[Federal Register Volume 73, Number 245 (Friday, December 19, 2008)]
[Rules and Regulations]
[Pages 77954-78017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-29956]



[[Page 77953]]

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Part IV





Environmental Protection Agency





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40 CFR Part 261



Expansion of RCRA Comparable Fuel Exclusion; Final Rule

  Federal Register / Vol. 73, No. 245 / Friday, December 19, 2008 / 
Rules and Regulations  

[[Page 77954]]


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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-HQ-RCRA-2005-0017; FRL-8753-4]
RIN 2050-AG24


Expansion of RCRA Comparable Fuel Exclusion

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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SUMMARY: This final action adds a new exclusion to the rules 
implementing subtitle C of the Resource Conservation and Recovery Act 
(RCRA). The rule already provides exclusions for comparable fuels and 
synthesis gas. These fuels are energy-rich hazardous secondary 
materials which would otherwise be hazardous wastes, but which have the 
same hazardous constituent concentrations as fossil fuels that would be 
burned in their place. EPA is establishing a new category of excluded 
fuel that has its own set of conditions, some of which overlap with the 
comparable fuels exclusion. These newly excluded hazardous secondary 
materials are called ``emission-comparable fuel'' (ECF). ECF is a 
hazardous secondary material that, when generated, is handled in such a 
way that it is not discarded in any phase of management, but rather is 
handled as a valuable commodity. ECF meets all of the hazardous 
constituent specifications (over 160) for comparable fuel, with the 
exception of those for oxygenates and hydrocarbons (constituents which 
contribute energy value to the fuel). The rule specifies conditions on 
burning ECF which assure that emissions from industrial boilers burning 
ECF are comparable to emissions from industrial boilers burning fuel 
oil. The ECF exclusion also includes conditions for tanks and 
containers storing ECF to assure that discard does not occur.

DATES: This final rule is effective January 20, 2009.

ADDRESSES: The official public docket is identified by Docket ID No. 
EPA-HQ-RCRA-2005-0017. All documents in the docket are listed in the 
http://www.regulations.gov index. Although listed in the index, some 
information is not publicly available, e.g., Confidential Business 
Information (CBI) or other information whose disclosure is restricted 
by statute. Certain other material, such as copyrighted material, will 
be publicly available only in hard copy. Publicly available docket 
materials are available either electronically in http://www.regulations.gov or in hard copy at the RCRA Docket, EPA/DC, EPA 
West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. The 
Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through 
Friday, excluding legal holidays. The telephone number for the Public 
Reading Room is (202) 566-1744, and the telephone number for the RCRA 
Docket is (202) 566-0270.

FOR FURTHER INFORMATION CONTACT: Mary Jackson, Hazardous Waste 
Minimization and Management Division, Office of Solid Waste, Mailcode: 
5302P, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460; telephone number: (703) 308-8453; fax number: 
(703) 308-8433; e-mail address: [email protected].

SUPPLEMENTARY INFORMATION:

General Information

A. Does This Action Apply to Me?

    Categories and entities potentially affected by this action 
include:

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                                                                               Examples of potentially regulated
                   Category                         NAICS code       SIC code               entities
----------------------------------------------------------------------------------------------------------------
Any industry that generates or combusts                        562         49  Waste Management and Remediation
 hazardous waste as defined in the final rule.                                  Services.
                                                               327         32  Non-mettalic Mineral Products
                                                                                Manufacturing.
                                                               325         28  Chemical Manufacturing.
                                                               324         29  Petroleum and Coal Products
                                                                                Manufacturing.
                                                               331         33  Primary Metals Manufacturing.
                                                               333         38  Machinery Manufacturing.
                                                               326        306  Plastic and Rubber Products
                                                                                Manufacturing.
                                                          488, 561         49  Administration and Support
                                                                                Services.
                                                               421         50  Scrap and waste materials.
                                                               422         51  Wholesale Trade, Non-durable
                                                                                Goods, N.E.C.
                                                     512, 541, 812         73  Business Services, N.E.C.
                                                512, 514, 541, 711         89  Services, N.E.C.
                                                               924         95  Air, Water and Solid Waste
                                                                                Management.
                                                               336         37  Transportation Equipment
                                                                                Manufacturing.
                                                               928         97  National Security.
                                                               334         35  Computer and Electronic Products
                                                                                Manufacturing.
                                                               339         38  Miscellaneous Manufacturing.
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    This table is not intended to be exhaustive, but rather provides a 
guide for readers regarding entities likely to be impacted by this 
action. This table lists examples of the types of entities EPA is aware 
could potentially be regulated by this action. Other types of entities 
not listed could also be affected. To determine whether your facility, 
company, business, organization, etc., is affected by this action, you 
should examine the applicability criteria in this rule. If you have any 
questions regarding the applicability of this action to a particular 
entity, consult the person listed in the preceding FOR FURTHER 
INFORMATION CONTACT section.

B. Docket Copying Costs

    You may copy a maximum of 100 pages from any regulatory docket at 
no charge. Additional copies are 15 cents/page.

C. How Do I Obtain a Copy of This Document and Other Related 
Information?

    In addition to being available in the docket, an electronic copy of 
this rule will also be available on the Worldwide Web (WWW). Following 
the Administrator's signature, a copy of this document will be posted 
on the WWW at http://www.epa.gov/hwcmact. This Web site also provides 
other information related to the NESHAP (National Emission Standards 
for Hazardous Air Pollutants) for hazardous waste combustors.

D. Index of Contents

    The information presented in this preamble is organized as follows:

[[Page 77955]]

Part One: Background

I. Statutory Authority
II. Background
    A. What Is the Intent of the Rule?
    B. Who Will Be Affected by This Rule?
    C. What Is the Relationship Between This Rule and the Existing 
Exclusion for Comparable Fuel?

Part Two: Summary of the Final Rule

I. What Is ECF?
II. What Are the Storage Conditions for ECF?
    A. What Are the Conditions for Storage?
    1. Discharge Prevention Conditions That Are Adopted From SPCC 
Requirements
    2. Containment Conditions That Are Adopted From Hazardous Waste 
Storage Requirements
    3. Emergency Procedure Conditions That Are Adopted From 
Hazardous Waste Storage Requirements
    4. Fugitive Air Emissions Conditions That Are Adopted From the 
NESHAP for Organic Liquid Distribution, the NESHAP for Tanks, the 
NESHAP for Containers, and the NESHAP for Equipment Leaks
    B. What Are the Alternative Storage Conditions?
    C. What Are the Other Storage Conditions?
    1. Underground Storage of ECF Is Prohibited
    2. What Are the Conditions for Closure of RCRA Storage Units 
That Become ECF Storage Units?
    3. What Are the Conditions for Closure of Storage Units?
    4. What Are the Conditions for Management of Incompatible ECF 
and Other Materials?
III. What Are the Conditions for ECF Burners?
    A. What Types of Combustors May Burn ECF?
    B. What Are the Operating Conditions for Burners?
IV. What Are the Recordkeeping, Notification, and Certification 
Conditions?
    A. Fuel Analysis Plans
    B. Sampling and Analysis
    C. Speculative Accumulation and Legitimacy
    D. Notifications
    1. ECF Generator Notification
    2. ECF Burner Notifications
    3. Notification of Closure of a Tank or a Container Storage Unit
    E. Burner Certification
    F. Recordkeeping
    1. ECF Generator Recordkeeping Requirements
    2. ECF Burner Recordkeeping Requirements
    G. Transportation
    H. Ineligible RCRA Hazardous Waste Codes
V. What Are the Consequences of Failure To Comply With a Condition?
VI. What Conditions Apply to Spills and Leaks?
VII. What Are the Clarifications and Revisions to the Existing 
Conditions for Comparable Fuel?

Part Three: What Are the Major Changes Since Proposal?

I. What Are the Major Changes to the Emission-Comparable Fuel 
Specification?
II. What Are the Major Changes to the Storage Conditions?
    A. Storage in Containers Is Allowed
    B. Alternative Storage Conditions Are Provided
    C. Conditions To Control Fugitive Air Emissions From Tank 
Systems Are Revised
    D. Storage in Underground Storage Tanks Is Prohibited
III. What Are the Major Changes to the Burner Conditions?
    A. What Types of Devices May Burn Emission-Comparable Fuel?
    B. What Are the Changes to the Burner Conditions?
    1. Comparable Fuel May Be Primary Fuel
    2. The 50 Percent Primary Fuel Firing Rate Is Based on Heat or 
Mass Input
    3. A Feedrate Limit for Each ECF Constituent Is Established
    4. Additional Operating Parameters Must Be Linked to the ECF 
Automatic Feed Cutoff System
    5. Burners Must Provide Operator Training
IV. What Are the Major Changes to the Implementation Conditions?
    A. What Are the Changes to the Analysis Plan Provisions for 
Burners?
    B. What Are the Changes to the Notification Provisions?
    1. Initial Notification
    2. Notification of Closure of a Tank or a Container Storage Unit
    C. What Are the Changes to the Consequences of Failure to Comply 
With a Condition of the Exclusion?

Part Four: What Are the Responses to Major Comments?

I. Scope of the ECF Exclusion
II. Legal Rationale for the ECF Exclusion
    A. EPA's Interpretation of the Solid Waste Disposal Act (SWDA)
    1. Hazardous Waste Burned for Energy Recovery
    2. SWDA Sec.  3004(q)
    3. Impact of the Exclusion on SWDA Sec.  3001(f)
    4. Factors for Use in Determining an Exclusion
    B. EPA's Use of Safe Foods and Fertilizers (SFAF) To Justify the 
Exclusion
    1. The Term ``Discarded'' With Regard to Hazardous Waste Burned 
for Energy Recovery
    2. Application of the Identity Principle to ECF
    3. Need for a Risk Assessment
    4. Applicability of the Market-Participation Theory to ECF
III. Conditions for Storage of ECF
    A. Storage in Containers
    B. Alternative Hazardous Waste Storage Conditions
    C. Air Emission Controls for Tanks
    D. Definitions of Tank Cars and Tank Trucks
    E. Adequacy of the ECF Storage Conditions
    F. Management of Residues in Tanks
    G. Closure Conditions for ECF Tanks
    H. Financial Assurance for ECF Tanks
    I. Waiver of RCRA Closure Requirements for Tanks Storing 
Hazardous Wastes That Are Subsequently Excluded ECF
IV. Rationale for Comparable Emissions
    A. Appropriate Benchmark Fuel for ECF Emissions
    B. Impact of ECF Exclusion on Emissions of Air Pollutants
    C. Assurance of 99.99% DRE of ECF Constituents
    D. Use of Available Emissions to Document ECF Emissions Will Be 
Comparable to Fuel Oil Emissions
    1. Use of Hazardous Waste Boiler Emissions Data
    2. Concern That EPA's Oil Emissions Data Base Has Emissions Data 
for Only 12 of 37 ECF Constituents
    3. Concern That EPA's Oil Emissions Data Base Is Too Sparse To 
Establish Benchmarks
    4. Concern That EPA Did Not Evaluate the Oil Emissions Data Base 
for Probable Outliers
    5. Concern That the Level of Detection Is Needed for Nondetect 
Data Points in the Hazardous Waste Boiler Data Base
    6. Concern Regarding the Concentration of ECF Constituents in 
Hazardous Waste Boiler Fuels
    7. Concern Whether EPA Has Adequately Considered PIC Emissions
V. Conditions for Burning ECF
    A. Applicability of ECF Exclusion to Other Combustors
    B. EPA's Approach To Identify Feedrate Limits for ECF 
Constituents
    C. Use of WMPT To Rank ECF Constituents According to Hazard 
Potential
    D. Request To Expand Primary Fuel Condition
    E. Minimum Primary Fuel Firing Rate
    F. Request To Increase the Minimum 8,000 Btu/lb Requirement for 
ECF
    G. Request for Periodic CO Monitoring
    H. Request That Additional Operating Parameters Should Be Linked 
to the ECF Automatic Feed Cutoff System
    I. Request That Burner Conditions Should Not Apply to MEK and 
Isobutanol
VI. Implementation of the ECF Exclusion
    A. Reasonable Efforts To Ensure Compliance With the Conditions 
of Exclusion by Off-Site, Unaffiliated Burners
    1. Reasonable Efforts Provision in the Final Rule
    2. Consequence of Failure To Comply With a Condition of 
Exclusion
    3. Reasonable Efforts
    B. Fuel Analysis Plans
    1. Use of Process Knowledge
    2. Quarterly Waste Analysis Testing
    C. Intermediate Handlers
VII. Costs and Benefits of the ECF Exclusion
    A. Concern That the Economic Analysis Did Not Account for the 
Increased Risk Likely To Result From the Exclusion
    B. Impacts Associated With Hazardous Waste Currently Blended 
With ECF
    C. Concern That the Economic Analysis Underestimates the 
Quantity of Hazardous Secondary Materials Qualifying for the 
Exclusion
    D. Concern That the Economic Analysis Underestimates the 
Percentage of

[[Page 77956]]

Qualifying Hazardous Secondary Materials That Would Be Excluded From 
RCRA Subtitle C Regulation Under the Exclusion
    E. Concern That the Economic Analysis Does Not Consider Joint 
Impacts With the Proposed Definition of Solid Waste Rule
    F. Concern That the Economic Analysis Underestimates the Value 
of Coal
    G. Concern That the Economic Analysis Overestimates the Per Unit 
Cost of Incineration
    H. Concern That EPA Overestimates the Price That ECF Would 
Command on the Open Market
    I. Concern That Revenue Losses for Commercial Incinerators and 
Cement Kilns Are Not Reflected in EPA's Estimates of the Social 
Costs (Savings) of the Rule
    J. Concern That EPA Has Not Evaluated the Adverse Consequences 
to National Waste Management Networks That Might Result if Some 
States Adopt the Rule and Others Do Not

Part Five: State Authority

I. Applicability of the Rule in Authorized States
II. Effect on State Authorization

Part Six: Costs and Benefits of the Final Rule

I. Introduction
II. Baseline Specification
III. Analytical Methodology, Primary Data Sources, and Key 
Assumptions
IV. Key Analytical Limitations
V. Findings

Part Seven: Statutory and Executive Order Reviews

I. Executive Order 12866: Regulatory Planning and Review
II. Paperwork Reduction Act
III. Regulatory Flexibility Act
IV. Unfunded Mandates Reform Act of 1995
V. Executive Order 13132: Federalism
VI. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments
VII. E.O. 13045 ``Protection of Children From Environmental Health 
Risks and Safety Risks''
VIII. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
IX. National Technology Transfer Advancement Act
X. Executive Order 12898: Federal Actions To Address Environmental 
Justice in Minority Populations and Low-Income Populations
XI. Congressional Review Act

Part One: Background

I. Statutory Authority

    These regulations are promulgated under the authority of sections 
1004 and 2002 of the Solid Waste Disposal Act of 1970, as amended by 
the Resource Conservation and Recovery Act of 1976 (RCRA), as amended 
by the Hazardous and Solid Waste Amendments of 1984 (HSWA), 42 U.S.C. 
6903 and 6912.

II. Background

A. What Is the Intent of the Rule?

    Section 261.38 states that hazardous secondary materials (i.e., 
spent materials, sludges and byproducts) which have fuel value and 
whose hazardous constituent levels are comparable to those found in 
fuel oil that could be burned in their place are not solid wastes, and 
hence not hazardous wastes. These materials are called comparable 
fuels. This rule adds an additional group of materials to the 
exclusions in section 261.38. These materials are hazardous secondary 
materials that, as generated, are not discarded, but are treated as 
valuable commodities through all phases of management through operation 
of conditions on their storage and burning, and based on their 
substantial physical identity with fuel oil. These hazardous secondary 
materials must meet all of the hazardous constituent specifications for 
comparable fuel except those for oxygenates and hydrocarbons, 
constituents with high energy content \1\ that contribute to the energy 
value of these materials. These excluded fuels are termed ``emission-
comparable fuel'' (``ECF'') because the emissions from an industrial 
boiler burning these hazardous secondary materials are comparable to 
the emissions from an industrial boiler burning fuel oil, the fossil 
fuel for which ECF would often substitute.\2\ In other words, ECF and 
fuel oil are comparable from an emissions standpoint, although the 
concentrations of oxygenates and hydrocarbons may be higher in the ECF 
than in fuel oil.
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    \1\ The hydrocarbons and oxygenates listed in Table 1 to Sec.  
261.38 have a heating value in the range generally of 10,000 Btu/lb 
to 18,000 Btu/lb. See USEPA, ``Final Technical Support Document for 
the Expansion of the Comparable Fuels Exclusion,'' November 2008, 
Table 2-1. Fuel oil typically has a heating value of approximately 
19,300 Btu/lb.
    \2\ Fuel oil is a common, but not predominant, fuel for 
industrial boilers.
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    EPA wishes to make clear the basic fact pattern regarding the 
generation and management of ECF in order to establish the fact 
situation to which the rule applies. The rule applies to hazardous 
secondary materials which are not discarded in the first instance. ECF 
must meet the specifications established for hazardous constituents in 
comparable fuels, except with respect to hydrocarbons and oxygenates--
constituents which provide substantial fuel value. These emission-
comparable fuels must meet the specifications for those hazardous 
constituents, as well as the specifications for minimum heating value 
and maximum viscosity, as generated. Hazardous secondary materials may 
not undergo processing to destroy or otherwise remove the hazardous 
constituents to meet the specifications, or to meet the heating value 
or viscosity specifications (i.e., such materials, by definition, 
cannot be ECF). Based on limited current practice for those materials 
currently classified as comparable fuels under existing Sec.  261.38, 
EPA expects most ECF to be used on-site.\3\ ECF would be used and 
stored under largely the same conditions as would the virgin fuel--fuel 
oil--which would often be displaced by ECF.
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    \3\ All comparable fuel currently excluded under Sec.  261.38 is 
burned on-site (i.e., at the site of generation), according to a 
survey conducted by the American Chemistry Council. See EPA Docket 
No. EPA-HQ-RCRA-2005-0017-0003. In addition, we estimate that 19 of 
the 34 burners projected to use ECF will burn on-site ECF which they 
generate themselves. See discussion in Part Six of this preamble.
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    Under these circumstances, the rule excludes ECF from being a solid 
waste, i.e., determines that ECF is not discarded, from its point of 
generation. Throughout its management cycle, ECF is subject to 
conditions which provide objective assurance that discard has not 
occurred. These include conditions on tank and container storage, drawn 
largely from conditions applicable to containers and tanks storing fuel 
oil and organic product and by-products, which conditions assure 
containment, spill prevention, and minimization of fugitive air 
emissions. Transport conditions are the same as for all other hazardous 
materials, including product fuels. Conditions on burning (again drawn 
largely from standard practices for assuring that industrial boilers 
operate efficiently) assure that emissions of hazardous constituents 
which may be present in different concentrations than fuel oil would be 
no different than the emissions if the same boiler burned fuel oil. The 
combination of ECF's substantial physical identity with fuel oil, and 
identical emission profiles with fuel oil, assures that ECF is not 
discarded when burned. For all of these reasons, EPA is taking the 
position that ECF may reasonably be classified as a non-discarded fuel 
product.
    Based on the quantity of hazardous secondary materials eligible for 
this exclusion, the total quantity of hazardous secondary materials 
excluded from the RCRA hazardous waste regulations is expected to 
increase substantially. Specifically, we estimate that approximately 
13,000 tons per year of hazardous secondary materials are currently 
excluded under the existing comparable fuel exclusion, while we

[[Page 77957]]

project that up to an additional 118,500 tons per year may be excluded 
under the ECF exclusion.
    These additional hazardous secondary materials can now be used as 
fuel without imposing regulatory costs on generators, primarily the 
manufacturing sector. However, the expanded comparable fuel exclusion 
is not likely to increase the amount of hazardous secondary materials 
used as fuel because these high Btu materials, even though not 
currently excluded from RCRA, are currently used in industrial furnaces 
and incinerators for their fuel value. Put another way, it is likely 
that the same amount of energy will be recovered from these hazardous 
secondary materials whether they are classified as wastes or non-
wastes, and the same amount of fossil fuel would be displaced. 
Nonetheless, continuing to regulate these hazardous secondary materials 
as hazardous wastes would: (1) Impose costs on a material which can 
legitimately be classified as a non-discarded product, rather than as a 
waste; and (2) preclude the opportunity to market the materials as 
boiler fuels, given that use is currently constrained to a relatively 
small universe of RCRA-permitted burners.

B. Who Will Be Affected by This Rule?

    Entities that generate, burn, and store ECF are potentially 
affected by this rule. The basic structure of the exclusion is that ECF 
is not a solid (and hazardous) waste as generated, and hence is not 
subject to subtitle C regulation. Thus, entities managing hazardous 
secondary materials classified as hazardous waste fuels under current 
rules can manage these fuels without being subject to full subtitle C 
regulation so long as they satisfy the conditions on ECF set out in 
this rule. Burners, which are limited to certain industrial boilers 
(including utility boilers) can burn ECF provided the boilers meet 
prescribed design and operating conditions, as discussed below in Part 
II, Section III.B.\4\ These entities will benefit from lower operating 
costs because of lower (or eliminated) waste management fees and 
because these hazardous secondary materials will substitute for fuels 
which would otherwise be purchased.
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    \4\ Under the final rule, ECF can also be burned in hazardous 
waste combustors operating under a RCRA permit. See discussion in 
Part Two, Section III.A of the preamble.
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    Commercial hazardous waste combustors that are currently managing 
hazardous waste fuels that qualify as ECF, on the other hand, might 
find themselves unable to continue to charge hazardous waste management 
fees for the excluded hazardous secondary materials. Consequently, 
commercial hazardous waste combustors might lose the waste management 
revenues for burning ECF, and, if they choose to no longer burn the 
material, may need to meet their heat input requirements by using other 
waste fuels or fossil fuels.

C. What Is the Relationship Between This Rule and the Existing 
Exclusion for Comparable Fuel?

    On June 19, 1998 (63 FR 33782 and Sec.  261.38), EPA promulgated 
standards to exclude from the definition of solid waste certain 
hazardous secondary material fuels that meet specification levels for 
hazardous constituents and physical properties that affect burning 
which are comparable to the same levels in fossil fuels (typically fuel 
oil). EPA's goal was to ensure that these excluded fuels, which are so 
similar in composition to commercial fuels, are properly classified as 
non-discarded products, not as wastes.
    During the ten years that the comparable fuel exclusion has been 
part of the hazardous waste regulations, several stakeholders have 
pointed out that there are many hazardous secondary materials currently 
classified as hazardous wastes which have fuel value, and which have 
substantially the same composition as fossil fuels, but which do not 
satisfy the terms of the exclusion. Independently, in 2003, EPA began 
examining the effectiveness of the current comparable fuel program as 
part of an effort to promote the energy conservation component of the 
Resource Conservation Challenge \5\ to determine whether other 
hazardous secondary materials currently classified as hazardous wastes 
could be appropriately excluded as comparable fuel.\6\
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    \5\ See http://www.epa.gov/epaoswer/osw/conserve/strat-plan/strat-plan.htm#rccplan.
    \6\ As noted above, the same amount of energy is recovered from 
excluded fuels whether they are burned in units subject to subtitle 
C rules, or in industrial boilers.
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    As part of this effort, EPA contacted the American Chemistry 
Council (ACC) in early 2003 to determine how much waste is currently 
excluded as comparable fuel and whether there were additional 
quantities of other high Btu hazardous secondary materials that could 
potentially be considered comparable fuel. As a result of ensuing 
discussions, we proposed in June 2007 to expand the exclusion for 
comparable fuel to establish a new category of excluded fuel--ECF. 72 
FR 33284 (June 15, 2007). In this notice, we are responding to public 
comments on the proposed rule, summarizing changes to the proposed 
rule, and promulgating a final rule.

Part Two: Summary of the Final Rule

I. What Is ECF?

    ECF is a hazardous secondary material which is excluded from the 
RCRA hazardous waste regulations if it meets prescribed specifications 
and conditions respecting its storage and burning. These conditions 
assure that ECF is not ``part of the waste disposal problem.'' American 
Mining Congress v. EPA, 907 F. 2d 1179, 1186 (DC Cir. 1990) citing 
American Mining Congress v. EPA, 824 F. 2d 1177, 1186 (DC Cir. 1987). 
The ECF fuel specifications (Sec.  261.38(a)(2)) are the same as those 
that are applicable to comparable fuel, except the specifications in 
Table 1 to Sec.  261.38 for hydrocarbons and for oxygenates do not 
apply, and the minimum heating value specification is 8,000 Btu/lb. The 
exclusion applies from the point of generation of the ECF.
    ECF must meet the specifications as generated. Hazardous secondary 
materials may not be treated by blending or other means to meet the 
specifications, including the minimum heating value and maximum 
viscosity specifications. ECF product may, however, be commingled with 
other fuels to facilitate handling and storage, provided that the ECF 
continues to meet the specifications.\7\
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    \7\ Please note that the proposal included a conforming 
amendment adding a reference to ECF to Sec.  261.38(a)(5), a 
provision addressing treatment of hazardous constituents to meet the 
hazardous constituent specifications. 72 FR at 33324. EPA has no 
information that this practice occurs, did not estimate any costs 
for the practice in assessing compliance costs for the proposed or 
final rule, and received no comment on the issue. EPA is 
consequently not finalizing the proposal to amend this provision.
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II. What Are the Storage Conditions for ECF?

    ECF may be stored in tanks and containers under conditions that 
prevent releases of hazardous secondary materials to the environment. 
The storage conditions are adopted from a collection of requirements 
for storage of fuel oil and other materials: discharge prevention 
requirements adopted from the Spill Prevention, Control, and 
Countermeasure (SPCC) requirements for oil storage facilities; 
containment and emergency procedure requirements adopted from the 
hazardous waste storage requirements, and fugitive air emission 
controls adopted from several NESHAP (National Emission Standards for 
Hazardous Air Pollutants) for organic products, by-products, and 
feedstocks. See Sec.  261.38(c)(1). The final rule also provides 
alternative storage

[[Page 77958]]

conditions, however, that are adopted solely from the controls for 
hazardous waste storage facilities. See Sec.  261.38(e). We provide 
these alternative storage conditions for the convenience of owners and 
operators because: (1) They provide equivalent protection of human 
health and the environment; (2) they are less complex than the suite of 
conditions that are adopted from requirements for fossil fuels and 
other products; and (3) facilities that are currently storing hazardous 
waste that becomes ECF under the exclusion are already complying with 
these conditions.
    The storage conditions adopted from the collection of SPCC 
provisions, hazardous waste provisions, and NESHAP provisions are 
discussed below in Section II.A. The alternative storage conditions 
adopted solely from the hazardous waste storage requirements are 
discussed below in Section II.B.

A. What Are the Conditions for Storage?

1. Discharge Prevention Conditions That Are Adopted From SPCC 
Requirements
    We are adopting particular SPCC provisions under 40 CFR Part 112 
that pertain to discharge prevention for oils managed at onshore 
facilities: Sec. Sec.  112.2, 112.3(d), 112.3(e), 112.5(a), 112.5(b), 
112.7, and 112.8. See Sec.  261.38(c)(1)(iii). These provisions require 
compliance with the SPCC Plan requirements for discharge prevention, 
other than those pertaining to containment. See Sec.  
261.38(c)(1)(iii).
2. Containment Conditions That Are Adopted From Hazardous Waste Storage 
Requirements
    We are adopting the hazardous waste provisions for containment for 
storage units: (1) For tanks, Sec.  264.193 (b) and (c), Sec.  
264.193(d)(1) through (d)(3), and Sec.  264.193 (e) and (f); and (2) 
for containers, Sec.  264.175(b).
    For tanks, the adopted provisions are those for engineered 
secondary containment and for leak detection. Engineered secondary 
containment means the use of an external liner, vault, or double-walled 
tank. See Sec.  261.38(c)(1)(iv)(A).
    For containers, the adopted provisions are those for a containment 
system comprised of a base underlying the containers which is free of 
cracks or gaps and is sufficiently impervious to contain leaks, spills, 
and accumulated precipitation until the collected material is detected 
and removed. The containment system must be designed to contain 10% of 
the volume of containers or the volume of the largest container, 
whichever is greater. See Sec.  261.38(c)(1)(iv)(B).
3. Emergency Procedure Conditions That Are Adopted From Hazardous Waste 
Storage Requirements
    We are adopting provisions from hazardous waste storage 
requirements for preparedness and prevention, emergency procedures, and 
response to leaks or spills. See Sec.  261.38(c)(v).
    The following conditions ensure preparedness and prevention: (1) 
You must provide the emergency equipment required by adopted Sec.  
264.32(a) though (d); (2) you must test and maintain equipment related 
to emergency procedures; (3) you must ensure access to communications 
or alarm systems by facility personnel; and (4) you must make 
arrangements with local authorities as required by adopted Sec.  
264.37(a).
    The following conditions establish emergency procedures: (1) An 
emergency coordinator must be available at all times; and (2) the 
emergency coordinator must manage imminent or actual emergency 
situations according to the provisions of Sec.  261.38(c)(1)(v)(B)(2).
    To address a response to leaks or spills from tank systems, and the 
disposition of leaking or unfit-for-use tank systems, the provisions of 
Sec.  264.196 are adopted, except for the closure provisions of Sec.  
264.196(e)(1) and (4).
4. Fugitive Air Emissions Conditions That Are Adopted From the NESHAP 
for Organic Liquid Distribution, the NESHAP for Tanks, the NESHAP for 
Containers, and the NESHAP for Equipment Leaks
    All ECF tanks systems, containers with a capacity greater than 0.1 
cubic meters (26 gallons), and equipment that contains or contacts ECF 
(e.g., valves and pumps) are subject to conditions to control fugitive 
air emissions. The conditions are adopted from the organic liquid 
distribution (OLD) NESHAP, the NESHAP for containers (Level 1 or Level 
2 controls), the NESHAP for tanks (Level 1 or Level 2 controls),\8\ and 
the NESHAP for equipment leaks.
---------------------------------------------------------------------------

    \8\ As discussed below, we also provide as alternative tank 
controls three control alternatives for hazardous waste tanks under 
Subpart CC, Part 63, that are not included under the NESHAP.
---------------------------------------------------------------------------

    a. Tanks. Tanks containing ECF that are currently subject to the 
OLD requirements under Sec.  63.2346 (Part 63, Subpart EEEE) are not 
subject to any additional conditions to control fugitive emissions 
(under Sec.  261.38(c)(vi)(B) and (C), and (c)(vii)), with one 
exception. If your tank is subject to Items 1 through 5 in Table 2 to 
Subpart EEEE, rather than Item 6 because the annual average vapor 
pressure of regulated organic HAP \9\ is less than 11.1 psia, you must 
consider the annual average vapor pressure of the RCRA oxygenates 
listed under Sec.  261.38(c)(1)(vi)(B)(3) to determine if your tank 
must also satisfy the more stringent controls (drawn from the other OLD 
controls) we are adopting for ECF. See Sec.  261.38(c)(vi)(A)(2).
---------------------------------------------------------------------------

    \9\ Organic HAP regulated by Subpart EEEE, Part 63 are listed in 
Table 1 to Subpart EEEE.
---------------------------------------------------------------------------

    Tanks that are not currently subject to the OLD requirements under 
Sec.  63.2346, and that store ECF that meets the expanded definition of 
organic liquid which we are adopting for ECF under Sec.  
261.38(c)(vi)(B)(4),\10\ are subject (as a condition) to emission 
limits adopted from the OLD NESHAP as a function of the tank design 
capacity and the annual average vapor pressure of the RCRA oxygenates 
and the organic HAP in the ECF. See Sec.  261.38(c)(1)(vi)(C)(5).
---------------------------------------------------------------------------

    \10\ An organic liquid for purposes of Sec.  261.38(c)(vi) means 
emission comparable fuel that: (1) Contains 5 percent by weight or 
greater of the RCRA oxygenates as well as organic HAP listed in 
Table 1 to Part 63, Subpart EEEE; and (2) has an annual average true 
vapor pressure of 0.7 kilopascals (0.1 psia) or greater.
---------------------------------------------------------------------------

    Finally, ECF tanks that are not subject to the adopted OLD 
requirements (i.e., tanks storing ECF that meets the adopted definition 
of organic liquid under Sec.  261.38(c)(vi)(B)(4), but for which OLD 
controls are not adopted under Sec.  63.2346, and tanks storing ECF 
that does not meet the adopted and expanded definition of organic 
liquid) are subject to the following conditions:
     For tanks that meet the tank capacity and vapor pressure 
criteria for hazardous waste tanks under Sec.  264.1084(b)(1) for Level 
1 control:
    [cir] The NESHAP provisions for Level 1 control under Subpart OO, 
Part 63, Sec. Sec.  63.901 through 63.907; or
    [cir] The NESHAP provisions for organic liquid distribution under 
Subpart EEEE, Part 63 under Item 1.a.i or 1.a.ii in Table 2 to Subpart 
EEEE, which require 95% emissions reduction via venting to a control 
device under provisions of Subpart SS, Part 63, or Level 2 tank 
emissions control under Subpart WW, Part 63, or routing emissions to a 
fuel gas system or back to a process under Sec.  63.984 of Subpart SS, 
Part 63, or vapor balancing emissions to the transport vehicle from 
which the storage tank is filled under Sec.  63.2346(a)(4); or
    [cir] Hazardous waste tank controls under Subpart CC, Part 264, 
under Sec.  264.1084(d)(3), (d)(4), or (d)(5) for use of venting to a 
control device, or a pressure tank, or a tank located inside an 
enclosure that is vented through a

[[Page 77959]]

closed-vent system to an enclosed combustion control device, and the 
associated provisions under Sec. Sec.  63.1081 (definitions), 
264.1083(c) (determination of vapor pressure), 264.1084(j) (transfer to 
a tank), 264.1087 (closed-vent systems and control devices), and 
264.89(b) (recordkeeping).
     For tanks that do not meet the tank capacity and vapor 
pressure criteria for hazardous waste tanks under Sec.  264.1084(b)(1) 
and are, thus, subject to Level 2 control, the air emission controls 
are the same as for Level 1 control, except that the Level 1 controls 
under Subpart OO, Part 63, are not applicable.
    The air emission conditions for ECF tanks are summarized in the 
table below:

----------------------------------------------------------------------------------------------------------------
                                                      Adopted old NESHAP conditions (subpart
                                                       EEEE, part 63) for tanks storing ECF
                                                       that meets the definition of organic   Adopted conditions
    Tank capacity  (gallons)        Vapor pressure                  liquid \1\                   for tanks not
                                        (psia)       ---------------------------------------- subject to adopted
                                                                           Reconstructed or      old controls
                                                       Existing sources       new sources
----------------------------------------------------------------------------------------------------------------
<5,000..........................  <11.1.............  ..................  ..................              A or C
                                  >=11.1............  ..................  ..................             A or D
>=5,000 to <10,000..............  <4.0..............  ..................  ..................              A or C
                                  >=4.0 to <11.1....                  A                   A               A or C
                                  >11.1.............                  B                   B              A or D
>=10,000 to <20,000.............  <=0.1.............  ..................  ..................              A or C
                                  >=0.1 to >4.0.....  ..................                  A               A or C
                                  >=4.0 to >11.1....                  A                   A               A or C
                                  >=11.1............                  B                   B              A or D
>=20,000 to <40,000.............  <=0.1.............  ..................  ..................              A or C
                                  >=0.1 to >4.0.....  ..................                  A               A or C
                                  >=4.0 to >11.1....                  A                   A              A or D
                                  >=11.1............                  B                   B              A or D
>=40,000 to <50,000.............  <=0.1.............  ..................  ..................              A or C
                                  >=0.1 to >0.75....  ..................                  A               A or C
                                  >=0.75 to >4.0....  ..................                  A              A or D
                                  >=4.0 to >11.1....                  A                   A              A or D
                                  >=11.1............                  B                   B              A or D
>=50,000........................  <=0.1.............  ..................  ..................              A or C
                                  >=0.1 to >0.75....                  A                   A               A or C
                                  >=0.75 to >11.1...                  A                   A              A or D
                                  >=11.1............                  B                   B              A or D
----------------------------------------------------------------------------------------------------------------
\1\ Organic liquid means emission comparable fuel that: (1) Contains 5 percent by weight or greater of the RCRA
  oxygenates as well as organic HAP listed in Table 1 to Part 63, Subpart EEEE; and (2) has an annual average
  true vapor pressure of 0.7 kilopascals (0.1 psia) or greater.
Notes:
A: 95% emissions reductions via venting to a control device under Subpart SS, Part 63; or Level 2 tank control
  under Subpart WW, Part 63; or route emissions to a fuel gas system or back to a process under 63.984 of
  Subpart SS, Part 63; or vapor balancing emissions to the transport vehicle from which the storage tank is
  filled under 63.2346(a)(4) of Subpart EEEE, Part 63.
B: 95% emissions reductions via venting to a control device under Subpart SS, Part 63; or route emissions to a
  fuel gas system or back to a process under 63.984 of Subpart SS, Part 63; or vapor balancing emissions to the
  transport vehicle from which the storage tank is filled under 63.2346(a)(4) of Subpart EEEE, Part 63.
C: Level 1 control under Subpart OO, Part 63, or venting to a control device under 264.1086(d)(3), or a pressure
  tank under 264.1084(d)(4) of; or tank located inside an enclosure that is vented to an enclosed combustion
  control device under 264.1084(d)(5).
D: Venting to a control device under 264.1086(d)(3); pressure tank under 264.1084(d)(4); or tank located inside
  an enclosure that is vented to an enclosed combustion control device under 264.1084(d)(5).

    b. Containers. Containers that store ECF are subject to the adopted 
OLD provisions (see Sec.  261.38(c)(1)(vi)(C)(3)) in order to be 
excluded. However, these provisions establish standards for containers 
only in a specific situation: Containers with a capacity greater than 
55 gallons that are being loaded at a transfer rack at a new facility 
with ECF that meets the definition of organic liquid and where the 
annual volume of ECF is 800,000 gallons or more. See Items 9 and 10 in 
Table 2 to adopted Subpart EEEE.
    To ensure that air emissions are controlled for other ECF 
containers as they are for containers storing liquids containing 
volatile organics (assuring that ECF is handled as are other 
commodities rather than being discarded), we adopt the national 
emission controls for containers under Subpart PP, Part 63. Subpart PP 
prescribes three levels of air emission controls: Level 1, Level 2, and 
Level 3. To determine which level of control would apply to ECF 
containers, we adopt the applicability criteria for hazardous waste 
containers under Sec.  264.1086(b)(1). See Sec.  261.38(c)(vii)(B)(1) 
and (c)(vii)(B)(2). Those applicability criteria specify whether Level 
1 or Level 2 national emission controls for containers apply, 
considering the size of the container and whether it is ``in light 
material service.'' \11\ Under these adopted controls as conditions for 
the exclusion, an ECF container having a design capacity greater than 
0.1 cubic meters (26 gallons) satisfies the conditions if it: (1) Meets 
the applicable U.S. Department of Transportation (DOT) regulations on 
packaging hazardous materials for transportation; and (2) is kept 
closed unless ECF is being added or removed from the container.
---------------------------------------------------------------------------

    \11\ An ECF container is in light material service if: (1) The 
vapor pressure of one or more of the organic components in the ECF 
is greater than 0.3 kilopascals (kPa) at 20 [deg]C; and (2) the 
total concentration of the pure organic components having a vapor 
pressure greater than 0.3 kilopascals (kPa) at 20 [deg]C is equal to 
or greater than 20 percent by weight. See Sec.  264.1031.
---------------------------------------------------------------------------

    c. Equipment Leaks. For tanks and containers that are conditioned 
on meeting the adopted OLD requirements, air emissions from leaks from 
equipment that contains or contacts ECF at a storage unit are 
controlled under the adopted OLD requirements

[[Page 77960]]

(Sec.  63.2346(c)). For tanks and containers that are not conditioned 
on meeting the adopted OLD requirements, equipment leaks are subject to 
adopted NESHAP controls for equipment leaks, as discussed below. See 
Sec.  261.38(c)(1)(vi)(C)(3), (c)(1)(vii)(A)(3), and (c)(1)(vii)(B)(3).
    The OLD NESHAP subjects storage units to the following Part 63 
NESHAP for equipment leaks if a facility has a tank or container 
subject to air emission control under Table 2 to Subpart EEEE: Subpart 
TT (Level 1 control), or Subpart UU (Level 2 control), or Subpart H.
    For equipment leaks that are not conditioned on meeting OLD, we 
adopt as conditions the same suite of NESHAP controls that are required 
under OLD, and apply those controls to all equipment that stores or 
contacts ECF at a storage unit. The adopted NESHAP controls are: (1) 
Subpart TT, Part 63, (Level 1 control), except for Sec.  63.1000; or 
(2) Subpart UU (Level 2 control), except for Sec.  63.1019; or (3) 
Subpart H, except for Sec. Sec.  63.160, 63.162(b) and (e), and 63.183.

B. What Are the Alternative Storage Conditions?

    The rule establishes alternative storage conditions that we adopt 
from the hazardous waste storage standards under 40 CFR Part 264. See 
Sec.  261.38(e). You may comply with these alternative conditions in 
lieu of the conditions just enumerated in Section II.A above. If you 
choose to meet these alternative conditions, you must substitute the 
term ``emission-comparable fuel'' for each occurrence of the term 
``hazardous waste'' or ``waste.''
    The alternative conditions for your ECF tank or container storage 
unit provide controls for: (1) Security; (2) inspections; (3) personnel 
training; (4) handling ignitable, reactive, or incompatible materials; 
(5) preparedness and prevention; (6) contingency plan and emergency 
procedures; and (7) air emission controls for equipment leaks.
    Specifically, if you store ECF in a container, to maintain the 
exclusion, you must comply with conditions governing the use and 
management of those containers. Those conditions address: (1) The 
condition of the containers; (2) compatibility of the ECF with the 
containers; (3) management of the containers; (4) inspections; (5) 
containment; (6) special requirements for ignitable or reactive ECF; 
and (7) air emission controls.
    On the other hand, if you store ECF in a tank, to maintain the ECF 
exclusion, you must comply with conditions that address: (1) 
Containment and detection of releases; (2) general operating 
requirements; (3) inspections; (4) response to leaks or spills and 
disposition of leaking or unfit-for-use tank systems; (5) ignitable or 
reactive materials; (6) incompatible materials; and (7) air emission 
controls.

C. What Are the Other Storage Conditions?

1. Underground Storage of ECF Is Prohibited
    The final rule prohibits storage of ECF in underground tanks (i.e. 
a hazardous secondary material stored in an underground tank by 
definition cannot be ECF): A tank the volume of which (including the 
volume of underground pipes connecting thereto) is 10 percent or more 
beneath the surface of the ground.\12\ In the preamble to the proposed 
rule, we requested comment on whether generators or burners would be 
likely to store ECF in underground tanks. We did not receive any 
information to indicate that ECF would be stored in underground tanks. 
Given the additional complexity to the rule that would result from the 
need to adopt air emission controls, as well as preparedness and 
prevention and emergency procedure provisions for underground storage 
tanks, we conclude that allowing the use of underground storage tanks 
for ECF would unnecessarily complicate the rule for very little 
benefit, or (more likely) no benefit at all.
---------------------------------------------------------------------------

    \12\ See Sec.  280.12.
---------------------------------------------------------------------------

2. What Are the Conditions for Closure of RCRA Storage Units That 
Become ECF Storage Units?
    The rule waives the RCRA closure requirements in 40 CFR Parts 264 
and 265 for those interim status and permitted storage units, and 
generator accumulation units exempt from the permitting requirements 
under Sec.  262.34 of this chapter, that store ECF, provided that: (1) 
The storage unit has been used to store only the hazardous waste that 
is subsequently excluded as ECF under the conditions of Sec.  261.38; 
and (2) the storage unit will be used to store only that ECF.
3. What Are the Conditions for Closure of Storage Units?
    Like any other product storage unit which goes out of service, tank 
systems and container storage units would not be required to undergo 
closure under the RCRA hazardous waste regulations (unless liquids or 
accumulated solids were not cleaned from the tank system or container 
within 90 days of cessation of operation as an ECF storage unit), when 
the unit ceases operation as a product storage unit. See Sec.  
261.4(c). However, if an ECF storage unit ceases to be operated to 
store ECF product, but has not been cleaned by removing all liquids and 
accumulated solids within 90 days of cessation of ECF storage 
operations, the tank system or container would become subject to the 
RCRA Subtitle C regulations.13 14 See Sec.  261.38(b)(13).
---------------------------------------------------------------------------

    \13\ This provision also applies to currently excluded 
comparable fuel.
    \14\ If the tank is used to actively accumulate hazardous waste 
after being taken out of service as an ECF (or comparable fuel) 
product tank, the tank may be eligible for the provisions under 
Sec.  262.34 that waive the permit requirements for generator tanks 
that accumulate hazardous waste for not more than 90 days.
---------------------------------------------------------------------------

    Discarded liquids and accumulated solids removed from a tank system 
or container that ceases to be operated for storage of ECF product are 
solid wastes. This material is hazardous waste if it exhibits a 
characteristic of hazardous waste or if the ECF no longer meets a 
condition of the exclusion and is otherwise listed as a hazardous 
waste. Similarly, liquids and accumulated solids removed from a tank 
system or container are solid wastes (and if identified or listed, 
hazardous wastes) if at any time they do not meet the ECF 
specifications and other conditions of the exclusion.\15\
---------------------------------------------------------------------------

    \15\ This assumes that all hazardous secondary materials claimed 
to be ECF and stored in a tank or container properly met the 
conditions for the exclusion. If not, however, any liquid or 
accumulated solids removed from the tank or container, at any time, 
would be hazardous waste, and therefore subject to regulation as 
hazardous waste from the point of generation.
---------------------------------------------------------------------------

4. What Are the Conditions for Management of Incompatible ECF and Other 
Materials?
    ECF generators and burners must take precautions to prevent the 
mixing of ECF and other materials which could result in reactions which 
could: (1) Generate extreme heat or pressure, fire or explosions, or 
violent reactions; (2) produce uncontrolled hazardous mists, fumes, 
dusts, or gases; (3) produce uncontrolled flammable fumes or gases; or 
(4) damage the structural integrity of the storage unit or facility. 
See Sec.  261.38(c)(1)(viii). ECF generators must document how they 
will take precautions to avoid these situations. This documentation 
must be kept on-site for three years.

