator can 
demonstrate to the Regional Administrator that removal of released 
materials or accumulated precipitation cannot be accomplished within 24 
hours; and
     Section 264.193(e)(3)(iii), where the owner or operator 
can demonstrate to the Regional Administrator that the leak detection 
technology for a double-walled tank or site conditions would not allow 
detection of a release within 24 hours.
    As mentioned above, site-specific approval of an alternative 
provision is inconsistent with the self-implementing provisions of a 
regulatory exclusion. Consequently, we propose to require the owner or 
operator to document in the record the basis for not being able to 
comply with those provisions within 24 hours, as nominally required. 
This information will be available for review by the Regional 
Administrator.
    We are not proposing to adopt Sec. Sec.  264.193(g) and 264.193(h) 
because those provisions provide procedures to support and request a 
variance from secondary containment. Again, substantive variance 
provisions cannot be implemented under a self-implementing regulatory 
exclusion.
    Finally, we are not proposing to adopt Sec.  264.193(i) which 
allows for alternative secondary containment until a facility can 
comply with the requirements of Sec. Sec.  264.193(b-f). We do not 
believe that Sec.  264.193(i) is appropriate because the

[[Page 33304]]

proposed ECF exclusion is not a mandated provision; owners and 
operators that elect to take advantage of the exclusion should be in 
compliance with all of the requirements necessary to protect human 
health and the environment before managing excluded ECF.
    c. Preparedness and Prevention, Emergency Procedures, and Response 
to Leaks or Spills. We considered whether to adopt the Facility 
Response Plan (FRP) provisions applicable to fuel oil tanks under 
Sec. Sec.  112.20 and 112.21 that require proactive responses to oil 
discharges, but believe that they are not appropriate for tanks that 
handle ECF. The FRP requirements are tailored to oil discharges and may 
not be appropriate for ECF, given that, for example, ECF may contain 
high concentrations of hazardous compounds that behave in the 
environment as a dense nonaqueous phase liquid and therefore do not 
float on the water surface. In addition, the FRP requirements are 
designed to respond to discharges of oil to navigable waters and 
adjoining shorelines (i.e., through the use of sorbents, booms, and 
skimmers). In contrast, today's proposed rule is designed to equip ECF 
tanks with engineered secondary containment (i.e., external liner, 
vault, or double-walled tank), as discussed above in order to control 
and prevent releases to the environment. Consequently, we believe it is 
appropriate to adopt certain hazardous waste tank provisions that 
provide proactive measures to respond to a release of ECF. We 
specifically request comment on our view that the Part 112 FRP 
requirements would not provide effective measures to respond to 
releases of ECF, and whether there may be release response provisions 
applicable to other products that may be more appropriate to adopt for 
ECF than the hazardous waste tank provisions that we discuss below.
    We propose to adopt certain provisions of Subparts C and D of Part 
264 and Sec.  264.196 \82\ to provide proactive measures to respond to 
a release of ECF: preparedness and prevention; emergency procedures; 
and response to leaks or spills. See proposed Sec.  261.38(c)(1)(v).
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    \82\ As discussed later in the text, the Sec.  264.196 
provisions specifically address failures of the types of engineered 
secondary containment (i.e., external liner, vault, or double-walled 
tank) that we propose to specify for ECF tanks. Thus, adopting these 
provisions in lieu of the Part 112 RFP provisions, which address 
discharge countermeasures (e.g., absorbents, booms, skimmers, and 
dispersants) more appropriate for other types of secondary 
containment, is particularly appropriate.
---------------------------------------------------------------------------

    The Part 64, Subpart C and D provisions are similar to some of the 
proactive requirements under the Part 112 FRP and in some cases are 
virtually identical to the FRP provisions. The specific Subpart C 
(Preparedness and Prevention) provisions we propose to adopt are 
discussed below. These are commonsense provisions that should represent 
standard operating practice for facilities that store liquid fuels:
     Section 264.32, Required Equipment. All provisions of this 
section are appropriate for ECF tank systems: requirements for an 
internal communications or alarm system capable of providing immediate 
emergency instruction to facility personnel; a device such as a 
telephone or two-way radio capable of summoning emergency assistance; 
portable fire extinguishers, fire control equipment, spill control 
equipment and decontamination equipment; and water at adequate volume 
and pressure, or foam producing equipment, or automatic sprinklers, or 
water spray systems.
     Section 264.33, Testing and Maintenance of Equipment. This 
section requires that all communications or alarm systems, fire 
protection equipment, spill control equipment, and decontamination 
equipment must be tested and maintained as necessary to assure its 
proper operation in case of emergency.
     Section 264.34, Access to Communications or Alarm System. 
We propose to adopt this section to specify that, whenever ECF is 
distributed into or out of a tank system, all personnel involved in the 
operation must have access to an internal alarm or emergency 
communication device, either directly or through visual or voice 
contact with another employee.
     Section 264.37, Arrangements with Local Authorities. We 
propose to adopt this section to specify that the owner or operator 
must attempt to make arrangements with the appropriate local 
authorities (fire departments, emergency response teams, police 
departments, hospitals, etc.) to familiarize the authorities with the 
layout of the facility, properties of the ECF being managed at the 
facility, possible evaluation routes, and types of injuries which could 
result from fires, explosions, or releases at the facility. If State or 
local authorities decline to enter into such arrangements, the owner or 
operator must document this refusal in the facility's record.
    The specific Part 264, Subpart D (Contingency Plan and Emergency 
Procedures) provisions we propose to adopt are: \83\
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    \83\ We are not proposing to adopt the Subpart D contingency 
plan provisions because the SPCC Plan that we propose to specify as 
a condition of the exclusion is equivalent to the contingency plan 
required for hazardous waste tank facilities.
---------------------------------------------------------------------------

     Section 264.55, Emergency Coordinator. We propose to adopt 
this provision to specify that, 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, all ECF 
operations and activities at the facility, the location and 
characteristics of ECF handled, the location of all records within the 
facility pertaining to ECF, and the facility layout. In addition, this 
person must have the authority to commit the resources needed to carry 
out the SPCC Plan.
     Section 264.56, Emergency Procedures. We propose to adopt 
this provision to specify that: (1) Whenever there is an imminent or 
actual emergency situation relating to the ECF tank system, the 
emergency coordinator 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; (2) whenever there 
is a release, fire, or explosion relating to the ECF tank system, the 
emergency coordinator must immediately identify the character, exact 
source, amount, and aerial extent of any released materials; (3) the 
emergency coordinator must assess possible hazards to human health or 
the environment that may result from the release, fire, or explosion; 
(4) if the emergency coordinator determines that the facility has had a 
release, fire, or explosion associated with the ECF tank system which 
could threaten human health, or the environment outside the facility, 
he must report his findings to the government official designated as 
the on-scene coordinator for that geographical area or the National 
Response Center; (5) if the emergency coordinator's assessment 
indicates that evacuation of local areas may be advisable, he must 
immediately notify appropriate local authorities; (6) 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; (7) if the ECF 
tank system stops operations in response to a fire,

[[Page 33305]]

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; (8) immediately after 
an emergency, the emergency coordinator must provide for treating, 
storing, or disposing of recovered ECF, contaminated soil or surface 
water, or any other material that results from a release, fire, or 
explosion at the facility; \84\ (9) the emergency coordinator must 
ensure that, in the affected area(s) of the facility, materials that 
may be incompatible with the released ECF 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; and (10) the owner or operator must 
note in the record the time, date, and details of any incident that 
requires implementing the SPCC Plan for the ECF tank system and within 
15 days after the incident, the owner or operator must submit a written 
report on the incident to the Regional Administrator.
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    \84\ ECF that is released from the tank system must generally be 
managed as hazardous waste. See proposed Sec.  261.38(b)(15).
---------------------------------------------------------------------------

    We propose to adopt the provisions under Sec.  264.196 (Response to 
Leaks or Spills and Disposition of Leaking or Unfit-for-Use Tank 
Systems), except for Sec. Sec.  264.196(e)(1) and (e)(4), for all ECF 
tank systems not subject to the hazardous substance underground storage 
tank requirements of Sec.  280.42(b). To comply with the adopted 
provisions of Sec.  264.196, you would substitute the term ``emission-
comparable fuel'' for the terms ``hazardous waste'' and ``waste,'' and 
the term ``record'' for the term ``operating record.'' The adopted 
provisions would specify that an ECF tank system or secondary 
containment system from which there has been a leak or spill, or which 
is unfit for use, must be removed from service immediately, and the 
owner or operator must satisfy the following conditions: (1) The owner 
or operator must immediately stop the flow of ECF into the tank system 
or secondary containment system and inspect the system to determine the 
cause of the release; (2) if the release was from the tank system, the 
owner/operator must, within 24 hours after detection of the leak or, if 
the owner/operator demonstrates that it is not possible, at the 
earliest practicable time, remove as much of the ECF as is necessary to 
prevent further release of ECF to the environment and to allow 
inspection and repair of the tank system to be performed; (3) if the 
ECF released was to a secondary containment system, all released ECF 
must be removed within 24 hours or in as timely a manner as is possible 
to prevent harm to human health and the environment; (4) the owner/
operator must immediately conduct a visual inspection of the release 
and, based upon that inspection prevent further migration of the leak 
or spill to soils or surface water and remove, and properly dispose of, 
any visible contamination of the soil or surface water; (5) any release 
to the environment, except de minimis leaks (i.e., less than or equal 
to one pound) that are immediately contained and cleaned-up must be 
reported to the Regional Administrator within 24 hours of its 
detection; (6) within 30 days of detection of a release to the 
environment, a report containing the following information must be 
submitted to the Regional Administrator--likely route of migration of 
the release, characteristics of the surrounding soil (soil composition, 
geology, hydrogeology, climate), results of any monitoring or sampling 
conducted in connection with the release (if available), proximity to 
downgradient drinking water, surface water, and populated areas, and 
description of response actions taken or planned; (7) the tank system 
must be closed unless the cause of the release was a spill that has not 
damaged the integrity of the system and the released material is 
removed and repairs, if necessary, are made, or unless the cause of the 
release was a leak from the primary tank system into the secondary 
containment system and the system is repaired; and (8) if the owner/
operator has repaired a tank system and the repair has been extensive 
(e.g., installation of an internal liner; repair of a ruptured primary 
containment or secondary containment vessel), the tank system must not 
be returned to service unless the owner/operator has obtained a 
certification by a qualified Professional Engineer that the repaired 
system is capable of handling ECF without release for the intended life 
of the system.
    We are not proposing to adopt Sec.  264.196(e)(1) because that 
paragraph would require the tank to be closed under the Sec.  264.197 
provisions for closure of a hazardous waste tank. Those provisions are 
inappropriate for closure of a tank that stored a product--ECF. As 
provided under proposed Sec.  261.38(b)(13), when ECF operations cease, 
liquid and accumulated solid residues that remain in a tank system for 
more than 90 days after the tank system ceases to be operated for 
storage of ECF are subject to regulation under Parts 262 through 265, 
268, 270, 271, and 124. In addition, liquid and accumulated solid 
residues that are removed from an ECF tank system after the tank system 
ceases to be operated for storage of ECF are solid wastes subject to 
regulation as hazardous waste if the waste exhibits a characteristic of 
hazardous waste under Sec. Sec.  261.21-261.24 or if the ECF was 
derived from a hazardous waste listed under Sec. Sec.  261.31-261.33 
when the exclusion was claimed.
    Finally, we are not proposing to adopt Sec.  264.196(e)(4) because 
that paragraph addresses tanks that are not equipped with secondary 
containment. We are proposing that all ECF tanks must be equipped with 
secondary containment prior to managing ECF.
    d. Air Emissions. As mentioned above, ECF can contain higher levels 
of certain hazardous, volatile hydrocarbons and oxygenates than found 
in fuel oil. In this regard, ECF is more analogous to organic liquids 
typically present in organic chemical production operations than they 
are to fuel oil. Therefore, we believe it appropriate to condition the 
exclusion on meeting air emission controls which apply to those organic 
liquids to prevent the release of one or more of these chemicals to the 
environment. To this end, we are proposing to adopt virtually all of 
the provisions of the National Emission Standards for Hazardous Air 
Pollutants (NESHAP) for Organic Liquids Distribution (OLD) under 
Subpart EEEE, Part 63 as RCRA Sec.  261.38 conditions to control the 
fugitive air emissions from ECF tank systems.\85\ Note that there are 
no provisions of this proposed rule that would impose new or additional 
CAA Title V obligations on ECF generators or burners.
---------------------------------------------------------------------------

    \85\ This subpart establishes emission limitations, operating 
limits, and work practice standards for organic hazardous air 
pollutants (HAP) emitted from organic liquids distribution (OLD) 
(non-gasoline) operations at major sources of HAP emissions for 
facilities that are not subject to another NESHAP. This subpart also 
establishes requirements to demonstrate initial and continuous 
compliance with the emission limitations, operating limits, and work 
practice standards.
---------------------------------------------------------------------------

    ECF would already be subject to the OLD NESHAP if certain 
applicability requirements are met, including: (1) The facility must be 
a major source; (2) the ECF must contain greater than 5% of the organic 
HAP listed in Table 1 to Subpart EEEE; (3) the facility is not subject 
to another NESHAP; \86\ and (4) certain tank size and HAP vapor 
pressure criteria are met. Thus, we are proposing not to

[[Page 33306]]

apply the OLD controls--that we are proposing to adopt under Sec.  
261.38 \87\--to ECF tanks that are subject to the OLD controls under 
Sec.  63.2346, with one exception. We are proposing to apply adopted 
conditions for any ECF tanks that would not be subject to the controls 
provided by item 6 in Table 2 to Subpart EEEE because the vapor 
pressure of the regulated organic HAP does not exceed 76.6 kPa. 
Specifically, item 6 in Table 2 provides controls for existing and new 
tanks with a capacity greater than 5,000 gallons if the organic liquid 
has an annual average true vapor pressure of the organic HAP listed in 
Table 1 to Subpart EEEE equal to or greater than 76.6 kilopascals 
(kPa). However, 16 RCRA oxygenates \88\ for which comparable fuel 
specifications have been established in Table 1 to Sec.  261.38 are not 
listed as CAA hazardous air pollutants in Table 1 to Subpart EEEE 
(reflection CAA section 112(b)(1)). Further, 11 of these oxygenates 
have vapor pressures that could contribute significantly to the total 
vapor pressure of hazardous organics in ECF.\89\ Thus, these RCRA 
oxygenates could potentially increase the vapor pressure of the ECF so 
that it exceeds 76.6 kPa, the criterion for requiring more stringent 
controls under item 6 in Table 2 to Subpart EEEE. For this reason, we 
propose to specify that tanks which are subject to OLD but that are not 
subject to the requirements under item 6 in Table 2 to Subpart EEEE 
must consider the vapor pressure of the 11 RCRA oxygenates that have 
vapor pressures that could significantly contribute to the total vapor 
pressure, as well as the organic HAP listed in Table 1 to Subpart EEEE 
in determining whether the vapor pressure would be equal to or exceed 
76.6 kPa. See proposed Sec.  261.38(c)(1)(ii)(C)(1)(ii). If so, we are 
proposing that the tank must comply with the Sec.  261.38 adopted OLD 
requirements for tanks storing organic liquids with a vapor pressure 
equal to, or exceeding, 76.6 kPa. We specifically request comment on 
this proposed condition. In addition, although we believe that there 
would be very few ECF tanks that would be placed in this circumstance, 
we specifically request comment on how to avoid dual CAA and RCRA 
regulation of any such tanks--tanks that are already subject to OLD as 
promulgated at Subpart EEEE, Part 63, but which would also need to 
comply with (more stringent) OLD requirements adopted under RCRA Sec.  
261.38 as a condition for the ECF exclusion.
---------------------------------------------------------------------------

    \86\ The subpart EEEE controls are intended to be generic, 
catch-all controls for air emissions from storage and transfer of 
organic liquids at facilities that are not already subject to a 
specific NESHAP.
    \87\ As discussed later in the text in this section, we are 
proposing to adopt under Sec.  261.38 for ECF tank systems virtually 
all of the Subpart EEEE OLD provisions.
    \88\ These compounds are Allyl alcohol (CAS No. 107-18-6), 
Bis(2-ethylhexyl)phthalate [Di-2- ethylhexyl phthalate] (CAS No.117-
81-7), Butyl benzyl phthalate (CAS No. 85-68-7), Diethyl phthalate 
(CAS No. 84-66-2), 2,4-Dimethylphenol (CAS No. 105-67-9), Dimethyl 
phthalate (CAS No. 131-11-3), Di-n-octyl phthalate (CAS No. 117-84-
0), Endothall (CAS No. 145-73-3), Ethyl methacrylate (CAS No. 97-63-
2), 2-Ethoxyethanol [Ethylene glycol monoethyl ether] (CAS No. 110-
80-5), Isobutyl alcohol (CAS No. 78-83-1), Iosafrole (CAS No. 120-
58-1), Methyl ethyl ketone [2-Butanone] (CAS No. 78-93-3), 1,4-
Naphthoquinone (CAS No. 130-15-4), Propargyl alcohol [2-Propyn-1-ol] 
(CAS No. 107-19-7), and Safrole (CAS No. 94-59-7).
    \89\ Five oxygenates--butyl benzyl phthalate, diethyl phthalate, 
dimethyl phthalate, di-n-octyl phthalate, and endothall--have vapor 
pressures in the range of 0.0000002 to 0.001 kPa at 25 C and would 
not likely contribute significantly to exceeding the 0.7 kPa 
threshold defining an organic liquid, or to changing the vapor 
pressure category for the organic liquid that could result in more 
stringent controls. See USEPA, ``Draft Technical Support Document 
for Expansion of the Comparable Fuel Exclusion,'' May 2007, Section 
2.2.
---------------------------------------------------------------------------

    For tanks that are not already subject to the OLD controls under 
Sec.  63.2346, we are proposing to adopt appropriate Subpart EEEE 
provisions under Sec.  261.38 as a condition of the ECF exclusion. See 
discussion below where we propose to adopt virtually all of the Subpart 
EEEE provisions. These adopted provisions would in no way affect 
Subpart EEEE and would be implemented and enforced under RCRA authority 
(e.g., controls under the adopted provisions would not be included in a 
facility's Title V permit, and a facility would not be required to 
obtain a Title V permit to comply with these provisions).\90\ Our 
principles for proposing to adopt the OLD provisions under Sec.  261.38 
include: (1) Air emissions from ECF tanks 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; and (2) the 11 hazardous RCRA 
oxygenates that have significant vapor pressure, as discussed above, 
should be considered as well as the organic HAP in Table 1 to Subpart 
EEEE in determining whether ECF meets the OLD definition of organic 
liquid and in determining the level of control specified by Table 2 to 
Subpart EEEE.
---------------------------------------------------------------------------

