[Federal Register: December 19, 2008 (Volume 73, Number 245)]
[Rules and Regulations]
[Page 77953-78017]
[DOCID:fr19de08-18]

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Part IV

Environmental Protection Agency

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40 CFR Part 261

Expansion of RCRA Comparable Fuel Exclusion; Final Rule

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 261

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

Expansion of RCRA Comparable Fuel Exclusion

AGENCY: Environmental Protection Agency (EPA).

ACTION: Final rule.

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

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

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

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

General Information

A. Does This Action Apply to Me?

    Categories and entities potentially affected by this action
include:

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

B. Docket Copying Costs

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

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

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

D. Index of Contents

    The information presented in this preamble is organized as follows:

Part One: Background

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

Part Two: Summary of the Final Rule

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

Part Three: What Are the Major Changes Since Proposal?

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

Part Four: What Are the Responses to Major Comments?

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

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

Part Five: State Authority

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

Part Six: Costs and Benefits of the Final Rule

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

Part Seven: Statutory and Executive Order Reviews

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

Part One: Background

I. Statutory Authority

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

II. Background

A. What Is the Intent of the Rule?

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

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

B. Who Will Be Affected by This Rule?

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

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

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

Part Two: Summary of the Final Rule

I. What Is ECF?

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

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

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

A. What Are the Conditions for Storage?

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

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

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

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

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

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

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

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

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

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

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

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

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

B. What Are the Alternative Storage Conditions?

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

C. What Are the Other Storage Conditions?

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

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

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

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

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

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

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

III. What Are the Conditions for ECF Burners?

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

A. What Types of Combustors May Burn ECF?

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

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

B. What Are the Operating Conditions for Burners?

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

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

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

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

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

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

A. Fuel Analysis Plans

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

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

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

B. Sampling and Analysis

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

C. Speculative Accumulation and Legitimacy

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

D. Notifications

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

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

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

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

    Finally, ECF burners must submit a notification to the RCRA and CAA
regulatory authorities within 5 days of exceeding an operating limit
that is linked to the ECF automatic feed cutoff system. The
notification must document: (1) The exceedance; (2) the measures the
burner has taken to manage the material as a hazardous waste; and (3)
the measures the burner has taken to notify the generator that the
burner has failed to comply with a condition of the exclusion.
3. Notification of Closure of a Tank or a Container Storage Unit
    ECF generators and burners that store ECF in a tank or container
must submit a notification to the RCRA regulatory authority when a tank
or a container storage area goes out of ECF service.\25\ The
notification must state the date when the tank or container storage
unit is no longer used to store ECF. A tank or container storage unit
is out of ECF service if it no longer is used to store ECF that is
destined to be burned under the conditions of the exclusion.
---------------------------------------------------------------------------

    \25\ This provision is useful in assessing inspection
priorities, and in assuring that tanks and containers are closed
pursuant to the subtitle C standards if accumulated solids and
liquids are not removed within 90 days of cessation of operation as
an ECF storage unit. However, EPA considers the provision to be
legally severable from the other conditions attached to the
management of ECF.
---------------------------------------------------------------------------

E. Burner Certification

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

F. Recordkeeping

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

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

G. Transportation

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

H. Ineligible RCRA Hazardous Waste Codes

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

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

    It is the responsibility of the generator claiming the exclusion to
demonstrate eligibility.\27\ More specifically, to be eligible for this
exclusion, the person claiming the exclusion must document that ECF
meets the ECF specifications under Sec.  261.38(a)(2), as well as the
other conditions of the exclusion, including: the conditions
prohibiting blending and diluting to achieve the specifications under
Sec.  261.38(a)(4) and (a)(7); the implementation conditions under
Sec.  261.38(b); and the special conditions for managing ECF under
Sec.  261.38(c).
---------------------------------------------------------------------------

    \27\ The burden for demonstrating with appropriate documentation
compliance with the conditions of an exclusion in an enforcement
action is on the person claiming the exclusion. 40 CFR 261.2(f).
---------------------------------------------------------------------------

    After the exclusion for a hazardous secondary material has been
claimed, the conditions of the exclusion must continue to be met to
maintain the exclusion.\28\ If any person managing ECF fails to meet a
condition of the exclusion, the exclusion is lost and the fuel must be
managed as a hazardous waste from the point of generation. Therefore,
except as discussed below, EPA (or an authorized state) could choose to
bring an enforcement action under RCRA section 3008(a) for all
violations of the RCRA subtitle C requirements occurring from the time
the hazardous secondary material is generated through the time that it
is ultimately burned. See Sec.  261.38(d).
---------------------------------------------------------------------------