III. What Are the Conditions for ECF Burners?

    ECF must be burned in particular combustors under prescribed 
conditions to be eligible for the exclusion.

[[Page 77961]]

A. What Types of Combustors May Burn ECF?

    To be excluded, ECF may be burned in an industrial or utility 
boiler that is a watertube type of steam boiler that does not feed fuel 
using a stoker or stoker-type mechanism. To be considered a boiler, a 
combustor must meet the definition of boiler under Sec.  260.10. To be 
considered an industrial boiler, the boiler must be located on the site 
of a facility engaged in a manufacturing process where substances are 
transformed into new products, including the component parts of 
products, by mechanical or chemical processes. To be considered a 
utility boiler, the boiler must be used to produce electric power, 
steam, heated or cooled air, or other gases or fluids for sale. See 
Sec.  261.38(b)(3)(i)(B).
    ECF may also continue to be burned in any hazardous waste combustor 
operating under a RCRA permit issued under Part 270, provided the ECF 
is burned under the same operating requirements that apply to hazardous 
waste burned by the combustor (i.e., ECF must be burned as though it 
were hazardous waste). Those hazardous waste operating requirements 
apply in lieu of the conditions for burning ECF under Sec.  
261.38(c)(2), except that the ECF constituent feedrate limits under 
Sec.  261.38(c)(2)(ii)(C) continue to apply.\16\ \17\ The hazardous 
waste operating requirements serve as conditions for exclusion of the 
ECF. Consequently, if the burner fails to comply with the hazardous 
waste operating requirements when burning ECF, the ECF loses the 
exclusion and must be managed as hazardous waste from the point of 
generation.\18\
---------------------------------------------------------------------------

    \16\ Although the hazardous waste combustor operating 
requirements ensure that 99.99% DRE and good combustion is achieved, 
the ECF constituent feedrate limits are needed to ensure that 
emissions from the hazardous waste combustor are comparable to fuel 
oil emissions.
    \17\ In addition, to implement the ECF feedrate limits, the ECF 
automatic feed cutoff system requirements under Sec.  
261.38(c)(2)(ii)(G) that apply to monitoring the constituent 
feedrate limits as specified under Sec.  261.38(c)(2)(ii)(G)(1)(ii) 
also apply to HWCs.
    \18\ See discussion in Part Four, Section V.A, below for the 
rationale for this provision.
---------------------------------------------------------------------------

B. What Are the Operating Conditions for Burners?

    ECF must be burned under the following operating conditions to be 
excluded, as provided by Sec.  261.38(c)(2)(ii):\19\ \20\
---------------------------------------------------------------------------

    \19\ Note, however, that if ECF is burned in a hazardous waste 
combustor operating under a RCRA permit, these operating conditions 
do not apply, except for the ECF constituent feedrate limits. In 
this situation, all operating requirements that apply to hazardous 
waste burning apply as conditions for burning ECF.
    \20\ Please note also that boiler operators must be trained to 
operate and maintain the boiler and monitoring systems to ensure 
compliance with the burner conditions. See Sec.  261.38(c)(2)(iii).
---------------------------------------------------------------------------

     The feedrate of ECF constituents (i.e., oxygenates and 
hydrocarbons) must not exceed the limits provided by Table 2 to Sec.  
261.38; \21\
---------------------------------------------------------------------------

    \21\ See discussion in Part Three, Section III.B.3 below for the 
rationale for this provision and how it will be implemented. See 
also Sec.  261.38(c)(2)(ii)(C).
---------------------------------------------------------------------------

     Carbon monoxide (CO) concentrations in the stack gas must 
be monitored continuously, must be linked to an automatic ECF feed 
cutoff system, and must not exceed 100 ppmv on an hourly rolling 
average (corrected to 7% oxygen);
     The boiler must fire at least 50% primary fuel on a 
heating value and mass basis, and the primary fuel must be fossil fuel, 
fuels derived from fossil fuel, tall oil, or comparable fuel with a 
heating value of 8,000 Btu/lb or greater;
     The boiler load must be 40% or greater;
     Key operating parameters (i.e., CO; gas temperature at the 
inlet to the electrostatic precipitator (ESP) or fabric filter (FF) 
unless coal is the primary fuel; indicator of boiler load; ECF 
feedrate; primary fuel feedrate) must be linked to a system that 
automatically cuts off the ECF feed if the limits on the parameters are 
exceeded;
     ECF must be fired into the primary fuel flame zone;
     The ECF firing system must provide proper atomization; and
     If the boiler is equipped with an ESP or FF and does not 
fire coal as the primary fuel, the combustion gas temperature at the 
inlet to the ESP or FF must be continuously monitored, must be linked 
to the automatic ECF feed cutoff system, and must not exceed 400 [deg]F 
on an hourly rolling average.

IV. What Are the Recordkeeping, Notification, and Certification 
Conditions?

A. Fuel Analysis Plans

    ECF generators must develop a fuel analysis plan prior to sampling 
and analysis of their ECF to determine if the ECF meets the exclusion 
specifications. See Sec.  261.38(b)(4).
    ECF burners may also be required to develop a fuel analysis plan as 
a condition of the exclusion. Specifically, when burning ECF, burners 
must know the as-fired heating value and the as-fired concentration of 
the ECF constituents for each fuel fed to the boiler. If a burner does 
not receive from the generator documentation of the heating value and 
concentration of the ECF constituents for each shipment or use the 
default values for primary fuels provided by Sec.  261.38(c)(2)(ii)C), 
the burner must develop a fuel analysis plan.\22\
---------------------------------------------------------------------------

    \22\ As noted earlier, EPA expects that in the majority of 
situations, the generator and burner of the ECF will be the same. In 
this case, the fuel analysis plan required for burners may be 
incorporated in the generator's fuel analysis plan.
---------------------------------------------------------------------------

    All sampling and analysis plans must document: (1) Sampling, 
analysis, and statistical analysis protocols that were employed; (2) 
sensitivity and bias of the measurement process; (3) precision of the 
analytical results for each batch of fuel tested; and (4) the results 
of the statistical analysis.

B. Sampling and Analysis

    ECF must meet all of the specifications for comparable fuel, except 
the specifications for hydrocarbons and oxygenates. Sampling and 
analysis is required for all constituents (unless the generator uses 
process knowledge as discussed below) because, even though the 
specifications for hydrocarbons and oxygenates are not applicable, the 
concentrations of those constituents must be known to demonstrate 
compliance with the feed rate limits for each constituent under Sec.  
261.38(c)(2)(ii)(C) (i.e., to satisfy this condition of the exclusion). 
The generator must document the claim that specific hazardous 
constituents meet the exclusion specifications based on process 
knowledge. Just as for comparable fuel, the following cannot be 
determined to ``not be present'' in the fuel based on process 
knowledge: (1) A hazardous constituent that causes the ECF to exhibit 
the toxicity characteristic or hazardous constituents that were the 
basis for the waste code in 40 CFR 268.40; (2) a hazardous constituent 
detected in previous analysis of the ECF; (3) a hazardous constituent 
introduced into the process that generates the ECF; or (4) a hazardous 
constituent that is a byproduct or side reaction to the process that 
generates the ECF.
    Regardless of which method a generator uses, testing or process 
knowledge, the generator is responsible for ensuring that the ECF meets 
all constituent specifications at all times. If at any time the ECF 
fails to meet any of the specifications, or other conditions of the 
exclusion, the ECF loses the exclusion and is subject to regulation as 
hazardous waste from the point of generation.

[[Page 77962]]

C. Speculative Accumulation and Legitimacy

    This rule adopts the same speculative accumulation provisions for 
ECF under Sec.  261.38(b)(7) as those applying to existing comparable 
fuel and to any recycled hazardous waste under Sec.  261.2(c)(4). 
Generators and burners must ``turn over'' annually at least 75 percent 
of the ECF on hand at the beginning of each calendar year. See the 
definition of ``accumulated speculatively'' in Sec.  261.1(c)(8). An 
ECF generator must burn or ship off site for burning during the 
calendar year at least 75% of the ECF on hand on January 1. An ECF 
burner must burn during the calendar year at least 75% of the ECF on 
hand on January 1. Although there is no formal recordkeeping 
requirement associated with the speculative accumulation provision, the 
burden of proof is on the generator and burner to demonstrate that the 
ECF has not been speculatively accumulated.
    In addition, as like all other hazardous secondary materials being 
recycled, ECF must satisfy legitimacy criteria assuring that recycling 
is not a sham for waste management. See, e.g. 72 FR 14197-198. Here, 
the ECF constituent specifications (identical concentrations of most 
hazardous constituents in ECF and fuel oil), substantial heating value 
in the oxygenates and hydrocarbons present in higher concentrations 
than in fuel oil, and conditions on burning assuring the same emissions 
from a boiler burning ECF as from burning fuel oil, all assure that ECF 
will be recycled legitimately.

D. Notifications

    In order to be excluded, ECF generators and burners must comply 
with the same notification requirements that apply to comparable fuel 
burners and generators, along with a few additional notification 
conditions.
1. ECF Generator Notification
    The ECF generator is the person who initially generates the 
hazardous secondary material (otherwise classified as a hazardous 
waste) and who documents and certifies that the material meets the ECF 
exclusion criteria. The generator must submit a one-time initial 
notification \23\ to the RCRA and CAA regulatory authorities under 
Sec.  261.38(b)(2)(i)(A) which contains general facility identification 
information, a certification stating that the generator is meeting the 
conditions under Sec.  261.38, and ECF-specific information including:
---------------------------------------------------------------------------

    \23\ Please note that, if the generator currently claims an 
exclusion for comparable fuel and has previously submitted a 
notification for the comparable fuel, the generator must submit an 
additional notification to claim an exclusion for ECF.
---------------------------------------------------------------------------

     An estimate of the average and maximum monthly and annual 
quantity of hazardous secondary material for which the ECF exclusion is 
claimed;
     An estimate of the annual quantity of each hazardous 
secondary material stream for which the ECF exclusion is claimed; and
     An estimate of the maximum concentration of each ECF 
constituent (i.e., hydrocarbons and oxygenates) in each ECF stream for 
which the ECF exceeds the comparable fuel specification levels in Table 
1 to Sec.  261.38.
2. ECF Burner Notifications
    All ECF burners must publish a public notice in a major newspaper 
of general circulation local to the facility that provides information 
including (see Sec.  261.38(b)(2)(ii)):
     General facility identification information; and
     An estimate of the average and maximum monthly and annual 
quantity of ECF to be burned.
    In addition, ECF burners must submit a one-time initial 
notification to the RCRA and CAA regulatory authorities providing 
general facility identification information and ECF-specific 
information including (see Sec.  261.38(c)(5)):
     An estimate of the maximum annual quantity of ECF that 
will be burned; and
     An estimate of the maximum as-fired concentrations of each 
hydrocarbon and oxygenate for which the ECF exceeds the comparable fuel 
specification levels in Table 1 to Sec.  261.38.\24\
---------------------------------------------------------------------------

    \24\ EPA proposed that burners notify as to the estimated amount 
of ECF burned monthly and annually (see 72 FR at 3310), but did not 
propose that the notification include concentration of ECF 
constituents. However, the proposed rule did not include conditions 
on the feedrate of ECF constituents, although EPA solicited comment 
on that possibility, and is adopting that approach in this final 
rule. EPA views notification of ECF constituent levels as a logical 
corollary to the rule's feedrate provisions.
---------------------------------------------------------------------------

    Finally, ECF burners must submit a notification to the RCRA and CAA 
regulatory authorities within 5 days of exceeding an operating limit 
that is linked to the ECF automatic feed cutoff system. The 
notification must document: (1) The exceedance; (2) the measures the 
burner has taken to manage the material as a hazardous waste; and (3) 
the measures the burner has taken to notify the generator that the 
burner has failed to comply with a condition of the exclusion.
3. Notification of Closure of a Tank or a Container Storage Unit
    ECF generators and burners that store ECF in a tank or container 
must submit a notification to the RCRA regulatory authority when a tank 
or a container storage area goes out of ECF service.\25\ The 
notification must state the date when the tank or container storage 
unit is no longer used to store ECF. A tank or container storage unit 
is out of ECF service if it no longer is used to store ECF that is 
destined to be burned under the conditions of the exclusion.
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    \25\ This provision is useful in assessing inspection 
priorities, and in assuring that tanks and containers are closed 
pursuant to the subtitle C standards if accumulated solids and 
liquids are not removed within 90 days of cessation of operation as 
an ECF storage unit. However, EPA considers the provision to be 
legally severable from the other conditions attached to the 
management of ECF.
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E. Burner Certification

    ECF burners intending to accept ECF from off-site generators must 
provide the ECF generator with a one-time written, signed statement 
that includes the following: (1) A certification that the burner will 
meet the conditions under Sec.  261.38 and that the State in which the 
burner is located is authorized to exclude ECF under Sec.  261.38; and 
(2) general facility identification information.

F. Recordkeeping

    ECF generators are subject to the same recordkeeping requirements 
that currently apply to comparable fuel generators. ECF burners are 
also subject to recordkeeping requirements as a condition of exclusion. 
Records must be maintained for three years.
1. ECF Generator Recordkeeping Requirements
    As a condition of exclusion, ECF generators must maintain records 
containing information including: (1) Documentation of compliance with 
the applicable conditions of the exclusion; (2) the monthly and annual 
quantities of each hazardous secondary material that is excluded; and 
(3) for each off-site shipment, name and address of the burner, 
quantity of ECF shipped and delivered, date of shipment and delivery, 
and a cross-reference to the record of information used to document 
that the fuel meets the ECF specification. See Sec.  261.38(b)(8).
2. ECF Burner Recordkeeping Requirements
    ECF burners must keep a record of information required to comply 
with the operating requirements under Sec.  261.38(c)(2) in order to be 
excluded.

[[Page 77963]]

Off-site burners must also keep records of each shipment of ECF 
received, including: (1) The name, address, and EPA ID number of the 
generator;\26\ (2) the quantity of ECF delivered; and (3) the date of 
delivery.
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    \26\ ECF generators (and off-site burners) must obtain an EPA ID 
number. See Sec. Sec.  261.38(b)(2)(i)(A)(1) and (c)(4).
---------------------------------------------------------------------------

G. Transportation

    DOT requirements applicable to hazardous materials under 49 CFR 
Parts 171-180 apply to ECF. Those standards include a requirement for a 
shipping paper.

H. Ineligible RCRA Hazardous Waste Codes

    Consistent with the current comparable fuel exclusion, hazardous 
wastes listed for the presence of dioxins or furans are not eligible 
for the ECF exclusion. See Sec.  261.38(b)(11).

V. What Are the Consequences of Failure To Comply With a Condition?

    It is the responsibility of the generator claiming the exclusion to 
demonstrate eligibility.\27\ More specifically, to be eligible for this 
exclusion, the person claiming the exclusion must document that ECF 
meets the ECF specifications under Sec.  261.38(a)(2), as well as the 
other conditions of the exclusion, including: the conditions 
prohibiting blending and diluting to achieve the specifications under 
Sec.  261.38(a)(4) and (a)(7); the implementation conditions under 
Sec.  261.38(b); and the special conditions for managing ECF under 
Sec.  261.38(c).
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    \27\ The burden for demonstrating with appropriate documentation 
compliance with the conditions of an exclusion in an enforcement 
action is on the person claiming the exclusion. 40 CFR 261.2(f).
---------------------------------------------------------------------------

    After the exclusion for a hazardous secondary material has been 
claimed, the conditions of the exclusion must continue to be met to 
maintain the exclusion.\28\ If any person managing ECF fails to meet a 
condition of the exclusion, the exclusion is lost and the fuel must be 
managed as a hazardous waste from the point of generation. Therefore, 
except as discussed below, EPA (or an authorized state) could choose to 
bring an enforcement action under RCRA section 3008(a) for all 
violations of the RCRA subtitle C requirements occurring from the time 
the hazardous secondary material is generated through the time that it 
is ultimately burned. See Sec.  261.38(d).
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    \28\ Separate and distinct from any requirement or condition 
established under this rule, all generators of a secondary 
material--including ECF generators under this exclusion--have a 
continuing obligation to conduct proper hazardous waste 
determinations, including notifying the appropriate government 
official if they are generating a hazardous waste. 40 CFR 262.11.
---------------------------------------------------------------------------

    If, however, the generator that claims the exclusion for ECF that 
is burned in an off-site, unaffiliated burner \29\ documents in the 
operating record that it has made reasonable efforts to ensure that the 
burner complies with the conditions of the exclusion, the hazardous 
secondary material will not be considered a hazardous waste when 
managed by the generator upon a finding that the burner has not 
complied with a condition of the exclusion. The reasonable efforts must 
be based on an objective evaluation, both prior to the first shipment 
and periodically thereafter, that the burner would manage the ECF under 
the applicable conditions of Sec.  261.38. See discussion in Part Four, 
Section VI.A below.
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    \29\ An unaffiliated burner is a boiler or hazardous waste 
combustor located at a facility that is not owned by the same parent 
company that generated the ECF.
---------------------------------------------------------------------------

VI. What Conditions Apply to Spills and Leaks?

    ECF that is spilled or leaked, not cleaned up immediately and which 
no longer meets the conditions of the exclusion, is ``discarded.'' 
Thus, it is a solid waste. Such spilled or leaked ECF is a hazardous 
waste if it exhibits a characteristic of hazardous waste or if the ECF 
were otherwise a listed hazardous waste.
    Furthermore, the exclusion would not affect the obligation to 
promptly respond to and remediate any releases of ECF that may occur. 
Management of the released material not in compliance with applicable 
Federal and State hazardous waste requirements could result in an 
enforcement action. For example, a person who spilled or released ECF 
and failed to immediately clean it up could potentially be subject to 
enforcement for illegal disposal of ECF. See, for example, Sec.  
264.1(g)(8). In addition, the release could potentially be addressed 
through enforcement orders, such as orders under RCRA sections 3013 and 
7003.
    In addition, ECF that is spilled or leaked and can no longer be 
burned under the conditions of the exclusion is a waste (it is a 
hazardous waste if it exhibits a characteristic of hazardous waste or 
if the ECF were otherwise a listed hazardous waste) and must be managed 
in accordance with existing federal and state regulations. Furthermore, 
if an ECF tank system or container ceases to be operated to store ECF 
product, but has not been cleaned by removing all liquids and 
accumulated solids within 90 days of cessation of the ECF storage 
operations, the tank system or container would become subject to the 
RCRA subtitle C hazardous waste regulations.\30\ (This is the same 
principle that applies to any product storage unit when it goes out of 
service. See Sec.  261.4(c).) Liquids and accumulated solids removed 
from a tank system or container that ceases to be operated for storage 
of ECF product are waste (they are hazardous wastes if they exhibit a 
characteristic of hazardous waste or if the ECF were otherwise a listed 
hazardous waste).
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    \30\ If the storage unit is used to actively accumulate 
hazardous waste after being taken out of service as an ECF product 
storage unit, the storage unit may be eligible for the provisions 
under Sec.  262.34 that waive the permit requirements for generator 
storage units that accumulate hazardous waste for not more than 90 
days.
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VII. What Are the Clarifications and Revisions to the Existing 
Conditions for Comparable Fuel?

    We are amending several provisions that apply to the comparable 
fuel conditions for the same reasons that we are applying the amended 
provisions to ECF. Specifically, those amendments are:
     We are clarifying the consequences of failure to satisfy 
the conditions of the existing comparable fuel exclusion. That is, we 
are clarifying that excluded fuel that is spilled or leaked and that no 
longer meets the conditions of the exclusion must be managed as a 
hazardous waste if it exhibits a characteristic of hazardous waste or 
if it is otherwise a listed hazardous waste. See Sec.  261.38(b)(15).
     We are clarifying the status of tank systems and container 
storage units that cease to be operated as comparable fuel storage 
units. That is, the tank system and container storage unit become 
subject to the RCRA hazardous waste facility standards if not cleaned 
of liquids and accumulated solids within 90 days of ceasing operations 
as a comparable fuel storage unit. We are also clarifying that 
discarded liquids and accumulated solids removed from the tank and 
container after the tank or container ceases to be operated for storage 
of comparable fuel must be managed as hazardous waste if they exhibit a 
characteristic of hazardous waste or if they are otherwise listed 
hazardous wastes. See Sec.  261.38(b)(13).
     We are waiving the RCRA closure requirements for tank 
systems and container storage units that are used only to store 
hazardous wastes that are subsequently excluded as comparable fuel. See 
Sec.  261.38(b)(14), and discussion above in Part Two, Section II.C.2.

[[Page 77964]]

     We are clarifying the regulatory status of boiler 
residues, including bottom ash and emission control residue. That is, 
these wastes would be hazardous if they exhibit a hazardous waste 
characteristic. See Sec.  261.38(b)(12).
     We are requiring that the one-time notice by the generator 
to regulatory officials include an estimate of the average and maximum 
monthly and annual quantity of comparable fuel for which an exclusion 
is claimed.\31\ See Sec.  261.38(b)(2)(i)(A). This condition applies 
prospectively to generators that newly claim the exclusion and to 
generators that must submit a revised notification because of a 
substantive change in the information required by the notice.
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    \31\ Providing an estimate of excluded quantities would help 
regulatory officials establish inspection and monitoring priorities. 
Omission of this condition was an oversight when the exclusion was 
initially promulgated. We conditioned the exclusion on the burner 
issuing a public notice that included this information (see existing 
Sec.  261.38(c)(1)(ii)(D)), but we inadvertently did not specify 
that the generator who claims the exclusion was to provide this same 
information to regulatory officials.
---------------------------------------------------------------------------

    In addition, please note that, as proposed, the final rule 
restructures the current conditions for comparable fuel (and syngas 
fuel) to make the regulatory language more readable given that the 
regulation must accommodate the exclusion for ECF. See 72 FR at 33289. 
Consequently, we have redrafted the entire section for clarity. In 
addition, we proposed certain technical corrections to several 
provisions of the rule.\32\ Those language changes are purely technical 
and are promulgated in this final rule. As explained at proposal, we 
did not reexamine, reconsider, or otherwise reopen these provisions for 
comment.
---------------------------------------------------------------------------

    \32\ See memorandum from Bob Holloway, USEPA, to Docket ID No. 
EPA-HQ-RCRA-2005-20017, dated January 10, 2007.
---------------------------------------------------------------------------

Part Three: What Are the Major Changes Since Proposal?

I. What Are the Major Changes to the Emission-Comparable Fuel 
Specification?

    Under the final rule, the specifications in Table 1 to Sec.  261.38 
do not apply to hydrocarbons and oxygenates in ECF. See Sec.  
261.38(a)(2)(ii)(B).
    The proposed rule would have continued to apply the specifications 
to naphthalene and the 10 PAHs listed in Table 1 to Sec.  261.38. We 
were concerned that, when ECF with high concentrations of the 
hydrocarbons or oxygenates for which the specifications would not apply 
is burned, emissions of those compounds may be somewhat higher than 
from burning fuel oil, even though the boiler is operating under good 
combustion conditions and achieving 99.99 percent destruction and 
removal efficiency for organic compounds in the feed. If, 
notwithstanding the conditions proposed for burning, emissions of 
naphthalene or the PAHs from burning ECF under a particular situation 
were higher than emissions from burning fuel oil, we were concerned 
that ECF emissions may not remain protective.
    Given that the final rule (unlike the proposed rule) establishes 
feedrate limits for each ECF constituent,\33\ we now have objective 
assurance that a boiler burning ECF will have emissions comparable to a 
boiler burning fuel oil. Consequently, it is no longer necessary to 
continue to apply the specifications to naphthalene and the 10 PAHs. 
See discussion of the need for feedrate limits, and an explanation of 
how they are derived, in Part Three, Section III.B.3 below.\34\
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    \33\ ECF constituent means the hydrocarbons and oxygenates in 
Table 1 to Sec.  261.38, for which the specifications do not apply 
for ECF.
    \34\ In addition to these changes to the ECF specification, the 
final rule also requires that ECF must meet the viscosity 
specification as generated. Viscosity is a specification that must 
be met (for both ECF and comparable fuel) before a hazardous 
secondary material is excluded as a fuel product. Given that ECF may 
not be treated to meet the specifications, ECF must meet the 
viscosity (and other) specifications as generated.
---------------------------------------------------------------------------

    In addition, the specification for minimum heating value under the 
final rule is 8,000 Btu/lb, and the ECF must meet this specification as 
generated. The proposed rule would have established a minimum heating 
value specification of 5,000 Btu/lb, but would have required an as-
fired minimum heating value of 8,000 Btu/lb. 72 FR at 33296. The final 
rule establishes a minimum 8,000 Btu/lb specification as generated 
consistent with the principle that the conditions which assure that ECF 
is not discarded all apply to ECF as generated. A heating value for 
ECF, as-fired, of 8,000 Btu/lb is one of those conditions--it is 
necessary to assure that emissions from a boiler burning ECF are 
comparable to a boiler burning fuel oil. This assures that ECF is 
comparable to fuel oil when burned from the standpoint of physical 
composition and emissions, and confirms that ECF is reasonably 
classified as a fuel product and not as a discarded waste. Accordingly, 
the final rule requires as a condition of the exclusion that the 
minimum heating value specification applies to ECF as it is generated. 
See also discussion in Part Two, Section I above.

II. What Are the Major Changes to the Storage Conditions?

A. Storage in Containers Is Allowed

    The final rule allows storage of ECF in containers. The proposed 
rule would have allowed storage only in tanks, but requested comment on 
whether generators would be likely to store ECF in containers. Several 
commenters stated that limiting ECF storage to tanks would render small 
volume facilities ineligible without a rational basis. We believe this 
is a valid critique and have, therefore, established in the final rule 
conditions for storage of ECF in containers based on the same 
principles that we used to establish conditions for storage of ECF in 
tanks. See Sec.  261.38(c)(1).

B. Alternative Storage Conditions Are Provided

    The final rule establishes alternative storage conditions that are 
adopted solely from the hazardous waste storage requirements under Part 
264. See Sec.  261.38(e). These controls are of comparable stringency 
to those drawn from the storage requirements for fuel products and 
organic liquid products and by-products. You may comply with these 
conditions in lieu of the collection of storage conditions adopted from 
the storage requirements for other materials: Discharge prevention 
requirements adopted from the SPCC requirements for oil storage 
facilities; containment and emergency procedure requirements adopted 
from the hazardous waste storage requirements; and fugitive air 
emission controls adopted from several NESHAP (National Emission 
Standards for Hazardous Air Pollutants). See discussion in Part Four, 
Section III.B for the rationale for these alternative conditions.

C. Conditions To Control Fugitive Air Emissions From Tank Systems Are 
Revised

    In response to comments on the proposed rule, we reevaluated the 
controls for air emissions from tanks and determined that: (1) We 
proposed conditions to expand the applicability of the OLD controls to 
tank capacity/ECF vapor pressure scenarios that would result in 
controls more stringent than those that apply to hazardous waste tanks; 
(2) there are several other tank capacity/ECF vapor pressure scenarios 
for which OLD is not applicable and for which we inadvertently did not 
propose conditions to expand OLD control; and (3) we inadvertently did 
not propose conditions to control air emissions for tanks that store 
ECF that does not meet

[[Page 77965]]

the adopted definition of organic liquid, and thus would not be subject 
to OLD control. We have addressed these issues and revised the fugitive 
air emission conditions for tanks, as discussed in Part Four, Section 
III.C below.

D. Storage in Underground Storage Tanks Is Prohibited

    Storage of ECF in underground storage tanks is prohibited, as 
discussed in Part II, Section II.C.1, above. Although the proposed rule 
would have allowed storage in underground tanks, the final rule 
prohibits such storage to avoid adding further complexity to the rule 
for a practice that commenters did not indicate would be widely used, 
if used at all.

III. What Are the Major Changes to the Burner Conditions?

A. What Types of Devices May Burn Emission-Comparable Fuel?

    Under the proposed rule, ECF could be burned only in an industrial 
or utility boiler that is a watertube type of steam boiler that does 
not feed fuel using a stoker or stoker-type mechanism. The final rule 
also allows ECF to be burned in hazardous waste combustors operating 
under a RCRA permit and in compliance with the applicable requirements 
under Subpart O, Part 264, Subpart H, Part 266, and Subpart EEE, Part 
63, under the condition that the ECF is burned under the same operating 
requirements that apply to hazardous waste burned by the combustor. The 
ECF burner operating conditions do not apply to hazardous waste 
combustors, except for the ECF constituent feedrate limits. See 
discussion in Part Four, Section V.A below, and Sec.  
261.38(c)(2)(i)(B).

B. What Are the Changes to the Burner Conditions?

1. Comparable Fuel May Be Primary Fuel
    To meet the condition that ECF must be fired with at least 50 
percent primary fuel on a heat or mass input basis, the final rule adds 
comparable fuel with an as-fired heating value of 8,000 Btu/lb or 
higher to the list of fuels that may be used as a primary fuel. 
Consequently, you may use the following fuels as primary fuel, provided 
that they have an as-fired heating value of 8,000 Btu/lb or higher: 
Fossil fuel; fuels derived from fossil fuel; tall oil; or comparable 
fuel. See discussion in Part Four, Section V.D below, and Sec.  
261.38(c)(2)(ii)(A) and (B).
2. The 50 Percent Primary Fuel Firing Rate Is Based on Heat and Mass 
Input
    A minimum of 50 percent of the fuel fired to the boiler must be 
primary fuel, determined on a total heat and mass input basis.\35\ The 
proposed rule inadvertently stated that the minimum 50 percent firing 
rate condition must be determined on a total heat input or volume input 
basis, whichever results in a greater volume feedrate of primary fuel. 
A mass basis for the calculation of the primary fuel firing rate is 
more appropriate than a volume basis because it is consistent with the 
mass feedrate limits for the ECF constituents, as discussed below. We 
also note that the parallel provision for hazardous waste boilers for 
which the DRE standard is waived (see Sec.  266.110) bases the 50 
percent minimum primary fuel requirement on a heat or mass input, 
whichever results in the greater mass input of primary fuel.\36\
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    \35\ We note that this condition was worded at proposal as ``The 
50 percent primary fuel firing rate shall be determined on a total 
heat or volume input basis, whichever results in the greater volume 
feedrate of primary fuel fired.'' As a practical matter, this means 
that the primary fuel must provide at least 50% of the heat input to 
the boiler and at least 50% of the volume input of fuels to the 
boiler. To ensure that the meaning is clear, the final rule 
expresses the condition as follows: The primary fuel shall comprise 
at least 50% of the total fuel heat input to the boiler and at least 
50% of the total fuel mass input to the boiler. (Note further that 
we explain in the preamble that we meant to specify the mass input 
at proposal rather than the volume input.) As an example of how the 
condition works, if the primary fuel were to provide 60% of the heat 
input to the boiler but only 40% of the fuel mass input, the mass 
input must be increased to at least 50%.
    \36\ We note further that, when EPA initially promulgated the 
Sec.  266.110 provisions, the rule established the 50 percent 
primary fuel firing rate on a heat input or volume input, whichever 
resulted in the greater volume input of primary fuel. EPA 
subsequently amended the provision, however, to change the volume 
basis to a mass basis. See 56 FR at 42510 (Aug. 27, 1991).
---------------------------------------------------------------------------

3. A Feedrate Limit for Each ECF Constituent Is Established
    The final rule establishes in Table 2 to Sec.  261.38 as a 
condition of the exclusion a maximum allowable feedrate limit 
normalized by gas flowrate for each ECF constituent \37\ for which the 
specification does not apply under paragraph (a)(2)(ii)(B). The gas 
flowrate-normalized feedrate limits have the units, ug/dscm, and are 
converted to feedrate limits, kg/hr of ECF constituents, by multiplying 
by the stack gas flowrate, dscm/hr. Although we did not propose 
regulatory language for feedrate limits for ECF constituents, we 
discussed at proposal the approach we would use to establish the 
limits, and presented example limits. 72 FR at 33315-16.\38\ We have 
considered comments on the proposed approach and have refined the 
approach for the final rule, as discussed below.
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    \37\ ECF constituent means the hydrocarbons and oxygenates 
listed in Table 1 to Sec.  261.38 and for which the specifications 
do not apply for ECF.
    \38\ As discussed at proposal (72 FR at 33314), we requested 
comment on establishing feedrate limits for each ECF constituent in 
response to a peer review comment stating that it may be problematic 
to conclude that ECF emissions would invariably be comparable to 
emissions from burning fuel oil. This is because ECF could have 
unlimited concentrations of hydrocarbons and oxygenates and that 
combustion is generally considered to be a constant percent 
reduction process. Thus, as the concentration of an organic 
constituent in the feed increases, the concentration of the compound 
in the emissions may also increase.
---------------------------------------------------------------------------

    The ECF constituent feedrate limits provide objective assurance 
that the emissions from ECF burning are comparable to the emissions 
from burning fuel oil: Emissions of ECF constituents from an industrial 
boiler burning ECF will be comparable to emissions of those compounds 
from an industrial boiler burning fuel oil. The proposed rule would 
have addressed this issue by continuing to apply the comparable fuel 
specifications to PAHs and naphthalene because: (1) When ECF with high 
concentrations of the hydrocarbons or oxygenates for which the 
specifications would not apply is burned, emissions of those compounds 
may be somewhat higher than from burning fuel oil, even though the 
boiler is operating under good combustion conditions; and (2) higher 
emissions of PAHs and naphthalene would raise protectiveness concerns 
because these compounds pose a relatively high hazard compared to other 
hydrocarbons and the oxygenates listed in Table 1 to Sec.  261.38. 72 
FR at 33299. Given that the final rule provides objective assurance 
through conditions on the feedrate for each ECF constituent that the 
emissions from ECF burning are comparable to the emissions from burning 
fuel oil that would often otherwise be the fuel of choice, the 
rationale for continuing to apply the specifications for these 
compounds is no longer valid.
    Similarly, the proposed 25 percent maximum ECF firing rate limit 
when benzene or acrolein concentrations exceed two percent is no longer 
needed. See 72 FR at 33299. The limitation (through conditions) of 
feedrate of each ECF constituent is a more direct way than the proposed 
firing rate limit on ECF as a whole to assure that emissions from 
burning ECF would be comparable to emissions from burning fuel oil.
    We discuss below how we derived the feedrate limits and how they 
are implemented.

[[Page 77966]]

    a. Overview of Approach to Establishing Feedrate Limits. To 
calculate the ECF constituent feedrate limits, we first identified the 
industrial boiler fuel oil emission level for each constituent (i.e., 
measured levels of that constituent in emissions from industrial 
boilers burning fuel oil) or, where fuel oil emissions data were not 
available for a specific ECF constituent, a surrogate emission level. 
We then projected a DRE for each constituent, considering available DRE 
data, the thermal stability of the compound, and whether the compound 
is commonly formed as a product of incomplete combustion (PIC). We then 
back-calculated a maximum feedrate limit that is normalized by stack 
gas flowrate, and that has the units, ug/dscm. The gas flowrate-
normalized feedrate is converted to an ECF constituent feedrate limit 
(i.e., kg/hr) by multiplying by the boiler gas flowrate (i.e., dscm/
hr).
    b. Fuel Oil Emission Levels. We have industrial boiler fuel oil 
emissions data for 12 of the 37 ECF constituents.\39\ We used the 
highest test condition average emissions to establish the maximum 
allowable emission levels for these 12 constituents. It is reasonable 
to use the highest test condition average as the maximum allowable 
emission level rather than the average or 95th percentile because the 
data base is not robust--the full range of boiler emissions may not be 
represented by the limited data base. Using the highest test condition 
average is a reasonable means of accounting for emissions variability.
---------------------------------------------------------------------------

    \39\ We have oil emissions data for benzene, naphthalene, 
toluene, acrolein and eight of 10 PAHs.
---------------------------------------------------------------------------

    For the other 25 ECF constituents-the two PAHs and the oxygenates 
other than acrolein--we identified surrogates for industrial boiler oil 
emission levels.\40\ For the two PAHs, we identify a surrogate oil 
emission level of 0.02 ug/dscm using emission data from other PAHs for 
which we do have emission data from oil-burning boilers. This approach 
is reasonable because: (1) 0.02 ug/dscm is at the low end of the range 
of emission levels for PAHs from oil-burning boilers \41\; and it is 
appropriate to select from the low end of this range because PAHs are 
more toxic than the other hydrocarbons and the oxygenates \42\; and (2) 
available emissions data indicate that PAHs are emitted at 
substantially lower levels--less than 0.6 ug/dscm--than either the 
oxygenates or the other hydrocarbons and the emission level we selected 
are consistent with these data.
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    \40\ For more information than provided in the preamble, see 
USEPA, ``Final Technical Support Document for the Expansion of the 
Comparable Fuels Exclusion,'' November 2008, Section 6.3.
    \41\ The oil emissions data for the eight PAHs are: 0.005 ug/
dscm; 0.02 ug/dscm; 0.04 ug/dscm; 0.1 ug/dscm; 0.1 ug/dscm, 0.16 ug/
dscm; 0.18 ug/dscm; and 0.61 ug/dscm.
    \42\ See the relative hazard ranking for the ECF constituents in 
USEPA, ``Final Technical Support Document for the Expansion of the 
Comparable Fuels Exclusion,'' November 2008, Section 2.4.
---------------------------------------------------------------------------

    For the oxygenates, we identified a surrogate oil emission level of 
18 ug/dscm because: (1) It is the only available emission level in our 
data base for an oxygenate (i.e., acrolein) from a boiler burning fuel 
oil; (2) it is in the range of emission levels for oxygenates from 
other combustion sources \43\; and (3) although it is not at the low 
end of the range of oxygenate emissions from combustion sources, it is 
an appropriate surrogate emission level because it would result in de 
minimis health risk.\44\
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    \43\ Hazardous waste boilers operating under good combustion 
conditions can emit oxygenates in the range of 0.6 ug/dscm to 130 
ug/dscm, and coal boilers can emit oxygenates in the range of 1.6 
ug/dscm to 38 ug/dscm. See USEPA, ``Final Technical Support Document 
for the Expansion of the Comparable Fuels Exclusion,'' November 
2008, Section 6.3.
    \44\ Maximum annual ground level concentrations of the 
oxygenates will be orders of magnitude lower than the reference air 
concentrations (RfCs) for the oxygenates other than acrolein. (The 
RfC is an estimate of a continuous inhalation exposure concentration 
to people (including sensitive subgroups) that is likely to be 
without risk of deleterious effects during a lifetime.) See USEPA, 
``Final Technical Support Document for the Expansion of the 
Comparable Fuels Exclusion,'' November 2008, Section 6.3. Although 
the RfC for acrolein is much lower than the RfCs for the other 
oxygenates such that maximum annual ground level concentrations of 
acrolein from burning ECF could approach this RfC, we have emissions 
data for acrolein from an oil-burning boiler and therefore do not 
need to identify (and justify) a surrogate emission level to back-
calculate a feedrate limit.
---------------------------------------------------------------------------

    c. Projected Destruction and Removal Efficiencies (DREs). We 
projected DREs for each of the 37 ECF constituents considering the 
available DRE data, the thermal stability of the compound, and whether, 
even under good combustion conditions, the compound is commonly formed 
as a PIC.\45\
---------------------------------------------------------------------------

    \45\ For purposes of this discussion, PICs are compounds in 
emissions that are formed from the incomplete destruction of organic 
compounds in the ECF and other boiler fuels.
---------------------------------------------------------------------------

    As discussed at proposal, we investigated the DRE data available 
for hazardous waste-fired liquid fuel boilers to project a DRE for the 
ECF constituents.\46\ We have both DRE and feedrate data for 
approximately 200 runs from 27 boilers for 10 compounds. Two of those 
compounds are ECF constituents: Benzene and toluene. Based on analysis 
of those data (i.e., the DRE data for the ECF constituents and other 
compounds), it was reasonable to project a DRE for ECF constituents in 
the feed of 99.99 percent for thermal stability class 1 and 2 compounds 
(which are more difficult to destroy), and a DRE for ECF constituents 
in the feed of 99.995 percent for class 3-7 compounds.\47\
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    \46\ See 72 FR at 33315-16, and Document No. EPA-HQ-RCRA-2005-
0017-0067 and Document No. EPA-HQ-RCRA-2005-0017-0068.
    \47\ The Thermal Stability ranking classifies (generally) 
hazardous compounds according to their gas phase thermal stability 
under oxygen-starved conditions. Compounds are ranked according to 
the temperature required to destroy 99% of the compound in 2 seconds 
under oxygen-starved conditions. See USEPA, ``Guidance on Setting 
Permit Conditions and Reporting Trial Burn Results, Volume II of the 
Hazardous Waste Incineration Guidance Series,'' January 1989, Table 
D-1.
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    During development of the final rule and in response to public 
comment,\48\ however, we concluded that, for ECF constituents that are 
commonly formed as PICs (i.e., benzene, naphthalene, phenol, and 
toluene),\49\ the effective, measured DRE may be lower (i.e., appearing 
to be less efficient destruction evidenced by emissions of the 
compound), particularly at low constituent feedrates, even under good 
combustion conditions, considering the total emissions of the compound: 
Emissions from unburned compounds in the feed, and emissions 
attributable to PIC formation during the incomplete destruction of 
other compounds in the ECF and other boiler fuels. Although the DRE for 
the quantity of the compound in the feed to the boiler would be at 
least 99.99% under good combustion conditions, the effective, measured 
DRE of compounds that are common PICs may be lower than 99.99% when 
they are fed at low feedrates. This is because at low feedrates, the 
portion of the compound in the emissions that is attributable to PICs, 
rather than unburned compound in the feed, can be substantial. As the 
compound feedrate increases, emissions of the compound attributable to 
unburned compound in the feed mask the quantity of the compound present 
as a PIC, and the effective, measured DRE becomes more representative 
of the feed-related DRE. Because ECF constituents can be fed at low 
feedrates, however, the DRE used to calculate the ECF constituent 
feedrate limits for the constituents that are common PICs--benzene, 
naphthalene, phenol, and toluene--must account for the proportion of 
the emissions of the constituent that is emitted as unburned compound 
in the feed relative to the portion of emissions attributable to PICs

[[Page 77967]]

at low feedrates. Thus, the DREs used to calculate the feedrate limits 
for the common PICs may be lower than the DREs associated with higher 
feedrates where the PIC contribution is masked by unburned compound in 
the feed.50 51
---------------------------------------------------------------------------

    \48\ See USEPA, ``Comment Response Document for the Exclusion of 
Emission-Comparable Fuel,'' October 2008, Section 4.7, Comment No. 
126A.9.
    \49\ USEPA, ``Final Technical Support Document for the Expansion 
of the Comparable Fuels Exclusion,'' November 2008, Section 6.3.
    \50\ If the DRE associated with high ECF constituent feedrates 
were used to calculate the ECF constituent feedrate limits, 
emissions from burning ECF at low feedrates would be higher than 
from burning fuel oil. This is because the allowable emissions of 
the compound would be calculated assuming incorrectly that the PIC 
contribution would not be significant at low feedrates. When the PIC 
contribution is considered, emissions of the compound would be 
higher than from fuel oil emissions.
    \51\ Please note that, because we cannot quantify the increase 
in DRE as feedrate increases, we projected a constant DRE across all 
feedrates. Nonetheless, we conducted an analysis of DREs at higher 
feedrates by drawing curves that bound the worst DREs at higher 
feedrates. That analysis corroborated the ECF constituent feedrate 
limits calculated by assuming a constant DRE across feedrates. 
Although the analysis indicates that higher DREs are achieved at 
higher feedrates, those higher DREs are not high enough to provide 
comparable emissions, i.e., applying those DREs to the associated 
feedrates would result in emissions exceeding fuel oil emission 
levels. See USEPA, ``Final Technical Support Document for the 
Expansion of the Comparable Fuels Exclusion,'' November 2008, 
Section 6.3, and the memorandum from Bob Holloway, USEPA, to Docket 
ID Number EPA-HQ-RCRA-2005-0017, entitled ``Projecting DREs to 
Calculate ECF Constituent Feedrate Limits: Bounding Analysis to 
Investigate the Relationship Between DRE and Feedrate,'' dated 
November 24, 2008.
---------------------------------------------------------------------------

    Although 14 ECF constituents are thermal stability class 1 or 2 
compounds for which we project a feed-related (not effective) DRE of 
99.99%, three of those compounds are common PICs: Benzene, naphthalene, 
and toluene. For these three compounds, we believe it is reasonable to 
consider reducing the feed-related DRE by an order of magnitude to 
project a default, effective DRE of 99.9% to account for PIC emissions 
at low feedrates of these compounds. We note, however, that we have 
substantial DRE data for benzene (from two boilers at one source) 
documenting (effective) DREs below 99.9 percent at low feedrates in the 
range allowed for ECF. Consequently, we project a DRE for benzene of 
99.7% because it is at the low end of the range of DREs achieved at the 
low feedrates at which benzene in ECF may be fed.\52\ In addition, we 
note that, for toluene, we have approximately 20 DRE runs at low 
feedrates (i.e., the same low feedrates for which benzene DREs were 
well below 99.99%), all of which are above 99.99%.\53\ We also have 
more than 20 DRE runs for toluene at moderate feedrates, and all but 
one of those runs achieved greater than 99.99% DRE. The lowest run 
achieved 99.987% DRE. Consequently, we believe that a projected DRE of 
99.99% is appropriate and is more in line with the measured DREs for 
toluene than the nominal order of magnitude reduction in feed-related 
DRE for common PICs that we would otherwise apply. We did not have DRE 
data for naphthalene at proposal, and therefore use the default order 
of magnitude reduction in DRE to account for PICs (i.e., 99.9%).
---------------------------------------------------------------------------

    \52\ USEPA, ``Final Technical Support Document for the Expansion 
of the Comparable Fuels Exclusion,'' November 2008, Section 6.3.
    \53\ USEPA, ``Final Technical Support Document for the Expansion 
of the Comparable Fuels Exclusion,'' November 2008, Figure 6-2.
---------------------------------------------------------------------------