    \90\ Moreover, there are no provisions of this proposed rule 
that would impose new CAA Title V obligations.
---------------------------------------------------------------------------

    We discussed above that 11 of the hazardous RCRA oxygenates for 
which the comparable fuel specifications would no longer apply and that 
are not classified as CAA HAP can potentially contribute significantly 
to the vapor pressure of ECF. Given that vapor pressure of the 
hazardous organic constituents is a criterion for determining whether 
the ECF meets the OLD definition of organic liquid (which we propose to 
adopt in revised form under Sec.  261.38(c)(1)(ii)(C) as discussed 
below) and the level of emission control required under Sec.  63.2346 
(which we also propose to adopt), it is appropriate to require owners 
and operators to consider these 11 RCRA oxygenates when complying with 
the adopted OLD provisions.
    We also reviewed the OLD provisions to determine whether the 
controls would be comparable to those currently required for the 
hazardous waste from which the ECF will be derived. Assurance of 
comparable controls is warranted given that air emissions from storage 
and handling of ECF can pose the same hazards as storage and handling 
of the parent hazardous waste. We determined that adopting the OLD 
provisions would result in air emission controls comparable to current 
controls in most situations, with four exceptions: (1) ECF tanks at 
facilities that are area sources; (2) 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; (3) 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 to 76.6 kPa; and (4) 
ECF tanks at facilities that are subject to a NESHAP other than Subpart 
EEEE, unless the tanks at these facilities have comparable air emission 
controls.\91\ We are proposing to adopt the OLD provisions under Sec.  
261.38 in a manner that addresses these situations and thus ensures 
adequate control of air emissions from ECF tanks. We specifically 
request comment on these proposed conditions:
---------------------------------------------------------------------------

    \91\ Also, as discussed previously in this section, we may 
regulate, in certain instances, tanks that store or handle ECF that 
would not be subject to the controls provided by item 6 in Table 2 
to Subpart EEEE because the vapor pressure of the regulated organic 
HAP does not exceed 76.6 kPa.
---------------------------------------------------------------------------

     The OLD provisions apply only to major sources.\92\ 
Although we do not believe that many ECF tanks will be located at area 
sources given that we expect the manufacturing sector to generate and 
burn the majority of the ECF, controls should be maintained at 
facilities that may be area sources. Consequently, we propose to apply 
the adopted OLD controls to both area and

[[Page 33307]]

major sources. See proposed Sec.  261.38(c)(1)(ii)(C)(2)(i);
---------------------------------------------------------------------------

    \92\ A major source is a facility that emits, facility wide, 
more than 10 tons per year of any single HAP or 25 tons per year of 
HAP in the aggregate. An affected source is an area source if it is 
located at a facility that is not a major source.
---------------------------------------------------------------------------

     OLD does not require controls for the two tank size/vapor 
pressure scenarios listed above, while substantive tank air emission 
controls (under Sec.  264.1084) are required for the hazardous waste 
from which the ECF is derived. Consequently, we propose to apply the 
adopted OLD controls as conditions for ECF tanks with those two tank 
size/vapor pressure scenarios so that they comply with the same OLD 
controls applicable to tanks with a capacity greater than 5,000 gallons 
and a vapor pressure below 76.6 kPa. See proposed Sec.  
261.38(c)(1)(ii)(C)(2)(vii); and
     As mentioned above, the OLD provisions do not apply to 
storage and handling of organic liquids at facilities that are subject 
to another NESHAP. This is the case irrespective of whether the other 
NESHAP establishes controls for air emissions from organic liquid 
distribution. Consequently, we propose to apply the adopted OLD 
controls to tanks (and associated equipment) at ECF tanks at a facility 
subject to another NESHAP, unless the owner/operator documents that the 
controls (on tanks that store or handle ECF) provided by the other 
NESHAP are at least equivalent to the controls adopted from OLD for 
ECF. See proposed Sec.  261.38(c)(1)(ii)(C).
    In addition, we are proposing conforming changes to implement the 
provisions discussed above, and specifically request comment on these 
proposed provisions. Specifically:
     To implement consideration of the RCRA oxygenates, 
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.'' See proposed Sec.  261.38(c)(1)(ii)(C)(2)(ii).
     To implement consideration of RCRA oxygenates, we are 
proposing to adopt the following definition of organic liquid--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 this subpart, as determined using the procedures 
specified in Sec.  63.2354(c); and (2) has an annual average true vapor 
pressure of 0.7 kilopascals (0.1 psia) or greater. See proposed Sec.  
261.38(c)(1)(ii)(C)(2)(iv).
     Defining an affected source as the collection of 
activities and equipment used to distribute emission-comparable fuel 
into, out of, or within a facility. This would simplify the Part 63 
definition of affected source for purposes of the OLD provisions we 
propose to adopt under Sec.  261.38. See proposed Sec.  
261.38(c)(1)(ii)(C)(2)(v); and
     Substituting the term ``subject to Sec.  
261.38(c)(1)(ii)(C)(3) of this chapter'' for the term ``subject to this 
subpart'' to facilitate implementation of the adopted OLD provisions. 
See proposed Sec.  261.38(c)(1)(ii)(C)(2)(vi).
    Finally, we are proposing that all notifications, reports, and 
communications required to implement the OLD provisions that we adopt 
under Sec.  261.38 be submitted to the RCRA regulatory authority rather 
than the CAA regulatory authority. This is because the conditions for 
air emission controls are RCRA provisions adopted from the CAA OLD 
NESHAP. As such, they should be implemented (and enforced) under RCRA 
authority. We specifically request comment on this proposed provision.
    As mentioned above, we propose to adopt virtually all of the 
provisions of the OLD NESHAP as RCRA conditions to control air 
emissions from storage and handling of ECF.\93\ See proposed Sec.  
261.38(c)(1)(ii)(C)(3). We believe the implementation requirements 
(e.g., notifications, reports, testing) are integral to the substantive 
emission controls and are necessary for compliance assurance.
---------------------------------------------------------------------------

    \93\ Note that we are not proposing to adopt Sec.  63.2343, What 
Are My Requirements for Emission Sources Not Requiring Control? This 
section establishes notification, recordkeeping, and reporting 
requirements for emissions sources not currently subject to control 
under Subpart EEE. We do not believe those controls are necessary 
given that ECF burners and generators must comply with the 
conditions of the exclusion (and thus the adopted OLD provisions) 
when they first manage ECF in a tank, tank car, or tank truck.
---------------------------------------------------------------------------

    We acknowledge that this attempt to adopt the provisions of the OLD 
NESHAP to cover ECF tanks substantially complicates the conditions of 
the ECF exclusion. This is primarily because the OLD NESHAP does not 
address hazardous RCRA oxygenates that have significant vapor pressure, 
and the OLD NESHAP does not address ECF tanks that are currently 
subject to hazardous waste tank air emission controls that address 
hazards that remain after the ECF exclusion is claimed. In retrospect, 
stakeholders may conclude it is less problematic to simply comply with 
the controls provided for hazardous waste tanks under Subparts AA, BB, 
and CC of Part 264 or 265. We specifically request comment on: (1) 
Whether adopting provisions of the OLD NESHAP as conditions of the ECF 
exclusion is appropriate to address the hazards posed by fugitive air 
emissions from storage and handling of ECF; (2) whether adopting the 
OLD NESHAP provisions in the manner proposed is appropriate; and (3) 
whether it would be equally protective, but less problematic, to simply 
comply with the air emission controls for hazardous waste tanks in lieu 
of the adopted OLD NESHAP provisions. Any such comments must include an 
appropriate rationale and supporting information in order for the 
Agency to be able to consider it for final action.
2. Underground Storage Tank Systems
    ECF storage tank systems that are subject to the requirements under 
40 CFR Part 280, Technical Standards and Corrective Action Requirements 
for Owners and Operators of Underground Storage Tanks would not be 
subject to the proposed ECF storage tank conditions.\94\ The Part 280 
requirements are self-implementing and apply to hazardous substances 
listed in 40 CFR Part 302.4 which are not hazardous wastes. All of the 
hydrocarbons and oxygenates for which the comparable fuel 
specifications would be waived for ECF are included on this list of 
hazardous substances. Thus, the Part 280 requirements would apply to 
all ECF storage tank systems that meet the Sec.  280.12 definition of 
underground storage tank. However, the Agency does request information 
on whether ECF is or would be stored in underground storage tanks or 
whether, because of the size of these tanks or other factors, ECF would 
only be stored in above ground storage tanks, tank cars and tank 
trucks. If so, the Agency solicits comment on a condition that would 
prohibit the storage of ECF in underground storage tanks.
---------------------------------------------------------------------------

    \94\ We request comment, however, on whether owners and 
operators of ECF tanks subject to the Part 280 requirements for 
underground storage tanks should also need to control fugitive air 
emissions as proposed as a condition of the ECF exclusion for 
storage in other tank systems. Similarly, we request comment on 
whether owners and operators of such tanks should also need to 
comply with the preparedness and prevention and emergency procedures 
provisions we propose as a condition of the ECF exclusion for 
storage in other tanks.
---------------------------------------------------------------------------

3. Closure of Tank Systems
    If an ECF tank system, tank car, or tank truck 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, tank car, and tank truck would 
become subject to the RCRA

[[Page 33308]]

Subtitle C regulation.\95\ \96\ See proposed Sec.  261.38(b)(13). This 
provision is modeled on Sec.  261.4(c) which states:
---------------------------------------------------------------------------

    \95\ We are also proposing today to clarify that this provision 
currently applies to currently excluded comparable fuel.
    \96\ 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.

    A hazardous waste which is generated in a product or raw 
material storage tank, a product or raw material transport vehicle 
or vessel, a product or raw material pipeline, or in a manufacturing 
process unit or an associated non-waste-treatment-manufacturing 
unit, is not subject to regulation under parts 262 through 265, 268, 
270, 271 and 124 of this chapter or to the notification requirements 
of section 3010 of RCRA until it exits the unit in which it was 
generated, unless the unit is a surface impoundment, or unless the 
hazardous waste remains in the unit more than 90 days after the unit 
ceases to be operated for manufacturing, or for storage or 
---------------------------------------------------------------------------
transportation of product or raw materials.

    Thus, like any other product storage unit which goes out of 
service, tank systems, tank cars or tank trucks that store or transport 
ECF 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/transportation unit), when the unit ceases 
operation as a product storage/transportation unit. However, the Agency 
expects that the owner/operators will take common-sense steps to 
decontaminate and decommission the ECF storage unit if and when it goes 
out of service. We also encourage the owner/operators in these 
situations to consult with the regulatory authority as to the best way 
to ensure that the unit is cleaned properly.
    Liquids and accumulated solids removed from a tank system, tank 
car, or tank truck 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 derived from a 
listed hazardous waste because the ECF is no longer meeting the 
conditions of the exclusion.
4. Waiver of RCRA Closure for RCRA Tanks That Become ECF Tanks
    Interim status and permitted storage units, and generator 
accumulation units exempt from permit requirements under Sec.  262.34 
of this chapter, are currently subject to the closure requirements in 
40 CFR Parts 264 and 265, including the requirement to close the unit 
within 90 days of receiving the final volume of hazardous waste (see 
264.113(a) and 265.113(a)). However, we are proposing in this 
rulemaking not to subject these units to these closure requirements 
provided that the storage units have been used to store only hazardous 
waste that is subsequently excluded under the conditions of Sec.  
261.38, and that afterward will be used only to store fuel excluded 
under Sec.  261.38. See proposed Sec.  261.38(b)(14).\97\
---------------------------------------------------------------------------

    \97\ This proposed provision mirrors the parallel provision for 
storage units managing zinc-bearing hazardous wastes where the 
wastes were subsequently excluded as zinc fertilizer. See Sec.  
261.4(a)(20)(v) and 67 FR at 48400 (July 24, 2002).
---------------------------------------------------------------------------

    This provision is intended to address situations where units such 
as tanks that have been used to store hazardous wastes, would be 
required under the existing regulations to go through RCRA closure 
before storage of the excluded material could commence. In the case of 
facilities that would be affected by today's proposed rule, this would 
mean that, for tanks that have been storing hazardous waste for which 
the generator claims an ECF exclusion, the owner/operator would need to 
remove all waste residues and other contamination from the tank system 
in order for the unit to then commence storing the identical material 
under the terms of the conditional exclusion for ECF. We believe that 
requiring closure under these circumstances would serve little, if any, 
environmental purpose, and so propose to explicitly provide in these 
situations that the storage tank system would not be subject to RCRA 
closure requirements. As discussed above, however, although an ECF tank 
system would not be required to undergo closure according to the RCRA 
hazardous waste regulations, the Agency expects that the owner/
operators will take common-sense steps to decontaminate and 
decommission the tank system if and when it ultimately ceases to 
operate as an ECF storage tank system. We also note that tank cars/
trucks need not meet the definition of an empty HW container before 
managing the same material as ECF (if that is the only material the 
container has managed).
5. Management of Incompatible Waste Fuels and Other Materials
    In today's proposal, ECF generators would need to 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 proposed Sec.  261.38(c)(1)(iv). Appropriate 
documentation is also proposed to be kept by ECF generators to document 
how they will take precautions to avoid these situations. This 
documentation must be kept on-site for three years. Tanks, tank cars 
and tank trucks holding incompatible materials should be separated by 
means of a dike, berm, wall or other device.

B. What Other Options Did We Consider?

1. Other Options We Considered To Establish Storage Conditions for ECF
    In evaluating possible storage controls for ECF, we considered two 
other options. One option would impose no specific new controls, but 
rather would rely on currently applicable controls for commercial 
products. The other option would apply full RCRA Subtitle C provisions 
until the ECF leaves the burner storage system--that is, the waste 
would remain hazardous until it was fed into the boiler.
    In considering the first option, we determined that it would be 
difficult to assure the safe management of ECF because it is not clear 
what, if any, existing controls would apply to a hazardous waste that 
becomes an excluded product/fuel. There is a patchwork of Federal and 
State controls that apply to various products and fuels, but no one set 
of controls that we would be confident would apply across the board and 
ensure that ECF would be properly managed, particularly given that ECF 
can contain higher concentrations of particular hazardous, volatile 
hydrocarbons and oxygenates. We also believe it would complicate the 
implementation of this rule, and persons who handled ECF would not 
necessarily know what conditions must be followed to assure exclusion 
of the ECF. Consequently, we did not consider this option further.
    The other option we considered, applying RCRA Subtitle C provisions 
until the ECF leaves the burner storage system, would in effect, move 
the point of exclusion to the ECF boiler. Storage and transportation of 
ECF would be subject to Subtitle C standards (which could include 
permits for burner storage units and for those generators that 
accumulate ECF for more than 90 days). We believe this option would be 
inappropriate because it would overregulate a material that has 
substantial fuel value and is inconsistent with the idea that ECF is an

[[Page 33309]]

excluded product, rather than a waste material. See Safe Food and 
Fertilizer, 350 F. 3d at 1269 (exclusion based on comparability can 
extend back to encompass exclusion of the material when stored). We 
believe that our tailored management conditions adopted from the SPCC 
requirements, and engineered secondary containment, along with the 
conditions related to control of fugitive air emissions, are more 
appropriate for ECF because they reflect requirements to which 
analogous commercial products are subject.
2. Consideration of Storage Controls for Currently Excluded Comparable 
Fuels
    As a separate issue, we considered whether to propose storage 
conditions for the currently excluded comparable fuel. The existing 
comparable fuel exclusion was promulgated in June 1998 and was not 
conditioned on meeting any particular storage controls. The comparable 
fuel exclusion was based on the principle that the excluded fuel would 
be comparable to fuel oil in concentration of hazardous constituents 
and physical properties that affect combustion, and thus can pose the 
same hazards as fuel oil during storage.
    Comparable fuel does not meet the definition of oil, however, and 
so is not subject to the SPCC requirements applicable to fuel oil. See 
40 CFR Part 112. Consequently, we considered whether to propose to 
apply the SPCC requirements to comparable fuel. We do not believe that 
applying the SPCC controls is warranted at this time because we are not 
aware of evidence of improper storage of these comparable fuels. 
Nonetheless, we request comment on whether there is evidence of 
improper storage of comparable fuel and whether the SPCC controls (or 
other storage controls) should be included as a condition for the 
existing comparable fuel exclusion.

