NOTE: This document shows new language changes resulting from OMB review
Iin RED), and new language changes made by EPA in BLUE)

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

[EPA-HQ-RCRA-2005-0017; FRL -              ]

RIN  2050-AG24

Expansion of RCRA Comparable Fuel Exclusion

AGENCY:  Environmental Protection Agency (EPA).

ACTION:  Proposed rule.

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

SUMMARY:  :  EPA is proposing to expand the comparable fuel exclusion
under section 261.38 of the rules implementing subtitle C of the
Resource Conservation and Recovery Act (RCRA) for fuels that are
produced from hazardous waste but which generate emissions that are
comparable to emissions from burning fuel oil when such fuels are burned
in an industrial boiler.  Such excluded fuel would be called
emission-comparable fuel (ECF).  ECF would be subject to the same
specifications that currently apply to comparable fuels, except that the
specifications for certain hydrocarbons and oxygenates would not apply. 
The ECF exclusion would be conditioned on requirements including:  (1)
design and operating conditions for the ECF boiler to ensure that the
ECF is burned under the good combustion conditions typical for oil-fired
industrial boilers; and (2) conditions for tanks storing ECF which
conditions are typical of those for storage of commercial fuels, and are
tailored for the hazards that ECF may pose.  

DATES:  Comments must be received on or before [INSERT DATE 60 DAYS
AFTER  PUBLICATION IN THE FEDERAL REGISTER].  Under the Paperwork
Reduction Act, comments on the information collection provisions must be
received by OMB on or before [insert date thirty days after date of
publication in the Federal Register.]

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      ●	  HYPERLINK "http://www.regulations.gov"  www.regulations.gov 
:  Follow the on-line instructions for submitting comments.

Email:   HYPERLINK "mailto:rcra-docket@epa.gov"  rcra-docket@epa.gov .

Fax: 202-566-9744. 

Mail: RCRA Docket, Environmental Protection Agency, Mailcode: 2822T,
1200 Pennsylvania Ave., NW., Washington, DC 20460.  Please include a
total of two copies.  We request that you also send a separate copy of
your comments to the contact person listed below (see FOR FURTHER
INFORMATION CONTACT). In addition, please mail a copy of your comments
on the information collection provisions to the Office of Information
and Regulatory Affairs, Office of Management and Budget (OMB), Attn:
Desk Officer for EPA, 725 17th St. NW., Washington, DC 20503. 

Hand Delivery:  RCRA Docket, EPA Docket Center (2822T), EPA West, Room
3334, 1301 Constitution Ave., NW., Washington, DC.  Such deliveries are
only accepted during the Docket’s normal hours of operation, and
special arrangements should be made for deliveries of boxed information.
 Please include a total of two copies.  We request that you also send a
separate copy of each comment to the contact person listed below (see
FOR FURTHER INFORMATION CONTACT).

Instructions:  Direct your comments to Docket ID No
EPA-HQ-RCRA-2005-0017.  The EPA's policy is that all comments received
will be included in the public docket without change and may be made
available online at   HYPERLINK "http://www.regulations.gov" 
www.regulations.gov , including any personal information provided,
unless the comments include information claimed to be Confidential
Business Information (CBI) or other information the disclosure of which
is restricted by statute.  Do not submit information that you consider
to be CBI or otherwise protected through www.regulations.gov or e-mail. 
Send or deliver information identified as CBI to the following address: 
Ms. LaShan Haynes, RCRA Document Control Officer, EPA (Mail Code 5305W),
Attention Docket ID No. EPA-HQ-RCRA-2005-0017, 1200 Pennsylvania Avenue,
Washington DC, 20460.  Clearly mark the part or all of the information
that you claim to be CBI.  The   HYPERLINK "http://www.regulations.gov" 
www.regulations.gov  website is an “anonymous access” system, which
means EPA will not know your identity or contact information unless you
provide it in the body of your comment.  If you send an e-mail comment
directly to EPA without going through www.regulations.gov, your e-mail
address will be automatically captured and included as part of the
comment that is placed in the public docket and made available on the
Internet.  If you submit an electronic comment, EPA recommends that you
include your name and other contact information in the body of your
comment and with any disk or CD-ROM you submit.  If EPA cannot read your
comment due to technical difficulties and cannot contact you for
clarification, EPA may not be able to consider your comment.  Electronic
files should avoid the use of special characters, any form of
encryption, and be free of any defects or viruses.  For additional
information about EPA’s public docket, visit the EPA Docket Center
homepage at   HYPERLINK "http://www.epa.gov/epahome/dockets.htm" 
http://www.epa.gov/epahome/dockets.htm .  We also request that
interested parties who would like information they previously submitted
to EPA to be considered as part of this action identify the relevant
information by docket entry numbers and page numbers.

Docket: All documents in the docket are listed in the   HYPERLINK
"http://www.regulations.gov"  www.regulations.gov  index.  Although
listed in the index, some information is not publicly available, e.g.,
CBI or other information whose disclosure is restricted by statute. 
Certain other material, such as copyrighted material, will be publicly
available only in hard copy.  Publicly available docket materials are
available either electronically in   HYPERLINK
"http://www.regulations.gov"  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, D.C.  20460; telephone number: (703) 308-8453; fax number:
(703) 308-8433; email address:   HYPERLINK "mailto:jackson.mary@epa.gov"
 jackson.mary@epa.gov  .

SUPPLEMENTARY INFORMATION:

 General Information 

A.  Does This Action Apply to Me?

Categories and entities potentially affected by this action include:

Category	NAICS code	SIC code	Examples of potentially regulated entities

Any industry that generatesor combusts hazardous waste as defined in the
proposed rule	562

327

325

324

331

333

326

488, 561

421

422

512, 541, 812

512, 514, 541, 711 

924

336

928

334

339	49

32

28

29

33

38

306

49

50

51

73

89

95

37

97

35

38	Waste Management and Remediation Services

Non-metallic Mineral Products Manufacturing

Chemical Manufacturing

Petroleum and Coal Products Manufacturing

Primary Metals Manufacturing

Machinery Manufacturing

Plastic and Rubber Products Manufacturing

Administration and Support Services

Scrap and waste materials

Wholesale Trade, Non-durable Goods, N.E.C

Business Services, N.E.C.

Services, N.E.C.

Air, Water and Solid Waste Management

Transportation Equipment Manufacturing

National Security

Computer and Electronic Products Manufacturing

Miscellaneous Manufacturing



This table is not intended to be exhaustive, but rather provides a guide
for readers regarding entities likely to be impacted by this action. 
This table lists examples of the types of entities EPA is now aware
could potentially be regulated by this action.  Other types of entities
not listed could also be affected.  To determine whether your facility,
company, business, organization, etc., is affected by this action, you
should examine the applicability criteria in this proposed rule.  If you
have any questions regarding the applicability of this action to a
particular entity, consult the person listed in the preceding FOR
FURTHER INFORMATION CONTACT section.

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

1.  Submitting CBI.  Do not submit this information to EPA through
www.regulations.gov or e-mail.  Clearly mark the part or all of the
information that you claim to be CBI.  For CBI information in a disk or
CD ROM that you mail to EPA, mark the outside of the disk or CD ROM as
CBI and then identify electronically within the disk or CD ROM the
specific information that is claimed as CBI.  In addition to one
complete version of the comment that includes information claimed as
CBI, a copy of the comment that does not contain the information claimed
as CBI must be submitted for inclusion in the public docket. 
Information so marked will not be disclosed except in accordance with
procedures set forth in 40 CFR part 2.

2. Tips for Preparing Your Comments. When submitting comments, remember
to:

Identify the rulemaking by docket number and other identifying
information (subject heading, Federal Register date and page number).

Follow directions - The agency may ask you to respond to specific
questions or organize comments by referencing a Code of Federal
Regulations (CFR) part or section number.

Explain why you agree or disagree; suggest alternatives and substitute
language for your requested changes.

Describe any assumptions and provide any technical information and/or
data that y  TOC \o "1-3" \h \z \u   ou used.

If you estimate potential costs or burdens, explain how you arrived at
your estimate in sufficient detail to allow for it to be reproduced.

Provide specific examples to illustrate your concerns, and suggest
alternatives.

Explain your views as clearly as possible, avoiding the use of profanity
or personal threats.

Make sure to submit your comments by the comment period deadline
identified.

	3. Docket Copying Costs:

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

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

In addition to being available in the docket, an electronic copy of
today’s proposed rule will also be available on the Worldwide Web
(WWW).  Following the Administrator’s signature, a copy of this
document will be posted on the WWW at   HYPERLINK
"http://www.epa.gov/hwcmact"  http://www.epa.gov/hwcmact .  This website
also provides other information related to the NESHAP for hazardous
waste combustors.

	5. Index of contents

The information presented in this preamble is organized as follows:

  TOC \o "1-4" \h \z \u    HYPERLINK \l "_Toc166653480"  Part One: 
Background and Summary	  PAGEREF _Toc166653480 \h  6  

  HYPERLINK \l "_Toc166653481"  I. Statutory Authority	  PAGEREF
_Toc166653481 \h  6  

  HYPERLINK \l "_Toc166653482"  II. Background	  PAGEREF _Toc166653482
\h  7  

  HYPERLINK \l "_Toc166653483"  A. What Is the Intent of Today’s
Proposed Rule?	  PAGEREF _Toc166653483 \h  7  

  HYPERLINK \l "_Toc166653484"  B. Who Would Be Affected by Today’s
Proposed Rule?	  PAGEREF _Toc166653484 \h  7  

  HYPERLINK \l "_Toc166653485"  C. What Is the Relationship between the
Proposed Rule and the Existing Exclusion for Comparable Fuel?	  PAGEREF
_Toc166653485 \h  8  

  HYPERLINK \l "_Toc166653486"  1.  What Modifications to the Comparable
Fuel Exclusion May Be Warranted?	  PAGEREF _Toc166653486 \h  9  

  HYPERLINK \l "_Toc166653487"  2.  How Has EPA Involved Stakeholders in
Discussions Regarding Potential Revisions to the Comparable Fuel
Exclusion?	  PAGEREF _Toc166653487 \h  10  

  HYPERLINK \l "_Toc166653488"  A.  What Are the Conditions for
Exclusion of Emission-Comparable Fuel (ECF)?	  PAGEREF _Toc166653488 \h 
11  

  HYPERLINK \l "_Toc166653489"  B.  What Changes Is EPA Proposing to the
Conditions for Existing Comparable Fuel?	  PAGEREF _Toc166653489 \h  12 


  HYPERLINK \l "_Toc166653490"  Part Two:  Rationale for the Proposed
Rule	  PAGEREF _Toc166653490 \h  13  

  HYPERLINK \l "_Toc166653491"  I.  What Is the Rationale for Excluding
Emission-Comparable Fuel from the Definition of Solid Waste?	  PAGEREF
_Toc166653491 \h  13  

  HYPERLINK \l "_Toc166653492"  A.  Why Would the Specifications Be
Waived Only for Hydrocarbons and Oxygenates?	  PAGEREF _Toc166653492 \h 
15  

  HYPERLINK \l "_Toc166653493"  B.  Do Available Data and Information
Support a Comparable Emissions Finding?	  PAGEREF _Toc166653493 \h  16  

  HYPERLINK \l "_Toc166653494"  1.  Evaluation of Organic Emissions Data
for Hazardous Waste Boilers	  PAGEREF _Toc166653494 \h  16  

  HYPERLINK \l "_Toc166653495"  2.  Evaluation of RCRA Risk Assessments	
 PAGEREF _Toc166653495 \h  19  

  HYPERLINK \l "_Toc166653496"  3.  Comparative Risk Assessment for
Dioxin/Furan	  PAGEREF _Toc166653496 \h  20  

  HYPERLINK \l "_Toc166653497"  II.  What Conditions Would Apply to
Burners of Emission-Comparable Fuel?	  PAGEREF _Toc166653497 \h  21  

  HYPERLINK \l "_Toc166653498"  A.  Why Isn’t a DRE Performance Test a
Critical Requirement to Ensure Good Combustion Conditions?	  PAGEREF
_Toc166653498 \h  22  

  HYPERLINK \l "_Toc166653499"  B.  What Is the Rationale for the
Proposed Burner Conditions?	  PAGEREF _Toc166653499 \h  23  

  HYPERLINK \l "_Toc166653500"  1.  ECF Must Be Burned in a Watertube
Steam Industrial or Utility Boiler That Is Not Stoker-Fired	  PAGEREF
_Toc166653500 \h  24  

  HYPERLINK \l "_Toc166653501"  2.  CO Monitoring	  PAGEREF
_Toc166653501 \h  25  

  HYPERLINK \l "_Toc166653502"  3.  The Boiler Must Fire at Least 50%
Primary Fuel	  PAGEREF _Toc166653502 \h  27  

  HYPERLINK \l "_Toc166653503"  4.  The Boiler Load Must Be 40% or
Greater	  PAGEREF _Toc166653503 \h  28  

  HYPERLINK \l "_Toc166653504"  5.  The ECF Must Have an As-Fired
Heating Value of 8,000 Btu/lb or Greater	  PAGEREF _Toc166653504 \h  28 


  HYPERLINK \l "_Toc166653505"  6.  ECF Must Be Fired into the Primary
Fuel Flame Zone	  PAGEREF _Toc166653505 \h  29  

  HYPERLINK \l "_Toc166653506"  7.  The ECF Firing System Must Provide
Proper Atomization	  PAGEREF _Toc166653506 \h  29  

  HYPERLINK \l "_Toc166653507"  8.  Dioxin/Furan Controls for Boilers
Equipped with an ESP or FF	  PAGEREF _Toc166653507 \h  31  

  HYPERLINK \l "_Toc166653508"  III. What Restrictions Would Apply to
Particular Hydrocarbons and Oxygenates?	  PAGEREF _Toc166653508 \h  34  

  HYPERLINK \l "_Toc166653509"  A.  What is the Rationale for the
Relative Hazard Characterization Scheme?	  PAGEREF _Toc166653509 \h  34 


  HYPERLINK \l "_Toc166653510"  B.  What Are the Results of the Relative
Hazard Ranking?	  PAGEREF _Toc166653510 \h  35  

  HYPERLINK \l "_Toc166653511"  C.  What Firing Rate Restrictions Would
Apply to Benzene and Acrolein?	  PAGEREF _Toc166653511 \h  37  

  HYPERLINK \l "_Toc166653512"  IV.  What Conditions Would Apply to
Storage of ECF?	  PAGEREF _Toc166653512 \h  38  

  HYPERLINK \l "_Toc166653513"  A.  What Are the Proposed Storage
Conditions?	  PAGEREF _Toc166653513 \h  38  

  HYPERLINK \l "_Toc166653514"  1.  Tank Systems, Tank Cars and Tank
Trucks	  PAGEREF _Toc166653514 \h  39  

  HYPERLINK \l "_Toc166653515"  2.  Underground Storage Tank Systems	 
PAGEREF _Toc166653515 \h  52  

  HYPERLINK \l "_Toc166653516"  3.  Closure of Tank Systems	  PAGEREF
_Toc166653516 \h  53  

  HYPERLINK \l "_Toc166653517"  4.  Waiver of RCRA Closure for RCRA
Tanks That Become ECF Tanks	  PAGEREF _Toc166653517 \h  54  

  HYPERLINK \l "_Toc166653518"  5.  Management of Incompatible Waste
Fuels and Other Materials	  PAGEREF _Toc166653518 \h  54  

  HYPERLINK \l "_Toc166653519"  B.  What Other Options Did We Consider?	
 PAGEREF _Toc166653519 \h  55  

  HYPERLINK \l "_Toc166653520"  1.  Other Options We Considered to
Establish Storage Conditions for ECF	  PAGEREF _Toc166653520 \h  55  

  HYPERLINK \l "_Toc166653521"  2. Consideration of Storage Controls for
Currently Excluded Comparable Fuels	  PAGEREF _Toc166653521 \h  55  

  HYPERLINK \l "_Toc166653522"  V.  How Would We Assure That The
Conditions Are Being Satisfied?	  PAGEREF _Toc166653522 \h  56  

  HYPERLINK \l "_Toc166653523"  A.  What Recordkeeping, Notification and
Certificate Conditions Would Apply to Generators and Burners?	  PAGEREF
_Toc166653523 \h  56  

  HYPERLINK \l "_Toc166653524"  1. Waste Analysis Plans	  PAGEREF
_Toc166653524 \h  56  

  HYPERLINK \l "_Toc166653525"  2. Sampling and Analysis	  PAGEREF
_Toc166653525 \h  57  

  HYPERLINK \l "_Toc166653526"  3.  Speculative Accumulation	  PAGEREF
_Toc166653526 \h  57  

  HYPERLINK \l "_Toc166653527"  4.  Notifications	  PAGEREF
_Toc166653527 \h  58  

  HYPERLINK \l "_Toc166653528"  5. Burner Certification	  PAGEREF
_Toc166653528 \h  59  

  HYPERLINK \l "_Toc166653529"  6. Recordkeeping	  PAGEREF _Toc166653529
\h  60  

  HYPERLINK \l "_Toc166653530"  7.  Transportation	  PAGEREF
_Toc166653530 \h  61  

  HYPERLINK \l "_Toc166653531"  8.  Ineligible RCRA Hazardous Waste
Codes	  PAGEREF _Toc166653531 \h  62  

  HYPERLINK \l "_Toc166653532"  B. What If I Fail to Comply with
Conditions of the Exclusion?	  PAGEREF _Toc166653532 \h  62  

  HYPERLINK \l "_Toc166653533"  C.  How Would Spills and Leaks Be
Managed?	  PAGEREF _Toc166653533 \h  63  

  HYPERLINK \l "_Toc166653534"  D.  What Would Be the Time-Line for
Meeting the Proposed Conditions?	  PAGEREF _Toc166653534 \h  64  

  HYPERLINK \l "_Toc166653535"  VI.  What Clarifications and Revisions
Are Proposed for the Existing Conditions for Exclusion of Comparable
Fuel?	  PAGEREF _Toc166653535 \h  64  

  HYPERLINK \l "_Toc166653536"  VII.  What Are the Responses to Major
Comments of the Peer Review Panel?	  PAGEREF _Toc166653536 \h  65  

  HYPERLINK \l "_Toc166653537"  A.  What Are the Reponses to Major
Comments Regarding the Comparable Emissions Rationale?	  PAGEREF
_Toc166653537 \h  65  

  HYPERLINK \l "_Toc166653538"  B.  What Are the Reponses to Major
Comments Regarding the Application of the WMPT to Rank Comparable Fuels
Constituents?	  PAGEREF _Toc166653538 \h  73  

  HYPERLINK \l "_Toc166653539"  Part Three:  State Authority	  PAGEREF
_Toc166653539 \h  77  

  HYPERLINK \l "_Toc166653540"  I.  Applicability of the Rule in
Authorized States	  PAGEREF _Toc166653540 \h  77  

  HYPERLINK \l "_Toc166653541"  II. Effect on State Authorization	 
PAGEREF _Toc166653541 \h  78  

  HYPERLINK \l "_Toc166653542"  Part Four:  Costs and Benefits of the
Proposed Rule	  PAGEREF _Toc166653542 \h  79  

  HYPERLINK \l "_Toc166653543"  I.  Introduction	  PAGEREF _Toc166653543
\h  79  

  HYPERLINK \l "_Toc166653544"  II.  Baseline Specification	  PAGEREF
_Toc166653544 \h  79  

  HYPERLINK \l "_Toc166653545"  III.  Analytical Methodology, Primary
Data Sources, and Key Assumptions	  PAGEREF _Toc166653545 \h  79  

  HYPERLINK \l "_Toc166653546"  IV.   Key Analytical Limitations	 
PAGEREF _Toc166653546 \h  80  

  HYPERLINK \l "_Toc166653547"  V.  Findings	  PAGEREF _Toc166653547 \h 
81  

  HYPERLINK \l "_Toc166653548"  Part Five:  Statutory and Executive
Order Reviews	  PAGEREF _Toc166653548 \h  82  

  HYPERLINK \l "_Toc166653549"  I. Executive Order 12866: Regulatory
Planning and Review	  PAGEREF _Toc166653549 \h  82  

  HYPERLINK \l "_Toc166653550"  II. Paperwork Reduction Act	  PAGEREF
_Toc166653550 \h  82  

  HYPERLINK \l "_Toc166653551"  III. Regulatory Flexibility Act	 
PAGEREF _Toc166653551 \h  84  

  HYPERLINK \l "_Toc166653552"  IV. Unfunded Mandates Reform Act of 1995
  PAGEREF _Toc166653552 \h  85  

  HYPERLINK \l "_Toc166653553"  V.  Executive Order 13132: Federalism	 
PAGEREF _Toc166653553 \h  85  

  HYPERLINK \l "_Toc166653554"  VI. Executive Order 13175: Consultation
and Coordination with Indian Tribal Governments	  PAGEREF _Toc166653554
\h  86  

  HYPERLINK \l "_Toc166653555"  VII.  EO 13045 “Protection of Children
from Environmental Health Risks and Safety Risks”	  PAGEREF
_Toc166653555 \h  86  

  HYPERLINK \l "_Toc166653556"  VIII. Executive Order 13211: Actions
Concerning Regulations that Significantly Affect Energy Supply,
Distribution, or Use	  PAGEREF _Toc166653556 \h  87  

  HYPERLINK \l "_Toc166653557"  IX. National Technology Transfer
Advancement Act	  PAGEREF _Toc166653557 \h  87  

 

Part One:  Background and Summary

I. Statutory Authority

These regulations are proposed under the authority of sections 2002,
3001, 3002, 3003, and 3004 of the Solid Waste Disposal Act of 1970, as
amended by the Resource Conservation and Recovery Act of 1976 (RCRA), as
amended by the Hazardous and Solid Waste Amendments of 1984 (HSWA), 42
U.S.C. 6921, 6922, 6923, and 6924.

II. Background

A. What Is the Intent of Today’s Proposed Rule?

Section 40 CFR 261.38 states that secondary materials (i.e., materials
that otherwise would be hazardous wastes) which have fuel value and
whose hazardous constituent levels are comparable to those found in the
fossil fuels which would be burned in their place are not solid wastes,
and hence not hazardous wastes.  We are proposing to amend the this
so-called comparable fuel exclusion by expanding the exclusion to
include fuels that are produced from a hazardous waste but which
generate emissions when burned in an industrial boiler that are
comparable to emissions from burning fuel oil.  In other words, the
fuels would be comparable from an emissions standpoint but not a
physical standpoint.  The revised rule would establish a new category of
excluded waste-derived fuel called emission-comparable fuel (ECF).

The quantity of waste fuels excluded under this approach would increase
substantially the amount of hazardous waste fuels that would eligible
for exclusion from the RCRA hazardous waste regulations.  Specifically,
we estimate that approximately 13,000 tons per year of waste fuels are
currently excluded under the existing comparable fuel exclusion, while
we project that up to an additional 94,000 130,000 tons per year may be
excluded under the exclusion being proposed today.  

These additional hazardous secondary materials could be burned for
energy recovery without imposing unnecessary regulatory costs on
generators, primarily the manufacturing sector.  However, the expanded
comparable fuel exclusion may not substantially increase the amount of
hazardous waste burned for energy recovery because high Btu wastes, even
though not currently excluded from RCRA, are currently burned in
industrial furnaces and incinerators for their fuel value.  Nonetheless,
continuing to regulate these waste-derived fuels as hazardous wastes
would treat a potentially valuable fuel commodity (especially
considering the increasing value of fuels) as a waste without a
compelling basis.

B. Who Would Be Affected by Today’s Proposed Rule?

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

Commercial hazardous waste combustors that are currently managing waste
fuels that qualify as ECF, on the other hand, might find themselves
unable to continue to charge hazardous waste management fees for the
excluded waste fuels.  Consequently, commercial hazardous waste
combustors might lose the waste management revenues for those diverted
fuels and may need to meet their heat input requirements by using other
waste fuels or fossil fuels.

C. What Is the Relationship between the Proposed Rule and the Existing
Exclusion for Comparable Fuel?

On June 19, 1998 (63 FR 33782 and §261.38), EPA promulgated standards
to exclude from the regulatory definition of solid waste certain
hazardous waste-derived fuels that meet specification levels for
hazardous constituents and physical properties that affect burning which
are comparable to the same levels in fossil fuels.  EPA’s goal was to
develop a comparable fuel specification which is useable by the
regulated community, but assures that an excluded waste-derived fuel is
similar in composition to commercially available fuel and therefore
poses no greater risk than burning fossil fuel. 

During the eight years that the comparable fuel exclusion has been part
of the hazardous waste regulations, several stakeholders have pointed
out that many hazardous wastes with fuel value do not satisfy the terms
of the exclusion.  Independently, in 2003, EPA began examining the
effectiveness of the current comparable fuel program as part of an
effort to promote the energy conservation component of the Resource
Conservation Challenge to determine whether other hazardous wastes could
be appropriately excluded as comparable fuel.

As part of this effort, we contacted the American Chemistry Council
(ACC) in early 2003 to determine how much waste is currently excluded as
comparable fuel and whether there were additional quantities of other
high Btu wastes that could potentially be considered comparable fuel. 
ACC conducted a survey of its members and provided results to EPA in
late 2003 indicating that approximately 13,000 tons per year of waste
fuels are currently excluded, but that approximately 190,000 tons per
year of additional waste fuels could potentially be excluded under
revisions to the exclusion.

Therefore, ACC recommended that EPA consider approaches to address the
following barriers perceived as excluding additional quantities of waste
fuels:  

Analytic Issues:  High analysis cost and matrix interferences hamper
meeting the detection limit requirements for nondetected analytes in
many waste fuel matrices.

Over-Rigid Specifications:  Wastes containing nonhalogenated organics
and oxygenates do not result in emissions greater than burning waste
fuel meeting the specification if the combustor operates under good
combustion conditions.

Blending:  The current exclusion bans blending to meet hazard
constituent specifications.  Flexibility is needed on blending of
streams containing low levels of constituents, such as chromium and
manganese attributable to corrosion from stainless steel vessels and
pipes. 

1.  What Modifications to the Comparable Fuel Exclusion May Be
Warranted?

We are proposing in this action to expand the exclusion for comparable
fuel to establish a new category of excluded fuel—emission-comparable
fuel (ECF).  This proposal would exclude waste fuels that generate
emissions, when burned in an industrial boiler, which are comparable to
emissions from burning fuel oil.  ECF would be subject to the same
hazardous constituent and other specifications in Table 1 to §261.38
that currently apply to comparable fuels, except that the specifications
for certain hydrocarbons and oxygenates would not apply.  The exclusion
would be based on the rationale that ECF has substantial fuel value,
that the hydrocarbon and oxygenate constituents no longer subject to a
specification add fuel value, and that emissions from burning ECF in an
industrial boiler operating under good combustion conditions are likely
not to differ from emissions from burning fossil fuels under those same
conditions.  As a result, the current specifications limiting the
hydrocarbons and oxygenates appear to be unnecessary.

The exclusion would be conditioned on the ECF being burned and stored
under certain conditions, including:  (1) design and operating
conditions for the ECF boiler that ensure that the ECF is burned under
the good combustion conditions typical for oil-fired industrial boilers;
and (2) conditions for storage in tanks which are comparable to those
for storage of fuels and organic liquids and which are tailored for the
hazards that ECF may pose given that ECF can have higher concentrations
of certain hydrocarbons and oxygenates than fuel oil and gasoline.

We are not proposing revisions to the comparable fuel exclusion to
address the analytical and blending recommendations raised by ACC.  

a.  Why Are We Not Proposing Revisions to Address Analytic Concerns? 
The specifications in Table 1 to §261.38 for volatile organic compounds
that were not detected in fuel oil or gasoline were based on the low
levels of detection achievable for fuel oil rather than the much higher
levels of detection achievable for gasoline.  Given that only benzene,
toluene, and naphthalene were detected, EPA used this approach for most
of the volatile organic compounds.  EPA acknowledged this deviation from
establishing the specification for nondetected compounds as the highest
level of detection in a benchmark fuel and explained that the levels of
detection for volatile compounds in gasoline were inflated because of
matrix effects.  ACC suggested that EPA consider the fact that many
waste fuels may pose the same matrix effects as gasoline, such that the
fuel oil-based specifications would not be reasonably achievable.  

We believe that it would not be appropriate to consider increasing the
specifications for all volatile organic compounds and base them on the
higher levels of detection in gasoline rather than fuel oil levels of
detection because most of the compounds would simply not be expected to
be found in fuel oil or gasoline.  Rather, only certain hydrocarbons
would be expected to be in these fuels.  We could potentially also
consider oxygenates, however, because they are within a class of
compounds that are added to fuels to enhance combustion.  It appeared,
however, that this revision would not likely result in additional
hazardous waste fuel being conditionally excluded.  There were very few,
if any, waste fuels that meet the specifications for all volatile
compounds, except for the enumerated hydrocarbons and oxygenates, and
that also could meet revised, higher specifications for the hydrocarbons
and oxygenates based on the levels of detection in gasoline. 
Consequently, we are not pursuing this approach further but,
nonetheless, solicit comment on such an approach.

b.  Why Are We Not Proposing Revisions to Address Blending Concerns?   A
condition of the existing comparable fuel exclusion is that blending to
meet the specification (except for viscosity) is prohibited to preclude
dilution to avoid treatment.  ACC noted that waste fuels often contain
incidental contamination of metals, such as chromium and manganese from
corrosion of stainless steel vessels and pipes, and that blending to
meet the specifications for low levels of metals appears reasonable.  We
believe that blending to meet the specifications for metals is
explicitly prohibited because it would be inconsistent with the section
3004(m) hazardous waste treatment provisions (which, although not
directly applicable, articulate important overall statutory objectives)
which require hazardous constituents to be removed or destroyed by
treatment, not diluted.  See 63 FR at 33795.

We believe, however, that blending to meet the specification for organic
compounds that may be present in fuel oil or
gasoline—hydrocarbons—or that are within a class of compounds that
are added to fuels to enhance combustion—oxygenates—could be
considered.  These compounds would not be diluted to avoid treatment;
they would still be treated by combustion.  However, it appears that
there were very few, if any, additional waste fuels that would be
excluded under such a blending provision.  Consequently, we are not
pursuing this approach further but, nonetheless, Nonetheless, we solicit
comment on such an approach and its applicability to additional waste
fuels.

2.  How Has EPA Involved Stakeholders in Discussions Regarding Potential
Revisions to the Comparable Fuel Exclusion?  

On December 15, 2005, EPA convened a public meeting of stakeholders to
discuss potential revisions to the comparable fuel exclusion under 40
CFR 261.38.  Meeting notes are available in the docket for this
rulemaking.  Participants in the stakeholder meeting raised several
issues during the meeting and our responses are included in the meeting
notes.  In addition, several participants submitted written comments
after the meeting.  These comments and our responses are available in
the docket to today’s proposal.

III. Summary of the Proposed Rule

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

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

ECF is a fuel derived from hazardous waste but which would be excluded
from the RCRA hazardous waste regulations if it meets prescribed
specifications and management conditions.  The ECF specifications would
be the same as those that are applicable to comparable fuel, except the
specifications for particular hydrocarbons and oxygenates would not
apply.  See proposed §261.38(a)(2).  The exclusion would apply from the
point that ECF meets the specifications.

Special conditions of the exclusion specific to ECF would include the
following design and operating conditions for the ECF burner:  (1) the
burner must be a watertube steam boiler other than a stoker-fired
boiler; (2) carbon monoxide (CO) must be monitored continuously, must be
linked to an automatic ECF feed cutoff system, and must not exceed 100
ppmv on an hourly rolling average (corrected to 7% oxygen); (3) the
boiler must fire at least 50% primary fuel on a heating value or volume
basis, whichever results in a higher volume of primary fuel, and the
primary fuel must be fossil fuel or tall oil with a heating value not
less than 8,000 Btu/lb; (4) the boiler load must be 40% or greater; (5)
the ECF must have an as-fired heating value of 8,000 Btu/lb or greater;
(6) ECF must be fired into the primary fuel flame zone; (7) the ECF
firing system must provide proper atomization; and (8) if the boiler is
equipped with an electrostatic precipitator (ESP) or fabric filter (FF)
and does not fire coal as the primary fuel, the combustion gas
temperature at the inlet to the ESP or FF must be continuously
monitored, must be linked to the automatic ECF feed cutoff system, and
must not exceed 400°F on an hourly rolling average.  See proposed
§261.38(c)(2).  (Please note that we specifically request comment on
several of these proposed conditions, as discussed later.) The principal
conditions that would apply to ECF boilers—waterwall steam boiler, low
CO, burning high Btu primary fuel that is properly atomized, operating
at boiler loads above 40%—reflect design and operating conditions
typical for oil-fired industrial boilers that operate under good
combustion conditions.

