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