V. How Would We Assure That the Conditions Are Being Satisfied?

A. What Recordkeeping, Notification and Certificate Conditions Would 
Apply to Generators and Burners?

    We believe it is appropriate to propose that ECF generators and 
burners satisfy the same recordkeeping, notification and certification 
conditions that apply to existing comparable fuel generators and 
burners, as well as additional conditions that reflect that ECF is not 
physically identical to comparable fuels. In today's preamble, we 
provide a brief description of our rationale for proposing these 
provisions as part of the exclusion. However, persons should also refer 
to the proposed rule for comparable fuels (see 61 FR 17358) and the 
final rule (see 63 FR 33782) for further discussion.
1. Waste Analysis Plans
    We are proposing the same waste analysis plan conditions for ECF as 
existing comparable fuel because ECF must also meet all of the 
specifications for comparable fuel, except the specifications for 
particular hydrocarbons and oxygenates. See existing Sec.  261.38(c)(7) 
renumbered as proposed Sec.  261.38(b)(4). These conditions require 
that generators develop a waste analysis plan prior to sampling and 
analysis of their ECF to determine if the waste fuel meets the 
exclusion specifications.
    In addition, burners of ECF would need to address a number of the 
other conditions to ensure that the ECF is in compliance with the 
exclusion. Specifically, burners would need to ensure that the heating 
value of the fuel, as-fired, is 8,000 Btu/lb, as well as whether the 
concentration of benzene or acrolein exceeds two percent, the cutpoint 
for firing rate restrictions on the ECF. If the generator does not 
provide this information to the burner for each shipment of ECF, 
today's proposal would require the burner to develop and implement an 
ECF waste analysis plan to obtain the information. In addition, if a 
burner blends or treats ECF to achieve an as-fired heating value of 
8,000 Btu/lb or greater or an as-fired concentration of benzene or 
acrolein of two percent or lower, we are proposing that the burner must 
analyze the fuel as received from the generator and again after 
blending or treatment to determine the heating value, benzene 
concentration, or acrolein concentration, as relevant. See proposed 
Sec.  261.38(b)(5).
    The generator (and burners required to develop a sampling and 
analysis plan) also must have documentation of the: (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 waste/fuel tested; and (4) results 
of the statistical analysis. More information on developing these 
elements of a waste/fuel analysis plan is found in the SW-846 guidance 
document. These are the same requirements that exist in the existing 
comparable fuels exclusion waste analysis plans.
2. Sampling and Analysis
    As discussed above, we are proposing that ECF must meet all of the 
specifications for comparable fuel, except the specifications for 
particular hydrocarbons and oxygenates. Therefore, we are proposing the 
same conditions regarding sampling and analysis for ECF that are part 
of the existing comparable fuel exclusion, except the condition to 
determine the concentrations of particular hydrocarbons and 
oxygenates.\98\
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    \98\ Although the specifications for benzene and acrolein would 
not apply, the generator (or the burner) must determine the 
concentration of these compounds because we propose ECF firing rate 
restrictions for ECF containing more than two percent of either of 
these compounds.
---------------------------------------------------------------------------

    The sampling and analysis provisions allow process knowledge to be 
used under certain circumstances to determine which constituents to 
test for in the initial scan and any follow up testing. Generators of 
ECF should have adequate knowledge of this hazardous secondary material 
to allow the use of process knowledge in determining which constituents 
may and may not be present in their waste. The use of process knowledge 
may only be used by the original generator of the hazardous waste. We 
are proposing that testing be required for all constituents, except the 
particular hydrocarbons and oxygenates for which the specifications do 
not apply, and those compounds that the initial generator determines 
are not present in the waste. We are also proposing that the following 
cannot be determined to ``not be present'' in the waste: (1) A 
hazardous constituent that causes it to exhibit the toxicity 
characteristic for the waste 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 waste; (3) a hazardous constituent 
introduced into the process that generates the waste; or (4) a 
hazardous constituent that is a byproduct or side reaction to the 
process that generates the waste. This condition is also in the 
existing comparable fuels exclusion.
    Furthermore, we are proposing that the original generator has the 
responsibility to document their claim that specific hazardous 
constituents meet the exclusion specifications based on process 
knowledge. 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 
contained in the proposed exclusion, any facility that treats 
(including burning in a boiler), stores or disposes of the ECF is in 
violation of Subtitle C hazardous waste requirements.

[[Page 33310]]

3. Speculative Accumulation
    We are proposing to adopt for ECF the same speculative accumulation 
provisions that apply to existing comparable fuel and to any recycled 
hazardous waste under Sec.  261.2(c)(4). See proposed Sec.  
261.38(b)(7). Generators and burners must actually put a given volume 
of the fuel to its intended use during a one-year period, namely 75 
percent of what is on hand at the beginning of each calendar year 
commencing on January 1. See also the definition of ``accumulated 
speculatively'' in Sec.  261.1(c)(8). Prohibiting speculative 
accumulation is warranted because over-accumulation of hazardous waste-
derived recyclables has led to severe hazardous waste damage incidents. 
See 50 FR at 658-61 and 634-37 (January 4, 1985). There is no formal 
recordkeeping requirement associated with the speculative accumulation 
provision, but the burden of proof is on the generator and burner to 
demonstrate that the material has not been speculatively 
accumulated.\99\
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    \99\ Consult Sec.  261.2(f) and 50 FR at 636-37 placing the 
burden for documenting conformance with conditions of an exclusion 
on the person claiming the exclusion in an enforcement action.
---------------------------------------------------------------------------

4. Notifications
    We are proposing the same notification requirements for ECF 
generators that comparable fuel generators must comply. Also, ECF 
burners would be subject to the same notification conditions as 
comparable fuel burners, as well as additional notification conditions.
    a. ECF Generator Notification. The person claiming that a hazardous 
waste meets the exclusion criteria for ECF would be the ECF generator. 
The ECF generator need not be the person who originally generates the 
hazardous waste, but can be the first person who documents and 
certifies that a specific hazardous waste meets the exclusion criteria.
    Just as for comparable fuel generators, we are proposing that an 
ECF generator submit a one-time notification to regulatory officials 
(i.e., State RCRA and CAA officials). To be excluded, the generator 
must send a notification to the EPA Regional RCRA and CAA Directors in 
States without final RCRA program authorization, and to the State RCRA 
and CAA Directors in authorized States. Notification of the RCRA and 
CAA Directors will provide notification of the exclusion and 
appropriate documentation to both the RCRA and CAA implementing 
officials. The Agency's intent is for the notification to be sent to 
both the RCRA and CAA implementing officials because of the nature of 
this exclusion--a RCRA excluded waste being burned in the CAA regulated 
unit. Also, if the ECF is burned in a State other than the generating 
State, then we are proposing that the ECF generator also provide 
notification to that State's or Region's RCRA and CAA Directors.
    Since this would be a self-implementing exclusion, in order to 
ensure delivery, we are proposing that the notification be sent by 
certified mail, or other mail service that provides written 
confirmation of delivery and until the notification of exclusion is 
received and the ECF generator is informed of such receipt, the waste 
is still a hazardous waste and must be managed as such. Only after the 
receipt of such notification by the regulatory officials would the 
hazardous waste be excluded, provided it was managed in accordance with 
the conditions proposed today for ECF. If an ECF loses the exclusion, 
the waste fuel is subject to regulation as a hazardous waste until it 
returns to compliance with the conditions and a new notification is 
provided by the generator or another subsequent handler.
    Just as for the one-time generator notification in the existing 
comparable fuels exclusion, we are proposing that the notification 
contain the following information: (1) The name, address, and RCRA ID 
number of the person/facility claiming the exclusion; (2) the 
applicable EPA Hazardous Waste Codes for the ECF if it were not 
excluded from the definition of solid waste; (3) the name and address 
of the units, meeting the requirements of proposed Sec.  261.38(c)(2), 
that will burn the ECF; and (4) the following statement 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. ECF Burner Notifications. We are proposing that the ECF Burner 
would provide the same public notification as required for existing 
comparable fuel burners, as well as a one-time, initial notification to 
the regulatory authority. For the public notification, the burner must 
submit for publication in a major newspaper of general circulation 
local to the site where the ECF will be burned, a notice entitled 
``Notification of Burning of Emission Comparable Fuel Excluded Under 
the Resource Conservation and Recovery Act'' containing the following 
information: (1) Name, address, and RCRA ID number of the generating 
facility; (2) name of the unit(s) that will burn the ECF; (3) a brief, 
general description of the manufacturing, treatment, or other process 
generating the emission comparable fuel; (4) an estimate of the average 
and maximum monthly and annual quantity of ECF that will be used as a 
fuel in such units; and (5) name and mailing address of the State or 
Regional Directors to whom the notification is being submitted. This 
notification must be published in the newspaper prior to the use of the 
ECF, and is only necessary once for each material. In addition, to be 
excluded, we are also proposing that the ECF burner submit a one-time 
initial notification to regulatory officials (proposed Sec.  
261.38(c)(4)(i)). The one-time notification would require that the 
burner certify that the excluded fuel will be stored under the 
conditions required by this rule and that the burner will comply with 
the design, operating, notification, reporting and recordkeeping 
requirements of this rule. This initial notification would facilitate 
compliance assurance by alerting the regulatory authority that the 
burner is subject to substantive conditions of the exclusion and by 
ensuring that the burner is aware of those conditions.
5. Burner Certification
    We are proposing the same burner certification for ECF burners as 
exist for comparable fuel with a few additional conditions. This burner 
certification is intended to protect the generator by having the ECF 
burner certify to the generator that he will comply with all applicable 
storage and burning conditions. Specifically, generators intending to 
ship the ECF off site for burning would obtain a one-time written, 
signed statement from the burner that includes the following: A 
certification that the burner will comply with the storage conditions, 
burner conditions, and the notification, reporting, recordkeeping and 
other conditions of the exclusion of ECF under 40 CFR 261.38; the name 
and address of the facility that will use the ECF as a fuel; and a 
certification that the state in which the burner is located is 
authorized to exclude wastes as

[[Page 33311]]

excluded fuels under (proposed) 40 CFR 261.38(a)(2). This condition 
coupled with the condition to notify the State or Regional Directors 
will enable regulatory officials to take any measure that may be 
appropriate to ensure that excluded fuel is burned in conformance with 
the applicable regulations and so does not become part of the waste 
management problem.
6. Recordkeeping
    a. General. We are proposing the same recordkeeping conditions for 
ECF generators that currently apply to comparable fuel generators. In 
addition, we are proposing a condition that ECF burners keep any 
records pertaining to the sampling and analysis of the ECF.\100\ The 
Agency believes that because of the self-implementing nature of this 
exclusion, maintenance of proper information on-site is essential to 
the proper implementation of the conditional exclusion.
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    \100\ We are proposing that ECF burners who are required to 
sample and analyze ECF to determine the heating value of the ECF or 
the concentration of benzene or acrolein, if the generator has not 
provided that information for each shipment, must keep the same 
records as ECF generators regarding the sampling and analysis plan 
and the results of sampling and analysis.
---------------------------------------------------------------------------

    More specifically, we are proposing that ECF generators maintain 
the following files (see proposed Sec.  261.38 (b)(8)) at the facility 
generating the fuel: (1) All information required to be submitted to 
the State RCRA and CAA Directors as part of the notification of the 
claim of exclusion; (2) a brief description of any process used to 
convert the hazardous waste to ECF; (3) an estimate of the average and 
maximum monthly and annual quantities of each hazardous waste claimed 
to be excluded; (4) documentation for any claim that a constituent is 
not present in the hazardous waste pursuant to Sec.  261.38(b)(8)(iv); 
(5) the results of all fuel analyses with quantitation limits; (6) 
documentation as required for the treatment or blending of a waste to 
meet the exclusion specifications \101\; (7) a certification from the 
burner if the excluded fuel is to be shipped off-site; and (8) the 
certification signed by the person claiming the exclusion or his 
authorized representative. The ECF generator would also maintain 
documentation of the waste analysis plan and the results of the 
sampling and analysis that includes the following: (1) The dates and 
times waste samples were obtained, and the dates the samples were 
analyzed; (2) the names and qualifications of the person(s) who 
obtained the samples; (3) a description of the temporal and spatial 
locations of the samples; (4) the name and address of the laboratory 
facility at which analyses of the samples were performed; (5) a 
description of the analytical methods used, including any clean-up and 
sample preparation methods; (6) 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 a description of any deviations from analytical 
methods written in the plan or from any other activity written in the 
plan which occurred; (7) all laboratory analytical results 
demonstrating that the exclusion specifications have been met for the 
ECF; and (8) 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 Sec.  261.38(b)(9) and also provides for the 
availability of the documentation to the generator upon request. These 
records are to assist with compliance assurance with the required 
operating conditions. These records and those required for off-site 
shipments (discussed below) would have to be maintained for the period 
of three years. A generator (and ECF burner, as applicable) must 
maintain a current waste analysis plan during that three year period.
---------------------------------------------------------------------------

    \101\ ECF can be blended in order to meet the viscosity 
specification. Records would have to be kept demonstrating that the 
ECF met all other specifications besides viscosity before blending. 
ECF can also be treated to meet the specifications. In that case, 
records would have to be kept that demonstrate bona fide treatment 
has occurred.
---------------------------------------------------------------------------

    b. Off-Site Shipments. We are also proposing that, for each 
shipment of ECF a generator sends off-site for burning, a record of the 
shipment must be kept by the generator and by the burner. We note that 
a comparable fuel generator is currently subject to this condition, and 
the condition should apply to an ECF generator for the same reasons. 
The Agency believes that the generator keeping records of each shipment 
would help ensure that ECF is transported to the designated boiler. 
Therefore, we are proposing that ECF generators keep records of the 
following information for each off-site shipment, as currently required 
for comparable fuel generators: (1) The name and address of the 
facility receiving the ECF for burning; (2) the quantity of ECF 
delivered; (3) the date of shipment or delivery; (4) a cross-reference 
to the record of ECF analysis or other information used to make the 
determination that it meets the specifications; and (5) the one-time 
certification by the burner. These records are to facilitate tracking 
and to ensure that ECF is shipped to a designated burner.
    In addition, we believe that an ECF burner should also keep a 
record of each shipment to assist with compliance assurance given that 
there are conditions on burning that relate to the heating value of the 
ECF and the concentration of benzene and acrolein. Accordingly, we are 
proposing that ECF burners keep records of the following information 
for each shipment received from an off-site generator: (1) The name, 
address, and RCRA ID number of the generator shipping the ECF; (2) the 
quantity of ECF delivered; and (3) the date of delivery.
    Finally, we are proposing that ECF generators that ship ECF off-
site must ship directly to the burner. ECF could not be handled by a 
broker or intermediate handler. This would help ensure that the ECF is 
received by the generator's designated burner and stored under the 
prescribed conditions prior to burning. This is important because ECF 
can pose greater hazard when stored than comparable fuel, and may not 
have emissions comparable to fossil fuel if not burned by the 
designated burner under the prescribed conditions. ECF must be burned 
under the specified burner conditions to ensure conformance with the 
basic principle of the exclusion--that emissions are comparable to 
those from burning fuel oil.
7. Transportation
    We believe that the Department of Transportation (DOT) 
requirements, which govern the transportation of hazardous materials, 
will ensure the safe transportation of ECF. It should be noted that DOT 
requirements are self-implementing and ECF transporters are required to 
comply with all applicable requirements under the DOT regulations in 49 
CFR parts 171 through 180.
8. Ineligible RCRA Hazardous Waste Codes
    Consistent with the current comparable fuel exclusion, we are not 
proposing to restrict the ECF exclusion to particular waste codes, 
except that wastes listed for the presence of dioxins or furans would 
not be eligible for the ECF exclusion. See Sec.  261.38(b)(11). 
However, we do not expect that corrosive or reactive wastes would be 
candidates for ECF because of the detrimental impacts on the burning 
unit that would occur.

[[Page 33312]]

B. What If I Fail To Comply With Conditions of the Exclusion?

    It is the responsibility of the generator claiming the exclusion to 
demonstrate eligibility.\102\ More specifically, to be eligible for 
this exclusion, we are proposing that the person claiming the exclusion 
must meet the ECF specifications under proposed Sec.  261.38(a)(2), as 
well as the other conditions of the exclusion: the provisions for 
achieving the specifications under proposed Sec. Sec.  261.38(a)(4-7); 
the implementation requirements under proposed Sec.  261.38(b), and the 
special requirements for managing ECF under proposed Sec.  261.38(c).
---------------------------------------------------------------------------

    \102\ Consult Sec.  261.2(f) placing the burden for documenting 
conformance with conditions of an exclusion on the person claiming 
the exclusion in an enforcement action.
---------------------------------------------------------------------------

    After the exclusion for a waste has become effective, the 
conditions of the exclusion must continue to be met in order to 
maintain the exclusion.\103\ If any person managing ECF fails to meet 
one or more of the proposed conditions of the exclusion under Sec.  
261.38, we are proposing that the ECF must be managed as a hazardous 
waste. Therefore, each person who manages ECF that loses its exclusion 
would have to manage it in accordance with the hazardous waste 
management requirements from the point when the material was first 
generated, regardless of whether the person is the one who actually 
causes the loss of the exclusion. EPA could choose to bring an 
enforcement action under RCRA section 3008(a) for all violations of 
RCRA subtitle C requirements occurring from the time the secondary 
material is generated through the time that it is ultimately disposed.
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    \103\ Separate and distinct from any requirement or condition 
that would be established under this proposed rule, all generators 
of a solid waste--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.
---------------------------------------------------------------------------

    We request comment, however, 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 the material 
was considered waste when handled by the generator, as long as the 
generator can adequately demonstrate that he has made reasonable 
efforts to ensure that the material will be managed by the burner under 
the conditions of the exclusion.\104\ To achieve this benefit, the 
generator would have to exercise ``environmental due diligence'' in 
reviewing the operations of the burner in advance of transferring the 
hazardous secondary materials. 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.
---------------------------------------------------------------------------

    \104\ Although a proposed condition of the ECF exclusion would 
require 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.
---------------------------------------------------------------------------

    We also request comment on whether a reasonable efforts provision 
should include criteria that define reasonable efforts, and what those 
criteria should be. For example, a reasonable efforts provision could 
prescribe that the generator must evaluate by site visits, prior to the 
first shipment and every six months thereafter, the ECF storage and 
boiler design and operation at off-site unaffiliated facilities (e.g., 
an off-site facility that is not corporately affiliated with the 
generator) that they do business with.
    In addition, we request comment on whether to require the generator 
to maintain records at the generating facility documenting the 
reasonable efforts made before transferring ECF to the burner. Such 
records would presumably include copies of audit reports, and/or other 
relevant information that was used as the basis for the generator's 
determination that the burner will manage the material under the 
conditions of the exclusion. Requiring specific documentation would 
help EPA or the authorized state to determine whether the generator did 
make reasonable efforts to ensure that his ECF was managed 
appropriately.
    We also request comment on whether, as part of the documentation, 
the generator should also be required to maintain at the generating 
facility a certification statement, signed and dated by an authorized 
representative of the generator company, that for each burner to which 
the generator transferred ECF, that the generator made reasonable 
efforts to ensure that the ECF was properly managed. Such certification 
statement could, for example, be worded as follows: ``I hereby certify 
in good faith and to the best of my knowledge that, prior to arranging 
for transport of excluded hazardous secondary materials to [insert 
burner name], reasonable efforts were made to ensure that the ECF will 
be managed under the conditions of the exclusion found at 40 CFR 
261.38, and that such efforts were based on current and accurate 
information.''
    Finally, we also solicit comment on whether the frequency of 
periodic updates of the ``reasonable efforts'' should be identified in 
the regulations, or whether that question should be left to individual 
situations applying an objectively reasonable belief standard. 
Information on industry standards for facility audits of off-site 
activities, including how frequently they are conducted, would be 
especially helpful.
    Under the reasonable efforts provision, a generator who met his 
reasonable efforts obligations might ship his ECF to an unaffiliated 
burner where, due to circumstances beyond the generator's control, the 
burner failed to comply with the conditions of the exclusion. In such 
situations, and where the generator's decision to ship to that burner 
is based on an objectively reasonable evaluation that the burner would 
manage the ECF under the conditions of the exclusion consistent with 
this proposed rule, the generator would not have violated the terms of 
the exclusion.