In addition, ECF must be stored in tanks, tank cars, or tank trucks. 
See proposed §261.38(c)(1).  These tank systems, tank cars, and tank
trucks would be excluded from regulation if they meet conditions similar
to those which apply to fuel oil (the product most analogous to ECF),
along with additional conditions necessary to minimize the potential for
releases to the environment accounting for the differences between ECF
and fuel oil.  These include:  (1) certain provisions of the Spill
Prevention, Control, and Countermeasures (SPCC) requirements applicable
to oils under §§112.2, 112.5, 112.7, and 112.8; (2) secondary
containment and leak detection requirements for tank systems, including
use of liners, vaults, or double-walled tanks; (3) preparedness and
prevention, emergency procedures, and response to release provisions
adopted from requirements applicable to tank systems that store
hazardous waste, and (4) fugitive air emission technical controls
adopted from Subpart EEEE, Part 63, for organic liquids distribution
(which would apply not only to any hazardous air pollutants among the
oxygenates and hydrocarbons, but also would apply to the 11 oxygenates
for which there would be no specification in this proposed rule and
which are hazardous constituents under RCRA having significant vapor
pressure but which are not hazardous air pollutants under the CAA). 
Underground tanks storing ECF are subject to the applicable requirements
of 40 CFR Part 280.  A further condition of the exclusion is that the
generator must document in the waste analysis plan how precautions will
be taken to prevent mixing of ECF and other materials which could result
in adverse consequences from incompatible materials.  In addition, to be
excluded, ECF would need to meet all of the conditions applicable to the
existing comparable fuel, including:  (1) the specifications under Table
1 to 261.38, except for the specifications for certain hydrocarbons and
oxygenates; (2) prohibition on blending to meet the specifications,
except for viscosity; (3) notifications to state RCRA and Clean Air Act
(CAA) Directors and public notification; (4) waste analysis plans; (5)
sampling and analysis conditions; (6) prohibition on speculative
accumulation; (7) recordkeeping; (8) burner certification to the
generator; and (9) ineligible waste codes.

ECF that has lost its exclusion because of failure to satisfy a
condition of the exclusion must be managed as a hazardous waste from the
point of ECF generation.  In addition, ECF that is spilled or leaked and
cannot be burned under the conditions of the exclusion is a waste (it is
a hazardous waste if it exhibits a characteristic of hazardous waste or
if the ECF were derived from a listed hazardous waste) and must be
managed in accordance with existing federal and state regulations. 
Furthermore, if an ECF tank system ceases to be operated to store ECF
product, but has not been cleaned by removing all liquids and
accumulated solids within 90 days of cessation of ECF storage
operations, the tank system would become subject to the RCRA subtitle C
hazardous waste regulations.  (This is the same principle that applies
to any product storage unit when it goes out of service.  See
§261.4(c).)  Liquids and accumulated solids removed from a tank system
that ceases to be operated for storage of ECF product are waste (they
are hazardous wastes if they exhibit a characteristic of hazardous waste
or if the ECF were derived from a listed hazardous waste).  

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

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

We are, however, proposing to amend several provisions that apply to
comparable fuel for the same reasons that we are proposing to apply the
amended provisions to ECF.  We specifically request comment on whether
these clarifications and conforming amendments are appropriate:

We are proposing to clarify the consequences of failure to satisfy the
conditions of the existing comparable fuel exclusion.  The material must
be managed as hazardous waste from the point of generation.  In
addition, we are proposing to clarify that excluded fuel that is spilled
or leaked and that no longer meets the conditions of the exclusion must
be managed as a hazardous waste if it exhibits a characteristic of
hazardous waste or if it was derived from a listed hazardous waste when
the exclusion was claimed.  See proposed §261.38(d).  

We are proposing to clarify the status of tanks that cease to be
operated as comparable fuel storage tanks.  The tank system becomes
subject to the RCRA hazardous waste facility standards if not cleaned of
liquids and accumulated solids within 90 days of ceasing operations as a
comparable fuel tank.  In addition, we are proposing to clarify that
liquids and accumulated solids removed from the tank after the tank
ceases to be operated as a comparable fuel product tank must be managed
as hazardous waste if they exhibit a characteristic of hazardous waste
or if they were derived from a listed hazardous waste when the exclusion
was claimed.  See proposed §261.38(b)(13).

We are proposing to waive the RCRA closure requirements for tank systems
that are used only to store hazardous wastes that are subsequently
excluded as comparable fuel.  See proposed §261.38(b)(14).

We are proposing to clarify the regulatory status of boiler residues,
including bottom ash and emission control residue.  Burning excluded
fuel that was derived from a listed hazardous waste does not subject
boiler residues to regulation as derived-from hazardous waste.  See
§261.38(b)(12).

We are proposing that the one-time notice by the generator to regulatory
officials include an estimate of the average and maximum monthly and
annual quantity of waste for which an exclusion would be claimed.  See
proposed §261.38(b)(2)(i)(D).

Part Two:  Rationale for the Proposed Rule

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

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

The exclusion would be based on the rationale that ECF has fuel value,
that the hydrocarbon and oxygenate constituents no longer subject to a
specification themselves have fuel value, and that emissions from
burning ECF in an industrial boiler operating under good combustion
conditions are likely not to differ from emissions from burning fossil
fuels under those same conditions.  Emissions from burning ECF in an
industrial boiler operating under good combustion conditions would be
comparable to emissions from burning fuel oil in an industrial boiler
operating under the same good combustion conditions because operating a
boiler under good combustion conditions, evidenced by carbon monoxide
(CO) emissions below 100 ppmv (on an hourly rolling average), assures
the destruction of organic compounds generally to trace levels,
irrespective of the type or concentration of the organic compound in the
feed.  As hydrocarbons are oxidized during combustion, eventually
(ideally) to carbon dioxide and water, CO is formed just prior to
complete oxidation to carbon dioxide.  Because CO is difficult to
oxidize, it is the rate-limiting step in the oxidation process.  Thus,
low CO levels indicate good combustion and low levels of organic
compounds.

EPA has discretion to classify such material as a fuel product, and not
as a waste.  See generally Safe Foods and Fertilizer v. EPA, 350 F. 3d
1263, 1269-71 (D.C. Cir. 2004) (secondary materials physically
comparable to virgin products which would be used in their place, or
which pose similar or otherwise low risks when used in the same manner
as the virgin product, need not be considered “discarded” and hence
need not be classified as solid wastes).  Given that ECF (including the
hydrocarbon and oxygenate portion) would have legitimate energy value
and that emissions from burning ECF are comparable to fuel oil when
burned in an industrial boiler under the good combustion conditions
typical of such boilers, classifying such material as a fuel product and
not as a waste promotes RCRA’s resource recovery goals without
creating a risk from burning greater than those posed by fossil fuel. 
Under these circumstances, EPA can permissibly classify ECF as a
nonwaste.

The conditional exclusion would be an exclusion only from the RCRA
subtitle C regulations, and not from the emergency, remediation and
information-gathering sections of the RCRA statute [sections 3007, 3013,
and 7003].  This is consistent with the principle already codified for
other excluded hazardous secondary materials—that the exclusion is
only from the RCRA regulatory provisions, and not from these statutory
authorities.  See §261.1(b).  We are restating this principle here in
the interest of clarity, not to reopen the issue.  The legal basis for
the distinction of the Agency’s authority under these provisions is
that they use the broader statutory definition of solid waste (and
hazardous waste, as well) and so need not (and should not) be read as
being limited by the regulatory definition.  See, for example, 50 FR at
627.  See also Connecticut Coastal Fishermen’s Assn. v. Remington
Arms, 989 F. 2d 1305, 1313–15 (2d Cir. 1993) (EPA may permissibly
ascribe different definitions to the term ‘‘solid waste’’ for
regulatory

and statutory purposes).

Although ECF could have higher concentrations of particular hydrocarbons
and oxygenates than the benchmark fossil fuels—fuel oil and
gasoline—that EPA used to establish the specifications in Table 1 to
§261.38, higher levels of hydrocarbons and oxygenates in ECF do not
imply that burning ECF for energy recovery constitutes waste management
because:  (1) hydrocarbons naturally occur in virgin fuels and
oxygenates are a class of compounds that are added to virgin fuels to
enhance combustion; (2) the hydrocarbons and oxygenates have a heating
value of 10,000 Btu/lb to 18,500 Btu/lb, which is comparable to the
range for virgin fuels (e.g., coal and fuel oil); and (3) the
hydrocarbons and oxygenates produce emissions comparable to virgin fuels
when burned under conditions typical of those under which virgin fuels
are burned.

We note, however, that ECF can pose a greater hazard during storage than
fuel oil given that ECF can contain higher concentrations of certain
hazardous toxic, volatile hydrocarbons and oxygenates.  We are
consequently proposing to condition the exclusion on certain storage
conditions similar to those applicable to commercial products and
commodities analogous to ECF, namely fuel oil and other commercial
organic liquids.  See discussion below in Part Two, Section IV.

In addition, we are proposing to condition the exclusion on requirements
for the design and operation of the ECF burner to ensure that ECF is
burned under the good combustion conditions typical of most fossil fuel
boilers.  See discussion below in Part Two, Section II.  These
conditions should ensure that emissions from burning ECF remain
comparable to emissions from burning fossil fuels.

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

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

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

	It is appropriate to retain the specifications for metals since they do
not contribute energy and are not destroyed during the combustion
process.  Given that the metal specifications in Table 1 to §261.38
reflect levels that can be present in fuel oil, excess, noncontributing
metals are “along for the ride,” suggesting discarding.  Moreover,
metals emissions would necessarily be higher than emissions from fuel
oil if the metals specifications do not apply because oil-fired boilers
typically lack optimized particulate control due to low metal content of
commercially available fuel oils.  

	Also, it is appropriate to retain the specifications for the other
categories of organic compounds listed under Table 1 to
§261.38—sulfonated organics, nitrogenated organics, and halogenated
organic compounds.  These organic compounds, for the most part, are not
likely to be found in the benchmark fuels—fuel oil and gasoline—we
used to establish the specifications.  And, unlike oxygenates, these
organic compounds are not within a class of compounds that are added to
fossil fuels to enhance combustion.  These toxics  hazardous compounds
also would appear to be along for the ride when present at
concentrations higher than benchmark fuels, and consequently their
destruction via combustion can be viewed as waste management.

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

	We investigated whether emissions from burning ECF in an industrial
boiler operating under prescribed good combustion conditions would be
comparable to emissions from burning fuel oil in an industrial boiler
operating under good combustion conditions.  We evaluated organic
emissions data from watertube steam boilers (other than stoker-fired
boilers) burning hazardous waste and compared those emissions against
emissions from oil-fired industrial boilers.  In addition, we conducted
two qualitative analyses of the risk that ECF emissions may pose:  (1)
evaluation of RCRA risk assessments for watertube steam boilers burning
hazardous waste to determine if organic emissions had been found to pose
a hazard to human health and the environment; and (2) a limited
comparative risk assessment for dioxin/furan emissions.  

	As discussed below, we believe that available data and information
indicate that emissions from burning ECF under the proposed, prescribed
conditions would be comparable to emissions from an oil-fired industrial
watertube steam boiler operating under good combustion conditions.

1.  Evaluation of Organic Emissions Data for Hazardous Waste Boilers

	In the absence of emissions data from boilers burning ECF, we evaluated
organic emissions data from watertube steam boilers burning hazardous
waste and compared those emissions against emissions from oil-fired
industrial boilers.  Using hazardous waste boiler emissions as a
surrogate for ECF boiler emissions is a reasonable worst-case because
the exclusion would be conditioned on the ECF boiler operating under
conditions relating to assuring good combustion conditions that are at
least as stringent as those required of boilers burning hazardous waste.

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

We have emissions data for both hazardous waste boilers and oil-fired
industrial boilers for 26 toxic hazardous organic compounds.  We also
have hazardous waste boiler emissions data for another 33 toxic
hazardous organic compounds for which we do not have oil-fired boiler
emissions data for comparison.  We discuss our investigation of these
data below.

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

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

For seven exceedances, hazardous waste boiler emissions were at trace
levels—there was a de minimis increase in emissions.  Test condition
averages were below 8 ug/dscm for the exceedances for anthracene,
benzo[a]pyrene, ethylbenzene, fluorine, 2-methlynaphthalene, and
phenanthrene.

In addition, an exceedance for acetaldehyde was at an emissions level of
100 ug/dscm, while oil emission levels for acetaldehyde are virtually
comparable at 70 ug/dscm.  However, the hazardous waste boiler emissions
for acetaldehyde were well below the 95th percentile emissions for
natural gas boilers, 635 ug/dscm.  This is relevant because ECF may be
burned with natural gas as the primary fuel.  Further, we note that the
hazardous waste boiler was operating under conditions less stringent
than proposed for ECF boilers—it was burning only 20% natural gas as
the primary fuel, while it is proposed that ECF boilers fire at least
50% primary fuel.  Thus, acetaldehyde emissions may be higher than they
would have been if the boiler had the hot, stable flame that burning 50%
natural gas (or fuel oil) would provide.

Finally, there were four exceedances for benzene that we nonetheless
believe are comparable to fuel oil emissions.  Three of the exceedances
were below the highest fuel oil emission test run level of 200 ug/dscm,
while the fourth exceedance was at a level of 260 ug/dscm, just somewhat
higher.  Moreover More importantly, for all four exceedances, the
hazardous waste boiler was not operating under the conditions proposed
for an ECF boiler.  For all four exceedances, the hazardous waste fuel
had a heating value below 2,000 Btu/lb compared to 8,000 Btu/lb that is
proposed for ECF.  And, for one of the exceedances, the hazardous waste
fuel had a viscosity of 165 cSt, while the maximum viscosity for ECF
would be 50 cSt.  To reiterate, operating under conditions less
stringent than proposed for ECF boilers could result in higher emissions
of organic compounds.

Notwithstanding this analysis of available emissions data, we
acknowledge that, when ECF with higher concentrations of certain
hydrocarbons and oxygenates than fuel oil is burned even under good
combustion conditions, emissions of toxic hazardous organics may be
somewhat higher than those from burning fossil fuel.  This is because
combustion is generally a percent-reduction process.  Thus, even though
good combustion conditions may ensure a very high destruction efficiency
(e.g., 99.9999 % reduction), emission concentrations may nonetheless
increase as the feedrate of an organic compound increases.  We believe,
however, that these increases would be de minimis because operating
under the good combustion conditions proposed for ECF boilers ensures
that emissions of toxic hazardous organic compounds would generally be
at trace levels, and, as discussed below, protective of human health and
the environment.

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

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

For chloroform, we have emissions data for 9 test conditions (generally
comprised of three runs) representing 9 different boilers.  Test
condition average emissions ranged from 0.28 ug/dscm to 270 ug/dscm for
the boilers, with an average of 45 ug/dscm.  Although the highest test
condition average—270 ug/dscm—appeared to be an outlier given that
the second highest average was 85 ug/dscm and the remaining test
conditions did not exceed 16 ug/dscm, we determined that it is not a
statistical outlier.  We note, however, that the boiler with the highest
emissions—270 ug/dscm—was not operating under the conditions that
are proposed for an ECF boiler—it burned a waste fuel with a heating
value below 8,000 Btu/lb and it is not clear whether the boiler burned
process vent gas or natural gas as primary fuel.

2.  Evaluation of RCRA Risk Assessments

	In addition to the analysis of emission concentrations discussed above,
we reviewed the RCRA risk assessments that had been completed by June
2006 for hazardous waste watertube steam boilers other than stoker-fired
boilers to determine if organic emissions under the good combustion
conditions required by the standards under Part 266, Subpart H, may
result in unacceptable risk to human health and the environment.  We
determined that such risk assessments had been conducted at13 facilities
and decisions on whether omnibus/additional permit conditions are needed
to ensure emissions are protective have been made for nine of those
facilities.  A decision to include an omnibus permit condition to
address organic emissions has been made for only two of the nine
facilities, however.  

The first facility operated several boilers equipped with a common
electrostatic precipitator.  Risk-based dioxin emission limitations and
associated testing and temperature monitoring requirements were
established in the permit based upon a finding that dioxin/furan
emissions during an isolated test event exceeded risk levels of concern.
 During that test event, artificial chlorine spiking into the waste feed
was conducted.  During subsequent testing under the permit terms,
chlorine spiking did not take place and compliance with the risk-based
dioxin/furan emission limitations was demonstrated.  Electrostatic
precipitator operating temperatures during the subsequent tests ranged
from 396°F to 418°F.  We note, however, that the chlorine
specification proposed for ECF would prohibit chlorine concentrations
from approaching the levels present during the instances of chlorine
spiking at this facility.  In addition, we also note that today’s
proposal would require that ECF boilers (other than coal-fired boilers)
equipped with an ESP or FF maintain a gas temperature below 400 F as a
condition of the exclusion.  See discussion in Section II below.  

For the second facility where omnibus permit conditions were imposed,
there was no finding of excess risk associated with any organic
constituents.  Rather, the omnibus permit conditions serve as a trigger
for a reassessment of risk if emissions levels higher than those
considered in the initial risk assessment were measured.  

This analysis confirms our view that organic emissions from hazardous
waste boilers operating under good combustion conditions required under
§§266.104 and 63.1217 are generally protective.  It also confirms our
view that organic emissions from ECF boilers operating under the good
combustion conditions discussed in Section II below should be
protective.

3.  Comparative Risk Assessment for Dioxin/Furan

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

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

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

	The ECF exclusion proposed today would be conditioned on burning ECF
under conditions typical of a fuel oil-fired industrial boiler operating
under good combustion conditions.  The ECF conditions would ensure that
the boiler maintains a hot, stable flame, and that ECF is properly
atomized and fired into that flame.  In addition, post-combustion
conditions would minimize the potential for dioxin/furan formation by
controlling the combustion gas temperature at the inlet to a dry
particulate matter control device for boilers so-equipped.  Accordingly,
we propose the following conditions:  (1) the burner must be a watertube
steam boiler other than a stoker-fired boiler; (2) carbon monoxide (CO)
must be monitored continuously, must be linked to an automatic ECF feed
cutoff system, and must not exceed 100 ppmv on an hourly rolling average
(corrected to 7% oxygen); (3) the boiler must fire at least 50% primary
fuel on a heat input or volume basis, whichever results in a higher
volume of primary fuel, and the primary fuel must be fossil fuel or tall
oil with a heating value not less than 8,000 Btu/lb; (4) the boiler load
must be 40% or greater; (5) the ECF must have an as-fired heating value
of 8,000 Btu/lb or greater; (6) ECF must be fired into the primary fuel
flame zone; (7) the ECF firing system must provide proper atomization;
and (8) if the boiler is equipped with an electrostatic precipitator
(ESP) or fabric filter (FF) and does not fire coal as the primary fuel,
the combustion gas temperature at the inlet to the ESP or FF must be
continuously monitored, must be linked to the automatic ECF feed cutoff
system, and must not exceed 400°F on an hourly rolling average.  These
conditions are consistent with oil-fired industrial boiler design and
operating conditions that ensure good combustion (and post-combustion
control of dioxin/furan) and ensure that emissions from burning ECF are
comparable to fuel oil emissions.  In addition, as discussed in the
previous section, such emissions would be at levels which are protective
of human health and the environment. 

The boiler design and operating conditions that ensure a hot, stable
flame and good combustion of ECF (i.e., all of the conditions, except
the condition to minimize post-combustion formation of dioxin/furan by
limiting the gas temperature at the inlet to the ESP or FF) derive from
extensive testing that EPA conducted in the mid-1980’s to identify
design and operating parameters that affect the combustion of toxic
hazardous organic compounds in waste fuels fired as supplementary fuel
in boilers.  See 52 FR at 16995-96 (May 6, 1987).  EPA used the results
of that testing to identify design and operating conditions that would
ensure that waste fuel is properly atomized and fired into a hot, stable
flame to ensure destruction of toxic hazardous organics in the waste
fuel to trace levels and to minimize formation of products of incomplete
combustion (PICs) to levels that would not pose a hazard to human health
or the environment.  

Those operating conditions also reflect typical operations for an
oil-fired industrial boiler operating under good combustion conditions: 
(1) as discussed below, CO levels below 100 ppmv are typically achieved
by oil-fired industrial boilers; (2) the oil fuel provides a hot, stable
flame; and (3) boilers generally operate at loads greater than 40% and
can experience poor combustion conditions at lower loads.  The design
conditions—the boiler must be a watertube steam boiler that is not
stoker-fired—also reflect industrial boiler designs that help ensure
optimum combustion efficiency.  See discussion below in Section B.1.

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

EPA concluded from the boiler testing discussed above that:  (1) boilers
cofiring hazardous waste fuels with fossil fuels where the hazardous
waste provides less than 50 percent of the boiler's fuel requirements
can achieve 99.99 percent destruction and removal efficiency (DRE) of
POHCs (principal organic hazardous constituents) under a wide range of
operating conditions (e.g., load changes, waste feed rate changes,
excess air rate changes); (2) when boilers are operated at high
combustion efficiency, as evidenced by flue gas carbon monoxide (CO)
levels of less than 100 ppmv, DRE exceeds 99.99 percent; (3) boilers
clearly operating under poor combustion conditions, as evidenced, for
example, by smoke emissions, still achieved 99.99 percent DRE: (4)
emissions of PICs appeared generally to increase as combustion
efficiency decreased as evidenced by increased flue gas CO levels; and
(5) emission of total unburned hydrocarbons (i.e., quantified Part 261,
Appendix VIII pollutants, as well as unburned POHCs and other unburned
organic compounds) may increase as combustion efficiency decreases as
evidenced by an increase in flue gas CO levels.  See 52 FR at 16995.

	These results confirm that a 99.99% DRE regulatory requirement (coupled
with compliance with limits on operating conditions established during
the DRE performance test) has limited utility for ensuring that a
combustor operates under the good combustion conditions necessary to
destroy both toxic hazardous organics in the fuel feed and PICs to
levels that are protective of human health.  EPA has explained, however,
why a limit on carbon monoxide emissions (i.e., 100 ppmv, hourly rolling
average) is a conservative indicator of good combustion conditions for
boilers (and other combustors) that will result in destruction of both
POHCs and PICs.  See 52 FR at 16998; 70 FR at 59461-463.  Of the four
combustion failure modes that EPA has identified—total ignition
failure, partial ignition failure, combustion air failure, and rapid
quench failure—only a total ignition failure could result in low CO
and poor combustion of POHCs and PICs.   Total ignition failure could
potentially occur in a boiler if the fuel firing gun inadvertently
directed the fuel to a location in the combustion chamber away from the
flame zone—i.e., if the fuel were not fired into the flame zone.  The
other combustion failure modes result in high CO and potentially high
unburned organics:  partial ignition failure; combustion air failure;
and rapid quench failure.  Thus, it is important to ensure that waste
fuels are fired into the flame zone of a boiler when relying on CO
emission levels to ensure good combustion conditions (and that 99.99%
DRE is achieved), as proposed for ECF boilers.

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

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

The rationale for each of the proposed burner conditions is discussed
below.  We specifically request comment on each of these proposed
conditions.

1.  ECF Must Be Burned in a Watertube Steam Industrial or Utility Boiler
That Is Not Stoker-Fired

	A condition of the proposed exclusion would require the ECF burner to
be a watertube steam boiler that does not fire fuels using a stoker or
spreader-stoker feed system.  ECF also must be burned in a boiler rather
than in an industrial furnace, such as a cement kiln, because the Agency
conducted nonsteady-state emissions tests (as part of the boiler testing
program discussed above) to identify the parameters that affect
combustion efficiency only for boilers.  Industrial furnaces have a
primary purpose other than burning fuels most efficiently and we have
not determined the operating conditions that would ensure good
combustion conditions absent the regulatory oversight provided by the
RCRA hazardous waste permit program.  

	The boiler must be a watertube, nonstoker boiler because there is a
greater potential for poor distribution of combustion gases and
localized cold spots in firetube and stoker boilers that can result in
poor combustion conditions.  In particular, stoker and spreader-stoker
boilers generally burn solid fuels with a relatively large particle size
on a bed, thus making even distribution of combustion air difficult. 
See 56 FR at 7148.

	The boiler must be a steam boiler rather than a process heater because
process heaters can have a primary purpose other than to burn fuels
under optimum combustion conditions.  An example is a process heater
that quenches combustion gases to reduce gas temperatures to avoid
overheating a process fluid.  Such operating conditions could adversely
affect combustion efficiency by interrupting the complete combustion of
organic compounds.

	Finally, the boiler must be an industrial or utility boiler as
currently required under the comparable fuel exclusion.  See proposed
§261.38(c)(2)(i).  This would ensure that ECF is burned in boilers that
are capable of handling this type of fuel (e.g., rather than boilers at
schools, apartments, or hospitals) and that would be subject to Federal,
state, or local air emission requirements.

We request comment on whether there are other types of combustors (e.g.,
thermal oxidizer) that may be able to burn ECF under the good combustion
conditions comparable to an industrial watertube steam boiler (that is
not of stoker design).  Any suggestions for other types of combustors
must include supporting information in order for the Agency to be able
to consider it for final action.

2.  CO Monitoring

A condition of the proposed exclusion would require that combustion gas
CO be monitored continuously, that the CO recordings be linked to an
automatic ECF feed cutoff system, and that CO emissions not exceed 100
ppmv on an hourly rolling average (corrected to 7% oxygen).  As
discussed above, low CO emissions, coupled with firing ECF in the
primary fuel flame zone, are the primary controls for ensuring that the
boiler is operating under good combustion conditions.  

EPA has used continuous CO monitoring as an indicator of good combustion
for various types of combustors, including boilers that burn hazardous
waste and boilers that do not burn hazardous waste.  See 70 FR at
59463-64 for a discussion of using CO to control organic HAP under the
NESHAP for hazardous waste boilers, and 68 FR at 1671 for a similar
discussion in the context of the NESHAP for boilers that do not burn
hazardous waste.  We note that the NESHAP for boilers that do not burn
hazardous waste (i.e., Industrial Boiler NESHAP) requires continuous CO
monitoring only for new solid, liquid, or gas boilers with a capacity
greater than 100 MM Btu/hr.  The CO limit is 400 ppmv corrected to 3%
oxygen for oil and gas boilers and 400 ppmv corrected to 7% oxygen for
solid fuel boilers, and is based on a 30-day average.  Boilers with a
capacity in the range of 10 MM Btu/hr to 100 MM Btu/hr comply with the
CO limit based on a 3-run average during periodic performance testing. 
See Table 1 to Subpart DDDDD, Part 63.  EPA did not establish a CO limit
for existing boilers that do not burn hazardous waste because:  (1) CO
monitoring was not floor control given that inadequate information was
available to conclude that 6% of the sources were equipped with CO
monitors or that 6% of the sources were subject to state standards for
CO monitoring; and (2) CO monitoring did not appear to be cost-effective
as a beyond-the-floor control technique.  For new sources where MACT
floor is based on the performance of the single best performing source
within a category or subcategory, EPA established CO monitoring
requirements based on the most stringent state standards for CO
monitoring that applied to all large boilers (i.e., greater than 10 MM
Btu/hr) in a subcategory (i.e., solid fuel, liquid, and gas boilers) and
to all fuel types burned by boilers within the subcategory (e.g., for
solid fuel boilers, coal, wood, and other biomass).

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

	We similarly do not believe that periodic rather than continuous CO
monitoring would be appropriate for ECF boilers, even though periodic CO
monitoring is allowed under the Industrial Boiler NESHAP to boilers in
the size range of 10 MM Btu/hr to 100 MM Btu/hr.  As discussed above,
low CO emissions, combined with the requirement to fire ECF into the
primary fuel flame zone, is the principal indicator of good combustion
conditions.  Periodic CO monitoring would ensure good combustion
conditions only periodically—combustion conditions could deteriorate
an hour, day, or week after the periodic performance test.  Given the
potential hazards that burning ECF under poor combustion conditions can
pose compared to fossil fuels and nonhazardous waste fuels, and given
the variability in combustion characteristics that ECF may have over
time relative to the primary fuel, it is reasonable to condition the
exclusion on continuous CO monitoring.  Nonetheless, we specifically
request comment on whether periodic rather than continuous CO monitoring
should be allowed for ECF boilers in the size range of 10 MM Btu/hr to
100 MM Btu/hr, consistent with the Industrial Boiler NESHAP CO
monitoring provisions for new boilers.  Commenters should must explain
and provide supporting information why periodic monitoring is
sufficient, including how the owner or operator would ensure that the
boiler is operating under “good combustion conditions” during those
times that the boiler is not being monitored for CO in order for the
Agency to be able to consider it for final action.

	Finally, we propose to specify that the CO monitor must be linked to an
automatic ECF feed cutoff system to ensure that ECF is fired only when
the boiler is operating under good combustion conditions—when CO
levels are below 100 ppmv on an hourly rolling average.  Linking the CO
monitor to an automatic ECF feed cutoff system is appropriate given that
emissions may be neither comparable to fuel oil nor protective if the
boiler is not operating under good combustion conditions.  An automatic
feed cutoff system does not appear to be cost-prohibitive and would help
assure effective combustion.  We propose to adopt the provisions for
automatic feed cutoff systems that apply to boilers that burn hazardous
waste--§63.1206(c)(3)--and for the same reasons.  See USEPA,
“Technical Support Document for HWC MACT Standards, Volume IV: 
Compliance with the HWC MACT Standards,” July 1999, Chapter 11.

3.  The Boiler Must Fire at Least 50% Primary Fuel

A condition of the proposed exclusion would require an ECF boiler to
fire at least 50% primary fuel on a heat input or volume basis,
whichever results in a higher volume of primary fuel, and the primary
fuel must be fossil fuel or tall oil with a heating value not less than
8,000 Btu/lb.  These conditions would ensure that a hot, stable flame is
provided to help ensure optimum combustion conditions.  Although a
primary fuel firing rate of 50% is at the lower end of the range of
reasonable values—50% to 75% primary fuel—that could have been
selected, we believe it is a reasonable condition because it would
ensure that the boiler is burning primarily fossil fuel (or equivalent)
and so ensures a hot, stable flame.  We also note that this condition
would be consistent with the primary fuel requirement for hazardous
waste boilers under §266.110 that elect to waive the DRE performance
standard under operating conditions that ensure optimum combustion
efficiency.

The primary fuel would be required to have a minimum heating value of
8,000 Btu/lb to reflect the low end of the range of heating values for
fossil fuels normally fired in industrial boilers.  Most coal-fired
industrial boilers burn either subbituminous coal (with heating values
ranging from 8,300-11,500 Btu/lb) or bituminous coal (with heating
values ranging from 10,500 to 14,000 Btu/lb).  Lignite, a low-rank coal
that typically has a heating value below 8,000 Btu/lb, is not commonly
burned in industrial boilers

Although we believe that the primary fuel would generally be fossil
fuel—oil, natural gas, or coal (i.e., pulverized coal burned in
suspension)--it is reasonable to allow other high-quality fuels as the
primary fuel.  Consequently, tall oil would also be allowed as a primary
fuel.  Tall oil is fuel derived from vegetable and rosin fatty acids and
has a heating value comparable to fuel oil.

We specifically request comment on whether a condition to require a
minimum of 50% primary (generally fossil) fuel is appropriate to
maintain a hot, stable flame to ensure good combustion of ECF.  Any
comments recommending an alternative minimum limit for the primary fuel
firing rate must include supporting information in order for the Agency
to be able to consider it for final action.

4.  The Boiler Load Must Be 40% or Greater

A condition of the proposed exclusion would require the ECF boiler to
operate at 40% load (i.e., the heat input at any time when ECF is fired
must be at least 40% of the maximum rated boiler heat input) or greater
to ensure a hot, stable flame.  At low loads, higher excess air rates
are used to improve fuel/air mixing.  The increased excess air rates,
however, can also cool the flame zone and even make the flame unstable
(e.g., as a candle flame flickers in a breeze), thereby increasing the
likelihood of flameout.  These conditions can result in reduced
combustion efficiency.  Although a minimum boiler load could have been
selected within the reasonable range of 25% to 40% of maximum load, we
believe it is appropriate to adopt a value at the high end of the range
to be conservative given that ECF can contain concentrations of certain
hydrocarbons and oxygenates higher than the specifications listed in
Table 1 to §261.38.  We also note that a minimum load requirement of
40% would be consistent with the requirement for hazardous waste boilers
under §266.110 that elect to waive the DRE performance standard under
operating conditions that ensure optimum combustion efficiency.

We specifically request comment on whether a condition on minimum boiler
load of 40 percent is appropriate to maintain a hot, stable flame and
thus ensure good combustion conditions.  Any comments recommending an
alternative minimum boiler load must include supporting information in
order for the Agency to be able to consider it for final action.