    For similar reasons, for the thermal stability class 3 compound 
that is a common PIC--phenol--we project an effective DRE of 99.95 
percent, an order of magnitude lower than the 99.995 percent feed-
related projected DRE. We did not have DRE data for phenol at proposal, 
and therefore use the default order of magnitude reduction in DRE to 
account for PICs.
    We also considered whether PICs from the combustion of ECF 
compounds that are not themselves common PICs could cause an exceedance 
of the fuel oil (or surrogate) emission levels for the ECF 
constituents.\54\ We note that several ECF constituents are aromatics 
(e.g., the cresols, the phthalates, and acetophenone) that could form 
PICs that are ECF constituents. It is reasonable to conclude, however, 
that PICs from these compounds will not cause an exceedance of the fuel 
oil (or surrogate) emission levels for other ECF constituents because: 
(1) Only four ECF constituents are common PICs; and (2) the projected, 
effective DREs for these PICs, and thus their feedrate limits, account 
for PIC emissions.
---------------------------------------------------------------------------

    \54\ We note that PICs from the combustion of ECF constituents 
would not result in emissions of compounds other than ECF 
constituents at levels greater than from oil emissions. This is 
because the feedrate limits ensure that ECF constituents will not 
result in emissions of ECF constituents, and by extension PICs from 
those constituents, at levels higher than fuel oil.
---------------------------------------------------------------------------

    EPA may consider expanding the comparable emissions approach, and 
revisiting the DRE analysis, in light of new data we may gather. As 
part of various rulemakings and other activities, EPA may receive data 
from hazardous waste combustors on emissions and feed used, which might 
be used to refine the comparable emissions approach.
    d. Implementation of Feedrate Limits. As discussed above, the 
feedrate limits are expressed as a gas flowrate-normalized feedrate 
(ug/dscm), which is the feedrate in mass/unit time normalized by stack 
gas flowrate. The total feedrate limit (kg/hr) for each ECF 
constituent, for total boiler fuels, is determined by the boiler gas 
flowrate and the maximum ECF constituent feedrate (ug/dscm) provided by 
Table 2 to Sec.  261.38. The maximum feedrate (kg/hr) of a constituent 
attributable to ECF is the total boiler constituent feedrate (kg/hr) 
minus the constituent feedrate (kg/hr) for all other boiler 
feedstreams.
    To account for ECF constituents in fuel oil used as the primary 
fuel, burners may use actual concentrations of ECF constituents in 
their fuel oil, or the default concentrations based on fuel oil 
analysis EPA used to support the comparable fuel specification.\55\ See 
Table 3 to Sec.  261.38. Burners may also use other fuels as primary 
fuel, including coal and natural gas. See Sec.  261.38(c)(2)(ii)(A). If 
coal is the primary fuel, burners may use actual concentrations of ECF 
constituents in their coal, or default concentrations based on AP-42 
emission factors. See Table 4 to Sec.  261.38. If natural gas is the 
primary fuel, burners may assume the gas does not contribute ECF 
constituents.
---------------------------------------------------------------------------

    \55\ USEPA, ``Final Technical Support Document for HWC MACT 
Standards, Development of Comparable Fuel Specifications,'' May 
1998, Appendix B.
---------------------------------------------------------------------------

    Example calculations for maximum feedrates of ECF constituents and 
concentrations of constituents in ECF, and example ECF firing rate 
restrictions resulting from the ECF constituent feedrate limits are 
presented in USEPA, ``Final Technical Support Document for the 
Expansion of the Comparable Fuels Exclusion,'' November 2008, Section 
6.3.
4. Additional Operating Parameters Must Be Linked to the ECF Automatic 
Feed Cutoff System
    The final rule requires that additional operating parameters be 
linked to the ECF automatic feed cutoff system (AFCOS) to ensure 
compliance with the conditions of the exclusion. In addition to 
requiring that the ECF AFCOS engage when carbon monoxide levels exceed 
100 ppmv on an hourly rolling average and when the combustion gas 
temperature at the inlet to the initial dry particulate matter control 
device exceeds 400 [deg]F on an hourly rolling average, as proposed (72 
FR at 333296 and 333298), the final rule also requires that the ECF 
AFCOS engage when: (1) The emission-comparable fuel feedrate limit for 
a constituent exceeds the limit provided in Table 2 to Sec.  261.38; 
(2) the primary fuel firing rate is below 50 percent on either a heat 
input or mass input basis; and (3) the steam production rate (or other 
appropriate indicator) indicates that the boiler load

[[Page 77968]]

is below 40 percent (i.e., the automatic feed cutoff system activates 
when one of the conditions on burning is about to be exceeded). See 
Sec.  261.38(c)(2)(ii)(F)(1).
    In addition, the final rule corrects the proposed excessive 
exceedance reporting requirement to require an exceedance report within 
five days of exceeding an operating limit linked to the AFCOS when ECF 
is in the combustion chamber. At proposal, we inadvertently directly 
adopted for ECF the excessive exceedance reporting requirements 
applicable to hazardous waste combustors (HWCs). For HWCs, operating 
parameters that are linked to the automatic waste feed cutoff system 
are indicators that a source may have failed to maintain compliance 
with an emission standard. Thus, exceeding one or more operating limits 
more than 10 times in a 60 day block is considered to be excessive (and 
indicating an increased possibility that an emission standard may be 
exceeded), and an excessive exceedance report is required. Upon receipt 
of an excessive exceedance report, the regulatory authority may review 
the HWC's operations and provide additional requirements to minimize 
exceedances.
    For ECF burners, however, any exceedance of an operating limit 
linked to the AFCOS when ECF is in the combustion chamber is a failure 
to comply with a condition of the exclusion. In that event, the 
material must be managed as hazardous waste from the point of 
generation. Accordingly, this final rule requires that the burner 
notify the regulatory authority within five days of exceeding an 
operating limit linked to the AFCOS when ECF is in the combustion 
chamber. Those operating parameters that are linked to the AFCOS and 
for which limits are established are: (1) CO level in the stack gas; 
(2) temperature at the inlet to the FF or ESP for sources not burning 
coal as the primary fuel; (3) an indicator of boiler load; (4) primary 
fuel firing rate; and (5) feedrate of ECF constituents. The 
notification must document: (1) The exceedance; (2) the measures the 
burner has taken to manage the material as a hazardous waste; and (3) 
the measures the burner has taken to notify the generator that the 
burner has failed to comply with a condition of the exclusion.
5. Burners Must Provide Operator Training
    The final rule includes a condition requiring boiler operator 
training. See Sec.  261.38(c)(2)(iii). Boiler operator training is 
needed to ensure compliance with the boiler operating conditions under 
Sec.  261.38(c)(2)(ii). Although we included a condition in the 
proposed rule that would require operator training for storage 
units,\56\ and so implied that operator training would generally be an 
applicable condition, we inadvertently did not propose a parallel 
condition for boiler operator training.
---------------------------------------------------------------------------

    \56\ See proposed Sec.  261.38(c)(1)(iii)(D) that adopts the 
SPCC training provisions under Sec.  112.7(f).
---------------------------------------------------------------------------

    We are correcting this omission in the final rule. The condition is 
needed to assure that combustion occurs under the specified conditions, 
which in turn assures emission comparability, an element of our 
determination that ECF is not discarded (through destruction of the ECF 
constituents) when it is burned, but rather is managed (including 
burned) as a fuel commodity. The boiler operating conditions are 
sufficiently complex that training is needed to ensure that boiler 
operation and maintenance personnel can understand and effectively 
implement the operating requirements of the conditions for exclusion, 
including the continuous monitoring system requirements and the ECF 
AFCOS. In fact, without such training, we do not believe that a burner 
could comply with the conditions on burning, and thus, should not be 
eligible for the exclusion. (Note: The boiler operator training 
provision is not redundant to emergency response training requirements 
under the Occupational Safety and Health Administration (OSHA) 
regulations at 29 CFR 1910.120(q).)
    For purposes of this provision, boiler operators are personnel that 
operate or maintain the boiler when ECF is burned, including continuous 
monitoring systems and the ECF AFCOS. The condition requires that 
boiler operators must successfully complete a program that teaches them 
to perform their duties in a way that ensures the boiler's compliance 
with the operating conditions under Sec.  261.38(c)(2)(ii).
    The training program must be directed by a person trained in boiler 
operation procedures, and must include instruction which teaches boiler 
operators procedures relevant to the positions in which they are 
employed. At a minimum, the training program must be designed to ensure 
that boiler operators understand the operating conditions under 
paragraph (c)(2)(ii) and are able to respond effectively when the ECF 
AFCOS engages an automatic cutoff of the feed of ECF. Boiler operators 
must take part in an annual review of the initial training.
    The boiler owner or operator must maintain the following documents 
and records at the facility: (1) The job title and written description 
of the position for each boiler operator position, and the name of the 
employee filling each job; (2) a written description of the type and 
amount of both introductory and continuing training that will be given 
to each person; and (3) records that document that the required 
training or job experience has been given to, and completed by, boiler 
operators.
    Training records on current personnel must be kept until ECF is no 
longer burned in the boiler. Training records on former boiler 
operators must be kept for at least three years from the date the 
employee last worked as a boiler operator at the facility.

IV. What Are the Major Changes to the Implementation Conditions?

A. What Are the Changes to the Analysis Plan Provisions for Burners?

    To comply with the feedrate conditions for ECF constituents 
provided by Sec.  261.38(c)(2)(ii)(C) and in Table 2 to Sec.  261.38, 
the final rule requires that ECF burners must know the as-fired heating 
value of each fuel and the as-fired concentration of ECF constituents 
in each fuel fed to the boiler (e.g., fossil fuels and ECF itself). The 
proposed rule would have established feedrate conditions only on ECF 
that contained more than two percent benzene or acrolein. These 
proposed conditions have been superseded by the feedrate conditions for 
all ECF constituents. See discussion in Section III.B.3 above. 
Accordingly, the final rule expands the analysis plan requirements for 
burners to implement the feedrate conditions on ECF constituents. See 
Sec.  261.38(b)(2)(5).
    ECF burners are subject to the fuel analysis plan conditions under 
Sec.  261.38(b)(4) to determine the as-fired heating value and 
concentration of ECF constituents in each fuel fed to the boiler, 
except: (1) The burner may use documentation provided by the generator 
for each shipment of ECF of the heating value and concentration of ECF 
constituents \57\; and (2) the burner may use the default primary fuel 
heating values and ECF constituent concentrations provided in Sec.  
261.38(c)(2)(ii)(C)(4).
---------------------------------------------------------------------------

    \57\ If the burner commingles the ECF with other fuels, the 
burner may use documentation provided by the generator to calculate 
the as-fired heating value of the ECF and the concentration of ECF 
constituents.
---------------------------------------------------------------------------

B. What Are the Changes to the Notification Provisions?

1. Initial Notification
    For generators of ECF, the final rule expands the information 
required in the

[[Page 77969]]

one-time notification \58\ to the RCRA and CAA regulatory authority in 
whose jurisdiction the exclusion is being claimed. In particular, in 
addition to the general facility information and an estimate of the 
average and maximum monthly and annual quantity of hazardous secondary 
materials for which an exclusion would be claimed under the proposed 
rule, the final rule is conditioned on the generator also providing an 
estimate of the annual quantity of each ECF stream, and, for each ECF 
stream, the maximum concentration of each ECF constituent that exceeds 
the comparable fuel specification in Table 1 to Sec.  261.38. See Sec.  
261.38(b)(2)(i)(B). This additional information characterizing the ECF 
will assist the regulatory authorities establish monitoring and 
enforcement priorities.
---------------------------------------------------------------------------

    \58\ If there are subsequent, substantive changes in the 
information provided in the notification, the generator must submit 
a revised notification to the regulatory authorities.
---------------------------------------------------------------------------

    For burners of ECF that receive the fuel from an offsite generator, 
the final rule also expands the information required in the one-time 
notification from the burner to the RCRA and CAA regulatory authority 
in whose jurisdiction the exclusion is being claimed. In particular, in 
addition to the general facility information and certification of 
compliance with the storage and burner conditions of the exclusion 
required under the proposed rule, the final rule also requires the 
burner to: (1) Provide an estimate of the maximum annual quantity of 
ECF that will be burned, and an estimate of the maximum as-fired 
concentrations of each ECF constituent for which the ECF exceeds the 
specifications for comparable fuel in Table 1 to Sec.  261.38; and (2) 
provide documentation that ECF will be fired into the flame zone of the 
primary fuel.\59\ See Sec.  261.38(c)(5). This additional information 
characterizing the ECF and boiler operating conditions will assist 
regulatory authorities to establish monitoring and enforcement 
priorities.
---------------------------------------------------------------------------

    \59\ See discussion in Part Four, Section IV.C regarding the 
rationale for documenting that ECF will be fired into the flame zone 
of the primary fuel, and guidance on acceptable documentation.
---------------------------------------------------------------------------

2. Notification of Closure of a Tank or a Container Storage Unit
    ECF generators and burners that store ECF in a tank or container 
must submit a notification to the RCRA regulatory authority when a tank 
or a container storage area goes out of ECF service. The notification 
must state the date when the tank or container storage unit is no 
longer used to store ECF. A tank or container storage unit is out of 
ECF service if it no longer is used to store ECF that is destined to be 
burned under the conditions of the exclusion.

C. What Are the Changes to the Consequences of Failure To Comply With a 
Condition of the Exclusion?

    As proposed, an excluded fuel (i.e., existing comparable fuel, 
synthesis gas fuel, and ECF) loses its exclusion if any person managing 
the fuel fails to comply with the conditions of the exclusion under 
Sec.  261.38, and the hazardous secondary material must be managed as a 
hazardous waste from the point of generation. In such situations, EPA 
or an authorized state agency may take enforcement action under RCRA 
section 3008(a).
    The final rule provides a ``reasonable efforts'' provision, 
however, to address generator liability when an offsite, unaffiliated 
burner fails to comply with a condition of the exclusion for ECF.\60\ 
If the generator who claims the exclusion for ECF that is burned in an 
off-site, unaffiliated boiler \61\ documents in the operating record 
that reasonable efforts have been made to ensure that the burner 
complies with the conditions of exclusion, the burner rather than the 
generator will be liable for discarding a hazardous waste upon a 
finding that the burner has not complied with a condition of exclusion. 
See Sec.  261.38(d)(2).
---------------------------------------------------------------------------

    \60\ A reasonable efforts provision is not provided for 
comparable fuel and synthesis gas fuel generators because there are 
minimal conditions on burners for those excluded fuels, and the 
generator can readily determine if the burner has complied with 
those conditions. Comparable fuel and syngas fuel burners must: (1) 
Publish a public notice of their intent to burn excluded fuel, as 
required by Sec.  261.38(b)(2(ii); and (2) submit a certification to 
the generator, as required by Sec.  261.38(b)(10)(i).
    \61\ The rule defines an unaffiliated burner as a boiler or 
hazardous waste combustor located at a facility that is not owned by 
the same parent company that generated the ECF.
---------------------------------------------------------------------------

    The reasonable efforts must be based on an objective evaluation by 
the generator, both prior to the first shipment and periodically 
thereafter, that the burner would manage the ECF under the applicable 
conditions of Sec.  261.38. Reasonable efforts by the generator must 
include, at a minimum, affirmative answers to the following questions 
prior to shipping the ECF to the burner, and must be repeated every 
three years thereafter: (1) Has a burner submitted the notification to 
the RCRA and CAA Directors required under Sec.  261.38(c)(5)(i), and 
has the burner published the public notification of burning activity as 
required under Sec.  261.38(b)(2)(ii); (2) are there any unresolved 
significant violations of environmental regulations at the burner 
facility, or any formal enforcement actions taken against the facility 
in the previous three years for violations of environmental 
regulations, and if yes, does the generator have credible evidence that 
the burner will nonetheless manage the ECF under the conditions of 
Sec.  261.38; and (3) does the burner have the equipment and trained 
personnel to manage the ECF under the conditions of Sec.  261.38.
    In making these reasonable efforts, the generator may use any 
credible evidence available, including information obtained from the 
burner and information obtained from a third party. The generator must 
maintain for a minimum of three years documentation and certification 
that reasonable efforts were made for each burner facility to which ECF 
is shipped.

Part Four: What Are the Responses to Major Comments?

I. Scope of the ECF Exclusion

    Comment: Several commenters state that EPA's decision not to 
address their analytical concerns about demonstrating compliance with 
the existing exclusion is a significant ``missed opportunity'' to 
increase the usefulness of the existing exclusion. They claim that 
matrix interferences and detection limit problems make it difficult or 
impossible to demonstrate comparability for many waste fuels. These 
same commenters also urge EPA to allow for blending to meet the 
specification limits for hydrocarbons and oxygenates.
    Response: Regarding the commenters' analytic concerns, we explained 
at proposal that the specifications in Table 1 to Sec.  261.38 for 
volatile organic compounds that were not detected in fuel oil or 
gasoline were based on the low levels of detection achievable for fuel 
oil rather than the much higher levels of detection achievable for 
gasoline.\62\ 72 FR at 33287-88. Given that only benzene, toluene, and 
naphthalene were detected in our benchmark fuels--fuel oils and 
gasoline--we used this approach for most of the volatile organic 
compounds. We acknowledged this deviation from establishing the 
specification for undetected compounds as the highest level of 
detection in a benchmark fuel and explained that the levels of 
detection for volatile compounds in gasoline were inflated because of 
matrix effects. Commenters believe that we should consider the fact 
that many hazardous secondary materials used as a fuel may pose the 
same matrix effects

[[Page 77970]]

as gasoline, such that the fuel oil-based specifications would not be 
reasonably achievable.
---------------------------------------------------------------------------

    \62\ EPA promulgated these specifications in 1998, 63 FR 33782 
(June 19, 1998).
---------------------------------------------------------------------------

    We continue to believe that it would not be appropriate to consider 
increasing the specifications for all volatile organic compounds and 
base them on the higher levels of detection in gasoline rather than 
fuel oil levels of detection because most of the compounds (e.g., 
halogenated compounds) would simply not be expected to be found in fuel 
oil or gasoline. As a result, use of the higher detection limits would 
result in specification levels that could exclude hazardous secondary 
materials that are not comparable to fuel oil or gasoline. Rather, only 
certain hydrocarbons would be expected to be in these fuels. We 
explained at proposal that we could potentially also consider 
oxygenates, however, because they are within a class of compounds that 
are added to fuels to enhance combustion.
    It appeared, however, that this potential revision would not likely 
result in additional hazardous secondary materials being conditionally 
excluded. In discussions with the chemical industry during the 
development of the proposed rule, they did not identify any hazardous 
secondary materials that cannot meet the current specifications using 
analytical methodologies recommended for the matrix in question, but 
that could qualify for exclusion if the specifications for volatile 
hydrocarbons and oxygenates were increased to the levels of detection 
for gasoline that we experienced when sampling the benchmark fuels. 
Although the commenters reiterate their concerns about analytic issues, 
they again have not identified any hazardous secondary materials that 
would be conditionally excluded from regulation if the specifications 
for volatile hydrocarbons and oxygenates were increased to the levels 
of detection for gasoline. We continue to be unable to identify the 
problem. Consequently, the final rule does not revise the 
specifications for volatile hydrocarbons and oxygenates.
    With respect to commenters' concern regarding allowing blending to 
meet the specification limits for hydrocarbons and oxygenates, in 
discussions with the chemical industry during the development of the 
proposed rule, they again did not identify any hazardous secondary 
materials that would be conditionally excluded from regulation if 
blending were allowed. Consequently, we did not pursue this approach 
further. Even though the commenters reiterate their concerns about 
blending in response to the proposed rule, commenters again have not 
identified any hazardous secondary materials that would be excluded if 
blending to meet the specifications for hydrocarbons and oxygenates 
were allowed. Consequently, EPA is finalizing this aspect of the rule, 
as proposed.

II. Legal Rationale for the ECF Exclusion

A. EPA's Interpretation of the Solid Waste Disposal Act (SWDA)

1. Hazardous Waste Burned for Energy Recovery
    Comment: A commenter states that EPA's claim that hazardous 
secondary material that is otherwise a hazardous waste can be 
classified as a fuel if it is burned for energy recovery under certain 
combustion conditions contravenes the Solid Waste Disposal Act (SWDA). 
The commenter believes that the text of the Act makes clear that 
burning a material that would otherwise qualify as a hazardous waste 
does not transform that material into something other than a waste, 
regardless of whether energy is recovered from the combustion process 
and regardless of the conditions under which it is burned. The text of 
the SWDA demonstrates that Congress was well aware that waste is burned 
for energy recovery, but did not intend that combusting a hazardous 
secondary material for energy recovery would transform that material 
from a regulated waste to an unregulated fuel, according to the 
commenter. The commenter states that Sec.  3004(q) requires EPA to 
issue standards applicable to facilities that produce fuel from 
hazardous waste, facilities that ``burn, for purposes of energy 
recovery, any fuel produced'' from hazardous waste, and persons who 
distribute or market fuel produced from hazardous waste. 42 U.S.C. 
6924(q)(1)(A)-(C).
    Response: The final rule does not exclude from the definition of 
solid waste fuels produced from hazardous waste. The rule states that 
ECF is not a solid waste due to the combination of management practices 
(determined via conditions on the exclusion) and the physical identity 
of ECF to the fossil fuels for which it can substitute which 
demonstrate objectively that the hazardous secondary material can 
permissibly be classified as non-discarded. ECF will be stored subject 
to conditions similar to or identical to those which apply to 
commercial fuels, products, or by-products. It will be burned under 
conditions such that emissions will not be different from the fuel oil 
that could be burned in its place. It is largely physically identical 
to fuel oil with respect to hazardous constituent concentrations. To be 
ECF, the secondary material as initially generated must meet the 
hazardous constituent specification, as well as the other 
specifications, and then be subject to all other conditions. Such 
materials can permissibly be considered not to be discarded and hence 
not solid wastes.
    EPA sees nothing in Sec.  3004(q) which supports the commenter's 
contention that such materials must be classified as discarded. The 
provision only applies to hazardous wastes, so the first inquiry must 
necessarily be whether the material at issue--ECF--is discarded. 
Section 3004(q) does not itself address that question. The commenter's 
statement that Sec.  3004(q) requires EPA to develop rules that 
regulate emissions from burning hazardous waste for energy recovery is 
correct, but does not address whether ECF is discarded--i.e., is solid 
waste in the first instance. Under section 3004 (q), a hazardous 
secondary material must first be a hazardous (and solid) waste before 
restrictions can apply to burning it for energy recovery.
2. SWDA Sec.  3004(q)
    Comment: The commenter notes that Sec.  3004(q) further expressly 
provides ``[f]or purposes of this subsection, the term `hazardous waste 
listed under section 6921 of this title' includes any commercial 
chemical product which is listed under section 6921 of this title and 
which, in lieu of its original intended use, is (i) produced for use as 
(or as a component of) a fuel, (ii) distributed as a fuel, or (iii) 
burned as a fuel.'' 42 U.S.C. 6924(q)(1) (emphasis added). Thus, the 
commenter states that Sec.  3004(q) makes clear that Congress intended 
any material that qualifies as hazardous waste to be regulated as 
hazardous waste regardless of whether it is turned into a fuel, 
marketed or distributed as a fuel, or burned as a fuel for energy 
recovery. The commenter notes that Congress emphasized this point by 
making clear that such materials are ``waste'' even if they are 
``commercial chemical product[s]'' rather than materials that were not 
deliberately produced for sale or some other purpose.
    Response: The reference to ``commercial chemical products'' refers 
to those hazardous secondary materials listed in Sec.  261.33 and does 
not classify as wastes materials listed in that section which are 
themselves ordinary fuels. At the time of the 1984 amendments, EPA had 
in place a rule (former Sec. Sec.  261.2 and 261.33) which did not 
classify those listed commercial chemicals burned as fuels as 
discarded. Congress in promulgating Sec.  3004(q) made clear that

[[Page 77971]]

commercial chemical products listed in Sec.  261.33 not produced as 
fuels were to be classified as hazardous wastes when burned for energy 
recovery. Congress made equally clear that listed commercial chemical 
products which were themselves ordinary fuels (for example, benzene, 
toluene, and xylene) were not to be classified as wastes (see Sec.  
3004(q)(1)) (reference to listed commercial chemical products includes 
only those products listed in Sec.  261.33 which are not used for their 
original intended purpose but instead are burned as a fuel; see also 
H.R. Rep. 98-198, 98th Cong. 1st session 40 (same)). This has been 
EPA's consistent interpretation of this provision. See 61 FR at 17459 
(April 19, 1996) (commercial chemical benzene, toluene, and xylene are 
not discarded when used as fuels since they are themselves fuels); 50 
FR at 49168 n. 8 (Nov. 29, 1985) (pipeline interface from transport of 
toluene not a waste when burned for energy recovery, under the same 
principle).
    This provision has been construed narrowly as applying solely to 
commercial chemical products used as fuels in lieu of their normal use. 
AMC I, 824 F. 2d at 1189. ECF is not such a material. See also related 
responses below.
    Comment: The same commenter states that the legislative history of 
Sec.  3004(q) confirms that fuel produced from hazardous waste must be 
regulated as hazardous waste. The commenter notes that, before Sec.  
3004(q) was amended, EPA had created a regulatory provision that 
``provided that unused commercial chemical products were solid wastes 
only when `discarded' '' and defined that term as ``abandoned (and not 
recycled) by being disposed, burned, or incinerated (but not burned for 
energy recovery).'' American Mining Congress v. EPA, 824 F.2d 1177, 
1188-1189 (DC Cir. 1987) (``AMC I'') (quoting 1983 regulatory 
provisions) (emphasis added). To ``override'' that regulatory 
provision, Congress added the following language to Sec.  3004(q), 
according to the commenter: ``for purposes of this subsection, the term 
`hazardous waste listed under section 6921 of this title' includes any 
commercial chemical product which is listed under section 6921 of this 
title and which, in lieu of its original intended use, is (i) produced 
for use as (or as a component of) a fuel, (ii) distributed as a fuel, 
or (iii) burned as a fuel.''' 824 F.2d at 1188-1189 (quoting 42 U.S.C. 
6924(q)(1)) (emphasis added). The commenter notes that the House Report 
on this amendment expressly states:

    Hazardous waste, as used in this provision, includes not only 
wastes identified or listed as hazardous under EPA's regulations, 
but also includes any commercial chemical product (and related 
materials) listed pursuant to 40 CFR 261.33, which is not used for 
its original intended purpose but instead is burned or processed as 
fuel. (Under current EPA regulations, burning is not deemed to be a 
form of discard; hence listed commercial chemical products, unlike 
spent materials, by products or sludges, are not deemed to be a 
``waste'' when burned as fuel. They are only ``waste'' when actually 
discarded or intended for discard.)

824 F.2d at 1189 (quoting H.R. Rep. No. 198, 98th Cong., 1st Session 
40).

    According to the commenter, the House Report affirms that ``EPA 
already has the authority to regulate the blending and burning of 
hazardous wastes for purposes of energy recovery'' and explains that 
their objective is ``to accelerate the agency's rulemaking and close a 
major gap in the present regulations and to set an outside deadline for 
the regulation of all burning of hazardous wastes.'' H.R. Rep. No. 198, 
98th Cong., 1st Session 42 (emphasis added). The House Report 
reiterates that the legislation ``corrects a major deficiency in the 
present RCRA regulations by requiring EPA to exercise its existing 
authority over hazardous waste-derived fuels by regulating their 
production, distribution and use.'' Id. at 39. In summary, the House 
Report states:

    EPA has asserted its jurisdiction over burning and blending of 
hazardous waste for energy recovery * * * However, the committee 
still believes, as it did last year, that legislation is necessary 
to assure that the committee's objective in compelling EPA to 
develop and implement a comprehensive regulatory program over 
burning and blending for energy recovery are [sic] achieved, within 
the timetable set by the committee. The provisions of Section 6 do 
not grant EPA any new statutory authority; RCRA now provides EPA 
full authority to regulate hazardous wastes that are blended or 
burned for energy recovery and to regulate the owners and operators 
of the blending and burning facilities. The committee wants to 
assure that EPA will exercise its authority over all facilities that 
blend or burn hazardous waste for energy recovery.

Id. at 39 (emphasis added). The commenter states that, as the DC 
Circuit concluded from the amendment to Sec.  3004 and the House 
Report, Congress deliberately addressed the burning of commercial 
chemical fuels by ``deeming the offending materials to be `discarded' 
'' and therefore within the statutory definition of `solid waste.' '' 
824 F.2d at 1189.

    Response: The DC Circuit's analysis directly contradicts this 
comment. In American Mining Congress v. EPA (``AMC I''), 824 F.2d 1177, 
1188-89, the DC Circuit, citing the same legislative history as the 
comment, stated that the provision making non-fuel commercial chemicals 
hazardous wastes was limited in scope and did not change the need to 
first define any other hazardous secondary materials as solid wastes. 
The court noted that EPA regulation in 1983 had provided that unused 
commercial chemical products were solid wastes only when discarded, 
which the Agency had defined as not including burning for energy 
recovery. As a result, in the 1985 RCRA amendments, ``Congress 
addressed this problem by deeming the offending materials to be 
`discarded' and therefore within the statutory definition of `solid 
waste.' This specific measure did not, however, revamp the basic 
definitional section of the statute.'' AMC I at 1189.
    The Court rejected, as circular, the implication in this argument, 
and others, that a statutory statement that certain materials are, or 
are not, solid or hazardous wastes, somehow, changes the definitional 
provisions of RCRA. See AMC I at 1187, 1188, 1191. With respect to 
3004(q), in particular, the court stated:

    EPA argues that [section 3004(q)(1)] evinces Congressional 
intent to include recycled in-process materials within the 
definition of ``solid waste.'' We note at the outset that this 
provision is likewise a subsection of [section 3004] and is 
therefore directed towards hazardous waste treatment facilities. The 
ever-present circularity problem thus looms here as well.

AMC I at 1188.

    Therefore, a hazardous secondary material can be excluded from the 
definition of solid waste even if it is burned for energy recovery.
    Comment: The same commenter states that the structure of Sec.  
3004(q) reinforces Congress' clear intent. Sections 3004(q)(2)(A) and 
(B) contain two exemptions from the requirements of Sec.  3004(q)(1) 
pertaining to facilities that burn, produce, distribute and market 
hazardous waste fuel. The presence of these very narrow exemptions from 
the regulations clearly indicates that Congress considered exactly 
which fuels should be exempted from these requirements, according to 
the commenter. The commenter states that the Act allows only a narrow 
exemption for petroleum refinery wastes containing oil that are 
converted into petroleum coke at the same facility at which such wastes 
were generated, unless the resulting coke product would exceed one or 
more characteristics by which a substance would be identified as a 
hazardous waste under section 6921 of the Act. 42 U.S.C. 6924(q)(2)(A). 
The

[[Page 77972]]

commenter states that the second exemption pertains to facilities that 
burn de minimis quantities of fuel under certain specified 
circumstances. According to the commenter, the exclusion is also 
narrowly defined and requires that the Administrator determine that (1) 
such wastes are burned at the same facility at which such wastes are 
generated; (2) the waste is burned to recover useful energy as 
determined by the Administrator on the basis of the design and 
operating characteristics of the facility and the heating value and 
other characteristics of the waste; and (3) the waste is burned in a 
type of device determined by the Administrator to be designed and 
operated at a destruction and removal efficiency sufficient such that 
protection of human health and environment is assured. 42 U.S.C. 
6924(q)(2)(B).
    Response: The commenter again supposes that the hazardous secondary 
materials at issue are wastes, the issue to be determined. This type of 
circularity in reasoning was rejected, with respect to these very 
provisions, by the DC Circuit in AMC I. See 824 F.2d at 1187-88 and 
previous response. In addition, as also just explained, statutory 
exemptions for hazardous secondary materials that have already become 
wastes do not affect the basic definitional provision as to what 
constitutes a waste in the first place. AMC I, 824 F.2d at 1187-88 and 
n.16.
    Comment: The same commenter states that the exclusion would deprive 
Sec.  3004(q) of meaning and, indeed, is a transparent attempt by the 
Agency to circumvent Sec.  3004 and elevate the current 
administration's policy goal of excusing hazardous waste combustion 
from pollution control requirements over Congress' decision that the 
burning of hazardous waste and fuel produced from hazardous waste must 
be regulated under the SWDA.
    Response: This exclusion does not deprive Sec.  3004(q) of 
practical meaning. Of the current universe of 1,943,000 tons per year 
\63\ of hazardous waste burned for energy recovery, EPA estimates that 
this rule will reclassify only 118,500 tons per year (or approximately 
six percent) under the conditional exclusion. In any case, the issue is 
whether ECF must be considered discarded even though it is physically 
identical to, or has emissions comparable to, fossil fuels and is 
otherwise managed so that discard does not occur when it is burned, 
transported, or stored.
---------------------------------------------------------------------------

    \63\ See 70 FR at 59530.
---------------------------------------------------------------------------

    Comment: The same commenter states that SWDA Sec.  3004(r) further 
confirms that Congress did not intend EPA to exempt hazardous waste 
from SWDA regulation just because it is burned for energy recovery. The 
commenter notes that Sec.  3004(r) expressly prohibits ``any person'' 
from distributing or marketing ``any fuel which is produced from 
hazardous waste identified or listed under section 6921 of this title 
or any fuel which otherwise contains any hazardous waste'' without a 
label warning that such fuel ``CONTAINS HAZARDOUS WASTES'' and lists 
the hazardous wastes contained therein. 42 U.S.C. 6924(r)(1). The 
commenter also notes that Section 3004(r)(2) then provides a limited 
exception from that labeling requirement covering only ``fuels produced 
from petroleum refining waste containing oil if--(A) such materials are 
generated and reinserted onsite into the refining process; (B) 
contaminants are removed; and (C) such refining waste containing oil is 
converted into petroleum-derived fuel products at a facility at which 
crude oil is refined into petroleum products * * * '' 42 U.S.C. Sec.  
6924(r)(2). Section 3004(r)(3) then provides EPA with authority to 
create one further narrow exception from the labeling requirements for 
``fuels produced from oily materials, resulting from normal petroleum 
refining, production, and transportation processes, if (A) contaminants 
are removed and (B) such oily materials are converted along with normal 
process streams into petroleum-derived fuel products at a facility at 
which crude oil is refined into petroleum products'' 42 U.S.C. 
6924(r)(3). Both of the limited exceptions described in Sec.  
3004(r)(2) and (3) are applicable ``unless the Administrator determines 
otherwise as may be necessary to protect human health and the 
environment.'' 42 U.S.C. Sec.  6924(r)(2) and (3). The commenter 
believes that, by requiring the labeling of all fuel produced from 
hazardous waste as hazardous waste and providing only limited 
exceptions, which are conditioned on protection of human health and the 
environment, Sec.  3004(r) further confirms that Congress intended that 
hazardous wastes and fuels produced from hazardous wastes do not cease 
to be hazardous wastes just because they are burned for energy 
recovery. EPA's proposed exclusion deprives Sec.  3004(r) of meaning, 
and is a transparent attempt to circumvent the limitations that section 
imposes on the agency's discretion, according to the commenter.
    Response: EPA disagrees with this comment. Although hazardous 
wastes used as fuels are subject to the hazardous waste regulations, 
the exclusion promulgated here is limited to that ECF that meets the 
hazardous constituent specifications, as well as the other 
specifications, as generated; that is, before it is a solid waste. 
Thus, because section 3004(r), like Sec.  3004(q), is written in terms 
of wastes, requiring in the first instance that a determination be made 
as to whether a hazardous secondary material is a waste before the 
provision can apply, we disagree with the commenter. For the reasons 
already given, EPA has reasonably determined that ECF, in the first 
instance, is not discarded.
3. Impact of the Exclusion on SWDA Sec.  3001(f)
    Comment: The same commenter states that EPA's proposal also 
circumvents Sec.  3001(f) and deprives it of meaning. The Agency 
asserts authority to declare that listed wastes are not wastes if they 
are burned for energy recovery under certain combustion conditions. 
But, Sec.  3001(f) provides procedures for excluding listed waste from 
listing and thus from regulation as hazardous waste. 42 U.S.C. 6921(f). 
EPA thus deprives Sec.  3001(f) of meaning with regard to wastes that 
are burned for energy recovery by interpreting the SWDA as allowing it 
to exclude such wastes from the SWDA requirements--i.e., effectively to 
delist them--without following the SWDA's delisting requirements.
    Response: Section 3001(f) is not relevant here. It establishes a 
mechanism for delisting listed hazardous wastes--i.e., evaluating 
whether they are still hazardous. The issue here is whether the 
hazardous secondary materials are wastes in the first instance, which 
does not turn on an evaluation of hazard, but rather on whether they 
are discarded.
4. Factors for Use in Determining an Exclusion
    Comment: The same commenter states that the statute does not 
provide authority for EPA to broadly exclude hazardous waste fuels from 
the definition of solid waste based on factors that are absent in the 
statute and that are contrary to its clear provisions and the intent of 
Congress. The commenter states that EPA does not contend that the 
material it purports to exclude is anything other than hazardous waste, 
except to the extent that it is burned for energy recovery. According 
to the commenter, the Agency's reliance on combustion with energy 
recovery to transform a material that is otherwise undisputedly a 
hazardous waste into a non-waste fuel

[[Page 77973]]

contravenes Congress' plainly expressed intent that hazardous waste 
burned as fuel is still hazardous waste.
    Response: As noted above, this is not EPA's position. EPA's 
determination that ECF is not discarded is based on factors reasonably 
relevant to that inquiry, namely the combination of management 
conditions and physical identity which provide objective assurance that 
ECF will not be discarded when stored, transported, or burned. With 
respect to burning, EPA is stating that hazardous secondary materials 
which are physically identical to normal fuels, except with respect to 
particular hydrocarbon and oxygenate constituents which actually impart 
fuel value to the material, need not be classified as ``discarded'' 
when they are burned under conditions where they are managed like fuel 
oil and the emissions from a boiler burning ECF will be no different 
than from a boiler burning the fuel oil that would often be used in 
ECF's place. With respect to storage and transport, EPA is stating that 
ECF will again be managed like a product (fuel oil or some other type 
of organic liquid) or otherwise stored to assure that discard has not 
occurred.

B. EPA's Use of Safe Foods and Fertilizers (SFAF) to Justify the 
Exclusion

1. The Term ``Discarded'' With Regard to Hazardous Waste Burned for 
Energy Recovery
    Comment: A commenter states EPA's attempted reliance on Safe Foods 
and Fertilizers (SFAF), 72 FR at 33290, is misplaced. SFAF addresses 
EPA's exemption of certain ``recycled materials'' from SWDA 
requirements. 350 F.3d at 1268. The SFAF Court found that the term 
``discarded'' is ambiguous with respect to these materials. The 
commenter states that it did not find that the term is ambiguous with 
respect to material that otherwise qualifies as hazardous waste, but is 
burned for energy recovery. Indeed, any such finding would have been 
directly at odds with the text and legislative history of the SWDA, as 
well as with binding prior precedent, according to the commenter.
    Response: The comment misreads Safe Food. The Safe Food court held 
that materials were reasonably classified as non-wastes--not 
discarded--based on a set of conditions under which EPA had determined 
that ``market participants treat the exempted materials more like 
valuable products than like negatively-valued wastes, managing them in 
ways inconsistent with discard, and that the fertilizers derived from 
these recycled feedstocks are chemically indistinguishable from 
analogous commercial products made from virgin materials.'' 350 F. 3d 
at 1269. The same principles are applicable to ECF. ECF will be managed 
as a valuable product due to the conditions on management which 
objectively assure lack of discard, and ECF is indistinguishable from 
fuel oil with respect to physical composition and emissions--emissions 
of hazardous constituents from boilers burning ECF will be the same as 
those from a boiler burning fuel oil.
2. Application of the Identity Principle to ECF
    Comment: The same commenter states that EPA does not argue that 
emission-comparable fuels are ``chemically indistinguishable'' from 
analogous commercial products (ordinary fuel). EPA apparently believes 
that it need not show chemical identity. Instead, EPA rests its case on 
an assertion that it need only show that the ``secondary materials are 
physically comparable to virgin products which would be used in their 
place, or which pose similar or otherwise low risks when used in the 
same manner as the virgin product.'' 72 FR 33290.
    The commenter states that EPA's version of ``comparable'' identity 
in lieu of ``chemically indistinguishable'' identity is unreasonable 
and contrary to the ruling in SFAF. The SFAF Court required that the 
secondary materials be ``indistinguishable in the relevant respects.'' 
SFAF at 1269. The Court explains that it does not believe that 
affirmance of the EPA's principle requires literal identity, so long as 
the differences are so slight as to be substantively meaningless when 
viewed from the ``perspective based on health and environmental 
risks.'' Id. at 1270. The commenter states further that, in the case of 
the zinc fertilizers at issue in SFAF, EPA pointed to two risk 
assessments that purported to show that the secondary materials 
presented risks ``considerably below levels that we estimate (albeit 
roughly) to be safe for humans and ecosystems.'' Id. citing 67 FR at 
48,403/3.
    Response: The ``identity'' principle, as described by the Safe Food 
court, refers to ``contaminant limits assuring substantial chemical 
identity'' with products made from virgin materials. 350 F.3d at 1269. 
Where contaminant levels in the excluded fertilizer differed 
substantially from those in the virgin fertilizer for which it 
substituted, the Court further decided it could affirm EPA's identity 
principle as a basis for exclusion if, based on the Agency's analysis 
of health and environmental risks, the differences are so slight as to 
be substantively meaningless. See 350 F. 3d at 1270 ( ``the apparent 
differences in the EPA's exclusion ceilings and the contaminant levels 
in the virgin fertilizer samples lose their significance when put in 
proper perspective--namely, a perspective based on health and 
environmental risks.'').
    Here, there are no ``apparent differences'' in environmental effect 
from burning ECF in place of fuel oil. We have explained at proposal, 
in this preamble, and in supporting documents that the conditions on 
burning--including in particular that the ECF constituent feedrate 
limits coupled with the requirement of identical concentrations of most 
hazardous constituents for ECF and for fuel oil--will ensure that there 
will be no difference in environmental effect between burning ECF or 
fuel oil in a boiler. Because there is no end environmental difference 
between burning the hazardous secondary material and the virgin fossil 
fuel for which it could substitute, ECF meets the ``identity'' test 
under Safe Food. See 350 F. 3d at 1270-71 (physical difference not 
considered determinative of discard where that difference does not 
result in adverse environmental effect).\64\
---------------------------------------------------------------------------

    \64\ Please note, however, that we have shown that the emissions 
from the ECF oxygenates other than acrolein would result in maximum 
annual average ground level concentrations that would be orders of 
magnitude lower than their reference air concentrations (RfCs). See 
discussion in Part Three, Section III.B.3 of the preamble. Although 
acrolein emissions may result in maximum annual average ground level 
concentrations that approach the RfC, acrolein emissions from 
burning ECF will be no greater than measured acrolein emissions from 
an oil-fired industrial boiler.
---------------------------------------------------------------------------

3. Need for a Risk Assessment
    Comment: The same commenter states that EPA has not presented a 
risk assessment in the record to show that storage, transport, burning 
and disposal of ECF presents no risk of harm to health and the 
environment. EPA performed a ``risk screening'' pertaining only to the 
burning of ECF, but a screening is not an adequate substitute for an 
assessment, and the screening did not address the potential threats 
posed by storage, transportation and management of waste residuals.
    Response: Again, the comment misreads Safe Food. The Court 
evaluated several identity scenarios which required different levels of 
analysis depending on the contaminant levels in the final product. See 
350 F.3d at 1269-72. The type of analysis varied from chemical to 
chemical and the various chemicals required different

[[Page 77974]]

levels of analysis depending on how they related to the virgin 
materials and what kinds of assessment of risk were needed by EPA. It 
is instructive to review the Court's analysis to evaluate how it 
relates to the Agency's analysis of ECF.
    As in the comment to this rule, the petitioners in Safe Food 
objected to the ``factual predicate'' of EPA's identity principle 
because the petitioners argued that the levels EPA picked were not 
``identical'' to what was found in products made from virgin materials. 
350 F.3d at 1269. Of particular difficulty was the situation in which, 
for some cases, contaminant levels in the recycled products would 
appear to be ``sometimes considerably higher'' than in products made 
from virgin materials. Id. In general, the court determined that it 
could affirm EPA's determination if, based on the Agency's analysis of 
health and environmental risks, the differences are so slight as to be 
substantively meaningless and found that ``the apparent differences in 
the EPA's exclusion ceilings and the contaminant levels in the virgin 
fertilizer samples lose their significance when put in proper 
perspective--namely, a perspective based on health and environmental 
risks.'' 350 F.3d at 1270.
    For four contaminants--lead, arsenic, mercury and cadmium--EPA 
picked levels in the recycled fertilizer product that were related to 
the ``concentration levels found in virgin materials.'' 350 F.3d at 
1271; see 350 F.3d at 1270 (Table titled ``Comparison of EPA Limit and 
Virgin Commercial Samples * * *''). In addition, the court relied on 
risk assessments performed by industry to determine that the levels 
``do not endanger human health or the environment until they are 
present in concentrations between 20 and 372 times'' the levels EPA 
allowed in its regulations. 350 F.3d at 1270. In response to the 
petitioners' argument that the industry studies should be given no 
weight, the court deferred to EPA's technical judgment that, even 
though the studies could be more rigorous, they were ``a good enough 
benchmark for * * * levels that were tiny fractions of the risk 
thresholds.'' Id. Accordingly, the court found that the levels of these 
contaminants ``did not undermine the EPA's application of its identity 
principle.'' Id.
    For dioxin, EPA needed a more rigorous analysis. In that case, EPA 
did not set the limit on concentration levels found in virgin 
materials, but instead set a limit of 8 parts per trillion (ppt), 
``similar to the average background dioxin concentration in soil.'' 
Even though commercial fertilizers had levels much lower at 1 ppt, 
basic risk findings from prior risk assessments showed that dioxin did 
not pose a risk at background levels and no comments on the rule 
challenged the basic risk determinations. The court, therefore, found 
that EPA was reasonable that the 8 ppt standard was ``'identical' 
enough'' to support a finding that the excluded fertilizers were 
products rather than wastes. 350 F.3d at 1271.
    The court made a different decision for chromium and remanded the 
decision to the Agency to ``clarify'' the chromium level. 350 F.3d at 
1271-72. The industry study did not show the high risk thresholds for 
chromium as it did for the other contaminants. Also, EPA did not report 
such a risk threshold in the final rule and the court found that the 
results of an EPA risk study on chromium ``are not easily translatable 
by lay judges into a form comparable with the proposed exclusion 
ceiling.'' 350 F.3d at 1271. Moreover, the court found ``particularly 
striking'' the difference between the chromium level for fertilizers 
made from recycled hazardous secondary materials and for chromium in 
fertilizer made from virgin materials. EPA set a level at 21.3 parts 
per million (ppm) for recycled fertilizer. However, of twenty virgin 
fertilizer samples reported, six reported chromium--one of 8 ppm and 
five less than 1 ppm. Thus, EPA's level was double the highest sample, 
ten times the sample mean, and twenty times the sample median, with 
nothing the court could understand which indicated that these 
differences were trivial from a health and environment perspective.
    In summary, for none of the contaminants at issue was EPA required 
to perform a full ``risk assessment'' to determine that there is ``no 
risk of harm to human health or the environment,'' as the commenter 
would have it. Instead, the Court found it reasonable for EPA to rely 
on information commensurate with the relationship of products made with 
virgin materials to products made with non-discarded hazardous 
secondary materials. In some cases (dioxin and chromium), EPA needed a 
more rigorous analysis. 350 F.3d at 1271. For other materials (heavy 
metals), EPA's analysis was less rigorous and nonetheless appropriate.
    EPA's analysis for ECF falls well within the parameters evaluated 
by the court in Safe Food. As noted in the response to the previous 
comment, there is no end environmental difference between the 
activities of burning for energy recovery of fuel oil and ECF. This 
rule thus does not pose the issues the Safe Food court faced regarding 
dioxin or chromium levels, although it should be noted that EPA's 
approach here resulting in no increase of emissions of ECF constituents 
from a boiler burning ECF compared to that boiler burning fuel oil has 
similarities with the approach to dioxin upheld in Safe Food where the 
specification was established to assure no increases in ambient levels 
of that contaminant from use of the excluded fertilizer. There thus is 
no need to justify differing environmental outcomes from burning by 
showing de minimis risk.
    We have also explained that the conditions on storage of ECF, 
although based substantially on controls applicable to analogous 
products, are enhanced to assure that discard is not occurring through 
conditions relating to primary and secondary containment (e.g., 
secondary containment and leak detection conditions for tanks; 
containment system conditions for containers). Thus, the storage 
conditions under the exclusion are equivalent to the storage 
requirements currently applicable to ECF currently classified as 
hazardous waste or to analogous fossil fuels or product or by-product 
organic liquids. Finally, with respect to the hazards associated with 
the transportation of ECF, we note that ECF is subject to DOT's 
requirements for hazardous materials. Thus, ECF is subject to the same 
packaging, labeling, marking, and placarding requirements as hazardous 
waste, and each ECF shipment must be accompanied by a DOT hazardous 
material shipping paper. These controls assure that ECF's market 
participation when stored and transported will be as a valued 
commodity, without discard.
4. Applicability of the Market--Participation Theory to ECF
    Comment: The same commenter states that, although the SFAF test 
clearly comprises two parts, EPA fails to address the second part of 
the test, which is that ``market participants must treat the materials 
more like valuable products then like negatively-valued waste.'' 
Presently, the record shows that hazardous wastes that can be burned as 
fuel, which are not eligible for the existing comparable fuels 
exclusion, are largely shipped to hazardous waste incinerators and 
cement kilns for incineration. Generators of such hazardous waste are 
required to store and transport such waste under stringent subtitle C 
regulation. The wastes are presently not treated like valuable 
products, i.e., as feedstock for commercial products or valuable fuel 
for energy production. In the case at issue in SFAF, the materials were 
``feedstocks in a non-discarded final

[[Page 77975]]

product'' (the zinc fertilizer). Here, the hazardous waste is not a 
feedstock in a non-discarded final product. EPA must demonstrate why it 
believes that ECF meets the market participation test set forth in 
SFAF.
    Response: The commenter misreads EPA's determination with respect 
to the exclusion in this rule. EPA is finding that when ECF is stored, 
transported and burned under the conditions set forth in the rule--
i.e., when ECF participates in the market--market participants will 
manage ECF as a valuable commodity, not as a waste. They will do so 
because: (1) Pursuant to the conditions set out for the exclusion, 
storage of the material will include storage safeguards to which fuel 
oil and product organic liquids are subject, plus additional conditions 
to assure containment; (2) the conditions on burning assure that 
burning will occur under the same optimized combustion conditions as 
product fuel oil when carefully combusted in industrial boilers; (3) 
the feedrate conditions assure that emissions of ECF constituents from 
a boiler burning ECF will be comparable to (i.e., the same as) 
emissions from a boiler burning fuel oil; and (4) the physical 
composition conditions assure that the remaining hazardous constituents 
are present in no greater concentrations than in fuel oil. Thus, it is 
reasonable for EPA to determine that the conditions of the rule provide 
an objective assurance of ECF not being discarded in the first instance 
and, ultimately, used as a valuable fuel commodity by market 
participants under the same conditions and with the same emissions as 
valuable fuel commodities, e.g., fuel oil.
    ``Market participation'' and ``identity'' are also more closely 
related than the commenter would have it. Physical identity of a 
hazardous secondary material with a commercial product for which it 
substitutes is itself an aspect of market participation, assuring that 
the hazardous secondary material will be managed as a valuable 
commodity--the commodity to which it is identical, and not be 
discarded. Cf. Safe Foods, 350 F.3d at 1269 (``[n]obody questions that 
virgin fertilizers and feedstocks are products rather than wastes. Once 
one accepts that premise, it seems eminently reasonable to treat 
materials that are indistinguishable in the relevant respects as 
products as well''). Thus, the exclusion for the zinc fertilizers at 
issue in Safe Foods contains no conditions on market participation 
beyond meeting the hazardous constituent concentration specifications, 
plus sampling of the fertilizers to document that the fertilizers meet 
those specification levels, whereas more market participation 
conditions attached to the hazardous secondary materials used to 
produce the excluded fertilizers. See 40 CFR section 261.4(a)(21) and 
(20). In any event, evaluated separately, EPA believes that the rule is 
entirely consistent with the market participation and identity 
principles set out in Safe Foods.
    Finally, in response to the commenter's statement that hazardous 
waste fuels that are currently sent to hazardous waste incinerators and 
cement kilns are burned for incineration, we note that these materials 
are burned for energy recovery in lieu of fossil fuels. Cement kilns 
burn hazardous waste fuels in lieu of coal to provide the heat to 
calcine limestone to produce clinker product, and hazardous waste 
incinerators burn hazardous waste fuels in lieu of fuel oil or natural 
gas to provide heat to combust wastes with little or no heating value.