C. How Would Spills and Leaks Be Managed?

    ECF that is spilled or leaked, not cleaned up immediately and no 
longer meets the conditions of the exclusion is ``discarded.'' Thus, it 
is a solid waste. In addition, spilled or leaked ECF is a hazardous 
waste if it exhibits a characteristic of hazardous waste or if the ECF 
were derived from 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 the waste. See, for example, 40 CFR 
264.1(g)(8). In addition, the release could potentially be addressed 
through enforcement orders, such as orders under RCRA sections 3013 and 
7003.

D. What Would Be the Time-Line for Meeting the Proposed Conditions?

    Because this is an optional and conditional exclusion, we are 
proposing that all conditions in Sec.  261.38 must be

[[Page 33313]]

met before ECF may be managed outside of the Subtitle C hazardous waste 
regulations.

VI. What Clarifications and Revisions Are Proposed for the Existing 
Conditions for Exclusion of Comparable Fuel?

    We are proposing to clarify the consequences of failure to maintain 
compliance with the conditions of the exclusion for comparable fuel and 
the status of tanks that cease to be operated as comparable fuel 
storage tanks.\105\ We are also proposing to waive the RCRA closure 
requirements for tank systems that are used only to store hazardous 
wastes that are subsequently excluded as a comparable fuel.
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    \105\ The proposed rule would also restructure the current 
requirements for comparable fuel (and syngas fuel) to make the 
regulatory language more readable given that the regulation must 
accommodate the proposed exclusion for ECF. We regard these language 
changes as purely technical, and thus, will accept comment only on 
whether the suggested language changes express the current meaning 
of the provision. We are not reexamining, reconsidering or otherwise 
reopening these provisions for comment.
---------------------------------------------------------------------------

    As discussed in Section V in the context of ECF and for the same 
reasons, comparable fuel that has lost its exclusion because of failure 
to comply with one or more conditions of the exclusion must be managed 
as hazardous waste from the point of generation. See proposed Sec.  
261.38(d). As examples, comparable fuel that is spilled or leaked and 
cannot be burned under the conditions of the exclusion (i.e., in a 
burner listed under proposed Sec.  261.3(b)(3)(i)), and comparable fuel 
that is speculatively accumulated must be managed as hazardous waste.
    In addition, consistent with the discussion in Section IV.A.3 in 
the context of ECF and for the same reasons, we propose to clarify 
that, if a comparable fuel tank system, tank car or tank truck ceases 
to be used to store comparable fuel product, but has not been cleaned 
by removing all liquids and accumulated sludge within 90 days of 
cessation of comparable fuel storage operations, that such systems 
would become subject to the RCRA Subtitle C regulation as a hazardous 
waste storage unit.
    Finally, we are proposing today that interim status and permitted 
storage units, and generator accumulation units exempt from permitting 
under Sec.  262.34, are not subject to the closure requirements of 40 
CFR Parts 264 and 265 provided that the storage units have been used to 
store only hazardous waste that is subsequently excluded under the 
conditions of Sec.  261.38, and that afterward will be used only to 
store fuel excluded under Sec.  261.38. This is consistent with the 
proposed waiver of RCRA closure requirements for ECF, as discussed in 
Section IV.A.4, and is based on the same rationale. See proposed Sec.  
261.38(b)(14). However, as we noted in Section IV.A.4, the Agency 
expects that the owner/operator take common-sense steps to 
decontaminate and decommission the units and encourage them to consult 
with the regulatory authority as to the best way to ensure that the 
tank system is cleaned properly. See proposed Sec.  261.38(b)(13).

VII. What Are the Responses to Major Comments of the Peer Review Panel?

    In April 2007, EPA assembled two panels of expert scientists to 
review the significant scientific information used to support the 
proposed rule. One panel addressed questions regarding support for the 
comparable emissions rationale, and the other panel addressed questions 
regarding support for the procedure we used to rank the relative hazard 
of the 37 hydrocarbons and oxygenates for which specifications have 
been established in Table 1 to existing Sec.  261.38.
    Syracuse Research Corporation, under contract to USEPA, selected 
reviewers for both independence and scientific/technical expertise. 
Each panel member was selected for his/her recognized technical 
expertise that bears on the subject matter under discussion. The 
evaluation of real or perceived bias or conflict of interest is an 
important consideration and every effort was made to avoid conflicts of 
interest and significant biases.
    The peer review reports, which contain the resumes of the peer 
reviewers, are available in the docket to the proposed rule (Docket ID 
No. EPA-HQ-RCRA-2005-0017):
     Syracuse Research Corporation, ``Rationale for Exclusion 
of Emission-Comparable Fuel,'' April 2007; and
     Syracuse Research Corporation, ``Application of WMPT to 
Rank Comparable Fuels Constituents,'' April 2007.
    In this section of the preamble, we summarize the major comments by 
the peer reviewers and provide responses. We respond to other comments 
in separate documents available in the docket to the proposed rule:
     USEPA, ``Response to Peer Review Comments on the Rationale 
for Exclusion of Emission-Comparable Fuel,'' May 2007; and
     USEPA, ``Response to Peer Review Comments on the 
Application of WMPT to Rank Comparable Fuels Constituents, May 2007.

A. What Are the Reponses to Major Comments Regarding the Comparable 
Emissions Rationale?

    Comment: One cannot conclude that ECF boilers would be controlled 
at least as stringently as hazardous waste boilers.
    Response: We disagree. As we explain in Section II.A in Part Two 
above,\106\ ECF boilers would be required to: (1) Continuously monitor 
carbon monoxide (CO) to ensure that levels remain below 100 ppmv; and 
(2) fire the ECF into the flame zone of the primary fossil fuel, which 
must comprise at least 50% of the boiler's fuel requirements. These two 
conditions ensure good combustion and a 99.99% destruction and removal 
efficiency (DRE) of the hazardous compounds (i.e., benzene, toluene, 
and the listed oxygenates). In addition, these conditions--CO below 100 
ppmv and ensuring 99.99% DRE--are the principal controls applicable to 
hazardous waste combustors to control non-dioxin/furan organic HAP. The 
remaining proposed ECF boiler conditions (e.g., the boiler must be of a 
watertube, nonstoker design; primary fuel must have a minimum heating 
value of 8,000 Btu/lb; boiler load must be greater than 40%; the ECF 
must have low viscosity) help ensure the good combustion conditions 
typical of an oil-fired industrial boiler and are appropriate given 
that ECF would be burned under a conditional exclusion without a RCRA 
permit and without the regulatory oversight typical for a RCRA 
hazardous waste combustor.
---------------------------------------------------------------------------

    \106\ We explain in that discussion, that, of the four 
combustion failure modes that EPA has identified--total ignition 
failure, partial ignition failure, combustion air failure, and rapid 
quench failure--only a total ignition failure could result in low CO 
and poor destruction of organic compounds in the feed and combustion 
by-products. Total ignition failure could potentially occur in a 
boiler if the fuel firing gun inadvertently directed the fuel to a 
location in the combustion chamber away from the flame zone--i.e., 
if the fuel were not fired into the flame zone. The other combustion 
failure modes (i.e., partial ignition failure; combustion air 
failure; and rapid quench failure) would result in high CO and 
potentially high unburned organics.
---------------------------------------------------------------------------

    The reviewer notes that hazardous waste boilers are subject to 
operating requirements in addition to CO monitoring to control 
emissions of non-dioxin/furan organic HAP. Thus, the reviewer questions 
whether ECF boilers would be controlled as stringently as hazardous 
waste boilers. Those additional operating requirements (e.g., minimum 
combustion chamber temperature; maximum waste feedrate), however, are 
designed to ensure that a hazardous waste boiler maintains 99.99% DRE. 
Operating limits on those parameters are established during the DRE 
emissions test. For ECF boilers, the

[[Page 33314]]

conditions to fire ECF directly into a stable, primary fuel flame zone 
and maintain a CO limit of 100 ppmv or less ensure 99.99% DRE. Thus, 
those additional operating requirements that are established for 
hazardous waste boilers during the DRE emissions test are not needed to 
ensure that 99.99% DRE is maintained for ECF boilers.
    Comment: To evaluate whether ECF boiler emissions are likely to be 
substantially higher than oil-fired boiler emissions, the Agency 
inappropriately compared test condition average emissions for hazardous 
waste boilers (as a surrogate for ECF boiler emissions, given that ECF 
boilers would be controlled at least as stringently as hazardous waste 
boilers) to the 95th percentile of run emissions for oil-fired boilers. 
The reviewer noted that, to compare apples-to-apples, hazardous waste 
boiler test condition averages should be compared to oil-fired boiler 
test condition averages.
    Response: In conducting our initial analysis, we had not compared 
hazardous waste boiler test condition averages to oil-fired boiler test 
condition averages because we have limited oil-fired boiler data (test 
conditions) for several of the compounds. Given the general paucity of 
emissions data and considering the large number of oil-fired industrial 
boilers, we used the oil-fired boiler runs, rather than test condition 
averages, to help represent the range of values that such boilers may 
emit.
    Nonetheless, in retrospect, we agree with the reviewer. In fact, we 
have substantial oil emissions data representing many test conditions 
for several compounds, such as benzene, formaldehyde, naphthalene, and 
toluene. And, although we have limited data for several other compounds 
that comprise only one to three test conditions, we also have hazardous 
waste boiler data for several compounds that comprise only a few test 
conditions.
    We have reanalyzed our data base to compare hazardous waste boiler 
emission test condition averages to the 95th percentile oil-fired 
boiler emission test condition averages. The results of that reanalysis 
support the proposed rule. See Section I.B.1 in Part Two above.
    The 95th percentile test condition average benchmark levels for 
oil-fired boiler emissions are lower than the 95th percentile run 
benchmark levels, as expected. This results in additional hazardous 
waste boiler emissions exceeding the oil-fired boiler emissions 
benchmark.\107\ However, these additional exceedances do not affect our 
view that ECF boiler emissions would be generally comparable to oil-
fired boiler emissions (e.g., they are directly comparable or 
exceedances are not of consequence because they are de minimis).
---------------------------------------------------------------------------

    \107\ See memorandum from Bob Holloway, USEPA, to Docket ID No. 
EPA-HQ-RCRA-2005-0017, entitled ``Reanalysis of Comparison of Oil-
Fired Boiler Emissions to Hazardous Waste Boiler Emissions 
Considering Test Condition Averages for Oil Emissions Data,'' dated 
April 25, 2007.
---------------------------------------------------------------------------

    Specifically, there is one additional exceedance each for 
benz(a)anthracene and fluorine, and two additional exceedances for 
ethylbenzene. All of these are de minimis exceedances, however, with 
emissions below 1 [mu]g/dscm.
    There is also one additional exceedance for benzene, but the 
exceedance is de minimis given that the revised oil-fired boiler 
benchmark is 90 [mu]g/dscm and the additional hazardous waste boiler 
exceedance is at an emission level of 91 [mu]g/dscm.
    Finally, there are three additional exceedances for methylene 
chloride. The revised oil emissions benchmark is 40 [mu]g/dscm, rather 
than the previous benchmark of 58 [mu]g/dscm based on run data, but is 
based on only two test conditions. Thus, we believe it is not 
representative of the range of oil-fired boiler emissions. The three 
additional hazardous waste boiler emissions exceedances are at 54 
[mu]g/dscm, 52 [mu]g/dscm, and 50 [mu]g/dscm. Test reports for two of 
the three boilers indicate that methylene chloride contamination is 
known or suspected. The third test report is silent on the potential 
for contamination, but methylene chloride is commonly recognized as a 
sample and lab contaminant. Thus, we do not consider the remaining 
exceedance an indication that hazardous waste boiler emissions of 
methylene chloride are not comparable to oil emissions, considering 
also the limited oil emissions data and the de minimis potential (but 
not likely) increase in emissions.
    Comment: Given that combustion is a percent destruction process, 
residual emissions of organic compounds in the feed will increase as 
feedrate increases. The Agency should ensure that burning fuels with 
high concentrations of hazardous hydrocarbons and oxygenates will, in 
fact, result in trace levels of emissions. An approach would be to 
project emission levels for the ECF compounds assuming 99.99% or 
possibly 99.999% DRE (since most DRE testing has shown this result) to 
determine if emissions are within the range of benchmark levels.
    Response: It is reasonable to question whether emissions of 
unburned ECF compounds could exceed the benchmark levels given that the 
ECF compounds (i.e., benzene, toluene, and the listed oxygenates) could 
be fed at high feedrates. These hazardous compounds could be present in 
ECF at any concentration and ECF could represent a substantial portion 
of the fuel fired to the boiler--25 percent of the heat input for 
benzene and acrolein, and 50 percent of the heat input for the 
remaining compounds.\108\
---------------------------------------------------------------------------

    \108\ This is a simplification. The actual condition would be 
that the firing rate of ECF containing benzene and acrolein above 
the specification levels in Table 1 to Sec.  261.38 would be 
restricted to 25% of the total fuel input to the boiler on a heat or 
volume input basis, whichever results in a lower volume input of 
ECF, if the concentration of benzene or acrolein in the ECF exceeds 
2 percent by mass. For the other compounds, the ECF firing rate 
would be restricted to 50% of the total fuel input to the boiler on 
a heat or volume input basis, whichever results in a lower volume 
input of ECF.
---------------------------------------------------------------------------

    We believe, however, that the hazardous waste boiler emissions data 
that we use as a surrogate for ECF emissions \109\ are likely to 
include emissions that would result from burning ECF. It is reasonable 
to assume that some of the 26 hazardous waste watertube steam boilers 
in our data base are burning waste fuels that are destined to become 
ECF.\110\ As we have explained above in Part Two, Section I.B.1, those 
emissions are comparable to oil emissions.
---------------------------------------------------------------------------

    \109\ Hazardous waste boiler emissions are a reasonable 
surrogate for ECF boiler emissions because organic emissions from 
ECF boilers would be controlled at least as stringently as emissions 
from hazardous waste boilers, as discussed above in response to 
Comment 1.
    \110\ This is a reasonable assumption because waste fuels that 
would qualify as ECF are premium fuels that a facility would want to 
burn, if possible, in an on-site boiler or in an affiliated 
facility's boiler, rather than contracting with a commercial 
hazardous waste combustor to burn the fuel.
---------------------------------------------------------------------------

    Nonetheless, we acknowledge that the ECF exclusion would allow 
benzene, toluene, and the listed oxygenates to be fed into industrial 
boilers at much higher rates than they may be actually fired in 
practice. For example, the maximum concentrations of many of these 
compounds in waste fuels that have been identified as candidate fuels 
for exclusion are relatively low: 0.05% for acrolein; 10% for methyl 
ethyl ketone; 15% for isobutyl alcohol and acetophenone; and 25% for 
benzene.\111\ Toluene can be present at much higher concentrations, 
however, including levels up to nearly 100%. (As a practical matter, 
although the ECF exclusion would allow unlimited concentrations, the 
concentration of hazardous

[[Page 33315]]

compounds will be limited to the levels actually found in waste fuels.) 
In addition, ECF would only represent a portion of the fuel fed to the 
boiler since at least 50% of the fuel must be fossil fuel. Finally, 
actual firing rates (and thus the feedrate of the compound of concern) 
will depend on a number of other factors, including the quantity of ECF 
generated by a facility that burns ECF on-site, and the quantity of ECF 
in the vicinity of facilities that burn ECF from off-site sources.
---------------------------------------------------------------------------

    \111\ See memorandum from Bob Holloway, USEPA, to Docket ID No. 
EPA-HQ-RCRA-2005-0017, entitled ``Potential Approach to Establish 
Firing Rate Restrictions on Emission-Comparable Fuel,'' dated May 
21, 2007, Table 2.
---------------------------------------------------------------------------

    Notwithstanding current actual practice regarding the 
concentrations of compounds in ECF and ECF firing rates, it is 
reasonable to question whether the exclusion would allow such high 
feedrates of the compounds of concern that ECF emissions may not meet 
the criterion of being comparable to the emissions from burning oil. 
For example, if we assumed that a DRE of only 99.99% were achieved when 
feeding ECF with a 90% concentration of a compound of concern at the 
maximum firing rate (i.e., 25% for benzene and acrolein and 50% for the 
other compounds), the residual emissions of the compound would far 
exceed the emissions from burning oil.
    Consequently, we request comment on an approach that would limit 
the feedrate of benzene, toluene, and the listed oxygenates to ensure 
that ECF emissions are comparable to the emissions from burning oil. 
Under the approach, we would identify a target emission level for each 
of these hazardous compounds, estimate a destruction and removal 
efficiency (DRE) for the compound, and calculate a maximum ECF firing 
rate as a function of the concentration of the compound in the ECF.
    We would identify the target emission levels as:
     For each hazardous compound for which we have emissions 
data from oil-fired industrial boilers, the target level would be the 
highest test condition average (after screening out high apparent 
outliers) or a de minimis level, whichever is higher;
     For each hazardous compound for which we have only 
hazardous waste boiler emissions data, the target level would be the 
highest test condition average (after screening out high statistical 
outliers) \112\ or a de minimis level, whichever is higher; and
---------------------------------------------------------------------------

    \112\ See USEPA, ``Draft Technical Support Document for 
Expansion of the Comparable Fuel Exclusion,'' May 2007, Appendix C.
---------------------------------------------------------------------------

     For each hazardous compound for which we have neither oil-
fired boiler nor hazardous waste boiler emissions data, the target 
level would be a de minimis level.
    The target emission levels for the three hazardous compounds for 
which we have oil emissions data--acrolein, benzene, and toluene--would 
range from a de minimis level of 20 [mu]g/dscm \113\ to 160 [mu]g/
dscm.\114\ The target emission levels for the seven hazardous compounds 
\115\ for which we have only hazardous waste boiler emissions data 
would range from a de minimis level of 20 [mu]g/dscm to 130 [mu]g/dscm. 
And, the target emission level for hazardous compounds for which we do 
not have emissions data would be a de minimis level of 20 [mu]g/dscm.
---------------------------------------------------------------------------