5.  The ECF Must Have an As-Fired Heating Value of 8,000 Btu/lb or
Greater

A condition of the proposed exclusion would require the ECF to have an
as-fired heating value of 8,000 Btu/lb or greater.  This is a reasonable
minimum heating value that could have been selected within the range of
5,000 Btu/lb to 10,000 Btu/lb because:  (1) it is the minimum heating
value of fossil fuels normally fired in industrial boilers (i.e.,
subbituminous coal); and (2) it would help ensure that a hot, stable
primary fuel flame is maintained.  We also note that more than 90% of
the candidate waste fuel streams identified by generators had heating
values greater than 8,000 Btu/lb.

	Although ECF, like comparable fuel, would need to have a heating value
of 5,000 Btu/lb as-generated (or after bona fide treatment as a
hazardous waste), it must have a minimum heating value of 8,000 Btu/lb
as-fired.  Accordingly, ECF may be blended with fuels (including
comparable fuel) other than hazardous waste to achieve an as-fired
heating value of at least 8,000 Btu/lb.  However, any fossil fuel used
to blend ECF to achieve the minimum 8,000 Btu/lb heating value
requirement could not be counted to achieve the proposed condition that
the boiler must have a minimum firing rate of 50% primary fuel.

We specifically request comment on whether a condition to require that
ECF have an as-fired heating value of 8,000 Btu/lb or greater is
appropriate to help ensure that the hazardous compounds that may be
present in the ECF at high concentrations are destroyed to levels
comparable to oil-fired boiler emissions.  Any such comments on
alternative ECF heating values must include supporting information in
order for the Agency to be able to consider it for final action.

6.  ECF Must Be Fired into the Primary Fuel Flame Zone

As a condition of the proposed exclusion, ECF must be fired into the
primary fuel flame zone to avoid, potentially, total ignition
failure—a combustion failure mode characterized by poor combustion,
high emissions of unburned organic compounds, but potentially low CO
emissions.  Under this combustion failure mode, organic compounds in ECF
would not be exposed to the hot flame zone and may be simply volatilized
absent combustion.  Thus, under this failure mode, low CO emissions may
not be indicative of good combustion conditions. 

As a practical matter, firing waste fuels (or any fuels) directly into
the flame zone of the boiler is standard operating practice.  Directing
the fuel burner in a direction that avoided the flame zone would
normally occur only inadvertently.  Nonetheless, we believe it is
prudent to propose this condition to highlight its importance in
achieving good combustion conditions.

We specifically request comment on whether a condition to require that
ECF be fired into the primary fuel flame zone is appropriate to help
ensure that the hazardous compounds that may be present in the ECF at
high concentrations are destroyed to levels comparable to oil-fired
boiler emissions.  Any such comments must include supporting information
in order for the Agency to be able to consider it for final action.

7.  The ECF Firing System Must Provide Proper Atomization

As a condition of the proposed exclusion, the ECF firing system must
provide proper atomization to ensure that the ECF droplets are not too
large for optimum volatilization.  An organic compound must be vaporized
and mixed with air before combustion can occur.  The quicker ECF and its
constituents are vaporized and the more completely the volatilized
compounds are mixed with air, the more rapid and efficient the
combustion and destruction of organic constituents.  Firing systems that
atomize liquid fuels to form small droplets increase the rate of
vaporization by providing a larger surface area per volume of fuel to
absorb heat from the flame.

We are proposing to allow the use of virtually all atomization systems
commonly used to fire liquid fuels.  We are, however, proposing to
restrict the maximum size of solids that may be present in liquid fuels
that meet the viscosity specification of 50 cSt—the as-fired ECF must
pass through a 200 mesh screen.  This would ensure that the appropriate
droplet size is achieved (to ensure volatilization and destruction of
organic compounds) and minimize plugging of the firing nozzle.  The
acceptable atomization systems are air, steam, mechanical, or rotary cup
atomization systems.

a. Air or steam atomization.  Air or steam atomization systems use air
or steam to break up the fuel into small droplets.  Under ordinary
operations, high pressure steam or air provided at 30 to 150 psig
produces much smaller droplets than other atomization systems.  Because
of the cost of providing high pressure air and where steam is not
readily available, low pressure (1-5 psig) burners are sometimes used.  

b. Mechanical atomization.  Mechanical atomizers break up the fuel into
small droplets by forcing it through a small, fixed orifice.  A strong
cyclonic or whirling velocity is imparted to the fuel before it is
released through the orifice.  Combustion air is provided around the
periphery of the conical spray of fuel.  The combination of combustion
air introduced tangentially into the burner and the action of the
swirling fuel produces effective atomization.

The size of the droplets produced by mechanical atomization is a
function principally of the fuel viscosity and the fuel pressure at the
atomizing nozzle.  The pressure required to produce a droplet size
conducive to optimum combustion efficiency depends on the volatility of
the fuel.  Highly volatile materials can volatilize rapidly, even from
larger droplets, and, thus, can be fired at pressures of 75 to 150 psig.
 Less volatile fuels may require an atomization pressure as high as
1,000 psig to form droplets small enough to rapidly volatilize.

Given that fuel pressure is an important factor in determining droplet
size, we considered whether it would be appropriate to propose to limit
the minimum fuel pressure as a condition of the exclusion.  Optimum fuel
pressure to produce an optimum droplet size, however, is a function of
fuel volatility and fuel/air mixing.  Thus, it is not practicable to
propose specific limits on minimum fuel pressure.  Rather, we are
proposing that the boiler owner or operator be required to maintain fuel
pressure within the atomization system design range considering the
viscosity and volatility of the waste fuel, the fuel/air mixing system,
and other appropriate parameters.  This approach would allow the
atomization system manufacturer or designer (e.g., if designed and
fabricated on-site) the necessary flexibility to determine an acceptable
fuel pressure considering the specifics of the situation.  If fuel
pressure is not maintained at appropriate levels to ensure small droplet
size and optimum combustion efficiency or, if for any other reason the
boiler does not achieve maximum combustion efficiency, the boiler may
not be able to achieve CO levels below 100 ppmv.  

c. Rotary cup atomization.  The rotary cup atomizer uses centrifugal
force to break up the fuel into droplets.  It consists of an open cup
mounted on a hollow shaft.  The fuel is pumped at low pressure through
the hollow shaft to the cup which is rotating at several thousand
revolutions per minute. A thin film of the fuel is centrifugally torn
from the tip of the cup.  As centrifugal force drives the fuel off the
cup, combustion air is admitted in a rotation counter to the direction
of the cup.  This counter motion of the air breaks up the conical sheets
of fuel into droplets and provides turbulence for mixing the droplets
with air.

Rotary cup atomizers are typically used on smaller boilers (e.g., less
than 30 MM Btu/hr heat input) because the maximum capacity of the
largest unit is about 1,400 pounds of fuel per hour.  In addition,
rotary cup atomizers are not often installed on new boilers because it
is difficult to achieve optimum fuel/air mixing over a wide range of
fuel flow rates.  Rotary cup atomizers are used because they are
relatively inexpensive, they can handle fuels with relative high
viscosities ranging up to 40 to 72 cSt, and they are relatively
insensitive to solid impurities in the fuel and can handle waste fuels
with solids that can pass through a 34 to 100 mesh screen.

Droplet size is related primarily to the viscosity and flow rate of the
fuel and rotational speed of the cup.  Resulting combustion efficiency
is related to volatility of the fuel and fuel/air mixing.  Although it
is impracticable to control these variables in a regulatory context,
manufacturers and boiler owners and operators have ample experience with
rotary cup atomizers to design units that achieve efficient combustion.
Thus, we are proposing that owners and operators demonstrate that the
as-fired fuel has a volatility within the design parameters of the
firing system and limit fuel flow rates consistent with the design
parameters of the firing system.  As discussed above, relative to
mechanical atomization systems, if, in fact, the device does not produce
droplet sizes and fuel/air ratios conducive to maintaining high
combustion efficiency, the boiler may not be able to achieve CO levels
below 100 ppmv.

We specifically request comment on whether these conditions for
atomization of ECF are appropriate to help ensure that the hazardous
compounds that may be present in the ECF at high concentrations are
destroyed to levels comparable to oil-fired boiler emissions.  Any such
comments must include supporting information in order for the Agency to
be able to consider it for final action.

8.  Dioxin/Furan Controls for Boilers Equipped with an ESP or FF

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

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

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

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

We also believe that there are factors other than high gas temperature
at the inlet to an ESP or FF that may contribute to the post-combustion
formation of dioxin/furan in boilers, but these situations would not
occur for boilers burning ECF under the proposed conditions.  For
example, we have dioxin/furan emissions data for nine three-run test
conditions for eight boilers burning liquid hazardous waste fuel and
equipped with wet scrubbers, and two of the boilers have emissions
exceeding 0.40 ng TEQ/dscm.  Although the wet scrubbers on these boilers
preclude surface-catalyzed dioxin/furan formation across the emission
control device, the boilers nonetheless have high dioxin/furan
emissions—1.4 ng TEQ/dscm and 0.44 ng TEQ/dscm.  We note, however,
that both of these boilers are firetube boilers and one burns waste fuel
containing 60% by weight chlorine.  Firetube boilers would not be
allowed to burn ECF under the conditions proposed today for reasons
discussed above and, in addition, the chlorine level in the waste fuel
for one of the boilers is orders of magnitude higher than the
specification for chlorine in Table 1 to §261.38.  It is speculated
that the higher tube surface to combustion gas volume ratio for a
firetube boiler compared to a watertube boiler may increase the
possibility of combustion gas flow over particulate matter that has
adhered to the tubes within the 400-750°F temperature window, which is
conducive to surface-catalyzed formation of dioxin/furan.

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

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

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

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

We explain below the rationale for the approach we use to categorize the
37 hydrocarbons and oxygenates for which specifications are established
in Table 1 to §261.38, according to their relative hazard to human
health and the environment.

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

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

First, we We used the Waste Minimization Prioritization Tool (WMPT)to
rank the 37 hydrocarbons and oxygenates for which specifications have
been established in Table 1 to §261.38.  The WMPT is a peer-reviewed
methodology which provides a screening-level assessment of potential
chronic (i.e., long-term) risks to human health and the environment,
considering the chemicals’ toxicity, persistence and bioaccumulation
potential. 

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

We then applied the procedures the Agency used to develop the Priority
Chemicals List from the WMPT scoring.  Thus, we assigned constituents
that scored an eight or nine to the high hazard category—Category A.

Next, we considered whether any of the remaining constituents may pose a
particular hazard that may not have been evident from the WMPT scoring. 
We first identified constituents that had WMPT human toxicity scores
based on inhalation as the driving exposure pathway.  This is an
appropriate screening criterion given that the inhalation pathway is
particularly important for evaluating the hazard posed by air emissions.
 For such constituents, we then determined whether they posed a
relatively high human toxicity hazard.  If so, we assigned the
constituent to hazard Category B.

We assigned all other constituents to hazard Category C.

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

We assigned 11 constituents to Category A—the high hazard
constituents.  These are constituents that had WMPT scores of eight or
nine, consistent with the Agency’s procedures for identifying priority
chemicals.  Because the WMPT methodology assigns all PAHs the highest
score for any PAH, we assigned a score of nine to all PAHs.  Ten of the
11 Category A constituents are PAHs.  The only Category A constituent
that is not a PAH, but that scored an eight or nine, was naphthalene.

In evaluating constituents to assign to hazard Category B, we identified
three constituents that have WMPT human toxicity scores based on
inhalation as the driving exposure pathway:  benzene, acrolein, and
phenol.

Benzene is a known human carcinogen via the inhalation exposure pathway.
 There are some chemicals with sufficiently robust toxicologic databases
that the Agency not only generates a carcinogenic slope factor, but also
designates them “known human carcinogens.”  We also note that EPA
has acknowledged the health concerns associated with benzene emissions
and has proposed regulations that would reduce benzene emissions from
mobile sources by means including lowering the benzene content of
gasoline.  Consequently, we believe it is reasonable to assign benzene
to Category B to restrict the feedrate (and thus emissions) of this
compound. 

Acrolein has a WMPT human toxicity score of three because it has very
high inhalation toxicity—its RfC is 0.00002 mg/m3.  Acrolein did not
have a higher aggregate WMPT score because it had a low bioaccumulation
score.  Nonetheless, exposure via inhalation is of particular importance
in the context of assessing the hazard posed by emissions from burning
ECF.

We did not assign phenol to Category B because it has significantly
lower toxicity than benzene and acrolein.  Phenol has a WMPT human
toxicity score of two, rather than the highest score of three.  Further,
phenol is not known to be a carcinogen.  EPA has classified phenol as a
Group D carcinogen—not classifiable as to human carcinogenicity, based
on a lack of data concerning carcinogenic effects in humans and animals.
 In addition, phenol, with a RfC of 0.2 mg/m3, has a noncancer toxicity
that is orders of magnitude lower than acrolein.  Consequently, we do
not believe that phenol should be assigned to hazard Category B even
though its WMPT human toxicity score is based on the inhalation pathway.

Based on our analysis, we are proposing to retain the existing
specifications currently in Table 1 to §261.38 for polycyclic aromatic
hydrocarbons (PAHs) and naphthalene.  Based on WMPT rankings, these
compounds potentially pose substantially higher hazard than the other
hydrocarbons and oxygenates, and thus, may increase the risk to human
health and the environment when burning ECF, even under the proposed
conditions.  PAHs demonstrate high toxicity, and a tendency to both
persist in the environment and bioaccumulate.  In addition, PAHs are
common combustion byproducts, and are very difficult to thermally
destroy.  Naphthalene is likewise demonstrates high toxicity, and a
tendency to both persist in the environment and bioaccumulate. 
Naphthalene is also very difficult to destroy thermally, is even more
toxic for ecological endpoints than for humans, and is commonly found in
stack gas emissions.  (See Section VII where we address a peer review
comment regarding grouping of PAHs as high hazard compounds and
classifying naphthalene as a high hazard compound.)

In addition, we are also proposing to restrict the firing rate for ECF
that contains benzene and acrolein at concentrations exceeding 2% by
weight.  Although these compounds pose a somewhat lower hazard than the
PAHs and naphthalene, they still pose a higher hazard than the remaining
hydrocarbons and oxygenates, and thus, likewise may increase the risk to
human health and the environment when burning ECF.  Benzene is a known
human carcinogen, very persistent in the environment, a PAH precursor,
and very difficult to thermally destroy.  Acrolein has very high
inhalation toxicity and ambient levels of acrolein are already at or
above the hazard quotient in many urban areas.  For the remaining 24
hydrocarbons and oxygenates that are listed in Table 1 to §261.38, we
are proposing not to apply any specification.

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

As discussed  mentioned above, we believe that benzene and acrolein pose
a lower hazard than PAHs and naphthalene, but a greater hazard than the
other hydrocarbons and oxygenates for which the specifications would not
apply for ECF.  Accordingly, we propose to restrict the firing rate of
ECF that has benzene or acrolein concentrations exceeding 2% by weight,
as-fired, to 25% of the heat input to the boiler (on a heat input or
volume input basis, which ever results in the lower volume of ECF).  

This ECF firing rate restriction would reduce the feedrate of benzene
and acrolein and thus ensure that emissions of these compounds remain at
levels comparable to emissions from burning fuel oil in industrial
boilers and protective of human health and the environment.  Absent this
firing rate restriction, ECF with high concentrations of benzene or
acrolein could be fired at a 50% firing rate--the remaining 50% of the
fuel must be primary fossil fuel or equivalent.  Thus, the 25% firing
rate restriction would reduce the feedrate of benzene and acrolein by
half.

	We selected a 25% firing rate restriction because it is in the middle
of the range of values that could have been reasonably considered—10%
to 40%--given that the maximum firing rate for any ECF is 50%.  We
selected a 2% or greater benzene concentration as the criterion for
applying the firing rate restriction because selecting a lower
concentration cutpoint would restrict the composite benzene
concentration in total fuels to levels lower than would be allowed if
comparable fuel were burned as 100% of the boiler fuel.  Specifically,
we assumed that comparable fuel would generally have a heating value of
at least 10,000 Btu/lb if it were to comprise 100% of the boiler’s
fuel.  The comparable fuel specification would allow a benzene
concentration of 4,100 mg/kg (or 0.41%) for a 10,000 Btu/lb fuel.  We
further assumed the upper range of heating values for the comparable
fuel would be 18,000 Btu/lb.  At that heating value, the comparable fuel
could contain 7,400 mg/kg (or 0.74%) benzene.

We then determined the benzene concentration in ECF fired at a 25%
firing rate as a supplement to fuel oil that would result in a composite
fuel benzene concentration equivalent to the levels allowed if existing
comparable fuel were 100% of the boiler fuel.  Virtually all of the
benzene would be contributed by the ECF because fuel oil contains
negligible benzene.  At a 25% firing rate, the benzene concentration in
a 10,000 Btu/lb ECF would need to exceed 1.6% for the benzene
concentration in the composite fuels (i.e., ECF and fuel oil) to exceed
4,100 mg/kg, the benzene concentration in the fuel if 10,000 Btu/lb
comparable fuel were fired as the sole fuel burned.  Similarly, at a 25%
firing rate, the benzene concentration in an 18,000 Btu/lb ECF would
need to exceed 3% for the benzene concentration in the composite fuels
to exceed 7,400 mg/kg, the benzene concentration in the fuel if 18,000
Btu/lb comparable fuel were fired as the sole fuel burned.

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

	We then considered what cutpoint we should propose for acrolein.  We
are proposing a 2% concentration cutpoint for acrolein as well because: 
(1) acrolein poses hazards similar to benzene and there is no basis for
being more or less stringent on the allowable composite fuel
concentrations; and (2) a 2% cutpoint would not control acrolein in ECF
more stringently than it is controlled in comparable fuel (i.e., ECF
fired at a 25% firing rate as a supplement to fuel oil and with an
acrolein concentration of 2% would not result in a composite fuel
acrolein concentration lower than that allowed if the boiler burned 100%
existing comparable fuel at the maximum allowable acrolein
concentration).

We specifically request comment on whether ECF firing rate restrictions
are warranted for benzene and acrolein, and if so, whether the proposed
restrictions are appropriate.  Any such comment must include an
appropriate rationale and supporting information in order for the Agency
to be able to consider it for final action.

IV.  What Conditions Would Apply to Storage of ECF?

A.  What Are the Proposed Storage Conditions?

The proposed exclusion for ECF would also be conditioned on meeting the
storage controls applicable to the closest analogous raw
material/product--fuel oil--plus a few additional controls considered
appropriate to minimize the potential for releases to the environment. 
The additional controls would include “engineered” secondary
containment and fugitive air emission controls. 

 Although we are proposing generally to apply storage controls
applicable to the closest analogous raw material/product – fuel oil,
the exclusion would be conditioned on more substantial “engineered”
secondary containment than several of the permissible secondary
containment methods for oil under the Spill Prevention, Control, and
Countermeasure (SPCC) provisions.   Examples of SPCC secondary
containment provisions applicable to oil include the use of dikes,
berms, retaining walls, spill diversion ponds and sorbent materials.  
We are proposing to apply a more substantial “engineered” secondary
containment condition, such as double-walled tanks because we believe it
important that such secondary containment address potential releases to
groundwater.  Today’s proposed controls on air releases are based on
those applicable to another comparable product, organic liquids at the
chemical plants which often generate ECF. 

These controls are appropriate considering that ECF can contain higher
concentrations of certain toxic hazardous, volatile hydrocarbons and
oxygenates than fuel oil, and so though product-like, is not precisely
analogous.  Consequently, ECF has a higher potential for releases to the
environment and a higher potential for those releases to cause
environmental harm.  Therefore, we are proposing storage and
recordkeeping controls to ensure that ECF is not managed so as to become
“part of the waste disposal problem”.  American Mining Congress v.
EPA, 907 F. 2d 1179, 1186 (D.C. Cir. 1990).

We are also proposing that ECF be stored only in tanks (including USTs),
tank cars, and tank trucks.  ECF could not be stored in other containers
(e.g., portable devices, such as 55 gallon drums) because: (1) we
believe that ECF would be generated in quantities that would make
storage in portable devices other than tank cars and tank trucks
impractical; and (2) providing conditions to ensure adequate monitoring,
inspections and air emission controls for storage in other containers
would unnecessarily complicate the rule.  Nonetheless, we request
comment on whether ECF would likely be stored in vessels other than
tanks, tank cars and tank trucks (e.g., drums positioned to collect
process drippage that is eventually consolidated with ECF in acceptable
tank, tank car, or tank truck).  If so, and if a final rule were to
allow storage in containers other than tank cars and tank trucks, we
would subject those units to management conditions similar to those that
apply to hazardous waste containers under subpart I, Part 265, control
releases.

1.  Tank Systems, Tank Cars and Tank Trucks  

a.  SPCC Discharge Prevention Requirements.   For ECF tank systems, tank
cars, and tank trucks, we are proposing to condition the exclusion on
meeting certain of the discharge prevention provisions which apply to
fuel oil, or are adapted therefrom.  These are from the Spill
Prevention, Control, and Countermeasure (SPCC) provisions under 40 CFR
Part 112 that apply to petroleum oils managed at onshore facilities. 
ECF generators and burners would comply with these conditions, as
adopted under §261.38(c)(1)(iii), as though ECF met the definition of
oil under §112.2. These adopted SPCC provisions would apply to all
owners and operators of ECF tanks with a capacity greater than 55
gallons.  

The SPCC requirements under Part 112 include both discharge prevention
requirements and requirements to ensure effective responses to
discharges.  The discharge prevention requirements for onshore petroleum
oil tanks are implemented under a SPCC Plan and associated requirements
under §§112.1 through 112.8, and the discharge response requirements
are implemented under a Facility Response Plan (FRP) and associated
requirements under §§112.20 and 112.21.  We propose to adopt specific
provisions of the discharge prevention requirements—the SPCC
Plan—under §§112.3, 112.5, 112.7, and 112.8 only.  We are not
proposing to adopt the FRP and associated requirements, as discussed
below in Section IV.A.1.c.  In lieu of the FRP requirements, we are
proposing to adopt more appropriate provisions that apply to hazardous
waste tank systems and that achieve the same objective as the FRP
requirements—specifying proactive measures to respond to a release of
ECF.

We propose to adopt the following SPCC Plan requirements under
§261.38(c)(1)(iii) to prevent ECF releases from tank systems:

Section 112.2, Definitions.

Sections 112.3(d) and 112.3(e), Requirements to Prepare and Implement an
SPCC Plan.  Paragraph (d) requires that a licensed Professional Engineer
must review and certify the Plan, and paragraph (e) requires that a copy
of the Plan must be maintained at the facility and be available to the
Regional Administrator for on-site review.  We are not adopting
paragraphs (a), (b), (c), (f), or (g), which pertain to compliance dates
for plan preparation and implementation and self-certification of the
plan.  Because the ECF exclusion is optional and conditional, we are
proposing that all conditions in §261.38 must be met before ECF can be
managed under the conditional exclusion being proposed today.  Therefore
we are not adopting any of the compliance dates provided in the SPCC
regulations.  Also, we propose not to allow self-certification of Plans
in lieu of certification by a Professional Engineer, as allowed under
§112.6, for those facilities with an aggregate aboveground tank
capacity of 10,000 gallons or less, a provision the Agency recently
promulgated.  We are proposing not to adopt §112.6 because of the
greater hazard that a release of ECF may pose.  We do not view
certification of the Plan by a Professional Engineer as an unreasonable
burden, and believe that the value added to ensure that the Plan is
complete, accurate, and appropriate to prevent releases is warranted
given the hazards that ECF may pose.  A more important consideration is
that we do not believe that facilities with ECF tanks would meet the
primary eligibility criterion for self-certification:  the aggregate oil
and ECF tank capacity must be less than 10,000 gallons.  Therefore, this
provision would add complexity and burden for States and EPA in
implementation and enforcement with little or no off-setting benefits. 
Nonetheless, we specifically request comment on whether there may be
facilities that store ECF in tanks that could meet the eligibility
criterion and whether self-certification of the SPCC Plan would be
appropriate.

Sections 112.5(a) and 112.5(b), Amendment of SPCC Plan by Owners or
Operators.  This section requires that the Plan be amended by the owner
or operator in accordance with the general requirements in §112.7 when
there is a change in the facility design, construction, operation, or
maintenance that materially affects its potential for a discharge.  This
section also states that owners or operators must complete a review and
evaluation of the SPCC Plan at least once every five years from the date
the facility becomes subject to this part, and that any technical
amendments to the Plan must be certified by a Professional Engineer.  We
propose to adopt paragraphs (a) and (b), but not paragraph (c). 
Paragraph (c) requires certification of technical amendments to the Plan
and references §112.6 which allows self-certification in lieu of
certification by a Professional Engineer.  Given that we propose not to
adopt §112.6 as discussed above, we propose a condition that would
require technical amendments to be certified by a Professional Engineer.

Section 112.7, General Requirements for Spill Prevention, Control, and
Countermeasure Plans.  We propose to adopt §112.7, except for paragraph
(c) secondary containment, paragraph (d) alternative requirements in
lieu of secondary containment, and paragraph (k) alternative
requirements in lieu of secondary containment for qualified oil-filled
operational equipment.  These paragraphs would not be applicable because
they pertain to secondary containment which we propose to require under
separate conditions.  See discussion below.  The §112.7 conditions we
are proposing to adopt are paragraph (a) which requires a discussion of
the facility’s conformance with the requirements included in §112.7,
and development of the Plan; paragraph (b) which requires a prediction
of the direction, rate of flow and total quantity of material which
could be discharged when experience indicates a potential for equipment
failure, overflow, rupture or leakage; paragraph (e) which addresses
conducting inspections and tests and keeping records; paragraph (f)
which addresses personnel, training, and discharge prevention
procedures; paragraph (g) which addresses security requirements;
paragraph (h) which addresses facility tank car and tank truck
loading/unloading rack requirements; paragraph (i) which requires a
brittle fracture evaluation if a tank undergoes a change in service that
might affect the risk of a discharge; and paragraph (j) which states
that the Plan must include a complete discussion of conformance with the
requirements in this part, as well as applicable more stringent State
rules, regulations and guidelines.  

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

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

b. Containment and detection of releases.  Preventing the release of
hazardous secondary materials, such as ECF, to groundwater is one of the
primary exposure routes to be addressed under RCRA; the SPCC secondary
containment requirements primarily address the release of oil to surface
waters.  In addition, because ECF can have higher concentrations of
certain toxic hazardous hydrocarbons and oxygenates, it can pose a
greater hazard to human health and the environment than fossil fuel if
released to the environment.  Therefore, we believe that the secondary
containment requirements in the SPCC rule are not adequate for ECF. 
Thus, we are proposing engineered secondary containment for the storage
of ECF in tank systems.  

Engineered secondary containment means the use of an external liner,
vault, or double walled-tank.  We note that two states—Florida and
Minnesota—require some form of engineered secondary containment for
fuel oil and do not allow the “non-engineered” options allowed by
SPCC (e.g., ponds, weirs, and absorbent materials).  However, we have
decided to propose the substantive engineered secondary containment
provisions provided by the hazardous waste rules for tank systems under
§264.193(b-f).  Although we recognize they are somewhat more
prescriptive than those required by Florida and Minnesota, we believe
that persons likely to use this exclusion are likely to use the same
tanks in which the hazardous secondary material is currently stored and
thus, the facility would not need to retrofit the design of these tanks.
 However, the Agency does solicit comments on whether an alternative
“engineered” secondary containment system that may not provide
containment equivalent to an external liner, vault, or double-walled
tank would also be appropriate.  

We propose to adopt the following requirements:

Section 264.193(b), which prescribes general performance standards for
secondary containment systems;

Section 264.193(c), which prescribes minimum requirements for secondary
containment systems;

Sections 264.193(d)(1-3), which prescribe permissible secondary
containment devices—external liner, vault, or double-walled tank.  We
are not proposing to adopt §264.193(d)(4), which allows approval by the
Regional Administrator of an equivalent device, because the exclusion is
designed to be self-implementing.  Nevertheless, we request comment on
whether the final rule should allow approval of equivalent means of
secondary containment to avoid stifling innovation (and potentially
having to revise the rule to allow alternative means we believe are
appropriate).  In providing comments on this issue, we would ask that
commenters specifically describe how this provision could work,
considering that the rule is designed to be a self-implementing
regulation; 

Section 264.193(e), which prescribes design and operating requirements
for the permissible secondary containment devices; and 

Section 264.193(f), which prescribes secondary containment requirements
for ancillary equipment.

To comply with the adopted hazardous waste tank secondary containment
provisions, we propose that the term “emission-comparable fuel” be
substituted for the term “waste,” and that the term “document in
the record” be substituted for the term “demonstrate to the Regional
Administrator.”  Demonstrations to the Regional Administrator to
obtain a waiver are allowed for hazardous waste tank systems in the
following situations:

Section 264.193(c)(3), where the owner or operator can demonstrate to
the Regional Administrator that the leak detection system or site
conditions will not allow detection of a release within 24 hours;

Section 264.193(c)(4), where the owner or operator can demonstrate to
the Regional Administrator that removal of released materials or
accumulated precipitation cannot be accomplished within 24 hours; and

Section 264.193(e)(3)(iii), where the owner or operator can demonstrate
to the Regional Administrator that the leak detection technology for a
doubled-walled tank or site conditions would not allow detection of a
release within 24 hours.

As mentioned above, site-specific approval of an alternative provision
is inconsistent with the self-implementing provisions of a regulatory
exclusion.  Consequently, we propose to require the owner or operator to
document in the record the basis for not being able to comply with those
provisions within 24 hours, as nominally required.  This information
will be available for review by the Regional Administrator.

We are not proposing to adopt §§264.193(g) and 264.193(h) because
those provisions provide procedures to support and request a variance
from secondary containment.  Again, substantive variance provisions
cannot be implemented under a self-implementing regulatory exclusion.

Finally, we are not proposing to adopt §264.193(i) which allows for
alternative secondary containment until a facility can comply with the
requirements of §§264.193(b-f).  We do not believe that §264.193(i)
is appropriate because the proposed ECF exclusion is not a mandated
provision; owners and operators that elect to take advantage of the
exclusion should be in compliance with all of the requirements necessary
to protect human health and the environment before managing excluded
ECF.  

c.  Preparedness and Prevention, Emergency Procedures, and Response to
Leaks or Spills.  We considered whether to adopt the Facility Response
Plan (FRP) provisions applicable to fuel oil tanks under §§112.20 and
112.21 that require proactive responses to oil discharges, but believe
that they are not appropriate for tanks that handle ECF.  The FRP
requirements are tailored to oil discharges and may not be appropriate
for ECF, given that, for example, ECF may contain high concentrations of
toxic hazardous compounds that behave in the environment as a dense
nonaqueous phase liquid and therefore do not float on the water surface.
 In addition, the FRP requirements are designed to respond to discharges
of oil to navigable waters and adjoining shorelines (i.e., through the
use of sorbents, booms, and skimmers).  In contrast, today's proposed
rule is designed to equip ECF tanks with engineered secondary
containment (i.e., external liner, vault, or double-walled tank), as
discussed above in order to control and prevent releases to the
environment.  Consequently, we believe it is appropriate to adopt
certain hazardous waste tank provisions that provide proactive measures
to respond to a release of ECF.  We specifically request comment on our
view that the Part 112 FRP requirements would not provide effective
measures to respond to releases of ECF, and whether there may be release
response provisions applicable to other products that may be more
appropriate to adopt for ECF than the hazardous waste tank provisions
that we discuss below.

We propose to adopt certain provisions of Subparts C and D of Part 264
and §264.196 to provide proactive measures to respond to a release of
ECF:  preparedness and prevention; emergency procedures; and response to
leaks or spills.  See proposed §261.38(c)(1)(v).

The Part 64, Subpart C and D provisions are similar to some of the
proactive requirements under the Part 112 FRP and in some cases are
virtually identical to the FRP provisions.  The specific Subpart C
(Preparedness and Prevention) provisions we propose to adopt are
discussed below.  These are commonsense provisions that should represent
standard operating practice for facilities that store liquid fuels:

Section 264.32, Required Equipment.  All provisions of this section are
appropriate for ECF tank systems:  requirements for an internal
communications or alarm system capable of providing immediate emergency
instruction to facility personnel; a device such as a telephone or
two-way radio capable of summoning emergency assistance; portable fire
extinguishers, fire control equipment, spill control equipment and
decontamination equipment; and water at adequate volume and pressure, or
foam producing equipment, or automatic sprinklers, or water spray
systems. 

Section 264.33, Testing and Maintenance of Equipment.  This section
requires that all communications or alarm systems, fire protection
equipment, spill control equipment, and decontamination equipment must
be tested and maintained as necessary to assure its proper operation in
case of emergency.  

Section 264.34, Access to Communications or Alarm System.  We propose to
adopt this section to specify that, whenever ECF is distributed into or
out of a tank system, all personnel involved in the operation must have
access to an internal alarm or emergency communication device, either
directly or through visual or voice contact with another employee.