III. Conditions for Storage of ECF

A. Storage in Containers

    Comment: In response to a request for comment at proposal as to 
whether generators would be likely to store ECF in containers, several 
commenters state that storage in containers should be allowed to enable 
smaller volume ECF generators to use the exclusion. Other commenters 
oppose allowing storage in containers. One commenter states that 
storage of ECF in drums may easily allow indiscriminate mixing of other 
wastes due to the lack of adequate controls. Another commenter states 
that storage of ECF in containers should not be allowed because, absent 
hazardous waste standards and permit requirements, container storage 
would pose a hazard to the public.
    Response: We agree with the commenters that support allowing 
storage of ECF in containers. Therefore, the final rule allows storage 
of ECF in containers under conditions that are similar to the 
conditions for storage in tanks. As discussed below, the conditions for 
ECF container storage are adopted from the provisions applicable to 
commercial products analogous to ECF or are equivalent to the hazardous 
waste container requirements under Subparts CC and BB of Part 264 
(which controls are based on those for containers storing organic 
liquid products or byproducts).
    Regarding the commenter's concern for the potential for 
indiscriminate mixing of waste with ECF, if ECF does not meet the 
specifications under Sec.  261.38(a)(2), the material loses the 
exclusion and must be managed as a hazardous waste from the point of 
generation. In addition, ECF must meet the specifications for exclusion 
as-generated; blending, dilution, or other treatment is not allowed to 
meet the specifications.
    The discharge prevention conditions for container storage are 
adopted from the SPCC requirements and the emergency procedure 
provisions are adopted from the hazardous waste storage requirements 
for containers and are identical to those adopted for ECF tanks. This 
is appropriate because container storage can pose the same types of 
hazards as tank storage.
    The conditions to provide containment for container storage are 
adopted from the requirements for used oil stored at burner 
facilities,\65\ coupled with the controls adopted from the hazardous 
waste container requirements to address the additional hazards that ECF 
container storage can pose. We note that we mentioned at proposal that 
if the final rule allowed container storage, we would subject 
containers to conditions similar to those that apply to hazardous waste 
containers. See 72 FR at 33301. We adopt the containment conditions for 
containers from the containment requirements for hazardous waste 
container storage units under Sec.  264.173. This is appropriate 
because: (1) These requirements include the requirements for used oil 
container storage, as well as provisions that address the hazards that 
ECF containers can pose; and (2) ECF container storage units are 
currently subject to those containment requirements, which address 
hazards that remain after the ECF exclusion is claimed.
---------------------------------------------------------------------------

    \65\ See Sec.  279.64(b) and (c) requiring that containers be in 
good condition and stored in an area with a containment system 
comprised of dikes, berms, or walls surrounding a floor, which are 
impervious to used oil.
---------------------------------------------------------------------------

    To establish conditions to control fugitive air emissions from 
containers and leaks from equipment that contains or contacts ECF at 
the container storage unit, our principles are as follows. First, we 
adopt the OLD NESHAP controls that apply to containers. This is 
appropriate for the reasons discussed at proposal in the context of 
adopting the OLD NESHAP controls for tanks. See 72 FR 33305. Second, 
for containers that are not subject to the OLD NESHAP, we adopt the 
NESHAP emission standards for containers under Subpart PP, Part 63. 
This is appropriate because the Agency developed these standards for 
storage of organic liquid feedstock, products, and by-products by 
manufacturing facilities, and ECF is an organic liquid product. Third, 
to determine the applicability of the Level

[[Page 77976]]

1 or Level 2 controls under Subpart PP, we adopt the container size and 
other criteria (i.e., whether the ECF meets the definition of a ``light 
liquid'') that the Agency established for hazardous waste containers 
under Sec.  264.1086(b)(1). These hazardous waste container 
applicability criteria establish the applicability of Level 1 or Level 
2 controls under Sec.  264.1086(c) and (d) which are equivalent to the 
Level 1 or Level 2 controls under Subpart PP. It is reasonable to adopt 
the hazardous waste container applicability criteria because ECF 
containers pose air emission hazards that remain after the ECF 
exclusion is claimed. Finally, we do not adopt provisions under Subpart 
PP that are not relevant, such as the applicability of the subpart to 
other Part 63 subparts, enforcement of the subpart under the CAA, and 
provisions for site-specific waivers or approval of alternative 
provisions.
    By applying these principles, we establish the following air 
emission conditions for containers.
    Containers Subject to the OLD NESHAP. We adopt the fugitive air 
emission conditions for container storage units from the OLD NESHAP. 
See Sec.  261.38(c)(1)(vi). Although the OLD NESHAP controls air 
emissions during distribution operations, it does not address air 
emissions from other aspects of container management, such as storage 
and unloading liquids from containers. In fact, the OLD NESHAP is 
applicable to ECF containers only when ECF that meets the adopted 
definition of organic liquid \66\ is being loaded into a container with 
a capacity greater than 55 gallons at a transfer rack at a new facility 
where the annual volume of ECF is 800,000 gallons or more. See Items 9 
and 10 in Table 2 to adopted Subpart EEEE which subject such containers 
generally to Level 3 control under Subpart PP, Part 63. Consequently, 
we adopt other controls as conditions for containers that are not 
subject to the OLD NESHAP, as discussed below.
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    \66\ The ``adopted definition of organic liquid'' means ECF that 
contains 5 percent or greater by weight of the RCRA oxygenates, as 
well as organic HAP listed in Table 1 to Subpart EEEE, and that has 
an annual average true vapor pressure of 0.1 psia or greater. See 
Sec.  261.38(c)(1)(vi)(B)(4).
---------------------------------------------------------------------------

    We also adopt the OLD NESHAP provisions that control leaks from 
equipment (e.g., pumps, valves) that contain or contact ECF in a 
storage unit that has a container subject to control under Items 9 or 
10 in Table 2 to adopted Subpart EEEE. These provisions under adopted 
Sec.  63.2346(c) require compliance with the applicable requirements of 
the following NESHAP subparts: Subpart TT (Level 1 control), or Subpart 
UU (Level 2 control), or Subpart H.
    Containers That Are Not Subject to the OLD NESHAP. To ensure that 
air emissions from other ECF containers are controlled, we adopt in 
this final rule the applicability criteria for hazardous waste 
containers under Sec.  264.1086(b)(1) to determine the applicability of 
the Level 1 or Level 2 national emission controls under Subpart PP, 
Part 63. Using the hazardous waste container applicability criteria for 
ECF containers is consistent with our principle of ensuring that 
controls through conditions are provided for the storage hazards that 
remain after the ECF exclusion is claimed, thus assuring safe handling 
commensurate with ECF's classification as a product and ensuring that 
it does not become part of the waste disposal problem. See AMC II, 907 
F.2d at 1186. The national emission standards for Level 1 and Level 2 
controls under Subpart PP are appropriate because they apply to 
containers storing raw materials, products, and by-products at 
manufacturing facilities and are equivalent to the Level 1 and Level 2 
controls required for hazardous waste containers under Sec.  
264.1086(c) and (d).
    Under these adopted provisions, a container having a design 
capacity greater than 0.1 cubic meters (26 gallons) can comply with the 
conditions if it: (1) Meets the applicable DOT regulations on packaging 
hazardous materials for transportation; and (2) is kept closed unless 
ECF is being added or removed from the container.
    To control leaks from equipment that contains or contacts ECF at 
container storage units, we adopt the equipment leak provisions from 
the OLD NESHAP. The OLD NESHAP subjects containers to the Part 63 
NESHAP for equipment leaks if the facility has a tank or container 
subject to air emission controls under Table 2 to Subpart EEEE: Subpart 
TT (Level 1 control), or Subpart UU (Level 2 control), or Subpart H. 
These are alternative controls. Owners and operators can elect to 
comply with a level of control among these alternatives. For ECF 
equipment leaks for equipment not subject to OLD, we adopt the same 
NESHAP controls required under OLD, and use the hazardous waste 
equipment leak applicability criterion under Sec.  264.1050(b) to 
determine when those controls, as conditions, apply.\67\ As a practical 
matter, the controls will apply to all equipment that contains or 
contacts ECF in a container storage unit. This is because Sec.  
264.1050(b) subjects equipment that contains or contacts hazardous 
waste with an organic concentration of at least 10 percent by weight to 
the equipment leak requirements. Given that ECF will invariably have an 
organic concentration of at least 10 percent, the adopted equipment 
leak controls apply to all equipment that contains or contacts ECF in a 
container storage unit.
---------------------------------------------------------------------------

    \67\ As discussed elsewhere in the preamble, it is reasonable to 
use the hazardous waste applicability criteria to establish 
applicability of the equipment leak controls for ECF equipment given 
our principle of controlling hazards that remain after the ECF 
exclusion is claimed.
---------------------------------------------------------------------------

    In adopting the NESHAP equipment leak controls for equipment that 
contains or contacts ECF, we are omitting those provisions that are not 
relevant (e.g., applicability provisions referencing other Part 63 
subparts; CAA enforcement). Consequently, we are adopting the following 
alternative conditions: (1) Subpart TT, Part 63, (Level 1 control), 
except for Sec.  63.1000; (2) Subpart UU (Level 2 control), except for 
Sec.  63.1019; and (3) Subpart H, except for Sec. Sec.  63.160, 
63.162(b) and (e), and 63.183.

B. Alternative Hazardous Waste Storage Conditions

    We requested comment at proposal on whether the conditions to 
control air emissions from tank systems would be easier to understand 
and implement if we simply adopted the hazardous waste provisions under 
Part 264, Subparts AA, BB, and CC rather than adopting controls under 
the OLD NESHAP.
    Comment: Several commenters suggest that the Agency adopt the 
hazardous waste storage requirements for ECF storage units in lieu of 
the collection of SPCC, OLD NESHAP, and hazardous waste storage 
controls that we proposed to avoid the complications created by 
adapting and then adopting those controls for ECF.\68\
---------------------------------------------------------------------------

    \68\ We note that the collection of adopted controls is even 
more complicated in the final rule given the need to adopt controls 
for containers, and the need to adopt air emission controls for 
tanks and containers that would not be subject to the adopted 
provisions of the OLD NESHAP. See discussion below in the preamble 
in Part Four, Section III.C.
---------------------------------------------------------------------------

    Response: While we acknowledge that the adapted and adopted 
controls on ECF storage are complicated, and that hazardous waste 
generators and burners may not be familiar with them, we believe it is 
appropriate to retain those conditions. Those conditions are our best 
effort to ensure that ECF is subject (via conditions) to controls for 
analogous products and that address hazards that remain after the ECF 
exclusion is claimed, assuring that in its management, ECF will not 
become ``part of the waste disposal problem'' (AMC I,

[[Page 77977]]

824 F. 2d at 1186), and so is not discarded.
    Nonetheless, we understand commenters' concerns and have, 
therefore, provided alternative storage conditions that are adopted 
solely from the hazardous waste storage requirements under Part 264, 
Subparts I (containers), J (tanks), AA (closed vent systems and control 
devices), BB (equipment leaks), and CC (air emissions from tanks and 
containers).\69\ These conditions are coupled with the other general 
requirements that apply to hazardous waste storage units to ensure 
containment and protection of human health and the environment, and 
which address security; inspections; personnel training; ignitable, 
reactive, and incompatible material; preparedness and prevention; and a 
contingency plan and emergency procedures. See Sec.  261.38(e). ECF 
storage units are currently subject to these conditions and the 
conditions parallel the suite of conditions adopted from the SPCC 
provisions, the OLD NESHAP, and the hazardous waste provisions that are 
the base storage conditions provided under Sec.  261.38(c)(1)(ii-viii).
---------------------------------------------------------------------------

    \69\ As noted, the Subpart AA, BB, and CC controls are 
themselves adapted from controls for product and byproduct organic 
liquids, and so are analogous to controls used for product container 
storage.
---------------------------------------------------------------------------

C. Air Emission Controls for Tanks

    Comment: One commenter states that the air emission controls for 
tanks adopted from the OLD NESHAP under Subpart EEEE, Part 63, are not 
equivalent to the hazardous waste tank controls that currently apply to 
ECF and could allow an increase in hazardous air emissions. The 
commenter notes that tanks not meeting the adopted OLD criteria for 
design capacity and ECF vapor pressure would not be subject to the OLD 
controls, while those tanks are currently subject to the hazardous 
waste tank air emission controls. In addition, the commenter notes that 
the OLD vapor pressure criterion for organic HAP and RCRA oxygenates in 
ECF for determining applicability of air emission controls is based on 
the ``annual average true vapor pressure,'' while the vapor pressure 
criterion for applicability of the hazardous waste tank air emission 
controls is based on the ``maximum organic vapor pressure.'' The 
commenter believes that the OLD controls may not be adequately 
protective and, therefore, the hazardous waste tank controls should be 
adopted for ECF tanks.
    Response: We continue to believe that, because ECF is a product, it 
should be subject to the same controls that apply to analogous 
products. This provides an objective indication that the materials are 
not discarded. Consequently, it is reasonable to adopt conditions for 
storage of ECF from the OLD NESHAP, as discussed at proposal. See 72 FR 
at 33305.
    Nonetheless, as discussed previously in this preamble and at 
proposal, the OLD NESHAP does not address hazards from the storage of 
ECF that remain after the exclusion is claimed because certain types of 
ECF storage activities would not be subject to that rule. Consequently, 
we proposed to adopt provisions of the OLD controls so that those 
controls address all ECF tanks. See 72 FR at 33306.
    In light of the commenter's concerns, we have reviewed the proposed 
tank air emission controls and conclude that: (1) We inadvertently 
proposed to expand the applicability of the adopted OLD controls to two 
tank capacity and ECF vapor pressure scenarios that would have 
established controls that are more stringent than the hazardous waste 
tank controls for those scenarios; (2) there are additional tank 
capacity and ECF vapor pressure scenarios where ECF that meets the 
adopted definition of an organic liquid would not be subject to the 
adopted OLD controls, but should be to assure that all ECF is subject 
to the controls for product organic liquids, or controls comparable 
thereto; (3) we inadvertently did not propose to adopt air emission 
controls for tanks that store ECF that does not meet the adopted 
definition of organic liquid and these tanks need to be subject (via 
condition) to product organic liquid controls, or controls comparable 
thereto, when all other tanks storing ECF are; and (4) it is reasonable 
to adopt the OLD definition of annual average vapor pressure rather 
than the hazardous waste definition of maximum organic vapor pressure. 
We discuss these issues below.
    Proposal To Expand OLD Controls to Additional Tank Capacity and ECF 
Vapor Pressure Situations. We explained at proposal that the OLD NESHAP 
would not require controls for two tank size/vapor pressure scenarios: 
(1) Existing, reconstructed, or new ECF tanks with a capacity less than 
5,000 gallons handling ECF with a RCRA oxygenate and organic HAP vapor 
pressure equal to or greater than 76.6 kPa; and (2) existing ECF tanks 
with a capacity in the range of 5,000 gallons to 50,000 gallons 
handling ECF with a RCRA oxygenate and organic HAP vapor pressure in 
the range of 5.2 kPa (0.75 psia) to 76.6 kPa. (11.1 psia).\70\ See 72 
FR at 33306-07. Consequently, we proposed to adopt the OLD NESHAP 
controls for those two tank size/vapor pressure scenarios. In 
retrospect, however, we do not believe it is appropriate to expand OLD 
control to those tank capacity/vapor pressure scenarios because the 
adopted OLD controls would be more stringent than the hazardous waste 
controls that currently apply to the ECF tank. See discussion below 
where we explain how the final rule provides appropriate controls via 
conditions for those two scenarios.
---------------------------------------------------------------------------

    \70\ Please note that, as discussed in this section, we have 
since determined that there are other tank capacity/vapor pressure 
scenarios for which OLD would not apply, and OLD would not apply to 
tanks storing ECF where ECF does not meet the adopted definition of 
organic liquid.
---------------------------------------------------------------------------

    Air Emission Conditions for Tanks and Containers that Are Not 
Subject to Conditions Adopted from Part 63, Subpart EEEE. We have 
determined since proposal that, in addition to the two scenarios 
discussed above, there are other ECF tanks that would not be subject to 
the adopted OLD controls even though they are currently subject to 
hazardous waste tank controls: (1) Tanks with a design capacity in the 
range of 5,000 to 50,000 gallons when the ECF meets the adopted 
definition of organic liquid and has a vapor pressure in the range of 
0.1 psia to 0.75 psia; and (2) all tanks storing ECF that does not meet 
the adopted definition of organic liquid (i.e., ECF that contains less 
than five percent by weight of the RCRA oxygenates, as well as organic 
HAP, or has an annual average vapor pressure less than 0.1 psia).
    The final rule establishes conditions to control air emissions for 
these ECF tank scenarios--ECF tanks that are not subject to the adopted 
OLD controls, but that are currently subject to the hazardous waste 
tank air emission controls. See Sec.  261.38(c)(1)(vii). Using the 
hazardous waste tank applicability criteria for tank capacity and ECF 
vapor pressure under Sec.  264.1084(b)(1) is consistent with our 
primary principle stated at proposal for establishing tank air emission 
controls: Emissions should be controlled to a level comparable to 
levels currently required given that air emissions from storage and 
handling of ECF can pose the same hazards as storage and handling of 
the hazardous waste. See 72 FR at 33306.
    We therefore use the hazardous waste tank capacity/vapor pressure 
applicability criteria that designate whether Level 1 or Level 2 
emissions control apply to establish conditions for ECF tanks that 
provide at least equivalent control. Rather than adopting the hazardous 
waste tank controls

[[Page 77978]]

verbatim, however, we adopt a suite of alternative NESHAP controls that 
are equivalent to the hazardous waste tank controls. This is 
appropriate because ECF is a product and these controls apply to tanks 
storing organic liquid feedstocks, products, and by-products at 
manufacturing facilities.
    To establish a suite of alternative controls for ECF tanks that are 
equivalent to the hazardous waste tank Level 1 controls, we adopt: (1) 
The Level 1 national emission standards for tank air emissions provided 
by Subpart OO, Part 63; (2) the OLD controls designated under Item 1 in 
Table 2 to Subpart EEEE,\71\ Part 63; and (3) three additional 
alternative control measures provided for (Level 2) control for 
hazardous waste tanks-venting to a control device, a pressure tank, and 
a tank located in an enclosure that is vented to a combustion control 
device.\72\
---------------------------------------------------------------------------

    \71\ These OLD controls are equivalent to Level 2 hazardous 
waste tank controls (e.g., alternative controls include an internal 
or external floating roof).
    \72\ Although our preference is to adopt NESHAP controls for ECF 
tanks, it is reasonable to adopt hazardous waste tank controls as 
alternatives to the adopted NESHAP controls.
---------------------------------------------------------------------------

    To establish a suite of alternative controls for ECF tanks that are 
equivalent to the hazardous waste tank Level 2 controls, we adopt: (1) 
The OLD controls designated under Item 1 in Table 2 to Subpart EEEE, 
Part 63; and (2) the three additional alternative control measures 
provided for (Level 2) control for hazardous waste tanks-venting to a 
control device, a pressure tank, and a tank located in an enclosure 
that is vented to a combustion control device.
    Finally, the tank air emission controls include conditions to 
control air emissions from leaks from equipment that contains or 
contacts ECF. We adopt the same equipment leak conditions for tank 
storage units that we adopted for container storage units, and for the 
same reasons: (1) Subpart TT, Part 63, (Level 1 control), except for 
Sec.  63.1000; or (2)Subpart UU (Level 2 control), except for Sec.  
63.1019; or (3) Subpart H, except for Sec. Sec.  63.160, 63.162(b) and 
(e), and 63.183. See discussion in Part Four, Section III.A above.
    Vapor Pressure Criterion. It is reasonable to adopt the OLD 
definition of annual average vapor rather than the hazardous waste 
definition of maximum organic vapor pressure to establish the 
applicability of the adopted OLD controls. The OLD controls are equally 
or more stringent than the hazardous waste controls for all tank 
capacity/vapor pressure scenarios that are applicable to ECF tanks. For 
ECF tanks that are not subject to the adopted OLD controls, the 
hazardous waste tank vapor pressure definition under Sec.  264.1083(c) 
applies when determining the applicability of the adopted controls as 
discussed above, and those adopted controls are at least equivalent to 
the hazardous waste tank controls. Consequently, adopting the OLD 
definition of vapor pressure will still ensure that tank air emission 
controls are equivalent to hazardous waste tank air emission controls.

D. Definitions of Tank Cars and Tank Trucks

    Comment: A commenter states that the definition of tank cars and 
tank trucks in the proposed rule is unclear.
    Response: The final rule does not use the terms tank car or tank 
truck. These terms are used, however, in the adopted SPCC requirements. 
Although the SPCC requirements do not explicitly define these terms, a 
tank car is a container used to transport ECF by rail, and a tank truck 
is a container used to transport ECF by roadway.

E. Adequacy of the ECF Storage Conditions

    Comment: Several commenters believe that ECF storage poses a 
greater hazard than fuel oil, the product that EPA states is most 
analogous to ECF. The commenters believe that the hazardous waste 
storage controls are needed to address the hazards posed by storage of 
ECF.
    Response: We stated at proposal that fuel oil is the most analogous 
product to ECF and, thus, the ECF exclusion would typically be 
conditioned on meeting storage controls that are applicable to fuel oil 
as a means of assuring lack of discard. We also stated, however, that 
additional controls are necessary to minimize the potential for 
releases to the environment (i.e., discard). See 72 FR at 33301. The 
SPCC controls, coupled with the other controls (e.g., secondary 
containment, preparedness and prevention, emergency procedures, air 
emissions) are equivalent to the controls that apply to hazardous waste 
storage units. Consequently, the storage of ECF will pose no greater 
hazard than storage of hazardous waste based upon the conditions drawn 
from the requirements for storage of organic liquids and hazardous 
wastes.

F. Management of Residues in Tanks

    Comment: A commenter states that the management of residues in 
tanks and containers during operation is not addressed. The commenter 
believes that the final rule should be clear that solids and other 
wastes generated as a result of managing ECF are hazardous waste 
irrespective of when they are generated.
    Response: As proposed, the final rule states that liquid and 
accumulated solid residues that remain in a container or tank system 
for more than 90 days after the container or tank system ceases to be 
operated for storage or transport of the excluded fuel product (i.e., 
ECF or comparable fuel) are subject to regulation as hazardous waste if 
identified or listed as a hazardous waste. In addition, liquid and 
accumulated solid residues that are removed from a container or tank 
system after the container or tank system ceases to be operated for 
storage or transport of the excluded fuel product are solid wastes 
subject to regulation as hazardous waste if the waste exhibits a 
characteristic of hazardous waste under Sec. Sec.  261.21 through 
261.24 or if the fuel were otherwise listed under Sec. Sec.  261.31 
through 261.33 when the exclusion was claimed. See Sec.  
261.38(b)(13)(i) and (ii).
    We inadvertently did not address the situation raised by the 
commenter, however; that is, where residues may be removed from an ECF 
container or tank that remains in ECF service, and where the ECF no 
longer meets the specification for the exclusion. We agree with the 
commenter that such hazardous secondary materials should be managed as 
a hazardous waste if it exhibits a characteristic of hazardous waste 
under Sec. Sec.  261.21 through 261.24 or if the hazardous secondary 
material would otherwise have been listed as a hazardous waste when the 
exclusion was claimed. See Sec.  261.38(b)(13)(iii).

G. Closure Conditions for ECF Tanks

    Comment: Commenters state that EPA should apply the closure 
requirements to ECF storage units. They argue that EPA appears to 
disregard the fact that facilities may store substantial amounts of ECF 
in these tank systems for significant periods of time. Acknowledging 
that spilling, seepage and releases routinely occur during waste 
storage, the closure requirements provide assurance that the party 
responsible for the management of the ECF performs a comprehensive 
cleanup in a timely manner when the waste storage unit is no longer 
used to store such material. EPA's failure to impose closure 
requirements violates SWDA section 3004(a) that requires EPA to impose 
such performance standards on facilities that store, treat or dispose 
of hazardous waste ``as may be necessary to protect human health or the 
environment.'' 42 U.S.C. 6924(a). In addition, the failure of EPA to 
impose

[[Page 77979]]

such requirements contravenes the statutory mandates of SWDA section 
1003. 42 U.S.C. 6902. Further, commenters state that there is no reason 
to leave the decontamination and decommissioning of a unit that stored 
hazardous waste to the discretion of the owner/operator when RCRA 
regulations provide explicit direction on how to close such units 
safely. EPA provides nothing in the record that indicates that a 
``regulatory authority,'' presumably the state solid waste agency where 
the owner/operator is located, will have any expertise ``to ensure that 
the unit is cleaned properly.'' Id.
    The commenters also state that facilities may avoid liability for 
environmental damage discovered after the facilities have closed. 
Without CERCLA liability, state and federal taxpayers will pay the 
financial costs to clean up these facilities, while people in 
communities across the nation pay the human health and environmental 
cost associated with the contamination. Because the proposal could 
significantly reduce or even altogether eliminate facility and 
particularly generator liability at some Superfund sites, taxpayers 
will be required, through EPA-funded actions, to pay for cleanups. The 
commenters suggest that preparation of a closure procedure should be 
required and submitted to the local agency at least 90 days in advance 
of initiating closure activities. This plan would also include 
provisions to sample and potentially remediate soils in the area of the 
storage tanks and loading and/or unloading areas. The Agency can then 
have an opportunity to review and modify the provisions as necessary, 
similar to the authority for the Director to require modifications to 
the SPCC Plan if it is found to be deficient.
    Response: We explained at proposal that closure of an ECF tank 
would be addressed the same as closure of any other product tank that 
goes out of service.\73\ The tank system would not be required to 
undergo closure according to the RCRA hazardous waste regulations 
unless liquids or accumulated solids were not cleaned from the tank 
system within 90 days of cessation of operation as an ECF storage unit. 
See 72 FR at 33308. Liquids and accumulated solids removed from a tank 
system that ceases to be operated for storage/transport of ECF product 
are solid wastes. They are hazardous waste if they exhibit a 
characteristic of hazardous waste or if the ECF were otherwise listed. 
See Sec.  261.38(b)(13).
---------------------------------------------------------------------------

    \73\ We note also that analogous products are not subject to 
closure requirements.
---------------------------------------------------------------------------

    In retrospect, however, and considering the comments on this issue, 
we believe it is reasonable to require generators and burners to notify 
the RCRA regulatory authority when an ECF tank or an ECF container 
storage unit goes out of service. Therefore, the final rule includes 
this provision as a condition of the exclusion. See Sec.  261.38(f). 
The notification must state the date when the tank system or container 
storage unit is no longer used to store ECF. This information will 
enable the regulatory authority to know which units are operating under 
the conditional exclusion and to enforce the hazardous waste closure 
provisions if liquids or accumulated solids are not removed from the 
ECF tank system or ECF container storage unit within 90 days of 
cessation of operation as an ECF storage unit.

H. Financial Assurance for ECF Tanks

    Comment: Several commenters note that EPA fails to impose financial 
assurance requirements on facilities that store and burn ECF. 
Commenters argue that given the increased threat to health and the 
environment posed by the relaxed restrictions on the storage and 
burning of ECF, EPA's failure to require that such facilities maintain 
financial assurance to address potential remediation, without any 
justification in the record, is arbitrary, capricious and in violation 
of law. Although ECF that is not managed in compliance with the 
conditions would lose the exclusion and must be managed as hazardous 
waste, commenters state that there is no provision for ensuring that 
generators or burners are financially prepared to dispose of 
accumulated ECF in this event. Commenters believe that generators and 
burners should be required to provide adequate financial assurance, 
similar to the existing RCRA mechanisms, to manage ECF. Waiting until 
the ECF is mismanaged and only then imposing the applicable RCRA 
hazardous waste regulations, including the financial assurance 
regulations, may not result in adequate funds being available in the 
event that mismanagement and abandonment occurs, according to the 
commenters. Considering EPA's current focus on ensuring adequate 
financial assurance for hazardous waste facilities, commenters believe 
that the lack of coverage proposed for ECF units seems arbitrary and 
contrary to common sense. In fact, commenters note that financial 
assurance has been, and continues to be, an important part of EPA's 
verification that finances are available to close hazardous waste 
storage tanks, and not leaving the problem for local and state 
governments.
    Under the proposed ECF exclusion, industrial boiler facilities 
could manage potentially large volumes of ECF with no financial 
assurance for proper closure of the storage units and no insurance for 
third-party harm. Commenters note that EPA also proposed to revise the 
definition of solid waste (DSW) for recyclable materials, and there EPA 
recognized the necessity of requiring financial assurance for 
reclamation facilities. Commenters believe that, if facilities that 
conduct solvent distillation, metals recovery, and similar recycling 
are required to have financial assurance, then boiler facilities that 
recycle hazardous waste by burning ECF fuels must meet the same 
condition. Commenters also note that EPA's Damage Case Study in the DSW 
rulemaking includes numerous sites where organic hazardous wastes 
similar to ECF were mismanaged causing environmental harm and cleanup 
costs. EPA's rationale for financial assurance in the DSW rulemaking 
applies equally and with full force to the ECF proposal, according to 
commenters. Commenters state that there is no rational basis for 
including financial assurance in one rule on recycling and not in this 
rule.
    Response: In response to the commenter's view that financial 
assurance provisions should be required for ECF storage units given 
that the Agency proposed financial assurance provisions for reclamation 
facilities under the proposed Definition of Solid Waste (72 FR 14172), 
we note that the proposed financial responsibility conditions in that 
proposed rule only apply to hazardous secondary materials that are 
being reclaimed. Such materials are not usable in their current form 
and must be reclaimed before they can be a useful product. The 
financial assurance condition in the Definition of Solid Waste proposal 
would safeguard against the abandonment or out-of-control accumulation 
of spent materials awaiting reclamation that led to certain of the 
damage incidents involving waste reclamation. Those situations are not 
present for ECF. That is, the hazardous secondary materials must meet 
objective product specifications as-generated, and will be stored and 
otherwise managed as is fossil fuel or other organic liquids. EPA thus 
does not believe that the financial assurance provisions are 
appropriate to assure legitimate recycling and management of ECF, as is 
the case for other products.

[[Page 77980]]

I. Waiver of RCRA Closure Requirements for Tanks Storing Hazardous 
Wastes That Are Subsequently Excluded ECF

    Comment: A commenter recommends that waiver of the RCRA closure 
requirements for tanks used only to store hazardous wastes that are 
subsequently excluded as comparable fuel under Sec.  261.38(b)(14) 
should include consideration of whether there is evidence of a release 
from the tank system to surrounding soils and/or groundwater and 
whether the tank system is subject to corrective action due to prior 
releases before waiving the closure requirements.
    Response: The obligation under Sec.  264.101 to address facility-
wide corrective action at permitted facilities, which attaches at 
permit issuance, is not affected by this final rule, and remains in 
effect until corrective action at the facility is completed.\74\ Owners 
and operators of permitted and interim status facilities with 
corrective action obligations should refer to the Agency's February 25, 
2003, guidance entitled, ``Final Guidance on Completion of Corrective 
Action Activities at RCRA Facilities'' (see 68 FR 8757) for a detailed 
discussion of corrective action completion. Therefore, an owner or 
operator of a facility that manages only hazardous secondary materials 
that are excluded under this final rule, and who seeks to terminate the 
facility's permit by modifying the permit term, must still demonstrate 
as part of the permit modification request that the corrective action 
obligations at the facility have been addressed. The Agency's 
corrective action authority at such facilities is not affected by this 
rulemaking and the Agency thus retains its authority to address 
corrective action at such facilities using all authorities applicable 
prior to this rulemaking.
---------------------------------------------------------------------------

    \74\ Please note that this response is also applicable to ECF 
container storage units, and to comparable fuel storage units.
---------------------------------------------------------------------------

    At some facilities, corrective action obligations will likely 
continue to be addressed through the corrective action provisions of 
the permit. In these cases, maintenance of the permit would ensure that 
facility-wide corrective action will be addressed. Thus, in these 
cases, the permit would not be terminated by modifying the permit term, 
but would be modified to remove the provisions that applied to the now-
excluded hazardous secondary material. The facility's permit would, 
thereafter, only address corrective action.
    In other cases, however, EPA or an authorized state may have 
available an alternative federal or state enforcement mechanism, or 
other federal or state cleanup authority, through which it could choose 
to address the facility's cleanup obligations, rather than continue to 
pursue corrective action under a permit. In these cases, where the 
alternate authority would ensure that facility-wide corrective action 
will be addressed, maintenance of the permit would not be necessary.
    EPA has long taken the position that RCRA treatment, storage, and 
disposal facilities are still subject to unfulfilled corrective action 
obligations, after they cease hazardous waste treatment, storage, or 
disposal activities. The Agency discussed the issue of its corrective 
action authority to address non-SWMU-related releases at RCRA 
treatment, storage, or disposal facilities in the May 1, 1996, Advance 
Notice of Proposed rulemaking (see 61 FR 19442-3). There, the Agency 
stated, ``[g]iven the legislative history of RCRA section 3004(u), 
which emphasizes that RCRA facilities should be adequately cleaned up, 
in part, to prevent the creation of new Superfund sites, EPA believes 
that corrective action authorities can be used to address all 
unacceptable risks to human health and the environment from RCRA 
facilities. In the permitting context, remediation of non-SWMU related 
releases may be required under the ``omnibus'' authority. In other 
contexts, orders under RCRA sections 3008(h) or 7003 may require 
remedial action to address releases regardless of whether a SWMU is 
present.

