Expansion of RCRA Comparable Fuel Exclusion, 33284-33334 [E7-11130]

Agencies

• ENVIRONMENTAL PROTECTION AGENCY

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



[[Page 33283]]

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

Part II





Environmental Protection Agency





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



40 CFR Part 261



Expansion of RCRA Comparable Fuel Exclusion; Proposed Rule

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

[[Page 33284]]


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

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

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


Expansion of RCRA Comparable Fuel Exclusion

AGENCY: Environmental Protection Agency (EPA).

ACTION: Proposed rule.

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

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

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

ADDRESSES: Submit your comments, identified by Docket ID No. EPA-HQ-
RCRA-2005-0017, by one of the following methods:
     https://www.regulations.gov: Follow the on-line 
instructions for submitting comments.
     E-mail: 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. EPA's policy is that all comments received will be included 
in the public docket without change and may be made available online at 
https://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 https://
www.regulations.gov or e-mail. Send or deliver information identified 
as CBI to the following address: Ms. LaShan Haynes, RCRA Document 
Control Officer, EPA (Mail Code 5305P), Attention Docket ID No. EPA-HQ-
RCRA-2005-0017, 1200 Pennsylvania Avenue, NW., Washington, DC 20460. 
Clearly mark the part or all of the information that you claim to be 
CBI. The https://www.regulations.gov Web site is an ``anonymous access'' 
system, which means EPA will not know your identity or contact 
information unless you provide it in the body of your comment. If you 
send an e-mail comment directly to EPA without going through https://
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 https://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 https://
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 https://www.regulations.gov or in hard copy at the RCRA Docket, EPA/
DC, EPA West, Room 3334, 1301 Constitution Ave., NW., Washington, DC. 
The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday 
through Friday, excluding legal holidays. The telephone number for the 
Public Reading Room is (202) 566-1744, and the telephone number for the 
RCRA Docket is (202) 566-0270.

FOR FURTHER INFORMATION CONTACT: Mary Jackson, Hazardous Waste 
Minimization and Management Division, Office of Solid Waste, Mailcode: 
5302P, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., 
Washington, DC 20460; telephone number: (703) 308-8453; fax number: 
(703) 308-8433; e-mail address: 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 generates or combusts                           562           49  Waste Management and Remediation Services.
 hazardous waste as defined in the proposed
 rule.
                                                                  327           32  Non-metallic Mineral Products Manufacturing.

[[Page 33285]]

 
                                                                  325           28  Chemical Manufacturing.
                                                                  324           29  Petroleum and Coal Products Manufacturing.
                                                                  331           33  Primary Metals Manufacturing.
                                                                  333           38  Machinery Manufacturing.
                                                                  326          306  Plastic and Rubber Products Manufacturing.
                                                             488, 561           49  Administration and Support Services.
                                                                  421           50  Scrap and waste materials.
                                                                  422           51  Wholesale Trade, Non-durable Goods, N.E.C.
                                                        512, 541, 812           73  Business Services, N.E.C.
                                                   512, 514, 541, 711           89  Services, N.E.C.
                                                                  924           95  Air, Water and Solid Waste Management.
                                                                  336           37  Transportation Equipment Manufacturing.
                                                                  928           97  National Security.
                                                                  334           35  Computer and Electronic Products Manufacturing.
                                                                  339           38  Miscellaneous Manufacturing.
--------------------------------------------------------------------------------------------------------------------------------------------------------

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

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

[[Page 33286]]