Section 264.37, Arrangements with Local Authorities.  We propose to
adopt this section to specify that the owner or operator must attempt to
make arrangements with the appropriate local authorities (fire
departments, emergency response teams, police departments, hospitals,
etc.) to familiarize the authorities with the layout of the facility,
properties of the ECF being managed at the facility, possible evaluation
routes, and types of injuries which could result from fires, explosions,
or releases at the facility.  If State or local authorities decline to
enter into such arrangements, the owner or operator must document this
refusal in the facility’s record.

The specific Part 264, Subpart D (Contingency Plan and Emergency
Procedures) provisions we propose to adopt are:

Section 264.55, Emergency Coordinator.  We propose to adopt this
provision to specify that, at all times, there must be at least one
employee either on the facility premises or on call (i.e., available to
respond to an emergency by reaching the facility within a short period
of time) with the responsibility for coordinating all emergency response
measures.  This emergency coordinator must be thoroughly familiar with
all aspects of the facility's Spill Prevention, Control, and
Countermeasures (SPCC) Plan, all ECF operations and activities at the
facility, the location and characteristics of ECF handled, the location
of all records within the facility pertaining to ECF, and the facility
layout.  In addition, this person must have the authority to commit the
resources needed to carry out the SPCC Plan.

Section 264.56, Emergency Procedures.  We propose to adopt this
provision to specify that:  (1) whenever there is an imminent or actual
emergency situation relating to the ECF tank system, the emergency
coordinator must immediately activate internal facility alarms or
communication systems, where applicable, to notify all facility
personnel and notify appropriate State or local agencies with designated
response roles if their help is needed; (2) whenever there is a release,
fire, or explosion relating to the ECF tank system, the emergency
coordinator must immediately identify the character, exact source,
amount, and aerial extent of any released materials; (3) the emergency
coordinator must assess possible hazards to human health or the
environment that may result from the release, fire, or explosion; (4) if
the emergency coordinator determines that the facility has had a
release, fire, or explosion associated with the ECF tank system which
could threaten human health, or the environment outside the facility, he
must report his findings to the government official designated as the
on-scene coordinator for that geographical area or the National Response
Center; (5) if the emergency coordinator’s assessment indicates that
evacuation of local areas may be advisable, he must immediately notify
appropriate local authorities; (6) during an emergency, the emergency
coordinator must take all reasonable measures necessary to ensure that
fires, explosions, and releases do not occur, recur, or spread to other
materials at the facility; (7) if the ECF tank system stops operations
in response to a fire, explosion, or release, the emergency coordinator
must monitor for leaks, pressure buildup, gas generation, or ruptures in
valves, pipes, or other equipment, wherever this is appropriate; (8)
immediately after an emergency, the emergency coordinator must provide
for treating, storing, or disposing of recovered ECF, contaminated soil
or surface water, or any other material that results from a release,
fire, or explosion at the facility; (9) the emergency coordinator must
ensure that, in the affected area(s) of the facility:  materials that
may be incompatible with the released ECF is treated, stored, or
disposed of until cleanup procedures are completed and all emergency
equipment listed in the SPCC Plan is cleaned and fit for its intended
use before operations are resumed; and (10) the owner or operator must
note in the record the time, date, and details of any incident that
requires implementing the SPCC Plan for the ECF tank system and within
15 days after the incident, the owner or operator must submit a written
report on the incident to the Regional Administrator.

We propose to adopt the provisions under §264.196 (Response to Leaks or
Spills and Disposition of Leaking or Unfit-for-Use Tank Systems), except
for §§264.196(e)(1) and (e)(4), for all ECF tank systems not subject
to the hazardous substance underground storage tank requirements of
§280.42(b).  To comply with the adopted provisions of §264.196, you
would substitute the term “emission-comparable fuel” for the terms
“hazardous waste” and “waste,” and the term “record” for the
term “operating record.”  The adopted provisions would specify that
an ECF tank system or secondary containment system from which there has
been a leak or spill, or which is unfit for use, must be removed from
service immediately, and the owner or operator must satisfy the
following conditions:  (1) the owner or operator must immediately stop
the flow of ECF into the tank system or secondary containment system and
inspect the system to determine the cause of the release; (2) if the
release was from the tank system, the owner/operator must, within 24
hours after detection of the leak or, if the owner/operator demonstrates
that it is not possible, at the earliest practicable time, remove as
much of the ECF as is necessary to prevent further release of ECF to the
environment and to allow inspection and repair of the tank system to be
performed; (3) if the ECF released was to a secondary containment
system, all released ECF must be removed within 24 hours or in as timely
a manner as is possible to prevent harm to human health and the
environment; (4) the owner/operator must immediately conduct a visual
inspection of the release and, based upon that inspection prevent
further migration of the leak or spill to soils or surface water and
remove, and properly dispose of, any visible contamination of the soil
or surface water; (5) any release to the environment, except de minimis
leaks (i.e., less than or equal to one pound) that are immediately
contained and cleaned-up must be reported to the Regional Administrator
within 24 hours of its detection; (6) within 30 days of detection of a
release to the environment, a report containing the following
information must be submitted to the Regional Administrator—likely
route of migration of the release, characteristics of the surrounding
soil (soil composition, geology, hydrogeology, climate), results of any
monitoring or sampling conducted in connection with the release (if
available), proximity to downgradient drinking water, surface water, and
populated areas, and description of response actions taken or planned;
(7) the tank system must be closed unless the cause of the release was a
spill that has not damaged the integrity of the system and the released
waste is removed and repairs, if necessary, are made, or unless the
cause of the release was a leak from the primary tank system into the
secondary containment system and the system is repaired; and (8) if the
owner/operator has repaired a tank system and the repair has been
extensive (e.g., installation of an internal liner; repair of a ruptured
primary containment or secondary containment vessel), the tank system
must not be returned to service unless the owner/operator has obtained a
certification by a qualified Professional Engineer that the repaired
system is capable of handling ECF without release for the intended life
of the system. 

We are not proposing to adopt §264.196(e)(1) because that paragraph
would require the tank to be closed under the §264.197 provisions for
closure of a hazardous waste tank.  Those provisions are inappropriate
for closure of a tank that stored a product—ECF.  As provided under
proposed §261.38(b)(13), when ECF operations cease, liquid and
accumulated solid residues that remain in a tank system for more than 90
days after the tank system ceases to be operated for storage of ECF are
subject to regulation under Parts 262 through 265, 268, 270, 271, and
124.  In addition, liquid and accumulated solid residues that are
removed from an ECF tank system after the tank system ceases to be
operated for storage of ECF are solid wastes subject to regulation as
hazardous waste if the waste exhibits a characteristic of hazardous
waste under §§261.21-261.24 or if the ECF was derived from a hazardous
waste listed under §§261.31-261.33 when the exclusion was claimed.

Finally, we are not proposing to adopt §264.196(e)(4) because that
paragraph addresses tanks that are not equipped with secondary
containment.  We are proposing that all ECF tanks must be equipped with
secondary containment prior to managing ECF.

d.  Air Emissions.  As mentioned above, ECF can contain higher levels of
certain toxic, volatile hydrocarbons and oxygenates than found in fuel
oil.  In this regard, ECF is more analogous to organic liquids typically
present in organic chemical production operations than they are to fuel
oil.  Therefore, we believe it appropriate to condition the exclusion on
meeting air emission controls which apply to those organic liquids to
prevent the release of one or more of these chemicals to the
environment.  To this end, we are proposing to adopt virtually all of
the provisions of the National Emission Standards for Hazardous Air
Pollutants (NESHAP) for Organic Liquids Distribution (OLD) under Subpart
EEEE, Part 63 as RCRA §261.38 conditions to control the fugitive air
emissions from ECF tank systems.  

ECF would already be subject to the OLD NESHAP if certain applicability
requirements are met, including:  (1) the facility must be a major
source; (2) the ECF must contain greater than 5% of the organic HAP
listed in Table 1 to Subpart EEEE; (3) the facility is not subject to
another NESHAP; and (4) certain tank size and HAP vapor pressure
criteria are met.  Thus, we are proposing not to apply the OLD
controls—that we are proposing to adopt under §261.38--to ECF tanks
that are subject to the OLD controls under §63.2346, with one
exception.  We are proposing to apply adopted conditions for any ECF
tanks that would not be subject to the controls provided by item 6 in
Table 2 to Subpart EEEE because the vapor pressure of the regulated
organic HAP does not exceed 76.6 kPa.  Specifically, item 6 in Table 2
provides controls for existing and new tanks with a capacity greater
than 5,000 gallons if the organic liquid has a annual average true vapor
pressure of the organic HAP listed in Table 1 to Subpart EEEE equal to
or greater than 76.6 kilopascals (kPa).  However, 16 RCRA oxygenates for
which comparable fuel specifications have been established in Table 1 to
§261.38 are not listed as CAA hazardous air pollutants in Table 1 to
Subpart EEEE (reflection CAA §112(b)(1)).  Further, 11 of these
oxygenates have vapor pressures that could contribute significantly to
the total vapor pressure of toxic hazardous organics in ECF.  Thus,
these RCRA oxygenates could potentially increase the vapor pressure of
the ECF so that it exceeds 76.6 kPa, the criterion for requiring more
stringent controls under item 6 in Table 2 to Subpart EEEE.  For this
reason, we propose to specify that tanks which are subject to OLD but
that are not subject to the requirements under item 6 in Table 2 to
Subpart EEEE must consider the vapor pressure of the 11 RCRA oxygenates
that have vapor pressures that could significantly contribute to the
total vapor pressure, as well as the organic HAP listed in Table 1 to
Subpart EEEE in determining whether the vapor pressure would be equal to
or exceed 76.6 kPa.  See proposed §261.38(c)(1)(ii)(C)(1)(ii).  If so,
we are proposing that the tank must comply with the §261.38 adopted OLD
requirements for tanks storing organic liquids with a vapor pressure
equal to, or exceeding, 76.6 kPa.  We specifically request comment on
this proposed condition.  In addition, although we believe that there
would be very few ECF tanks that would be placed in the circumstance, we
specifically request comment on how to avoid dual CAA and RCRA
regulation of any such tanks—tanks that are already subject to OLD as
promulgated at Subpart EEEE, Part 63, but which would also need to
comply with (more stringent) OLD requirements adopted under RCRA
§261.38 as a condition for the ECF exclusion.

For tanks that are not already subject to the OLD controls under
§63.2346, we are proposing to adopt appropriate Subpart EEEE provisions
under §261.38 as conditions of the ECF exclusion.  See discussion below
where we propose to adopt virtually all of the Subpart EEEE provisions. 
These adopted provisions would in no way affect Subpart EEEE and would
be implemented and enforced under RCRA authority (e.g., controls under
the adopted provisions would not be included in a facility’s title V
permit, and a facility would not be required to obtain a title V permit
to comply with these provisions).  Our principles for proposing to adopt
the OLD provisions under §261.38 include:  (1) air emissions from ECF
tanks should be controlled to a level comparable to levels currently
required given that air emissions from storage and handling of ECF can
pose the same hazards as storage and handling of the hazardous waste;
and (2) the 11 toxic hazardous RCRA oxygenates that have significant
vapor pressure, as discussed above, should be considered as well as the
organic HAP in Table 1 to Subpart EEEE in determining whether ECF meets
the OLD definition of organic liquid and in determining the level of
control specified by Table 2 to Subpart EEEE

We discussed above that 11 of the toxic hazardous RCRA oxygenates for
which the comparable fuel specifications would no longer apply and that
are not classified as CAA HAP can potentially contribute significantly
to the vapor pressure of ECF.  Given that vapor pressure of the toxic
hazardous organic constituents is a criterion for determining whether
the ECF meets the OLD definition of organic liquid (which we propose to
adopt in revised form under §261.38(c)(1)(ii)(C) as discussed below)
and the level of emission control required under §63.2346 (which we
also propose to adopt), it is appropriate to require owners and
operators to consider these 11 RCRA oxygenates when complying with the
adopted OLD provisions.

We also reviewed the OLD provisions to determine whether the controls
would be comparable to those currently required for the hazardous waste
from which the ECF will be derived.  Assurance of comparable controls is
warranted given that air emissions from storage and handling of ECF can
pose the same hazards as storage and handling of the parent hazardous
waste.  We determined that adopting the OLD provisions would result in
air emission controls comparable to current controls in most situations,
with four exceptions:  (1) ECF tanks at facilities that are area
sources; (2) existing, reconstructed, or new ECF tanks with a capacity
less than 5,000 gallons handling ECF with a RCRA oxygenate and organic
HAP vapor pressure equal to or greater than 76.6 kPa; (3) existing ECF
tanks with a capacity in the range of 5,000 gallons to 50,000 gallons
handling ECF with a RCRA oxygenate and organic HAP vapor pressure in the
range of 5.2 kPa to 76.6 kPa; and (4) ECF tanks at facilities that are
subject to a NESHAP other than Subpart EEEE, unless the tanks at these
facilities have comparable aim emission controls.  We are proposing to
adopt the OLD provisions under §261.38 in a manner that addresses these
situations and thus ensures adequate control of air emissions from ECF
tanks.  We specifically request comment on these proposed conditions:

The OLD provisions apply only to major sources.  Although we do not
believe that many ECF tanks will be located at area sources given that
we expect the manufacturing sector to generate and burn the majority of
the ECF, controls should be maintained at facilities that may be area
sources.  Consequently, we propose to apply the adopted OLD controls to
both area and major sources.  See proposed §261.38(c)(1)(ii)(C)(2)(i);

OLD does not require controls for the two tank size/vapor pressure
scenarios listed above, while substantive tank air emission controls
(under §264.1084) are required for the hazardous waste from which the
ECF is derived.  Consequently, we propose to apply the adopted OLD
controls as conditions for ECF tanks with those two tank size/vapor
pressure scenarios so that they comply with the same OLD controls
applicable to tanks with a capacity greater than 5,000 gallons and a
vapor pressure below 76.6 kPa.  See proposed
§261.38(c)(1)(ii)(C)(2)(vii); and

As mentioned above, the OLD provisions do not apply to storage and
handling of organic liquids at facilities that are subject to another
NESHAP.  This is the case irrespective of whether the other NESHAP
establishes controls for air emissions from organic liquid distribution.
 Consequently, we propose to apply the adopted OLD controls to tanks
(and associated equipment) at ECF tanks at a facility subject to another
NESHAP, unless the owner/operator documents that the controls (on tanks
that store or handle ECF) provided by the other NESHAP are at least
equivalent to the controls adopted from OLD for ECF.  See proposed
§261.38(c)(1)(ii)(C).

In addition, we are proposing conforming changes to implement the
provisions discussed above, and specifically request comment on these
proposed provisions.  Specifically:

To implement consideration of the RCRA oxygenates, substitute the term
“RCRA oxygenates as well as organic HAP” for each occurrence of the
term “organic HAP”; the term “RCRA oxygenates as well as organic
HAP listed in Table 1” for each occurrence of the term “organic HAP
listed in Table 1”; and the term “RCRA oxygenates as well as Table 1
organic HAP” for each occurrence of the term “Table 1 organic
HAP.”  See proposed §261.38(c)(1)(ii)(C)(2)(ii).  

To implement consideration of RCRA oxygenates, we are proposing to adopt
the following definition of organic liquid—Organic liquid means
emission-comparable fuel that:  (1) contains 5 percent by weight or
greater of the RCRA oxygenates as well as organic HAP listed in Table 1
to this subpart, as determined using the procedures specified in
§63.2354(c); and (2) has an annual average true vapor pressure of 0.7
kilopascals (0.1 psia) or greater.  See proposed
§261.38(c)(1)(ii)(C)(2)(iv).

Defining an affected source as the collection of activities and
equipment used to distribute emission-comparable fuel into, out of, or
within a facility.  This would simplify the Part 63 definition of
affected source for purposes of the OLD provisions we propose to adopt
under §261.38.  See proposed §261.38(c)(1)(ii)(C)(2)(v); and

Substituting the term “subject to §261.38(c)(1)(ii)(C)(3) of this
chapter” for the term “subject to this subpart” to facilitate
implementation of the adopted OLD provisions.  See proposed
§261.38(c)(1)(ii)(C)(2)(vi).

Finally, we are proposing that all notifications, reports, and
communications required to implement the OLD provisions that we adopt
under §261.38 be submitted to the RCRA regulatory authority rather than
the CAA regulatory authority.  This is because the conditions for air
emission controls are RCRA provisions adopted from the CAA OLD NESHAP. 
As such, they should be implemented (and enforced) under RCRA authority.
 We specifically request comment on this proposed provision.

As mentioned above, we propose to adopt virtually all of the provisions
of the OLD NESHAP as RCRA conditions to control air emissions from
storage and handling of ECF.  See proposed §261.38(c)(1)(ii)(C)(3).  We
believe the implementation requirements (e.g., notifications, reports,
testing) are integral to the substantive emission controls and are
necessary for compliance assurance.  

We acknowledge that this attempt to adopt the provisions of the OLD
NESHAP to cover ECF tanks substantially complicates the conditions of
the ECF exclusion.  This is primarily because the OLD NESHAP does not
address toxic hazardous RCRA oxygenates that have significant vapor
pressure, and the OLD NESHAP does not address ECF tanks that are
currently subject to hazardous waste tank air emission controls that
address hazards that remain after the ECF exclusion is claimed.  In
retrospect, stakeholders may conclude it is less problematic to simply
comply with the controls provided for hazardous waste tanks under
Subparts AA, BB, and CC of Part 264 or 265.  We specifically request
comment on:  (1) whether adopting provisions of the OLD NESHAP as
conditions of the ECF exclusion is appropriate to address the hazards
posed by fugitive air emissions from storage and handling of ECF; (2)
whether adopting the OLD NESHAP provisions in the manner proposed is
appropriate; and (3) whether it would be equally protective, but less
problematic, to simply comply with the air emission controls for
hazardous waste tanks in lieu of the adopted OLD NESHAP provisions.  Any
such comments must include an appropriate rationale and supporting
information in order for the Agency to be able to consider it for final
action.

2.  Underground Storage Tank Systems  

ECF storage tank systems that are subject to the requirements under 40
CFR Part 280, Technical Standards and Corrective Action Requirements for
Owners and Operators of Underground Storage Tanks would not be subject
to the proposed ECF storage tank conditions.  The Part 280 requirements
are self-implementing and apply to hazardous substances listed in 40 CFR
Part 302.4 which are not hazardous wastes.  All of the hydrocarbons and
oxygenates for which the comparable fuel specifications would be waived
for ECF are included on this list of hazardous substances.  Thus, the
Part 280 requirements would apply to all ECF storage tank systems that
meet the §280.12 definition of underground storage tank.  However, the
Agency does request information on whether ECF is or would be stored in
underground storage tanks or whether, because of the size of these tanks
or other factors, ECF would only be stored in above ground storage
tanks, tank cars and tank trucks.  If so, the Agency solicits comment on
a condition that would prohibit the storage of ECF in underground
storage tanks.

3.  Closure of Tank Systems 

If an ECF tank system, tank car, or tank truck ceases to be operated to
store ECF product, but has not been cleaned by removing all liquids and
accumulated solids within 90 days of cessation of ECF storage
operations, the tank system, tank car, and tank truck would become
subject to the RCRA Subtitle C regulation.,  See proposed
§261.38(b)(13).  This provision is modeled on §261.4(c) which states:

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

Thus, like any other product storage unit which goes out of service,
tank systems, tank cars or tank trucks that store or transport ECF would
not be required to undergo closure according to the RCRA hazardous waste
regulations (unless liquids or accumulated solids were not cleaned from
the tank system within 90 days of cessation of operation as an ECF
storage/transportation unit), when the unit ceases operation as a
product storage/transportation unit.  However, the Agency expects that
owner/operators will take common-sense steps to decontaminate and
decommission the ECF storage unit if and when it goes out of service. 
We encourage owner/operators in these situations to consult with the
regulatory authority as to the best way to ensure that the unit is
cleaned properly.

Liquids and accumulated solids removed from a tank system, tank car, or
tank truck that ceases to be operated for storage/transport of ECF
product are solid wastes.  They are hazardous waste if they exhibit a
characteristic of hazardous waste or if the ECF were derived from a
listed hazardous waste because the ECF is no longer meeting the
conditions of the exclusion.

4.  Waiver of RCRA Closure for RCRA Tanks That Become ECF Tanks  

Interim status and permitted storage units, and generator accumulation
units exempt from permit requirements under §262.34 of this chapter,
are currently subject to the closure requirements in 40 CFR Parts 264
and 265, including the requirement to close the unit within 90 days of
receiving the final volume of hazardous waste (see  264.113(a) and 
265.113(a)).  However, we are proposing in this rulemaking not to
subject these units to these closure requirements provided that the
storage units have been used to store only hazardous waste that is
subsequently excluded under the conditions of §261.38, and that
afterward will be used only to store fuel excluded under §261.38.  See
proposed §261.38(b)(14).

This provision is intended to address situations where units such as
tanks that have been used to store hazardous wastes, would be required
under the existing regulations to go through RCRA closure before storage
of the excluded material could commence.  In the case of facilities that
would be affected by today’s proposed rule, this would mean that, for
tanks that have been storing hazardous waste for which the generator
claims an ECF exclusion, the owner/operator would need to remove all
waste residues and other contamination from the tank system in order for
the unit to then commence storing the identical material under the terms
of the conditional exclusion for ECF. We believe that requiring closure
under these circumstances would serve little, if any, environmental
purpose, and so propose to explicitly provide in these situations that
the storage tank system would not be subject to RCRA closure
requirements.  As discussed above, however, although an ECF tank system
would not be required to undergo closure according to the RCRA hazardous
waste regulations, the Agency expects that owner/operators will take
common-sense steps to decontaminate and decommission the tank system if
and when it ultimately ceases to operate as an ECF storage tank system. 
We also note that tank cars/trucks need not meet the definition of an
empty HW container before managing the same material as ECF (if that is
the only material the container has managed).

5.  Management of Incompatible Waste Fuels and Other Materials

	In today’s proposal, ECF generators would need to take precautions to
prevent the mixing of ECF and other materials which could result in
reactions which could:  (1) generate extreme heat or pressure, fire or
explosions, or violent reactions; (2) produce uncontrolled toxic
hazardous mists, fumes, dusts, or gases; (3) produce uncontrolled
flammable fumes or gases; or (4) damage the structural integrity of the
storage unit or facility.  See proposed §261.38(c)(1)(iv).  Appropriate
documentation is also proposed to be kept by ECF generators to document
how they will take precautions to avoid these situations. This
documentation must be kept on-site for three years. Tanks, tank cars and
tank trucks holding incompatible materials should be separated by means
of a dike, berm, wall or other device.  

B.  What Other Options Did We Consider?	

1.  Other Options We Considered to Establish Storage Conditions for ECF

In evaluating possible storage controls for ECF, we considered two other
options.  One option would impose no specific new controls, but rather
would rely on currently applicable controls for commercial products. 
The other option would apply full RCRA Subtitle C provisions until the
ECF leaves the burner storage system—that is, the waste would remain
hazardous until it was fed into the boiler. 

 	In considering the first option, we determined that it would be
difficult to assure the safe management of ECF because it is not clear
what, if any, existing controls would apply to a hazardous waste that
becomes an excluded product/fuel.  There is a patchwork of Federal and
State controls that apply to various products and fuels, but no one set
of controls that we would be confident would apply across the board and
ensure that ECF would be properly managed, particularly given that ECF
can contain higher concentrations of particular toxic hazardous,
volatile hydrocarbons and oxygenates.  We also believe it would
complicate the implementation of this rule, and persons who handled ECF
would not necessarily know what conditions must be followed to assure
exclusion of the ECF.  Consequently, we did not consider this option
further.

The other option we considered, applying RCRA Subtitle C provisions
until the ECF leaves the burner storage system, would in effect, move
the point of exclusion to the ECF boiler.  Storage and transportation of
ECF would be subject to Subtitle C standards (which could include
permits for burner storage units and for those generators that
accumulate ECF for more than 90 days).  We believe this option would be
inappropriate because it would over regulate a material that has
substantial fuel value and is inconsistent with the idea that ECF is an
excluded product, rather than a waste material. See Safe Food and
Fertilizer, 350 F. 3d at 1269 (exclusion based on comparability can
extend back to encompass exclusion of the material when stored).  We
believe that our tailored management conditions adopted from SPCC
requirements, and engineered secondary containment, along with the
conditions related to control of fugitive air emissions, are more
appropriate for ECF because they reflect requirements to which analogous
commercial products are subject.  

2. Consideration of Storage Controls for Currently Excluded Comparable
Fuels

As a separate issue, we considered whether to propose storage conditions
for the currently excluded comparable fuel.  The existing comparable
fuel exclusion was promulgated in June 1998 and was not conditioned on
meeting any particular storage controls.  The comparable fuel exclusion
was based on the principle that the excluded fuel would be comparable to
fuel oil in concentration of toxic hazardous constituents and physical
properties that affect combustion, and thus can pose the same hazards as
fuel oil during storage.

Comparable fuel does not meet the definition of oil, however, and so is
not subject to the SPCC requirements applicable to fuel oil.  See 40 CFR
Part 112.  Consequently, we considered whether to propose to apply the
SPCC requirements to comparable fuel. We do not believe that applying
SPCC controls is warranted at this time because we are not aware of
evidence of improper storage of these comparable fuels.  Nonetheless, we
request comment on whether there is evidence of improper storage of
comparable fuel and whether SPCC controls (or other storage controls)
should be included as a condition for the existing comparable fuel
exclusion.

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

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

	We believe it is appropriate to propose that ECF generators and burners
satisfy the same recordkeeping, notification and certification
conditions that apply to existing comparable fuel generators and
burners, as well as additional conditions that reflect that ECF is not
physically identical to comparable fuels.  In today’s preamble, we
provide a brief description of our rationale for proposing these
provisions as part of the exclusion.  However, persons should also refer
to the proposed rule for comparable fuels (see 61 FR 17358) and the
final rule (see 63 FR 33782) for further discussion.  

1. Waste Analysis Plans

	We are proposing the same waste analysis plan conditions for ECF as
existing comparable fuel because ECF must also meet all of the
specifications for comparable fuel, except the specifications for
particular hydrocarbons and oxygenates.  See existing §261.38(c)(7)
renumbered as proposed §261.38(b)(4).  These conditions require that
generators develop a waste analysis plan prior to sampling and analysis
of their ECF to determine if the waste fuel meets the exclusion
specifications. 

In addition, burners of ECF would need to address a number of the other
conditions to ensure that the ECF is in compliance with the exclusion.  
Specifically, burners would need to ensure that the heating value of the
fuel, as-fired, is 8,000 Btu/lb, as well as whether the concentration of
benzene or acrolein exceeds two percent, the cutpoint for firing rate
restrictions on the ECF.  If the generator does not provide this
information to the burner for each shipment of ECF, today’s proposal
would require the burner to develop and implement an ECF waste analysis
plan to obtain the information.  In addition, if a burner blends or
treats ECF to achieve an as-fired heating value of 8,000 Btu/lb or
greater or an as-fired concentration of benzene or acrolein of two
percent or lower, we are proposing that the burner must analyze the fuel
as received from the generator and again after blending or treatment to
determine the heating value, benzene concentration, or acrolein
concentration, as relevant.  See proposed §261.38(b)(5).

	The generator (and burners required to develop a sampling and analysis
plan) also must have documentation of the:  (1) sampling, analysis, and
statistical analysis protocols that were employed; (2) sensitivity and
bias of the measurement process; (3) precision of the analytical results
for each batch of waste/fuel tested; and (4) results of the statistical
analysis.  More information on developing these elements of a waste/fuel
analysis plan is found in the SW-846 guidance document.  These are the
same requirements that exist in the existing comparable fuels exclusion
waste analysis plans.

2. Sampling and Analysis  

As discussed above, we are proposing that ECF must meet all of the
specifications for comparable fuel, except the specifications for
particular hydrocarbons and oxygenates.  Therefore, we are proposing the
same conditions regarding sampling and analysis for ECF that are part of
the existing comparable fuel exclusion, except the condition to
determine the concentrations of particular hydrocarbons and oxygenates.

The sampling and analysis provisions allow process knowledge to be used
under certain circumstances to determine which constituents to test for
in the initial scan and any follow up testing.  Generators of ECF should
have adequate knowledge of this hazardous secondary material to allow
the use of process knowledge in determining which constituents may and
may not be present in their waste.  The use of process knowledge may
only be used by the original generator of the hazardous waste.  We are
proposing that testing be required for all constituents, except the
particular hydrocarbons and oxygenates for which the specifications do
not apply, and those compounds that the initial generator determines are
not present in the waste.  We are also proposing that the following
cannot be determined to “not be present” in the waste:  (1) a
hazardous constituent that causes it to exhibit the toxicity
characteristic for the waste or hazardous constituents that were the
basis for the waste code in 40 CFR 268.40; (2) a hazardous constituent
detected in previous analysis of the waste; (3) a hazardous constituent
introduced into the process that generates the waste; or (4) a hazardous
constituent that is a byproduct or side reaction to the process that
generates the waste.  This condition is also in the existing comparable
fuels exclusion.  

Furthermore, we are proposing that the original generator has the
responsibility to document their claim that specific hazardous
constituents meet the exclusion specifications based on process
knowledge.  Regardless of which method a generator uses, testing or
process knowledge, the generator is responsible for ensuring that the
ECF meets all constituent specifications at all times.  If at any time
the ECF fails to meet any of the specifications, or other conditions
contained in the proposed exclusion, any facility that treats (including
burning in a boiler), stores or disposes of the ECF is in violation of
Subtitle C hazardous waste requirements.

3.  Speculative Accumulation

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

4.  Notifications

We are proposing the same notification requirements for ECF generators
that comparable fuel generators must comply.  Also, ECF burners would be
subject to the same notification conditions as comparable fuel burners,
as well as additional notification conditions.

a.  ECF Generator Notification.  The person claiming that a hazardous
waste meets the exclusion criteria for ECF would be the ECF generator. 
The ECF generator need not be the person who originally generates the
hazardous waste, but can be the first person who documents and certifies
that a specific hazardous waste meets the exclusion criteria.

Just as for comparable fuel generators, we are proposing that an ECF
generator submit a one-time notification to regulatory officials (i.e.,
State RCRA and CAA officials).  To be excluded, the generator must send
a notification to the EPA Regional RCRA and CAA Directors in States
without final RCRA program authorization, and to the State RCRA and CAA
Directors in authorized States. Notification of the RCRA and CAA
Directors will provide notification of the exclusion and appropriate
documentation to both the RCRA and CAA implementing officials.  The
Agency’s intent is for the notification to be sent to both the RCRA
and CAA implementing officials because of the nature of this
exclusion—a RCRA excluded waste being burned in the CAA regulated
unit.  Also, if the ECF is burned in a State other than the generating
State, then we are proposing that the ECF generator also provide
notification to that State’s or Region’s RCRA or CAA Directors.  

Since this would be a self-implementing exclusion, in order to ensure
delivery, we are proposing that the notification be sent by certified
mail, or other mail service that provides written confirmation of
delivery and until the notification of exclusion is received and the ECF
generator is informed of such receipt, the waste is still a hazardous
waste and must be managed as such.  Only after the receipt of such
notification by the regulatory officials would the hazardous waste be
excluded, provided it was managed in accordance with the conditions
proposed today for ECF.  If an ECF loses the exclusion, the waste fuel
is subject to regulation as a hazardous waste until it returns to
compliance with the conditions and a new notification is provided by the
generator or another subsequent handler. 

Just as for the one-time generator notification in the existing
comparable fuels exclusion, we are proposing that the notification
contain the following information:  (1) the name, address, and RCRA ID
number of the person/facility claiming the exclusion; (2) the applicable
EPA Hazardous Waste Codes for the ECF if it were not excluded from the
definition of solid waste; (3) the name and address of the units,
meeting the requirements of proposed §261.38(c)(2), that will burn the
ECF; and (4) the following statement signed and submitted by the person
claiming the exclusion or his authorized representative:    

 

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

b. ECF Burner Notifications.  We are proposing that the ECF Burner would
provide the same public notification as required for existing comparable
fuel burners, as well as a one-time, initial notification to the
regulatory authority.  For the public notification, the burner must
submit for publication in a major newspaper of general circulation local
to the site where the ECF will be burned, a notice entitled
``Notification of Burning of Emission Comparable Fuel Excluded Under the
Resource Conservation and Recovery Act'' containing the following
information:  (1) name, address, and RCRA ID number of the generating
facility; (2) name of the unit(s) that will burn the ECF; (3) a brief,
general description of the manufacturing, treatment, or other process
generating the emission comparable fuel; (4) an estimate of the average
and maximum monthly and annual quantity of ECF that will be used as a
fuel in such units; and (5) name and mailing address of the State or
Regional Directors to whom the notification is being submitted.  This
notification must be published in the newspaper prior to the use of the
ECF, and is only necessary once for each material.  In addition, to be
excluded, we are also proposing that the ECF burner submit a one-time
initial notification to regulatory officials (proposed
§261.38(c)(4)(i)).  The one-time notification would require that the
burner certify that the excluded fuel will be stored under the
conditions required by this rule and that the burner will comply with
the design, operating, notification, reporting and recordkeeping
requirements of this rule.  This initial notification would facilitate
compliance assurance by alerting the regulatory authority that the
burner is subject to substantive conditions of the exclusion and by
ensuring that the burner is aware of those conditions.