IV. Rationale for Comparable Emissions

A. Appropriate Benchmark Fuel for ECF Emissions

    Comment: A commenter states that ECF emissions should be comparable 
to emissions from an industrial boiler burning natural gas rather than 
fuel oil. The commenter notes that an EPA document \75\ states that 
approximately 80% of industrial boilers burn natural gas as the primary 
fuel, and approximately 51% of U.S. industrial boiler capacity 
(measured as MMBtu/hr) uses natural gas as the primary fuel. Only 11% 
of industrial boilers with 8% of boiler capacity are fired with oil.
---------------------------------------------------------------------------

    \75\ Energy and Environmental Analysis, Inc., ``Characterization 
of the U.S. Industrial Commercial Boiler Population, May 2005, p. 2-
5.
---------------------------------------------------------------------------

    Response: Identifying the most analogous fossil fuel to ECF is a 
major consideration for establishing conditions of the exclusion for 
storage and burning. Those conditions must ensure that ECF is stored 
and burned under conditions similar to those applicable to the most 
analogous product (and that also address hazards that remain after the 
exclusion is claimed).
    The fact that most industrial boilers burn natural gas as the 
primary fuel is not a principle factor in determining the most 
analogous fossil fuel to ECF. ECF is a liquid fuel, as is fuel oil, 
that is subject to the constituent specifications and maximum viscosity 
specification for comparable fuel excluded under Sec.  261.38(a), 
except for the specifications for the 37 hydrocarbons and oxygenates. 
(In addition, ECF must also meet a minimum heating value 
specification.) Those specifications ensure that comparable fuel has 
constituent concentrations and properties relevant to burning that are 
comparable to fuel oil, a fossil fuel that also is burned in industrial 
boilers.\76\ Thus, fuel oil is the most analogous fossil fuel to ECF, 
is burned in boilers, and consequently remains a reasonable benchmark 
for comparison in determining comparability of emissions.
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    \76\ The specifications for only three compounds, benzene, 
naphthalene, and toluene, are based on concentrations in gasoline.
---------------------------------------------------------------------------

B. Impact of ECF Exclusion on Emissions of Air Pollutants

    Comment: A commenter states that the ECF exclusion will result in 
an increase in air pollutants because: (1) The vast majority of 
industrial boilers burn natural gas which is a cleaner fuel than ECF; 
and (2) ECF will be diverted from cement kilns and must be replaced 
with coal. The commenter states that a high-end estimate of the 
quantity of hazardous waste fuels that could be displaced from cement 
kilns could be 146,000 tpy rather than EPA's estimate of 48,400 tpy. In 
addition, the commenter estimates that the 146,000 tpy of hazardous 
waste fuels that could potentially be diverted from cement kilns would 
increase emissions of air pollutants when fired in natural gas boilers 
of: 16.1 tpy of toxic metals and 4,012 lb/yr of organic hazardous air 
pollutants (HAP). In addition, cement kilns would replace the diverted 
hazardous waste fuels with coal, which could increase emissions of SOx 
by as much as 6,502 tpy and NOx by as much as 4,256 tpy, according to 
the commenter. Finally, the commenter estimates that emissions of the 
greenhouse gas, CO2, could increase as much as 381,000 tpy 
because the ECF that is diverted from use as a fuel in cement kilns 
could be incinerated.
    The commenter also estimates that the ECF exclusion could result in 
as much as 292,000 tpy of hazardous waste being diverted from cement 
kilns because the typical fuel blend for cement kilns

[[Page 77981]]

prepared by commercial fuel blenders contains approximately 15 to 25% 
of hazardous secondary materials that would qualify as ECF.\77\ For 
fuel blenders to meet the specification for cement kilns, the commenter 
states that the loss of ECF will mean the possible elimination of 
certain other waste streams that require blending with higher-quality 
material, such as the hazardous secondary materials that will qualify 
as ECF. Fuel blenders estimate that they could lose other nonblendable 
hazardous wastes of a quantity that would be in a range from one-half 
up to an equal volume of lost ECF. That is, for every ton of ECF that 
is lost, the commenter believes that between one-half and one ton of 
other hazardous wastes would not be able to be blended to produce fuel 
usable at cement kilns. The commenter believes that most of the 
hazardous waste that is lost because blendable ECF fuel is no longer 
available probably would require incineration in the future. This other 
hazardous waste is lower in Btu value \78\ and may require thermal 
treatment; thus, incineration is the most likely alternative outlet for 
these hazardous wastes.
---------------------------------------------------------------------------

    \77\ Docket No. EPA-HQ-RCRA-2005-0017-0126.3, pp. 34-35.
    \78\ The commenter provides the example of a waste stream that 
may contain flammable solvents with 80% water but that, EPA 
presumes, has a heating value greater than 5,000 Btu/lb as-generated 
and is thus considered to be burned for its heating value rather 
than for destruction.
---------------------------------------------------------------------------

    Response: We would first note that the final rule allows ECF to be 
burned in cement kilns that burn hazardous waste fuels. Thus, cement 
kilns may compete with industrial boilers for ECF and can largely 
determine through their fuel pricing procedures how much ECF may be 
diverted. However, the fact that ECF may be diverted from cement kilns 
to other types of burning units is not relevant to an analysis of 
whether ECF is reasonably classifiable as a nondiscarded material. 
Nevertheless, EPA has evaluated this comment as part of its obligations 
under Executive Order 12866 to evaluate costs and benefits of major 
rules.
    The commenter's argument that burning ECF as a replacement for 
natural gas in boilers will result in an increase in emissions of toxic 
metals is derived from assuming that ECF contains the maximum levels of 
metals allowed by the comparable fuel specifications provided in Table 
1 to Sec.  261.38 and that the emissions will be uncontrolled. While 
this may be theoretically possible (it is in fact enormously unlikely 
that every constituent would be present at the maximum level), it 
simply reflects that facilities can choose which fuel to burn in their 
boilers: Natural gas, fuel oil, coal, or other fuels, including 
comparable fuel or ECF. The comparable fuel specifications for metals 
apply to ECF and ensure that comparable fuel and ECF contain toxic 
metals at no higher concentrations than found in fuel oil. Thus, 
burning ECF in lieu of natural gas will result in emissions of toxic 
metals no greater than if a boiler decides to burn fuel oil in lieu of 
natural gas.
    Also, the commenter's argument that burning ECF as a replacement 
for natural gas in boilers will result in an increase in emissions of 
organic HAP is derived from comparing AP-42 emission factors \79\ for 
fuel oil and natural gas. As discussed above, facilities can choose 
which fuels to burn in their boilers. The fact that burning fuel oil, 
or ECF with emissions comparable to fuel oil, in lieu of natural gas or 
coal may result in higher or lower emissions of air pollutants has no 
bearing on whether hazardous secondary materials should be excluded 
from the definition of solid waste if they are managed similar to 
fossil fuels, their emissions are comparable to those from burning fuel 
oil, and they are physically identical with respect to most hazardous 
constituents (and there is no aspect of discard in other management 
phases, e.g., storage and transport).
---------------------------------------------------------------------------

    \79\ See http://www.epa.gov/ttn/chief/ap42/.
---------------------------------------------------------------------------

    Potential Increase in NOX and SOX Emissions. The commenter's 
argument that there will be an increase in SOX and 
NOX emissions is premised on the need for cement kilns to 
replace the hazardous secondary materials that will be excluded as ECF 
with coal.\80\ SOX emissions will increase if coal contains 
higher concentrations of sulfur than ECF. The commenter believes that 
NOX emissions will increase because burning hazardous 
secondary materials in cement kilns reduces the formation of thermal 
NOX (i.e., the hazardous secondary material changes the 
shape of the flame and reduces flame temperatures, thus reducing 
NOX formed at high temperatures from the nitrogen in air). 
In response, we note that the state regulatory authority will determine 
under the State Implementation Plan (SIP) if any increase in emissions 
of either SO2 or NO2 must be further controlled 
pursuant to the area's attainment or maintenance of the relevant 
National Ambient Air Quality Standard (NAAQS).
---------------------------------------------------------------------------

    \80\ We note that SO2 and NO2 are criteria 
air pollutants for which EPA has established NAAQS. In addition, 
NOX emissions are precursors for ground-level ozone (also 
a criteria pollutant controlled with a NAAQS), and both 
NOX and SOX contribute to fine particulates 
(i.e., PM2.5), a criteria pollutant that is also controlled with a 
NAAQS.
---------------------------------------------------------------------------

    Nonetheless, we have estimated the increase in NOX and 
SOX emissions at cement kilns that may be caused by the 
diversion of ECF from cement kilns to boilers, and the cost of 
controlling those emissions so that there is no net increase in 
emissions.81 82 Although we estimated at proposal that 
48,400 tpy of ECF could be diverted from cement kilns, the commenter 
has estimated that as much as 292,000 tpy \83\ of hazardous secondary 
materials may be diverted. Consequently, we estimated the impacts of 
the exclusion considering that range of diverted materials.\84\
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    \81\ See USEPA, ``Comment Response Document for the Expansion of 
the Comparable Fuels Exclusion,'' October 2008, Section 4.1.
    \82\ We note that these costs may not be incurred if the state 
regulatory authority under the SIP determines that the increase in 
SOX emissions will not result in an exceedance of the 
NAAQS.
    \83\ The commenter states that as much as 146,000 tpy of 
hazardous secondary materials may be diverted from cement kilns as 
ECF, and that another 146,000 tpy of hazardous waste may be diverted 
to incinerators because the wastes can no longer be blended with the 
higher quality hazardous secondary materials (i.e., ECF) to meet the 
fuel specifications for cement kilns.
    \84\ We reiterate that we conducted this analysis to meet our 
obligations under Executive Order 12866 to evaluate costs and 
benefits of major rules. These impacts have no bearing on whether 
ECF is a ``solid waste.''
---------------------------------------------------------------------------

    Regarding NOX emissions, we have determined in the study 
that the commenter used as an example of the potential increase in 
NOX emissions may not accurately represent the impact of 
reducing the ECF firing rate on NOX emissions. The study 
involved NOX emissions testing at a cement facility under 
two test conditions where coal was fired with and without hazardous 
waste fuel. The tests showed a substantial decrease in NOX 
(and SOX) emissions when hazardous waste fuel was fired at a 
50 percent mass input rate. Other key parameters that can affect 
NOX emissions also varied during those tests, however: The 
type of coal and the raw material composition. Those parameters may 
affect the excess air requirements, flame temperature, and flame 
profile, which can affect NOX emissions. Consequently, we 
conducted an independent analysis of the impact on NOX 
emissions of reducing the hazardous waste fuel firing rate using 
NOX equilibrium calculations to assess flame temperatures 
and the resultant impact on NOX formation. We determined 
that NOX emissions may increase by a total of 130 to 530 tpy 
nationwide for the 20 cement kilns burning hazardous waste fuels. Given 
the small average increase in NOX

[[Page 77982]]

emissions at each kiln (i.e., from 7-27 tpy), we believe the emission 
reductions could be achieved without significant cost by minor 
adjustments to boiler operating parameters, such as operating at a 
fractionally lower oxygen concentration.
    Regarding SOX emissions, we note that the higher sulfur 
content of the coal that may replace ECF is not likely to increase 
SOX emissions at eight of the 20 kilns that burn hazardous 
waste. That is, eight of the kilns are preheater/precalciner kilns 
where SOX emissions attributable to fuels are scrubbed from 
the combustion gas by the limestone as the combustion gas passes 
through the preheater/precalciner cyclones. The remaining 12 long wet 
or long dry kilns do not provide this scrubbing effect, however, and 
fuel-related sulfur will result in an increase in SOX 
emissions. We estimate that SOX emissions will increase by 
570 tpy nationwide under our estimate that 48,400 tpy of ECF may be 
diverted, and by 2,300 tpy under the commenter's estimate that 292,000 
tpy of ECF may be diverted. To control these SOX emissions, 
we have estimated that the annualized cost of dry scrubbing would range 
from $1.1 million to $1.7 million. We have revised our economic impact 
analysis of the ECF exclusion to account for these costs.
    Potential Increase in CO2 Emissions. Finally, we do not accept the 
commenter's argument that emissions of the greenhouse gas 
CO2 (an air pollutant under the Clean Air Act) could 
increase because ECF is diverted from use as a fuel in cement kilns. 
Although the commenter explains that hazardous waste fuels that have 
high water or ash content must be blended with higher quality waste 
fuels, such as ECF, to meet the commercial specifications for cement 
kiln fuels, the heating value of those lower quality fuels nonetheless 
provides useful heat input to the cement kiln.\85\ If those low quality 
fuels can no longer be blended to produce cement kiln fuel because 
there is less high quality fuel available because of the ECF exclusion, 
those low quality fuels may be diverted to hazardous waste 
incinerators. Those fuels will not be simply treated for destruction by 
incineration, however. Those fuels will provide useable heat energy to 
treat other hazardous wastes with little or negative heating value, 
thus reducing the incinerator's need to provide supplemental heat input 
from fossil fuel (e.g., natural gas). This is the same role that (we 
presume) those lower quality fuels played in cement kilns--providing 
useable heat to displace fossil fuel. Thus, there should not be an 
increase in CO2 emissions.
---------------------------------------------------------------------------

    \85\ Note: If these lower quality fuels are not themselves fuels 
prior to blending such that burning in a cement kiln would be 
destruction, as opposed to providing heat input, then blending these 
lower quality fuels with high quality fuels at a cement kiln would 
constitute ``sham'' recycling. This would raise the question of 
whether the clinker product is derived-from hazardous waste.
---------------------------------------------------------------------------

C. Assurance of 99.99% DRE of ECF Constituents

    Comment: Several commenters state that the conditions for burning 
ECF are not adequate to ensure 99.99% DRE. Specifically, commenters 
question why hazardous waste combustors are subject under MACT and RCRA 
to a DRE emissions demonstration and limits on multiple operating 
parameters (e.g., minimum combustion chamber temperature; indicator of 
maximum gas flowrate; waste feedrate limits) if 99.99% DRE can be 
assured simply by complying with the conditions for burning ECF.
    A commenter notes further that EPA states that the two primary 
operating conditions to ensure 99.99% DRE and good combustion are that 
CO levels remain below 100 ppmv and that ECF is fired into the flame of 
the primary fuel. EPA states that ECF must be fired into the flame of 
the primary fuel to avoid total ignition failure whereby low CO levels 
may not ensure good combustion.\86\ Yet, the commenter notes that the 
exclusion does not require the burner to document that, in fact, ECF is 
fired into the flame zone so that CO will be a valid indicator of good 
combustion. Another commenter that is generally in favor of the 
exclusion questions why the other burner operating conditions are 
needed if the two primary operating conditions are to maintain CO 
emissions below 100 ppmv and to fire ECF into the flame zone of the 
primary fuel.
---------------------------------------------------------------------------

    \86\ Under total ignition failure, CO may be low because the 
fuel is not combusted. Rather, the fuel is simply volatilized, 
resulting in high hydrocarbon emissions.
---------------------------------------------------------------------------

    Response: ECF Conditions Ensure 99.99% DRE. The boiler operating 
conditions for burning ECF are provided under Sec.  
261.38(c)(2)(ii)(C). The principal operating conditions that ensure 
good combustion are: (1) Continuous monitoring of CO emissions to 
ensure that levels remain below 100 ppmv; and (2) firing the ECF into 
the flame of the primary fossil fuel, which must comprise at least 50% 
of the boiler's fuel requirements. The ECF boiler operating conditions 
are less rigorous (at least facially) than requirements to ensure 
99.99% DRE for hazardous waste combustors under the MACT standards of 
40 CFR Part 63, Subpart EEE and the RCRA standards of 40 CFR Part 264, 
Subpart O, and Part 266, Subpart H. Those hazardous waste combustor 
requirements include a requirement to conduct a DRE emission test and 
to establish operating limits on several parameters based on the levels 
achieved during the DRE test.
    A demonstration test that an ECF boiler is achieving 99.99% DRE is 
not needed, however, because the ECF boiler design and operating 
conditions ensure that 99.99% DRE will be achieved.\87\ Because 99.99% 
DRE is assured, the operating limits that must be established for 
hazardous waste combustors under a DRE demonstration test to ensure 
that DRE is maintained are not needed for ECF boilers. As explained at 
proposal (72 FR at 33294), EPA concluded from substantial boiler 
testing in the mid-1980's that boilers cofiring hazardous waste fuels 
with fossil fuels where the hazardous waste provides less than 50 
percent of the boiler's fuel requirements and CO levels remain below 
100 ppmv can achieve 99.99% DRE under a wide range of operating 
conditions (e.g., load changes, waste feed rate changes, excess air 
rate changes). Based on that testing (which is fully documented in the 
record to the 1991 boiler and industrial furnace rulemaking (56 FR 
7134, Feb. 21, 1991), and has been added to the docket for this rule), 
EPA promulgated a provision in the Boiler and Industrial Furnace final 
rule whereby the DRE demonstration (and associated operating limits) 
are waived for boilers burning hazardous waste. See Sec.  266.110. The 
ECF boiler conditions in this rule are equivalent to the hazardous 
waste boiler provisions for waiving the DRE demonstration.\88\ Thus, 
the ECF boiler

[[Page 77983]]

conditions will also ensure that (at least) 99.99% DRE is achieved.
---------------------------------------------------------------------------

    \87\ Please note that we are referring to DRE of an organic 
compound in a feedstream, not the effective, measured DRE of 
compounds that are common PICs, even under good combustion 
conditions. If DRE is measured for compounds that are common PICs 
(e.g., benzene, toluene, naphthalene, and phenol), and those 
compounds are fed at low rates, the amount of the compound present 
as a PIC may be large enough relative to the amount of the unburned 
compound contributed by the feed such that less than 99.99% 
effective DRE may be measured.
    \88\ The ECF boiler conditions are actually more stringent than 
the requirements for waiving the DRE demonstration for hazardous 
waste boilers. ECF may not be burned in process heaters because of 
concern that combustion gas may be quenched to cool the gas to 
provide temperatures needed to heat process fluids appropriately, 
such that the temperature quench may preclude complete combustion of 
organic compounds and emissions would no longer be comparable. In 
addition, the ECF cannot exceed a particle size of 200 mesh (74 
microns) to ensure good combustion, while the DRE waiver for 
hazardous waste boilers requires that only 70% of particles pass a 
200 mesh screen.
---------------------------------------------------------------------------

    A Demonstration That ECF Is Fired into the Flame Zone Is Needed. We 
agree with the commenter, however, that an ECF boiler should be 
required to document that ECF is, in fact, fired into the flame zone of 
the primary fuel, thus ensuring that CO is a valid indicator of good 
combustion (i.e., that CO is not low simply because ECF is not being 
combusted). If ECF were inadvertently not fired into the flame zone of 
the primary fuel, CO levels could be low even though hydrocarbon (HC) 
emissions could be high. Organic compounds in the feed could be simply 
volatilized rather than combusted, vitiating emission comparability. 
Although it is unlikely that ECF would not be fired into the primary 
fuel flame zone (which is necessary for the boiler to derive the full 
heating value from the fuel), this situation could potentially occur 
due to poor design or installation of the ECF firing system. 
Accordingly, the final rule requires the burner to document by 
information or testing that ECF will be fired directly into the primary 
fuel flame zone. The documentation must be included in the initial 
notification to the RCRA and CAA regulatory authorities. See Sec.  
261.38(c)(5)(i)(H).
    A one-time HC test when burning ECF under reasonable worst-case 
conditions demonstrating that HC levels are below 10 ppmv, while CO is 
below 100 ppmv, would be one way to make the demonstration. A HC level 
of 10 ppmv or below is indicative of good combustion conditions and is 
the MACT emission standard for hazardous waste boilers. 70 FR at 59462-
63. Operating conditions during the HC test should include: (1) The 
highest ECF firing rate anticipated; (2) the lowest ECF heating value 
anticipated; (3) the lowest primary fuel firing rate and heating value 
anticipated; and (4) the lowest boiler load anticipated. Although we 
have revised our economic impacts analysis for the exclusion to account 
for the cost of a one-time HC test for all boilers burning ECF, 
information other than HC testing could be used to document that ECF is 
fired into the primary fuel flame zone. That is, HC testing is not 
required if other documentation can be provided to show that the ECF is 
fired into the primary fuel flame zone. For example, documentation 
could be provided that the ECF is fired in the same firing system 
(e.g., via concentric firing nozzles) as primary fuel.

D. Use of Available Emissions Data To Document ECF Emissions Will Be 
Comparable to Fuel Oil Emissions

    Comment: A commenter states that EPA's analysis purporting to 
document that emissions from burning ECF will be comparable to 
emissions from burning fuel oil in an industrial boiler is riddled with 
flaws.
    Response: Although we address each of the commenter's major 
concerns below,\89\ we acknowledge that, absent a robust data base, 
stakeholders could reasonably have opposing views on the issues. 
Nonetheless, we believe that our technical evaluation at proposal was 
reliable. However, we note that the issue of whether available data 
support a finding that ECF emissions will be comparable to fuel oil 
emissions has been superseded by including conditions in the final rule 
that establish a feedrate limit for each ECF constituent. The feedrate 
limits provide objective assurance that emissions from a boiler burning 
ECF will be comparable to emissions from a boiler burning fuel oil. See 
discussion in Part Three, Section III.B.3 above.
---------------------------------------------------------------------------

    \89\ We provide responses to all of the commenter's concerns in 
USEPA, ``Comment Response Document for Expansion of the Comparable 
Fuel Exclusion,'' October 2008, Section 4.
---------------------------------------------------------------------------

1. Use of Hazardous Waste Boiler Emissions Data
    Comment: The commenter states that, absent emissions data from 
burning ECF in industrial boilers, EPA uses hazardous waste boiler 
emissions data as a surrogate. This is an indirect comparison, however, 
filled with huge data gaps.
    Response: Hazardous waste boiler emissions data are a reasonable 
surrogate for ECF boiler emissions data because the combustion of 
organic compounds in ECF will be controlled by conditions on ECF 
burners that are at least as stringent as the controls on hazardous 
waste boilers. 72 FR at 33291. Although hazardous waste boiler 
emissions data are an indirect comparison, we believe they are still a 
valid comparison. We respond to the commenter's concerns about data 
gaps below.
2. Concern That EPA's Oil Emissions Data Base Has Emissions Data for 
Only 12 of 37 ECF Constituents
    Comment: The commenter states that EPA's oil emissions data base 
contains data on only 12 of the 37 hydrocarbons and oxygenates listed 
in Table 1 to Sec.  261.38 for which the specifications would no longer 
apply. Absent a fuel oil emissions benchmark, EPA cannot conclude that 
ECF emissions are comparable, according to the commenter.
    Response: As discussed above in Part Three, Section III.B.3, the 
final rule establishes feedrate conditions for each ECF constituent 
that will ensure that ECF emissions are comparable to fuel oil 
emissions. The feedrate conditions are established by back-calculating 
from industrial boiler fuel oil emission levels (or surrogate emission 
levels) using projected destruction and removal efficiencies. We have 
oil emission levels for 12 ECF constituents and establish surrogate oil 
emission levels for the remaining ECF constituents. Those surrogate 
emission levels are representative of oil emission levels (for the 
PAHs) and, for the oxygenates, are reasonable surrogates that result in 
de minimis health risk.\90\
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    \90\ We note that the fuel oil emission level for acrolein 
(i.e., 18 ug/dscm) may result in maximum annual average ground level 
concentrations that approach the reference air concentration (RfC) 
(as may occur when boilers burn fuel oil). Although we use the 
acrolein oil emission level as a surrogate emission level for the 
other ECF oxygenates, maximum annual average ground level 
concentrations for those other oxygenates will be orders of 
magnitude below their RfCs.
---------------------------------------------------------------------------

3. Concern That EPA's Oil Emissions Data Base Is Too Sparse To 
Establish Benchmarks
    Comment: The commenter states that, of the 12 ECF constituents for 
which EPA has oil emissions data, data for seven of the constituents 
are too sparse to establish a benchmark. That is, for seven of the ECF 
constituents, oil emissions data are available for only one or two 
boilers, and are insufficient to establish a benchmark. The commenter 
believes that EPA then compounds the problem of too few data by using a 
95th percentile as the benchmark for comparison to the hazardous waste 
boiler emissions data.
    Response: We believe it is reasonable to use the available oil 
emissions data for these 12 ECF constituents. We also note, however, 
that because the limited oil emissions data are not likely to represent 
the total range of oil emissions data, we use the highest test 
condition average for these 12 ECF constituents to establish the ECF 
constituent feedrate limits discussed above in Part Three, Section 
III.B.3.
4. Concern That EPA Did Not Evaluate the Oil Emissions Data Base for 
Probable Outliers
    Comment: The commenter states that the oil emissions data used as 
benchmarks may overstate emission levels given that the Agency did not 
evaluate the data for outliers.

[[Page 77984]]

    Response: We concur that an outlier analysis should be performed on 
the oil emissions data for the ECF constituents where sufficient data 
are available to identify high outliers. We performed that analysis for 
the final rule and determined that the highest test condition for 
toluene has a run variance that is a high outlier, even though the test 
condition average is not a high outlier relative to the other test 
condition averages.\91\ Consequently, the highest test condition 
average for toluene is 120 ug/dscm, rather than 350 ug/dscm.
---------------------------------------------------------------------------

    \91\ See USEPA, ``Final Technical Support Document for the 
Expansion of the Comparable Fuels Exclusion,'' November 2008, 
Section 6.3.
---------------------------------------------------------------------------

5. Concern That the Level of Detection Is Needed for Nondetect Data 
Points in the Hazardous Waste Boiler Data Base
    Comment: The commenter states that EPA should present the level of 
detection for hazardous waste boiler emissions data that are reported 
as nondetect. If the level of detection for the hazardous waste boiler 
emissions for an ECF constituent is higher than the oil emissions 
benchmark, the Agency cannot conclude that emissions are comparable, 
according to the commenter.
    Response: The level of detection for the nondetect data in the 
hazardous waste boiler emissions data base is not readily available. 
While we agree that this is a limitation of the data base, the level of 
detection for the hazardous waste boiler emissions data would be 
helpful only if it were below the highest oil emission data level for 
an ECF constituent. As the commenter notes, if the level of detection 
were higher than the oil emissions data, we would not know whether the 
hazardous waste boiler emissions level were higher or lower than the 
oil emissions level. Moreover, as noted previously, our analysis 
comparing hazardous waste boiler emissions data (as a surrogate for ECF 
emissions data) to fuel oil emissions data has been superseded in the 
final rule by establishing feedrate limits for each ECF constituent. 
The feedrate limits provide objective assurance that the ECF emissions 
will be comparable to the fuel oil emissions.
6. Concern Regarding the Concentration of ECF Constituents in Hazardous 
Waste Boiler Fuels
    Comment: The commenter states that the concentration of ECF 
constituents in the hazardous waste boiler fuels must be provided to 
determine whether hazardous waste boiler emissions are comparable to 
the fuel oil emissions. The commenter believes that, given that 
emissions will increase as feeds increase, it is important to know 
whether the hazardous waste feeds had the same concentrations of ECF 
constituents as allowed for ECF (i.e., 100%). EPA must establish 
concentration limits for each ECF constituent consistent with the 
hazardous waste fuel concentrations that document comparable emissions, 
according to the commenter.
    Response: We agree that emissions of ECF constituents can be 
expected to increase with increased feedrate. To address this concern, 
the final rule establishes a feedrate limit for each ECF constituent 
that will ensure that emissions of those constituents from a boiler 
burning ECF are comparable to emissions of those constituents from a 
boiler burning fuel oil. As mentioned above, these feedrate limits 
provide objective assurance of comparable emissions and effectively 
supersede our analysis comparing hazardous waste boiler emissions with 
oil emissions.
7. Concern Whether EPA Has Adequately Considered PIC Emissions
    Comment: The commenter states that the hazardous waste boiler 
emissions (as a surrogate for ECF emissions) document that emissions of 
PICs that are not ECF constituents are higher than the emissions from 
oil-fired boilers.
    Response: At proposal, we examined each compound that our data base 
indicated may be emitted by hazardous waste boilers at levels higher 
than fuel oil boilers and explained why the seeming exceedance should 
not be considered as documentation that ECF emissions are not 
comparable to oil emissions.\92\ The reasons for explaining the 
exceedances include: (1) Dichloromethane is a common lab contaminant; 
(2) ethyl benzene and phenathrene were emitted at de minimis levels 
(i.e., neither were emitted at concentrations above 8 ug/dscm); and (3) 
the hazardous waste boilers were often not operated under the stringent 
conditions that will be required for ECF boilers, such that combustion 
conditions may have been less than optimum resulting in higher 
emissions than will result from ECF burning.
---------------------------------------------------------------------------

    \92\ See USEPA, ``Draft Technical Support Document for the 
Expansion of the Comparable Fuels Exclusion,'' May 2007, Section 
5.5.1.
---------------------------------------------------------------------------

    Nonetheless, we agree with the commenter that PIC emissions must be 
considered in making a finding that ECF emissions will be comparable to 
oil emissions. For the final rule, we have objectively accounted for 
PIC emissions in establishing a feedrate limit for each ECF 
constituent. See discussion above in Part Three, Section III.B.3.

V. Conditions for Burning ECF

A. Applicability of ECF Exclusion to Other Combustors

    Comment: Several commenters state that combustors other than 
watertube boilers that are not stoker-fired should be allowed to burn 
ECF, such as: hazardous waste combustors (HWCs) operating under a RCRA 
permit, process heaters, thermal oxidizers, fire tube boilers, and 
stoker-fired boilers. Several commenters also state that EPA should 
allow ECF to be burned in the same types of combustion units allowed to 
burn existing comparable fuel.\93\
---------------------------------------------------------------------------

    \93\ Under Sec.  261.38(b)(3)(i) of the final rule, comparable 
fuel must be burned in a hazardous waste incinerator operating under 
a RCRA permit, an industrial furnace, or an industrial or utility 
boiler.
---------------------------------------------------------------------------

    Response: We agree with the commenters that state that the 
exclusion should allow ECF to be burned in HWCs. Therefore, the final 
rule allows ECF to be burned in HWCs (i.e., incinerators, cement kilns, 
lightweight aggregate kilns, boilers (including stoker-fired boilers, 
firetube boilers, and process heaters), and halogen acid production 
furnaces) operating under a RCRA permit,\94\ provided the ECF is burned 
under the operating requirements that would be applicable if the ECF 
were a hazardous waste. See Sec.  261.38(c)(2)(i). Thus, the operating 
requirements applicable to the hazardous waste will apply to burning of 
ECF as a fuel (as a condition of the exclusion) in lieu of the ECF 
burner operating conditions under Sec.  261.38(c)(2)(ii), with one 
exception. The ECF feedrate limits under Sec.  261.38(c)(2)(ii)(C) 
continue to apply to HWCs. Although the RCRA and CAA operating 
requirements applicable to hazardous waste ensure 99.99 percent DRE and 
good combustion conditions, the ECF constituent feedrate limits are 
also needed to ensure that ECF emissions from HWCs will be comparable 
to fuel oil emissions (for the same reasons the feedrate limits are 
needed for ECF boilers).\95\ \96\ In addition,

[[Page 77985]]

to implement the ECF constituent feedrate limits, the ECF automatic 
feed cutoff system requirements under Sec.  261.38(c)(2)(ii)(G) that 
apply to monitoring the constituent feedrate limits as specified under 
Sec.  261.38(c)(2)(ii)(G)(1)(ii) also apply to HWCs.
---------------------------------------------------------------------------

    \94\ Although all hazardous waste combustors must obtain a RCRA 
operating permit, the principal substantive operating requirements 
derive from the NESHAP under Subpart EEE, Part 63. As a condition of 
the exclusion, ECF must be burned under all of the operating 
requirements applicable to hazardous waste, whether they derive from 
the NESHAP or RCRA (e.g., RCRA requirements for startup, shutdown, 
and malfunctions).
    \95\ Even though the ECF burner operating conditions under Sec.  
261.38(c)(2)(ii) ensure 99.99% DRE and good combustion, the feedrate 
limits under paragraph (c)(2)(ii)(C) are needed to ensure that ECF 
emissions are comparable to fuel oil emissions because combustion is 
generally a constant percent reduction process. The greater the 
constituent feedrate, the greater the (residual) emission rate of 
the constituent.
    \96\ HWCs must comply with the ECF constituent feedrate limit 
conditions because the generator has claimed the exclusion for ECF 
and realized some benefits of the exclusion (e.g., waived closure 
requirements; no hazardous waste manifest). The other substantive 
benefits of the ECF exclusion that accrue to off-site ECF burners 
(e.g., no RCRA permit requirement for the storage unit or combustor; 
no closure or financial assurance requirements) may not be realized 
by HWCs, however, because the HWC is already subject to those 
controls. Of course, if the generator did not claim the exclusion, 
the ECF constituent feedrate conditions would not apply to the HWC.
---------------------------------------------------------------------------

    Several other commenters suggest that the rule allow ECF to be 
burned in a RCRA-permitted hazardous waste combustor under the CO 
monitoring condition only. These commenters believe that the other 
hazardous waste operating requirements should not apply. These 
commenters state that ECF should be allowed to be burned, for example, 
during startup or shutdown, provided that the CO limit of 100 ppmv is 
met. We disagree. Complying with the CO condition alone may not ensure 
99.99 percent DRE and good combustion. We note that hazardous waste may 
be burned in a hazardous waste combustor during startup and shutdown 
provided that the combustor is operating under the operating limits in 
the permit. Those operating limits include operating parameters (e.g., 
minimum combustion chamber temperature) in addition to a CO limit of 
100 ppmv to ensure 99.99 percent DRE and overall good combustion. 
(Those other operating limits for hazardous waste combustors (i.e., 
other than the CO limit of 100 ppmv) help ensure good combustion of 
hazardous waste just as the other ECF burner conditions help ensure 
good combustion of ECF.) Therefore, the hazardous waste combustor 
operating requirements for hazardous waste must apply at all times that 
ECF is burned.
    Commenters stating that other combustors, including those that are 
eligible to burn comparable fuel (i.e., other than hazardous waste 
combustors operating under requirements applicable to hazardous waste), 
should be allowed to burn ECF did not provide adequate supporting 
information that such combustors would achieve 99.99% DRE and good 
combustion conditions. We acknowledge that many types of combustors can 
achieve 99.99% DRE and good combustion conditions when burning 
hazardous waste fuels or ECF under various conditions, under the 
regulatory oversight provided by an operating permit program (which 
among other things, establishes site-specific parametric monitoring 
requirements to assure that the source continues operating under the 
conditions of the successful trial burn). We are concerned, however, 
that these combustors may not always be able to achieve 99.99% DRE and 
good combustion conditions under all situations when complying with the 
ECF operating conditions under the exclusion. We explained at proposal 
that there is a greater potential for poor distribution of combustion 
gases and localized cold spots in firetube and stoker boilers that can 
result in poor combustion conditions. 72 FR at 33294. Although a 
commenter states that modern firetube boilers equipped with modern 
controls do not have the potential for cold spots and poor combustion, 
the commenter did not suggest how we could distinguish such modern 
firetube boilers from others, and did not indicate whether those 
boilers could operate efficiently under a wide range of conditions 
(e.g., boiler load). Similarly, another commenter states that their 
process heaters do not quench the combustion gas to reduce gas 
temperatures to avoid overheating a process fluid, a concern we 
expressed at proposal that could adversely affect combustion efficiency 
by interrupting the complete combustion of organic compounds. 72 FR at 
33294. The commenter did not suggest, however, how we could distinguish 
between process heaters that may quench the combustion gas and those 
that do not.

B. EPA's Approach To Identify Feedrate Limits for ECF Constituents

    Comment: A commenter argues that the approach EPA discussed at 
proposal to establish feedrate limits--back-calculating from oil 
emission levels using projected DREs--is flawed. The commenter believes 
that EPA has no basis to assume the projected DREs will be achieved by 
boilers burning ECF, given that the only operating control is for 
carbon monoxide. The commenter notes that DRE performance also depends 
on other key operating conditions, such as the maximum demonstrated 
waste feed rate, minimum combustion temperature, maximum combustion gas 
velocity, minimum atomization pressure, and other operating parameters 
that are defined based on performance tests.
    In addition, the commenter notes that EPA has oil emissions data 
for only 12 ECF constituents and states that the de minimis emission 
level established for the remaining constituents is nothing more than 
an arbitrary guess. The commenter also states that the maximum 
allowable emission levels should be based on the average oil emissions, 
not the highest test condition average.
    Finally, another commenter states that it is surprising that EPA 
establishes a de minimis emission level as high as 20 ug/dscm given 
that several emissions standards for hazardous waste combustors (HWCs) 
established under CAA section 112(d)(3) (MACT standards) are lower than 
this level. 40 CFR Part 63, Subpart EEE. For example, the commenter 
notes that the HWC MACT standard for new boilers for mercury is 6.8 ug/
dscm, and the standards for new incinerators are 8.1 ug/dscm for 
mercury and 10 ug/dscm for semivolatile metals.
    Response: We use the same general approach for the final rule that 
we proposed. We establish a feedrate limit for each ECF constituent, 
expressed as a gas flowrate-normalized feedrate limit, that is back-
calculated from the fuel oil emission level (or surrogate emission 
levels) for each constituent using a projected DRE. The fuel oil 
emission level is the highest test condition average for that 
constituent in the oil emissions database, or a surrogate emission 
level where oil emissions data are not available. The DRE for each 
constituent is projected considering the thermal stability of the 
constituent and whether the constituent is a common PIC. See discussion 
in Part Three, Section II.B.3 above.
    We disagree with the commenter's views that 99.99 percent DRE 
cannot be projected for ECF constituents. We have explained that the 
extensive ECF boiler design and operating conditions will ensure good 
combustion and a minimum of 99.99 percent DRE for the ECF constituents 
in the feed.\97\ See

[[Page 77986]]

discussion in Part Three, Section III.B.3 above.
---------------------------------------------------------------------------

    \97\ Please note that, although we project DREs of less than 
99.99% for ECF constituents that are commonly formed as PICs, the 
feed-related DREs for these ECF constituents are 99.99% or higher. 
That is, the DRE of the compound in the feed is at least 99.99%. 
(The conditions on burning are at least equivalent to the controls 
on hazardous waste boilers that ensure 99.99% DRE under Sec.  
266.110.) The measured or apparent DRE, however, can be lower than 
99.99% for these compounds because, at low feedrates of the 
compound, the PIC contribution of the compound from the destruction 
of other compounds can provide a significant contribution to 
emissions relative to the residual from 99.99% destruction of the 
compound in the feed.
---------------------------------------------------------------------------

    In response to the commenter's views on the de minimis emission 
levels we discussed at proposal, we have revised our approach to 
identify surrogate emission levels for ECF constituents for which we do 
not have oil emissions data. See discussion above in Part Three, 
Section III.B.3. For the final rule, we identify a surrogate emission 
level of 0.02 ug/dscm for the two PAHs for which we do not have oil 
emissions data, and a surrogate emission level of 18 ug/dscm for the 
oxygenates for which we do not have oil emissions data. Consequently, 
we are not identifying de minimis emission levels.
    Finally, we also disagree with the commenter's view that the 
maximum allowable emission level for the 12 ECF constituents for which 
we have oil emissions data should be based on the average oil emissions 
rather than the highest test condition average. We have explained 
previously why it is reasonable to establish the allowable emission 
levels for these constituents as the highest test condition average 
rather than another metric, such as the average test condition average 
or the 95th percentile test condition average. See Part Three, Section 
II.B.3 above.

C. Use of WMPT To Rank ECF Constituents According to Hazard Potential

    Comment: Several commenters argue that EPA's use of the WMPT 
methodology to rank ECF constituents by their hazard potential is 
flawed because it does not assess exposure.
    Response: As stated at proposal, our hazard ranking effort was not 
a full quantitative risk assessment, but rather a screening-level 
ranking of hazardous compounds based on potential chronic (i.e., long-
term) risks to human health and the environment. 72 FR at 33318. As 
such, we consider it appropriate to apply the WMPT's use of a small 
number of relatively simple measures (i.e., combination of 
bioaccumulation and persistence factors) to represent the exposure 
potential of each chemical.
    Moreover, we note that the final rule does not rely on the WMPT-
based hazard ranking procedure to support maintaining the comparable 
fuel specifications for the PAHs and naphthalene and for establishing 
special firing rate limits for benzene and acrolein, as proposed. 72 FR 
at 33299-301. Because the final rule establishes a feedrate limit for 
each ECF constituent which provides objective assurance that emissions 
of ECF constituents from ECF burners will be comparable to emissions 
from fuel oil boilers, the proposed restrictions on PAHs, naphthalene, 
benzene, and acrolein are not included in the final rule.

D. Request To Expand Primary Fuel Condition

    Comment: Several commenters state that fuels other than fossil 
fuel, fuel derived from fossil fuel, or tall oil having a minimum 
heating value of 8,000 Btu/lb should be allowed as primary fuel to meet 
the condition that ECF must be cofired with at least 50 percent primary 
fuel. Commenters state that the following fuels should also be 
considered primary fuel: Comparable fuel excluded under Sec.  
261.38(a)(1); hydrogen gas, and alcohol fuels.
    Response: To consider other fuels as a primary fuel, we would need 
information describing their fuel-related properties given that we rely 
on the primary fuel to provide the hot, stable flame needed to ensure a 
99.99% DRE and good combustion. For example, we would need to know the 
range of most of the parameters defined by the proximate and ultimate 
analyses of the fuels, as well as their viscosity. Commenters did not 
provide any description of ``hydrogen gas'' or ``alcohol fuels.'' 
Consequently, we cannot assess whether these fuels should be considered 
primary fuel.
    We agree with commenters, however, that comparable fuel excluded 
under Sec.  261.38(a)(1) should be allowed as a primary fuel, provided 
that the as-fired heating value is at least 8,000 Btu/lb, consistent 
with the minimum heating value requirement for the other primary fuels. 
Given that existing comparable fuel has a composition and physical 
properties related to combustion that are the same as fuel oil, it is 
reasonable to consider it a primary fuel, provided the as-fired heating 
value is at least 8,000 Btu/lb.

E. Minimum Primary Fuel Firing Rate

    Comment: Several commenters state that the proposed minimum 50 
percent firing rate for primary fuel should be reduced. One commenter 
suggested that the minimum primary fuel firing rate requirement should 
be reduced to 20 percent, while other commenters argued that there 
should be no minimum primary fuel firing rate requirement.
    In addition, a commenter states that EPA failed to support the 
primary fuel firing rate requirement with data or a sound basis. The 
commenter believes that, because ECF must have a heating value of at 
least 8,000 Btu/lb and can exceed the comparable fuel specifications 
solely for hydrocarbons and oxygenates, there is no reason that the ECF 
firing rate should be limited at all.
    Another commenter notes that most boilers use a primary fuel, such 
as natural gas, for startup, but then switch to other, nonfossil fuels 
after steady-state conditions are attained. These boilers easily 
maintain compliance with the RCRA standards for hazardous waste 
boilers, including very low CO levels (e.g., below 3 ppmv), according 
to the commenter.
    Response: As discussed at proposal, EPA conducted a program of 
parametric testing in the mid-1980s of boilers burning waste fuels to 
identify design and operating conditions that would ensure 99.99 
percent DRE and good combustion conditions. 72 FR at 33293. We proposed 
operating conditions for ECF boilers based on the conclusions of that 
extensive testing, including the requirement to burn at least 50 
percent primary fuel. Commenters that suggest that a lower (or no) 
primary fuel firing rate would still ensure 99.99 percent DRE and good 
combustion conditions simply note that low CO levels can be maintained, 
which is evidence of good combustion conditions. These commenters did 
not provide information, however, documenting the properties of any of 
the fuels being fired to the boiler, or whether good combustion 
conditions were maintained over a range of boiler loads. While we 
believe that maintaining CO levels at or below 100 ppmv (measured 
continuously) is a principal factor for ensuring good combustion 
conditions, other conditions are also necessary to help ensure good 
combustion under a regulatory exclusion without the oversight of an 
operating permit program. Moreover, we note that hazardous waste 
boilers must comply with a 50 percent minimum primary fuel requirement 
to obtain a waiver of the DRE standard. See Sec.  266.110.

F. Request To Increase the Minimum 8,000 Btu/lb Requirement for ECF

    Comment: Several commenters argue that the proposed 8,000 Btu/lb 
minimum as-fired heating value for ECF is much too low because it is 
not comparable to the 18,000 Btu/lb heating value of fuel oil.
    Response: A principle of the ECF exclusion is that the emissions 
from burning ECF are comparable to the emissions from burning fuel oil 
when ECF is burned under the conditions set out in the exclusion. 
Although the concentrations of hydrocarbons and oxygenates in ECF may 
be higher than in fuel oil, these constituents themselves exhibit fuel 
value; in addition, the emissions of those

[[Page 77987]]

compounds from a boiler burning ECF are comparable to the emissions of 
these compounds from a boiler burning fuel oil given the level of 
destruction achieved by ECF boilers operating under good combustion 
conditions. Similarly, the heating value of ECF need not be comparable 
to the heating value of fuel oil to assure emission comparability, 
although we would note, as we did at proposal, that the minimum heating 
value of fossil fuels normally burned in industrial boilers are in the 
range of 8,000 Btu/lb. 72 FR at 33296. We establish a minimum 8,000 
Btu/lb heating value for ECF to help ensure that ECF combusts well so 
that ECF emissions will be comparable to emissions from burning fuel 
oil in the same units.

G. Request for Periodic CO Monitoring

    Comment: Several commenters argue that periodic rather than 
continuous CO monitoring should be allowed.\98\ One commenter states 
that, because EPA is already requiring that CO emissions be controlled 
for ECF at a level four times more stringent than that required of 
industrial boilers, plus imposing many other conditions, requiring 
continuous CO emission monitoring for all combustion units is a costly 
requirement that would not result in any additional margin of safety 
for ECF combustion units. The commenter notes that the cost for 
installing a CO CEMS (continuous emission monitoring system) with an 
automatic ECF feed cutoff system would be approximately $800,000, and 
operating and maintenance cost would be approximately $50,000.
---------------------------------------------------------------------------

    \98\ Please note that we requested comment at proposal on 
whether periodic CO monitoring should be allowed rather than 
continuous monitoring. 72 FR at 33295-96. We stated that commenters 
must explain and provide supporting information why periodic 
monitoring is sufficient, including how the owner or operator would 
ensure that the boiler is operating under good combustion conditions 
during those times that the boiler is not being monitored for CO.
---------------------------------------------------------------------------

    Response: As we stated in the proposal, the Agency needed 
information from commenters that would explain and provide support on 
why periodic monitoring was sufficient. No such information was 
provided that explained how the owner or operator would ensure that the 
boiler is operating under good combustion conditions during those times 
that the boiler is not being monitored for CO. Consequently, the final 
rule requires continuous CO monitoring.
    We also disagree with the commenter that provided cost information. 
Specifically, we estimated the costs of a CO CEMS and automatic ECF 
feed cutoff system to be relatively modest.\99\ That is, we estimated 
the annualized cost of a CO CEMS is approximately $5,800 for a boiler 
that is not already equipped with the system, while the annualized cost 
of an automatic ECF feed cutoff system is approximately $3,800. The 
commenter did not provide comments on our cost estimates.
---------------------------------------------------------------------------

    \99\ See USEPA, ``Draft Technical Support Document for the 
Expansion of the Comparable Fuels Exclusion,'' May 2007, Section 
7.5.
---------------------------------------------------------------------------

H. Request That Additional Operating Parameters Should Be Linked to the 
ECF Automatic Feed Cutoff System

    Comment: A commenter states that additional operating parameters 
must be linked to the ECF AFCOS to ensure that the boiler continuously 
complies with the operating conditions and that emissions will remain 
comparable to fuel oil emissions. The commenter notes that boiler 
operators may not be in attendance at all times, and therefore 
parameters in addition to CO and gas temperature at the inlet to a 
fabric filter or electrostatic precipitator (if primary fuel other than 
coal is burned) must be linked to the ECF AFCOS. Specifically:
     To ensure compliance with the minimum boiler load limit of 
40 percent, an indicator of boiler load (e.g., steam production rate) 
must be linked to the ECF AFCOS;
     To ensure compliance with the minimum primary fuel firing 
rate, an indicator of the primary fuel firing rate must be linked to 
the ECF AFCOS;
     To ensure compliance with the ECF constituent feedrate 
limits, an indicator of the ECF feedrate must be linked to the ECF 
AFCOS.
    Response: We agree with the commenter for the reasons the commenter 
provides. The final rule, therefore, requires that five parameters must 
be linked to the ECF AFCOS: (1) CO CEMS; (2) gas temperature at the 
inlet to the fabric filter or electrostatic precipitator (if primary 
fuel other than coal is burned); (3) indicator of boiler load; (4) 
indicator of primary fuel feedrate; and (5) indicator for ECF feedrate. 
See Sec.  261.38(c)(2)(ii)(G).

I. Request That Burner Conditions Should Not Apply to MEK and 
Isobutanol

    Comment: EPA received comments that it should consider eliminating 
constituent limits and other burner controls for methyl ethyl ketone 
and isobutanol because neither contaminate is considered a HAP under 
the CAA.
    Response: EPA's framework for this rule, as proposed, is based on 
the comparability of emissions of RCRA hazardous constituents from 
hazardous secondary materials to such emissions from fuel oil, as 
opposed to risk, and we did not take comment on an exclusion approach 
based on zero or de minimis risk. Therefore, we do not believe it is 
appropriate to make this change for purposes of this final rule without 
seeking additional comment from other interested parties. Therefore, we 
are not including any change to the rule based on this comment. 
However, EPA may consider expanding its emission-comparable fuel 
approach to include this concept in future rulemaking for these 
chemicals and others that are not listed as hazardous air pollutants.