    7. The ECF Firing System Must Provide Proper Atomization
    8. Dioxin/Furan Controls for Boilers Equipped With an ESP or FF
    III. What Restrictions Would Apply to Particular Hydrocarbons 
and Oxygenates?
    A. What Is the Rationale for the Relative Hazard 
Characterization Scheme?
    B. What Are the Results of the Relative Hazard Ranking?
    C. What Firing Rate Restrictions Would Apply to Benzene and 
Acrolein?
    IV. What Conditions Would Apply to Storage of ECF?
    A. What Are the Proposed Storage Conditions?
    1. Tank Systems, Tank Cars and Tank Trucks
    2. Underground Storage Tank Systems
    3. Closure of Tank Systems
    4. Waiver of RCRA Closure for RCRA Tanks That Become ECF Tanks
    5. Management of Incompatible Waste Fuels and Other Materials
    B. What Other Options Did We Consider?
    1. Other Options We Considered to Establish Storage Conditions 
for ECF
    2. Consideration of Storage Controls for Currently Excluded 
Comparable Fuels
    V. How Would We Assure That The Conditions Are Being Satisfied?
    A. What Recordkeeping, Notification and Certificate Conditions 
Would Apply to Generators and Burners?
    1. Waste Analysis Plans
    2. Sampling and Analysis
    3. Speculative Accumulation
    4. Notifications
    5. Burner Certification
    6. Recordkeeping
    7. Transportation
    8. Ineligible RCRA Hazardous Waste Codes
    B. What If I Fail To Comply With Conditions of the Exclusion?
    C. How Would Spills and Leaks Be Managed?
    D. What Would Be the Time-Line for Meeting the Proposed 
Conditions?
    VI. What Clarifications and Revisions Are Proposed for the 
Existing Conditions for Exclusion of Comparable Fuel?
    VII. What Are the Responses to Major Comments of the Peer Review 
Panel?
    A. What Are the Reponses to Major Comments Regarding the 
Comparable Emissions Rationale?
    B. What Are the Reponses to Major Comments Regarding the 
Application of the WMPT To Rank Comparable Fuel Constituents?
Part Three: State Authority
    I. Applicability of the Rule in Authorized States
    II. Effect on State Authorization
Part Four: Costs and Benefits of the Proposed Rule
    I. Introduction
    II. Baseline Specification
    III. Analytical Methodology, Primary Data Sources, and Key 
Assumptions
    IV. Key Analytical Limitations
    V. Findings
Part Five: Statutory and Executive Order Reviews
    I. Executive Order 12866: Regulatory Planning and Review
    II. Paperwork Reduction Act
    III. Regulatory Flexibility Act
    IV. Unfunded Mandates Reform Act of 1995
    V. Executive Order 13132: Federalism
    VI. Executive Order 13175: Consultation and Coordination With 
Indian Tribal Governments
    VII. EO 13045 ``Protection of Children From Environmental Health 
Risks and Safety Risks''
    VIII. Executive Order 13211: Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use
    IX. National Technology Transfer Advancement Act
    X. Executive Order 12898: Federal Actions To Address 
Environmental Justice in Minority Populations and Low-Income 
Populations

Part One: Background and Summary

I. Statutory Authority

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

II. Background

A. What Is the Intent of This Proposed Rule?

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

B. Who Would Be Affected by This Proposed Rule?

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

[[Page 33287]]

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

    On June 19, 1998 (63 FR 33782 and Sec.  261.38), EPA promulgated 
standards to exclude from the regulatory definition of solid waste 
certain hazardous waste-derived fuels that meet specification levels 
for hazardous constituents and physical properties that affect burning 
which are comparable to the same levels in fossil fuels. EPA's goal was 
to develop a comparable fuel specification which is useable by the 
regulated community, but assures that an excluded waste-derived fuel is 
similar in composition to commercially available fuel and therefore 
poses no greater risk than burning fossil fuel.
    During the eight years that the comparable fuel exclusion has been 
part of the hazardous waste regulations, several stakeholders have 
pointed out that many hazardous wastes with fuel value do not satisfy 
the terms of the exclusion. Independently, in 2003, EPA began examining 
the effectiveness of the current comparable fuel program as part of an 
effort to promote the energy conservation component of the Resource 
Conservation Challenge \1\ to determine whether other hazardous wastes 
could be appropriately excluded as comparable fuel.
---------------------------------------------------------------------------

    \1\ See https://www.epa.gov/epaoswer/osw/conserve/strat-plan/
strat-plan.htm#rccplan.
---------------------------------------------------------------------------

    As part of this effort, we contacted the American Chemistry Council 
(ACC) in early 2003 to determine how much waste is currently excluded 
as comparable fuel and whether there were additional quantities of 
other high Btu wastes that could potentially be considered comparable 
fuel. ACC conducted a survey of its members and provided results to EPA 
in late 2003 indicating that approximately 13,000 tons per year of 
waste fuels are currently excluded, but that approximately 190,000 tons 
per year of additional waste fuels could potentially be excluded under 
revisions to the exclusion.\2\
---------------------------------------------------------------------------