5. Burner Certification

We are proposing the same burner certification for ECF burners as exist
for comparable fuel with a few additional conditions.  This burner
certification is intended to protect the generator by having the ECF
burner certify to the generator that he will comply with all applicable
storage and burning conditions.  Specifically, generators intending to
ship the ECF off site for burning would obtain a one-time written,
signed statement from the burner that includes the following:  a
certification that the burner will comply with the storage conditions,
burner conditions, and the notification, reporting, recordkeeping and
other conditions of the exclusion of ECF under 40 CFR 261.38; the name
and address of the facility that will use the ECF as a fuel; and a
certification that the state in which the burner is located is
authorized to exclude wastes as excluded fuels under (proposed) 40 CFR
261.38(a)(2).  This condition coupled with the condition to notify the
State or Regional Directors will enable regulatory officials to take any
measure that may be appropriate to ensure that excluded fuel is burned
in conformance with the applicable regulations and so does not become
part of the waste management problem.  

6. Recordkeeping

a. General.  We are proposing the same recordkeeping conditions for ECF
generators that currently apply to comparable fuel generators.  In
addition, we are proposing a condition that ECF burners keep any records
pertaining to the sampling and analysis of the ECF.  The Agency believes
that because of the self-implementing nature of this exclusion,
maintenance of proper information on-site is essential to the proper
implementation of the conditional exclusion.

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

b.  Off-Site Shipments.  We are also proposing that, for each shipment
of ECF a generator sends off-site for burning, a record of the shipment
must be kept by the generator and by the burner.  We note that a
comparable fuel generator is currently subject to this condition, and
the condition should apply to an ECF generator for the same reasons. 
The Agency believes that the generator keeping records of each shipment
would help ensure that ECF is transported to the designated boiler. 
Therefore, we are proposing that ECF generators keep records of the
following information for each off-site shipment, as currently required
for comparable fuel generators:  (1) the name and address of the
facility receiving the ECF for burning; (2) the quantity of ECF
delivered; (3) the date of shipment or delivery; (4) a cross-reference
to the record of ECF analysis or other information used to make the
determination that it meets the specifications; and (5) the one-time
certification by the burner.  These records are to facilitate tracking
and to ensure that ECF is shipped to a designated burner. 

In addition, we believe that an ECF burner should also keep a record of
each shipment to assist with compliance assurance given that there are
conditions on burning that relate to the heating value of the ECF and
the concentration of benzene and acrolein.  Accordingly, we are
proposing that ECF burners keep records of the following information for
each shipment received from an off-site generator:  (1) the name,
address, and RCRA ID number of the generator shipping the ECF; (2) the
quantity of ECF delivered; and (3) the date of delivery.

Finally, we are proposing that ECF generators that ship ECF off-site
must ship directly to the burner.  ECF could not be handled by a broker
or intermediate handler.  This would help ensure that the ECF is
received by the generator’s designated burner and stored under the
prescribed conditions prior to burning.  This is important because ECF
can pose greater hazard when stored than comparable fuel, and may not
have emissions comparable to fossil fuel if not burned by the designated
burner under the prescribed conditions.  ECF must be burned under the
specified burner conditions to ensure conformance with the basic
principle of the exclusion--that emissions are comparable to those from
burning fuel oil. 

7.  Transportation 

We believe that the Department of Transportation (DOT) requirements,
which govern the transportation of hazardous materials, will ensure the
safe transportation of ECF.  It should be noted that DOT requirements
are self-implementing and ECF transporters are required to comply with
all applicable requirements under the DOT regulations in 49 CFR parts
171 through 180.

8.  Ineligible RCRA Hazardous Waste Codes

	Consistent with the current comparable fuel exclusion, we are not
proposing to restrict the ECF exclusion to particular waste codes,
except that wastes listed for the presence of dioxins or furans would
not be eligible for the ECF exclusion.  See §261.38(b)(11). However, we
do not expect that corrosive or reactive wastes would be candidates for
ECF because of the detrimental impacts on the burning unit that would
occur.

B. What If I Fail to Comply with Conditions of the Exclusion?

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

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

We request comment, however, on whether the final rule should include a
“reasonable efforts” provision that would provide that the failure
of an off-site, unaffiliated burner to meet the proposed conditions or
restrictions of the exclusion would not mean the material was considered
waste when handled by the generator, as long as the generator can
adequately demonstrate that he has made reasonable efforts to ensure
that the material will be managed by the burner under the conditions of
the exclusion.  To achieve this benefit, the generator would have to
exercise “environmental due diligence” in reviewing the operations
of the burner in advance of transferring the hazardous secondary
materials.  We believe that a reasonable efforts provision might involve
methods, such as audits (including site visits), that a number of
generators of hazardous secondary materials now use to maintain their
commitment to sound environmental stewardship, and to minimize their
potential regulatory and liability exposures.  These audits are
frequently performed by third parties.  

We also request comment on whether a reasonable efforts provision should
include criteria that define reasonable efforts, and what those criteria
should be.  For example, a reasonable efforts provision could prescribe
that the generator must evaluate by site visits, prior to the first
shipment and every six months thereafter, the ECF storage and boiler
design and operation at off-site unaffiliated facilities (e.g., an
off-site facility that is not corporately affiliated with the generator)
that they do business with.  

In addition, we request comment on whether to require the generator to
maintain records at the generating facility documenting the reasonable
efforts made before transferring ECF to the burner.  Such records would
presumably include copies of audit reports, and/or other relevant
information that was used as the basis for the generator’s
determination that the burner will manage the material under the
conditions of the exclusion.  Requiring specific documentation would
help EPA or the authorized state to determine whether the generator did
make reasonable efforts to ensure that his ECF was managed
appropriately.  

We also request comment on whether, as part of the documentation, the
generator should also be required to maintain at the generating facility
a certification statement, signed and dated by an authorized
representative of the generator company, that for each burner to which
the generator transferred ECF, that the generator made reasonable
efforts to ensure that the ECF was properly managed.  Such certification
statement could, for example, be worded as follows:  “I hereby certify
in good faith and to the best of my knowledge that, prior to arranging
for transport of excluded hazardous secondary materials to [insert
burner name], reasonable efforts were made to ensure that the ECF will
be managed under the conditions of the exclusion found at 40 CFR 261.38,
and that such efforts were based on current and accurate information.”
 

Finally, we also solicit comment on whether the frequency of periodic
updates of the “reasonable efforts” should be identified in the
regulations, or whether that question should be left to individual
situations applying an objectively reasonable belief standard. 
Information on industry standards for facility audits of off-site
activities, including how frequently they are conducted, would be
especially helpful.    

Under the reasonable efforts provision, a generator who met his
reasonable efforts obligations might ship his ECF to an unaffiliated
burner where, due to circumstances beyond the generator's control, the
burner failed to comply with the conditions of the exclusion.  In such
situations, and where the generator's decision to ship to that burner is
based on an objectively reasonable evaluation that the burner would
manage the ECF under the conditions of the exclusion consistent with
this proposed rule, the generator would not have violated the terms of
the exclusion.

C.  How Would Spills and Leaks Be Managed?

ECF that is spilled or leaked, not cleaned up immediately and no longer
meets the conditions of the exclusion is “discarded.”  Thus, it is a
solid waste.  In addition, spilled or leaked ECF is a hazardous waste if
it exhibits a characteristic of hazardous waste or if the ECF were
derived from a listed hazardous waste.  

Furthermore, the exclusion would not affect the obligation to promptly
respond to and remediate any releases of ECF that may occur.  Management
of the released material not in compliance with applicable Federal and
State hazardous waste requirements could result in an enforcement
action.  For example, a person who spilled or released ECF and failed to
immediately clean it up could potentially be subject to enforcement for
illegal disposal of the waste.  See, for example, 40 CFR 264.1(g)(8). 
In addition, the release could potentially be addressed through
enforcement orders, such as orders under RCRA sections 3013 and 7003.  

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

	Because this is an optional and conditional exclusion, we are proposing
that all conditions in §261.38 must be met before ECF may be managed
outside of the subtitle C hazardous waste regulations.  

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

We are proposing to clarify the consequences of failure to maintain
compliance with the conditions of the exclusion for comparable fuel and
the status of tanks that cease to be operated as comparable fuel storage
tanks.  We are also proposing to waive the RCRA closure requirements for
tanks systems that are used only to store hazardous wastes that are
subsequently excluded as a comparable fuel.

As discussed in Section V in the context of ECF and for the same
reasons, comparable fuel that has lost its exclusion because of failure
to comply with one or more conditions of the exclusion must be managed
as hazardous waste from the point of generation.  See proposed
§261.38(d).  As examples, comparable fuel that is spilled or leaked and
cannot be burned under the conditions of the exclusion (i.e., in a
burner listed under proposed §261.3(b)(3)(i)), and comparable fuel that
is speculatively accumulated must be managed as hazardous waste.  

In addition, consistent with the discussion in Section IV.A.3 in the
context of ECF and for the same reasons, we propose to clarify that, if
a comparable fuel tank system or container ceases to be used to store
comparable fuel product, but has not been cleaned by removing all
liquids and accumulated sludge within 90 days of cessation of comparable
fuel storage operations, the tank system would become subject to the
RCRA Subtitle C regulation as a hazardous waste storage unit.  

Finally, we are proposing today that interim status and permitted
storage units, and generator accumulation units exempt from permitting
under §262.34, are not subject to the closure requirements of 40 CFR
Parts 264 and 265 provided that the storage units have been used to
store only hazardous waste that is subsequently excluded under the
conditions of §261.38, and that afterward will be used only to store
fuel excluded under §261.38.  This is consistent with the proposed
waiver of RCRA closure requirements for ECF, as discussed in Section
IV.A.4, and is based on the same rationale.  See proposed
§261.38(b)(14).  However, as we noted in Section IV.A.4, the Agency
expects that the owner/operator to take common-sense steps to
decontaminate and decommission the units and encourage them to consult
with the regulatory authority as to the best way to ensure that the tank
system is cleaned properly.  See proposed §261.38(b)(13).   

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

	In April 2007, EPA assembled two panels of expert scientists to review
the significant scientific information used to support the proposed
rule.  One panel addressed questions regarding support for the
comparable emissions rationale, and the other panel addressed questions
regarding support for the procedure we used to rank the relative hazard
of the 37 hydrocarbons and oxygenates for which specifications have been
established in Table 1 to existing §261.38.

Syracuse Research Corporation, under contract to USEPA, selected
reviewers for both independence and scientific/technical expertise. 
Each panel member was selected for his/her recognized technical
expertise that bears on the subject matter under discussion.  The
evaluation of real or perceived bias or conflict of interest is an
important consideration and every effort was made to avoid conflicts of
interest and significant biases. 

The peer review reports, which contain the resumes of the peer
reviewers, are available in the docket to the proposed rule (Docket ID
No. EPA-HQ-RCRA-2005-00170):

Syracuse Research Corporation, “Rationale for Exclusion of
Emission-Comparable Fuel,” April 2007; and

Syracuse Research Corporation, “Application of WMPT to Rank Comparable
Fuels Constituents,” April 2007.

In this section of the preamble, we summarize the major comments by the
peer reviewers and provide responses.  We respond to other comments in
separate documents available in the docket to the proposed rule:

USEPA, “Response to Peer Review Comments on the Rationale for
Exclusion of Emission-Comparable Fuel,” May 2007; and

USEPA, “Response to Peer Review Comments on the Application of WMPT to
Rank Comparable Fuels Constituents, May 2007.

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

Comment:  One cannot conclude that ECF boilers would be controlled at
least as stringently as hazardous waste boilers.

Response:  We disagree.  As we explain in Section II.A in Part Two
above, ECF boilers would be required to:  (1) continuously monitor
carbon monoxide (CO) to ensure that levels remain below 100 ppmv; and
(2) fire the ECF into the flame zone of the primary fossil fuel, which
must comprise at least 50% of the boiler’s fuel requirements.  These
two conditions ensure good combustion and a 99.99% destruction and
removal efficiency (DRE) of the hazardous compounds (i.e., benzene,
toluene, and the listed oxygenates).  In addition, these conditions—CO
below 100 ppmv and ensuring 99.99% DRE—are the principal controls
applicable to hazardous waste combustors to control non-dioxin/furan
organic HAP.  The remaining proposed ECF boiler conditions (e.g., the
boiler must be of a watertube, nonstoker design; primary fuel must have
a minimum heating value of 8,000 Btu/lb; boiler load must be greater
than 40%; the ECF must have low viscosity) help ensure the good
combustion conditions typical of an oil-fired industrial boiler and are
appropriate given that ECF would be burned under a conditional exclusion
without a RCRA permit and without the regulatory oversight typical for a
RCRA hazardous waste combustor.

The reviewer notes that hazardous waste boilers are subject to operating
requirements in addition to CO monitoring to control emissions of
non-dioxin/furan organic HAP.  Thus, the reviewer questions whether ECF
boilers would be controlled as stringently as hazardous waste boilers. 
Those additional operating requirements (e.g., minimum combustion
chamber temperature; maximum waste feedrate), however, are designed to
ensure that a hazardous waste boiler maintains 99.99% DRE.  Operating
limits on those parameters are established during the DRE emissions
test.  For ECF boilers, the conditions to fire ECF directly into a
stable, primary fuel flame zone and maintain a CO limit of 100 ppmv or
less ensure 99.99% DRE.  Thus, those additional operating requirements
that are established for hazardous waste boilers during the DRE
emissions test are not needed to ensure that 99.99% DRE is maintained
for ECF boilers.

Comment:  To evaluate whether ECF boiler emissions are likely to be
substantially higher than oil-fired boiler emissions, the Agency
inappropriately compared test condition average emissions for hazardous
waste boilers (as a surrogate for ECF boiler emissions, given that ECF
boilers would be controlled at least as stringently as hazardous waste
boilers) to the 95th percentile of run emissions for oil-fired boilers. 
The reviewer noted that, to compare apples-to-apples, hazardous waste
boiler test condition averages should be compared to oil-fired boiler
test condition averages.

Response:  In conducting our initial analysis, we had not compared
hazardous waste boiler test condition averages to oil-fired boiler test
condition averages because we have limited oil-fired boiler data (test
conditions) for several of the compounds.  Given the general paucity of
emissions data and considering the large number of oil-fired industrial
boilers, we used the oil-fired boiler runs, rather than test condition
averages, to help represent the range of values that such boilers may
emit.

Nonetheless, in retrospect, we agree with the reviewer.  In fact, we
have substantial oil emissions data representing many test conditions
for several compounds, such as benzene, formaldehyde, naphthalene, and
toluene.  And, although we have limited data for several other compounds
that comprise only one to three test conditions, we also have hazardous
waste boiler data for several compounds that comprise only a few test
conditions.

We have reanalyzed our data base to compare hazardous waste boiler
emission test condition averages to the 95th percentile oil-fired boiler
emission test condition averages.  The results of that reanalysis
support the proposed rule.  See Section I.B.1 in Part Two above.  

The 95th percentile test condition average benchmark levels for
oil-fired boiler emissions are lower than the 95th percentile run
benchmark levels, as expected.  This results in additional hazardous
waste boiler emissions exceeding the oil-fired boiler emissions
benchmark.  However, these additional exceedances do not affect our view
that ECF boiler emissions would be generally comparable to oil-fired
boiler emissions (e.g., they are directly comparable or exceedances are
not of consequence because they are de minimis).  

Specifically, there is one additional exceedance each for
benz(a)anthracene and fluorine, and two additional exceedances for
ethylbenzene.  All of these are de minimis exceedances, however, with
emissions below 1 ug/dscm.  

There is also one additional exceedance for benzene, but the exceedance
is de minimis given that the revised oil-fired boiler benchmark is 90
ug/dscm and the additional hazardous waste boiler exceedance is at an
emission level of 91 ug/dscm.  

Finally, there are three additional exceedances for methylene chloride. 
The revised oil emissions benchmark is 40 ug/dscm, rather than the
previous benchmark of 58 ug/dscm based on run data, but is based on only
two test conditions.  Thus, we believe it is not representative of the
range of oil-fired boiler emissions.  The three additional hazardous
waste boiler emissions exceedances are at 54 ug/dscm, 52 ug/dscm, and 50
ug/dscm.  Test reports for two of the three boilers indicate that
methylene chloride contamination is known or suspected.  The third test
report is silent on the potential for contamination, but methylene
chloride is commonly recognized as a sample and lab contaminant.  Thus,
we do not consider the remaining exceedance an indication that hazardous
waste boiler emissions of methylene chloride are not comparable to oil
emissions, considering also the limited oil emissions data and the de
minimis potential (but not likely) increase in emissions.

Comment:  Given that combustion is a percent destruction process,
residual emissions of organic compounds in the feed will increase as
feedrate increases.  The

Agency should ensure that burning fuels with high concentrations of
hazardous hydrocarbons and oxygenates will, in fact, result in trace
levels of emissions.  An approach would be to project emission levels
for the ECF compounds assuming 99.99% or possibly 99.999% DRE (since
most DRE testing has shown this result) to determine if emissions are
within the range of benchmark levels.

Response:  It is reasonable to question whether emissions of unburned
ECF compounds could exceed the benchmark levels given that the ECF
compounds (i.e., benzene, toluene, and the listed oxygenates) could be
fed at high feedrates.  These hazardous compounds could be present in
ECF at any concentration and ECF could represent a substantial portion
of the fuel fired to the boiler—25 percent of the heat input for
benzene and acrolein, and 50 percent of the heat input for the remaining
compounds.

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

Nonetheless, we acknowledge that the ECF exclusion would allow benzene,
toluene, and the listed oxygenates to be fed into industrial boilers at
much higher rates than they may be actually fired in practice.  For
example, the maximum concentrations of many of these compounds in waste
fuels that have been identified as candidate fuels for exclusion are
relatively low:  0.05 % for acrolein; 10% for methyl ethyl ketone; 15%
for isobutyl alcohol and acetophenone; and 25% for benzene.  Toluene can
be present at much higher concentrations, however, including levels up
to nearly 100%.  (As a practical matter, although the ECF exclusion
would allow unlimited concentrations, the concentration of hazardous
compounds will be limited to the levels actually found in waste fuels.) 
In addition, ECF would only represent a portion of the fuel fed to the
boiler since at least 50% of the fuel must be fossil fuel.  Finally,
actual firing rates (and thus the federate of the compound of concern)
will depend on a number of other factors, including the quantity of ECF
generated by a facility that burns ECF on-site, and the quantity of ECF
in the vicinity of facilities that burn ECF from off-site sources.

Notwithstanding current actual practice regarding the concentrations of
compounds in ECF and ECF firing rates, it is reasonable to question
whether the exclusion would allow such high feedrates of the compounds
of concern that ECF emissions may not meet the criterion of being
comparable to the emissions from burning oil.  For example, if we
assumed that a DRE of only 99.99% were achieved when feeding ECF with a
90% concentration of a compound of concern at the maximum firing rate
(i.e., 25% for benzene and acrolein and 50% for the other compounds),
the residual emissions of the compound would far exceed the emissions
from burning oil.  

Consequently, we request comment on an approach that would limit the
feedrate of benzene, toluene, and the listed oxygenates to ensure that
ECF emissions are comparable to the emissions from burning oil.  Under
the approach, we would identify a target emission level for each of
these hazardous compounds, estimate a destruction and removal efficiency
(DRE) for the compound, and calculate a maximum ECF firing rate as a
function of the concentration of the compound in the ECF. 

We would identify the target emission levels as:

For each hazardous compound for which we have emissions data from
oil-fired industrial boilers, the target level would be the highest test
condition average (after screening out high apparent outliers) or a de
minimis level, whichever is higher;

For each hazardous compound for which we have only hazardous waste
boiler emissions data, the target level would be the highest test
condition average (after screening out high statistical outliers) or a
de minimis level, whichever is higher; and

For each hazardous compound for which we have neither oil-fired boiler
nor hazardous waste boiler emissions data, the target level would be a
de minimis level.

The target emission levels for the three hazardous compounds for which
we have oil emissions data—acrolein, benzene, and toluene—would
range from a de minimis level of 20 ug/dscm to 160 ug/dscm.  The target
emission levels for the seven hazardous compounds for which we have only
hazardous waste boiler emissions data would range from a de minimis
level of 20 ug/dscm to 130 ug/dscm.  And, the target emission level for
hazardous compounds for which we do not have emissions data would be a
de minimis level of 20 ug/dscm.

We specifically request comment on whether these target emission levels
are appropriate.

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

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

It appears that, when MTECs exceed 1.0E+07 ug/dscm, DRE exceeds 99.999%
for all compounds.  Additionally, it appears that, for MTECs in the
range of 5.0E+06 to 1.0E+07, DRE exceeds 99.995% for all hazardous
compounds.  Consequently, it may be appropriate to consider this
feedrate/DRE relationship to identify potential ECF firing rate limits. 


We specifically request comment on our views regarding the relationship
between DRE and compound feedrate.

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

We noted an anomalous situation for most hazardous compounds, however,
where the firing rate limit first decreased as feedrate increased (as
expected), but then at higher feedrates, the firing rate limit began to
increase.  This was caused by our assumption that DRE increases in a
step-wise function rather than, as likely, in a smooth progression as
feedrate increases.  For example, we estimated DRE at 99.995% when the
MTEC is 9.9E+06, and at 99.999% when the MTEC is 10E+06 (1.0E+07).  

Clearly, this is not a realistic representation of how DRE relates to
MTEC.  To address this concern, we could, for example, consider whether
it is appropriate to use a best-fit curve of the benzene data to develop
a relationship between DRE and MTEC.  Benzene may be an appropriate
hazardous compound to select to define the relationship because it ranks
the highest on the thermal stability index of the compounds for which we
have DREs over a range of feedrates, it has the highest ranking for the
hazardous compounds, and it is the third highest ranking compound in the
Thermal Stability index, ranking higher than 341 other compounds.

We specifically request comment on whether feedrate limits for the
hazardous compounds may be necessary to ensure that the target emission
levels are not exceeded, and on the approach described above for
potentially establishing ECF firing rate limits.

Comment:  EPA should be sure that all coal-fired boilers have enough
sulfur to inhibit dioxin/furan formation and thus justify a waiver from
gas temperature control at the inlet to the electrostatic precipitator
(ESP) or fabric filter (FF).

Response:  Although data are limited, it appears that coal-fired boilers
equipped with an ESP or FF and burning low sulfur coal will have low
dioxin/furan emissions irrespective of the gas temperature at the inlet
to the ESP or FF.  

We have dioxin/furan data for 17 coal-fired boilers that are equipped
with an ESP or FF.  One of the boilers burns hazardous waste and the
remaining boilers do not burn hazardous waste.  All dioxin/furan
emissions are below 0.35 ng TEQ/dscm, which is below the 0.40 ng
TEQ/dscm generic MACT dioxin/furan emission standard for hazardous waste
combustors.  See 40 CFR Part 63, Subpart EEE.

Nine sources operate the ESP or FF above a (estimated) gas temperature
of 400 F, with a range of 401 F to 500 F.  All of these boilers have
dioxin/furan emissions below 0.2 ng TEQ/dscm.  At least one of these
boilers burns low sulfur coal.

Nonetheless, given the limited data, we specifically request comment and
supporting information on the potential for dioxin/furan formation
across the ESP or FF of a coal-fired boiler when the APCD is operated
above 400 F, and thus whether a temperature limit is warranted as a
condition of the ECF exclusion for those boilers burning coal as the
primary fuel.

Comment:  If ECF is fired in a separate firing system at a low firing
rate, potentially high levels of CO from poor combustion of the ECF may
be masked by the low CO from the primary fuel.  In addition, the method
of mixing the ECF with the other fuel is extremely important and should
be considered when developing conditions that ensure good combustion. 
The location and design of the ECF injector will also be critical to
ensuring good combustion.  The ECF injector may meet the proposed
conditions, but nonetheless not provide good combustion.

Response:  The proposed conditions for firing ECF to ensure good
combustion (e.g., atomization conditions; firing ECF into the flame zone
of the primary, fossil fuel which must represent at least 50% of the
fuel input to the boiler; the boiler must operate at >40% load to ensure
a stable flame and well-mixed fuels) are at least as stringent as those
required for hazardous waste boilers under 40 CFR 266.110, which ensure
good combustion conditions.  Moreover, if the ECF is injected in a
manner that may not ensure good combustion, the 100 ppmv CO limit could
not be achieved.  

Nonetheless, we request comment on whether additional conditions on the
ECF burner design, location, or operation may be warranted to ensure
good combustion of ECF.  Any such comments must include supporting
information in order for the Agency to be able to consider it for final
action.

Comment:  The Agency has few oil-fired boiler emissions data to
determine whether ECF boiler emissions (using hazardous waste boiler
emissions as a surrogate) are likely to be comparable.  Including
additional sources in the data base could increase or decrease the
benchmark emissions levels EPA used for the comparison.

Response:  Our oil-fired emissions data base was developed under a
comprehensive effort to obtain available emissions data to develop MACT
standards (i.e., under CAA Section 112(d)) for industrial, commercial,
and institutional boilers that do not burn hazardous waste.  We have
emissions data for 26 compounds for comparison with hazardous waste
boiler emissions, comprised of more than 500 runs representing more than
235 test conditions.  Nonetheless, we have few emissions data for some
compounds, as the reviewer notes—data for only 1 or 2 test conditions
that cannot represent the range of emissions from oil-fired boilers.

We note, however, that if more data were available, the emissions
benchmark levels would generally increase rather than decrease as the
range of emission levels is better represented.  Counter-balancing this,
however, is the fact that if we had additional hazardous waste boiler
emissions data, some data would likely be higher than those that are
currently in our data base.

Comment:  Because most watertube steam boilers operate at less than 4%
oxygen, requiring that CO be corrected to 7% oxygen will dilute actual
CO levels.  This dilution effect could cause operators to miss
operational problems.

Response:  We do not understand how correcting CO to 7% oxygen rather
than 4% oxygen would affect the ability of operators to detect
degradation in combustion conditions.  Nonetheless, we specifically
request comment and supporting information on whether CO should be
corrected to 4% oxygen, which more closely reflects actual stack oxygen
concentrations for these types of boilers.  On a 4% oxygen correction
basis, the 100 ppmv CO limit (at 7% oxygen) would be 120 ppmv.

Comment:  A peer reviewer provides cites for two reports that may
provide additional information on emissions from coal-fired power plants
and one report that provides emission estimates for volatile organic
compounds emitted by combustion of coal, gas, and oil:

PCDD/PCDF Emissions from Coal Fired Power Plants, Riggs, Karen B. et al,
Battelle, Columbus, OH., 15th International Symposium on Chlorinated
Dioxins and Related Compounds, August 21-25, 1995, Edmonton, Canada,
Volume 24, Page 51-54.

A Comprehensive Assessment of Toxic Emissions from Coal-Fired Power
Plants, Phase 1 Results, from the U.S. Department of Energy Study. 
Prepared for Pittsburgh Energy Technology Center, U.S. Department of
Energy. September 1996.

The EPA National Air Quality and Emissions Trends Report, 2003 Special
Study Edition, has Volatile Organic Compounds Emissions Estimates given
in Table A-5 for coal, gas and oil.  Later reports may be available.

Response:  We appreciate the references and request comment on the
significance and relevance of information in these reports on the
proposed ECF exclusion.  These documents are in the docket for this
rulemaking:  Docket ID No. EPA-HQ-RCRA-2005-0017.

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

	Comment:  Because the 37 constituents are found in combustion (i.e.
air) emissions, EPA should use air half-life data when generating
Persistence scores for this effort, rather than half-life data from
other media.

	Response:  We disagree.  Information suggests that it’s important to
take into account the risks from indirect exposures (e.g. ingesting
contaminated soil, food, or water) when considering the potential risk
from combustor emissions.  For example, Fradkin et al. (1988)  linked
elevated levels of chemical pollutants in soils, lake sediments, and
cow’s milk to the atmospheric transport and deposition of pollutants
from combustion sources.

The current effort is not a full quantitative risk assessment, but
rather a screening-level ranking of chemicals based on potential chronic
(i.e., long-term) risks to human health and the environment.  As such,
we consider it appropriate to make the protective assumption, as in the
WMPT, of using the highest half-life data of the relevant media to
derive Persistence scores for the 37 constituents.

	Comment:  When deriving a Persistence score for benzene, it would be
more appropriate to use its half-life in air, rather than its half-life
in sediment, as in the WMPT.

	Response:  For the reasons stated above, we consider it appropriate to
use the highest half-life from all relevant environmental media.  We
also consider it appropriate to consistently apply the WMPT methodology
across all 37 constituents whenever possible.

Interestingly, the peer reviewers did not agree on the implications of
using the air half-life to derive benzene’s Persistence score:  one
peer reviewer thought it would lower the Persistence score, while
another peer reviewer saw it as grounds for a high Persistence score. 
Also, the three peer reviewers do not agree on the final disposition of
benzene’s ranking.  One peer reviewer recommends moving benzene to
Category C, another peer reviewer recommends leaving benzene in category
B, while the third peer reviewer, due to benzene’s toxicity,
recommends elevating it to Category A.

Nevertheless, we recognize that as one peer reviewer puts it,
“...although the WMPT is a useful screening tool for evaluating the
hazard of particular compounds, it should not be used blindly.”  We
thus request public comment on this issue.

	Comment:  No toxicity data were available for five hazardous compounds
(1,4 naphthoquinone, isosafrole, propargyl alcohol, safrole, dimethyl
phthalate), and therefore complete scoring was not possible.  Therefore,
one of the peer reviewers thought that these compounds should have been
removed from consideration as emission-comparable fuel constituents.

	Response:  While we recognize that no toxicity data were available for
these five hazardous compounds, and therefore complete scoring was not
possible, we do not agree that this should result in these compounds
being removed from consideration as emission comparable fuel
constituents.  Specifically, there were sufficient data to derive the
other two subscores (for Persistence and Bioaccumulation) required for
final scores.  Given their Persistence and Bioaccumulation scores, and
assuming a worst-case toxicity score for each, none of the five
hazardous compounds ranked higher than Category C.  Therefore, we
believe it appropriate to include them as emission-comparable fuel (ECF)
constituents.

	Comment:  Little scientific justification is provided for grouping the
PAHs and naphthalene into a common group. 

Response:  We made the policy decision to remain consistent with the
pre-reviewed WMPT methodology, which classified constituents that scored
8 or 9 as high hazard.  Naphthalene scored an 8, and thus is classified
as a high hazard compound.  

We also remained consistent with the WMPT methodology and the toxic
release inventory (TRI) by grouping PAHs together, and classifying them
as high hazard.  Most PAHs scored an 8 or 9; benzo(a)anthracene and
chrysene, however, scored 7.  In addition, we note that it is an EPA
priority to reduce, whenever possible, the environmental release of any
chemical found on EPA’s list of Priority Chemicals.  PAH’s and
naphthalene are members of EPA’s list of priority chemicals. 
Consequently, we believe it is reasonable to classify PAHs and
naphthalene as high hazard compounds.

We specifically request comment on adopting the WMPT (and TRI) policy of
classifying PAHs as a group, and being consistent with the Agency’s
priority to reduce the environmental release of chemicals on EPA’s
list of priority chemicals.  Any comment suggesting an alternative
approach must include an appropriate rationale and supporting
information in order for the Agency to be able to consider it for final
action.

Comment:  The Agency should consider the implications of the combustion
process on the composition of potential emissions components in terms of
the parent constituents, as well as the combustion by-products.  

Response:  This comment is not germane to the scope of this peer review.
 We discuss in Part Two, Sections I and II of the preamble why we
believe that emissions from burning ECF under the proposed conditions
would be comparable to emissions from burning oil in an industrial
boiler operating under good combustion conditions.

Comment:  The WMPT model uses many screening level values (e.g. ambient
water quality criteria (AWQC)) that were developed for purposes other
than that for which they are being used.  Because the Agency used the
data that were contained in the data base, there was little assessment
of the quality of these data.  The use of these values as "numerical
environmental benchmarks" is inappropriate and will result in
conservative estimates of risk.

Response:  The ambient water quality criteria were not used to score any
of the ECF constituents.  Also, the WMPT methodology, including its
hierarchy of data sources and data quality assurance procedures, went
through peer and public review.  Therefore, we disagree with the
commenter that there was no quality control on the data in the data
base.  Moreover, commenting on the basic structure of the WMPT
methodology, beyond its applicability to the current application, is
beyond the scope of this peer review.