    \28\ Separate and distinct from any requirement or condition
established under this rule, all generators of a secondary
material--including ECF generators under this exclusion--have a
continuing obligation to conduct proper hazardous waste
determinations, including notifying the appropriate government
official if they are generating a hazardous waste. 40 CFR 262.11.
---------------------------------------------------------------------------

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

    \29\ An unaffiliated burner is a boiler or hazardous waste
combustor located at a facility that is not owned by the same parent
company that generated the ECF.
---------------------------------------------------------------------------

VI. What Conditions Apply to Spills and Leaks?

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

    \30\ If the storage unit is used to actively accumulate
hazardous waste after being taken out of service as an ECF product
storage unit, the storage unit may be eligible for the provisions
under Sec.  262.34 that waive the permit requirements for generator
storage units that accumulate hazardous waste for not more than 90
days.
---------------------------------------------------------------------------

VII. What Are the Clarifications and Revisions to the Existing
Conditions for Comparable Fuel?

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

     We are clarifying the regulatory status of boiler
residues, including bottom ash and emission control residue. That is,
these wastes would be hazardous if they exhibit a hazardous waste
characteristic. See Sec.  261.38(b)(12).
     We are requiring that the one-time notice by the generator
to regulatory officials include an estimate of the average and maximum
monthly and annual quantity of comparable fuel for which an exclusion
is claimed.\31\ See Sec.  261.38(b)(2)(i)(A). This condition applies
prospectively to generators that newly claim the exclusion and to
generators that must submit a revised notification because of a
substantive change in the information required by the notice.
---------------------------------------------------------------------------

    \31\ Providing an estimate of excluded quantities would help
regulatory officials establish inspection and monitoring priorities.
Omission of this condition was an oversight when the exclusion was
initially promulgated. We conditioned the exclusion on the burner
issuing a public notice that included this information (see existing
Sec.  261.38(c)(1)(ii)(D)), but we inadvertently did not specify
that the generator who claims the exclusion was to provide this same
information to regulatory officials.
---------------------------------------------------------------------------

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

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

Part Three: What Are the Major Changes Since Proposal?

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

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

    \33\ ECF constituent means the hydrocarbons and oxygenates in
Table 1 to Sec.  261.38, for which the specifications do not apply
for ECF.
    \34\ In addition to these changes to the ECF specification, the
final rule also requires that ECF must meet the viscosity
specification as generated. Viscosity is a specification that must
be met (for both ECF and comparable fuel) before a hazardous
secondary material is excluded as a fuel product. Given that ECF may
not be treated to meet the specifications, ECF must meet the
viscosity (and other) specifications as generated.
---------------------------------------------------------------------------

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

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

A. Storage in Containers Is Allowed

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

B. Alternative Storage Conditions Are Provided

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

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

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

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

D. Storage in Underground Storage Tanks Is Prohibited

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

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

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

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

B. What Are the Changes to the Burner Conditions?

1. Comparable Fuel May Be Primary Fuel
    To meet the condition that ECF must be fired with at least 50
percent primary fuel on a heat or mass input basis, the final rule adds
comparable fuel with an as-fired heating value of 8,000 Btu/lb or
higher to the list of fuels that may be used as a primary fuel.
Consequently, you may use the following fuels as primary fuel, provided
that they have an as-fired heating value of 8,000 Btu/lb or higher:
Fossil fuel; fuels derived from fossil fuel; tall oil; or comparable
fuel. See discussion in Part Four, Section V.D below, and Sec.
261.38(c)(2)(ii)(A) and (B).
2. The 50 Percent Primary Fuel Firing Rate Is Based on Heat and Mass
Input
    A minimum of 50 percent of the fuel fired to the boiler must be
primary fuel, determined on a total heat and mass input basis.\35\ The
proposed rule inadvertently stated that the minimum 50 percent firing
rate condition must be determined on a total heat input or volume input
basis, whichever results in a greater volume feedrate of primary fuel.
A mass basis for the calculation of the primary fuel firing rate is
more appropriate than a volume basis because it is consistent with the
mass feedrate limits for the ECF constituents, as discussed below. We
also note that the parallel provision for hazardous waste boilers for
which the DRE standard is waived (see Sec.  266.110) bases the 50
percent minimum primary fuel requirement on a heat or mass input,
whichever results in the greater mass input of primary fuel.\36\
---------------------------------------------------------------------------