    \2\ Letter from American Chemistry Council (Carter Lee Kelly, 
Leader, Waste Issues Team, and Robert A. Elam, Director, Regulatory 
Affairs, Waste Issues Team) to Robert Springer and Matt Hale, USEPA, 
dated November 24, 2003.
---------------------------------------------------------------------------

    Therefore, ACC recommended that EPA consider approaches to address 
the following barriers perceived as excluding additional quantities of 
waste fuels:
     Analytic Issues: High analysis cost and matrix 
interferences hamper meeting the detection limit requirements for 
nondetected analytes in many waste fuel matrices.
     Over-Rigid Specifications: Wastes containing 
nonhalogenated organics and oxygenates do not result in emissions 
greater than burning waste fuel meeting the specification if the 
combustor operates under good combustion conditions.
     Blending: The current exclusion bans blending to meet 
hazard constituent specifications. Flexibility is needed on blending of 
streams containing low levels of constituents, such as chromium and 
manganese attributable to corrosion from stainless steel vessels and 
pipes.
1. What Modifications to the Comparable Fuel Exclusion May Be 
Warranted?
    We are proposing in this action to expand the exclusion for 
comparable fuel to establish a new category of excluded fuel--emission-
comparable fuel (ECF). This proposal would exclude waste fuels that 
generate emissions, when burned in an industrial boiler, which are 
comparable to emissions from burning fuel oil. ECF would be subject to 
the same hazardous constituent and other specifications in Table 1 to 
Sec.  261.38 that currently apply to comparable fuels, except that the 
specifications for certain hydrocarbons and oxygenates would not apply. 
The exclusion would be based on the rationale that ECF has substantial 
fuel value, that the hydrocarbon and oxygenate constituents no longer 
subject to a specification add fuel value, and that emissions from 
burning ECF in an industrial boiler operating under good combustion 
conditions are likely not to differ from emissions from burning fossil 
fuels under those same conditions. As a result, the current 
specifications limiting the hydrocarbons and oxygenates appear to be 
unnecessary.
    The exclusion would be conditioned on the ECF being burned and 
stored under certain conditions, including: (1) Design and operating 
conditions for the ECF boiler that ensure that the ECF is burned under 
the good combustion conditions typical for oil-fired industrial 
boilers; and (2) conditions for storage in tanks which are comparable 
to those for storage of fuels and organic liquids and which are 
tailored for the hazards that ECF may pose given that ECF can have 
higher concentrations of certain hydrocarbons and oxygenates than fuel 
oil and gasoline.
    We are not proposing revisions to the comparable fuel exclusion to 
address the analytical and blending recommendations raised by ACC.
    a. Why Are We Not Proposing Revisions To Address Analytic Concerns? 
The specifications in Table 1 to Sec.  261.38 for volatile organic 
compounds that were not detected in fuel oil or gasoline were based on 
the low levels of detection achievable for fuel oil rather than the 
much higher levels of detection achievable for gasoline. Given that 
only benzene, toluene, and naphthalene were detected, EPA used this 
approach for most of the volatile organic compounds. EPA acknowledged 
this deviation from establishing the specification for nondetected 
compounds as the highest level of detection in a benchmark fuel and 
explained that the levels of detection for volatile compounds in 
gasoline were inflated because of matrix effects. ACC suggested that 
EPA consider the fact that many waste fuels may pose the same matrix 
effects as gasoline, such that the fuel oil-based specifications would 
not be reasonably achievable.
    We believe that it would not be appropriate to consider increasing 
the specifications for all volatile organic compounds and base them on 
the higher levels of detection in gasoline rather than fuel oil levels 
of detection because most of the compounds would simply not be expected 
to be found in fuel oil or gasoline. Rather, only certain hydrocarbons 
would be expected to be in these fuels. We could potentially also 
consider oxygenates, however, because they are within a class of 
compounds that are added to fuels to enhance combustion. It appeared, 
however, that this revision would not likely result in additional 
hazardous waste fuel being conditionally excluded. There were very few, 
if any, waste fuels that meet the specifications for all volatile 
compounds, except for the enumerated hydrocarbons and oxygenates, and 
that also could meet revised, higher specifications for the 
hydrocarbons and oxygenates based on the levels of detection in 
gasoline. Consequently, we are not pursuing this approach further but, 
nonetheless, solicit comment on such an approach.
    b. Why Are We Not Proposing Revisions To Address Blending Concerns? 
A condition of the existing comparable fuel exclusion is that blending 
to meet the specification (except for viscosity) is prohibited to 
preclude dilution to avoid treatment.\3\ ACC noted that waste fuels 
often contain incidental contamination of metals, such as chromium and 
manganese from corrosion of stainless steel vessels and pipes, and that 
blending to meet the specifications for