    \113\ It is reasonable to consider 20 [mu]g/dscm a de minimis 
emission level because it is comparable to approximately 0.01 ppmv 
propane equivalents for the high molecular weight compounds of 
concern, and is 3 orders of magnitude lower than the 10 ppmv total 
hydrocarbon emission limit the Agency has established for liquid 
fuel boilers that burn hazardous waste. See Sec.  63.1217(a)(5)(ii).
    \114\ See memorandum from Bob Holloway, USEPA, to Docket ID No. 
EPA-HQ-RCRA-2005-0017, entitled ``Potential Approach to Establish 
Firing Rate Restrictions on Emission-Comparable Fuel,'' dated May 
21, 2007, Table 1.
    \115\ We have hazardous waste boiler emissions data for: 
acetophenone, biz(2-ethylhexyl)phthalate, diethyl phthalate, di-n-
butyl phthalate, di-n-octyl phthalate, methyl ethyl ketone, and 
phenol.
---------------------------------------------------------------------------

    We specifically request comment on whether these target emission 
levels are appropriate.
    We believe it is reasonable to estimate a default DRE (i.e., DRE 
achievable at low compound feedrates) of 99.99% for the hazardous 
compounds that have a Thermal Stability \116\ ranking of Class I or 
Class 2 (i.e., benzene, toluene, and methyl methacrylate) and a DRE of 
99.995% for the other hazardous compounds. The Thermal Stability 
ranking is a principal tool for selecting difficult to destroy 
compounds for DRE testing required to establish operating requirements 
for hazardous waste combustors. We have DRE data for hazardous waste 
watertube boilers indicating that boilers may achieve DREs below 
99.995% for Class I and Class 2 compounds when they are fed at low 
feedrates, while these boilers achieve greater than 99.995% DRE for 
Class 3-7 compounds that are fed at low feedrates.\117\
---------------------------------------------------------------------------

    \116\ 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.
    \117\ See memorandum from Bob Holloway, USEPA, to Docket ID No. 
EPA-HQ-RCRA-2005-0017, entitled ``Potential Approach to Establish 
Firing Rate Restrictions on Emission-Comparable Fuel,'' dated May 
21, 2007.
---------------------------------------------------------------------------

    It is also reasonable to conclude that DRE increases with an 
increase in feedrate of the target compound. It is common knowledge 
that feedrates of POHCs must be high enough to avoid DRE failures 
attributable to stack method or analytical method imprecision and the 
baseline level of products of incomplete combustion.\118\ A recent 
paper by Brukh, et al, lends support to this view.\119\ Moreover, a 
plot of hazardous waste boiler DRE run data versus feedrate MTEC \120\ 
indicates a general trend toward higher DREs as feedrates increase for 
those hazardous compounds for which we have DRE data over a range of 
feedrates.\121\
---------------------------------------------------------------------------

    \118\ See USEPA, Operational Parameters for Hazardous Waste 
Combustion Devices,'' October 1993. Section 4.3.2.1.
    \119\ See R. Brukh, R. Baret, and S. Mitra, New Jersey Institute 
of Technology, ``The Effect of Waste Concentration on Destruction 
Efficiency During Incineration,'' Environmental Engineering Science, 
Vol. 23, No. 2, 2006. The authors conducted experiments in a small, 
well-stirred reactor involving the combustion of methylene chloride 
(CH2Cl2) with ethylene 
(C2H4) as the primary fuel at residence times 
of 5-12 ms and temperatures of 1400-1750 K (2050-2700 [deg]F). 
Experiments were done at both fuel rich and fuel lean conditions. 
CH2Cl2 concentrations were low (2-1350 ppm by 
volume in the main feed.). The authors modeled the combustion of 
methylene chloride, methyl chloride (CH3Cl), and benzene. 
They show limited experimental data for CH3Cl and 
C6H6 from previous work. The authors' 
hypothesis is that higher concentrations of POHC contribute 
additional radical fractions and the overall result is a higher 
destruction efficiency. This work would support higher DREs at 
higher feedrates if the results can be extrapolated to the higher 
POHC concentrations of concern and the higher residence times for 
hazardous waste combustors. This paper is available in the docket to 
this rulemaking: Docket ID No. EPA-HQ-RCRA-2005-0017.
    \120\ MTEC means maximum theoretical emission concentration 
([mu]g/dscm) and is an approach to normalize the feedrate for 
various size boilers. It is calculated as the mass feedrate divided 
by the stack gas flowrate.
    \121\ See memorandum from Bob Holloway, USEPA, to Docket ID No. 
EPA-HQ-RCRA-2005-0017, entitled ``Potential Approach to Establish 
Firing Rate Restrictions on Emission-Comparable Fuel,'' dated May 
21, 2007, Figure 2.
---------------------------------------------------------------------------

    It appears that, when MTECs exceed 1.0E+07 [mu]g/dscm, DRE exceeds 
99.999% for all compounds. Additionally, it appears that, for MTECs in 
the range of 5.0E+06 to 1.0E+07, DRE exceeds 99.995% for all hazardous 
compounds. Consequently, it may be appropriate to consider this 
feedrate/DRE relationship to identify potential ECF firing rate limits.
    We specifically request comment on our views regarding the 
relationship between DRE and compound feedrate.
    We also have considered the potential concentrations of the 
hazardous compounds in ECF to calculate potential ECF firing rate 
limits

[[Page 33316]]

considering the estimated DREs and target emission levels discussed 
above. As expected, at low concentrations in the ECF, the ECF firing 
rate would not be limited (i.e., other than the limits that would apply 
as a basic condition of the exclusion--25% maximum firing rate if the 
benzene or acrolein concentration exceeds 2%, and 50% maximum firing 
rate for all other ECF).\122\
---------------------------------------------------------------------------

    \122\ See memorandum from Bob Holloway, USEPA, to Docket ID No. 
EPA-HQ-RCRA-2005-0017, entitled ``Potential Approach to Establish 
Firing Rate Restrictions on Emission-Comparable Fuel,'' dated May 
21, 2007, Table 3.
---------------------------------------------------------------------------

    We noted an anomalous situation for most hazardous compounds, 
however, where the firing rate limit first decreased as feedrate 
increased (as expected), but then at higher feedrates, the firing rate 
limit began to increase. This was caused by our assumption that DRE 
increases in a step-wise function rather than, as likely, in a smooth 
progression as feedrate increases. For example, we estimated DRE at 
99.995% when the MTEC is 9.9E+06, and at 99.999% when the MTEC is 
10E+06 (1.0E+07).
    Clearly, this is not a realistic representation of how DRE relates 
to MTEC. To address this concern, we could, for example, consider 
whether it is appropriate to use a best-fit curve of the benzene data 
to develop a relationship between DRE and MTEC. Benzene may be an 
appropriate hazardous compound to select to define the relationship 
because it ranks the highest on the thermal stability index of the 
compounds for which we have DREs over a range of feedrates, it has the 
highest ranking for the hazardous compounds, and it is the third 
highest ranking compound in the Thermal Stability index, ranking higher 
than 341 other compounds.
    We specifically request comment on whether feedrate limits for the 
hazardous compounds may be necessary to ensure that the target emission 
levels are not exceeded, and on the approach described above for 
potentially establishing ECF firing rate limits.
    Comment: EPA should be sure that all coal-fired boilers have enough 
sulfur to inhibit dioxin/furan formation and thus justify a waiver from 
gas temperature control at the inlet to the electrostatic precipitator 
(ESP) or fabric filter (FF).
    Response: Although data are limited, it appears that coal-fired 
boilers equipped with an ESP or FF and burning low sulfur coal will 
have low dioxin/furan emissions irrespective of the gas temperature at 
the inlet to the ESP or FF.
    We have dioxin/furan data for 17 coal-fired boilers that are 
equipped with an ESP or FF.\123\ One of the boilers burns hazardous 
waste and the remaining boilers do not burn hazardous waste. All 
dioxin/furan emissions are below 0.35 ng TEQ/dscm, which is below the 
0.40 ng TEQ/dscm generic MACT dioxin/furan emission standard for 
hazardous waste combustors. See 40 CFR Part 63, Subpart EEE.
---------------------------------------------------------------------------

    \123\ USEPA, ``Response to Peer Review Comments on the Rationale 
for Exclusion of Emission-Comparable Fuel,'' May 2007, Section I, 
Comment 4.
---------------------------------------------------------------------------

    Nine sources operate the ESP or FF above a (estimated) gas 
temperature of 400 F, with a range of 401 [deg]F to 500 [deg]F. All of 
these boilers have dioxin/furan emissions below 0.2 ng TEQ/dscm. At 
least one of these boilers burns low sulfur coal.
    Nonetheless, given the limited data, we specifically request 
comment and supporting information on the potential for dioxin/furan 
formation across the ESP or FF of a coal-fired boiler when the APCD is 
operated above 400 F, and thus whether a temperature limit is warranted 
as a condition of the ECF exclusion for those boilers burning coal as 
the primary fuel.
    Comment: If ECF is fired in a separate firing system at a low 
firing rate, potentially high levels of CO from poor combustion of the 
ECF may be masked by the low CO from the primary fuel. In addition, the 
method of mixing the ECF with the other fuel is extremely important and 
should be considered when developing conditions that ensure good 
combustion. The location and design of the ECF injector will also be 
critical to ensuring good combustion. The ECF injector may meet the 
proposed conditions, but nonetheless not provide good combustion.
    Response: The proposed conditions for firing ECF to ensure good 
combustion (e.g., atomization conditions; firing ECF into the flame 
zone of the primary, fossil fuel which must represent at least 50% of 
the fuel input to the boiler; the boiler must operate at >40% load to 
ensure a stable flame and well-mixed fuels) are at least as stringent 
as those required for hazardous waste boilers under 40 CFR 266.110, 
which ensure good combustion conditions. Moreover, if the ECF is 
injected in a manner that may not ensure good combustion, the 100 ppmv 
CO limit could not be achieved.
    Nonetheless, we request comment on whether additional conditions on 
the ECF burner design, location, or operation may be warranted to 
ensure good combustion of ECF. Any such comments must include 
supporting information in order for the Agency to be able to consider 
it for final action.
    Comment: The Agency has few oil-fired boiler emissions data to 
determine whether ECF boiler emissions (using hazardous waste boiler 
emissions as a surrogate) are likely to be comparable. Including 
additional sources in the data base could increase or decrease the 
benchmark emissions levels EPA used for the comparison.
    Response: Our oil-fired emissions data base was developed under a 
comprehensive effort to obtain available emissions data to develop MACT 
standards (i.e., under CAA Section 112(d)) for industrial, commercial, 
and institutional boilers that do not burn hazardous waste. We have 
emissions data for 26 compounds for comparison with hazardous waste 
boiler emissions, comprised of more than 500 runs representing more 
than 235 test conditions. Nonetheless, we have few emissions data for 
some compounds, as the reviewer notes--data for only 1 or 2 test 
conditions that cannot represent the range of emissions from oil-fired 
boilers.
    We note, however, that if more data were available, the emissions 
benchmark levels would generally increase rather than decrease as the 
range of emission levels is better represented. Counter-balancing this, 
however, is the fact that if we had additional hazardous waste boiler 
emissions data, some data would likely be higher than those that are 
currently in our data base.
    Comment: Because most watertube steam boilers operate at less than 
4% oxygen, requiring that CO be corrected to 7% oxygen will dilute 
actual CO levels. This dilution effect could cause operators to miss 
operational problems.
    Response: We do not understand how correcting CO to 7% oxygen 
rather than 4% oxygen would affect the ability of operators to detect 
degradation in combustion conditions. Nonetheless, we specifically 
request comment and supporting information on whether CO should be 
corrected to 4% oxygen, which more closely reflects actual stack oxygen 
concentrations for these types of boilers. On a 4% oxygen correction 
basis, the 100 ppmv CO limit (at 7% oxygen) would be 120 ppmv.
    Comment: A peer reviewer provides cites for two reports that may 
provide additional information on emissions from coal-fired power 
plants and one report that provides emissions estimates for volatile 
organic compounds emitted by the combustion of coal, gas, and oil:
     PCDD/PCDF Emissions from Coal Fired Power Plants, Riggs, 
Karen B. et al., Battelle, Columbus, OH, 15th International Symposium 
on

[[Page 33317]]

Chlorinated Dioxins and Related Compounds, August 21-25, 1995, 
Edmonton, Canada, Volume 24, Pages 51-54.
     A Comprehensive Assessment of Toxic Emissions from Coal-
Fired Power Plants, Phase 1 Results, from the U.S. Department of Energy 
Study. Prepared for Pittsburgh Energy Technology Center, U.S. 
Department of Energy. September 1996.
     The EPA National Air Quality and Emissions Trends Report, 
2003 Special Study Edition, has Volatile Organic Compounds Emissions 
Estimates given in Table A-5 for coal, gas and oil. Later reports may 
be available.
    Response: We appreciate the references and request comment on the 
significance and relevance of information in these reports on the 
proposed ECF exclusion. These documents are in the docket for this 
rulemaking: Docket ID No. EPA-HQ-RCRA-2005-0017.

B. What Are the Reponses to Major Comments Regarding the Application of 
the WMPT to Rank Comparable Fuel Constituents?

    Comment: Because the 37 constituents are found in combustion (i.e. 
air) emissions, EPA should use air half-life data when generating 
Persistence scores for this effort, rather than half-life data from 
other media.
    Response: We disagree. Information suggests that it's important to 
take into account the risks from indirect exposures (e.g. ingesting 
contaminated soil, food, or water) when considering the potential risk 
from combustor emissions. For example, Fradkin et al. (1988) \124\ 
linked elevated levels of chemical pollutants in soils, lake sediments, 
and cow's milk to the atmospheric transport and deposition of 
pollutants from combustion sources.
---------------------------------------------------------------------------

    \124\ Fradkin, L., R.J.. Bruins, C.H. Cleverly, 1988. 
``Assessing the risk of incinerating municipal solid waste: The 
development and application of a methodology''. Municipal Waste 
Combustion and Human Health. CRC Press. Palm Beach, Florida.
---------------------------------------------------------------------------

    The current effort is not a full quantitative risk assessment, but 
rather a screening-level ranking of chemicals based on potential 
chronic (i.e., long-term) risks to human health and the environment. As 
such, we consider it appropriate to make the protective assumption, as 
in the WMPT, of using the highest half-life data of the relevant media 
to derive Persistence scores for the 37 constituents.
    Comment: When deriving a Persistence score for benzene, it would be 
more appropriate to use its half-life in air, rather than its half-life 
in sediment, as in the WMPT.
    Response: For the reasons stated above, we consider it appropriate 
to use the highest half-life from all relevant environmental media. We 
also consider it appropriate to consistently apply the WMPT methodology 
across all 37 constituents whenever possible.
    Interestingly, the peer reviewers did not agree on the implications 
of using the air half-life to derive benzene's Persistence score: One 
peer reviewer thought it would lower the Persistence score, while 
another peer reviewer saw it as grounds for a high Persistence score. 
Also, the three peer reviewers do not agree on the final disposition of 
benzene's ranking. One peer reviewer recommends moving benzene to 
Category C, another peer reviewer recommends leaving benzene in 
category B, while the third peer reviewer, due to benzene's toxicity, 
recommends elevating it to Category A.
    Nevertheless, we recognize that as one peer reviewer puts it, ``* * 
* although the WMPT is a useful screening tool for evaluating the 
hazard of particular compounds, it should not be used blindly.'' We 
thus request public comment on this issue.
    Comment: No toxicity data were available for five hazardous 
compounds (1,4 naphthoquinone, isosafrole, propargyl alcohol, safrole, 
dimethyl phthalate), and therefore complete scoring was not possible. 
Therefore, one of the peer reviewers thought that these compounds 
should have been removed from consideration as emission-comparable fuel 
constituents.
    Response: While we recognize that no toxicity data were available 
for these five hazardous compounds, and therefore complete scoring was 
not possible, we do not agree that this should result in these 
compounds being removed from consideration as emission comparable fuel 
constituents. Specifically, there were sufficient data to derive the 
other two subscores (for Persistence and Bioaccumulation) required for 
final scores. Given their Persistence and Bioaccumulation scores, and 
assuming a worst-case toxicity score for each, none of the five 
hazardous compounds ranked higher than Category C. Therefore, we 
believe it appropriate to include them as emission-comparable fuel 
(ECF) constituents.
    Comment: Little scientific justification is provided for grouping 
the PAHs and naphthalene into a common group.
    Response: We made the policy decision to remain consistent with the 
pre-reviewed WMPT methodology, which classified constituents that 
scored 8 or 9 as high hazard. Naphthalene scored an 8, and thus is 
classified as a high hazard compound.
    We also remained consistent with the WMPT methodology and the toxic 
release inventory (TRI) by grouping PAHs together, and classifying them 
as high hazard. Most PAHs scored an 8 or 9; benzo(a)anthracene and 
chrysene, however, scored 7.\125\ In addition, we note that it is an 
EPA priority to reduce, whenever possible, the environmental release of 
any chemical found on EPA's list of Priority Chemicals. PAH's and 
naphthalene are members of EPA's list of priority chemicals. 
Consequently, we believe it is reasonable to classify PAHs and 
naphthalene as high hazard compounds.
---------------------------------------------------------------------------

    \125\ USEPA, ``Draft Technical Support Document for Expansion of 
the Comparable Fuel Exclusion,'' May 2007, Section 2.4.
---------------------------------------------------------------------------

    We specifically request comment on adopting the WMPT (and TRI) 
policy of classifying PAHs as a group, and being consistent with the 
Agency's priority to reduce the environmental release of chemicals on 
EPA's list of priority chemicals. Any comment suggesting an alternative 
approach must include an appropriate rationale and supporting 
information in order for the Agency to be able to consider it for final 
action.
    Comment: The Agency should consider the implications of the 
combustion process on the composition of potential emissions components 
in terms of the parent constituents, as well as the combustion by-
products.
    Response: This comment is not germane to the scope of this peer 
review. We discuss in Part Two, Sections I and II of the preamble why 
we believe that emissions from burning ECF under the proposed 
conditions would be comparable to emissions from burning oil in an 
industrial boiler operating under good combustion conditions.
    Comment: The WMPT model uses many screening level values (e.g. 
ambient water quality criteria (AWQC)) that were developed for purposes 
other than that for which they are being used. Because the Agency used 
the data that were contained in the data base, there was little 
assessment of the quality of these data. The use of these values as 
``numerical environmental benchmarks'' is inappropriate and will result 
in conservative estimates of risk.
    Response: The ambient water quality criteria were not used to score 
any of the ECF constituents. Also, the WMPT methodology, including its 
hierarchy of data sources and data quality assurance procedures, went 
through peer and public review. Therefore, we disagree with the 
commenter that there was no