Comment:  Very conservative assumptions are employed in the assessment
process (e.g., the use of anaerobic sediment degradation half-lifes as a
measure of the chemicals environmental persistence).  

Response:  We believe it is appropriate to make reasonably conservative
assumptions considering that the ECF would be burned under a conditional
exclusion absent a RCRA Part B permit and the regulatory oversight
typical for a RCRA hazardous waste combustor.

Comment:  When applying the model to any particular use or situation,
consideration must be given to exposure potential and to the data used
to estimate exposure potential.  

Response:  As we discuss in Part Two, Section III, of the preamble, our
hazard ranking effort was not a full quantitative risk assessment, but
rather a screening-level ranking of hazardous compounds based on
potential chronic (i.e., long-term) risks to human health and the
environment.  As such, we consider it appropriate to apply the WMPT’s
use of a small number of relatively simple measures (i.e. combination of
bioaccumulation and persistence factors) to represent the exposure
potential of each chemical.

Comment:  No scientific basis is provided for why ecological toxicity
data were not considered in the evaluation process.  The WMPT requires
information on both human and ecological toxicity concerns.  As
implemented here, only human concerns were considered. 

Response:  In developing the WMPT, the Agency decided to collect the
toxicity data in phases, beginning with human toxicity.  In Phase 2, we
would collect ecological toxicity data only for those constituents which
a high toxicity score might elevate to a different category.  However,
as a result of the human toxicity data collected in Phase 1, we found
that in no instance would a high ecological toxicity score alter a
chemical’s score sufficiently to elevate the chemical into a category
for which we recommend action.  

Therefore, we disagree with the opinion that only human toxicity
concerns were considered.  As detailed in the technical support
document, some, but not all, of the 37 constituents are found in the
WMPT chemical data base.  We retained the eco-toxicity data (and scores)
for those chemicals already in the data base.  For those chemicals not
already in the WMPT data base, high eco-toxicity subscores would not
have had a meaningful impact on the final scores.

Comment:  The justification for acrolein’s "special characterization"
is unclear. Acrolein’s inhalation toxicity and its proclivity to
accumulate in body tissues (i.e. bioaccumulation score) are unrelated.  

Response:  We have clarified our explanation for assigning acrolein to
hazard Category B—moderate relative hazard—to explain that our
concern is that acrolein’s human toxicity is based on the inhalation
pathway and that acrolein has the highest possible WMPT score (three)
for toxicity.  See discussion in Part Two, Section III of the preamble.

Comment:  There are several potential issues with the way different
health and ecotoxicological endpoints are scored.  The authors of the
WMPT appear to have relied on expert judgment to select consistent
levels of concern within a particular endpoint, but the background
document says little about comparison or weighting of different
endpoints.  

Response:  As mentioned above, while the Agency appreciates this
comment, it is beyond the scope of this peer review.

Comment:  A basic limitation of the WMPT approach is the exclusion from
the rankings of any consideration of the dose likely to be involved in
practical exposure situations. 

Response:  The WMPT ranking procedure is not a full quantitative risk
assessment, but rather a screening-level ranking of hazardous compounds
based on potential chronic (i.e., long-term) risks to human health and
the environment.  As such, we consider it appropriate to make reasonably
conservative assumptions, as opposed to the consideration of the dose
likely to be involved in practical exposure situations.  

Comment:  There is no explicit statement that the tables used in this
application have been checked against the latest iterations of the
various references.  

Response:  In the technical support document section titled
“Updating/Collecting Constituent-Specific Data,” we explain that
some, but not all the 37 comparable fuel constituents are found in the
WMPT chemical data base.  For those constituents found in the data base,
we updated the data and re-evaluated each chemical to determine if their
WMPT scores changed with more up-to-date data. 

Comment:  The use of an inclusive category of “Polycyclic Aromatic
Compounds” (PACs) with a single level of concern to deal with the
evaluation of various carcinogenic polycyclic aromatic hydrocarbons and
related compounds is appropriate for a screening tool and protective of
public health, but there is some lack of clarity as to what compounds
are included.  

Response:  All of the hydrocarbons listed in Table 1 to §261.38, except
benzene, naphthalene, and toluene, are PAHs.

Comment:  Placing benzene in the second tier of concern (i.e., hazard
Category B) is logical given the premise, with the following exceptions.
 This carcinogen is potentially present in “exemptible” fuels at a
rather substantial level, thus offsetting its lower potency.  Also,
combustion of aromatics may under some circumstances lead to high
concentrations of PAHs in the emissions.  In addition, carcinogenesis is
a severe endpoint and a subject of greater public concern than most
other health outcomes.  Benzene is one of the relatively few, and thus
notorious, “Known Human Carcinogens” according to US EPA and IARC. 
The level of concern (and thus, severity of restriction) should be
considered at least equivalent to naphthalene, and thus benzene should
be in hazard Category A.

Response:  We have clarified our rationale for assigning benzene to
hazard Category B.  See discussion in Part Two, Section III, of the
preamble.  

Comment:  The ranking of acrolein is appropriate, but it is odd that
this material is variously described as a fuel constituent, rather than
a combustion by-product.  

Response:  The scope of this peer review pertained to our hazard ranking
procedure for the hydrocarbon and oxygenate constituents of ECF listed
in Table 1 to §261.38.  

Comment:  The use of measured and predicted data yield an inconsistent
bioaccumulation ranking across PAHs.  It would seem more appropriate to
use the measured data to ensure a consistent assessment.  Nevertheless,
the proposed methodology is relatively robust and such refinements are
not likely to impact the overall hazard ranking and resulting
conclusions derived from the present analysis.

Response:  The agency acknowledges the reviewer’s comment.  We
consider it appropriate to consistently apply the WMPT methodology
across all 37 constituents.

Part Three:  State Authority

I.  Applicability of the Rule in Authorized States

EPA would strongly encourage states to adopt the regulations being
proposed today.  Under section 3006 of RCRA, EPA may authorize qualified
states to administer their own hazardous waste programs in lieu of the
federal program within the state.  Following authorization, EPA retains
enforcement authority under sections 3008, 3013, and 7003 of RCRA,
although authorized states have primary enforcement responsibility.  The
standards and requirements for state authorization are found at 40 CFR
Part 271. When EPA authorizes a state to implement the RCRA hazardous
waste program, EPA determines whether the state program is consistent
with the federal program, and whether it is no less stringent.  This
process, codified in 40 CFR 271, ensures national consistency and
minimum standards, while providing flexibility to states in implementing
rules.  Following authorization, EPA retains enforcement authority under
sections 3008, 3013, and 7003 of RCRA, although authorized states have
primary enforcement responsibility.  In making this determination, EPA
evaluates the state requirements to ensure they are no less stringent
than the federal requirements.  

Prior to enactment of the Hazardous and Solid Waste Amendments of 1984
(HSWA), a State with final RCRA authorization administered its hazardous
waste program entirely in lieu of EPA administering the federal program
in that state.  The federal requirements no longer applied in the
authorized state, and EPA could not issue permits for any facilities in
that state, since only the state was authorized to issue RCRA permits. 
When new, more stringent federal requirements were promulgated, the
state was obligated to enact equivalent authorities within specified
time frames.  However, the new federal requirements did not take effect
in an authorized state until the state adopted the federal requirements
as state law.

In contrast, under RCRA section 3006(g) (42 U.S.C. 6926(g)), which was
added by HSWA, new requirements and prohibitions imposed under HSWA
authority take effect in authorized states at the same time that they
take effect in unauthorized states.  EPA is directed by the statute to
implement these requirements and prohibitions in authorized states,
including the issuance of permits, until the state is granted
authorization to do so. While states must still adopt HSWA related
provisions as state law to retain final authorization, EPA implements
the HSWA provisions in authorized states until the states do so.

Authorized states are required to modify their programs only when EPA
enacts federal requirements that are more stringent or broader in scope
than existing federal requirements.  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 may, but are not
required to, adopt federal regulations, both HSWA and non-HSWA, that are
considered less stringent than previous federal regulations.

RCRA section 3009 allows the states to impose standards more stringent
than those in the federal program (see also 40 CFR 271.1).  Therefore,
authorized states are required to modify their programs only when EPA
enacts federal requirements that are more stringent or broader in scope
than existing federal requirements.  Authorized states may, but are not
required to, adopt federal regulations that are considered less
stringent than previous federal regulations.  Because today's rule would
eliminate specific requirements for materials that are currently managed
as hazardous waste, state programs would no longer need to include those
specific requirements in order to be consistent with EPA's regulations,
when and if today's rule is finalized.

II. Effect on State Authorization

Today’s notice proposes regulations that would not be promulgated
under the authority of HSWA.  Thus, the standards proposed today would
be applicable on the effective date only in those States that do not
have final RCRA authorization.  Moreover, authorized States are required
to modify their program only when EPA promulgates Federal regulations
that are more stringent or broader in scope than the authorized State
regulations.  For those changes that are less stringent or reduce the
scope of the Federal program, States are not required to modify their
program.  This is a result of section 3009 of RCRA, which allows States
to impose more stringent regulations than the Federal program. 
Today’s proposal is considered to be less stringent than the current
standards.  Therefore, authorized States would not be required to modify
their programs to adopt regulations consistent with and equivalent to
today’s proposed standards, although EPA would encourage States to do
so.

Some states incorporate the federal regulations by reference or have
specific state statutory requirements that their state program can be no
more stringent than the federal regulations.  In those cases, EPA
anticipates that the exclusions in today's proposal, when and if
finalized, would be adopted by these states, consistent with state laws
and state administrative procedures, unless they take explicit action as
specified by their respective state laws to decline the proposed
revisions.

Part Four:  Costs and Benefits of the Proposed Rule

I.  Introduction 

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

II.  Baseline Specification

	Proper baseline specification is vital to the accurate assessment of
incremental costs, benefits, and other economic impacts associated with
a rule that would expand the exclusion for waste fuels. The baseline
essentially describes the world absent any   expanded exclusion.  The
incremental impacts of today’s action are evaluated by predicting
post-rule responses with respect to baseline conditions and actions. 
The baseline, as applied in this analysis, is assumed to be the point at
which the proposal is published. A full discussion of baseline
specification is presented in the Assessment document completed for this
action.  

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

	We developed a simplified four-step approach for assessing the cost and
economic impacts associated with this action.  First, we identified all
potentially eligible waste streams currently generated in the U.S.  We
next determined the tonnage of waste that is likely to qualify for the
proposed exclusion.  An economic threshold analysis was next applied to
the likely eligible waste to determine which facilities could be
expected to benefit from the exclusion.  For example, for a generator
with an eligible nonhazardous boiler on-site, the model assumes that the
facility will use the exclusion if the total benefits (cost savings)
realized by the generator are projected to exceed the total costs
incurred to take advantage of the exclusion.  Finally, we aggregated all
facilities that are likely to use the exclusion to derive estimates for
total costs, cost savings, and economic impacts (waste quantities
affected).

The analytical model for this analysis derives both cost savings and
costs associated with the exclusion.  Cost savings include: fuel cost
savings (net of baseline fuel recovery), avoided hazardous waste
management costs, transportation cost savings, tracking cost savings,
and storage cost savings.  These factors may be considered economic
benefits of the proposed action.  The model also assesses relevant costs
of the exclusion.  These are:  burner storage costs, boiler retrofit
costs, waste stream analytical costs, raw materials replacement cost
(related to waste that is recycled in the baseline), recordkeeping
costs, and transport costs. 

The net social benefits are calculated as the difference between the
social benefits (cost savings) and social costs.  The total net social
benefits of the proposed rule are then calculated by aggregating the net
social impacts associated with each facility expected to use the
exclusion.  Impacts to human health and the environment are assumed to
be unchanged and are therefore not included in our monetized assessment.


	The primary data sources used in this analysis are the 2003 Biennial
Report (2003 BR), the 1996 National Hazardous Waste Constituent Survey
(NHWCS), the 2002 National Emissions Inventory (NEI), ACC Survey data,
and information provided in the engineering analysis developed by EERGC.
 The 2003 BR data were used to derive the potentially eligible waste
streams currently generated in the U.S.  This is the only national
database available for this use that has been reviewed by the Agency to
ensure data quality.  The 1996 NHWCS reflects dated information, but was
the only quality controlled data source available that provided the
necessary waste constituent information on a nationwide basis, across
all industries.  The NEI data were used to make a determination of
whether an eligible boiler is located at each facility.  The EERGC
engineering analysis provided all necessary engineering cost
information.  

Data limitations have required us to apply several assumptions in our
analysis.  The most critical assumptions are:

The ECF is assumed to be burned in nonhazardous waste boilers that meet
the conditions of the exclusion.  

The ECF is assumed to have an average heating value of 12,200 Btu/lb.
This is based on our assessment of the National Hazardous Waste
Constituent Survey.

That a facility that can use the exclusion, and has a nonhazardous waste
boiler on-site that could burn ECF, would burn the fuel on-site rather
than sending it off-site.

The number of facilities purchasing ECF is assumed to equal the number
of generating facilities expected to send their ECF off-site.  

That all ECF generated in a particular state would be shipped the same
distance.  Average shipment distances for each state are derived from
hazardous waste shipped off-site, as reported in the 2003 BRS.  

IV.   Key Analytical Limitations

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

V.  Findings

	This rule, as proposed, is projected to result in a benefit to society
in the form of net cost savings to the private sector, on a nationwide
basis, thereby allowing for the more efficient use of limited resources
elsewhere in the market.  This is accomplished without compromising
protection of human health and the environment by ensuring comparable
emissions from the burning of high Btu value waste. 

	The total net social benefits projected as a result of this rule, as
proposed, are estimated at approximately $23 million per year.  Avoided
management and fuel costs represent the vast majority of all benefits
(cost savings).  Transportation, boiler retrofits, and analytical costs
represent the majority of the costs.  This estimate assumes all States
adopt the rule, and incorporates all cost savings to affected
generators, less all associated costs.  	Nearly 183,000 tons (U.S.) of
waste are expected to initially qualify for the exclusion with
approximately 107,000 tons/year actually excluded.  Of this total, we
estimate that approximately 34,000 tons are not currently burned for
energy recovery.  	

We also analyzed various scenarios under the two primary regulatory
options considered by the Agency.  Annual net social benefits under the
first option were found to be $603,000 to $1,396,000 greater than the
net benefits of our proposed approach.  The additional cost savings
reflect reduced storage requirements.  In addition, this scenario
assumes that the specification for naphthalene and PAHs would not apply,
which would increase the percentage of waste qualifying for the
exclusion.  Under the second option, annual net social benefits were
found to range from $15 million to $20 million per year.  These reduced
savings largely reflect additional RCRA Subtitle C storage and tracking
requirements.  Furthermore, this option assumes that generating
facilities would not send any of their ECF offsite.  This assumption
results in a significant reduction in annual fuel cost savings and
avoided management costs.

	We believe that it is important to not only understand the change in
economic efficiency, as presented above, but to also understand the
primary distributional effects associated with this change.  Hazardous
waste commercial incinerators and cement kilns are projected to
experience negative distributional impacts associated with this action. 
These effects include revenue losses for both groups, plus fuel
replacement costs for commercial kilns.  Revenue losses to commercial
incinerators are estimated at $3 million/year, while commercial kilns
may experience combined revenue and fuel replacement losses of
approximately $13.5 million per year.  These impacts represent between
one and 1.7 percent of the total estimated annual gross revenues for
these sectors.  Although impacts to these groups may be considered a
cost in accounting terms, they do not represent a real resource cost of
the proposed rule.  The actual net benefits of this proposal reflect the
impacts to these groups to the extent that there are real resource
impacts, but do not include transfers from one facility to another.  

	The findings presented here reflect numerous analytical assumptions and
limitations.  Furthermore, we have analyzed additional scenarios and
sensitivity analyses that are not presented in this Preamble.  The
reader is strongly encouraged to read the Assessment document prepared
in support of this proposal to gain a full understanding of all
findings, analytical assumptions, limitations, and how the adjustment of
selected key parameters may influence the findings. 

Part Five:  Statutory and Executive Order Reviews 

I. Executive Order 12866: Regulatory Planning and Review

	Under Executive Order (EO) 12866   SEQ CHAPTER \h \r 1 (58 FR 51735,
October 4, 1993), this action is a "significant regulatory action.”  
SEQ CHAPTER \h \r 1  This action may raise novel legal or policy issues
[3(f)(4)] due to our determination of Emission-Comparable Fuel (ECF), as
applied in this proposed rulemaking.  Accordingly, EPA submitted this
action to the Office of Management and Budget (OMB) for review under EO
12866.  Any changes made in response to OMB recommendations have been
documented in the docket for this action.

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

II. Paperwork Reduction Act 

The information collection requirements in this proposed rule have been
submitted for approval to the Office of Management and Budget (OMB)
under the Paperwork Reduction Act, 44 U.S.C. 3501 et seq.  The
Information Collection Request (ICR) document prepared by EPA has been
assigned EPA ICR number 1361.11.

Today’s proposed rule is deregulatory.  The respondents generating and
burning  excluded emission-comparable fuel would be subject to an annual
public reporting and recordkeeping burden for the collection of
information required under this proposed rule of 75,284 hours, and a
cost of $4,071,341.  However, because the excluded fuel would no longer
be considered hazardous waste, the generator would not be required to
comply with the paperwork, reporting, and recordkeeping requirements for
hazardous wastes under RCRA.  Therefore, the reporting and recordkeeping
burden reduction associated with the reduced requirements for
emission-comparable fuel would result in a net annual burden reduction
of 21,206 hours and savings of $3,186,590 in capital and operation and
maintenance costs.

The proposal requires that the affected sources collect emission
monitoring data and other parameters, and retain records of for a period
of three years, which is consistent with RCRA requirements of 40 CFR
parts 264 and 265.  The collection of the requested information is
mandatory, as it is needed by EPA as a part of its overall compliance
and enforcement program for the protection of human health and the
environment.

	The proposed rule is de-regulatory: the excluded comparable fuel will
exit the hazardous waste universe, and will, therefore, will not be
required to comply with the paperwork, reporting and recordkeeping
requirements for hazardous wastes under RCRA.  Although the respondents
generating and burning the ECF will be subject to some reporting and
recordkeeping requirements as conditions of the exclusion, there will
still be a net annual burden reduction of 136 hours per respondent, and
a total of 21,206 hours and savings of $3,186,590 in capital and O&M
costs for all the 156 respondents due to this proposal.   

	The public reporting and recordkeeping burden for the collection of
information required under this proposal is estimated to average 805
hours per respondent per year for an estimated 156 respondents.  The
annual public reporting and recordkeeping burden for the collection of
information required under this proposed rule is estimated to be 125,613
hours, and a cost of $6,767,124.  The capital and start-up component of
this cost annualized over its expected useful life is $ 3,003,279, while
the total operation and maintenance component is $3,763,845.   However,
there will be an overall reporting and recordkeeping burden reduction of
146,766 hours and $9,995,614 since the facilities availing the exclusion
provisions of this proposed rule will exit the hazardous combustor waste
universe and will be spared from more extensive reporting and
recordkeeping requirements required under RCRA for hazardous waste.
Therefore the net annual savings of this proposal is burden reduction of
21,153 hours and savings of $3,188,490 for capital and O&M costs

Burden means the total time, effort, or financial resources expended by
persons to generate, maintain, retain, disclose or provide information
to or for a Federal agency.  This includes the time needed to review
instructions; develop, acquire, install, and utilize technology and
systems for the purposes of collecting, validating, verifying,
processing, maintaining, disclosing and providing information; adjust
existing ways to comply with any previously applicable instructions and
requirements; train personnel to be able to respond to a collection of
information; search data sources; complete and review the collection of
information; and transmit or otherwise disclose the information. 

	An agency may not conduct or sponsor, and a person is not required to
respond to a collection of information, unless it displays a currently
valid OMB control number.  The OMB control numbers for EPA's regulations
in 40 CFR are listed in 40 CFR Part 9.

	To comment on the Agency's need for this information, the accuracy of
the provided burden estimates, and any suggested methods for minimizing
respondent burden, including the use of automated collection techniques,
EPA has established a public docket for this proposed rule, which
includes this ICR, under Docket ID number EPA-HQ-RCRA-2005-0017.  
Submit any comments related to the ICR for this proposed rule to EPA and
OMB.  See ‘Addresses’ section at the beginning of this notice for
where to submit comments to EPA.  Send comments to OMB at the Office of
Information and Regulatory Affairs, Office of Management and Budget, 725
17th Street, NW, Washington, DC 20503, Attention: Desk Office for EPA. 
Since OMB is required to make a decision concerning the ICR between 30
and 60 days after [Insert date of publication in the FEDERAL REGISTER],
a comment to OMB is best assured of having its full effect if OMB
receives it by [Insert date 30 days after publication in the FEDERAL
REGISTER].  The Agency will respond to any public comments on the
information collection requirements contained in this proposal in the
final rule.

     

III. Regulatory Flexibility Act

  SEQ CHAPTER \h \r 1 	The Regulatory Flexibility Act (RFA) as amended
by the Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA), 5 USC 601 et. seq., generally requires an agency to prepare a
regulatory flexibility analysis of any rule subject to notice and
comment rulemaking requirements under the Administrative Procedure Act,
or any other statute.  This analysis must be completed unless the agency
is able to certify that the rule will not have a significant economic
impact on a substantial number of small entities.  Small entities
include small businesses, small not-for-profit enterprises, and small
governmental jurisdictions.

  SEQ CHAPTER \h \r 1 The RFA provides default definitions for each type
of small entity.  Small entities are defined as: (1) a small business as
defined by the Small Business Administration’s (SBA) regulations at 13
CFR 121.201; (2) a small governmental jurisdiction that is a government
of a city, county, town, school district or special district with a
population of less than 50,000; and (3) a small organization that is any
not-for-profit enterprise which is independently owned and operated and
is not dominant in its field.

  SEQ CHAPTER \h \r 1 After considering the economic impacts of today's
proposal on small entities, I certify that this action will not have a
significant economic impact on a substantial number of small entities. 
In determining whether a rule has a significant economic impact on a
substantial number of small entities, the impact of concern is any
significant adverse economic impact on small entities, since the primary
purpose of the regulatory flexibility analyses is to identify and
address regulatory alternatives “which minimize any significant
economic impact of the rule on small entities.” 5 USC 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, as proposed, is projected to result in benefits in the form
of cost savings to facilities that use the exclusion.  As a result, the
rule would not result in adverse impacts for any small businesses that
generate ECF.  The reader is encouraged to review our regulatory
flexibility screening analysis prepared in support of this
determination.  This analysis is incorporated in the Assessment
document, which is available in the docket to today’s proposal.  We
continue to be interested in the potential impacts of the proposed rule
on small entities and welcome comments on issues related to such
impacts.

IV. Unfunded Mandates Reform Act of 1995

	Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L.
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, local, and tribal
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with "Federal mandates" that may
result in expenditures to State, local, and tribal governments, in the
aggregate, or to the private sector, of $100 million or more in any one
year. Before promulgating an EPA rule for which a written statement is
needed, section 205 of the UMRA generally requires EPA to identify and
consider a reasonable number of regulatory alternatives and adopt the
least costly, most cost-effective or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. In addition, before EPA establishes any
regulatory requirements that may significantly or uniquely affect small
governments, including tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, enabling
officials of affected small governments to have meaningful and timely
input in the development of EPA regulatory proposals with significant
Federal intergovernmental mandates, and informing, educating, and
advising small governments on compliance with the regulatory
requirements.

Today's proposal contains no Federal mandates (under the regulatory
provisions of Title II of the UMRA) for State, local, or tribal
governments or the private sector.  The UMRA generally excludes from the
definition of "Federal intergovernmental mandate" duties that arise from
participation in a voluntary federal program.  This rule, as proposed,
may be considered a voluntary program because the States are not
required to adopt these requirements. 

	In any event, EPA has determined that this rule, as proposed, does not
contain a Federal mandate that may result in expenditures of $100
million or more for State, local, and tribal governments, in the
aggregate, or the private sector in any one year.  The total net
benefits (cost savings) of this action are estimated to be $23 million
per year.   

	EPA has determined that this rule contains no regulatory requirements
that might significantly or uniquely affect small governments.  Small
governments are not affected by this action, as proposed.  

V.  Executive Order 13132: Federalism

	Executive Order 13132, entitled “Federalism” (64 FR 43255, August
10, 1999), requires EPA to develop an accountable process to ensure
“meaningful and timely input by State and local officials in the
development of regulatory policies that have federalism implications.”
 “Policies that have federalism implications” is defined in the
Executive Order to include regulations that have “substantial direct
effects on the States, on the relationship between the national
government and the States, or on the distribution of power and
responsibilities among the various levels of government.”  

	This proposed rule does not have federalism implications.  It will not
have substantial direct effects on the States, on the relationship
between the national government and the States, or on the distribution
of power and responsibilities among the various levels of government, as
specified in Executive Order 13132.  The proposed rule focuses on
modified requirements for facilities generating ECF, without affecting
the relationships between Federal and State governments.  Thus,
Executive Order 13132 does not apply to this rule.   

	Although section 6 of Executive Order 13132 does not apply to this
proposed rule, EPA did consult with representatives of state governments
in developing it.  Representatives from the States of North Carolina,
Georgia, Missouri, Louisiana, and Oregon provided valuable input and
review.

	In the spirit of Executive Order 13132, and consistent with EPA policy
to promote communications between EPA and State and local governments,
EPA specifically solicits comment on this proposed rule from State and
local officials. 

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

	Executive Order 13175, entitled “Consultation and Coordination with
Indian Tribal Governments” (65 FR 67249, November 9, 2000), requires
EPA to develop an accountable process to ensure “meaningful and timely
input by tribal officials in the development of regulatory policies that
have tribal implications.”  This proposed rule does not have tribal
implications, as specified in Executive Order 13175.  No Tribal
governments are known to own or operate hazardous waste generating
facilities that generate ECF subject to this proposal.  Thus, Executive
Order 13175 does not apply to this proposed rule.  

VII.  EO 13045 “Protection of Children from Environmental Health Risks
and Safety Risks”

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

	EPA interprets EO 13045 as applying only to those regulatory actions
that concern health or safety risks, such that the analysis required
under section 5-501 of the EO has the potential to influence the
regulation.  This proposed rule is not subject to EO 13045 because it
does not establish an environmental standard intended to mitigate health
or safety risks.

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

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

This rule is not a “significant energy action” as defined in
Executive Order 13211, “Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355
(May 22, 2001)) because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy.

This rule, as proposed, will not seriously disrupt energy supply,
distribution patterns, prices, imports or exports.  Furthermore, this
proposed rule is designed to improve economic efficiency by expanding
the use of ECF.

IX. National Technology Transfer Advancement Act

  SEQ CHAPTER \h \r 1   SEQ CHAPTER \h \r 1 	Section 12(d) of the
National Technology Transfer and Advancement Act of 1995 (“NTTAA”),
Public Law No. 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use
voluntary consensus standards in its regulatory activities unless to do
so would be inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, and business
practices) that are developed or adopted by voluntary consensus
standards bodies. The NTTAA directs EPA to provide Congress, through
OMB, explanations when the Agency decides not to use available and
applicable voluntary consensus standards.

	This proposed rulemaking involves environmental monitoring or
measurement. Consistent with the Agency’s Performance Based
Measurement System (“PBMS”), EPA proposes not to require the use of
specific, prescribed analytic methods. Rather, the Agency plans to allow
the use of any method that meets the prescribed performance criteria.
The PBMS approach is intended to be more flexible and cost-effective for
the regulated community; it is also intended to encourage innovation in
analytical technology and improved data quality. EPA is not precluding
the use of any method, whether it constitutes a voluntary consensus
standard or not, as long as it meets the performance criteria specified.

	EPA welcomes comments on this aspect of the proposed rulemaking and,
specifically, invites the public to identify potentially-applicable
voluntary consensus standards and to explain why such standards should
be used in this regulation.

X.    SEQ CHAPTER \h \r 1 Executive Order 12898:  Federal Actions to
Address Environmental Justice in Minority Populations and Low-Income
Populations.

	Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes
federal executive policy on environmental justice.  Its main provision
directs federal agencies, to the greatest extent practicable and
permitted by law, to make environmental justice part of their mission by
identifying and addressing, as appropriate, disproportionately high and
adverse human health or environmental effects of their programs,
policies, and activities on minority populations and low-income
populations in the United States.  

	EPA has determined that this proposed rule will not have
disproportionately high and adverse human health or environmental
effects on minority or low-income populations because it does not affect
the level of protection provided to human health or the environment. 
This proposal is designed to allow for the use of waste as fuel under
emission comparable standards, resulting in no increased risk to human
health and the environment, when compared to the burning of fossil
fuels.

List of Subject in 40 CFR part 261

	Hazardous waste, Recycling, Reporting and recordkeeping requirements.

                                                                        
                                                              	

Stephen L. Johnson,						Dated:			

Administrator

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

PART 261—IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

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

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

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

§ 261.4 Exclusions.

(a) * * *

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

* * * * *

3. Section 261.38 is amended to read as follows:

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

(a) Specifications for excluded fuels.  Wastes that meet the
specifications for comparable fuel, emission-comparable fuel, or syngas
fuel under paragraphs (a)(1), (a)(2), or (a)(3) of this section,
respectively, and the other requirements of this section, are not solid
wastes.

(1) Comparable fuel specifications. .—(i) Physical
specifications.—(A) Heating value.  The heating value must exceed
5,000 BTU/lbs. (11,500 J/g).

(B) Viscosity.  The viscosity must not exceed: 50 cs, as-fired.

(ii) Constituent specifications. For compounds listed in table 1 to this
section the specification levels and, where non-detect is the
specification, minimum required detection limits are: (see Table 1).

(2) Emission-comparable fuel specifications--(i) Physical
specifications.—(A) Heating value.  The heating value must exceed
5,000 BTU/lbs (11,500 J/g).

(B) Viscosity.  The viscosity must not exceed 50 cSt, as-fired.

(ii) Constituent specifications—(A) Except as provided by paragraph
(a)(2)(ii)(B) of this section, for compounds listed in table 1 to this
section the specification levels and, where nondetect is the
specification, minimum required detection limits are:  (see Table 1).

(B) Waived specifications.  The specification levels in Table 1 to this
section are waived for the following hydrocarbons and oxygenates under
the special conditions provided under this section for
emission-comparable fuel:  

(1) Benzene (CAS No. 71-43-2)

(2) Toluene (CAS No. 108-88-3)

(3) Acetophenone (CAS No. 98-86-2)

(4) Acrolein (CAS No. 107-02-8)

(5) Allyl alcohol (CAS No. 107-18-6)

(6) Bis(2-ethylhexyl)phthalate [Di-2-e thylhexyl phthalate] (CAS
No.117-81-7)

(7) Butyl benzyl phthalate (CAS No. 85-68-7)

(8) o-Cresol [2-Methyl phenol] (CAS No. 95-48-7)

(9) m-Cresol [3-Methyl phenol] (CAS No. 108-39-4)

(10) p-Cresol [4-Methyl phenol] (CAS No.106-44-5)

(11) Di-n-butyl phthalate (CAS No. 84-74-2)

(12) Diethyl phthalate (CAS No. 84-66-2)

(13) 2,4-Dimethylphenol (CAS No. 105-67-9)

(14) Dimethyl phthalate (CAS No. 131-11-3)

(15) Di-n-octyl phthalate (CAS No. 117-84-0)

(16) Endothall (CAS No. 145-73-3)

(17) Ethyl methacrylate (CAS No. 97-63-2)

(18) 2-Ethoxyethanol [Ethylene glycol monoethyl ether] (CAS No.
110-80-5)

(19) Isobutyl alcohol (CAS No. 78-83-1)

(20) Isosafrole (CAS No. 120-58-1)

(21) Methyl ethyl ketone [2-Butanone] (CAS No. 78-93-3)

(22) Methyl methacrylate (CAS No. 80-62-6)

(23) 1,4-Naphthoquinone (CAS No. 130-15-4)

(24) Phenol (CAS No. 108-95-2)

(25) Propargyl alcohol [2-Propyn-1-ol] (CAS No. 107-19-7)

(26) Safrole (CAS No. 94-59-7); or

(3) Synthesis gas fuel specifications. —Synthesis gas fuel (i.e.,
syngas fuel) that is generated from hazardous waste must:

(i) Have a minimum Btu value of 100 Btu/Scf;

(ii) Contain less than 1 ppmv of total halogen;

(iii) Contain less than 300 ppmv of total nitrogen other than diatomic
nitrogen (N2);

(iv) Contain less than 200 ppmv of hydrogen sulfide; and

(v) Contain less than 1 ppmv of each hazardous constituent in the target
list of appendix VIII constituents of this part.