[[Page 33288]]

low levels of metals appears reasonable. We believe that blending to 
meet the specifications for metals is explicitly prohibited because it 
would be inconsistent with the section 3004(m) hazardous waste 
treatment provisions (which, although not directly applicable, 
articulate important overall statutory objectives) which require 
hazardous constituents to be removed or destroyed by treatment, not 
diluted. See 63 FR at 33795.
---------------------------------------------------------------------------

    \3\ See 63 FR at 33795, and existing Sec.  261.38(c)(3-4).
---------------------------------------------------------------------------

    We believe, however, that blending to meet the specification for 
organic compounds that may be present in fuel oil or gasoline--
hydrocarbons--or that are within a class of compounds that are added to 
fuels to enhance combustion--oxygenates--could be considered. These 
compounds would not be diluted to avoid treatment; they would still be 
treated by combustion. However, it appears that there were very few, if 
any, additional waste fuels that would be excluded under such a 
blending provision. Nonetheless, we solicit comment on such an approach 
and its applicability to additional waste fuels.
2. How Has EPA Involved Stakeholders in Discussions Regarding Potential 
Revisions to the Comparable Fuel Exclusion?
    On December 15, 2005, EPA convened a public meeting of stakeholders 
to discuss potential revisions to the comparable fuel exclusion under 
40 CFR 261.38.\4\ Meeting notes are available in the docket for this 
rulemaking.\5\ Participants in the stakeholder meeting raised several 
issues during the meeting and our responses are included in the meeting 
notes. In addition, several participants submitted written comments 
after the meeting. These comments and our responses are available in 
the docket to today's proposal.\6\
---------------------------------------------------------------------------

    \4\ See e-mail from Jim Berlow, USEPA, to Jim Pew, Earthjustice; 
Melvin Keener, Coalition for Responsible Waste Incineration; David 
Case, Environmental Technology Council; Michael Benoit, Cement Kiln 
Recycling Coalition; Barbara Simcoe, Association of State and 
Territorial Solid Waste Management Officials; and Robert Elam, 
American Chemistry Council, dated November 23, 2005.
    \5\ See memorandum from Bob Holloway, USEPA, to Docket Number 
RCRA 2005-0017, entitled ``Meeting Notes--Comparable Fuel 
Stakeholder Meeting on Dec. 15, 2005,'' dated January 4, 2006.
    \6\ USEPA, ``Response to Comments on the December 15, 2005 
Stakeholder Meeting Regarding Expanding the Comparable Fuel 
Exclusion,'' May 2007.
---------------------------------------------------------------------------