[[Page 33318]]

quality control on the data in the data base. Moreover, commenting on 
the basic structure of the WMPT methodology, beyond its applicability 
to the current application, is beyond the scope of this peer review.
    Comment: Very conservative assumptions are employed in the 
assessment process (e.g., the use of anaerobic sediment degradation 
half-lifes as a measure of the chemicals environmental persistence).
    Response: We believe it is appropriate to make reasonably 
conservative assumptions considering that the ECF would be burned under 
a conditional exclusion absent a RCRA Part B permit and the regulatory 
oversight typical for a RCRA hazardous waste combustor.
    Comment: When applying the model to any particular use or 
situation, consideration must be given to exposure potential and to the 
data used to estimate exposure potential.
    Response: As we discuss in Part Two, Section III, of the preamble, 
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. 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.
    Comment: No scientific basis is provided for why ecological 
toxicity data were not considered in the evaluation process. The WMPT 
requires information on both human and ecological toxicity concerns. As 
implemented here, only human concerns were considered.
    Response: In developing the WMPT, the Agency decided to collect the 
toxicity data in phases, beginning with human toxicity. In Phase 2, we 
would collect ecological toxicity data only for those constituents 
which a high toxicity score might elevate to a different category. 
However, as a result of the human toxicity data collected in Phase 1, 
we found that in no instance would a high ecological toxicity score 
alter a chemical's score sufficiently to elevate the chemical into a 
category for which we recommend action.
    Therefore, we disagree with the opinion that only human toxicity 
concerns were considered. As detailed in the technical support 
document, \126\ some, but not all, of the 37 constituents are found in 
the WMPT chemical data base. We retained the eco-toxicity data (and 
scores) for those chemicals already in the data base. For those 
chemicals not already in the WMPT data base, high eco-toxicity 
subscores would not have had a meaningful impact on the final scores.
---------------------------------------------------------------------------

    \126\ USEPA, ``Draft Technical Support Document for Expansion of 
the Comparable Fuel Exclusion,'' May 2007, Section 2.4.
---------------------------------------------------------------------------

    Comment: The justification for acrolein's ``special 
characterization'' is unclear. Acrolein's inhalation toxicity and its 
proclivity to accumulate in body tissues (i.e. bioaccumulation score) 
are unrelated.
    Response: We have clarified our explanation for assigning acrolein 
to hazard Category B--moderate relative hazard--to explain that our 
concern is that acrolein's human toxicity is based on the inhalation 
pathway and that acrolein has the highest possible WMPT score (three) 
for toxicity. See discussion in Part Two, Section III of the preamble.
    Comment: There are several potential issues with the way different 
health and ecotoxicological endpoints are scored. The authors of the 
WMPT appear to have relied on expert judgment to select consistent 
levels of concern within a particular endpoint, but the background 
document says little about comparison or weighting of different 
endpoints.
    Response: As mentioned above, while the Agency appreciates this 
comment, it is beyond the scope of this peer review.
    Comment: A basic limitation of the WMPT approach is the exclusion 
from the rankings of any consideration of the dose likely to be 
involved in practical exposure situations.
    Response: The WMPT ranking procedure is 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. As such, we consider it appropriate to make 
reasonably conservative assumptions, as opposed to the consideration of 
the dose likely to be involved in practical exposure situations.
    Comment: There is no explicit statement that the tables used in 
this application have been checked against the latest iterations of the 
various references.
    Response: In the technical support document section titled 
``Updating/Collecting Constituent-Specific Data,'' we explain that 
some, but not all the 37 comparable fuel constituents are found in the 
WMPT chemical data base.\127\ For those constituents found in the data 
base, we updated the data and re-evaluated each chemical to determine 
if their WMPT scores changed with more up-to-date data.
---------------------------------------------------------------------------

    \127\ USEPA, ``Draft Technical Support Document for Expansion of 
the Comparable Fuel Exclusion,'' May 2007, Section 2.4.
---------------------------------------------------------------------------

    Comment: The use of an inclusive category of ``Polycyclic Aromatic 
Compounds'' (PACs) with a single level of concern to deal with the 
evaluation of various carcinogenic polycyclic aromatic hydrocarbons and 
related compounds is appropriate for a screening tool and protective of 
public health, but there is some lack of clarity as to what compounds 
are included.
    Response: All of the hydrocarbons listed in Table 1 to Sec.  
261.38, except benzene, naphthalene, and toluene, are PAHs.
    Comment: Placing benzene in the second tier of concern (i.e., 
hazard Category B) is logical given the premise, with the following 
exceptions. This carcinogen is potentially present in ``exemptible'' 
fuels at a rather substantial level, thus offsetting its lower potency. 
Also, combustion of aromatics may under some circumstances lead to high 
concentrations of PAHs in the emissions. In addition, carcinogenesis is 
a severe endpoint and a subject of greater public concern than most 
other health outcomes. Benzene is one of the relatively few, and thus 
notorious, ``Known Human Carcinogens'' according to U.S. EPA and IARC. 
The level of concern (and thus, severity of restriction) should be 
considered at least equivalent to naphthalene, and thus benzene should 
be in hazard Category A.
    Response: We have clarified our rationale for assigning benzene to 
hazard Category B. See discussion in Part Two, Section III, of the 
preamble.
    Comment: The ranking of acrolein is appropriate, but it is odd that 
this material is variously described as a fuel constituent, rather than 
a combustion by-product.
    Response: The scope of this peer review pertained to our hazard 
ranking procedure for the hydrocarbon and oxygenate constituents of ECF 
listed in Table 1 to Sec.  261.38.
    Comment: The use of measured and predicted data yield an 
inconsistent bioaccumulation ranking across PAHs. It would seem more 
appropriate to use the measured data to ensure a consistent assessment. 
Nevertheless, the proposed methodology is relatively robust and such 
refinements are not likely to impact the overall hazard ranking and 
resulting conclusions derived from the present analysis.
    Response: The agency acknowledges the reviewer's comment. We 
consider it appropriate to consistently apply the

[[Page 33319]]

WMPT methodology across all 37 constituents.

Part Three: State Authority

I. Applicability of the Rule in Authorized States

    EPA would strongly encourage states to adopt the regulations being 
proposed today. 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 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 existing federal requirements. Authorized states may, but 
are not required to, adopt federal regulations that are considered less 
stringent than previous federal regulations. Because today's rule would 
eliminate specific requirements for 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, when and if today's rule is finalized.

II. Effect on State Authorization

    Today's notice proposes regulations that would not be promulgated 
under the authority of HSWA. Thus, the standards proposed today would 
be 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. Today's 
proposal is considered to be less stringent than the current standards. 
Therefore, authorized States would not be required to modify their 
programs to adopt regulations consistent with and equivalent to today's 
proposed standards, although EPA would encourage 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 today's proposal, when and if 
finalized, 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 Four: Costs and Benefits of the Proposed 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 in support of today's proposed action 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 specification is vital to the accurate assessment 
of incremental costs, benefits, and other economic impacts associated 
with a rule that would expand the exclusion for waste fuels. The 
baseline essentially describes the world absent any expanded exclusion. 
The incremental impacts of today's action are evaluated by predicting 
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 proposal is published. A full discussion of baseline 
specification is presented in the Assessment \128\ document completed 
for this action.
---------------------------------------------------------------------------

    \128\ Assessment of the Potential Costs, Benefits, and Other 
Impacts of the Expansion of the RCRA Comparable Fuel Exclusion-
Proposed Rule, June 2007.
---------------------------------------------------------------------------

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 waste streams currently generated in the U.S. 
We next determined the tonnage of waste that is likely to qualify for 
the proposed exclusion. An economic threshold analysis was next applied 
to the likely eligible waste to determine which facilities could be 
expected to benefit from the exclusion. For example, for a generator 
with an eligible nonhazardous 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

[[Page 33320]]

costs, cost savings, and economic impacts (waste 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 proposed action. The model also assesses relevant costs 
of the exclusion. These are: Burner storage costs, boiler retrofit 
costs, waste stream analytical costs, raw materials replacement cost 
(related to waste 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 proposed rule are then calculated by aggregating 
the net social impacts associated with each facility expected to use 
the exclusion. Impacts to human health and the environment are assumed 
to be unchanged and are therefore not included in our monetized 
assessment.
    The primary data sources used in this analysis are the 2003 
Biennial Report (2003 BR) \129\, the 1996 National Hazardous Waste 
Constituent Survey (NHWCS),\130\ the 2002 National Emissions Inventory 
(NEI),\131\ ACC Survey data,\132\ and information provided in the 
engineering analysis developed by EERGC. The 2003 BR data were used to 
derive the potentially eligible waste streams currently generated in 
the U.S. This is the only national database available for this use 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 waste 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.\133\
---------------------------------------------------------------------------

    \129\ U.S. EPA, 2003 National Biennial Report, database and 
supporting documentation available for download at http://www.epa.gov/epaoswer/hazwaste/data/biennialreport/.
    \130\ 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.
    \131\ U.S. EPA, 2002 National Emissions Inventory, databases and 
supporting documentation available for download at http://www.epa.gov/ttn/chief/net/2002inventory.html.
    \132\ American Chemistry Council (ACC) voluntary membership 
survey of waste generation and management.
    \133\ USEPA, ``Draft Technical Support Document for Expansion of 
the Comparable Fuel Exclusion,'' May 2007.
---------------------------------------------------------------------------

    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.
     That a facility that can use the exclusion, and has a 
nonhazardous waste boiler on-site that could burn ECF, would burn the 
fuel 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.
     That all ECF generated in a particular state would be 
shipped the same distance. Average shipment distances for each state 
are derived from hazardous waste shipped off-site, as reported in the 
2003 BRS.

IV. Key Analytical Limitations

    Our 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 were not available to 
indicate whether each affected generating facility has a boiler on-site 
that can burn ECF. Using the National Emissions Inventory (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 waste 
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 waste streams.

V. Findings

    This rule, as proposed, 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 market. This is accomplished without 
compromising protection of human health and the environment by ensuring 
comparable emissions from the burning of high Btu value waste.
    The total net social benefits projected as a result of this rule, 
as proposed, are estimated at approximately $23 million per year. 
Avoided management and fuel costs represent the vast majority of all 
benefits (cost savings). Transportation, boiler retrofits, and 
analytical costs represent the majority of the costs. This estimate 
assumes all States adopt the rule, and incorporates all cost savings to 
affected generators, less all associated costs. Nearly 183,000 tons 
(U.S.) of waste are expected to initially qualify for the exclusion 
with approximately 107,000 tons/year actually excluded. Of this total, 
we estimate that approximately 34,000 tons are not currently burned for 
energy recovery.
    We also analyzed various scenarios under the two primary regulatory 
options for the storage of ECF considered by the Agency. Annual net 
social benefits under the first option were found to be $603,000 to 
$1,396,000 greater than the net benefits of our proposed approach. The 
additional cost savings reflect reduced storage requirements. In 
addition, this scenario assumes that the specification for naphthalene 
and PAHs would not apply, which would increase the percentage of waste 
qualifying for the exclusion. Under the second option, annual net 
social benefits were found to range from $15 million to $20 million per 
year. These reduced savings largely reflect additional RCRA Subtitle C 
storage and tracking requirements. Furthermore, this option assumes 
that generating facilities would not send any of their ECF offsite. 
This assumption results in a significant reduction in annual fuel cost 
savings and avoided management costs.
    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 negative distributional impacts associated with this action. 
These effects include revenue losses for both groups, plus fuel 
replacement costs for commercial kilns. Revenue losses to commercial 
incinerators are estimated at $3 million/year, while commercial kilns 
may experience combined revenue and fuel replacement losses of 
approximately $13.5 million per year. These impacts represent between 
one and 1.7 percent of the total estimated annual gross revenues for 
these sectors. Although impacts to these groups may be considered a 
cost in accounting

[[Page 33321]]

terms, they do not represent a real resource cost of the proposed rule. 
The actual net benefits of this proposal 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. The 
reader is strongly encouraged to read the Assessment document prepared 
in support of this proposal to gain a full understanding of all 
findings, analytical assumptions, limitations, and how the adjustment 
of selected key parameters may influence the findings.

Part Five: 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.'' This action may 
raise novel legal or policy issues [3(f)(4)] due to our determination 
of Emission-Comparable Fuel (ECF), as applied in this proposed 
rulemaking. 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, as proposed, is projected to result in benefits to 
society in the form of cost savings. The total net cost savings are 
estimated at $23 million per year. This figure is significantly below 
the $100 million threshold \134\ established under part 3(f)(1) of the 
Order. Thus, this proposal is not considered to be an economically 
significant action. However, in an effort to comply with the spirit of 
the Order, we have prepared an economic assessment in support of 
today's proposal. This document is entitled: Assessment of the 
Potential Costs, Benefits, and Other Impacts of the Expansion of the 
RCRA Comparable Fuel Exclusion-Proposed Rule, June 2007. The RCRA 
docket established for today's rulemaking maintains a copy of this 
Assessment for public review. Interested persons are encouraged to read 
and comment on this document.
---------------------------------------------------------------------------

    \134\ This $100 million threshold applies to both costs, and 
cost savings.
---------------------------------------------------------------------------

II. Paperwork Reduction Act

    The information collection requirements in this proposed rule have 
been submitted for approval to the Office of Management and Budget 
(OMB) under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. The 
Information Collection Request (ICR) document prepared by EPA has been 
assigned EPA ICR number 1361.11.
    Today's proposed rule is deregulatory. The respondents generating 
and burning excluded emission-comparable fuel would be subject to an 
annual public reporting and recordkeeping burden for the collection of 
information required under this proposed rule of 75,284 hours, and a 
cost of $4,071,341. 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 
for hazardous wastes under RCRA. Therefore, the reporting and 
recordkeeping burden reduction associated with the reduced requirements 
for emission-comparable fuel would result in a net annual burden 
reduction of 21,206 hours and savings of $3,186,590 in capital and 
operation and maintenance costs.
    Burden means the total time, effort, or financial resources 
expended by persons to generate, maintain, retain, disclose or provide 
information to or for a Federal agency. This includes the time needed 
to review instructions; develop, acquire, install, and utilize 
technology and systems for the purposes of collecting, validating, 
verifying, processing, maintaining, disclosing and providing 
information; adjust existing ways to comply with any previously 
applicable instructions and requirements; train personnel to be able to 
respond to a collection of information; search data sources; complete 
and review the collection of information; and transmit or otherwise 
disclose the information.
    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.
    To comment on the Agency's need for this information, the accuracy 
of the provided burden estimates, and any suggested methods for 
minimizing respondent burden, including the use of automated collection 
techniques, EPA has established a public docket for this proposed rule, 
which includes this ICR, under Docket ID number EPA-HQ-RCRA-2005-0017. 
Submit any comments related to the ICR for this proposed rule to EPA 
and OMB. See ADDRESSES section at the beginning of this notice for 
where to submit comments to EPA. Send comments to OMB at the Office of 
Information and Regulatory Affairs, Office of Management and Budget, 
725 17th Street, NW., Washington, DC 20503, Attention: Desk Office for 
EPA. Since OMB is required to make a decision concerning the ICR 
between 30 and 60 days after June 15, 2007, a comment to OMB is best 
assured of having its full effect if OMB receives it by July 16, 2007. 
The Agency will respond to any public comments on the information 
collection requirements contained in this proposal in the final rule.

III. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 
601 et seq., 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. This analysis must be completed unless the agency is 
able to certify that the rule will not have a significant economic 
impact on a substantial number of small entities. Small entities 
include small businesses, small not-for-profit enterprises, 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 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 today's proposal 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

[[Page 33322]]

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, as proposed, is projected to result in benefits in the 
form of cost savings to facilities that use the exclusion. As a result, 
the rule would not result in adverse impacts for any small businesses 
that generate ECF. The reader is encouraged to review our regulatory 
flexibility screening analysis prepared in support of this 
determination. This analysis is incorporated in the Assessment 
document, which is available in the docket to today's proposal. We 
continue to be interested in the potential impacts of the proposed rule 
on small entities and welcome comments on issues related to such 
impacts.

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. In addition, 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.
    Today's proposal 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, as 
proposed, may be considered a voluntary program because the States are 
not required to adopt these requirements.
    In any event, EPA has determined that this rule, as proposed, 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 $23 million 
per year.
    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, as 
proposed.

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 proposed 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 proposed 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 to this 
proposed rule, EPA did consult with representatives of state 
governments in developing it. Representatives from the States of North 
Carolina, Georgia, Missouri, Louisiana, and Oregon provided valuable 
input and review.
    In the spirit of Executive Order 13132, and consistent with EPA 
policy to promote communications between EPA and State and local 
governments, EPA specifically solicits comment on this proposed rule 
from State and local officials.

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 proposed rule does not 
have tribal implications, as specified in Executive Order 13175. No 
Tribal governments are known to own or operate hazardous waste 
generating facilities that generate ECF subject to this proposal. Thus, 
Executive Order 13175 does not apply to this proposed rule.

VII. EO 13045 ``Protection of Children From Environmental Health Risks 
and Safety Risks''

    EO 13045 ``Protection of Children from Environmental Health Risks 
and Safety Risks'' (62 FR 19885, April 23, 1997) applies to any rule 
that: (1) Is determined to be ``economically significant'' as defined 
under EO 12866, and (2) concerns an environmental health or safety risk 
that EPA has reason to believe may have a disproportionate effect on 
children. If the regulatory action meets both criteria, the Agency must 
evaluate the environmental health or safety effects of the planned rule 
on children, and explain why the planned regulation is preferable to 
other potentially effective and reasonably feasible alternatives 
considered by the Agency.

[[Page 33323]]

    This final rule is not subject to the Executive Order because it is 
not economically significant as defined in Executive Order 12866, and 
because the Agency does not have reason to believe the environmental 
health or safety risks addressed by this action present a 
disproportionate risk to children.

VIII. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use

    This rule is not a ``significant energy action'' as defined in 
Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use'' (66 FR 28355 
(May 22, 2001)) because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy.
    This rule, as proposed, will not seriously disrupt energy supply, 
distribution patterns, prices, imports or exports. Furthermore, this 
proposed rule is designed to improve economic efficiency by expanding 
the use of ECF.