VI. Implementation of the ECF Exclusion

A. Reasonable Efforts To Ensure Compliance With the Conditions of 
Exclusion by Off-Site, Unaffiliated Burners

    At proposal, we requested comment on whether the final rule should 
include a ``reasonable efforts'' provision that would provide that the 
failure of an off-site, unaffiliated burner to meet the proposed 
conditions or restrictions of the exclusion would not mean that ECF was 
considered a hazardous waste when handled by the generator, as long as 
the generator can adequately demonstrate that he has made reasonable 
efforts to ensure that the hazardous secondary material will be managed 
by the burner under the conditions of the exclusion. Although the ECF 
exclusion requires the generator to obtain a certification from the 
burner that the ECF will be stored and burned under the conditions of 
the exclusion, a ``reasonable efforts'' provision would require the 
generator to take reasonable independent and proactive measures to 
ensure that the burner will manage ECF under the conditions of the 
exclusion. 72 FR at 33312.
    We explained that, to achieve this benefit, the generator would 
have to exercise a type of ``environmental due diligence'' in reviewing 
the operations of the burner in advance of transferring the hazardous 
secondary materials. We stated that we believe that a reasonable 
efforts provision might involve methods, such as audits (including site 
visits), that a number of generators of hazardous secondary materials 
now use to maintain their commitment to sound environmental 
stewardship, and to minimize their potential regulatory and liability 
exposures. These audits are frequently performed by third parties.
    We also requested comment on whether a reasonable efforts provision 
should include criteria that define

[[Page 77988]]

reasonable efforts, and what those criteria should be.
1. Reasonable Efforts Provision in the Final Rule
    The final rule states that an excluded fuel--ECF, comparable fuel, 
and synthesis gas fuel--loses its exclusion if any person managing the 
fuel fails to comply with the conditions of the exclusion, in which 
case the hazardous secondary material must be managed as a hazardous 
waste from the point of generation. In such situations, EPA or an 
authorized state agency may take enforcement action under RCRA section 
3008(a). See Sec.  261.38(d)(2).
    The rule states further, however, that the burner rather than the 
generator will be liable for discarding a hazardous waste if an off-
site, unaffiliated burner \100\ fails to comply with a condition of the 
exclusion, provided that the generator has made reasonable efforts to 
ensure that the burner complies with the conditions of the exclusion. 
The reasonable efforts must be based on an objective evaluation by the 
generator, both prior to the first shipment of ECF and every three 
years thereafter, that the burner will manage the ECF under the 
conditions of the exclusion.
---------------------------------------------------------------------------

    \100\ An unaffiliated burner is a boiler or hazardous waste 
combustor located at a facility that is not owned by the same parent 
company that generated the ECF.
---------------------------------------------------------------------------

    Specifically, reasonable efforts by the generator must include, at 
a minimum, affirmative answers to the following questions prior to 
shipping ECF to a burner, and must be repeated at a minimum of every 
three years thereafter: (1) Has the burner submitted the notification 
to the RCRA and CAA Directors required under Sec.  261.38(c)(5)(i), and 
has the burner published the public notification of burning activity as 
required under Sec.  261.38(b)(2)(i); (2) does publicly available 
information indicate that the burner facility has had any formal 
enforcement actions taken against the facility in the previous three 
years for violations of the RCRA hazardous waste regulations and has 
been classified a significant noncomplier with RCRA Subtitle C, and if 
yes, does the generator have credible evidence that the burner will 
nonetheless manage the ECF under the conditions of Sec.  261.38; and 
(3) does the burner have the equipment and trained personnel to manage 
the ECF under the conditions of Sec.  261.38? \101\
---------------------------------------------------------------------------

    \101\ In the final definition of solid waste rulemaking, the 
reasonable efforts provision also asked several additional 
questions, including: (1) Does the reclamation facility intend to 
reclaim the hazardous secondary materials legitimately pursuant to 
Sec.  261.2(g); (2) has the reclamation facility notified the 
appropriate authorities that the financial assurance condition is 
satisfied per Sec.  261.4(a)(24)(v)(F); and (3) if residuals are 
generated by the reclamation facility, is the facility prepared to 
manage them properly as hazardous waste. These questions are not 
appropriate in this instance because: (1) The specifications and 
conditions in the ECF exclusion define the legitimacy of the 
operation and thus, an independent determination does not need to be 
made; (2) there is no financial assurance requirement in this final 
rule; and (3) any residuals that are generated by the combustion of 
ECF are not expected to contain levels of containments above those 
found in residuals from the burning of fuel oil, including 
hydrocarbons and oxygenates as they themselves have fuel value and 
will be combusted.
---------------------------------------------------------------------------

    In making these reasonable efforts, the generator may use any 
credible evidence available, including information obtained from the 
burner and information obtained from a third party. The generator must 
maintain for a minimum of three years documentation and certification 
that reasonable efforts were made for each burner facility to which ECF 
is shipped. The documentation and certification must be made available 
upon request by a regulatory authority within 72 hours, or within a 
longer period of time as specified by the regulatory authority. The 
certification statement must be signed and dated by an authorized 
representative of the generator company; and incorporate the following 
language: ``I hereby certify in good faith and to the best of my 
knowledge that, prior to arranging for transport of emission-comparable 
fuel to [insert name(s) of burner facility], reasonable efforts were 
made to ensure that the emission-comparable fuel would be burned under 
the conditions prescribed by Sec.  261.38, and that such efforts were 
based on current and accurate information.''
    The reasonable efforts provisions for ECF parallels the reasonable 
efforts provisions in the recently promulgated Revisions to the 
Definition of Solid Waste,\102\ as they would reasonably apply to ECF.
---------------------------------------------------------------------------

    \102\ See Sec.  261.4(a)(24(v)(B) and the discussion in the 
preamble to the final rule for the Revisions to the Definition of 
Solid Waste in Section VIII.C.2 (see 73 FR 64668, October 30, 2008).
---------------------------------------------------------------------------

    Rationale for the Questions. The first question addresses whether 
the burner has submitted the initial notification to the RCRA and CAA 
regulatory authorities required under Sec.  261.38(c)(5)(i), and 
whether the burner has published the public notification of burning 
activity as required under Sec.  261.38(b)(2)(ii). The notification to 
the regulatory authorities documents the burner's intention to burn 
ECF, describes the ECF burning activities, and certifies that the 
burner will store and burn ECF under the conditions of the exclusion. 
This notification is a one-time notification unless there is a 
substantive change in the information provided in the notice. It is 
important that the generator confirm that the burner has complied with 
this condition of the exclusion because the notification identifies the 
burner to the regulatory authorities and confirms that the burner is 
aware of their responsibilities to comply with the conditions of the 
exclusion.
    The public notification of burning activity required under Sec.  
261.38(b)(2)(ii) must be submitted for publication in a major newspaper 
of general circulation local to the site where the ECF will be burned 
and must contain general facility information and: (1) An estimate of 
the average and maximum monthly and annual quantity of the ECF to be 
burned; and (2) the name and mailing address of the regulatory 
authorities to whom the generator submitted a claim for the exclusion. 
This notice is important because it gives the public the opportunity to 
bring to the regulatory authority's attention any circumstance that 
might aid the authority in its monitoring and enforcement efforts.\103\
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    \103\ The public, furthermore, would have the ability to bring a 
citizen suit for failure to comply with a condition of the 
exclusion.
---------------------------------------------------------------------------

    The second question focuses on the compliance history of the 
burner. Although consideration of compliance data is an imperfect tool 
for determining whether a burner would comply fully with the conditions 
of the exclusion, we believe that publicly available compliance data 
are a reasonable starting point for evaluating a facility's 
performance. Facility-specific enforcement data on compliance status, 
ongoing enforcement actions by both EPA and the states, and specific 
case information for formal enforcement actions are readily available 
on EPA's public Web site at http://www.epa.gov/echo/. ``Formal 
enforcement'' is a written document that mandates compliance and/or 
initiates a civil or administrative process, with or without appeal 
rights before a trier of fact that results in an enforceable agreement 
or order and an appropriate sanction. For EPA, formal enforcement 
action is a referral to the U.S. Department of Justice for the 
commencement of a civil action in the appropriate U.S. District Court, 
or the filing of an administrative complaint, or the issuance of an 
order, requiring compliance and a sanction. For states, formal 
enforcement action is a referral to the state's Attorney General for 
the commencement of a civil or administrative action in the appropriate 
forum, or the filing of an administrative

[[Page 77989]]

complaint, or the issuance of an order, requiring compliance and a 
sanction. ``Significant non-complier'' is a defined term in EPA's 
Hazardous Waste Civil Enforcement Response Policy and means the 
violators have caused actual exposure or a substantial likelihood of 
exposure to hazardous waste or hazardous waste constituents; are 
chronic or recalcitrant violators; or deviate substantially from the 
terms of a permit, order, agreement, or from the RCRA statutory or 
regulatory requirements. In evaluating whether there has been actual or 
likely exposure to hazardous waste or hazardous waste constituents, EPA 
and the states consider both the environmental and human health 
concerns, including the potential exposure of workers to hazardous 
waste or hazardous waste constituents. For both terms, see EPA's 
Hazardous Waste Civil Enforcement Response Policy (Dec. 2003) at http://www.epa.gov/compliance/resources/policies/civil/rcra/finalerp1203.pdf.
    We do not believe that evaluating this publicly available 
information, which a generator would likely already be familiar with 
based on its own regulated activities, is difficult for a generator, 
nor is interpreting the data and deriving conclusions about facilities, 
since the data base specifically notes whether a facility is alleged to 
be a ``significant non-complier'' (i.e., identified as a ``SNC'' or in 
``significant noncompliance''). We also note that since many states 
already provide compliance information to EPA and the public through 
the EPA Web site, we do not believe that a generator's review of such 
information would pose a significant new burden for state agencies.
    While a facility designated as a significant non-complier and the 
subject of a formal enforcement action does not mean that the facility 
would not comply with the conditions of the exclusion, it does raise 
questions that we believe the emission-comparable fuel generator should 
investigate. That is, if any formal enforcement actions were taken 
against the facility in the previous three years for such noncompliance 
and the facility was alleged to be a significant noncomplier, we would 
expect that the burner would adequately explain to the emission-
comparable fuel generator how it has resolved any issues or how the 
issues are unrelated to managing emission-comparable fuel under the 
conditions of the exclusion. Additionally, if the generator obtains 
reasonable information that the enforcement matters have been corrected 
and the facility is back in compliance, then that would satisfy this 
aspect of the reasonable efforts determination. The generator also may 
wish to make a similar investigation of facilities designated as 
significant noncompliers by EPA or a state even if no formal 
enforcement action has been taken.
    The third question focuses on the technical capability of the 
burner to comply with the conditions of the exclusion. If a burner was 
found not to have the storage and burner equipment necessary to comply 
with the conditions of the exclusion, or not to be in conformance with 
the storage and burner personnel training conditions of the exclusion 
or otherwise not to have adequately trained personnel to operate and 
maintain the equipment, the generator should not ship ECF to the 
facility. A generator may answer this question using audit reports, 
information provided by industry or waste management associations, 
documents provided by the burner, and other relevant information, which 
could include an evaluation by a qualified engineer. A generator may 
also make a common sense inquiry of a burner that includes requesting 
an explanation of the kind of equipment used for ECF storage and 
burning; review of equipment specifications; and demonstrations of the 
facility training program, and training records. Specific questions 
and/or a site visit also may be appropriate.
    Credible Evidence. We believe that a generator should be allowed to 
use any credible evidence available in making reasonable efforts, 
including information provided by the burner and/or by a third party, 
in lieu of personally performing an assessment. For example, the 
generator might hire an independent auditor to review the burner's 
operations, produce audit reports as a consortium of generators using 
the same burners, or rely on an assessment by a trade association. We 
encourage this type of pooling of information to reduce the burden on 
generators and to take advantage of specialized technical expertise.
    2. Consequence of Failure to Comply With a Condition of Exclusion
    Comment: A commenter argued that the provision that ``noncompliance 
with the operating conditions by a burner renders the ECF a hazardous 
waste from the point of generation'' is a poison pill, draconian enough 
that it may prevent facilities from using the exclusion. The commenter 
believes that noncompliance by the burner of an operating condition 
should be handled simply as a violation by the burner without 
consequences to the generator.
    Response: Noncompliance with a condition for exclusion of a 
hazardous waste simply means that the material remains a hazardous 
waste. EPA uses RCRA Section 3007 authority to inspect facilities that 
manage excluded materials. If a condition of the exclusion is not being 
satisfied, the material is no longer excluded. Any related enforcement 
action would involve noncompliance with the handling and management 
requirements for hazardous waste.\104\
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    \104\ Please note, however, that a generator who complies with 
the reasonable efforts provisions of Sec.  261.38(d) would not be 
liable for management of a hazardous waste if an off-site 
unaffiliated burner fails to comply with a condition of the 
exclusion.
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3. Reasonable Efforts
    Comment: Several commenters support a reasonable efforts provision, 
but state that EPA should not prescribe the criteria that qualify as 
reasonable efforts. These commenters believe that differences in 
operations (e.g., ECF quantity; ECF composition and firing rate; boiler 
size) at ECF burner facilities should dictate the level of effort that 
is needed to meet the ``reasonable efforts'' provision.
    Other commenters do not support a reasonable efforts provision. 
They believe that the best way to ensure adherence with the burner 
operating conditions under the potentially limited oversight of an 
exclusion is to provide an incentive for the generator to ensure that 
the burner complies with the conditions. They believe the provision 
that noncompliance by a burner renders the ECF a hazardous waste from 
the point of generation provides that incentive. Several of these 
commenters also believe that the examples of reasonable efforts EPA 
provided at proposal (e.g., frequency of audits) should be added as 
conditions of the exclusion to help ensure compliance by burners.
    Response: We agree with those commenters that state that a 
reasonable efforts provision is warranted because the generator should 
not be liable for actions by a burner that are truly beyond the control 
of the generator. Although we understand the argument made by those 
commenters that believe holding the generator liable (i.e., via the 
provision that failure to comply with the conditions of the exclusion 
renders the ECF a hazardous waste from the point of generation) 
provides a good incentive to ensure that only burners that are willing 
and capable of managing ECF under the conditions of the exclusion will 
manage ECF, we believe that the measures required by this rule to 
document and certify that reasonable

[[Page 77990]]

efforts have been made to ensure that an off-site, unaffiliated burner 
complies with the conditions of the exclusion will also ensure that 
responsible and capable burners manage ECF. (Of course, in most 
instances, we project that the generator and burner are the same 
entity, in which case failure to satisfy a condition results in that 
entity being held accountable for managing ECF as a waste, without 
exception.)
    We do not agree with those commenters that believe the rule should 
require prescriptive measures (rather than the generic questions 
required by this rule) to implement a reasonable efforts provision, or 
that such prescriptive measures should be included as a condition of 
the exclusion. The measures necessary for generators to make reasonable 
efforts that an ECF burner is willing and capable of complying with the 
conditions of the exclusion, and, in fact, is complying with the 
conditions over time, will be specific to each situation (e.g., 
relationship of the burner to the generator; experience of the burner 
with managing hazardous waste; ECF quantity; ECF composition and firing 
rate; boiler size). Specifying prescriptive measures, such as requiring 
that the generator conduct an audit of the burner's operations and that 
the audits must be conducted annually, may not provide adequate 
measures in some situations, and may be unnecessary in others.

B. Fuel Analysis Plans

1. Use of Process Knowledge
    Comment: A commenter states that fuel analysis plans for ECF should 
require testing for all ECF constituents and there must be no allowance 
for the use of process knowledge in lieu of analysis.
    Response: Sampling and analysis provisions for ECF are the same as 
for existing comparable fuels, which allow the generator to use process 
knowledge to determine whether the fuel meets the ECF specifications, 
except for constituents listed under Sec.  261.38(b)(6)(i). Allowing 
process knowledge to determine whether ECF meets the specifications is 
reasonable given that generators of solid waste may use process 
knowledge to determine if the waste exhibits a characteristic of 
hazardous waste, including the toxicity characteristic. See Sec.  
262.11(c)(2). If a generator uses process knowledge to make the 
determination that ECF meets the specifications, any information used 
to make that determination must be included in the ECF fuel analysis 
plan. See Sec.  261.38(b)(4)(i)(E).
2. Quarterly Waste Analysis Testing
    Comment: A commenter states that the frequency of analysis of ECF 
needs to be on a quarterly basis rather than an annual basis given the 
higher loading of hazardous constituents allowed under this exclusion.
    Response: The rule requires retesting annually, at a minimum, or 
after a process change that could change the chemical or physical 
properties of the ECF. See Sec.  261.38(b)(6)(ix). We do not believe 
that a generic requirement to retest quarterly is warranted. The 
consequences of improperly claiming the ECF exclusion are severe-if the 
ECF fails to meet the specification under Sec.  261.38(a)(2), it loses 
the exclusion and must be managed as hazardous waste from the point of 
generation. In addition, the owner or operator of the facility may also 
be subject to an enforcement action if management of the hazardous 
secondary material was not in compliance with the regulations.

C. Intermediate Handlers

    Comment: The rule requires ECF to be handled only by a generator, 
transporter, or a burner; ECF must not be handled by a broker or an 
intermediate handler. A commenter notes that small volume generators 
would be able to participate in the ECF program if an intermediary 
handler would be allowed to accumulate ECF from several small 
generators, perform allowable blending, complete the analysis, and 
market the ECF to the burner.
    Response: Because blending of the hazardous secondary materials to 
meet the ECF specifications is specifically prohibited under Sec.  
261.38(a)(4) and (b)(7), the Agency continues to exclude brokers or 
intermediate handlers from handling ECF and being eligible for the 
conditional exclusion. See 63 FR at 33801 for a discussion of the 
rationale for prohibiting dilution to meet the specifications.\105\
---------------------------------------------------------------------------

    \105\ Note that, as with hazardous waste and consistent with the 
recently promulgated Revisions to the Definition of Solid Waste in 
the context of hazardous secondary materials, ECF can be held up to 
10 days at a transfer facility and still be considered as being in 
transport.
---------------------------------------------------------------------------

VII. Costs and Benefits of the ECF Exclusion

    During the public comment period for the proposed rule, we received 
several comments related to the economic analysis. These comments were 
submitted primarily from four organizations and raised concerns about 
ten specific aspects of our economic assessment. Presented below are 
brief individual summaries of the ten key issues raised by the 
commenters, followed by our responses. For a more complete discussion 
of these comments, see USEPA, ``Assessment of the Potential Costs, 
Benefits, and other Impacts of the Expansion of the RCRA Comparable 
Fuel Exclusion,'' April 2008, a copy of which is in the Docket to this 
final rule.

A. Concern That the Economic Analysis Did Not Account for the Increased 
Risk Likely To Result From the Exclusion

    Comment: The economic analysis did not account for the increased 
risk likely to result from the exclusion. Several commenters allege 
that emissions of criteria pollutants, greenhouse gases, and hazardous 
air pollutants will increase as a result of the rule and that 
occupational risk will also increase under the proposed exclusion. 
Therefore, commenters submit that the Agency does not fully capture the 
social costs associated with the rule.
    Response: The commenters argue that the economic analysis did not 
fully address the social costs associated with the rule, because of the 
increased risk likely to result from the exclusion. While we will 
address each of the emission categories that the commenters identify, 
it should also be noted that the final rule allows hazardous waste 
combustors to continue to burn ECF. Thus, the amount of ECF that may 
eventually be diverted from hazardous waste combustors is a function of 
the combustors' fuel pricing procedures, and is probably less than what 
we estimated at proposal.
    With respect to SOX and NOX emissions, the 
increase is based on the potential for cement kilns to substitute coal 
for the hazardous secondary materials that may be diverted to other 
facilities as a result of the exclusion. As outlined above in Section 
IV.B of this Part, we recognize that cement kilns' SOX 
emissions could increase if the exclusion causes them to increase their 
consumption of coal. The magnitude of such an increase will depend on 
the quantity of ECF diverted from cement kilns. We estimate that 
SOX emissions will increase by 570 tpy nationwide under our 
estimate of the ECF quantity that could potentially be diverted from 
cement kilns, and by 2,300 tpy under the commenter's estimate of the 
quantity of ECF and hazardous waste fuels that may be diverted. The 
Economic Assessment for the final rule addresses the cost of 
controlling these emissions.
    Regarding NOX, although we agree that cement kilns' 
NOX emissions could increase as a result of the exclusion, 
we believe that such an increase is unlikely.

[[Page 77991]]

As described in Section IV.B of this Part, we believe that cement kilns 
could operate at a fractionally lower oxygen concentration without 
significant cost to prevent their NOX emissions from 
increasing. Similarly, EPA does not believe that the commenters' 
concerns with respect to CO2 emissions are valid. See 
Section IV.B of this Part for a detailed discussion of this issue as 
well.
    With respect to hazardous air pollutants, the commenters' argument 
that burning ECF as a replacement for natural gas in boilers will 
result in an increase in emissions of toxic metals assumes that ECF 
contains the maximum metals concentrations allowed by the comparable 
fuel specifications provided in Table 1 to Sec.  261.38 and that 
boilers' emissions will be uncontrolled. In many cases, however, the 
metals concentrations of ECF are likely to be below the Sec.  261.38 
fuel specifications. Moreover, even in a worst case, metals emissions 
from burning ECF will be no higher than if the boiler chose to burn 
fuel oil.
    The commenters' argument that burning ECF as a replacement for 
natural gas in boilers will result in an increase in emissions of 
organic HAP is based on the differences between the AP-42 emission 
factors for fuel oil and natural gas. As discussed in Section IV.B of 
this Part, however, facilities can choose which fuels to burn in their 
boilers. The fact that burning fuel oil, or ECF with emissions 
comparable to fuel oil, in lieu of natural gas or coal may result in 
higher or lower emissions of air pollutants has no bearing on whether 
hazardous secondary materials should be excluded from the definition of 
solid waste if they are managed similar to fossil fuels, their 
emissions are comparable to those from burning fuel oil, and they are 
physically identical with respect to most hazardous constituents (and 
there is no aspect of discard in other management phases, e.g., storage 
and transport).
    Finally, any potential occupational impacts associated with this 
action would be addressed under the jurisdiction of OSHA and DOT 
authorities.

B. Impacts Associated With Hazardous Waste Currently Blended With ECF

    Comment: A commenter asserts that to produce waste fuel that meets 
the specifications required by cement kilns, fuel blenders (and, to a 
lesser extent, kilns themselves) currently blend ECF with lower-Btu, 
more highly contaminated waste. The resulting fuel mixture takes the 
place of coal in the cement production process. If ECF is diverted away 
from fuel blenders as a result of the rule, the commenter claims that 
the low-Btu waste that blenders currently mix with ECF will be diverted 
away from blenders and cement kilns to commercial incinerators. The 
economic analysis does not account for this effect and therefore, 
according to commenters, underestimates economic impacts likely to be 
realized by blenders and cement kilns as a result of the rule.
    Response: EPA acknowledges that, if cement kilns' fuel pricing 
procedures result in ECF being diverted from cement kilns, the 
diversion of ECF could preclude them from accepting wastes that are 
currently blended with ECF. These wastes, which must be blended with 
higher quality fuels (e.g., ECF) to meet the fuel requirements for 
cement kilns, could be diverted from cement kilns to commercial 
hazardous waste incinerators, according to the commenter. The Economic 
Assessment for the final rule evaluates the potential economic impacts 
associated with such transfers. These impacts include reduced revenues 
for cement kilns, increased fuel costs for cement kilns, and increased 
revenues for commercial incinerators.

C. Concern That the Economic Analysis Underestimates the Quantity of 
Hazardous Secondary Materials Qualifying for the Exclusion

    Comment: Based on the results of a survey of Cement Kiln Recycling 
Coalition (CKRC) members, CKRC and Environomics estimate that as much 
as 146,000 tpy of hazardous secondary materials managed by cement kilns 
may be excluded as ECF, as opposed to the 48,400 tpy presented in EPA's 
economic analysis for the proposed rule.
    Response: We recognize that the quantity of ECF burned by cement 
kilns may be different than suggested by the National Biennial Report 
data available for the proposed rule. However, because this database 
represents the only comprehensive source of data for ECF generators, 
the Agency relies on the Biennial Report data to assess the impacts of 
the exclusion. We will use the most recently available quality-
controlled nationwide data to prepare the assessment for the final 
rule.

D. Concern That the Economic Analysis Underestimates the Percentage of 
Qualifying Hazardous Secondary Materials That Would Be Excluded From 
RCRA Subtitle C Regulation Under the Exclusion

    Comment: EPA's analysis of the proposed rule suggests that 39.9 
percent of the qualifying waste managed by cement kilns would be 
excluded under the rule. To develop this estimate, EPA simulated the 
decision-making process of ECF generators based, in part, on the fuel 
savings that generators would realize if they use the exclusion. For 
each generator with an eligible boiler onsite, EPA estimated these fuel 
savings based on the weighted average price of the fuels used by the 
generator. The commenter suggests that this approach leads to an 
underestimation of the fuel savings realized by generators because 
generators would likely use ECF to displace their most expensive fuel. 
Therefore, EPA is also likely to underestimate the percentage of 
eligible waste excluded under the proposed rule and the corresponding 
economic losses experienced by cement kilns. Thus, the commenter 
asserts that as much as 100 percent of the waste qualifying for the 
exclusion will be excluded.
    Response: To the extent that the quantity of hazardous secondary 
materials diverted from kilns may be different than that estimated in 
the economic assessment for the proposed rule, we agree that the 
corresponding impacts may also be different than estimated. However, it 
remains unclear how low and moderate-Btu waste currently mixed with ECF 
will necessarily be diverted to incinerators.\106\ It is our 
understanding that such wastes could be blended with other fuels such 
as diesel, kerosene, used motor oil, or used lubricants to create fuel 
blends suitable for cement kilns. In addition, as discussed previously, 
the final rule allows ECF to continue to be burned in cement kilns. The 
amount of ECF that may be diverted from cement kilns will be a function 
of their fuel pricing procedures.
---------------------------------------------------------------------------

    \106\ Moreover, any such waste fuels that may be diverted from 
cement kilns to incinerators would be used for their fuel value (as 
is the case for cement kilns) in the incinerator to combust wastes 
with little or no heating value.
---------------------------------------------------------------------------

E. Concern That the Economic Analysis Does Not Consider Joint Impacts 
With the Proposed Definition of Solid Waste Rule

    Comment: A commenter expressed concern that the Agency's economic 
assessment of the proposed ECF exclusion does not consider potential 
joint impacts with the proposed revisions to the Definition of Solid 
Waste Rule. Because several facilities may be affected by both rules, 
the commenter alleges that the combined impacts of the rules may be 
greater than the summed impacts of each rule alone.
    Response: We disagree with this comment. The revisions to the 
Definition of Solid Waste Rule, in both the proposal and supplemental 
proposal, have reiterated that ``no

[[Page 77992]]

changes are proposed for recycling materials that are: * * * (3) burned 
for energy recovery.'' Neither the burning of hazardous secondary 
materials for energy recovery nor the blending of hazardous secondary 
materials for use as fuel are eligible for exclusion from RCRA 
regulations under the Definition of Solid Waste proposals. Thus, no 
meaningful joint impacts are expected. It is important to note, 
however, that some waste streams could potentially be excluded from the 
full RCRA Subtitle C regulations under either the Definition of Solid 
Waste rule or the emission comparable fuels exclusion. Therefore, the 
joint impact of the two rules could be less than (rather than greater 
than, as suggested by the comment) the sum of the impacts of each rule 
when estimated individually.

F. Concern That the Economic Analysis Underestimates the Value of Coal

    Comment: EPA's economic analysis of the proposed rule 
underestimates the cost of coal. While EPA assumes the cost of coal to 
be $1.80 per MMBtu, a commenter estimates that cement kilns pay 
approximately $2.56 to $3.00 per MMBtu of coal, based on a survey of 
those cement kilns that burn hazardous waste as a fuel. Therefore, 
EPA's analysis underestimates the coal replacement costs incurred by 
cement kilns as a result of the rule.
    Response: We agree that the cost of coal used for the proposed rule 
may be lower than the current cost. When we conducted the economic 
analysis at proposal, we used coal pricing information from the Energy 
Information Administration's (EIA's) Annual Coal Report 2004. This was 
the most recent publicly available source of annual coal prices at the 
time. Because coal prices have been trending upward, the coal pricing 
data in this publication are lower than current prices. For the 
economic assessment of the final rule, we use coal pricing data from 
EIA's Annual Coal Report 2006. Adjusting the data in this document for 
inflation, we assume a coal price of approximately $2.23 per MMBtu for 
the economic analysis of the final rule.

G. Concern That the Economic Analysis Overestimates the Per Unit Cost 
of Incineration

    Comment: A commenter alleges that EPA's incineration cost estimate 
of $0.96 per gallon is an overestimate. The commenter argues that these 
data are outdated and do not reflect current market conditions and that 
incinerators currently charge $0.10 to $0.15 per gallon to manage waste 
with properties consistent with ECF. Because this cost is significantly 
lower than the unit cost used in the analysis, the commenter claims 
that the Agency overestimates the management cost savings associated 
with the rule.
    Response: We note that the price of incinerating ECF is subject to 
uncertainty. At the time of our analysis for the proposed rule, ETC's 
2004 price information from the hazardous waste incineration industry 
represented the most recent publicly available data on the cost of 
incineration, and it is still the most recent publicly available data 
on the cost of incineration. The Agency prefers, when possible, to use 
the most recent publicly available data when conducting our economic 
assessments. However, to address the commenter's concerns regarding our 
potential overestimation of the cost of incinerating ECF, we use the 
low end of the reported range of costs in the Environmental Technology 
Council's 2004 data release ($0.41 per gallon) for our economic 
assessment of the final rule.

H. Concern That EPA Overestimates the Price That ECF Would Command on 
the Open Market

    Comment: In its economic assessment of the proposed rule, EPA 
estimates that the market price of ECF ($5.58 per MMBtu) will be 
approximately 26 percent less than that of conventional fuel (i.e., a 
composite of natural gas, fuel oil, and coal). A commenter asserts that 
the market price of ECF is likely to be considerably lower than this 
value and that EPA has overestimated the fuel savings of the rule. To 
support this point, the commenter cites the market price of $0.50-$3.00 
per MMBtu for used oil. Because used oil is a cleaner fuel than ECF, 
the market price for ECF is likely to be no higher than the price of 
used oil.
    Response: We understand that the market price of ECF would be 
uncertain because of the regulatory requirements associated with 
storing and burning this hazardous secondary material. The Agency 
disagrees, however, with the commenter's assessment of the price that 
ECF would command on the open market. Although the commenter claims 
that the price of used fuel oil is between $0.50 and $3.00 per MMBtu, 
the 2005 Department of Energy Study entitled, ``Used Oil Study and 
Recommendations to Address Energy Policy Act of 2005 Section 1838'' 
indicates that the price of used oil is discounted 25 to 35 percent 
from the price of residual oil. Based on the 2006 residual oil price of 
$1.22 per gallon reported in DOE's Petroleum Marketing Annual 2006 and 
an assumed thermal value of 6.287 MMBtu per barrel, this translates to 
a used oil price of $5.28 to $6.10 per MMBtu. EPA's estimated value of 
$5.58 per MMBtu for ECF, therefore, falls within this range.

I. Concern That Revenue Losses for Commercial Incinerators and Cement 
Kilns Are Not Reflected in EPA's Estimates of the Social Costs 
(Savings) of the Rule

    Comment: EPA estimates that commercial incinerators and cement 
kilns, combined, will experience annual revenue losses of approximately 
$5 million as a result of the rule. Because these losses are not 
incorporated into the estimated costs of the rule, a commenter states 
that EPA overestimates the cost savings likely to result from the 
exclusion.
    Response: EPA disagrees with the commenter's suggestion that the 
Agency should deduct the reduction in commercial incinerator and cement 
kiln revenues from the estimated net cost value presented in the 
economic assessment document. As described in the methodology section 
of the economic assessment document, these reductions in revenues do 
not represent an expenditure of resources and, therefore, are not a 
social cost.

J. Concern That EPA Has Not Evaluated the Adverse Consequences to 
National Waste Management Networks That Might Result if Some States 
Adopt the Rule and Others Do Not

    Comment: To the extent that some states do not adopt the 
regulation, the ECF rule will lead to inconsistent requirements across 
state lines, according to a commenter. The commenter asserts that EPA's 
analysis fails to account for the adverse consequences associated with 
the patchwork of state regulations that will likely emerge as a result 
of the exclusion.
    Response: We agree with the commenter that inconsistencies in waste 
management regulations across state lines may create inefficiencies 
within the national hazardous waste management system. For this reason, 
we encourage all states to adopt the ECF rule. Because adoption of the 
rule must occur at the state level, however, determinations with 
respect to adoption are outside of EPA's authority.\107\
---------------------------------------------------------------------------

    \107\ We note also that the current exclusion for comparable 
fuel, as well as other exclusions or exemptions, must also be 
adopted at the state level to become effective. Thus, the fact that 
some states may not adopt the ECF exclusion is not unexpected.
---------------------------------------------------------------------------

    We disagree, however, with the commenter's characterization of the 
Agency's analysis of the partial implementation scenario in the

[[Page 77993]]

Economic Assessment document. Although the analysis estimates impacts 
when only a limited number of states adopt the proposed rule, the 
commenter's characterization of this assessment as a scaling analysis 
is incorrect. Rather than scaling the national results, we focused this 
partial implementation analysis on 16 states with laws that either: (a) 
Prohibit them from promulgating standards that are more stringent than 
the federal regulations; or (b) require them to undertake additional 
legislative action to enact standards more stringent than federal 
regulations.

Part Five: State Authority

I. Applicability of the Rule in Authorized States

    Under section 3006 of RCRA, EPA may authorize qualified states to 
administer their own hazardous waste programs in lieu of the federal 
program within the state. When EPA authorizes a state to implement the 
RCRA hazardous waste program, EPA determines whether the state program 
is consistent with the federal program, and whether it is no less 
stringent. This process, codified in 40 CFR 271, ensures national 
consistency and minimum standards, while providing flexibility to the 
states in implementing rules. Following authorization, EPA retains 
enforcement authority under sections 3008, 3013, and 7003 of RCRA, 
although authorized states have primary enforcement responsibility. In 
making this determination, EPA evaluates the state requirements to 
ensure they are no less stringent than the federal requirements.
    Prior to enactment of the Hazardous and Solid Waste Amendments of 
1984 (HSWA), a State with final RCRA authorization administered its 
hazardous waste program entirely in lieu of EPA administering the 
federal program in that state. The federal requirements no longer 
applied in the authorized state, and EPA could not issue permits for 
any facilities in that state, since only the state was authorized to 
issue RCRA permits. When new, more stringent federal requirements were 
promulgated, the state was obligated to enact equivalent authorities 
within specified time frames. However, the new federal requirements did 
not take effect in an authorized state until the state adopted the 
federal requirements as state law.
    In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which 
was added by HSWA, new requirements and prohibitions imposed under HSWA 
authority take effect in authorized states at the same time that they 
take effect in unauthorized states. EPA is directed by the statute to 
implement these requirements and prohibitions in authorized states, 
including the issuance of permits, until the state is granted 
authorization to do so. While states must still adopt HSWA related 
provisions as state law to retain final authorization, EPA implements 
the HSWA provisions in authorized states until the states do so.
    RCRA section 3009 allows the states to impose standards more 
stringent than those in the federal program (see also 40 CFR 271.1). 
Therefore, authorized states are required to modify their programs only 
when EPA enacts federal requirements that are more stringent or broader 
in scope than the existing federal requirements. Authorized states may, 
but are not required to, adopt federal regulations that are considered 
less stringent than previous federal regulations. Because this rule 
would eliminate specific requirements for hazardous secondary materials 
that are currently managed as hazardous waste, state programs would no 
longer need to include those specific requirements in order to be 
consistent with EPA's regulations.

II. Effect on State Authorization

    These regulations are not promulgated under the authority of HSWA. 
Thus, this exclusion is applicable on the effective date only in those 
states that do not have final RCRA authorization. Moreover, authorized 
states are required to modify their program only when EPA promulgates 
Federal regulations that are more stringent or broader in scope than 
the authorized state regulations. For those changes that are less 
stringent or reduce the scope of the Federal program, states are not 
required to modify their program. This is a result of section 3009 of 
RCRA, which allows states to impose more stringent regulations than the 
Federal program. This final rule is considered to be less stringent 
than the current standards. Therefore, authorized states are not 
required to modify their programs to adopt regulations consistent with 
and equivalent to today's standards, although EPA strongly encourages 
states to do so.
    Some states incorporate the federal regulations by reference or 
have specific state statutory requirements that their state program can 
be no more stringent than the federal regulations. In those cases, EPA 
anticipates that the exclusions in this notice would be adopted by 
these states, consistent with state laws and state administrative 
procedures, unless they take explicit action as specified by their 
respective state laws to decline the proposed revisions.

Part Six: Costs and Benefits of the Final Rule

I. Introduction

    The value of any regulatory action is traditionally measured by the 
net change in social welfare that it generates. The Agency's economic 
assessment conducted as part of EPA's obligations under Executive Order 
12866 evaluates costs, cost savings (benefits), waste quantities 
affected, and other impacts, such as environmental justice, children's 
health, unfunded mandates, regulatory takings, and small entity 
impacts. To conduct this analysis, we prepared a baseline 
characterization for ECF, developed and implemented a methodology for 
examining impacts, and followed appropriate guidelines and procedures 
for examining equity considerations, children's health, and other 
impacts. Because EPA's data were limited, the estimated findings from 
these analyses should be viewed as national, not site-specific impacts.

II. Baseline Specification

    Proper baseline specifications are vital to the accurate assessment 
of incremental costs, benefits, and other economic impacts associated 
with a rule that would expand the exclusion for hazardous secondary 
materials used as a fuel. The baseline essentially describes the world 
absent any expanded exclusion. The incremental impacts of this action 
are evaluated by assessing post-rule responses with respect to baseline 
conditions and actions. The baseline, as applied in this analysis, is 
assumed to be the point at which the final rule is published. A full 
discussion of the baseline specification is presented in the Assessment 
\108\ document completed for this action.
---------------------------------------------------------------------------

    \108\ USEPA, ``Assessment of the Potential Costs, Benefits, and 
Other Impacts of the Expansion of the RCRA Comparable Fuel 
Exclusion--Final Rule,'' April 2008.
---------------------------------------------------------------------------

III. Analytical Methodology, Primary Data Sources, and Key Assumptions

    We developed a simplified four-step approach for assessing the cost 
and economic impacts associated with this action. First, we identified 
all potentially eligible hazardous secondary materials currently 
generated in the U.S. We next determined the tonnage of such material 
that is likely to qualify for the exclusion. An economic threshold 
analysis was next applied to the likely eligible hazardous secondary 
material (i.e. currently-classified waste) to

[[Page 77994]]

determine which facilities could be expected to benefit from the 
exclusion. For example, for a generator with a fossil fuel boiler on-
site, the model assumes that the facility will use the exclusion if the 
total benefits (cost savings) realized by the generator are projected 
to exceed the total costs incurred to take advantage of the exclusion. 
Finally, we aggregated all facilities that are likely to use the 
exclusion to derive estimates for total costs, cost savings, and 
economic impacts (ECF quantities affected).
    The analytical model for this analysis derives both cost savings 
and costs associated with the exclusion. Cost savings include: fuel 
cost savings (net of baseline fuel recovery), avoided hazardous waste 
management costs, transportation cost savings, tracking cost savings, 
and storage cost savings. These factors may be considered economic 
benefits of the action. The model also assesses relevant costs of the 
exclusion. These include: burner storage costs, boiler retrofit costs, 
hazardous secondary material analytical costs, raw materials 
replacement cost (related to the hazardous secondary material that is 
recycled in the baseline), recordkeeping costs, and transport costs.
    The net social benefits are calculated as the difference between 
the social benefits (cost savings) and social costs. The total net 
social benefits of the rule are then calculated by aggregating the net 
social impacts associated with each facility expected to use the 
exclusion. Because this rule establishes ``emissions'' comparable 
fuels, impacts to human health and the environment are assumed to be 
comparable, or generally unchanged as compared to virgin fuels, and are 
therefore not included in our monetized assessment.
    The primary data sources used in this analysis are the 2005 
Biennial Report (2005 BR),\109\ the 1996 National Hazardous Waste 
Constituent Survey (NHWCS),\110\ the 2002 National Emissions Inventory 
(NEI),\111\ the ACC Survey data,\112\ and information provided in the 
engineering analysis developed by EERGC. The 2005 BR data were used to 
derive the potentially eligible hazardous secondary materials currently 
generated in the U.S. This is the only national database available that 
has been reviewed by the Agency to ensure data quality. The 1996 NHWCS 
reflects dated information, but was the only quality controlled data 
source available that provided the necessary constituent information on 
a nationwide basis, across all industries. The NEI data were used to 
make a determination of whether an eligible boiler is located at each 
facility. The EERGC engineering analysis provided all necessary 
engineering cost information.\113\
---------------------------------------------------------------------------

    \109\ U.S. EPA, 2005 National Biennial Report, database and 
supporting documentation available for download at http://www.epa.gov/epaoswer/hazwaste/data/biennialreport/
    \110\ U.S. EPA, National Hazardous Waste Constituent Survey, 
database and supporting documentation available for download at 
http://www.epa.gov/epaoswer/hazwaste/id/hwirwste/economic.html
    \111\ U.S. EPA, 2002 National Emissions Inventory, databases and 
supporting documentation available for download at http://www.epa.gov/ttn/chief/net/2002inventory.html
    \112\ American Chemistry Council (ACC) voluntary membership 
survey of waste generation and management.
    \113\ USEPA, ``Draft Technical Support Document for Expansion of 
the Comparable Fuel Exclusion,'' May 2007, Section 7.
---------------------------------------------------------------------------

    Data limitations have required us to apply several assumptions in 
our analysis. The most critical assumptions are:
     The ECF is assumed to be burned in nonhazardous waste 
boilers that meet the conditions of the exclusion;
     The ECF is assumed to have an average heating value of 
12,200 Btu/lb. (This is based on our assessment of the National 
Hazardous Waste Constituent Survey);
     A facility that can use the exclusion, and has a 
nonhazardous waste boiler on-site that could burn ECF, would burn this 
material on-site rather than sending it off-site;
     The number of facilities purchasing ECF is assumed to 
equal the number of generating facilities expected to send their ECF 
off-site; and,
     All excluded ECF generated in a particular state that is 
sent offsite by the generating facility is assumed to be shipped the 
same distance. (Average shipment distances for each state are derived 
from hazardous waste shipped off-site, as reported in the Biennial 
Report database.)

IV. Key Analytical Limitations

    The primary analytical limitations are associated with our estimate 
of the availability of on-site boilers, and our estimate of ECF 
qualifying for the exclusion. Nationwide data are not available to 
indicate whether each affected generating facility has a boiler on-site 
that can burn ECF. Using the NEI data, we made a determination of 
whether an eligible boiler is located at each facility. This 
determination may misrepresent which boilers could burn ECF and which 
boilers could not. To estimate how much hazardous secondary material 
qualifies as ECF, we used the ACC survey data, and data derived from 
the NHWCS. The data presented in the NHWCS are the most comprehensive 
nationwide data available. However, these data are from 1993, and may 
not fully reflect the characteristics of today's hazardous secondary 
materials.

V. Findings

    This rule is projected to result in a benefit to society in the 
form of net cost savings to the private sector, on a nationwide basis, 
thereby allowing for the more efficient use of limited resources 
elsewhere in the economy. This is accomplished without compromising 
protection of human health and the environment by ensuring comparable 
emissions from the burning of high Btu value hazardous secondary 
materials.
    The total net social benefits projected as a result of this rule 
are estimated at $13.4 million per year. Avoided waste management and 
fuel costs represent the vast majority of all benefits (cost savings). 
Transportation, boiler retrofits, and burner storage costs represent 
the majority of the costs. This estimate assumes all 50 states adopt 
the rule, which is unlikely to occur. As a sensitivity analysis, we 
estimated impacts to only those 16 states that have statutes 
prohibiting them from promulgating standards that are more stringent 
than the Federal regulations or with statutes that require additional 
legislative action to enact standards more stringent than the Federal 
regulations. The total net social benefits under this scenario are 
estimated at $10.1 million per year.
    Approximately 222,500 tons (U.S. short tons) of currently-
classified hazardous secondary materials are expected to qualify for 
the exclusion with approximately 118,500 tons/year actually excluded. 
Of the excluded total, our data indicate that approximately 48,900 tons 
are not burned for energy recovery in the baseline. Of this total, the 
vast majority is reported under BR management code H040--Incineration 
for thermal destruction other than use as a fuel.\114\
---------------------------------------------------------------------------

    \114\ We note that the BR does not identify a management method 
code for wastes that are combusted in an incinerator and where the 
heating value of the wastes is used beneficially in lieu of fossil 
or other fuels to combust other waste with little or no heating 
value. Thus, it is probable that the vast majority of the waste that 
we identify as likely to be excluded as ECF, and which is currently 
combusted in incinerators, is currently being burned for energy 
recovery.
---------------------------------------------------------------------------

    We also analyzed the two primary regulatory options considered by 
the Agency.\115\ Annual net social benefits

[[Page 77995]]

under the first option (less stringent requirements) were found to be 
$14.1 million. The additional cost savings primarily reflect reduced 
burner and generator storage requirements. Under the second option 
(more stringent requirements), net social benefits are estimated at 
$10.9 million per year. The reduced net benefits are largely reflected 
in increased burner storage requirements and greater tracking costs. 
Reduced fuel and management costs account for the vast majority of all 
cost savings under both options, as with the final rule. Under these 
two options, generators are projected to exclude an estimated 100,200 
to 118,800 tons of ECF per year, out of the 222,500 tons/year 
qualifying.
---------------------------------------------------------------------------

    \115\ Alternative Option A would impose conditions that are less 
stringent than those under the final rule (e.g., boiler operator 
training would not be required; dikes and berms would be allowed for 
secondary containment for tanks rather than a liner, double-wall, or 
vault). Alternative Option B would impose conditions that are more 
stringent than those under the final rule (e.g., closure and 
financial requirements for storage units; manifests for shipments). 
See USEPA, ``Assessment of the Potential Costs, Benefits, and other 
Impacts of the Expansion of the RCRA Comparable Fuel Exclusion,'' 
April 2008, Exhibit ES-1.
---------------------------------------------------------------------------

    We believe that it is important to not only understand the change 
in economic efficiency, as presented above, but to also understand the 
primary distributional effects associated with this change. Hazardous 
waste commercial incinerators and cement kilns are projected to 
experience impacts associated with this action. These effects include 
revenue losses and fuel replacement costs for cement kilns, plus 
revenue increases for commercial incinerators. Commercial kilns and 
blenders are projected to experience estimated revenue losses ranging 
from $3.2 to $6.5 million per year, while commercial incinerators may 
experience revenue changes from a decrease of $0.4 million to an 
increase of approximately $2.8 million per year. The losses for cement 
kilns represent less than 1 percent of the current annual waste 
management revenues earned by these facilities. In addition, the shift 
of ECF and hazardous wastes with which ECF is currently blended away 
from commercial kilns represents a fuel loss to these facilities. We 
estimate that the annual cost of replacing this hazardous waste fuel is 
approximately $1.7 to 2.9 million per year.
    Although impacts to these groups may be considered a cost in 
accounting terms, they do not represent a real resource cost of the 
rule. The actual net benefits of this action reflect the impacts to 
these groups to the extent that there are real resource impacts, but do 
not include transfers from one facility to another.
    The findings presented here reflect numerous analytical assumptions 
and limitations. Furthermore, we have analyzed additional scenarios and 
sensitivity analyses that are not presented in this Preamble. Readers 
wishing to gain a full understanding of our analytical methodology, 
data, findings, assumptions, and limitations are encouraged to read the 
Assessment document prepared in support of this final rule, and 
available in the Docket to this rule.