III. Summary of the Proposed Rule

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

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

    ECF is a fuel derived from hazardous waste but which would be 
excluded from the RCRA hazardous waste regulations if it meets 
prescribed specifications and management conditions. The ECF 
specifications would be the same as those that are applicable to 
comparable fuel, except the specifications for particular hydrocarbons 
and oxygenates would not apply. See proposed Sec.  261.38(a)(2). The 
exclusion would apply from the point that ECF meets the specifications.
    Special conditions of the exclusion specific to ECF would include 
the following design and operating conditions for the ECF burner: (1) 
The burner must be a watertube steam boiler other than a stoker-fired 
boiler; (2) carbon monoxide (CO) must be monitored continuously, must 
be linked to an automatic ECF feed cutoff system, and must not exceed 
100 ppmv on an hourly rolling average (corrected to 7% oxygen); (3) the 
boiler must fire at least 50% primary fuel on a heating value or volume 
basis, whichever results in a higher volume of primary fuel, and the 
primary fuel must be fossil fuel or tall oil with a heating value not 
less than 8,000 Btu/lb; (4) the boiler load must be 40% or greater; (5) 
the ECF must have an as-fired heating value of 8,000 Btu/lb or greater; 
(6) ECF must be fired into the primary fuel flame zone; (7) the ECF 
firing system must provide proper atomization; and (8) if the boiler is 
equipped with an electrostatic precipitator (ESP) or fabric filter (FF) 
and does not fire coal as the primary fuel, the combustion gas 
temperature at the inlet to the ESP or FF must be continuously 
monitored, must be linked to the automatic ECF feed cutoff system, and 
must not exceed 400 [deg]F on an hourly rolling average. See proposed 
Sec.  261.38(c)(2). (Please note that we specifically request comment 
on these proposed conditions, as discussed later.) The principal 
conditions that would apply to ECF boilers--waterwall steam boiler, low 
CO, burning high Btu primary fuel that is properly atomized, operating 
at boiler loads above 40%--reflect design and operating conditions 
typical for oil-fired industrial boilers that operate under good 
combustion conditions.
    In addition, ECF must be stored in tanks, tank cars, or tank 
trucks. See proposed Sec.  261.38(c)(1). These tank systems, tank cars, 
and tank trucks would be excluded from regulation if they meet 
conditions similar to those which apply to fuel oil (the product most 
analogous to ECF), along with additional conditions necessary to 
minimize the potential for releases to the environment accounting for 
the differences between ECF and fuel oil. These include: (1) Certain 
provisions of the Spill Prevention, Control, and Countermeasures (SPCC) 
requirements applicable to oil under Sec. Sec.  112.2, 112.5, 112.7, 
and 112.8; (2) secondary containment and leak detection requirements 
for tank systems, including use of liners, vaults, or double-walled 
tanks; (3) preparedness and prevention, emergency procedures, and 
response to release provisions adopted from requirements applicable to 
tank systems that store hazardous waste, and (4) fugitive air emission 
technical controls adopted from Subpart EEEE, Part 63, for organic 
liquids distribution (which would apply not only to any hazardous air 
pollutants among the oxygenates and hydrocarbons, but also would apply 
to the 11 oxygenates for which there would be no specification in this 
proposed rule and which are hazardous constituents under RCRA having 
significant vapor pressure but which are not hazardous air pollutants 
under the CAA). Underground tanks storing ECF are subject to the 
applicable requirements of 40 CFR Part 280. A further condition of the 
exclusion is that the generator must document in the waste analysis 
plan how precautions will be taken to prevent mixing of ECF and other 
materials which could result in adverse consequences from incompatible 
materials. In addition, to be excluded, ECF would need to meet all of 
the conditions applicable to existing comparable fuel, including: (1) 
The specifications under Table 1 to 261.38, except for the 
specifications for certain hydrocarbons and oxygenates; (2) prohibition 
on blending to meet the specifications, except for viscosity; \7\ (3) 
notifications to state RCRA and Clean Air Act (CAA) Directors and 
public notification; (4) waste analysis plans; (5) sampling and 
analysis conditions; (6) prohibition on speculative accumulation; (7) 
recordkeeping; (8)

[[Page 33289]]

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

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

    ECF that has lost its exclusion because of failure to satisfy a 
condition of the exclusion must be managed as a hazardous waste from 
the point of ECF generation.\8\ In addition, ECF that is spilled or 
leaked and cannot be burned under the conditions of the exclusion is a 
waste (it is a hazardous waste if it exhibits a characteristic of 
hazardous waste or if the ECF were derived from a listed hazardous 
waste) and must be managed in accordance with existing federal and 
state regulations. Furthermore, if an ECF tank system ceases to be 
operated to store ECF product, but has not been cleaned by removing all 
liquids and accumulated solids within 90 days of cessation of ECF 
storage operations, the tank system would become subject to the RCRA 
subtitle C hazardous waste regulations.\9\ (This is the same principle 
that applies to any product storage unit when it goes out of service. 
See Sec.  261.4(c).) Liquids and accumulated solids removed from a tank 
system that ceases to be operated for storage of ECF product are waste 
(they are hazardous wastes if they exhibit a characteristic of 
hazardous waste or if the ECF were derived from a listed hazardous 
waste).
---------------------------------------------------------------------------