(4) Blending to meet the specifications for comparable fuel or
emission-comparable fuel.  Hazardous waste shall not be blended to meet
the specification under paragraphs (a)(1) or (a)(2) of this section,
except as follows:

(i) Blending to meet the viscosity specification.  A hazardous waste
blended to meet the viscosity specification for comparable fuel or
emission-comparable fuel shall:

(A) As generated and prior to any blending, manipulation, or processing,
meet the constituent and heating value specifications of paragraphs
(a)(1)(i)(A) and (a)(1)(ii) of this section for comparable fuel, and,
for emission-comparable fuel, the specifications of paragraphs
(a)(2)(i)(A) and (a)(2)(ii) of this section;

(B) Be blended at a facility that is subject to the applicable
requirements of parts 264 and 265, or §262.34 of this chapter; and

(C) Not violate the dilution prohibition of paragraph (a)(7) of this
section.

(ii) Blending emission-comparable fuel to meet the 8,000 Btu/lb,
as-fired condition.  Emission-comparable fuel may be blended with other
fuels to meet the 8,000 Btu/lb, as-fired, condition of paragraph
(c)(2)(ii)(B) of this section.

(5) Treatment to meet the comparable fuel or emission-comparable fuel
specifications.  (i) A hazardous waste may be treated to meet the
specifications of paragraphs (a)(1) or (a)(2) of this section provided
the treatment:

(A) Destroys or removes the constituent listed in the specification or
raises the heating value by removing or destroying hazardous
constituents or materials;

(B) Is performed at a facility that is subject to the applicable
requirements of parts 264 and 265, or §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 §262.34 of this chapter or is an
exempt recycling unit pursuant to §261.6(c); and

(C) Does not violate the dilution prohibition of paragraph (a)(7) of
this section.

(ii) Residuals resulting from the treatment of a hazardous waste listed
in subpart D of this part to generate a syngas fuel remain a hazardous
waste.

(7) Dilution prohibition for comparable fuel, emission-comparable fuel,
and syngas fuel.  No generator, transporter, handler, or owner or
operator of a treatment, storage, or disposal facility shall in any way
dilute a hazardous waste to meet the specifications of paragraphs
(a)(1)(i)(A) or (a)(1)(ii) of this section for comparable fuel, or
(a)(2)(i)(A) and (a)(2)(ii) of this section for emission-comparable
fuel, or (a)(3) of this section for syngas. 

(b) Implementation.--(1) General.--(i) Wastes that meet the
specifications provided by paragraph (a) of this section for comparable
fuel, emission-comparable fuel, or syngas fuel are excluded from the
definition of solid waste provided that the conditions under this
section are met.  For purposes of this section, such wastes are called
excluded fuel, and the person claiming and qualifying for the exclusion
is called the excluded fuel generator and the person burning the
excluded fuel is called the excluded fuel burner.  

(ii) The person who generates the excluded fuel must claim the exclusion
by compliance with the conditions of this section and keep records
necessary to document compliance with those conditions.

(2) Notices.  (i) Notices to state RCRA and CAA Directors in authorized
states or regional RCRA and CAA Directors in unauthorized states.—The
generator must submit a one-time notice to the Regional or State RCRA
and CAA Directors, in whose jurisdiction the exclusion is being claimed
and where the excluded fuel will be burned, certifying compliance with
the conditions of the exclusion and providing the following
documentation:

(A) The name, address, and RCRA ID number of the person/facility
claiming the exclusion;

(B) The applicable EPA Hazardous Waste Codes for the hazardous waste;

(C) The name and address of the units meeting the requirements of
paragraphs (b)(3) and (c) of this section, that will burn the excluded
fuel; 

(D) An estimate of the average and maximum monthly and annual quantity
of waste for which an exclusion would be claimed; and

(E) The following statement, which shall be signed and submitted by the
person claiming the exclusion or his authorized representative:

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

(ii) Public notice. Prior to burning an excluded fuel, the burner must
publish in a major newspaper of general circulation local to the site
where the fuel will be burned, a notice entitled “Notification of
Burning a Fuel Excluded Under the Resource Conservation and Recovery
Act” and containing the following information:

(A) Name, address, and RCRA ID number of the generating facility(ies);

(B) Name and address of the burner and identification of the unit(s)
that will burn the excluded fuel;

(C) A brief, general description of the manufacturing, treatment, or
other process generating the excluded fuel;

(D) An estimate of the average and maximum monthly and annual quantity
of the excluded waste to be burned; and

(E) Name and mailing address of the Regional or State Directors to whom
the generator submitted a claim for exclusion.

(3) Burning.  (i) Comparable fuel and syngas fuel.  The exclusion for
fuels meeting the specifications under paragraphs (a)(1) or (a)(3) of
this section applies only if the fuel is burned in the following units
that also shall be subject to Federal/State/local air emission
requirements, including all applicable CAA MACT requirements:

(A) Industrial furnaces as defined in §260.10 of this chapter;

(B) Boilers, as defined in §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) applies only if the fuel is burned
under the conditions provided by paragraph (c) of this section.

(4) Waste analysis plan for generators.  The generator of an excluded
fuel shall develop and follow a written waste analysis plan which
describes the procedures for sampling and analysis of the hazardous
waste to be excluded.  The plan shall be followed and retained at the
facility excluding the waste. 

(i) At a minimum, the plan must specify:

(A) The parameters for which each hazardous waste will be analyzed and
the rationale for the selection of those parameters;

(B) The test methods which will be used to test for these parameters;

(C) The sampling method which will be used to obtain a representative
sample of the waste to be analyzed;

(D) The frequency with which the initial analysis of the waste will be
reviewed or repeated to ensure that the analysis is accurate and up to
date; and

(E) If process knowledge is used in the waste determination, any
information prepared by the generator in making such determination.

(ii) For each analysis, the generator shall document the following:

(A) The dates and times that samples were obtained, and the dates the
samples were analyzed;

(B) The names and qualifications of the person(s) who obtained the
samples;

(C) A description of the temporal and spatial locations of the samples;

(D) The name and address of the laboratory facility at which analyses of
the samples were performed;

(E) A description of the analytical methods used, including any clean-up
and sample preparation methods;

(F) All quantitation limits achieved and all other quality control
results for the analysis (including method blanks, duplicate analyses,
matrix spikes, etc.), laboratory quality assurance data, and the
description of any deviations from analytical methods written in the
plan or from any other activity written in the plan which occurred;

(G) All laboratory results demonstrating whether the exclusion
specifications have been met for the waste; and

(H) All laboratory documentation that support the analytical results,
unless a contract between the claimant and the laboratory provides for
the documentation to be maintained by the laboratory for the period
specified in paragraph (b)(7) of this section and also provides for the
availability of the documentation to the claimant upon request.

(iii) Syngas fuel generators shall submit for approval, prior to
performing sampling, analysis, or any management of a syngas fuel as an
excluded waste, a waste analysis plan containing the elements of
paragraph (b)(3)(i) of this section to the appropriate regulatory
authority.  The approval of waste analysis plans must be stated in
writing and received by the facility prior to sampling and analysis to
demonstrate the exclusion of a syngas.  The approval of the waste
analysis plan may contain such provisions and conditions as the
regulatory authority deems appropriate.

(5) Analysis plans for burners of emission-comparable fuel.  An
emission-comparable fuel burner is subject to the waste analysis plan
requirements under paragraph (b)(4) of this section to determine the
heating value of the fuel and the benzene and acrolein concentration of
the fuel if:

(i) The burner has not received information from the generator for each
shipment documenting the heating value of the fuel and the concentration
of benzene and acrolein;

(ii) The burner blends or otherwise treats emission-comparable fuel to
achieve the 8,000 Btu/lb, as-fired criterion under paragraph
(c)(2)(ii)(B) of this section; or

(iii) The burner blends or otherwise treats emission-comparable fuel to
achieve a concentration of benzene or acrolein of two percent or less,
as-fired, to avoid the emission-comparable fuel firing rate restrictions
of paragraph (c)(2)(ii)(I) of this section.

(6) Excluded fuel sampling and analysis. (i) General.  For each waste
(and syngas) for which an exclusion is claimed under the specifications
provided by paragraphs (a)(1), (a)(2), or (a)(3) of this section, the
generator of the hazardous waste/syngas must test for all the
constituents in appendix VIII to this part, except those that the
generator determines, based on testing or knowledge, should not be
present in the waste/syngas, and, for emission-comparable fuel, except
for the compounds listed in paragraph (a)(2)(ii)(B) of this section. 
The generator is required to document the basis of each determination
that a constituent with an applicable specification should not be
present.  The generator may not determine that any of the following
categories of constituents with an applicable specification should not
be present:

(A) A constituent that triggered the toxicity characteristic for the
waste constituents that were the basis of the listing of the waste
stream, or constituents for which there is a treatment standard for the
waste code in 40 CFR 268.40;

(B) A constituent detected in previous analysis of the waste/syngas;

(C) Constituents introduced into the process that generates the
waste/syngas; or

(D) Constituents that are byproducts or side reactions to the process
that generates the waste/syngas.

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

(ii) For each waste for which the exclusion is claimed where the
generator of the excluded fuel is not the original generator of the
hazardous waste, the generator of the excluded fuel may not use process
knowledge pursuant to paragraph (b)(6)(i) of this section and must test
to determine that all of the constituent specifications of paragraphs
(a)(1) and (a)(2) of this section, as applicable, have been met.

(iii) The excluded fuel generator may use any reliable analytical method
to demonstrate that no constituent of concern is present at
concentrations above the specification levels.  It is the responsibility
of the generator to ensure that the sampling and analysis are unbiased,
precise, and representative of the waste/syngas.  For the waste/syngas
to be eligible for exclusion, a generator must demonstrate that:

(A) The 95% upper confidence limit of the mean concentration for each
constituent of concern is not above the specification level; and

(B) The analyses could have detected the presence of the constituent at
or below the specification level.

(iv) Nothing in this paragraph preempts, overrides or otherwise negates
the provision in §262.11 of this chapter, which requires any person who
generates a solid waste to determine if that waste is a hazardous waste.

(v) In an enforcement action, the burden of proof to establish
conformance with the exclusion specification shall be on the generator
claiming the exclusion.

(vi) The generator must conduct sampling and analysis in accordance with
the waste analysis plan developed under paragraph (b)(4) of this
section.

(vii) Excluded fuel that has not been blended to meet the kinematic
viscosity specification shall be analyzed as generated.

(viii) If hazardous waste is blended to meet the kinematic viscosity
specification, the generator shall:

(A) Analyze the waste as generated to ensure that it meets the
constituent and heating value specifications, except that emission
comparable fuel need not meet the 8,000 Btu/lb, as-fired, heating value
criterion of paragraph (a)(2)(i)(A); and

(B) After blending, analyze the fuel again to ensure that the blended
fuel continues to meet all excluded fuel specifications.

(ix) Excluded fuel must be re-tested, at a minimum, annually and must be
retested after a process change that could change the chemical or
physical properties of the waste.

(x) If an emission-comparable fuel burner has not received information
from the generator for each shipment documenting the heating value of
the fuel and the concentration of benzene and acrolein, the burner must
sample and analyze the fuel to determine the heating value and the
concentration of benzene and acrolein.

(xi) If a burner blends or treats emission-comparable fuel to achieve an
as-fired heating value of 8,000 Btu/lb or greater or an as-fired
concentration of benzene or acrolein of two percent or lower, the burner
shall determine the heating value, benzene concentration, or acrolein
concentration, as relevant, by analysis or information from the
generator prior to blending and must analyze the fuel after blending or
treatment to determine the heating value, benzene concentration, or
acrolein concentration, as relevant.

(7) Speculative accumulation.  Excluded Emission comparable fuel must
not be accumulated speculatively, as defined in §261.1(c)(8).  

(8) Records.  The generator must maintain records of the following
information on-site:

(i) All information required to be submitted to the implementing
authority as part of the notification of the claim:

(A) The owner/operator name, address, and RCRA facility ID number of the
person claiming the exclusion;

(B) The applicable EPA Hazardous Waste Codes for each hazardous waste
excluded as a fuel; and

(C) The certification signed by the person claiming the exclusion or his
authorized representative.

(ii) A brief description of the process that generated the hazardous
waste and process that generated the excluded fuel, if not the same;

(iii) The monthly and annual quantities of each waste claimed to be
excluded;

(iv) Documentation for any claim that a constituent is not present in
the hazardous waste as required under paragraph (b)(6) of this section;

(v) The results of all analyses and all detection limits achieved as
required under paragraph (b)(4) of this section;

(vi) If the excluded waste was generated through treatment or blending,
documentation of compliance with the applicable provisions of paragraphs
(a)(4) and (a)(5) of this section;

(vii) If the waste is to be shipped off-site, a certification from the
burner as required under paragraph (b)(10) of this section;

(viii) The waste analysis plan and documentation of all sampling and
analysis results as required by paragraph (b)(4) of this section; and

(ix) If the generator ships excluded fuel off-site for burning, the
generator must retain for each shipment the following information
on-site:

(A) The name and address of the facility receiving the excluded fuel for
burning;

(B) The quantity of excluded fuel shipped and delivered;

(C) The date of shipment or delivery;

(D) A cross-reference to the record of excluded fuel analysis or other
information used to make the determination that the excluded fuel meets
the specifications as required under paragraph (b)(4) of this section;
and

(E) A one-time certification by the burner as required under paragraph
(b)(10) of this section.

(9) Records retention.  Records must be maintained for a period of three
years.  

(10) Burner certification—(i) Comparable fuel and syngas fuel.  Prior
to submitting a notification to the State and Regional Directors, a
generator of comparable fuel or syngas fuel excluded under paragraphs
(a)(1) or (a)(3) of this section who intends to ship the excluded fuel
off-site for burning must obtain a one-time written, signed statement
from the burner:

(A) Certifying that the excluded fuel will only be burned in an
industrial furnace, industrial boiler, utility boiler, or hazardous
waste incinerator, as required under paragraph (b)(3) of this section;

(B) Identifying the name and address of the facility that will burn the
excluded fuel; and

(C) Certifying that the state in which the burner is located is
authorized to exclude wastes as excluded fuel under the provisions of
this section.

(ii)  Emission-comparable fuel.  Prior to submitting a notification to
the State and Regional Directors, a generator of emission-comparable
fuel who intends to ship the excluded fuel off-site for burning must
obtain a one-time written, signed statement from the burner:

(A) Certifying that the excluded fuel will be stored under the
conditions of paragraph (c)(1) of this section and burned in a boiler
under the conditions of paragraph (c)(2) of this section, and that the
burner will comply with the notification, reporting, and recordkeeping
conditions of paragraph (c)(4) of this section;

(B) Identifying the name and address of the facility that will burn the
excluded fuel; and

(C) Certifying that the state in which the burner is located is
authorized to exclude wastes as excluded fuel under the provisions of
this section.

(11) Ineligible waste codes.  Wastes that are listed because of presence
of dioxins or furans, as set out in Appendix VII of this part, are not
eligible for this exclusion, and any fuel produced from or otherwise
containing these wastes remains a hazardous waste subject to full RCRA
hazardous waste management requirements.

(12) Regulatory status of boiler residues.  Burning excluded fuel that
was derived from a hazardous waste listed under §§261.31-261.33 does
not subject boiler residues, including bottom ash and emission control
residues, to regulation as derived-from hazardous waste.

(13) Residues in containers and tank systems upon cessation of
operations.  (i) Liquid and accumulated solid residues that remain in a
container or tank system for more than 90 days after the container or
tank system ceases to be operated for storage or transport of excluded
fuel product are subject to regulation under parts 262 through 265, 268,
270, 271, and 124 of this chapter.

(ii) Liquid and accumulated solid residues that are removed from a
container or tank system after the container or tank system ceases to be
operated for storage or transport of excluded fuel product are solid
wastes subject to regulation as hazardous waste if the waste exhibits a
characteristic of hazardous waste under §§261.21-261.24 or if the
emission-comparable fuel was derived from a hazardous waste listed under
§§261.31-261.33 when the exclusion was claimed.

(14) Waiver of RCRA Closure Requirements.  Interim status and permitted
storage units, and generator storage units exempt from the permit
requirements under §262.34 of this chapter, are not subject to the
closure requirements of 40 CFR Parts 264 and 265 provided that the
storage units have been used to store only hazardous waste that is
subsequently excluded under the conditions of this section, and that
afterward will be used only to store fuel excluded under this section. 

(15) Spills and leaks. Excluded fuel that is spilled or leaked and that
therefore no longer meets the conditions of the exclusion is discarded
and must be managed as a hazardous waste if it exhibits a characteristic
of hazardous waste under §§261.21-261.24 or if it was derived from a
hazardous waste listed in §§261.31-261.33 when the exclusion was
claimed.

(B) Nothing in this section preempts, overrides, or otherwise negates
the provisions in CERCLA Section 103, which establish reporting
obligations for releases of hazardous substances, or the Department of
Transportation requirements for hazardous materials in 49 CFR parts 171
through 180.

(c) Special conditions for emission-comparable fuel.  The following
additional conditions apply to emission-comparable fuel—fuel that
meets the specifications under paragraph (a)(2) of this section.

(1) Storage.  (i)  General.  Emission-comparable fuel may be stored in a
tank, tank car, or tank truck only.  

(ii) Applicability.  Emission-comparable fuel tank systems that are not
subject to the hazardous substance underground storage tank requirements
under §280.42(b) of this chapter are subject to the conditions of this
paragraph.

(iii) Spill prevention, control, and countermeasures (SPCC)
requirements.  Emission-comparable fuel tank systems with a capacity
greater than 55 gallons and that are not subject to 40 CFR Part 280
(Standards for Underground Storage Tanks) are subject to the following
SPCC requirements adopted from 40 CFR Part 112.  You must comply with
the adopted conditions by substituting the term “emission-comparable
fuel” for the term “oil,” and by substituting the term “release
of emission-comparable fuel to the environment” for the term
“discharge as described in §112.1(b).”

(A) Section 112.2, Definitions.  These definitions apply to the adopted
SPCC requirements under paragraph (c)(1)(iii)(B-D) of this section.

(B) Sections 112.3(d) and 112.3(e), Requirement to Prepare and Implement
a Spill Prevention, Control, and Countermeasure Plan.  (1) You must
prepare a Spill Prevention, Control, and Countermeasure Plan in writing,
and in accordance with the adopted provisions of §§112.7 and 112.8; 

(2) The SPCC Plan must be reviewed and certified according to the
provisions of §112.3(d) and must be made available to the Regional
Administrator according to the provisions of §112.3(e);  

(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), Amendment of Spill Prevention,
Control, and Countermeasures Plan by Owners or Operators. (1) You must
comply with the provisions of §§112.5(a) and 112.5(b) by substituting
the term “release of emission-comparable fuel to the environment”
for the term “discharge as described in §112.1(b);”

(2) You must have a Professional Engineer certify any technical
amendment to your Plan in accordance with §112.3(d).

(D) Section 112.7, General Requirements for Spill Prevention, Control,
and Countermeasure Plans. (1) You must comply with the requirements of
this section, except for paragraphs (a)(2) (deviations from
requirements), (c) (secondary containment), (d) (waiver of secondary
containment), and (k) (qualified oil-filled operational equipment);

(2) Your Plan may deviate from the requirements in paragraphs (g),
(h)(2) and (3), and (i) of §112.7 and the adopted provisions of
§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 paragraphs (g), (h)(2) and (3), and (i) of §112.7 and
the adopted provisions of §112.8, 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, Spill Prevention, Control, and Countermeasure Plan
Requirements for Onshore Facilities, except for paragraph (b) (facility
drainage), paragraph (c)(2) (secondary containment for bulk storage
containers), and paragraph (c)(11) (secondary containment for mobile
containers).  In addition, §112.8(d)(1) applies to all buried piping
irrespective of the installation or replacement date.

(iv) Containment and detection of releases--To prevent the release of
emission comparable fuel or hazardous constituents to the environment,
you must provide secondary containment for emission-comparable fuel tank
systems as prescribed by the following requirements adopted from
§264.193 of this chapter.  You must comply with the adopted conditions
by substituting the term “emission-comparable fuel” for the term
“waste,” and by substituting the term “document in the record”
for the term “demonstrate to the Regional Administrator.”

(A) Section 264.193(b), which prescribes general performance standards
for secondary containment systems;

(B) Section 264.193(c), which prescribes minimum requirements for
secondary containment systems;

(C) Section 264.193(d)(1-3), which prescribe permissible secondary
containment devices;

(D) Section 264.193(e), which prescribes design and operating
requirements for the permissible secondary containment devices; and 

(E) Section 264.193(f), which prescribes secondary containment
requirements for ancillary equipment.

(v) Preparedness and prevention, emergency procedures and response to
releases.--(A) Preparedness and prevention.—(1) Required equipment.
Your facility must be equipped with the equipment required under
§§264.32(a-d) of this chapter in a manner that it can be used in
emergencies associated with storing and handling emission-comparable
fuel.

(2) Testing and maintenance of equipment.  You must test and maintain as
necessary to assure proper operation in times of emergency all
communications or alarm systems, fire protection equipment, spill
control equipment, and decontamination equipment required for your
emission-comparable fuel tank system.

(3) Access to communications or alarm system.  Whenever emission
comparable fuel is distributed into or out of the tank system, all
personnel involved in the operation must have immediate access to an
internal alarm or emergency communication device, either directly or
through visual or voice contact with another employee.

(4) Arrangements with local authorities.  You must comply with
§264.37(a) of this chapter.  If State or local authorities decline to
enter into the arrangements prescribed by §264.37(a), you must keep a
record documenting the refusal.

(B) Emergency procedures.--(1) Emergency coordinator.  At all times,
there must be at least one employee either on the facility premises or
on call (i.e., available to respond to an emergency by reaching the
facility within a short period of time) with the responsibility for
coordinating all emergency response measures.  This emergency
coordinator must be thoroughly familiar with all aspects of the
facility's Spill Prevention, Control, and Countermeasures (SPCC) Plan
required under paragraph (c)(1)(iii) of this section, all
emission-comparable fuel operations and activities at the facility, the
location and characteristics of emission-comparable fuel handled, the
location of all records within the facility pertaining to
emission-comparable fuel, and the facility layout.  In addition, this
person must have the authority to commit the resources needed to carry
out the SPCC Plan.

(2) Emergency procedures.--(i) Whenever there is an imminent or actual
emergency situation relating to the emission-comparable fuel tank
system, the emergency coordinator (or his designee when the emergency
coordinator is on call) must immediately activate internal facility
alarms or communication systems, where applicable, to notify all
facility personnel and notify appropriate State or local agencies with
designated response roles if their help is needed.

(ii) Whenever there is a release, fire, or explosion relating to the
emission-comparable fuel tank system, the emergency coordinator must
immediately identify the character, exact source, amount, and aerial
extent of any released materials.  He may do this by observation or
review of facility records, and, if necessary, by chemical analysis.

(iii) Concurrently, the emergency coordinator must assess possible
hazards to human health or the environment that may result from the
release, fire, or explosion.  This assessment must consider both direct
and indirect effects of the release, fire, or explosion (e.g., the
effects of any toxic, irritating, or asphyxiating gases that are
generated, or the effects of any hazardous surface water run-off from
water or chemical agents used to control fire and heat-induced
explosions).

(iv) If the emergency coordinator determines that the facility has had a
release, fire, or explosion associated with the emission-comparable fuel
tank system which could threaten human health, or the environment
outside the facility, he must report his findings as provided by
paragraph (c)(1)(v)(B)(2)(v) of this section.

(v) If the emergency coordinator’s assessment indicates that
evacuation of local areas may be advisable, he must immediately notify
appropriate local authorities.  He must be available to help appropriate
officials decide whether local areas should be evacuated, and he must
immediately notify either the government official designated as the
on-scene coordinator for that geographical area, (in the applicable
regional contingency plan under part 1510 of this title) or the National
Response Center (using their 24-hour toll free number 800/424–8802). 
The report must include:  the name and telephone number of reporter; the
name and address of facility; the time and type of incident (e.g.,
release, fire); the name and quantity of material(s) involved, to the
extent known; the extent of injuries, if any; and the possible hazards
to human health, or the environment, outside the facility.

(vi) During an emergency, the emergency coordinator must take all
reasonable measures necessary to ensure that fires, explosions, and
releases do not occur, recur, or spread to other materials at the
facility.  These measures must include, where applicable, stopping
processes and operations and collecting and containing released
emission-comparable fuel.

(vii) If the emission-comparable fuel tank system stops operations in
response to a fire, explosion, or release, the emergency coordinator
must monitor for leaks, pressure buildup, gas generation, or ruptures in
valves, pipes, or other equipment, wherever this is appropriate.

(viii) Immediately after an emergency, the emergency coordinator must
provide for treating, storing, or disposing of recovered
emission-comparable fuel, contaminated soil or surface water, or any
other material that results from a release, fire, or explosion at the
facility.

[Comment:  Emission-comparable fuel that is released from the tank
system must generally be managed as hazardous waste.  See
§261.38(b)(15).]

(ix) The emergency coordinator must ensure that, in the affected area(s)
of the facility:  materials that may be incompatible with the released
emission-comparable fuel is treated, stored, or disposed of until
cleanup procedures are completed; and all emergency equipment listed in
the SPCC Plan is cleaned and fit for its intended use before operations
are resumed.

(x) You must note in the record the time, date, and details of any
incident that requires implementing the SPCC Plan for the
emission-comparable fuel tank system.  Within 15 days after the
incident, you must submit a written report on the incident to the
Regional Administrator.  The report must include:  the name, address,
and telephone number of the owner or operator; the name, address, and
telephone number of the facility; the date, time, and type of incident
(e.g., fire, explosion); the name and quantity of material(s) involved;
the extent of injuries, if any; an assessment of actual or potential
hazards to human health or the environment, where this is applicable;
and the estimated quantity and disposition of recovered material that
resulted from the incident.

(C) Response to leaks or spills and disposition of leaking or
unfit-for-use tank systems.  (1) You must comply with the provisions of
§264.196 of this chapter, except for §§264.196(e)(1) and (e)(4).

(2) To comply with the adopted provisions of §264.196, you must
substitute the term “emission-comparable fuel” for the terms
“hazardous waste” and “waste;” and the term “record” for the
term “operating record,” and

(3) Unless you satisfy the requirements of §§264.196(e)(2) and (3),
you must close the emission-comparable fuel tank system.

(vi) Air emissions.--(A) Applicability—(1) If your emission-comparable
fuel storage tank or transfer rack is not subject to the controls
provided by §63.2346 of this chapter, you must comply with the
provisions of paragraphs (c)(1)(ii)(D)(2-3) of this section:

(2) If your emission-comparable fuel storage tank is subject to the
controls provided by §63.2346 of this chapter other than those
prescribed by item 6 in Table 2 to subpart EEEE, part 63 of this chapter
(i.e., requirements for organic liquids with an annual average true
vapor pressure of the total listed organic HAP >=76.6 kilopascals (11.1
psia)), you must determine whether the tank would be subject to the
controls prescribed by item 6 after considering the vapor pressure of
the RCRA oxygenates listed in paragraph (c)(1)(vi)(B)(3) of this section
as well as the organic HAP listed in Table 1 to subpart EEEE, part 63 of
this chapter.  If the annual average true vapor pressure of the total
RCRA oxygenates and Table 1 organic HAP in the emission-comparable fuel
is >=76.6 kilopascals (11.1 psia), you are subject to the requirements
of paragraphs (c)(1)(vi)(B-C) of this section.

(B) Conditions of applicability.  When complying with the conditions
under paragraph (c)(1)(vi)(C) of this section, you must:

(1) Comply with the conditions irrespective of whether your facility is
an area source as defined by §63.2 of this chapter

(2) Comply with the conditions by substituting the term “RCRA
oxygenates as well as organic HAP” for each occurrence of the term
“organic HAP;” the term “RCRA oxygenates as well as organic HAP
listed in Table 1” for each occurrence of the term “organic HAP
listed in Table 1;” and the term “RCRA oxygenates as well as Table 1
organic HAP” for each occurrence of the term “Table 1 organic
HAP.”  

(3) Comply with the conditions using the following definition of RCRA
oxygenates:  The term “RCRA oxygenates” means the following organic
compounds:

(i) Allyl alcohol (CAS No. 107-18-6);

(ii) Bis(2-ethylhexyl)phthalate [Di-2-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) Comply with the conditions using the following definition of organic
liquid.  Organic liquid means emission comparable fuel that:

(i) Contains 5 percent by weight or greater of the RCRA oxygenates as
well as organic HAP listed in Table 1 to this subpart, as determined
using the procedures specified in §63.2354(c); and

(ii) Has an annual average true vapor pressure of 0.7 kilopascals (0.1
psia) or greater.

(5) Comply with the conditions using the following definition of
affected source.  Affected source means the collection of activities and
equipment used to distribute emission-comparable fuel into, out of, or
within a facility.

(6) Comply with the conditions by substituting the term “subject to
§261.38(c)(1)(vi)(C)of this chapter” for the term “subject to this
subpart.”

(7) Comply with the storage tank controls in Table 2 to subpart EEEE,
part 63 as follows:  

(i) If your tank has a capacity less than 18.9 cubic meters (5,000
gallons) and the annual average true vapor pressure of the total RCRA
oxygenates and Table 1 organic HAP in the stored organic liquid is
>=76.6 kilopascals (11.1 psia), you must comply with the requirements
under item 1 of Table 2 to subpart EEEE, part 63, for existing sources
or item 3 of that table for reconstructed or new sources; and

(ii) If your existing source tank has a capacity identified in item 1 of
Table 2 to subpart EEEE, part 63, you must comply with the requirements
of item 1.a.i or 1.a.ii of that table if the annual average true vapor
pressure of the total RCRA oxygenates and Table 1 organic HAP in the
stored organic liquid is >=5.2 kilopascals (0.75 psia) and <76.6
kilopascals (11.1 psia);

(8) Comply with the conditions if:

(i) Your tank or transfer rack is exempt from subpart EEEE, part 63, of
this chapter under the provisions of §63.228(c)(1) of this chapter,
which exempts tanks at facilities subject to a NESHAP other than subpart
EEEE, part 63; and

(ii) The requirements applicable to the tank or transfer rank under the
other NESHAP are not equivalent to, at a minimum, the conditions under
paragraph (c)(1)(vi)(C) of this section.  You must document and record
your determination whether the requirements under the other NESHAP are
less stringent than the conditions under paragraph (c)(1)(vi)(C) of this
section.  You may contact the RCRA regulatory authority to assist with
this determination.

(9) Submit all notifications, reports, and other communications to the
RCRA regulatory authority rather than the CAA regulatory authority.

(C) Conditions to control air emissions.  (1) The affected source is the
equipment identified under §63.2338(b)(1-5) of this chapter, except for
equipment identified in §63.2338(c)(2-3) of this chapter. 

(2) Definitions of new, reconstructed, and existing affected sources are
provided under §63.2338(d-f) of this chapter.

(3) You must comply with the emission limitations, operating limits, and
work practice standards under §63.2346 of this chapter.

(4) You must comply with the general requirements under §63.2350 of
this chapter.  The startup, shutdown, and malfunction plan required by
§63.2350(c) need not address equipment not subject to paragraph
(c)(1)(vi)(C) of this section.

(5) You must comply with the performance tests, design evaluations, and
performance evaluations requirements under §63.2354 of this chapter. 
When complying with §63.2354(c), however, you must determine the
content of RCRA oxygenates as well as organic HAP in the
emission-comparable fuel.

(6) You must conduct performance tests and other initial compliance
demonstrations by the dates specified in §63.2358 of this chapter.

(7) You must conduct subsequent performance tests by the dates specified
in §63.2362 of this chapter.

(8) You must comply with the monitoring, installation, operation, and
maintenance requirements under §63.2366 of this chapter.

(9) You must demonstrate initial compliance with the emission
limitations, operating limits, and work practice standards as required
under §63.2370 of this chapter.

(10) You must monitor and collect data to demonstrate continuous
compliance and use the collected data as required by §63.2374 of this
chapter.

(11) You must demonstrate continuous compliance with the emission
limitations, operating limits, and work practice standards as required
by §63.2378 of this chapter.

(12) You must submit the notifications and on the schedule required by
§63.2382 of this chapter.  Notifications must be submitted to the RCRA
regulatory authority.

(13) You must submit the reports and on the schedule required by
§63.2386 of this chapter. Reports must be submitted to the RCRA
regulatory authority. 

(14) You must keep the records required by §63.2390 of this chapter.

(15) You must keep records in the form, and for the duration, required
by §63.2394 of this chapter.

(16) The parts of the General Provisions that apply to you are provided
by §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 §63.2406 of this chapter,
and paragraphs (c)(1)(vi)(B)(3-5) of this section.

(18) You are subject to the requirements in Tables 1-12 to subpart EEEE,
part 63 of this chapter. 