    \35\ We note that this condition was worded at proposal as ``The
50 percent primary fuel firing rate shall be determined on a total
heat or volume input basis, whichever results in the greater volume
feedrate of primary fuel fired.'' As a practical matter, this means
that the primary fuel must provide at least 50% of the heat input to
the boiler and at least 50% of the volume input of fuels to the
boiler. To ensure that the meaning is clear, the final rule
expresses the condition as follows: The primary fuel shall comprise
at least 50% of the total fuel heat input to the boiler and at least
50% of the total fuel mass input to the boiler. (Note further that
we explain in the preamble that we meant to specify the mass input
at proposal rather than the volume input.) As an example of how the
condition works, if the primary fuel were to provide 60% of the heat
input to the boiler but only 40% of the fuel mass input, the mass
input must be increased to at least 50%.
    \36\ We note further that, when EPA initially promulgated the
Sec.  266.110 provisions, the rule established the 50 percent
primary fuel firing rate on a heat input or volume input, whichever
resulted in the greater volume input of primary fuel. EPA
subsequently amended the provision, however, to change the volume
basis to a mass basis. See 56 FR at 42510 (Aug. 27, 1991).
---------------------------------------------------------------------------

3. A Feedrate Limit for Each ECF Constituent Is Established
    The final rule establishes in Table 2 to Sec.  261.38 as a
condition of the exclusion a maximum allowable feedrate limit
normalized by gas flowrate for each ECF constituent \37\ for which the
specification does not apply under paragraph (a)(2)(ii)(B). The gas
flowrate-normalized feedrate limits have the units, ug/dscm, and are
converted to feedrate limits, kg/hr of ECF constituents, by multiplying
by the stack gas flowrate, dscm/hr. Although we did not propose
regulatory language for feedrate limits for ECF constituents, we
discussed at proposal the approach we would use to establish the
limits, and presented example limits. 72 FR at 33315-16.\38\ We have
considered comments on the proposed approach and have refined the
approach for the final rule, as discussed below.
---------------------------------------------------------------------------

    \37\ ECF constituent means the hydrocarbons and oxygenates
listed in Table 1 to Sec.  261.38 and for which the specifications
do not apply for ECF.
    \38\ As discussed at proposal (72 FR at 33314), we requested
comment on establishing feedrate limits for each ECF constituent in
response to a peer review comment stating that it may be problematic
to conclude that ECF emissions would invariably be comparable to
emissions from burning fuel oil. This is because ECF could have
unlimited concentrations of hydrocarbons and oxygenates and that
combustion is generally considered to be a constant percent
reduction process. Thus, as the concentration of an organic
constituent in the feed increases, the concentration of the compound
in the emissions may also increase.
---------------------------------------------------------------------------

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

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

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

    For the other 25 ECF constituents-the two PAHs and the oxygenates
other than acrolein--we identified surrogates for industrial boiler oil
emission levels.\40\ For the two PAHs, we identify a surrogate oil
emission level of 0.02 ug/dscm using emission data from other PAHs for
which we do have emission data from oil-burning boilers. This approach
is reasonable because: (1) 0.02 ug/dscm is at the low end of the range
of emission levels for PAHs from oil-burning boilers \41\; and it is
appropriate to select from the low end of this range because PAHs are
more toxic than the other hydrocarbons and the oxygenates \42\; and (2)
available emissions data indicate that PAHs are emitted at
substantially lower levels--less than 0.6 ug/dscm--than either the
oxygenates or the other hydrocarbons and the emission level we selected
are consistent with these data.
---------------------------------------------------------------------------

    \40\ For more information than provided in the preamble, see
USEPA, ``Final Technical Support Document for the Expansion of the
Comparable Fuels Exclusion,'' November 2008, Section 6.3.
    \41\ The oil emissions data for the eight PAHs are: 0.005 ug/
dscm; 0.02 ug/dscm; 0.04 ug/dscm; 0.1 ug/dscm; 0.1 ug/dscm, 0.16 ug/
dscm; 0.18 ug/dscm; and 0.61 ug/dscm.
    \42\ See the relative hazard ranking for the ECF constituents in
USEPA, ``Final Technical Support Document for the Expansion of the
Comparable Fuels Exclusion,'' November 2008, Section 2.4.
---------------------------------------------------------------------------