    \8\ Please note that we request comment on whether the final 
rule should include a ``reasonable efforts'' provision that would 
provide that the failure of an off-site, unaffiliated burner to meet 
the proposed conditions or restrictions of the exclusion would not 
mean the material was considered waste when handled by the 
generator, as long as the generator can adequately demonstrate that 
he has made reasonable efforts to ensure that the material will be 
managed by the burner under the conditions of the exclusion. See 
discussion in Part Two, Section V.B of the preamble.
    \9\ If the tank is used to actively accumulate hazardous waste 
after being taken out of service as an ECF product tank, the tank 
may be eligible for the provisions under Sec.  262.34 that waive the 
permit requirements for generator tanks that accumulate hazardous 
waste for not more than 90 days.
---------------------------------------------------------------------------

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

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

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

    We are, however, proposing to amend several provisions that apply 
to comparable fuel for the same reasons that we are proposing to apply 
the amended provisions to ECF. We specifically request comment on 
whether these clarifications and conforming amendments are appropriate:
     We are proposing to clarify the consequences of failure to 
satisfy the conditions of the existing comparable fuel exclusion. The 
material must be managed as hazardous waste from the point of 
generation. In addition, we are proposing to clarify that excluded fuel 
that is spilled or leaked and that no longer meets the conditions of 
the exclusion must be managed as a hazardous waste if it exhibits a 
characteristic of hazardous waste or if it was derived from a listed 
hazardous waste when the exclusion was claimed. See proposed Sec.  
261.38(d).
     We are proposing to clarify the status of tanks that cease 
to be operated as comparable fuel storage tanks. The tank system 
becomes subject to the RCRA hazardous waste facility standards if not 
cleaned of liquids and accumulated solids within 90 days of ceasing 
operations as a comparable fuel tank. In addition, we are proposing to 
clarify that liquids and accumulated solids removed from the tank after 
the tank ceases to be operated as a comparable fuel product tank must 
be managed as hazardous waste if they exhibit a characteristic of 
hazardous waste or if they were derived from a listed hazardous waste 
when the exclusion was claimed. See proposed Sec.  261.38(b)(13).
     We are proposing to waive the RCRA closure requirements 
for tank systems that are used only to store hazardous wastes that are 
subsequently excluded as comparable fuel. See proposed Sec.  
261.38(b)(14).
     We are proposing to clarify the regulatory status of 
boiler residues, including bottom ash and emission control residue. 
Burning excluded fuel that was derived from a listed hazardous waste 
does not subject boiler residues to regulation as derived-from 
hazardous waste. See Sec.  261.38(b)(12).
     We are proposing that the one-time notice by the generator 
to regulatory officials include an estimate of the average and maximum 
monthly and annual quantity of waste for which an exclusion would be 
claimed.\11\ See proposed Sec.  261.38(b)(2)(i)(D).
---------------------------------------------------------------------------

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

Part Two: Rationale for the Proposed Rule

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

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

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

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

[[Page 33290]]

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

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

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

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

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

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

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

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

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

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

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

[[Page 33291]]

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

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

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

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

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

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

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

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

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

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

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

[[Page 33292]]

we note that the hazardous waste boiler was operating under conditions 
less stringent than proposed for ECF boilers--it was burning only 20% 
natural gas as the primary fuel, while it is proposed that ECF boilers 
fire at least 50% primary fuel. Thus, acetaldehyde emissions may be 
higher than they would have been if the boiler had the hot, stable 
flame that burning 50% natural gas (or fuel oil) would provide.
    Finally, there were four exceedances for benzene that we 
nonetheless believe are comparable to fuel oil emissions. Three of the 
exceedances were below the highest fuel oil emission test run level of 
200 [mu]g/dscm, while the fourth exceedance was at a level of 260 
[mu]g/dscm, just somewhat higher. More importantly, for all four 
exceedances, the hazardous waste boiler was not operating under the 
conditions proposed for an ECF boiler. For all four exceedances, the