Part Seven: Statutory and Executive Order Reviews

I. Executive Order 12866: Regulatory Planning and Review

    Under Executive Order (EO) 12866 (58 FR 51735, October 4, 1993), 
this action is a ``significant regulatory action,'' since this action 
may raise novel legal or policy issues [3(f)(4)]. Accordingly, EPA 
submitted this action to the Office of Management and Budget (OMB) for 
review under EO 12866. Any changes made in response to OMB 
recommendations have been documented in the docket for this action.
    This rule is projected to result in benefits to society in the form 
of cost savings. The total net cost savings are estimated at $13.4 
million per year. This figure is significantly below the $100 million 
threshold \116\ established under part 3(f)(1) of the Order. Thus, this 
rule is not considered to be an economically significant action. 
However, in an effort to comply with the spirit of the Executive Order, 
we have prepared an economic assessment in support of this action. This 
document is entitled: Assessment of the Potential Costs, Benefits, and 
Other Impacts of the Expansion of the RCRA Comparable Fuel Exclusion-
Final Rule. The RCRA docket established for this rulemaking maintains a 
copy of this Assessment for public review. Interested persons are 
encouraged to read this document.
---------------------------------------------------------------------------

    \116\ This $100 million threshold applies to both costs, and 
cost savings.
---------------------------------------------------------------------------

II. Paperwork Reduction Act

    The information collection requirements in this rule have been 
submitted for approval to OMB under the Paperwork Reduction Act, 44 
U.S.C. 3501 et seq. The information collection requirements are not 
enforceable until OMB approves them.
    The information under this rule is planned to be collected in order 
to ensure that the conditions of the exclusion from RCRA under 40 CFR 
261.38 are being met. The responses to the collection of information 
are mandatory under 40 CFR 261.38, and are necessary for EPA to fulfill 
its congressional mandate to protect public health and the environment. 
The information will, however, be collected only to the extent 
necessary for the implementation of this rule, and will not collect any 
information related to the trade secrets of the stakeholders. EPA will 
protect from public disclosure all confidential business information 
obtained under this rule.
    This promulgated rule is deregulatory. The 64 respondents 
generating and burning excluded ECF would be subject to an annual 
public reporting and recordkeeping burden for the collection of 
information required under this rule of 37,373 hours, and a capital, 
and operation and maintenance cost of $1.4 million. However, because 
the excluded fuel would no longer be considered hazardous waste, the 
generator would not be required to comply with the paperwork, 
reporting, and recordkeeping requirements under the Subtitle C 
hazardous wastes regulations. Therefore, the reporting and 
recordkeeping burden associated with ECF would result in a net annual 
reduction of 32,899 hours and savings of $1.3 million in capital, and 
operation and maintenance costs. The frequency of responses varies with 
the type of response. Burden is defined at 5 CFR 1320.3(b).
    An agency may not conduct or sponsor, and a person is not required 
to respond to, a collection of information unless it displays a 
currently valid OMB control number. The OMB control numbers for EPA's 
regulations in 40 CFR are listed in 40 CFR part 9. When this ICR is 
approved by OMB, the Agency will publish a technical amendment to 40 
CFR part 9 in the Federal Register to display the OMB control number 
for the approved information collection requirements contained in this 
final rule.

III. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) generally requires an agency 
to prepare a regulatory flexibility analysis of any rule subject to 
notice and comment rulemaking requirements under the Administrative 
Procedure Act, or any other statute, unless the agency certifies that 
the rule will not have a significant economic impact on a substantial 
number of small entities. Small entities include small businesses, 
small organizations, and small governmental jurisdictions.
    The RFA provides default definitions for each type of small entity. 
Small entities are defined as: (1) A small business as defined by the 
Small

[[Page 77996]]

Business Administration's (SBA) regulations at 13 CFR 121.201; (2) a 
small governmental jurisdiction that is a government of a city, county, 
town, school district or special district with a population of less 
than 50,000; and (3) a small organization that is any not-for-profit 
enterprise which is independently owned and operated and is not 
dominant in its field.
    After considering the economic impacts of this final rule on small 
entities, I certify that this action will not have a significant 
economic impact on a substantial number of small entities. In 
determining whether a rule has a significant economic impact on a 
substantial number of small entities, the impact of concern is any 
significant adverse economic impact on small entities, since the 
primary purpose of the regulatory flexibility analyses is to identify 
and address regulatory alternatives ``which minimize any significant 
economic impact of the rule on small entities,'' 5 U.S.C. 603 and 604. 
Thus, an agency may certify that a rule will not have a significant 
economic impact on a substantial number of small entities if the rule 
relieves regulatory burden, or otherwise has a positive economic effect 
on all of the small entities subject to the rule. We have determined 
that the affected ECF generators are not owned by small governmental 
jurisdictions or nonprofit organizations. Therefore, only small 
businesses were analyzed for small entity impacts. For the purposes of 
the impact analyses, small entity is defined either by the number of 
employees or by the dollar amount of sales. The level at which a 
business is considered small is determined for each North American 
Industrial Classification System (NAICS) code by the Small Business 
Administration.
    This rule is projected to result in benefits in the form of cost 
savings to companies that use the exclusion. As a result, the rule 
would not result in adverse impacts for any small businesses that 
generate ECF. Our analysis indicates that one or two cement kilns may 
be owned by small businesses, as defined by the SBA for the relevant 
NAICS code. Lost revenue plus fuel replacement costs to these 
facilities have been found to represent less than 3% of the average 
annual waste receipt revenues to these facilities, and considerably 
less impacts when clinker/cement revenues are included. As a result, 
these impacts are not significant. Furthermore, these impacts are not a 
direct economic impact of the rule.
    The reader is encouraged to review our regulatory flexibility 
screening analysis prepared in support of this determination. This 
analysis is incorporated into the Assessment document, which is 
available in the Docket to this final rule.

IV. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, establishes requirements for Federal agencies to assess the 
effects of their regulatory actions on State, local, and tribal 
governments and the private sector. Under section 202 of the UMRA, EPA 
generally must prepare a written statement, including a cost-benefit 
analysis, for proposed and final rules with ``Federal mandates'' that 
may result in expenditures to State, local, and tribal governments, in 
the aggregate, or to the private sector, of $100 million or more in any 
one year. Before promulgating an EPA rule for which a written statement 
is needed, section 205 of the UMRA generally requires EPA to identify 
and consider a reasonable number of regulatory alternatives and adopt 
the least costly, most cost-effective or least burdensome alternative 
that achieves the objectives of the rule. The provisions of section 205 
do not apply when they are inconsistent with applicable law. Moreover, 
section 205 allows EPA to adopt an alternative other than the least 
costly, most cost-effective or least burdensome alternative if the 
Administrator publishes with the final rule an explanation why that 
alternative was not adopted. Before EPA establishes any regulatory 
requirements that may significantly or uniquely affect small 
governments, including tribal governments, it must have developed under 
section 203 of the UMRA a small government agency plan. The plan must 
provide for notifying potentially affected small governments, enabling 
officials of affected small governments to have meaningful and timely 
input in the development of EPA regulatory proposals with significant 
Federal intergovernmental mandates, and informing, educating, and 
advising small governments on compliance with the regulatory 
requirements.
    This final rule contains no Federal mandates (under the regulatory 
provisions of Title II of the UMRA) for State, local, or tribal 
governments or the private sector. The UMRA generally excludes from the 
definition of ``Federal intergovernmental mandate'' duties that arise 
from participation in a voluntary federal program. This rule is a 
voluntary program because the States are not required to adopt these 
requirements as a condition of authorization (or otherwise). In any 
event, EPA has determined that this rule does not contain a Federal 
mandate that may result in expenditures of $100 million or more for 
State, local, and tribal governments, in the aggregate, or the private 
sector in any one year. The total net benefits (cost savings) of this 
action are estimated to be $13.4 million per year.
    Finally, EPA has determined that this rule contains no regulatory 
requirements that might significantly or uniquely affect small 
governments. Small governments are not affected by this action.

V. Executive Order 13132: Federalism

    Executive Order 13132, entitled ``Federalism'' (64 FR 43255, August 
10, 1999), requires EPA to develop an accountable process to ensure 
``meaningful and timely input by state and local officials in the 
development of regulatory policies that have federalism implications.'' 
``Policies that have federalism implications'' is defined in the 
Executive Order to include regulations that have ``substantial direct 
effects on the states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government.''
    This final rule does not have federalism implications. It will not 
have substantial direct effects on the states, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government, 
as specified in Executive Order 13132. The rule focuses on modified 
requirements for facilities generating ECF, without affecting the 
relationships between Federal and state governments. Thus, Executive 
Order 13132 does not apply to this rule.
    Although section 6 of Executive Order 13132 does not apply, EPA did 
consult with representatives of state governments in developing this 
rule. Representatives from the states of North Carolina, Georgia, 
Missouri, Louisiana, and Oregon provided valuable input and review.

VI. Executive Order 13175: Consultation and Coordination With Indian 
Tribal Governments

    Executive Order 13175, entitled ``Consultation and Coordination 
with Indian Tribal Governments'' (65 FR 67249, November 9, 2000), 
requires EPA to develop an accountable process to ensure ``meaningful 
and timely input by tribal officials in the development of regulatory 
policies that have tribal implications.'' This final rule does not have 
tribal implications, as specified in

[[Page 77997]]

Executive Order 13175. No Tribal governments are known to own or 
operate facilities generating or burning hazardous secondary materials 
subject to this rule. Thus, Executive Order 13175 does not apply to 
this rule.

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

    This action is not subject to Executive Order 13045 (62 F.R. 19885, 
April 23, 1997) because it is not economically significant as defined 
in Executive Order 12866, and because the Agency does not believe the 
environmental health or safety risks addressed by this action present a 
disproportionate risk to children. A health and risk assessment in 
support of this action is unnecessary due to the comparable emission 
nature of this action.

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

    This rule is not subject to Executive Order 13211, ``Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use'' (66 FR 28355 (May 22, 2001)) because it is not a 
significant regulatory action under Executive Order 12866.
    This rule will not seriously disrupt energy supply, distribution 
patterns, prices, imports or exports. Furthermore, this rule is 
designed to improve economic efficiency by expanding the use of fuels 
that are hazardous secondary materials.

IX. National Technology Transfer Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement 
Act of 1995 (``NTTAA''), Public Law 104-113, 12(d) (15 U.S.C. 272 note) 
directs EPA to use voluntary consensus standards in its regulatory 
activities unless to do so would be inconsistent with applicable law or 
otherwise impractical. Voluntary consensus standards are technical 
standards (e.g., materials specifications, test methods, sampling 
procedures, and business practices) that are developed or adopted by 
voluntary consensus standards bodies. NTTAA directs EPA to provide 
Congress, through OMB, explanations when the Agency decides not to use 
available and applicable voluntary consensus standards.
    This rulemaking involves environmental monitoring or measurement. 
Consistent with the Agency's Performance Based Measurement System 
(``PBMS''), EPA has decided not to require the use of specific, 
prescribed analytic methods. Rather, the rule will allow the use of any 
method that meets the prescribed performance criteria. The PBMS 
approach is intended to be more flexible and cost-effective for the 
regulated community; it is also intended to encourage innovation in 
analytical technology and improved data quality. EPA is not precluding 
the use of any method, whether it constitutes a voluntary consensus 
standard or not, as long as it meets the performance criteria 
specified.

X. Executive Order 12898: Federal Actions to Address Environmental 
Justice in Minority Populations and Low-Income Populations.

    Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes 
federal executive policy on environmental justice. Its main provision 
directs federal agencies, to the greatest extent practicable and 
permitted by law, to make environmental justice part of their mission 
by identifying and addressing, as appropriate, disproportionately high 
and adverse human health or environmental effects of their programs, 
policies, and activities on minority populations and low-income 
populations in the United States.
    EPA has determined that this final rule will not have 
disproportionately high and adverse human health or environmental 
effects on minority or low-income populations because it does not 
affect the level of protection provided to human health or the 
environment. This rule is designed to allow for the use of hazardous 
secondary materials as fuel under a comparable emission standard, 
resulting in no incremental increase in risk to human health and the 
environment, when compared to the burning of virgin fuels.

XI. Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the 
Small Business Regulatory Enforcement Fairness Act of 1996, generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. EPA will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States prior 
to publication of the rule in the Federal Register. A Major rule cannot 
take effect until 60 days after it is published in the Federal 
Register. This action is not a ``major rule'' as defined by 5 U.S.C. 
804(2). This rule will be effective January 20, 2009.

List of Subjects in 40 CFR Part 261

    Hazardous waste, Recycling, Reporting and recordkeeping 
requirements.

    Dated: December 12, 2008.
Stephen L. Johnson,
Administrator.

0
For the reasons set out in the preamble, title 40, chapter I, of the 
Code of Federal Regulations is amended as follows:

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

0
1. The authority citation for part 261 continues to read as follows:

    Authority: 42 U.S.C. 6903, 6912(b), 6925.


0
2. Section 261.4 is amended by revising paragraph (a)(16) to read as 
follows:


Sec.  261.4  Exclusions.

    (a) * * *
    (16) Comparable fuels, emission-comparable fuels, or comparable 
syngas fuels that meet the requirements of Sec.  261.38.
* * * * *

0
3. Section 261.38 is revised to read as follows:


Sec.  261.38  Exclusion of comparable fuel, emission-comparable fuel, 
and syngas fuel.

    (a) Specifications for excluded fuels. Materials that meet the 
specifications for comparable fuel, emission-comparable fuel, or syngas 
fuel under paragraphs (a)(1), (a)(2), or (a)(3) of this section, 
respectively, and the other requirements of this section, are not solid 
wastes.
    (1) Comparable fuel specifications.--(i) Physical specifications.--
(A) Heating value. The heating value must exceed 5,000 BTU/lbs. (11,500 
J/g).
    (B) Viscosity. The viscosity must not exceed: 50 cs, as-fired.
    (ii) Constituent specifications. For compounds listed in Table 1 to 
this section, the specification levels and, where non-detect is the 
specification, minimum required detection limits are: (see Table 1 of 
this section).
    (2) Emission-comparable fuel specifications--The specifications 
shall be met as-generated. (i) Physical specifications.--(A) Heating 
value. The heating value must be 8,000 BTU/lbs (18,400 J/g) or greater.
    (B) Viscosity. The viscosity must not exceed 50 cs.
    (ii) Constituent specifications--(A) Except as provided by 
paragraph (a)(2)(ii)(B) of this section, for

[[Page 77998]]

compounds listed in Table 1 of this section the specification levels 
and, where nondetect is the specification, minimum required detection 
limits, are: (see Table 1 of this section).
    (B) Specifications not applicable. The specification levels in 
Table 1 to this section do not apply for the following hydrocarbons and 
oxygenates under the special conditions provided under this section for 
emission-comparable fuel:
    (1) Benzo(a)anthracene (CAS No. 56-55-3).
    (2) Benzene (CAS No. 71-43-2).
    (3) Benzo(b)fluoranthene (CAS No. 205-99-2)
    (4) Benzo(k)fluoranthene (CAS No. 207-08-9)
    (5) Benzo(a)pyrene (CAS No. 50-32-8)
    (6) Chrysene (CAS No. 218-01-9)
    (7) Dibenzo(a,h)anthracene (CAS No. 52-70-3)
    (8) 7,12-Dimethylbenz(a)anthracene (CAS No. 57-97-6)
    (9) Flouranthene (CAS No. 206-44-0)
    (10) Indeno(1,2,3-cd)pyrene (CAS No. 193-39-5)
    (11) 3-Methlycholanthrene (CAS No. 56-49-5)
    (12) Naphthalene (CAS No. 91-20-3)
    (13) Toluene (CAS No. 108-88-3).
    (14) Acetophenone (CAS No. 98-86-2).
    (15) Acrolein (CAS No. 107-02-8).
    (16) Allyl alcohol (CAS No. 107-18-6).
    (17) Bis(2-ethylhexyl)phthalate [Di-2-e thylhexyl phthalate] (CAS 
No.117-81-7).
    (18) Butyl benzyl phthalate (CAS No. 85-68-7).
    (19) o-Cresol [2-Methyl phenol] (CAS No. 95-48-7).
    (20) m-Cresol [3-Methyl phenol] (CAS No. 108-39-4).
    (21) p-Cresol [4-Methyl phenol] (CAS No.106-44-5).
    (22) Di-n-butyl phthalate (CAS No. 84-74-2).
    (23) Diethyl phthalate (CAS No. 84-66-2).
    (24) 2,4-Dimethylphenol (CAS No. 105-67-9).
    (25) Dimethyl phthalate (CAS No. 131-11-3).
    (26) Di-n-octyl phthalate (CAS No. 117-84-0).
    (27) Endothall (CAS No. 145-73-3).
    (28) Ethyl methacrylate (CAS No. 97-63-2).
    (29) 2-Ethoxyethanol [Ethylene glycol monoethyl ether] (CAS No. 
110-80-5).
    (30) Isobutyl alcohol (CAS No. 78-83-1).
    (31) Isosafrole (CAS No. 120-58-1).
    (32) Methyl ethyl ketone [2-Butanone] (CAS No. 78-93-3).
    (33) Methyl methacrylate (CAS No. 80-62-6).
    (34) 1,4-Naphthoquinone (CAS No. 130-15-4).
    (35) Phenol (CAS No. 108-95-2).
    (36) Propargyl alcohol [2-Propyn-1-ol] (CAS No. 107-19-7).
    (37) Safrole (CAS No. 94-59-7).
    (3) Synthesis gas fuel specifications.--Synthesis gas fuel (i.e., 
syngas fuel) that is generated from hazardous waste must:
    (i) Have a minimum Btu value of 100 Btu/Scf;
    (ii) Contain less than 1 ppmv of total halogen;
    (iii) Contain less than 300 ppmv of total nitrogen other than 
diatomic nitrogen (N2);
    (iv) Contain less than 200 ppmv of hydrogen sulfide; and
    (v) Contain less than 1 ppmv of each hazardous constituent in the 
target list of appendix VIII constituents of this part.
    (4) Blending to meet the specifications. (i) Comparable fuel. (A) 
Hazardous waste shall not be blended to meet the comparable fuel 
specification under paragraph (a)(1) of this section, except as 
provided by paragraph (a)(4)(i)(B) of this section:
    (B) Blending to meet the viscosity specification. A hazardous waste 
blended to meet the viscosity specification for comparable fuel shall:
    (1) As generated and prior to any blending, manipulation, or 
processing, meet the constituent and heating value specifications of 
paragraphs (a)(1)(i)(A) and (a)(1)(ii) of this section;
    (2) Be blended at a facility that is subject to the applicable 
requirements of parts 264 and 265, or Sec.  262.34 of this chapter; and
    (3) Not violate the dilution prohibition of paragraph (a)(7) of 
this section.
    (ii) Emission-comparable fuel. Hazardous waste shall not be treated 
by blending or other means to meet the emission-comparable fuel 
specifications under paragraph (a)(2) of this section. Emission-
comparable fuel must meet those specifications as-generated by the 
original generator of the material. Emission-comparable fuel that has 
met the specifications under paragraph (a)(2) of this section as-
generated, and that is subsequently commingled with other materials, 
must continue to meet the specifications.
    (5) Treatment to meet the comparable fuel specifications. (i) A 
hazardous waste may be treated to meet the specifications for 
comparable fuel under paragraph (a)(1) of this section provided the 
treatment:
    (A) Destroys or removes the constituent listed in the specification 
or raises the heating value by removing or destroying hazardous 
constituents or materials;
    (B) Is performed at a facility that is subject to the applicable 
requirements of parts 264 and 265, or Sec.  262.34 of this chapter; and
    (C) Does not violate the dilution prohibition of paragraph (a)(7) 
of this section.
    (ii) Residuals resulting from the treatment of a hazardous waste 
listed in subpart D of this part to generate a comparable fuel remain a 
hazardous waste.
    (6) Generation of a syngas fuel. (i) A syngas fuel can be generated 
from the processing of hazardous wastes to meet the exclusion 
specifications of paragraph (a)(3) of this section provided the 
processing:
    (A) Destroys or removes the constituent listed in the specification 
or raises the heating value by removing or destroying constituents or 
materials;
    (B) Is performed at a facility that is subject to the applicable 
requirements of parts 264 and 265, or Sec.  262.34 of this chapter or 
is an exempt recycling unit pursuant to Sec.  261.6(c); and
    (C) Does not violate the dilution prohibition of paragraph (a)(7) 
of this section.
    (ii) Residuals resulting from the treatment of a hazardous waste 
listed in subpart D of this part to generate a syngas fuel remain a 
hazardous waste.
    (7) Dilution prohibition for comparable fuel, emission-comparable 
fuel, and syngas fuel. (i) Comparable fuel and syngas fuel. No 
generator, transporter, handler, or owner or operator of a treatment, 
storage, or disposal facility shall in any way dilute a hazardous waste 
to meet the specifications of paragraphs (a)(1)(i)(A) or (a)(1)(ii) of 
this section for comparable fuel or paragraph (a)(3) of this section 
for syngas.
    (ii) Emission-comparable fuel. Emission-comparable fuel shall not 
be generated by means of dilution.
    (b) Implementation.--(1) General.--(i) Materials that meet the 
specifications provided by paragraph (a) of this section for comparable 
fuel, emission-comparable fuel, or syngas fuel are excluded from the 
definition of solid waste provided that the conditions under this 
section are met. For purposes of this section, such materials are 
called excluded fuel, and the person claiming and qualifying for the 
exclusion is called the excluded fuel generator and the person burning 
the excluded fuel is called the excluded fuel burner.
    (ii) The person who generates the excluded fuel must claim the 
exclusion by compliance with the conditions of this section and keep 
records necessary to document compliance with those conditions.

[[Page 77999]]

    (2) Notices. (i) Notices to State RCRA and CAA Directors in 
authorized States or regional RCRA and CAA Directors in unauthorized 
States. (A) The generator must submit a one-time notice, except as 
provided by paragraph (b)(2)(i)(C) of this section, to the Regional or 
State RCRA and CAA Directors, in whose jurisdiction the exclusion is 
being claimed and where the excluded fuel will be burned, certifying 
compliance with the conditions of the exclusion and providing the 
following documentation:
    (1) The name, address, and RCRA ID number of the person/facility 
claiming the exclusion;
    (2) The applicable EPA Hazardous Waste Codes that would otherwise 
apply to the excluded fuel;
    (3) The name and address of the units meeting the requirements of 
paragraphs (b)(3) and (c) of this section, that will burn the excluded 
fuel;
    (4) An estimate of the average and maximum monthly and annual 
quantity of material for which an exclusion would be claimed, except as 
provided by paragraph (b)(2)(i)(D) of this section; and
    (5) The following statement, which shall be signed and submitted by 
the person claiming the exclusion or his authorized representative:

    Under penalty of criminal and civil prosecution for making or 
submitting false statements, representations, or omissions, I 
certify that the requirements of 40 CFR 261.38 have been met for all 
emission-comparable fuel/comparable fuel (specify which) identified 
in this notification. Copies of the records and information required 
at 40 CFR 261.38(b)(8) are available at the generator's facility. 
Based on my inquiry of the individuals immediately responsible for 
obtaining the information, the information is, to the best of my 
knowledge and belief, true, accurate, and complete. I am aware that 
there are significant penalties for submitting false information, 
including the possibility of fine and imprisonment for knowing 
violations.

    (B) Generators of emission-comparable fuel must also include in the 
notices:
    (1) An estimate of the annual quantity of each material for which 
an emission-comparable fuel exclusion would be claimed; and
    (2) An estimate of the maximum concentration of each compound in 
Table 2 to this section in each emission-comparable fuel stream for 
which the fuel exceeds the comparable fuel specifications for those 
compounds in Table 1 to this section.
    (C) If there is a substantive change in the information provided in 
the notice required under this paragraph (b)(2)(i), the generator must 
submit a revised notification.
    (D) Comparable fuel and syngas fuel generators must include an 
estimate of the average and maximum monthly and annual quantity of 
material for which an exclusion would be claimed only in notices 
submitted after December 19, 2008 for newly excluded comparable fuel or 
syngas fuel or for revised notices as required by paragraph 
(b)(2)(i)(C) of this section.
    (ii) Public notice. Prior to burning an excluded fuel, the burner 
must publish in a major newspaper of general circulation local to the 
site where the fuel will be burned, a notice entitled ``Notification of 
Burning a Fuel Excluded Under the Resource Conservation and Recovery 
Act'' and containing the following information:
    (A) Name, address, and RCRA ID number of the generating 
facility(ies);
    (B) Name and address of the burner and identification of the 
unit(s) that will burn the excluded fuel;
    (C) A brief, general description of the manufacturing, treatment, 
or other process generating the excluded fuel;
    (D) An estimate of the average and maximum monthly and annual 
quantity of the excluded fuel to be burned; and
    (E) Name and mailing address of the Regional or State Directors to 
whom the generator submitted a claim for the exclusion.
    (3) Burning. (i) Comparable fuel and syngas fuel. The exclusion for 
fuels meeting the specifications under paragraphs (a)(1) or (a)(3) of 
this section applies only if the fuel is burned in the following units 
that also shall be subject to Federal/State/local air emission 
requirements, including all applicable requirements implementing 
Section 112 of the Clean Air Act:
    (A) Industrial furnaces as defined in Sec.  260.10 of this chapter;
    (B) Boilers, as defined in Sec.  260.10 of this chapter, that are 
further defined as follows:
    (1) Industrial boilers located on the site of a facility engaged in 
a manufacturing process where substances are transformed into new 
products, including the component parts of products, by mechanical or 
chemical processes; or
    (2) Utility boilers used to produce electric power, steam, heated 
or cooled air, or other gases or fluids for sale;
    (C) Hazardous waste incinerators subject to regulation under 
subpart O of parts 264 or 265 of this chapter or applicable CAA MACT 
standards.
    (D) Gas turbines used to produce electric power, steam, heated or 
cooled air, or other gases or fluids for sale.
    (ii) Emission-comparable fuel. The exclusion for fuel meeting the 
specifications under paragraph (a)(2) of this section applies only if 
the fuel is burned under the conditions provided by paragraph (c) of 
this section.
    (4) Fuel analysis plan for generators. The generator of an excluded 
fuel shall develop and follow a written fuel analysis plan which 
describes the procedures for sampling and analysis of the material to 
be excluded. The plan shall be followed and retained at the site of the 
generator claiming the exclusion.
    (i) At a minimum, the plan must specify:
    (A) The parameters for which each excluded fuel will be analyzed 
and the rationale for the selection of those parameters;
    (B) The test methods which will be used to test for these 
parameters;
    (C) The sampling method which will be used to obtain a 
representative sample of the excluded fuel to be analyzed;
    (D) The frequency with which the initial analysis of the excluded 
fuel will be reviewed or repeated to ensure that the analysis is 
accurate and up to date; and
    (E) If process knowledge is used in the determination, any 
information prepared by the generator in making such determination.
    (ii) For each analysis, the generator shall document the following:
    (A) The dates and times that samples were obtained, and the dates 
the samples were analyzed;
    (B) The names and qualifications of the person(s) who obtained the 
samples;
    (C) A description of the temporal and spatial locations of the 
samples;
    (D) The name and address of the laboratory facility at which 
analyses of the samples were performed;
    (E) A description of the analytical methods used, including any 
clean-up and sample preparation methods;
    (F) All quantitation limits achieved and all other quality control 
results for the analysis (including method blanks, duplicate analyses, 
matrix spikes, etc.), laboratory quality assurance data, and the 
description of any deviations from analytical methods written in the 
plan or from any other activity written in the plan which occurred;
    (G) All laboratory results demonstrating whether the exclusion 
specifications have been met; and
    (H) All laboratory documentation that support the analytical 
results, unless a contract between the claimant and the laboratory 
provides for the documentation to be maintained by the laboratory for 
the period specified in paragraph (b)(9) of this section and also 
provides for the availability of the documentation to the claimant upon 
request.

[[Page 78000]]

    (iii) Syngas fuel generators shall submit for approval, prior to 
performing sampling, analysis, or any management of an excluded syngas 
fuel, a fuel analysis plan containing the elements of paragraph 
(b)(4)(i) of this section to the appropriate regulatory authority. The 
approval of fuel analysis plans must be stated in writing and received 
by the facility prior to sampling and analysis to demonstrate the 
exclusion of a syngas. The approval of the fuel analysis plan may 
contain such provisions and conditions as the regulatory authority 
deems appropriate.
    (5) Analysis plans for burners of emission-comparable fuel. An 
emission-comparable fuel burner is subject to the fuel analysis plan 
requirements under paragraph (b)(4) of this section to determine, for 
each fuel fed to the boiler when burning emission-comparable fuel, the 
as-fired heating value and the as-fired concentration of each compound 
listed in paragraph (a)(2)(ii)(B) of this section, except for fuels 
under the situations described below:
    (i) Coal or fuel oil used as primary fuels, when the burner uses 
the heating values and compound concentrations for these fuels provided 
in paragraph (c)(2)(ii)(C) of this section and Tables 3 and 4 to Sec.  
261.38;
    (ii) Emission-comparable fuel, when the burner receives 
documentation of this information from the generator for each shipment 
of emission-comparable fuel, provided that the emission-comparable fuel 
is not blended with other fuels before firing to the burner.
    (iii) Emission-comparable fuel, when the burner receives 
documentation of this information from the generator for each shipment 
of emission-comparable fuel, and the emission-comparable fuel is 
blended with other fuels before firing to the burner, provided that:
    (A) The burner has determined the heating value of the other fuels 
and the concentration of each compound listed in paragraph 
(a)(2)(ii)(B) of this section for the other fuels; and;
    (B) The burner determines by calculation the as-fired heating value 
of the blended emission-comparable fuel and the as-fired concentration 
of each compound listed in paragraph (a)(2)(ii)(B) of this section of 
the blended emission-comparable fuel.
    (6) Excluded fuel sampling and analysis. (i) General. For 
comparable fuel, emission-comparable fuel, and syngas for which an 
exclusion is claimed under the specifications provided by paragraphs 
(a)(1), (a)(2), or (a)(3) of this section, the generator of the 
material must test for all the constituents in appendix VIII to this 
part, except those that the generator determines, based on testing or 
knowledge, should not be present in the fuel. The generator is required 
to document the basis of each determination that a constituent with an 
applicable specification should not be present. The generator may not 
determine that any of the following categories of constituents with a 
specification in Table 1 to this section should not be present:
    (A) A constituent that triggered the toxicity characteristic for 
the constituents that were the basis for listing the hazardous 
secondary material as a hazardous waste, or constituents for which 
there is a treatment standard for the waste code in 40 CFR 268.40;
    (B) A constituent detected in previous analysis of the material;
    (C) Constituents introduced into the process that generates the 
material; or
    (D) Constituents that are byproducts or side reactions to the 
process that generates the material.

    Note to paragraph (b)(6)(i): Any claim under this section must 
be valid and accurate for all hazardous constituents; a 
determination not to test for a hazardous constituent will not 
shield a generator from liability should that constituent later be 
found in the fuel/syngas above the exclusion specifications.

    (ii) Use of process knowledge. (A) Comparable fuel and syngas. For 
each material for which the comparable fuel or syngas exclusion is 
claimed where the generator of the excluded fuel is not the original 
generator of the hazardous waste, the generator of the excluded fuel 
may not use process knowledge pursuant to paragraph (b)(6)(i) of this 
section and must test to determine that all of the constituent 
specifications of paragraphs (a)(1) and (a)(3) of this section, as 
applicable, have been met.
    (B) Emission-comparable fuel. Emission-comparable fuel must meet 
the specifications for exclusion as-generated. Thus, the generator may 
use process knowledge to determine that compounds listed in Appendix 
VIII to this part are not present in the emission-comparable fuel.
    (iii) The excluded fuel generator may use any reliable analytical 
method to demonstrate that no constituent of concern is present at 
concentrations above the specification levels. It is the responsibility 
of the generator to ensure that the sampling and analysis are unbiased, 
precise, and representative of the excluded fuel. For the fuel to be 
eligible for exclusion, a generator must demonstrate that:
    (A) The 95% upper confidence limit of the mean concentration for 
each constituent of concern is not above the specification level; and
    (B) The analyses could have detected the presence of the 
constituent at or below the specification level.
    (iv) Nothing in this paragraph (b)(6) preempts, overrides or 
otherwise negates the provision in Sec.  262.11 of this chapter, which 
requires any person who generates a solid waste to determine if that 
waste is a hazardous waste.
    (v) In an enforcement action, the burden of proof to establish 
conformance with the exclusion specification shall be on the generator 
claiming the exclusion.
    (vi) The generator must conduct sampling and analysis in accordance 
with the fuel analysis plan developed under paragraph (b)(4) of this 
section.
    (vii) Viscosity condition for comparable fuel. (A) Excluded 
comparable fuel that has not been blended to meet the kinematic 
viscosity specification shall be analyzed as-generated.
    (B) If hazardous waste is blended to meet the kinematic viscosity 
specification for comparable fuel, the generator shall:
    (1) Analyze the hazardous waste as-generated to ensure that it 
meets the constituent and heating value specifications of paragraph 
(a)(1) of this section; and
    (2) After blending, analyze the fuel again to ensure that the 
blended fuel meets all comparable fuel specifications.
    (viii) Excluded fuel must be re-tested, at a minimum, annually and 
must be retested after a process change that could change its chemical 
or physical properties in a manner that may affect conformance with the 
specifications.
    (ix) An emission-comparable fuel burner must determine, for each 
fuel fired to the burner, the as-fired heating value of the emission-
comparable fuel and the as-fired concentration of each compound listed 
in paragraph (a)(2)(ii)(B) of this section using information provided 
by the generator, information provided by paragraph (c)(2)(ii)(C) of 
this section and Tables 3 and 4 to this section, by sampling and 
analysis, or by calculation when emission-comparable fuel is commingled 
with other fuels and the heating value of the emission comparable fuel 
and the concentration of each compound listed in paragraph 
(a)(2)(ii)(B) of this section is known for the fuels prior to 
commingling.
    (7) Speculative accumulation. Excluded fuel must not be accumulated 
speculatively, as defined in Sec.  261.1(c)(8).
    (8) Operating record. The generator must maintain an operating 
record on

[[Page 78001]]

site containing the following information:
    (i) All information required to be submitted to the implementing 
authority as part of the notification of the claim:
    (A) The owner/operator name, address, and RCRA ID number of the 
person claiming the exclusion;
    (B) For each excluded fuel, the EPA Hazardous Waste Codes that 
would be applicable if the material were discarded; and
    (C) The certification signed by the person claiming the exclusion 
or his authorized representative.
    (ii) A brief description of the process that generated the excluded 
fuel. If the comparable fuel generator is not the generator of the 
original hazardous waste, provide a brief description of the process 
that generated the hazardous waste;
    (iii) The monthly and annual quantities of each fuel claimed to be 
excluded;
    (iv) Documentation for any claim that a constituent is not present 
in the excluded fuel as required under paragraph (b)(6) of this 
section;
    (v) The results of all analyses and all detection limits achieved 
as required under paragraph (b)(4) of this section;
    (vi) If the comparable fuel was generated through treatment or 
blending, documentation of compliance with the applicable provisions of 
paragraphs (a)(4) and (a)(5) of this section;
    (vii) If the excluded fuel is to be shipped off-site, a 
certification from the burner as required under paragraph (b)(10) of 
this section;
    (viii) The fuel analysis plan and documentation of all sampling and 
analysis results as required by paragraph (b)(4) of this section; and
    (ix) If the generator ships excluded fuel off-site for burning, the 
generator must retain for each shipment the following information on-
site:
    (A) The name and address of the facility receiving the excluded 
fuel for burning;
    (B) The quantity of excluded fuel shipped and delivered;
    (C) The date of shipment or delivery;
    (D) A cross-reference to the record of excluded fuel analysis or 
other information used to make the determination that the excluded fuel 
meets the specifications as required under paragraph (b)(4) of this 
section; and
    (E) A one-time certification by the burner as required under 
paragraph (b)(10) of this section.
    (9) Records retention. Records must be maintained for a period of 
three years.
    (10) Burner certification to the generator.--(i) Comparable fuel 
and syngas fuel. Prior to submitting a notification to the State and 
Regional Directors, a generator of comparable fuel or syngas fuel 
excluded under paragraphs (a)(1) or (a)(3) of this section who intends 
to ship the excluded fuel off-site for burning must obtain a one-time 
written, signed statement from the burner:
    (A) Certifying that the excluded fuel will only be burned in an 
industrial furnace, industrial boiler, utility boiler, or hazardous 
waste incinerator, as required under paragraph (b)(3) of this section;
    (B) Identifying the name and address of the facility that will burn 
the excluded fuel; and
    (C) Certifying that the state in which the burner is located is 
authorized to exclude wastes as excluded fuel under the provisions of 
this section.
    (ii) Emission-comparable fuel. Prior to submitting a notification 
to the State and Regional Directors, a generator of emission-comparable 
fuel who intends to ship the excluded fuel off-site for burning must 
obtain a one-time written, signed statement from the burner:
    (A) Certifying that the excluded fuel will be stored under the 
conditions of paragraphs (c)(1) or (e) of this section and burned under 
the conditions of paragraph (c)(2) of this section, and that the burner 
will comply with the notification, reporting, and recordkeeping 
conditions of paragraph (c)(5) of this section;
    (B) Identifying the name and address of the facility that will burn 
the excluded fuel; and
    (C) Certifying that the state in which the burner is located is 
authorized to exclude wastes as excluded fuel under the provisions of 
this section.
    (11) Ineligible waste codes. Wastes that are listed as hazardous 
waste because of the presence of dioxins or furans, as set out in 
appendix VII of this part, are not eligible for these exclusions, and 
any fuel produced from or otherwise containing these wastes remains a 
hazardous waste subject to full RCRA hazardous waste management 
requirements.
    (12) Regulatory status of boiler residues. Burning excluded fuel 
that was otherwise a hazardous waste listed under Sec. Sec.  261.31 
through 261.33 does not subject boiler residues, including bottom ash 
and emission control residues, to regulation as derived-from hazardous 
wastes.
    (13) Residues in containers and tank systems upon cessation of 
operations. (i) Liquid and accumulated solid residues that remain in a 
container or tank system for more than 90 days after the container or 
tank system ceases to be operated for storage or transport of excluded 
fuel product are subject to regulation under parts 262 through 265, 
268, 270, 271, and 124 of this chapter.
    (ii) Liquid and accumulated solid residues that are removed from a 
container or tank system after the container or tank system ceases to 
be operated for storage or transport of excluded fuel product are solid 
wastes subject to regulation as hazardous waste if the waste exhibits a 
characteristic of hazardous waste under Sec. Sec.  261.21 through 
261.24 or if the fuel were otherwise a hazardous waste listed under 
Sec. Sec.  261.31 through 261.33 when the exclusion was claimed.
    (iii) Liquid and accumulated solid residues that are removed from a 
container or tank system and which do not meet the specifications for 
exclusion under paragraphs (a)(1) or (a)(2) of this section are solid 
wastes subject to regulation as hazardous waste if:
    (A) The waste exhibits a characteristic of hazardous waste under 
Sec. Sec.  261.21 through 261.24; or
    (B) If the fuel were otherwise a hazardous waste listed under 
Sec. Sec.  261.31 through 261.33. The hazardous waste code for the 
listed waste applies to these liquid and accumulated solid resides.
    (14) Waiver of RCRA Closure Requirements. Interim status and 
permitted storage and combustion units, and generator storage units 
exempt from the permit requirements under Sec.  262.34 of this chapter, 
are not subject to the closure requirements of 40 CFR Parts 264, 265, 
and 267 provided that the storage and combustion unit has been used to 
manage only hazardous waste that is subsequently excluded under the 
conditions of this section, and that afterward will be used only to 
manage fuel excluded under this section.
    (15) Spills and leaks. (i) Excluded fuel that is spilled or leaked 
and that therefore no longer meets the conditions of the exclusion is 
discarded and must be managed as a hazardous waste if it exhibits a 
characteristic of hazardous waste under Sec. Sec.  261.21 through 
261.24 or if the fuel were otherwise a hazardous waste listed in 
Sec. Sec.  261.31 through 261.33.
    (ii) For excluded fuel that would have otherwise been a hazardous 
waste listed in Sec. Sec.  261.31 through 261.33 and which is spilled 
or leaked, the hazardous waste code for the listed waste applies to the 
spilled or leaked material.
    (16) Nothing in this section preempts, overrides, or otherwise 
negates the provisions in CERCLA Section 103, which establish reporting 
obligations for releases of hazardous substances, or the

[[Page 78002]]

Department of Transportation requirements for hazardous materials in 49 
CFR parts 171 through 180.
    (c) Special conditions for emission-comparable fuel. The following 
additional conditions apply to emission-comparable fuel--fuel that 
meets the specifications under paragraph (a)(2) of this section.
    (1) Storage. (i) General. Emission-comparable fuel may be stored in 
a container or tank under the conditions of paragraphs (c)(1)(iii) 
through (c)(1)(viii) of this section, or alternative conditions under 
paragraph (e) of this section.
    (ii) Prohibition on underground storage. Emission-comparable fuel 
shall not be stored in an underground tank. An underground tank is a 
tank the volume of which (including the volume of underground pipes 
connecting thereto) is 10 percent or more beneath the surface of the 
ground.
    (iii) Spill prevention, control, and countermeasures (SPCC) 
requirements. Emission-comparable fuel storage tanks and containers 
with a capacity equal to or greater than 0.1 m\3\ (26 gallons) are 
subject to the following Spill Prevention, Control, and Countermeasures 
(SPCC) requirements adopted from 40 CFR Part 112. To satisfy the 
adopted conditions, you must substitute the term ``emission-comparable 
fuel'' for the term ``oil,'' and by substituting the term ``release of 
emission-comparable fuel to the environment'' for the term ``discharge 
as described in Sec.  112.1(b).''
    (A) Section 112.2, Definitions. These definitions apply to the 
adopted SPCC requirements under paragraphs (c)(1)(iii)(B) through 
(c)(1)(iii)(D) of this section.
    (B) Sections 112.3(d) and 112.3(e) of this chapter, Requirement to 
Prepare and Implement a Spill Prevention, Control, and Countermeasure 
Plan. (1) You must prepare a SPCC Plan in writing, and in accordance 
with the adopted provisions of Sec. Sec.  112.7 and 112.8 of this 
chapter;
    (2) The SPCC Plan must be reviewed and certified according to the 
provisions of Sec.  112.3(d) of this chapter and must be made available 
to the Regional Administrator according to the provisions of Sec.  
112.3(e) of this chapter;
    (3) You must amend your SPCC Plan as directed by the Regional 
Administrator upon a finding that amendment is necessary to prevent and 
contain releases of emission-comparable fuel from your facility. You 
must implement the amended SPCC Plan as soon as possible, but not later 
than six months after you amend your SPCC Plan, unless the Regional 
Administrator specifies another date;
    (C) Sections 112.5(a) and 112.5(b) of this chapter, Amendment of 
Spill Prevention, Control, and Countermeasures Plan by Owners or 
Operators. (1) You must comply with the provisions of Sec.  112.5(a) 
and (b) of this chapter by substituting the term ``release of emission-
comparable fuel to the environment'' for the term ``discharge as 
described in Sec.  112.1(b);''
    (2) You must have a Professional Engineer certify any technical 
amendment to your Plan in accordance with Sec.  112.3(d) of this 
chapter.
    (D) Section 112.7 of this chapter, General Requirements for Spill 
Prevention, Control, and Countermeasure Plans. (1) You must comply with 
the requirements of Sec.  112.7, except for paragraphs (a)(2), (c), 
(d), and (k) of that section.
    (2) Your Plan may deviate from the requirements Sec.  112.7(g), 
(h)(2), (h)(3) and (i), and the adopted provisions of Sec.  112.8, 
where applicable to a specific facility, if you provide equivalent 
protection by some other means of spill prevention, control, or 
countermeasure. Where your Plan does not conform to the applicable 
requirements in Sec.  112.7(g), (h)(2), (h)(3) and (i) and the adopted 
provisions of Sec.  112.8 of this chapter, you must state the reasons 
for nonconformance in your Plan and describe in detail alternate 
methods and how you will achieve equivalent environmental protection. 
If the Regional Administrator determines that the measures described in 
your Plan do not provide equivalent environmental protection, he may 
require that you amend your Plan.
    (E) Section 112.8 of this chapter, Spill Prevention, Control, and 
Countermeasure Plan Requirements for Onshore Facilities, except for 
paragraph (b) of this section (facility drainage), paragraph (c)(2) of 
this section (secondary containment for bulk storage containers), 
paragraph (c)(4) of this section (protection of completely buried 
storage tanks), and paragraph (c)(11) of this section (secondary 
containment for mobile containers), with the following revisions:
    (1) You must inspect at least weekly areas where portable 
containers are stored to look for leaking containers and for 
deterioration of containers and the containment system caused by 
corrosion or other factors.
    (2) Section 112.8(d)(1) of this chapter applies to all buried 
piping irrespective of the installation or replacement date.
    (iv) Containment and detection of releases--(A) Tanks. To prevent 
the release of emission comparable fuel or hazardous constituents to 
the environment, you must provide secondary containment for emission-
comparable fuel tank systems as prescribed by the following 
requirements adopted from Sec.  264.193 of this chapter. To satisfy the 
adopted conditions, you must substitute the term ``emission-comparable 
fuel'' for the term ``waste,'' and substitute the term ``document in 
the record'' for the term ``demonstrate to the Regional 
Administrator.''
    (1) Section 264.193(b) of this chapter, which prescribes general 
performance standards for secondary containment systems;
    (2) Section 264.193(c) of this chapter, which prescribes minimum 
requirements for secondary containment systems;
    (3) Section 264.193(d)(1) through (3), which prescribes permissible 
secondary containment devices;
    (4) Section 264.193(e) of this chapter, which prescribes design and 
operating requirements for the permissible secondary containment 
devices; and
    (5) Section 264.193(f) of this chapter, which prescribes secondary 
containment requirements for ancillary equipment.
    (B) Portable containers. To prevent the release of emission 
comparable fuel or hazardous constituents to the environment, you must 
provide containment for emission-comparable fuel container storage 
units as prescribed by the provisions of Sec.  264.175(b) of this 
chapter, which are hereby adopted for emission-comparable fuel 
container storage units. To satisfy the adopted condition, you must 
substitute the term ``emission-comparable fuel'' for each occurrence of 
the term ``waste.''
    (v) Preparedness and prevention, emergency procedures and response 
to releases.--(A) Preparedness and prevention.--(1) Required equipment. 
Your facility must be equipped with the equipment required under Sec.  
264.32(a) through (d) of this chapter in a manner that it can be used 
in emergencies associated with storing and handling emission-comparable 
fuel.
    (2) Testing and maintenance of equipment. You must test and 
maintain as necessary to assure proper operation in times of emergency 
all communications or alarm systems, fire protection equipment, spill 
control equipment, and decontamination equipment required for your 
emission-comparable fuel tank system or container storage unit.
    (3) Access to communications or alarm system. Whenever emission 
comparable fuel is distributed into or