(vii) Underground storage tank systems.  Underground storage tank
systems are subject to the applicable requirements under 40 CFR Part
280.

(viii) Management of incompatible waste fuels and other materials--(A)
The generator must document in the waste analysis plan under paragraph
(b)(4) of this section how (e.g., using trial tests, analytical results,
scientific literature, or process knowledge) precautions will be taken
to prevent mixing of waste fuels and other materials which could result
in reactions which:

(1) Generate extreme heat or pressure, fire or explosions, or violent
reactions; 

(2) Produce uncontrolled toxic mists, fumes, dusts, or gases; 

(3) Produce uncontrolled flammable fumes or gases; or 

(4) Damage the structural integrity of the storage unit or facility.  

(B) Incompatible materials must not be placed in the same tank.

(2) Burning.  (i) General.  Emission-comparable fuel must be burned in
an industrial or utility boiler as defined in paragraph (b)(3) of this
section but that is further restricted by being a watertube type steam
boiler that does not feed fuel using a stoker or stoker-type mechanism. 


(ii) Operating conditions--(A) Fossil fuel as primary fuel.  A minimum
of 50 percent of fuel fired to the device shall be fossil fuel, fuels
derived from fossil fuel, or tall oil.  Such fuels are termed “primary
fuel” for purposes of this section.  (Tall oil is a fuel derived from
vegetable and rosin fatty acids.)  The 50 percent primary fuel firing
rate shall be determined on a total heat or volume input basis,
whichever results in the greater volume feedrate of primary fuel fired;

(B) Fuel heating value.  Primary fuels and emission-comparable fuel
shall have a minimum as-fired heating value of 8,000 Btu/lb, and each
material fired in a firing nozzle where hazardous waste is fired must
have a heating value of at least 8,000 Btu/lb, as-fired;

(C) CO CEMS.  When burning emission-comparable fuel, carbon monoxide
emissions must not exceed 100 parts per million by volume, over an
hourly rolling average (monitored with a continuous emissions monitoring
system (CEMS)), dry basis and corrected to 7 percent oxygen.  You must
use an oxygen CEMS to continuously correct the carbon monoxide level to
7 percent oxygen.  You must install, calibrate, maintain, and
continuously operate the CEMS in compliance with the quality assurance
procedures provided in the appendix to subpart EEE of part 63 of this
chapter (Quality Assurance Procedures for Continuous Emissions Monitors
Used for Hazardous Waste Combustors) and Performance Specification 4B
(carbon monoxide and oxygen) in appendix B, part 60 of this chapter.

(D) Dioxin/furan control--(1)  If the boiler is equipped with a dry
particulate matter control device and the primary fuel is not coal, you
must monitor the combustion gas temperature at the inlet to the dry
particulate matter control device, and the gas temperature must not
exceed 400°F on an hourly rolling average.

(2) Calibration of thermocouples.  The calibration of thermocouples must
be verified at a frequency and in a manner consistent with manufacturer
specifications, but no less frequently than once per year.

(E) Calculation of rolling averages--(1) Calculation of rolling averages
upon intermittent operations.  You must ignore periods of time when
one-minute values are not available for calculating the hourly rolling
average.  When one-minute values become available again, the first
one-minute value is added to the previous 59 values to calculate the
hourly rolling average.

(2) Calculation of rolling averages when the emission-comparable fuel
feed is cutoff.  You must continue monitoring carbon monoxide and
combustion gas temperature at the inlet to the dry particulate matter
emission control device when the emission-comparable fuel feed is
cutoff, but the source continues operating on other fuels.  You must not
resume feeding emission-comparable fuel if the emission levels exceed
the limits provided in paragraphs (c)(2)(ii)(C) and (D) of this section.

(F) Automatic fuel cutoff system--(1) General.  You must operate the
boiler with a functioning system that immediately and automatically cuts
off the emission-comparable fuel feed, except as provided by paragraph
(c)(2)(ii)(F)(7) of this section:

(i) When the hourly rolling average carbon monoxide level exceeds 100
ppmv or the combustion gas temperature at the inlet to the initial dry
particulate matter control device exceeds 400°F or lower on an hourly
rolling average.

(ii) When the span value of the combustion gas temperature detector is
exceeded;

(iii) Upon malfunction of the carbon monoxide CEMS or the gas
temperature detector; or 

(iv) When any component of the automatic waste feed cutoff system fails.

(2) Failure of the automatic fuel cutoff system.  If the automatic
emission-comparable fuel cutoff system fails to automatically and
immediately cut off the flow of emission-comparable fuel upon exceedance
of the carbon monoxide or gas temperature limits, you have failed to
comply with the emission-comparable fuel cutoff requirements of this
section.  If an equipment failure prevents immediate and automatic
cutoff of the emission-comparable fuel feed, however, you must cease
feeding emission-comparable fuel as quickly as possible.

(3) Corrective measures.  If, after any automatic emission-comparable
fuel feed cutoff, the carbon monoxide or gas temperature limit was
exceeded while emission-comparable fuel remained in the combustion
chamber, you must investigate the cause of the automatic
emission-comparable fuel feed cutoff, take appropriate corrective
measures to minimize future automatic cutoffs, and record the findings
and corrective measures in the operating record.

(4) Excessive exceedance reporting. (i) For each set of 10 exceedances
of the carbon monoxide emission limit or the limit on the gas
temperature at the inlet to the dry particulate matter control device
while emission-comparable fuel remains in the combustion chamber (i.e.,
when the emission-comparable fuel residence time has not transpired
since the emission-comparable fuel feed was cutoff) during a 60-day
block period, you must submit to the Administrator a written report
within 5 calendar days of the 10th exceedance documenting the
exceedances and results of the investigation and corrective measures
taken.

(ii) On a case-by-case basis, the Administrator may require excessive
exceedance reporting when fewer than 10 exceedances occur during a
60-day block period.

(5) Testing.  The automatic emission-comparable fuel feed cutoff system
and associated alarms must be tested at least weekly to verify
operability, unless you document in the operating record that weekly
inspections will unduly restrict or upset operations and that less
frequent inspection will be adequate.  At a minimum, you must conduct
operability testing at least monthly.  You must document and record in
the operating record automatic emission-comparable fuel feed cutoff
system operability test procedures and results.

(6) Ramping down emission-comparable fuel feed.  You may ramp down the
emission-comparable fuel feedrate over a period not to exceed one
minute.  If you elect to ramp down the emission-comparable fuel feed,
you must document ramp down procedures in the operating record.  The
procedures must specify that the ramp down begins immediately upon
initiation of automatic emission-comparable fuel feed cutoff and the
procedures must prescribe a bona fide ramping down.  If the limit on
carbon monoxide emissions or gas temperature at the inlet to the dry
particulate matter control device is exceeded during the ramp down, you
have failed to comply with those limits.

(G) Boiler load.  Boiler load shall not be less than 40 percent.  Boiler
load is the ratio at any time of the total heat input to the maximum
design heat input.

(H) Fuel atomization.  The emission-comparable fuel shall be fired
directly into the primary fuel flame zone of the combustion chamber with
an air or steam atomization firing system, mechanical atomization
system, or a rotary cup atomization system under the following
conditions:

(1) Particle size.  The emission-comparable fuel must pass through a 200
mesh (74 micron) screen, or equivalent;

(2) Mechanical atomization systems.  Fuel pressure within a mechanical
atomization system and fuel flow rate shall be maintained within the
design range taking into account the viscosity and volatility of the
fuel;

(3) Rotary cup atomization systems.  Fuel flow rate through a rotary cup
atomization system must be maintained within the design range taking
into account the viscosity and volatility of the fuel.

(I) Restrictions on benzene and acrolein.  If the as-fired concentration
of benzene or acrolein in the emission-comparable fuel exceeds 2 percent
by mass, the firing rate of emission-comparable fuel cannot exceed 25%
of the total fuel input to the boiler on a heat or volume input basis,
whichever results in a lower volume input of emission-comparable fuel.

(3) Intermediate handlers.  ECF may not be managed by any entity other
than the generator, transporter, and designated burner.  

(4) EPA Identification Number.  A burner that receives
emission-comparable fuel from an offsite generator must obtain an EPA
identification number from the Administrator.  A burner who has not
received an EPA identification number may obtain one by applying to the
Administrator using EPA form 8700-12.  Upon receiving the request, the
Administrator will assign an EPA identification number to the burner.

(5) Notification, reporting, and recordkeeping.  (i) Initial
Notification.  A burner that receives emission-comparable fuel from an
offsite generator must submit an initial notification to the Regional or
State RCRA and CAA Directors prior to receiving the first shipment:

(A) Providing the name, address, and EPA identification number of the
burner

(B) Certifying that the excluded fuel will be stored under the
conditions of paragraph (c)(1) of this section and burned in a boiler
under the conditions of paragraph (c)(2) of this section, and that the
burner will comply with the notification, reporting, and recordkeeping
conditions of paragraph (c)(3) of this section;

(C) Identifying the specific units that will burn the excluded fuel; and

(D) Certifying that the state in which the burner is located is
authorized to exclude wastes as excluded fuel under the provisions of
this section.

(ii) Reporting.  The burner must submit to the Administrator excessive
CO exceedance reports required under paragraph (c)(2)(ii)(F)(5) of this
section.

(iii) Recordkeeping.  (A) Records of shipments.  If the burner receives
a shipment of emission-comparable fuel from an offsite generator, the
burner must retain for each shipment the following information on-site:

(1) The name, address, and RCRA ID number of the generator shipping the
excluded fuel;

(2) The quantity of excluded fuel delivered; and

(3) The date of delivery;

(B) Boiler operating data.  The burner must retain records of
information required to comply with the operating requirements of
paragraph (c)(2) of this section.

(C) Records retention.  The burner must retain records at the facility
for three years.

(d) Failure to comply with the conditions of the exclusion. An excluded
fuel loses its exclusion if any person managing the fuel fails to comply
with the conditions of the exclusion under this section, and the
material must be managed as hazardous waste from the point of
generation.  In such situations, EPA or an authorized state agency may
take enforcement action under RCRA section 3008(a).

 

 

 	See
http://www.epa.gov/epaoswer/osw/conserve/strat-plan/strat-plan.htm#rccpl
an.

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

 	See 63 FR at 33795, and existing §261.38(c)(3-4).

 	See Email from Jim Berlow, USEPA, to Jim Pew, Earthjustice; Melvin
Keener, Coalition for Responsible Waste Incineration; David Case,
Environmental Technology Council; Michael Benoit, Cement Kiln Recycling
Coalition; Barbara Simcoe, Association of State and Territorial Solid
Waste Management Officials; and Robert Elam, American Chemistry Council,
dated November 23, 2005. 

 	See memorandum from Bob Holloway, USEPA, to Docket Number RCRA
2005-0017, entitled “Meeting Notes--Comparable Fuel Stakeholder
Meeting on Dec. 15, 2005,” dated December 19, 2005.

 	USEPA, “Response to Comments on the December 15, 2005 Stakeholder
Meeting Regarding Expanding the Comparable Fuel Exclusion,” May 2007.

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

 	Please note that we request comment on whether the final rule should
include a “reasonable efforts” provision that would provide that the
failure of an off-site, unaffiliated burner to meet the proposed
conditions or restrictions of the exclusion would not mean the material
was considered waste when handled by the generator, as long as the
generator can adequately demonstrate that he has made reasonable efforts
to ensure that the material will be managed by the burner under the
conditions of the exclusion.  See discussion in Part Two, Section V.B of
the preamble.

 	If the tank is used to actively accumulate hazardous waste after being
taken out of service as an ECF product tank, the tank may be eligible
for the provisions under §262.34 that waive the permit requirements for
generator tanks that accumulate hazardous waste for not more than 90
days. 

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

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

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

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

 	We explained in the final comparable fuel rule that it is reasonable
to assume that the Table 1 hydrocarbons that we did not detect in fuel
oil or gasoline could in fact be present at levels up to the detection
limit.  See 63 FR at 33791.

 	Examples of fuel oxygenates are:  ethanol; methyl tert-butyl ether
(MTBE), tert-amyl methyl ether (TAME); diisopropyl ether (DIPE); ethyl
tert-butyl ether (ETBE); tert-amyl alcohol (TAA); and tert-butyl alcohol
(TBA).  For further discussion, see USEPA, “Draft Technical Support
Document for Expansion of the Comparable Fuel Exclusion,” May 2007,
Section 3.1.

 	USEPA, “Draft Technical Support Document for Expansion of the
Comparable Fuel Exclusion,” May 2007, Section 2.2.

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

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

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

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

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

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

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

 	As discussed in the previous footnote, emissions at this low
concentration are in the de minimis range.

 	USEPA, “Draft Technical Support Document for Expansion of the
Comparable Fuel Exclusion,” May 2007, Appendix C.

 	See §270.32(b)(2).

 	See 70 FR at 59536-37 (October 12, 2005).

 	USEPA, “Assessment of the Potential Costs, Benefits, & Other Impacts
of the Hazardous Waste Combustion MACT Final Rule Standards,”
September 2005, Chapter 6.

 	RTI International, “Inferential Risk Analysis in Support of
Standards for Hazardous Air Pollutant Emissions from Hazardous Waste
Combustion,” June 2005, Section 1.

 	It must be emphasized that emission-adjusted MOEs should not be
construed as predictions of the level of risk.  Instead, they are only
intended to provide an indication of whether risks could exceed a level
of concern based on simplifying assumptions and as such, are subject to
some level of uncertainty.

 	See USEPA, USEPA, “Draft Technical Support Document for Expansion of
the Comparable Fuel Exclusion,” May 2007, Section 5.3.4.

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

 	We note that, for this reason, hazardous waste boilers are currently
exempt from the requirement to demonstrate 99.99% DRE if the boiler
complies with specific design and operating conditions, including the
principal organic emission control requirement of continuously
monitoring CO and compliance with a limit of 100 ppmv.  See §266.110. 
We note further that the ECF boiler conditions proposed today are at
least as stringent as the conditions provided by §266.110.

 	See USEPA, USEPA, “Draft Technical Support Document for Expansion of
the Comparable Fuel Exclusion,” May 2007, Appendix A.

.

 	Because CO is more thermally stable than other intermediate combustion
products, high CO emissions may or may not be indicative of high PIC
emissions.  If CO is low, however, combustion has progressed to the
point that PIC emissions will be low (assuming total ignition failure is
avoided).  Thus, CO is considered a conservative indicator of good
combustion.  See 52 FR at 16998.

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

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

 	The NESHAP for hazardous waste boilers allow sources to continuously
monitor total hydrocarbons and comply with a limit of 10 ppmv in lieu of
continuously monitoring CO and complying with a limit of 100 ppmv.  See
§§63.1216(a)(5) and 63.1217(a)(5).  We are not proposing a total
hydrocarbon alternative for ECF boilers, however, because very few, if
any, hazardous waste boilers elect that alternative given the complexity
of maintaining a continuous hydrocarbon monitor.  In addition, boilers
that are designed to rapidly quench the combustion gas temperature and
thus cannot achieve CO levels below 100 ppmv have no choice other than
to monitor hydrocarbons if they burn hazardous waste fuels.  But, these
boilers may not be appropriate candidates for burning ECF even if they
achieve hydrocarbon levels below 10 ppmv absent the regulatory oversight
of a RCRA or Title V permit given that they are not designed to achieve
optimum combustion efficiency.  Nonetheless, we request comment on
whether the rule, if finalized, should allow ECF boilers the option of
continuously monitoring hydrocarbons and complying with a limit of 10
ppmv as an alternative to CO monitoring.

 	See 68 FR at 1673 and the memorandum from Jim Eddinger, EPA, to Docket
No. OAR-2002-0058 entitled, “Revised MACT Floor Analysis for the
Industrial, Commercial, and Institutional Boilers and Process Heaters
National Emission Standards for Hazardous Air Pollutants Based on Public
Comments,” dated February 2004, pp. 18-19.

 	The 30-day averaging period for the Industrial Boiler NESHAP was
adopted because boilers burning biomass under certain conditions (e.g.,
wet wood after a rain event) could not achieve the CO limit over a
shorter averaging period.  This situation is not relevant here.  ECF
boilers that burn fuel oil or natural gas as primary fuel can readily
achieve a 100 ppmv CO limit over an hourly rolling average. 

 	See USEPA, USEPA, “Draft Technical Support Document for Expansion of
the Comparable Fuel Exclusion,” May 2007, Section 3.4.  Also, we note
that EPA adopted the 400 ppmv CO limit for boilers that do not burn
hazardous waste to accommodate the higher CO levels that can result from
burning solids, particularly wet biomass after rain events.  That
scenario would not be applicable to a boiler burning ECF.  ECF boilers
can readily achieve CO levels below 100 ppmv.

 	The hazardous waste boiler emissions data we analyzed as a surrogate
for ECF emissions data to determine if emission concentrations were
comparable to fuel oil emissions were derived from hazardous waste
boilers operating under a CO limit of 100 ppmv.  If those boilers
operated at higher CO levels and thus at lower combustion efficiency,
emissions of toxic organic compounds may have been higher.  

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

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

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

.

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

 	A simple lance (essentially an open pipe without any means of
atomization), however, could not be used to fire ECF.

 	Engineering Science, “Background Information Document for the
Development of Regulations to Control the Burning of Hazardous Waste in
Boilers and Industrial Furnaces, Volume I:  Industrial Boilers,”
January 1987, pp. 4-89 to 4-96.

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

 	ECF could not have a viscosity exceeding 50 cSt given that it would be
subject to the same specifications that apply to existing comparable
fuel, except that the specifications for certain hydrocarbons and
oxygenates would not apply.

 	We propose that ECF must be able to pass through a 200 mesh (74
micron) sieve to ensure that particles are small enough to ensure
volatilization and destruction of organic compounds.

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

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

 	USEPA, “Technical Support Document for HWC MACT Standards, Volume
III:  Selection of MACT Standards and Technologies,” July 1999,
Section 3.0; USEPA, “Technical Support Document for HWC MACT
Standards, Volume IV:  Compliance with the HWC MACT Standards,”
September 2005, Section 3.2, and USEPA, “Technical Support Document
for HWC MACT Standards, Volume III:  Selection of MACT Standards,”
September 2005, Section 13.3.1.1.

 	See §§63.1217, 63.1219, and 63.1220.  See also USEPA, USEPA,
“Draft Technical Support Document for Expansion of the Comparable Fuel
Exclusion,” May 2007, Section 5.

 	USEPA, “Technical Support Document for HWC MACT Standards, Volume
III:  Selection of MACT Standards,” September 2005, Section 14.1.1.

 	USEPA, “Technical Support Document for HWC MACT Standards, Volume
IV:  Compliance with the HWC MACT Standards,” September 2005, Section
2.2.3.

 	USEPA, “Draft Technical Support Document for Expansion of the
Comparable Fuel Exclusion, May 2007, Section 5. 

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

 	USEPA, “Draft Technical Support Document for Expansion of the
Comparable Fuel Exclusion, May 2007, Section 5.3.3. 

 	USEPA, “Technical Support Document for HWC MACT Standards, Volume
IV:  Compliance with the HWC MACT Standards,” September 2005, p. 3-17.

 	We discussed previously in the text in Part Two, Section I.B, that an
abbreviated comparative risk assessment for dioxin/furan emissions from
hazardous waste boilers that meet the design conditions (i.e., watertube
steam boiler that is not stoker-fired) for an ECF boiler indicates that
dioxin/furan emissions from such a boiler are not likely to pose a
hazard to human health or the environment.

 	USEPA, “Draft Technical Support Document for Expansion of the
Comparable Fuel Exclusion, May 2007, Section 3.4. 

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

 	USEPA, “Waste Minimization Prioritization Tool Background Document
for the Tier III PBT Chemical List,” 2000.

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

	USEPA, “Draft Technical Support Document for Expansion of the
Comparable Fuel Exclusion,” May 2007, Section 2.4.

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

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

 	See 71 FR 15804 (March 29, 2006).

 	USEPA, “Human Health Risk Assessment Protocol for Hazardous Waste
Incineration Facilities,” EPA-R-05-006, 2005.

 	For thermal stability ranking data for the hydrocarbons and oxygenates
listed in Table 1 of §261.38, see USEPA, USEPA, “Draft Technical
Support Document for Expansion of the Comparable Fuel Exclusion,” May
2007, Section 2.3.

 	USEPA, “Human Health Risk Assessment Protocol for Hazardous Waste
Incineration Facilities,” EPA-R-05-006, 2005.

 	See:  http://www.epa.gov/region1/eco/airtox/acrolein.html.

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

 	Expanding the fuel heating value range from 8,000 Btu/lb (the lowest
heating value allowed for ECF) to 20,000 Btu/lb (the highest heating
value know for waste fuels that may qualify as ECF) would expand the
benzene concentration cutpoint range to 1.3% to 3.3 %. 

 	If we assumed comparable fuel has the average heating value in our
data base—11,200 Btu/lb--the benzene concentration cutpoint would be
1.8%.

 	The SPCC conditions we propose to adopt would apply to ECF tanks
systems that are not hazardous substance underground storage tanks
subject to §280.42(b), as well as tank cars and tank trucks.

 	This proposed rule would neither amend nor otherwise affect the SPCC
provisions under 40 CFR Part 112.  Substantive controls from the SPCC
rules would merely be applied to tanks storing ECF as a condition of
those fuels being excluded from RCRA subtitle C controls.

 	We note that the SPCC requirements under Part 112 do not apply to
facilities that have both an aggregate capacity for completely buried
storage of 42,000 gallons or less of oil and an aggregate capacity for
above ground storage of 1,320 gallons or less of oil.  See
§112.1(d)(2).  In addition, the SPCC requirements do not apply to
containers with a storage capacity of less than 55 gallons of oil.  We
propose to adopt the 55 gallon capacity criterion for applicability of
the adopted SPCC provisions to ECF tanks, but propose to apply those
SPCC provisions to tanks with a capacity greater than 55 gallons at all
facilities managing ECF, irrespective of whether the aggregate tank
capacity for oil and ECF is below the threshold in §112.1(d)(2). 
Applying the adopted SPCC provisions to all ECF tanks with a capacity
greater than 55 gallons, irrespective of aggregate oil and ECF storage
capacity at a facility, is appropriate because ECF can pose a greater
storage hazard than petroleum oil, as discussed previously.

 	These SPCC definitions would apply only to the adopted SPCC
provisions.

 	See 71 FR 77266, December 26, 2006.

 	This requirement only applies to field erected aboveground storage
tanks.

 	We request comment on whether we should specify that completely buried
metallic storage tanks installed prior to January 10, 1974 must be
protected from corrosion and regularly leak checked.

 	Even though we are not proposing prescribed appeal provisions, the
owner/operator could certainly explain and clarify why the Plan already
addresses concerns the RA may express in a requirement to amend the
Plan.

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

 	As discussed later in the text, the §264.196 provisions specifically
address failures of the types of engineered secondary containment (i.e.,
external liner, vault, or double-walled tank) that we propose to specify
for ECF tanks.  Thus, adopting these provisions in lieu of the Part 112
RFP provisions, which address discharge countermeasures (e.g.,
absorbents, booms, skimmers, and dispersants) more appropriate for other
types of secondary containment, is particularly appropriate.

 	We are not proposing to adopt the Subpart D contingency plan
provisions because the SPCC Plan that we propose to specify as a
condition of the exclusion is equivalent to the contingency plan
required for hazardous waste tank facilities.

 	ECF that is released from the tank system must generally be managed as
hazardous waste.  See proposed §261.38(b)(15).

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

 	The subpart EEEE controls are intended to be generic, catch-all
controls for air emissions from storage and transfer of organic liquids
at facilities that are not already subject to a specific NESHAP.

 	As discussed later in the text in this section, we are proposing to
adopt under §261.38 for ECF tank systems virtually all of the Subpart
EEEE OLD provisions.

 	These compounds are Allyl alcohol (CAS No. 107-18-6),
Bis(2-ethylhexyl)phthalate [Di-2-e thylhexyl phthalate] (CAS
No.117-81-7), Butyl benzyl phthalate (CAS No. 85-68-7), Diethyl
phthalate (CAS No. 84-66-2), 2,4-Dimethylphenol (CAS No. 105-67-9),
Dimethyl phthalate (CAS No. 131-11-3), Di-n-octyl phthalate (CAS No.
117-84-0), Endothall (CAS No. 145-73-3), Ethyl methacrylate (CAS No.
97-63-2), 2-Ethoxyethanol [Ethylene glycol monoethyl ether] (CAS No.
110-80-5), Isobutyl alcohol (CAS No. 78-83-1), Iosafrole (CAS No.
120-58-1), Methyl ethyl ketone [2-Butanone] (CAS No. 78-93-3), 
1,4-Naphthoquinone (CAS No. 130-15-4), Propargyl alcohol [2-Propyn-1-ol]
(CAS No. 107-19-7), and Safrole (CAS No. 94-59-7).

 	Five oxygenates—butyl benzyl phthalate, diethyl phthalate, dimethyl
phthalate, di-n-octyl phthalate, and endothall—have vapor pressures in
the range of 0.0000002 to 0.001 kPa at 25 C and would not likely
contribute significantly to exceeding the 0.7 kPa threshold defining an
organic liquid, or to changing the vapor pressure category for the
organic liquid that could result in more stringent controls.  See USEPA,
“Draft Technical Support Document for Expansion of the Comparable Fuel
Exclusion,” May 2007, Section 2.2.

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

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

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

 	Note that we are not proposing to adopt §63.2343, What Are My
Requirements for Emission Sources Not Requiring Control?.  We do not
believe those controls are necessary given that the adopted controls
would apply only to ECF tanks, and the duty for any person claiming an
exclusion to document conformance with the conditions of the exclusion. 
Thus, ECF generators and burners would already be required to document
why an ECF tank system is not subject to the adopted controls.

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

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

 	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 §262.34 that waive the
permit requirements for generator tanks that accumulate hazardous waste
for not more than 90 days.

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

 	Although the specifications for benzene and acrolein would be waived,
the generator (or the burner) must determine the concentration of these
compounds because we propose ECF firing rate restrictions for ECF
containing more than two percent of either of these compounds.

 	Consult §261.2(f) and 50 FR at 636-37 placing the burden for
documenting conformance with conditions of an exclusion on the person
claiming the exclusion in an enforcement action.

 	We are proposing that ECF burners who are required to sample and
analyze ECF to determine the heating value of the ECF or the
concentration of benzene or acrolein,, if the generator has not provided
that information for each shipment, must keep the same records as ECF
generators regarding the sampling and analysis plan and the results of
sampling and analysis. 

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

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

 	Separate and distinct from any requirement or condition that would be
established under this proposed rule, all generators of a solid
waste--including ECF generators under this exclusion--have a continuing
obligation to conduct proper hazardous waste determinations, including
notifying the appropriate government official if they are generating a
hazardous waste.  40 CFR 262.11.

 	Although a proposed condition of the ECF exclusion would require the
generator to obtain a certification from the burner that the ECF will be
stored and burned under the conditions of the exclusion, a “reasonable
efforts” provision would require the generator to take reasonable
independent and proactive measures to ensure that the burner will manage
ECF under the conditions of the exclusion.

 	The proposed rule would also restructure the current requirements for
comparable fuel (and syngas fuel) to make the regulatory language more
readable given that the regulation must accommodate the proposed
exclusion for ECF.  We regard these language changes as purely
technical, and thus, will accept comment only on whether the suggested
language changes express the current meaning of the provision.  We are
not reexamining, reconsidering or otherwise reopening these provisions
for comment.  

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

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

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

 	Hazardous waste boiler emissions are a reasonable surrogate for ECF
boiler emissions because organic emissions from ECF boilers would be
controlled at least as stringently as emissions from hazardous waste
boilers, as discussed above in response to Comment 1.

 	This is a reasonable assumption because waste fuels that would qualify
as ECF are premium fuels that a facility would want to burn, if
possible, in an on-site boiler or in an affiliated facility’s boiler,
rather than contracting with a commercial hazardous waste combustor to
burn the fuel.

 	See memorandum from Bob Holloway, USEPA, to Docket ID No.
EPA-HQ-RCRA-2005-0017, entitled “Potential Approach to Establish
Firing Rate Restrictions on Emission-Comparable Fuel,” dated April 25,
2007, Table 2. 

 	See USEPA, “Draft Technical Support Document for Expansion of the
Comparable Fuel Exclusion,” May 2007, Appendix C.

 	It is reasonable to consider 20 ug/dscm a de minimis emission level
because it is comparable to approximately 0.01 ppmv propane equivalents
for the high molecular weight compounds of concern, and is 3 orders of
magnitude lower than the 10 ppmv total hydrocarbon emission limit the
Agency has established for liquid fuel boilers that burn hazardous
waste.  See §63.1217(a)(5)(ii).

 	See memorandum from Bob Holloway, USEPA, to Docket ID No.
EPA-HQ-RCRA-2005-0017, entitled “Potential Approach to Establish
Firing Rate Restrictions on Emission-Comparable Fuel,” dated April 25,
2007, Table 1.

 	We have hazardous waste boiler emissions data for:  acetophenone,
biz(2-ethylhexyl)phthalate, diethyl phthalate, di-n-butyl phthalate,
di-n-octyl phthalate, methyl ethyl ketone, and phenol.

 	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.

 	See memorandum from Bob Holloway, USEPA, to Docket ID No.
EPA-HQ-RCRA-2005-0017, entitled “Potential Approach to Establish
Firing Rate Restrictions on Emission-Comparable Fuel,” dated April 25,
2007.

 	See USEPA, Operational Parameters for Hazardous Waste Combustion
Devices,” October 1993. Section 4.3.2.1.

 	See R. Brukh, R. Baret, and S. Mitra, New Jersey Institute of
Technology, “The Effect of Waste Concentration on Destruction
Efficiency During Incineration,” Environmental Engineering Science,
Vol. 23, No. 2, 2006.  The authors conducted experiments in a small,
well-stirred reactor involving the combustion of methylene chloride
(CH2Cl2) with ethylene (C2H4) as the primary fuel at residence times of
5-12 ms and temperatures of 1400- 1750 K (2050 -2700 °F).  Experiments
were done at both fuel rich and fuel lean conditions.  CH2Cl2
concentrations were low (2- 1350 ppm by volume in the main feed.).  The
authors modeled the combustion of methylene chloride, methyl chloride
(CH3Cl), and benzene.  They show limited experimental data for CH3Cl and
C6H6 from previous work.  The authors’ hypothesis is that higher
concentrations of POHC contribute additional radical fractions and the
overall result is a higher destruction efficiency.  This work would
support higher DREs at higher feedrates if the results can be
extrapolated to the higher POHC concentrations of concern to us and the
higher residence times for hazardous waste combustors.  This paper is
available in the docket to this rulemaking:  Docket ID No.
EPA-HQ-RCRA-2005-0017

 	MTEC means maximum theoretical emission concentration (ug/dscm) and is
an approach to normalize the feedrate for various size boilers.  It is
calculated as the mass feedrate divided by the stack gas flowrate.

 	See memorandum from Bob Holloway, USEPA, to Docket ID No.
EPA-HQ-RCRA-2005-0017, entitled “Potential Approach to Establish
Firing Rate Restrictions on Emission-Comparable Fuel,” dated April 25,
2007, Figure 2.

 	See memorandum from Bob Holloway, USEPA, to Docket ID No.
EPA-HQ-RCRA-2005-0017, entitled “Potential Approach to Establish
Firing Rate Restrictions on Emission-Comparable Fuel,” dated April 25,
2007, Table 3.

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

 Fradkin, L., R. J. F. Bruins, D. H. Cleverly, 1988. “Assessing the
risk of incinerating municipal

solid waste: The development and application of a methodology”.
Municipal Waste Combustion

and Human Health. CRC Press. Palm Beach, Florida.

 	USEPA, “Draft Technical Support Document for Expansion of the
Comparable Fuel Exclusion,” May 2007, Section 2.4.

 	USEPA, “Draft Technical Support Document for Expansion of the
Comparable Fuel Exclusion,” May 2007, Section 2.4.

 	USEPA, “Draft Technical Support Document for Expansion of the
Comparable Fuel Exclusion,” May 2007, Section 2.4.

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

 	U.S. EPA, 2003 National Biennial Report, database and supporting
documentation available for download at
http://www.epa.gov/epaoswer/hazwaste/data/biennialreport/

 	U.S. EPA, National Hazardous Waste Constituent Survey, database and
supporting documentation available for download at   HYPERLINK
"http://www.epa.gov/epaoswer/hazwaste/id/hwirwste/economic.htm" 
http://www.epa.gov/epaoswer/hazwaste/id/hwirwste/economic.htm  

 	U.S. EPA, 2002 National Emissions Inventory, databases and supporting
documentation available for download at
http://www.epa.gov/ttn/chief/net/2002inventory.html

 	American Chemistry Council (ACC) voluntary membership survey of waste
generation and management.

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

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