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. The NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This proposed rulemaking involves environmental monitoring or 
measurement. Consistent with the Agency's Performance Based Measurement 
System (``PBMS''), EPA proposes not to require the use of specific, 
prescribed analytic methods. Rather, the Agency plans to 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.
    EPA welcomes comments on this aspect of the proposed rulemaking 
and, specifically, invites the public to identify potentially-
applicable voluntary consensus standards and to explain why such 
standards should be used in this regulation.

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 proposed 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 proposal is designed to allow for the use of waste as 
fuel under emission comparable standards, resulting in no increased 
risk to human health and the environment, when compared to the burning 
of fossil fuels.

List of Subjects in 40 CFR Part 261

    Hazardous waste, Recycling, Reporting and recordkeeping 
requirements.

     Dated: May 31, 2007.
Stephen L. Johnson,
Administrator.

    For the reasons set out in the preamble, title 40, chapter I, of 
the Code of Federal Regulations is proposed to be amended as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

    1. The authority citation for part 261 continues to read as 
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.

    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.
* * * * *
    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. Wastes 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--(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 cSt, as-fired.
    (ii) Constituent specifications--(A) Except as provided by 
paragraph (a)(2)(ii)(B) of this section, for 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).
    (B) Waived specifications. 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) Benzene (CAS No. 71-43-2).
    (2) Toluene (CAS No. 108-88-3).
    (3) Acetophenone (CAS No. 98-86-2).
    (4) Acrolein (CAS No. 107-02-8).
    (5) Allyl alcohol (CAS No. 107-18-6).
    (6) Bis(2-ethylhexyl)phthalate [Di-2-ethylhexyl phthalate] (CAS No. 
117-81-7).
    (7) Butyl benzyl phthalate (CAS No. 85-68-7).
    (8) o-Cresol [2-Methyl phenol] (CAS No. 95-48-7).
    (9) m-Cresol [3-Methyl phenol] (CAS No. 108-39-4).
    (10) p-Cresol [4-Methyl phenol] (CAS No. 106-44-5).
    (11) Di-n-butyl phthalate (CAS No. 84-74-2).
    (12) Diethyl phthalate (CAS No. 84-66-2).
    (13) 2,4-Dimethylphenol (CAS No. 105-67-9).

[[Page 33324]]

    (14) Dimethyl phthalate (CAS No. 131-11-3).
    (15) Di-n-octyl phthalate (CAS No. 117-84-0).
    (16) Endothall (CAS No. 145-73-3).
    (17) Ethyl methacrylate (CAS No. 97-63-2).
    (18) 2-Ethoxyethanol [Ethylene glycol monoethyl ether] (CAS No. 
110-80-5).
    (19) Isobutyl alcohol (CAS No. 78-83-1).
    (20) Isosafrole (CAS No. 120-58-1).
    (21) Methyl ethyl ketone [2-Butanone] (CAS No. 78-93-3).
    (22) Methyl methacrylate (CAS No. 80-62-6).
    (23) 1,4-Naphthoquinone (CAS No. 130-15-4).
    (24) Phenol (CAS No. 108-95-2).
    (25) Propargyl alcohol [2-Propyn-1-ol] (CAS No. 107-19-7).
    (26) Safrole (CAS No. 94-59-7); or
    (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 for comparable fuel or 
emission-comparable fuel. Hazardous waste shall not be blended to meet 
the specification under paragraphs (a)(1) or (a)(2) of this section, 
except as follows:
    (i) Blending to meet the viscosity specification. A hazardous waste 
blended to meet the viscosity specification for comparable fuel or 
emission-comparable fuel shall:
    (A) 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 for comparable 
fuel, and, for emission-comparable fuel, the specifications of 
paragraphs (a)(2)(i)(A) and (a)(2)(ii) of this section;
    (B) 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
    (C) Not violate the dilution prohibition of paragraph (a)(7) of 
this section.
    (ii) Blending emission-comparable fuel to meet the 8,000 Btu/lb, 
as-fired condition. Emission-comparable fuel may be blended with other 
fuels to meet the 8,000 Btu/lb, as-fired, condition of paragraph 
(c)(2)(ii)(B) of this section.
    (5) Treatment to meet the comparable fuel or emission-comparable 
fuel specifications. (i) A hazardous waste may be treated to meet the 
specifications of paragraphs (a)(1) or (a)(2) 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. 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 
(a)(2)(i)(A) and (a)(2)(ii) of this section for emission-comparable 
fuel, or (a)(3) of this section for syngas.
    (b) Implementation--(1) General. (i) Wastes 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 wastes 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.
    (2) Notices--(i) Notices to state RCRA and CAA Directors in 
authorized states or regional RCRA and CAA Directors in unauthorized 
states. The generator must submit a one-time notice 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:
    (A) The name, address, and RCRA ID number of the person/facility 
claiming the exclusion;
    (B) The applicable EPA Hazardous Waste Codes for the hazardous 
waste;
    (C) 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;
    (D) An estimate of the average and maximum monthly and annual 
quantity of waste for which an exclusion would be claimed; and
    (E) 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 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.

    (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);

[[Page 33325]]

    (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 waste to be burned; and
    (E) Name and mailing address of the Regional or State Directors to 
whom the generator submitted a claim for 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 CAA MACT requirements:
    (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) Waste analysis plan for generators. The generator of an 
excluded fuel shall develop and follow a written waste analysis plan 
which describes the procedures for sampling and analysis of the 
hazardous waste to be excluded. The plan shall be followed and retained 
at the facility excluding the waste.
    (i) At a minimum, the plan must specify:
    (A) The parameters for which each hazardous waste 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 waste to be analyzed;
    (D) The frequency with which the initial analysis of the waste 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 waste 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 for the waste; 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)(7) of this section and also 
provides for the availability of the documentation to the claimant upon 
request.
    (iii) Syngas fuel generators shall submit for approval, prior to 
performing sampling, analysis, or any management of a syngas fuel as an 
excluded waste, a waste analysis plan containing the elements of 
paragraph (b)(3)(i) of this section to the appropriate regulatory 
authority. The approval of waste 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 waste 
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 waste analysis plan 
requirements under paragraph (b)(4) of this section to determine the 
heating value of the fuel and the benzene and acrolein concentration of 
the fuel if:
    (i) The burner has not received information from the generator for 
each shipment documenting the heating value of the fuel and the 
concentration of benzene and acrolein;
    (ii) The burner blends or otherwise treats emission-comparable fuel 
to achieve the 8,000 Btu/lb, as-fired criterion under paragraph 
(c)(2)(ii)(B) of this section; or
    (iii) The burner blends or otherwise treats emission-comparable 
fuel to achieve a concentration of benzene or acrolein of two percent 
or less, as-fired, to avoid the emission-comparable fuel firing rate 
restrictions of paragraph (c)(2)(ii)(I) of this section.
    (6) Excluded fuel sampling and analysis--(i) General. For each 
waste (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 hazardous waste/syngas 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 waste/syngas, and, for emission-comparable fuel, except 
for the compounds listed in paragraph (a)(2)(ii)(B) of this section. 
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 an applicable specification should not 
be present:
    (A) A constituent that triggered the toxicity characteristic for 
the waste constituents that were the basis of the listing of the waste 
stream, 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 waste/
syngas;
    (C) Constituents introduced into the process that generates the 
waste/syngas; or
    (D) Constituents that are byproducts or side reactions to the 
process that generates the waste/syngas.
    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 waste/syngas 
above the exclusion specifications.
    (ii) For each waste for which the 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

[[Page 33326]]

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)(2) of this section, as 
applicable, have been met.
    (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 waste/syngas. For the waste/syngas 
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 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 waste analysis plan developed under paragraph (b)(4) of this 
section.
    (vii) Excluded fuel that has not been blended to meet the kinematic 
viscosity specification shall be analyzed as generated.
    (viii) If hazardous waste is blended to meet the kinematic 
viscosity specification, the generator shall:
    (A) Analyze the waste as generated to ensure that it meets the 
constituent and heating value specifications, except that emission 
comparable fuel need not meet the 8,000 Btu/lb, as-fired heating value 
criterion of paragraph (a)(2)(i)(A) of this section; and
    (B) After blending, analyze the fuel again to ensure that the 
blended fuel continues to meet all excluded fuel specifications.
    (ix) Excluded fuel must be re-tested, at a minimum, annually and 
must be retested after a process change that could change the chemical 
or physical properties of the waste.
    (x) If an emission-comparable fuel burner has not received 
information from the generator for each shipment documenting the 
heating value of the fuel and the concentration of benzene and 
acrolein, the burner must sample and analyze the fuel to determine the 
heating value and the concentration of benzene and acrolein.
    (xi) If a burner blends or treats emission-comparable fuel to 
achieve an as-fired heating value of 8,000 Btu/lb or greater or an as-
fired concentration of benzene or acrolein of two percent or lower, the 
burner shall determine the heating value, benzene concentration, or 
acrolein concentration, as relevant, by analysis or information from 
the generator prior to blending and must analyze the fuel after 
blending or treatment to determine the heating value, benzene 
concentration, or acrolein concentration, as relevant.
    (7) Speculative accumulation. Excluded fuel must not be accumulated 
speculatively, as defined in Sec.  261.1(c)(8).
    (8) Records. The generator must maintain records of the following 
information on-site:
    (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 facility ID number 
of the person claiming the exclusion;
    (B) The applicable EPA Hazardous Waste Codes for each hazardous 
waste excluded as a fuel; 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 
hazardous waste and process that generated the excluded fuel, if not 
the same;
    (iii) The monthly and annual quantities of each waste claimed to be 
excluded;
    (iv) Documentation for any claim that a constituent is not present 
in the hazardous waste 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 excluded waste 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 waste is to be shipped off-site, a certification from 
the burner as required under paragraph (b)(10) of this section;
    (viii) The waste 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--(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 paragraph (c)(1) of this section and burned in a boiler 
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)(4) 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 because of 
presence of dioxins or furans, as set out in Appendix VII of this part, 
are not

[[Page 33327]]

eligible for this exclusion, 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 derived from 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 
waste.
    (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 emission-comparable fuel was derived from a hazardous 
waste listed under Sec. Sec.  261.31 through 261.33 when the exclusion 
was claimed.
    (14) Waiver of RCRA Closure Requirements. Interim status and 
permitted storage 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 and 265 provided that 
the storage units have been used to store only hazardous waste that is 
subsequently excluded under the conditions of this section, and that 
afterward will be used only to store fuel excluded under this section.
    (15) Spills and leaks. 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 it was derived from a hazardous waste listed in Sec. Sec.  
261.31 through 261.33 when the exclusion was claimed.
    (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 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 tank, tank car, or tank truck only.
    (ii) Applicability. Emission-comparable fuel tank systems that are 
not subject to the hazardous substance underground storage tank 
requirements under Sec.  280.42(b) of this chapter are subject to the 
conditions of this paragraph.
    (iii) Spill prevention, control, and countermeasures (SPCC) 
requirements. Emission-comparable fuel tank systems with a capacity 
greater than 55 gallons and that are not subject to 40 CFR Part 280 
(Standards for Underground Storage Tanks) are subject to the following 
SPCC requirements adopted from 40 CFR Part 112. You must comply with 
the adopted conditions by substituting 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 paragraph (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 Spill Prevention, Control, and 
Countermeasure 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. Sec.  112.5(a) and 
112.5(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 this section, except 
for paragraphs (a)(2), (c), (d), and (k) of this section.
    (2) Your Plan may deviate from the requirements Sec. 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. 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), and 
paragraph (c)(11) of this section (secondary containment for mobile 
containers). In addition, Sec.  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--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. You must 
comply with the adopted conditions by substituting the term ``emission-
comparable fuel'' for the term ``waste,'' and by substituting the term 
``document in the record'' for the term ``demonstrate to the Regional 
Administrator.''
    (A) Section 264.193(b) of this chapter, which prescribes general 
performance standards for secondary containment systems;

[[Page 33328]]

    (B) Section 264.193(c) of this chapter, which prescribes minimum 
requirements for secondary containment systems;
    (C) Section 264.193(d)(1) through (3), which prescribe permissible 
secondary containment devices;
    (D) Section 264.193(e) of this chapter, which prescribes design and 
operating requirements for the permissible secondary containment 
devices; and
    (E) Section 264.193(f) of this chapter, which prescribes secondary 
containment requirements for ancillary equipment.
    (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.
    (3) Access to communications or alarm system. Whenever emission-
comparable fuel is distributed into or out of the tank system, 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, 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, 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 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 1510 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 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. 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. Sec.  264.196(e)(1) and 
(e)(4) of this chapter.
    (2) To comply with the adopted provisions of Sec.  264.196, you 
must

[[Page 33329]]

substitute the term ``emission-comparable fuel'' for the terms 
``hazardous waste'' and ``waste;'' and the term ``record'' for the term 
``operating record,'' and
    (3) Unless you satisfy the requirements of Sec. Sec.  264.196(e)(2) 
and (3) of this chapter, you must close the emission-comparable fuel 
tank system.
    (vi) Air emissions--(A) Applicability. (1) If your emission-
comparable fuel storage tank or transfer rack is not subject to the 
controls provided by Sec.  63.2346 of this chapter, you must comply 
with 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 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. When complying with the conditions 
under paragraph (c)(1)(vi)(C) of this section, you must:
    (1) Comply with the conditions irrespective of whether your 
facility is an area source as defined by Sec.  63.2 of this chapter.
    (2) Comply with the conditions by substituting 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) Comply with the conditions using 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-ethylhexyl 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) Comply with the conditions using 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) Comply with the conditions using the following definition of 
affected source. Affected source means the collection of activities and 
equipment used to distribute emission-comparable fuel into, out of, or 
within a facility.
    (6) Comply with the conditions by substituting the term ``subject 
to Sec.  261.38(c)(1)(vi)(C)of this chapter'' for the term ``subject to 
this subpart.''
    (7) Comply with the storage tank controls in Table 2 to subpart 
EEEE, part 63 of this chapter as follows:
    (i) If your tank has a capacity less than 18.9 cubic meters (5,000 
gallons) and the annual average true vapor pressure of the total RCRA 
oxygenates and Table 1 organic HAP in the stored organic liquid is 
>=76.6 kilopascals (11.1 psia), you must comply with the requirements 
under item 1 of Table 2 to subpart EEEE, part 63 of this chapter, for 
existing sources or item 3 of that table for reconstructed or new 
sources; and
    (ii) If your existing source tank has a capacity identified in item 
1 of Table 2 to subpart EEEE, part 63 of this chapter, you must comply 
with the requirements of item 1.a.i or 1.a.ii of that table if the 
annual average true vapor pressure of the total RCRA oxygenates and 
Table 1 organic HAP in the stored organic liquid is >=5.2 kilopascals 
(0.75 psia) and <76.6 kilopascals (11.1 psia);
    (8) Comply with the conditions if:
    (i) Your tank or transfer rack is exempt from subpart EEEE, part 63 
of this chapter, under the provisions of Sec.  63.228(c)(1) of this 
chapter, which exempts tanks at facilities subject to a NESHAP other 
than subpart EEEE, part 63; and
    (ii) The requirements applicable to the tank or transfer rank under 
the other NESHAP are not equivalent to, at a minimum, the conditions 
under paragraph (c)(1)(vi)(C) 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.
    (9) Submit all notifications, reports, and other communications to 
the RCRA regulatory authority rather than the CAA regulatory authority.
    (C) Conditions to control air emissions. (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 evaluations 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 by the dates specified in Sec.  63.2358 of this chapter.
    (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

[[Page 33330]]

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. 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 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) Underground storage tank systems. Underground storage tank 
systems are subject to the applicable requirements under 40 CFR Part 
280.
    (viii) Management of incompatible waste fuels and other materials. 
(A) The generator must document in the waste 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 waste 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) Incompatible materials must not be placed in the same tank.
    (2) Burning--(i) General. Emission-comparable fuel must 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 
steam boiler that does not feed fuel using a stoker or stoker-type 
mechanism.
    (ii) Operating conditions--(A) Fossil fuel as primary fuel. A 
minimum of 50 percent of fuel fired to the device shall be fossil fuel, 
fuels derived from fossil fuel, or tall oil. Such fuels are termed 
``primary fuel'' for purposes of this section. (Tall oil is a fuel 
derived from vegetable and rosin fatty acids.) 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;
    (B) Fuel heating value. Primary fuels and emission-comparable fuel 
shall have a minimum as-fired heating value of 8,000 Btu/lb, and each 
material fired in a firing nozzle where hazardous waste is fired must 
have a heating value of at least 8,000 Btu/lb, as-fired;
    (C) 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.
    (D) 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 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.
    (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.
    (E) 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)(C) and (D) of this 
section.
    (F) Automatic fuel 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)(F)(7) 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 exceeds 400 [deg]F on an hourly 
rolling average.
    (ii) When the span value of the combustion gas temperature detector 
is exceeded;
    (iii) Upon malfunction of the carbon monoxide CEMS or the gas 
temperature detector; or
    (iv) When any component of the automatic waste feed cutoff system 
fails.
    (2) Failure of the automatic fuel cutoff system. If the automatic 
emission-comparable fuel cutoff system fails to automatically and 
immediately cut off the flow of emission-comparable fuel upon 
exceedance of the carbon monoxide or gas temperature limits, you have 
failed to comply with the emission-comparable fuel cutoff requirements 
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) Corrective measures. If, after any automatic emission-
comparable fuel feed cutoff, the carbon monoxide or gas temperature 
limit was exceeded while emission-comparable fuel remained in the 
combustion chamber, you must investigate the cause of the automatic 
emission-comparable fuel feed cutoff, take appropriate corrective 
measures to minimize future automatic cutoffs, and record the findings 
and corrective measures in the operating record.
    (4) Excessive exceedance reporting. (i) For each set of 10 
exceedances of the carbon monoxide emission limit or the limit on the 
gas temperature at the inlet to the dry particulate matter control 
device 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 cut off) during 
a 60-day block period, you must submit to the Administrator a

[[Page 33331]]

written report within 5 calendar days of the 10th exceedance 
documenting the exceedances and results of the investigation and 
corrective measures taken.
    (ii) On a case-by-case basis, the Administrator may require 
excessive exceedance reporting when fewer than 10 exceedances occur 
during a 60-day block period.
    (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 the limit on 
carbon monoxide emissions or gas temperature at the inlet to the dry 
particulate matter control device is exceeded during the ramp down, you 
have failed to comply with those limits.
    (G) Boiler load. 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.
    (H) 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.
    (I) Restrictions on benzene and acrolein. If the as-fired 
concentration of benzene or acrolein in the emission-comparable fuel 
exceeds 2 percent by mass, the firing rate of emission-comparable fuel 
cannot exceed 25% of the total fuel input to the boiler on a heat or 
volume input basis, whichever results in a lower volume input of 
emission-comparable fuel.
    (3) Intermediate handlers. ECF may not be managed by any entity 
other than the generator, transporter, and designated burner.
    (4) EPA Identification Number. A burner that receives emission-
comparable fuel from an offsite generator must 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--(i) Initial 
Notification. 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:
    (A) Providing the name, address, and EPA identification number of 
the burner
    (B) Certifying that the excluded fuel will be stored under the 
conditions of paragraph (c)(1) of this section and burned in a boiler 
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)(3) of this section;
    (C) Identifying the specific units that will burn the excluded 
fuel; and
    (D) 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) Reporting. The burner must submit to the Administrator 
excessive CO exceedance reports required under paragraph 
(c)(2)(ii)(F)(5) 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:
    (1) The name, address, and RCRA ID number of the generator shipping 
the excluded fuel;
    (2) The quantity of excluded fuel delivered; and
    (3) The date of delivery;
    (B) Boiler operating data. The burner must retain records of 
information required to comply with the operating requirements of 
paragraph (c)(2) of this section.
    (C) Records retention. The burner must retain records at the 
facility for three years.
    (d) Failure to comply with the conditions of the exclusion. 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).