[[Page 78003]]

out of the tank system or container storage unit, all personnel 
involved in the operation must have immediate access to an internal 
alarm or emergency communication device, either directly or through 
visual or voice contact with another employee.
    (4) Arrangements with local authorities. You must comply with Sec.  
264.37(a) of this chapter. If state or local authorities decline to 
enter into the arrangements prescribed by Sec.  264.37(a) of this 
chapter, you must keep a record documenting the refusal.
    (B) Emergency procedures.--(1) Emergency coordinator. At all times, 
there must be at least one employee either on the facility premises or 
on call (i.e., available to respond to an emergency by reaching the 
facility within a short period of time) with the responsibility for 
coordinating all emergency response measures. This emergency 
coordinator must be thoroughly familiar with all aspects of the 
facility's Spill Prevention, Control, and Countermeasures (SPCC) Plan 
required under paragraph (c)(1)(iii) of this section, all emission-
comparable fuel operations and activities at the facility, the location 
and characteristics of emission-comparable fuel handled, the location 
of all records within the facility pertaining to emission-comparable 
fuel, and the facility layout. In addition, this person must have the 
authority to commit the resources needed to carry out the SPCC Plan.
    (2) Emergency procedures.--(i) Whenever there is an imminent or 
actual emergency situation relating to the emission-comparable fuel 
tank system or container storage unit, the emergency coordinator (or 
his designee when the emergency coordinator is on call) must 
immediately activate internal facility alarms or communication systems, 
where applicable, to notify all facility personnel and notify 
appropriate state or local agencies with designated response roles if 
their help is needed.
    (ii) Whenever there is a release, fire, or explosion relating to 
the emission-comparable fuel tank system or container storage unit, the 
emergency coordinator must immediately identify the character, exact 
source, amount, and aerial extent of any released materials. He may do 
this by observation or review of facility records, and, if necessary, 
by chemical analysis.
    (iii) Concurrently, the emergency coordinator must assess possible 
hazards to human health or the environment that may result from the 
release, fire, or explosion. This assessment must consider both direct 
and indirect effects of the release, fire, or explosion (e.g., the 
effects of any toxic, irritating, or asphyxiating gases that are 
generated, or the effects of any hazardous surface water run-off from 
water or chemical agents used to control fire and heat-induced 
explosions).
    (iv) If the emergency coordinator determines that the facility has 
had a release, fire, or explosion associated with the emission-
comparable fuel tank system or container storage unit which could 
threaten human health or the environment outside the facility, he must 
report his findings as provided by paragraph (c)(1)(v)(B)(2)(v) of this 
section.
    (v) If the emergency coordinator's assessment indicates that 
evacuation of local areas may be advisable, he must immediately notify 
appropriate local authorities. He must be available to help appropriate 
officials decide whether local areas should be evacuated, and he must 
immediately notify either the government official designated as the on-
scene coordinator for that geographical area, (in the applicable 
regional contingency plan under part 300 of this title) or the National 
Response Center (using their 24-hour toll free number 800/424-8802). 
The report must include: the name and telephone number of the reporter; 
the name and address of the facility; the time and type of incident 
(e.g., release, fire); the name and quantity of material(s) involved, 
to the extent known; the extent of injuries, if any; and the possible 
hazards to human health, or the environment, outside the facility.
    (vi) During an emergency, the emergency coordinator must take all 
reasonable measures necessary to ensure that fires, explosions, and 
releases do not occur, recur, or spread to other materials at the 
facility. These measures must include, where applicable, stopping 
processes and operations and collecting and containing released 
emission-comparable fuel.
    (vii) If the emission-comparable fuel tank system or container 
storage unit stops operations in response to a fire, explosion, or 
release, the emergency coordinator must monitor for leaks, pressure 
buildup, gas generation, or ruptures in valves, pipes, or other 
equipment, wherever this is appropriate.
    (viii) Immediately after an emergency, the emergency coordinator 
must provide for treating, storing, or disposing of recovered emission-
comparable fuel, contaminated soil or surface water, or any other 
material that results from a release, fire, or explosion at the 
facility.
    (ix) The emergency coordinator must ensure that, in the affected 
area(s) of the facility: materials that may be incompatible with the 
released emission-comparable fuel is treated, stored, or disposed of 
until cleanup procedures are completed; and all emergency equipment 
listed in the SPCC Plan is cleaned and fit for its intended use before 
operations are resumed.
    (x) You must note in the record the time, date, and details of any 
incident that requires implementing the SPCC Plan for the emission-
comparable fuel tank system or container storage unit. Within 15 days 
after the incident, you must submit a written report on the incident to 
the Regional Administrator. The report must include: the name, address, 
and telephone number of the owner or operator; the name, address, and 
telephone number of the facility; the date, time, and type of incident 
(e.g., fire, explosion); the name and quantity of material(s) involved; 
the extent of injuries, if any; an assessment of actual or potential 
hazards to human health or the environment, where this is applicable; 
and the estimated quantity and disposition of recovered material that 
resulted from the incident.
    (C) Response to leaks or spills and disposition of leaking or 
unfit-for-use tank systems. (1) You must comply with the provisions of 
Sec.  264.196 of this chapter, except for Sec.  264.196(e)(1) and 
(e)(4) of this chapter.
    (2) To satisfy the adopted provisions of Sec.  264.196, you must 
substitute the term ``emission-comparable fuel'' for the terms 
``hazardous waste'' and ``waste.''
    (3) Unless you satisfy the requirements of Sec.  264.196(e)(2) and 
(3) of this chapter, you must immediately cease using the tank system 
to store emission-comparable fuel and remove any liquid and solid 
residues under the conditions of paragraph (b)(13) of this section.
    (vi) Air emissions conditions adopted from part 63, subpart EEEE.--
(A) Applicability--(1) If your emission-comparable fuel storage, 
transfer, and transport equipment is not subject to the controls 
provided by Sec.  63.2346 of this chapter, you must determine whether 
you are subject to the provisions of paragraphs (c)(1)(vi)(B) and (C) 
of this section:
    (2) If your emission-comparable fuel storage tank is subject to the 
controls provided by Sec.  63.2346 of this chapter other than those 
prescribed by item 6 in Table 2 to subpart EEEE, part 63 of this 
chapter (i.e., requirements for organic liquids with an annual average 
true vapor pressure of the total listed organic HAP >=76.6 kilopascals 
(11.1 psia)), you must determine whether the tank would be subject to 
the controls prescribed by item 6 after considering the vapor pressure 
of the RCRA oxygenates listed

[[Page 78004]]

in paragraph (c)(1)(vi)(B)(3) of this section as well as the organic 
HAP listed in Table 1 to subpart EEEE, part 63 of this chapter. If the 
annual average true vapor pressure of the total RCRA oxygenates and 
Table 1 organic HAP in the emission-comparable fuel is >=76.6 
kilopascals (11.1 psia), you are subject to the requirements of 
paragraphs (c)(1)(vi)(B) through (C) of this section.
    (B) Conditions of applicability. To satisfy the conditions under 
paragraph (c)(1)(vi)(C) of this section that are adopted from part 63, 
subpart EEEE of this chapter, you must:
    (1) Satisfy the conditions irrespective of whether your facility is 
an area source as defined by Sec.  63.2 of this chapter.
    (2) Substitute the term ``RCRA oxygenates as well as organic HAP'' 
for each occurrence of the term ``organic HAP''; the term ``RCRA 
oxygenates as well as organic HAP listed in Table 1'' for each 
occurrence of the term ``organic HAP listed in Table 1''; and the term 
``RCRA oxygenates as well as Table 1 organic HAP'' for each occurrence 
of the term ``Table 1 organic HAP''.
    (3) Use the following definition of RCRA oxygenates: The term 
``RCRA oxygenates'' means the following organic compounds:
    (i) Allyl alcohol (CAS No. 107-18-6);
    (ii) Bis(2-ethylhexyl)phthalate [Di-2-e thylhexyl phthalate] (CAS 
No.117-81-7);
    (iii) 2,4-Dimethylphenol (CAS No. 105-67-9);
    (iv) Ethyl methacrylate (CAS No. 97-63-2);
    (v) 2-Ethoxyethanol [Ethylene glycol monoethyl ether] (CAS No. 110-
80-5);
    (vi) Isobutyl alcohol (CAS No. 78-83-1);
    (vii) Isosafrole (CAS No. 120-58-1);
    (viii) Methyl ethyl ketone [2-Butanone] (CAS No. 78-93-3);
    (ix) 1,4-Naphthoquinone (CAS No. 130-15-4);
    (x) Propargyl alcohol [2-Propyn-1-ol] (CAS No. 107-19-7); and
    (xi) Safrole (CAS No. 94-59-7).
    (4) Use the following definition of organic liquid. Organic liquid 
means emission comparable fuel that:
    (i) Contains 5 percent by weight or greater of the RCRA oxygenates 
as well as organic HAP listed in Table 1 to this subpart, as determined 
using the procedures specified in Sec.  63.2354(c) of this chapter; and
    (ii) Has an annual average true vapor pressure of 0.7 kilopascals 
(0.1 psia) or greater.
    (5) Use the following definition of affected source. Affected 
source means the collection of activities and equipment used to 
distribute organic liquids into, out of, or within a facility.
    (6) Substitute the term ``subject to Sec.  261.38(c)(1)(vi)(C)of 
this chapter'' for each occurrence of the term ``subject to this 
subpart''.
    (7) Satisfy the conditions if:
    (i) Your organic liquids transfer equipment is exempt from subpart 
EEEE, part 63 of this chapter, under the provisions of Sec.  
63.228(c)(1) of this chapter, which exempts organic liquids transfer 
equipment at facilities subject to a NESHAP other than subpart EEEE, 
part 63; and
    (ii) The requirements applicable to the organic liquids transfer 
equipment under the other NESHAP are not equivalent to, at a minimum, 
the conditions under paragraphs (c)(1)(vi)(C), (c)(1)(vii), or (e) of 
this section. You must document and record your determination whether 
the requirements under the other NESHAP are less stringent than the 
conditions under paragraph (c)(1)(vi)(C) of this section. You may 
contact the RCRA regulatory authority to assist with this 
determination.
    (8) Submit all notifications, reports, and other communications to 
the RCRA regulatory authority rather than the CAA regulatory authority.
    (C) Conditions to control air emissions under provisions adopted 
from part 63, subpart EEEE of this chapter. (1) The affected source is 
the equipment identified under Sec.  63.2338(b)(1) through (5) of this 
chapter, except for equipment identified in Sec.  63.2338(c)(2) through 
(3) of this chapter.
    (2) Definitions of new, reconstructed, and existing affected 
sources are provided under Sec.  63.2338(d) through (f) of this 
chapter.
    (3) You must comply with the emission limitations, operating 
limits, and work practice standards under Sec.  63.2346 of this 
chapter.
    (4) You must comply with the general requirements under Sec.  
63.2350 of this chapter. The startup, shutdown, and malfunction plan 
required by Sec.  63.2350(c) of this chapter need not address equipment 
not subject to paragraph (c)(1)(vi)(C) of this section.
    (5) You must comply with the performance tests, design evaluation, 
and performance evaluation requirements under Sec.  63.2354 of this 
chapter. When complying with Sec.  63.2354(c) of this chapter, however, 
you must determine the content of RCRA oxygenates as well as organic 
HAP in the emission-comparable fuel.
    (6) You must conduct performance tests and other initial compliance 
demonstrations prior to managing emission-comparable fuel in the 
storage unit.
    (7) You must conduct subsequent performance tests by the dates 
specified in Sec.  63.2362 of this chapter.
    (8) You must comply with the monitoring, installation, operation, 
and maintenance requirements under Sec.  63.2366 of this chapter.
    (9) You must demonstrate initial compliance with the emission 
limitations, operating limits, and work practice standards as required 
under Sec.  63.2370 of this chapter.
    (10) You must monitor and collect data to demonstrate continuous 
compliance and use the collected data as required by Sec.  63.2374 of 
this chapter.
    (11) You must demonstrate continuous compliance with the emission 
limitations, operating limits, and work practice standards as required 
by Sec.  63.2378 of this chapter.
    (12) You must submit the notifications and on the schedule required 
by Sec.  63.2382 of this chapter, except that initial notifications 
must be submitted prior to managing emission-comparable fuel in the 
storage unit. Notifications must be submitted to the RCRA regulatory 
authority.
    (13) You must submit the reports and on the schedule required by 
Sec.  63.2386 of this chapter. Reports must be submitted to the RCRA 
regulatory authority.
    (14) You must keep the applicable records required by Sec.  63.2390 
of this chapter.
    (15) You must keep records in the form, and for the duration, 
required by Sec.  63.2394 of this chapter.
    (16) The parts of the General Provisions that apply to you are 
provided by Sec.  63.2398 of this chapter.
    (17) The definitions that apply to the conditions under paragraph 
(c)(1)(vi)(C) of this section are provided by Sec.  63.2406 of this 
chapter, and paragraphs (c)(1)(vi)(B)(3) through (5) of this section.
    (18) You are subject to the requirements in Tables 1-12 to subpart 
EEEE, part 63 of this chapter.
    (vii) Air emissions conditions for tanks and containers that are 
not subject to conditions adopted from part 63, subpart EEEE. Tank and 
container storage units that are not subject to the conditions adopted 
from subpart EEEE, part 63 under paragraph (c)(1)(vi) of this section 
are subject to the conditions of this paragraph.
    (A) Tanks. (1) Level 1 control. (i) Applicability criteria. Tanks 
that meet the following vapor pressure limitations for emission-
comparable fuel for the tank size designations are subject to the air 
emission controls under paragraph (c)(1)(vii)(A)(1)(ii) of this 
section:
    (A) For a tank design capacity equal to or greater than 151 m\3\ 
(40,000

[[Page 78005]]

gallons), the annual average organic vapor pressure limit for the tank 
is 5.2 kPa (0.75 psia);
    (B) For a tank design capacity equal to or greater than 75 m\3\ 
(20,000 gallons) but less than 151 m\3\ (40,000 gallons), the annual 
average organic vapor pressure limit for the tank is 27.6 kPa (4.0 
psia); and
    (C) For a tank design capacity less than 75 m\3\ (20,000 gallons), 
the annual average vapor pressure limit for the tank is 76.6 kPa (11.1 
psia);
    (ii) Conditions to control emissions. You must comply with the 
following requirements:
    (A) NESHAP provisions for level 1 control under subpart OO, part 
63. Sections 63.901 through 63.907 of this chapter; or
    (B) NESHAP provisions for organic liquid distribution under subpart 
EEEE, part 63. The provisions under Item 1.a.i or 1.a.ii which require 
venting to a control device under provisions of subpart SS, part 63 of 
this chapter, or Level 2 tank emissions control under subpart WW, part 
63 of this chapter, or routing emissions to a fuel gas system or back 
to a process under Sec.  63.984 of subpart SS, part 63 of this chapter, 
or vapor balancing emissions to the transport vehicle from which the 
storage tank is filled under Sec.  63.2346(a)(4); or
    (C) Hazardous waste tank controls under subpart CC, part 264. The 
provisions for additional options provided for hazardous waste tanks 
under Sec.  264.1084(d)(3), (d)(4), or (d)(5) of this chapter for use 
of venting to a control device, a pressure tank, or a tank located 
inside an enclosure that is vented through a closed-vent system to an 
enclosed combustion control device, and the associated provisions under 
Sec. Sec.  63.1081 (definitions), 264.1083(c) (determination of vapor 
pressure), 264.1084(j) (transfer to a tank), 264.1087 (closed-vent 
systems and control devices), and 264.89(b) (recordkeeping) of this 
chapter. To satisfy these adopted provisions, you must substitute the 
term ``emission-comparable fuel'' for the terms ``hazardous waste'' and 
``waste.''
    (2) Level 2 control. (i) Applicability criteria. Tanks that do not 
meet the vapor pressure limitations for emission-comparable fuel for 
the tank size designations under paragraph (c)(1)(vii)(A)(1)(i) of this 
section are subject to the air emission controls under paragraph 
(c)(1)(vii)(A)(2)(ii) of this section.
    (ii) Conditions to control emissions. To satisfy the conditions to 
control emissions, you must comply with the requirements under 
paragraphs (c)(1)(vii)(A)(1)(ii)(B) or (C) of this section.
    (3) Equipment leaks. For each valve, pump, compressor, pressure 
relief device, sampling connection system, open-ended valve or line, or 
flange or other connector, and any control devices or systems used to 
manage emission-comparable fuel in a tank system subject to paragraph 
(c)(1)(vii)(A) of this section, you must comply with the applicable 
requirements under 40 CFR part 63, subpart TT (control level 1), except 
for Sec.  63.1000; or subpart UU (control level 2), except for Sec.  
63.1019; or subpart H, except for Sec. Sec.  63.160, 63.162(b) and (e), 
and 63.183.
    (B) Containers. (1) Level 1 control. (i) Applicability criteria. 
Containers that meet the following criteria are subject to the air 
emission controls under paragraph (c)(1)(vii)(B)(1)(ii) of this 
section:
    (A) Containers having a design capacity greater than 0.1 m\3\ and 
less than or equal to 0.46 m\3\;
    (B) Containers having a design capacity greater than 0.46 m\3\ that 
are not in light liquid service, as defined in Sec.  264.1031 of this 
chapter.
    (C) Containers having a design capacity greater than 0.46 m\3\ that 
are in light liquid service, as defined in Sec.  264.1031 of this 
chapter.
    (ii) Conditions to control emissions. To satisfy the conditions on 
Level I control of emissions, you must comply with the following 
requirements:
    (A) The NESHAP provisions for containers under subpart PP, part 63 
at Sec. Sec.  63.922 (level 1 control) or 63.923 (level 2 control) of 
this chapter; and
    (B) The ancillary provisions under subpart PP, part 63 at 
Sec. Sec.  63.921 (definitions), 63.925 (test methods and procedures), 
63.926 (inspection and monitoring requirements), 63.927 (recordkeeping 
requirements), and 63.928 (reporting requirements) of this chapter.
    (2) Level 2 control. (i) Applicability criteria. Containers that do 
not meet the criteria under paragraph (c)(1)(vii)(B)(1)(i) of this 
section are subject to the air emission controls under paragraph 
(c)(1)(vii)(B)(2)(ii) of this section.
    (ii) Conditions to control emissions. To satisfy the conditions on 
Level II control of emissions, you must comply with the following 
requirements:
    (A) The NESHAP provisions for containers under subpart PP, part 63 
at Sec.  63.923 (level 2 control) of this chapter; and
    (B) The ancillary provisions under subpart PP, part 63 at 
Sec. Sec.  63.921 (definitions), 63.925 (test methods and procedures), 
63.926 (inspection and monitoring requirements, 63.927 (recordkeeping 
requirements), and 63.928 (reporting requirements) of this chapter.
    (3) Equipment leaks. For each valve, pump, compressor, pressure 
relief device, sampling connection system, open-ended valve or line, or 
flange or other connector, and any control devices or systems used to 
manage emission-comparable fuel in a container subject to paragraph 
(c)(1)(vii)(B) of this section, you must comply with the applicable 
requirements under 40 CFR part 63, subpart TT (control level 1), except 
for Sec.  63.1000; or subpart UU (control level 2), except for Sec.  
63.1019; or subpart H, except for Sec. Sec.  63.160, 63.162(b) and (e), 
and 63.183.
    (viii) Management of incompatible fuels and other materials--(A) 
Generators and burners of emission-comparable fuel must document in the 
fuel analysis plan under paragraph (b)(4) of this section how (e.g., 
using trial tests, analytical results, scientific literature, or 
process knowledge) precautions will be taken to prevent mixing of 
excluded fuels and other materials which could result in reactions 
which:
    (1) Generate extreme heat or pressure, fire or explosions, or 
violent reactions;
    (2) Produce uncontrolled toxic mists, fumes, dusts, or gases;
    (3) Produce uncontrolled flammable fumes or gases; or
    (4) Damage the structural integrity of the storage unit or 
facility.
    (B) Burners that blend emission-comparable fuel with other fuels 
but that are exempt from fuel analysis requirements under paragraphs 
(b)(4) and (b)(5)(iii) of this section must document in the operating 
record how precautions will be taken to prevent mixing of emission-
comparable fuel with other fuels which could result in the reactions 
listed in paragraph (c)(viii)(A) of this section.
    (C) Incompatible fuels must not be placed in the same tank or 
container.
    (2) Burning. (i) Types of combustors that may burn emission-
comparable fuel. Emission-comparable fuel must be burned in a boiler 
meeting the conditions of paragraph (c)(2)(i)(A) of this section or a 
hazardous waste combustor under the conditions of paragraph 
(c)(2)(i)(B) of this section.
    (A) Boilers. Emission-comparable fuel may be burned in an 
industrial or utility boiler as defined in paragraph (b)(3) of this 
section but that is further restricted by being a watertube type of 
steam boiler that does not feed fuel using a stoker or stoker-type 
mechanism.
    (B) Hazardous waste combustors. (1) Emission-comparable fuel may be 
burned in an incinerator, cement kiln,

[[Page 78006]]

lightweight aggregate kiln, boiler, or halogen acid production furnace 
operating under a RCRA permit issued under part 270 of this chapter and 
in compliance with the applicable provisions of subpart O of part 264, 
subpart H of part 266, or subpart EEE of part 63 of this chapter, 
provided that the emission-comparable fuel is burned under the same 
operating requirements that apply to hazardous waste burned by the 
combustor.
    (2) When emission-comparable fuel is burned in a hazardous waste 
combustor under the provisions of paragraph (c)(2)(i)(B) of this 
section, the operating conditions under paragraph (c)(2)(ii) of this 
section do not apply, except for:
    (i) The emission-comparable fuel constituent feedrate conditions 
under paragraph (c)(2)(ii)(C) of this section continue to apply; and
    (ii) The emission-comparable fuel automatic feed cutoff system 
requirements under paragraph (c)(2)(ii)(G) of this section that apply 
to monitoring the constituent feedrate limits as specified under 
paragraph (c)(2)(ii)(G)(1)(ii) of this section continue to apply.
    (ii) Operating conditions--(A) Primary fuels. (1) A minimum of 50 
percent of fuel fired to the boiler shall be fossil fuel, fuels derived 
from fossil fuel, tall oil, or comparable fuel meeting the 
specifications provided by paragraph (a)(1) of this section. Such fuels 
are termed ``primary fuel'' for purposes of this section. (Tall oil is 
a fuel derived from vegetable and rosin fatty acids.) The primary fuel 
shall comprise at least 50% of the total fuel heat input to the boiler 
and at least 50% of the total fuel mass input to the boiler.
    (2) The primary fuel firing rate shall be continuously monitored 
and the minimum primary fuel firing rate limit shall be achieved on an 
hourly rolling average basis;
    (B) Fuel heating value. Primary fuels shall have a minimum as-fired 
heating value of 8,000 Btu/lb, and each material fired in a firing 
nozzle where emission-comparable fuel is fired must have a heating 
value of at least 8,000 Btu/lb, as-fired;
    (C) Feedrate limits for emission-comparable fuel constituents. The 
total feedrate, considering all combustor feedstreams, of each 
emission-comparable fuel constituent listed under paragraph 
(a)(2)(ii)(B) of this section shall not exceed the limit provided by 
Table 2 to this section.
    (1) The feedrate limits are expressed as gas flowrate-normalized 
feedrates in the units ``ug/dscm''.
    (2) The feedrate limit for total combustor feedstreams expressed as 
mass/unit time (kg/hr) for each emission-comparable fuel constituent is 
determined by multiplying the gas flowrate-normalized feedrate limit 
provided by Table 2 to this section times the combustor gas flowrate.
    (3) The maximum constituent feedrate (kg/hr) attributable to 
emission-comparable fuel is the total combustor constituent feedrate 
(kg/hr) minus the constituent feedrate (kg/hr) for all other combustor 
feedstreams.
    (4) To account for emission-comparable fuel constituents in primary 
fuels, burners may use measured concentrations of the constituents, or:
    (i) If natural gas is used as a primary fuel, burners may assume 
that natural gas does not contain emission-comparable fuel constituents 
and that natural gas has a heating value of 22,000 Btu/lb;
    (ii) If fuel oil is used as a primary fuel, burners may use the 
default concentrations for emission-comparable fuel constituents 
provided in Table 3 to this section, and assume that fuel oil has a 
heating value of 19,200 Btu/lb; and
    (iii) If coal is used as a primary fuel, burners may use the 
default concentrations for emission-comparable fuel constituents 
provided in Table 4 to this section, and assume that coal has a heating 
value of 11,100 Btu/lb.
    (5) The feedrate of each emission-comparable fuel constituent shall 
be continuously monitored (by knowing the concentration of the 
constituent in each feedstream and by monitoring the feedrate of each 
feedstream), and the maximum feedrate limit for each constituent shall 
not be exceeded on an hourly rolling average basis.
    (D) CO CEMS. When burning emission-comparable fuel, carbon monoxide 
emissions must not exceed 100 parts per million by volume, over an 
hourly rolling average (monitored with a continuous emissions 
monitoring system (CEMS)), dry basis and corrected to 7 percent oxygen. 
You must use an oxygen CEMS to continuously correct the carbon monoxide 
level to 7 percent oxygen. You must install, calibrate, maintain, and 
continuously operate the CEMS in compliance with the quality assurance 
procedures provided in the appendix to subpart EEE of part 63 of this 
chapter (Quality Assurance Procedures for Continuous Emissions Monitors 
Used for Hazardous Waste Combustors) and Performance Specification 4B 
(carbon monoxide and oxygen) in appendix B, part 60 of this chapter.
    (E) Dioxin/furan control--(1) If the boiler is equipped with a dry 
particulate matter control device and the primary fuel is not coal, you 
must continuously monitor the combustion gas temperature at the inlet 
to the dry particulate matter control device, and the gas temperature 
must not exceed 400 [deg]F on an hourly rolling average basis.
    (2) Calibration of thermocouples. The calibration of thermocouples 
must be verified at a frequency and in a manner consistent with 
manufacturer specifications, but no less frequently than once per year.
    (F) Calculation of rolling averages--(1) Calculation of rolling 
averages upon intermittent operations. You must ignore periods of time 
when one-minute values are not available for calculating the hourly 
rolling average. When one-minute values become available again, the 
first one-minute value is added to the previous 59 values to calculate 
the hourly rolling average.
    (2) Calculation of rolling averages when the emission-comparable 
fuel feed is cutoff. You must continue monitoring carbon monoxide and 
combustion gas temperature at the inlet to the dry particulate matter 
emission control device when the emission-comparable fuel feed is 
cutoff, but the source continues operating on other fuels. You must not 
resume feeding emission-comparable fuel if the emission levels exceed 
the limits provided in paragraphs (c)(2)(ii)(D) and (E) of this 
section.
    (G) Automatic fuel feed cutoff system--(1) General. You must 
operate the boiler with a functioning system that immediately and 
automatically cuts off the emission-comparable fuel feed, except as 
provided by paragraph (c)(2)(ii)(G)(6) of this section:
    (i) When the hourly rolling average carbon monoxide level exceeds 
100 ppmv or the combustion gas temperature at the inlet to the initial 
dry particulate matter control device (and the primary fuel is not 
coal) exceeds 400 [deg]F on an hourly rolling average.
    (ii) When the emission-comparable fuel feedrate limit for a 
constituent exceeds the limit provided by Table 2 to this section.
    (iii) When the primary fuel firing rate is below 50 percent on a 
heat input and mass input basis;
    (iv) When the steam production rate (or other indicator of boiler 
load) indicates that the boiler load is below 40 percent;
    (v) When the span value of the combustion gas temperature detector 
is exceeded;
    (vi) Upon malfunction of the carbon monoxide CEMS, the gas 
temperature detector, the feedrate monitor(s) for the primary fuel, the 
feedrate monitor(s) used to comply with the maximum feedrate limits for 
emission-comparable

[[Page 78007]]

fuel constituents, or the monitor for boiler load; or
    (iv) When any component of the automatic fuel feed cutoff system 
fails.
    (2) Failure of the automatic fuel feed cutoff system. If the 
automatic emission-comparable fuel feed cutoff system fails to 
automatically and immediately cut off the flow of emission-comparable 
fuel (except as provided by paragraph (c)(2)(ii)(G)(6) of this section) 
upon an occurrence of an event linked to the cutoff system as required 
under paragraph (c)(2)(ii)(G)(1) of this section, you have failed to 
comply with the emission-comparable fuel cutoff conditions of this 
section. If an equipment failure prevents immediate and automatic 
cutoff of the emission-comparable fuel feed, however, you must cease 
feeding emission-comparable fuel as quickly as possible.
    (3) Exceedance of a limit. If, notwithstanding an automatic 
emission-comparable fuel feed cutoff, a limit linked to the cutoff 
system under paragraphs (c)(2)(ii)(G)(1)(i) through (iv) of this 
section is exceeded while emission-comparable fuel remains in the 
combustion chamber, you have failed to comply with a condition of the 
exclusion.
    (4) Exceedance reporting. For each exceedance of a limit linked to 
the cutoff system under paragraphs (c)(2)(ii)(G)(1)(i) through (iv) of 
this section while emission-comparable fuel remains in the combustion 
chamber (i.e., when the emission-comparable fuel residence time has not 
transpired since the emission-comparable fuel feed was cutoff), you 
must submit to the RCRA regulatory authority a written report within 5 
calendar days of the exceedance documenting:
    (i) The exceedance;
    (ii) The measures you have taken to manage the material as a 
hazardous waste; and
    (iii) The measures you have taken to notify the generator that you 
have failed to comply with a condition of the exclusion.
    (5) Testing. The automatic emission-comparable fuel feed cutoff 
system and associated alarms must be tested at least weekly to verify 
operability, unless you document in the operating record that weekly 
inspections will unduly restrict or upset operations and that less 
frequent inspection will be adequate. At a minimum, you must conduct 
operability testing at least monthly. You must document and record in 
the operating record automatic emission-comparable fuel feed cutoff 
system operability test procedures and results.
    (6) Ramping down emission-comparable fuel feed. You may ramp down 
the emission-comparable fuel feedrate over a period not to exceed one 
minute. If you elect to ramp down the emission-comparable fuel feed, 
you must document ramp down procedures in the operating record. The 
procedures must specify that the ramp down begins immediately upon 
initiation of automatic emission-comparable fuel feed cutoff and the 
procedures must prescribe a bona fide ramping down. If a limit linked 
to the cutoff system under paragraphs (c)(2)(ii)(G)(1)(i) through (iv) 
of this section is exceeded during the ramp down, you have failed to 
comply with that limit.
    (H) Boiler load. (1) Boiler load shall not be less than 40 percent. 
Boiler load is the ratio at any time of the total heat input to the 
maximum design heat input.
    (2) Steam production rate or other measure of boiler load shall be 
monitored continuously and the minimum 40 percent load shall be 
maintained on an hourly rolling average basis.
    (I) Fuel atomization. The emission-comparable fuel shall be fired 
directly into the primary fuel flame zone of the combustion chamber 
with an air or steam atomization firing system, mechanical atomization 
system, or a rotary cup atomization system under the following 
conditions:
    (1) Particle size. The emission-comparable fuel must pass through a 
200 mesh (74 micron) screen, or equivalent;
    (2) Mechanical atomization systems. Fuel pressure within a 
mechanical atomization system and fuel flow rate shall be maintained 
within the design range taking into account the viscosity and 
volatility of the fuel;
    (3) Rotary cup atomization systems. Fuel flow rate through a rotary 
cup atomization system must be maintained within the design range 
taking into account the viscosity and volatility of the fuel.
    (J) Definition of continuous monitoring systems. (1) Continuous 
monitoring systems (CMS) must sample the controlled parameter without 
interruption, and evaluate the detector response at least once each 15 
seconds, and compute and record the average values at least every 60 
seconds.
    (2) For CMS other than the CO CEMS, you must install, operate, and 
calibrate the other CMS according to the manufacturer's written 
specifications or recommendations, at a minimum.
    (iii) Boiler operator training. (A) Boiler operators are personnel 
that operate or maintain the boiler when emission-comparable fuel is 
burned, including continuous monitoring systems and the emission-
comparable fuel automatic feed cutoff system.
    (B) Boiler operators must successfully complete a program that 
teaches them to perform their duties in a way that ensures the boiler's 
compliance with the operating conditions under paragraph (c)(2)(ii) of 
this section. The boiler owner or operator must ensure that this 
program includes all the elements described in the document required 
under paragraph (c)(2)(iii)(F) of this section.
    (C) This program must be directed by a person trained in boiler 
operation procedures, and must include instruction which teaches boiler 
operators procedures relevant to the positions in which they are 
employed.
    (D) At a minimum, the training program must be designed to ensure 
that boiler operators understand the operating conditions under 
paragraph (c)(2)(ii) of this section and are able to respond 
effectively when the emission-comparable fuel automatic feed cutoff 
system engages an automatic cutoff of the feed of emission-comparable 
fuel.
    (E) Boiler operators must take part in an annual review of the 
initial training required in paragraph (c)(2)(iii)(B) of this section.
    (F) The boiler owner or operator must maintain the following 
documents and records at the facility:
    (1) The job title for each boiler operator position, and the name 
of the employee filling each job;
    (2) A written job description for each position listed under 
paragraph (c)(2)(iii)(F)(1) of this section. This description may be 
consistent in its degree of specificity with descriptions for other 
similar positions in the same company location or bargaining unit, but 
must include the requisite skill, education, or other qualifications, 
and duties of employees assigned to each position;
    (3) A written description of the type and amount of both 
introductory and continuing training that will be given to each person 
filling a position listed under paragraph (c)(2)(iii)(F)(1) of this 
section; and
    (4) Records that document that the training or job experience 
required under paragraphs (c)(2)(iii)(B), (C), (D), and (E) of this 
section has been given to, and completed by, boiler operators.
    (5) Training records on current personnel must be kept until 
emission-comparable fuel is no longer burned in the boiler. Training 
records on former boiler operators must be kept for at least three 
years from the date the employee last worked as a boiler operator at 
the facility. Personnel training records may

[[Page 78008]]

accompany personnel transferred within the same company.
    (3) Off-site shipments. (i) Emission-comparable fuel may not be 
managed by any entity other than its generator, transporter, and 
designated burner.
    (ii) Emission-comparable fuel may not be exported to a foreign 
country.
    (4) EPA Identification Number. A burner that receives emission-
comparable fuel from an offsite generator must have or obtain an EPA 
identification number from the Administrator. A burner who has not 
received an EPA identification number may obtain one by applying to the 
Administrator using EPA form 8700-12. Upon receiving the request, the 
Administrator will assign an EPA identification number to the burner.
    (5) Notification, reporting, and recordkeeping. Except as provided 
by paragraph (c)(5)(iv) of this section, burners of emission-comparable 
fuel are subject to the following conditions:
    (i) Initial Notification. (A) Off-site burners. A burner that 
receives emission-comparable fuel from an offsite generator must submit 
an initial notification to the Regional or State RCRA and CAA Directors 
prior to receiving the first shipment:
    (1) Providing the name, address, and EPA identification number of 
the burner;
    (2) Certifying that the excluded fuel will be stored under the 
conditions of paragraphs (c)(1) or (e) of this section and burned in a 
boiler or hazardous waste combustor under the conditions of paragraph 
(c)(2) of this section, and that the burner will comply with the 
notification, reporting, and recordkeeping conditions of paragraph 
(c)(5) of this section;
    (3) Identifying the specific units that will burn the excluded 
fuel;
    (4) Providing an estimate of the maximum annual quantity of 
emission-comparable fuel that will be burned, and an estimate of the 
maximum as-fired concentrations of each constituent in Table 2 to this 
section for which the emission-comparable fuel exceeds the 
specifications for comparable fuel in Table 1 to this section;
    (5) Providing documentation that ECF will be fired into the flame 
zone of the primary fuel; and
    (6) Certifying that the state in which the burner is located is 
authorized to exclude wastes as excluded fuel under the provisions of 
this section.
    (B) On-site burners. An on-site burner must include in the one-time 
generator notification required under paragraphs (b)(2)(i)(A) and (B) 
of this section the information identified under paragraphs 
(c)(5)(i)(A)(3) through (5) of this section.
    (C) If there is a substantive change in the information provided in 
the initial notification, the burner must submit a revised 
notification.
    (ii) Reporting. The burner must submit to the RCRA regulatory 
authority reports of exceedances of operating parameter limits that are 
linked to the emission-comparable fuel automatic feed cutoff system, as 
required under paragraph (c)(2)(ii)(G)(4) of this section.
    (iii) Recordkeeping. (A) Records of shipments. If the burner 
receives a shipment of emission-comparable fuel from an offsite 
generator, the burner must retain for each shipment the following 
information on-site in the operating record:
    (1) The name, address, and RCRA ID number of the generator shipping 
the excluded fuel;
    (2) The quantity of excluded fuel delivered;
    (3) For ECF that would have otherwise been a hazardous waste listed 
in Sec. Sec.  261.31 through 261.33, the hazardous waste code for the 
listed waste; and
    (4) The date of delivery;
    (B) Boiler operating data. The burner must retain records of 
information required to comply with the operating conditions of 
paragraph (c)(2) of this section in an operating record.
    (C) Records retention. The burner must retain records at the 
facility for three years.
    (iv) Burners that are hazardous waste combustors. Hazardous waste 
combustors that burn emission-comparable fuel under the provisions of 
paragraph (c)(2)(i)(B) of this section are not subject to the 
provisions of paragraphs (c)(5)(i) through (iii) of this section, 
except:
    (A) The provisions of paragraphs (c)(5)(i)(A)(1) and (3), and 
paragraphs (c)(5)(iii)(A) and (C) apply; and
    (B) The initial notification required under paragraphs 
(c)(5)(i)(A)(1) and (3) must include a certification that the excluded 
fuel will be stored under the conditions of paragraphs (c)(1) or (e) of 
this section.
    (d) Failure to comply with the conditions of the exclusion. (1) 
General. An excluded fuel loses its exclusion if any person managing 
the fuel fails to comply with the conditions of the exclusion under 
this section, and the material must be managed as hazardous waste from 
the point of generation. In such situations, EPA or an authorized state 
agency may take enforcement action under RCRA section 3008(a), except 
as provided in paragraph (d)(2) of this section.
    (2) Emission-comparable fuel burned in an off-site, unaffiliated 
burner. If the generator that claims the exclusion for emission-
comparable fuel that is burned in an off-site, unaffiliated burner 
documents in the operating record that reasonable efforts have been 
made under this paragraph to ensure that such burner complies with the 
conditions of exclusion, the burner rather than the generator will be 
liable for discarding a hazardous waste upon a finding that such burner 
has not complied with a condition of exclusion.
    (i) In making these reasonable efforts, the generator must, at a 
minimum, affirmatively answer the following questions prior to shipping 
emission-comparable fuel to the burner:
    (A) Has the burner submitted the notification to the RCRA and CAA 
Directors required under paragraph (c)(5)(i) of this section, and has 
the burner published the public notice of burning activities required 
under paragraph (b)(2)(ii) of this section?
    (B) Does publicly available information indicate that the burner 
facility has not had any formal enforcement actions taken against the 
facility in the previous three years for violations of the RCRA 
hazardous waste regulations and has not been classified as a 
significant non-complier with RCRA Subtitle C? In answering this 
question, the emission-comparable fuel generator can rely on the 
publicly available information from EPA or the state. If the burner 
facility has had a formal enforcement action taken against it in the 
previous three years for violations of the RCRA hazardous waste 
regulations and has been classified as a significant non-complier with 
RCRA Subtitle C, does the emission-comparable fuel generator have 
credible evidence that the burner will manage the emission-comparable 
fuel properly? In answering this question, the emission-comparable fuel 
generator can obtain additional information from EPA, the state, or the 
facility itself that the facility has addressed the violations, taken 
remedial steps to address the violations and prevent future violations, 
or that the violations are not relevant to the management of emission-
comparable fuel under the conditions of this section.
    (C) Does the burner have the equipment and trained personnel to 
manage the emission-comparable fuel under the conditions of this 
section?
    (ii) In making these reasonable efforts, the generator may use any 
credible evidence available, including information obtained from the 
burner and information obtained from a third party;
    (iii) The generator must maintain for a minimum of three years

[[Page 78009]]

documentation and certification that reasonable efforts were made for 
each burner facility to which emission-comparable fuel is shipped.
    (A) Documentation and certification must be made available upon 
request by a regulatory authority within 72 hours, or within a longer 
period of time as specified by the regulatory authority.
    (B) The certification statement must:
    (1) Be signed and dated by an authorized representative of the 
generator company; and
    (2) Incorporate the following language: ``I hereby certify in good 
faith and to the best of my knowledge that, prior to arranging for 
transport of emission-comparable fuel to [insert name(s) of burner 
facility], reasonable efforts were made to ensure that the emission-
comparable fuel would be stored and burned under the conditions 
prescribed by Sec.  261.38, and that such efforts were based on current 
and accurate information.''
    (iv) Reasonable efforts must be repeated at a minimum of every 
three years.
    (v) An unaffiliated burner is a boiler or hazardous waste combustor 
located at a facility that is not owned by the same parent company that 
generated the emission-comparable fuel.
    (e) Alternative storage conditions for emissions-comparable fuel. 
Emission-comparable fuel may be stored in a tank or container under the 
following conditions adopted from 40 CFR Part 264 in lieu of the 
conditions specified under paragraphs (c)(1)(iii) through (c)(1)(viii) 
of this section. When satisfying these conditions, you must substitute 
the term ``emission-comparable fuel'' for each occurrence of the term 
``hazardous waste'' or ``waste.'' You must document in the operating 
record whether you are complying with the alternative storage 
conditions of this paragraph, or the storage conditions under 
paragraphs (c)(1)(iii) through (c)(1)(viii) of this section.
    (1) Security. You must comply with the requirements under Sec.  
264.14 of this chapter to provide security for your emission-comparable 
fuel storage facility.
    (2) General inspection requirements. You must comply with the 
general inspection requirements under Sec.  264.15 of this chapter for 
your emission-comparable fuel storage facility.
    (3) Personnel training. You must comply with the personnel training 
requirements under Sec.  264.16 of this chapter for emission-comparable 
fuel storage facility personnel.
    (4) General requirements for ignitable, reactive, or incompatible 
materials. You must comply with the requirements for ignitable, 
reactive, or incompatible materials managed by the emission-comparable 
fuel storage facility.
    (5) Preparedness and prevention. You must comply with the 
preparedness and prevention requirements under Sec. Sec.  264.31 
through 264.37 of this chapter with respect to your emission-comparable 
fuel storage facility.
    (6) Contingency plan and emergency procedures. You must comply with 
the contingency plan and emergency procedure requirements under 
Sec. Sec.  264.51 through 264.56 of this chapter with respect to your 
emission-comparable fuel storage facility.
    (7) Air emission requirements for equipment leaks. You must comply 
with the requirements under Sec. Sec.  264.1051 through 264.1065 of 
this chapter to control leaks from equipment used to manage emission-
comparable fuel;
    (8) Use and management of containers. If you store emission-
comparable fuel in a container, you must comply with the following 
requirements for use and management of those containers:
    (i) Condition of containers. You must comply with the requirements 
to ensure containers are in good condition under Sec.  264.171 of this 
chapter;
    (ii) Compatibility of emission-comparable fuel with containers. You 
must comply with the requirements to ensure compatibility of emission-
comparable fuel with containers under Sec.  264.172 of this chapter;
    (iii) Management of containers. You must manage containers as 
prescribed by Sec.  264.173 of this chapter;
    (iv) Inspections. You must inspect containers and the containment 
system as prescribed by Sec.  264.174 of this chapter;
    (v) Containment. You must comply with the containment provisions 
under Sec.  264.175 of this chapter;
    (vi) Special requirements for ignitable or reactive emission-
comparable fuel. You must comply with the provisions for ignitable or 
reactive emission-comparable fuel under Sec.  264.176 of this chapter; 
and
    (vii) Air emission standards. You must comply with the air emission 
requirements under Sec. Sec.  264.1081, 264.1086(b)(1), (c), (d), and 
(f) through (h), 264.1088, and 264.1089 of this chapter.
    (viii) Closed vent systems and control devices. If you use a closed 
vent system or control device to comply with paragraph (e)(8)(vii) of 
this section, you must comply with the requirements under Sec. Sec.  
264.1033(b) through (o), and 264.1034 through 264.1036 of this chapter.
    (9) Tank systems. If you store emission-comparable fuel in a tank, 
you must comply with the following requirements:
    (i) Containment and detection of releases. You must comply with the 
requirements for containment and detection of releases under Sec.  
264.193(b), (c), (d), (e), and (f) of this chapter;
    (ii) General operating requirements. You must comply with the 
general operating requirements under Sec.  264.194 of this chapter;
    (iii) Inspections. You must comply with the inspection requirements 
under Sec.  264.195 of this chapter;
    (iv) Response to leaks or spills and disposition of leaking or 
unfit-for-use tank systems. You must comply with the requirements 
regarding response to leaks or spills and disposition of leaking or 
unfit-for-use tank systems under Sec.  264.196 of this chapter, except 
that Sec.  264.196(e)(1) reads for emission-comparable fuel tank 
systems: ``Unless the owner/operator satisfies the requirements of 
paragraphs (e)(2) through (4) of this section, the tank system must be 
closed''.
    (v) Special requirements for ignitable or reactive materials. You 
must comply with the requirements for ignitable and reactive materials 
under Sec.  264.198 of this chapter;
    (vi) Special requirements for incompatible materials. You must 
comply with the requirements for incompatible materials under Sec.  
264.199 of this chapter; and
    (vii) Air emissions. (A) You must comply with the requirements to 
control air emissions under Sec. Sec.  264.1081, 264.1083(c), 
264.1084(b) through (l), 264.1087 through 264.1089, and 264.1090(b) 
through (d) of this chapter.
    (B) Closed vent systems and control devices. If you use a closed 
vent system or control device to comply with paragraph (e)(9)(vii) of 
this section, you must comply with the requirements under Sec. Sec.  
264.1033(b) through (o), and 264.1034 through 264.1036 of this chapter.
    (f) Notification of closure of an emission-comparable fuel tank or 
a container storage unit. If you store emission-comparable fuel in a 
tank or container, you must submit a notification to the RCRA 
regulatory authority when a container storage area or a tank system 
goes out of emission-comparable fuel service which states the date when 
the tank or container storage area goes out of service.
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[FR Doc. E8-29956 Filed 12-18-08; 8:45 am]
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