        Table 1 to Sec.   261.38.--Detection and Detection Limit Values for Comparable Fuel Specification
----------------------------------------------------------------------------------------------------------------
                                                                              Concentration     Minimum required
                     Chemical name                            CAS No.        limit (mg/kg at    detection limit
                                                                              10,000 Btu/lb)        (mg/kg)
----------------------------------------------------------------------------------------------------------------
Total Nitrogen as N....................................                 NA               4900  .................
Total Halogens as Cl...................................                 NA                540  .................
Total Organic Halogens as Cl...........................                 NA              (\1\)
Polychlorinated biphenyls, total [Aroclors, total].....          1336-36-3                 ND                1.4
Cyanide, total.........................................            57-12-5                 ND                  1
Metals:
    Antimony, total....................................          7440-36-0                 12  .................
    Arsenic, total.....................................          7440-38-2               0.23  .................
    Barium, total......................................          7440-39-3                 23  .................
    Beryllium, total...................................          7440-41-7                1.2  .................
    Cadmium, total.....................................          7440-43-9                 ND                1.2

[[Page 33332]]

 
    Chromium, total....................................          7440-47-3                2.3  .................
    Cobalt.............................................          7440-48-4                4.6  .................
    Lead, total........................................          7439-92-1                 31  .................
    Manganese..........................................          7439-96-5                1.2  .................
    Mercury, total.....................................          7439-97-6               0.25  .................
    Nickel, total......................................          7440-02-0                 58  .................
    Selenium, total....................................          7782-49-2               0.23  .................
    Silver, total......................................          7440-22-4                2.3  .................
    Thallium, total....................................          7440-28-0                 23  .................
Hydrocarbons:
    Benzo[a]anthracene.................................            56-55-3               2400  .................
    Benzene............................................            71-43-2               4100  .................
    Benzo[b]fluoranthene...............................           205-99-2               2400  .................
    Benzo[k]fluoranthene...............................           207-08-9               2400  .................
    Benzo[a]pyrene.....................................            50-32-8               2400  .................
    Chrysene...........................................           218-01-9               2400  .................
    Dibenzo[a,h]anthracene.............................            52-70-3               2400  .................
    7,12-Dimethylbenz[a]anthracene.....................            57-97-6               2400  .................
    Fluoranthene.......................................           206-44-0               2400  .................
    Indeno(1,2,3-cd)pyrene.............................           193-39-5               2400  .................
    3-Methylcholanthrene...............................            56-49-5               2400  .................
    Naphthalene........................................            91-20-3               2400  .................
    Toluene............................................           108-88-3              36000  .................
Oxygenates:
    Acetophenone.......................................            98-86-1               2400  .................
    Acrolein...........................................           107-02-8                 39  .................
    Allyl alcohol......................................           107-18-6                 30  .................
    Bis(2-ethylhexyl)phthalate [Di-2-ethylhexyl                   117-81-7               2400  .................
     phthalate]........................................
    Butyl benzyl phthalate.............................            85-68-7               2400  .................
    o-Cresol [2-Methyl phenol].........................            95-48-7               2400  .................
    m-Cresol [3-Methyl phenol].........................           108-39-4               2400  .................
    p-Cresol [4-Methyl phenol].........................           106-44-5               2400  .................
    Di-n-butyl phthalate...............................            84-74-2               2400  .................
    Diethyl phthalate..................................            84-66-2               2400  .................
    2,4-Dimethylphenol.................................           105-67-9               2400  .................
    Dimethyl phthalate.................................           131-11-3               2400  .................
    Di-n-octyl phthalate...............................           117-84-0               2400  .................
    Endothall..........................................           145-73-3                100  .................
    Ethyl methacrylate.................................            97-63-2                 39  .................
    2-Ethoxyethanol [Ethylene glycol monoethyl ether]..           110-80-5                100  .................
    Isobutyl alcohol...................................            78-83-1                 39  .................
    Isosafrole.........................................           120-58-1               2400  .................
    Methyl ethyl ketone [2-Butanone]...................            78-93-3                 39  .................
    Methyl methacrylate................................            80-62-6                 39  .................
    1,4-Naphthoquinone.................................           130-15-4               2400  .................
    Phenol.............................................           108-95-2               2400  .................
    Propargyl alcohol [2-Propyn-1-ol]..................           107-19-7                 30  .................
    Safrole............................................            94-59-7               2400  .................
Sulfonated Organics:
    Carbon disulfide...................................            75-15-0                 ND                 39
    Disulfoton.........................................           298-04-4                 ND               2400
    Ethyl methanesulfonate.............................            62-50-0                 ND               2400
    Methyl methanesulfonate............................            66-27-3                 ND               2400
    Phorate............................................           298-02-2                 ND               2400
    1,3-Propane sultone................................          1120-71-4                 ND                100
    Tetraethyldithiopyrophosphate [Sulfotepp]..........          3689-24-5                 ND               2400
    Thiophenol [Benzenethiol]..........................           108-98-5                 ND                 30
    O,O,O-Triethyl phosphorothioate....................           126-68-1                 ND               2400
Nitrogenated Organics:
    Acetonitrile [Methyl cyanide]......................            75-05-8                 ND                 39
    2-Acetylaminofluorene [2-AAF]......................            53-96-3                 ND               2400
    Acrylonitrile......................................           107-13-1                 ND                 39
    4-Aminobiphenyl....................................            92-67-1                 ND               2400
    4-Aminopyridine....................................           504-24-5                 ND                100
    Aniline............................................            62-53-3                 ND               2400
    Benzidine..........................................            92-87-5                 ND               2400
    Dibenz[a,j]acridine................................           224-42-0                 ND               2400
    O,O-Diethyl O-pyrazinyl phosphorothioate                      297-97-2                 ND               2400
     [Thionazin].......................................
    Dimethoate.........................................            60-51-5                 ND               2400
    p-(Dimethylamino) azobenzene [4-Dime                           60-11-7                 ND               2400
     thylaminoazobenzene]..............................

[[Page 33333]]

 
    3,3[prime]-Dimethylbenzidine.......................           119-93-7                 ND               2400
    [alpha],[alpha]-Dimethylphenethylamine.............           122-09-8                 ND               2400
    3,3[prime]-Dimethoxybenzidine......................           119-90-4                 ND                100
    1,3-Dinitrobenzene [m-Dinitrobenzene]..............            99-65-0                 ND               2400
    4,6-Dinitro-o-cresol...............................           534-52-1                 ND               2400
    2,4-Dinitrophenol..................................            51-28-5                 ND               2400
    2,4-Dinitrotoluene.................................           121-14-2                 ND               2400
    2,6-Dinitrotoluene.................................           606-20-2                 ND               2400
    Dinoseb [2-sec-Butyl-4,6-dinitrophenol]............            88-85-7                 ND               2400
    Diphenylamine......................................           122-39-4                 ND               2400
    Ethyl carbamate [Urethane].........................            51-79-6                 ND                100
    Ethylenethiourea (2-Imidazolidinethione)...........            96-45-7                 ND                110
    Famphur............................................            52-85-7                 ND               2400
    Methacrylonitrile..................................           126-98-7                 ND                 39
    Methapyrilene......................................            91-80-5                 ND               2400
    Methomyl...........................................         16752-77-5                 ND                 57
    2-Methyllactonitrile [Acetone cyanohydrin].........            75-86-5                 ND                100
    Methyl parathion...................................           298-00-0                 ND               2400
    MNNG (N-Metyl-N-nitroso-N[prime]-nitroguanidine)...           707-25-7                 ND                110
    1-Naphthylamine [[alpha]-Naphthylamine]............           134-32-7                 ND               2400
    2-Naphthylamine [([beta]-Naphthylamine]............            91-59-8                 ND               2400
    Nicotine...........................................            54-11-5                 ND                100
    4-Nitroaniline, [p-Nitroaniline]...................           100-01-6                 ND               2400
    Nitrobenzene.......................................            98-96-3                 ND               2400
    p-Nitrophenol, [p-Nitrophenol].....................           100-02-7                 ND               2400
    5-Nitro-o-toluidine................................            99-55-8                 ND               2400
    N-Nitrosodi-n-butylamine...........................           924-16-3                 ND               2400
    N-Nitrosodiethylamine..............................            55-18-5                 ND               2400
    N-Nitrosodiphenylamine [Diphenylnitrosamine].......            86-30-6                 ND               2400
    N-Nitroso-N-methylethylamine.......................         10595-95-6                 ND               2400
    N-Nitrosomorpholine................................            59-89-2                 ND               2400
    N-Nitrosopiperidine................................           100-75-4                 ND               2400
    N-Nitrosopyrrolidine...............................           930-55-2                 ND               2400
    2-Nitropropane.....................................            79-46-9                 ND               2400
    Parathion..........................................            56-38-2                 ND               2400
    Phenacetin.........................................            62-44-2                 ND               2400
    1,4-Phenylene diamine [p-Phenylenediamine].........           106-50-3                 ND               2400
    N-Phenylthiourea...................................           103-85-5                 ND                 57
    2-Picoline [alpha-Picoline]........................           109-06-8                 ND               2400
    Propylthioracil [6-Propyl-2-thiouracil]............            51-52-5                 ND                100
    Pyridine...........................................           110-86-1                 ND               2400
    Strychnine.........................................            57-24-9                 ND                100
    Thioacetamide......................................            62-55-5                 ND                 57
    Thiofanox..........................................         39196-18-4                 ND                100
    Thiourea...........................................            62-56-6                 ND                 57
    Toluene-2,4-diamine [2,4-Diaminotoluene]...........            95-80-7                 ND                 57
    Toluene-2,6-diamine [2,6-Diaminotoluene]...........           823-40-5                 ND                 57
    o-Toluidine........................................            95-53-4                 ND               2400
    p-Toluidine........................................           106-49-0                 ND                100
    1,3,5-Trinitrobenzene [sym-Trinitobenzene].........            99-35-4                 ND               2400
Halogenated Organics:
    Allyl chloride.....................................           107-05-1                 ND                 39
    Aramite............................................           140-57-8                 ND               2400
    Benzal chloride [Dichloromethyl benzene]...........            98-87-3                 ND                100
    Benzyl chloride....................................          100-44-77                 ND                100
    bis(2-Chloroethyl)ether [Dichoroethyl ether].......           111-44-4                 ND               2400
    Bromoform [Tribromomethane]........................            75-25-2                 ND                 39
    Bromomethane [Methyl bromide]......................            74-83-9                 ND                 39
    4-Bromophenyl phenyl ether [p-Bromo diphenyl ether]           101-55-3                 ND               2400
    Carbon tetrachloride...............................            56-23-5                 ND                 39
    Chlordane..........................................            57-74-9                 ND                 14
    p-Chloroaniline....................................           106-47-8                 ND               2400
    Chlorobenzene......................................           108-90-7                 ND                 39
    Chlorobenzilate....................................           510-15-6                 ND               2400
    p-Chloro-m-cresol..................................            59-50-7                 ND               2400
    2-Chloroethyl vinyl ether..........................           110-75-8                 ND                 39
    Chloroform.........................................            67-66-3                 ND                 39
    Chloromethane [Methyl chloride]....................            74-87-3                 ND                 39
    2-Chloronaphthalene [beta-Chloronaphthalene].......            91-58-7                 ND               2400
    2-Chlorophenol [o-Chlorophenol]....................            95-57-8                 ND               2400

[[Page 33334]]

 
    Chloroprene [2-Chloro-1,3-butadiene]...............          1126-99-8                 ND                 39
    2,4-D [2,4-Dichlorophenoxyacetic acid].............            94-75-7                 ND                  7
    Diallate...........................................          2303-16-4                 ND               3400
    1,2-Dibromo-3-chloropropane........................            96-12-8                 ND                 39
    1,2-Dichlorobenzene [o-Dichlorobenzene]............            95-50-1                 ND               2400
    1,3-Dichlorobenzene [m-Dichlorobenzene]............           541-73-1                 ND               2400
    1,4-Dichlorobenzene [p-Dichlorobenzene]............           106-46-7                 ND               2400
    3,3[prime]-Dichlorobenzidine.......................            91-94-1                 ND               2400
    Dichlorodifluoromethane [CFC-12]...................            75-71-8                 ND                 39
    1,2-Dichloroethane [Ethylene dichloride]...........           107-06-2                 ND                 39
    1,1-Dichloroethylene [Vinylidene chloride].........            75-35-4                 ND                 39
    Dichloromethoxy ethane [Bis(2-chloroethoxy)methane]           111-91-1                 ND               2400
    2,4-Dichlorophenol.................................           120-83-2                 ND               2400
    2,6-Dichlorophenol.................................            87-65-0                 ND               2400
    1,2-Dichloropropane [Propylene dichloride].........            78-87-5                 ND                 39
    cis-1,3-Dichloropropylene..........................         10061-01-5                 ND                 39
    trans-1,3-Dichloropropylene........................         10061-02-6                 ND                 39
    1,3-Dichloro-2-propanol............................            96-23-1                 ND                 30
    Endosulfan I.......................................           959-98-8                 ND                1.4
    Endosulfan II......................................         33213-65-9                 ND                1.4
    Endrin.............................................            72-20-8                 ND                1.4
    Endrin aldehyde....................................          7421-93-4                 ND                1.4
    Endrin Ketone......................................         53494-70-5                 ND                1.4
    Epichlorohydrin [1-Chloro-2,3-epoxy propane].......           106-89-8                 ND                 30
    Ethylidene dichloride [1,1-Dichloroethane].........            75-34-3                 ND                 39
    2-Fluoroacetamide..................................           640-19-7                 ND                100
    Heptachlor.........................................            76-44-8                 ND                1.4
    Heptachlor epoxide.................................          1024-57-3                 ND                2.8
    Hexachlorobenzene..................................           118-74-1                 ND               2400
    Hexachloro-1,3-butadiene [Hexachlorobutadiene].....            87-68-3                 ND               2400
    Hexachlorocyclopentadiene..........................            77-47-4                 ND               2400
    Hexachloroethane...................................            67-72-1                 ND               2400
    Hexachlorophene....................................            70-30-4                 ND              59000
    Hexachloropropene [Hexachloropropylene]............          1888-71-7                 ND               2400
    Isodrin............................................           465-73-6                 ND               2400
    Kepone [Chlordecone]...............................           143-50-0                 ND               4700
    Lindane [gamma-BHC] [gamma-Hexachlorocyclohexane]..            58-89-9                 ND                1.4
    Methylene chloride [Dichloromethane]...............            75-09-2                 ND                 39
    4,4[prime]-Methylene-bis(2-chloroaniline)..........           101-14-4                 ND                100
    Methyl iodide [Iodomethane]........................            74-88-4                 ND                 39
    Pentachlorobenzene.................................           608-93-5                 ND               2400
    Pentachloroethane..................................            76-01-7                 ND                 39
    Pentachloronitrobenzene [PCNB] [Quintobenzene]                 82-68-8                 ND               2400
     [Quintozene]......................................
    Pentachlorophenol..................................            87-88-5                 ND               2400
    Pronamide..........................................         23950-58-5                 ND               2400
    Silvex [2,4,5-Trichlorophenoxypropionic acid]......            93-72-1                 ND                  7
    2,3,7,8-Tetrachlorodibenzo-p-dioxin [2,3,7,8-TCDD].          1746-01-6                 ND                 30
    1,2,4,5-Tetrachlorobenzene.........................            95-94-3                 ND               2400
    1,1,2,2-Tetrachloroethane..........................            79-35-4                 ND                 39
    Tetrachloroethylene [Perchloroethylene]............           127-18-4                 ND                 39
    2,3,4,6-Tetrachlorophenol..........................            58-90-2                 ND               2400
    1,2,4-Trichlorobenzene.............................           120-82-1                 ND               2400
    1,1,1-Trichloroethane [Methyl chloroform]..........            71-56-6                 ND                 39
    1,1,2-Trichloroethane [Vinyl trichloride]..........            79-00-5                 ND                 39
    Trichloroethylene..................................            79-01-6                 ND                 39
    Trichlorofluoromethane [Trichlormonofluoromethane].            75-69-4                 ND                 39
    2,4,5-Trichlorophenol..............................            95-95-4                 ND               2400
    2,4,6-Trichlorophenol..............................            88-06-2                 ND               2400
    1,2,3-Trichloropropane.............................            96-18-4                 ND                 39
    Vinyl Chloride.....................................            75-01-4                 ND                 39
----------------------------------------------------------------------------------------------------------------
 Notes: NA--Not Applicable. ND--Nondetect.
\1\ 25 or individual halogenated organics listed below.

[FR Doc. E7-11130 Filed 6-14-07; 8:45 am]
BILLING CODE 6560-50-P