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

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

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

    As discussed at proposal, we investigated the DRE data available
for hazardous waste-fired liquid fuel boilers to project a DRE for the
ECF constituents.\46\ We have both DRE and feedrate data for
approximately 200 runs from 27 boilers for 10 compounds. Two of those
compounds are ECF constituents: Benzene and toluene. Based on analysis
of those data (i.e., the DRE data for the ECF constituents and other
compounds), it was reasonable to project a DRE for ECF constituents in
the feed of 99.99 percent for thermal stability class 1 and 2 compounds
(which are more difficult to destroy), and a DRE for ECF constituents
in the feed of 99.995 percent for class 3-7 compounds.\47\
---------------------------------------------------------------------------

    \46\ See 72 FR at 33315-16, and Document No. EPA-HQ-RCRA-2005-
0017-0067 and Document No. EPA-HQ-RCRA-2005-0017-0068.
    \47\ The Thermal Stability ranking classifies (generally)
hazardous compounds according to their gas phase thermal stability
under oxygen-starved conditions. Compounds are ranked according to
the temperature required to destroy 99% of the compound in 2 seconds
under oxygen-starved conditions. See USEPA, ``Guidance on Setting
Permit Conditions and Reporting Trial Burn Results, Volume II of the
Hazardous Waste Incineration Guidance Series,'' January 1989, Table
D-1.
---------------------------------------------------------------------------

    During development of the final rule and in response to public
comment,\48\ however, we concluded that, for ECF constituents that are
commonly formed as PICs (i.e., benzene, naphthalene, phenol, and
toluene),\49\ the effective, measured DRE may be lower (i.e., appearing
to be less efficient destruction evidenced by emissions of the
compound), particularly at low constituent feedrates, even under good
combustion conditions, considering the total emissions of the compound:
Emissions from unburned compounds in the feed, and emissions
attributable to PIC formation during the incomplete destruction of
other compounds in the ECF and other boiler fuels. Although the DRE for
the quantity of the compound in the feed to the boiler would be at
least 99.99% under good combustion conditions, the effective, measured
DRE of compounds that are common PICs may be lower than 99.99% when
they are fed at low feedrates. This is because at low feedrates, the
portion of the compound in the emissions that is attributable to PICs,
rather than unburned compound in the feed, can be substantial. As the
compound feedrate increases, emissions of the compound attributable to
unburned compound in the feed mask the quantity of the compound present
as a PIC, and the effective, measured DRE becomes more representative
of the feed-related DRE. Because ECF constituents can be fed at low
feedrates, however, the DRE used to calculate the ECF constituent
feedrate limits for the constituents that are common PICs--benzene,
naphthalene, phenol, and toluene--must account for the proportion of
the emissions of the constituent that is emitted as unburned compound
in the feed relative to the portion of emissions attributable to PICs

at low feedrates. Thus, the DREs used to calculate the feedrate limits
for the common PICs may be lower than the DREs associated with higher
feedrates where the PIC contribution is masked by unburned compound in
the feed.50 51
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    \48\ See USEPA, ``Comment Response Document for the Exclusion of
Emission-Comparable Fuel,'' October 2008, Section 4.7, Comment No.
126A.9.
    \49\ USEPA, ``Final Technical Support Document for the Expansion
of the Comparable Fuels Exclusion,'' November 2008, Section 6.3.
    \50\ If the DRE associated with high ECF constituent feedrates
were used to calculate the ECF constituent feedrate limits,
emissions from burning ECF at low feedrates would be higher than
from burning fuel oil. This is because the allowable emissions of
the compound would be calculated assuming incorrectly that the PIC
contribution would not be significant at low feedrates. When the PIC
contribution is considered, emissions of the compound would be
higher than from fuel oil emissions.
    \51\ Please note that, because we cannot quantify the increase
in DRE as feedrate increases, we projected a constant DRE across all
feedrates. Nonetheless, we conducted an analysis of DREs at higher
feedrates by drawing curves that bound the worst DREs at higher
feedrates. That analysis corroborated the ECF constituent feedrate
limits calculated by assuming a constant DRE across feedrates.
Although the analysis indicates that higher DREs are achieved at
higher feedrates, those higher DREs are not high enough to provide
comparable emissions, i.e., applying those DREs to the associated
feedrates would result in emissions exceeding fuel oil emission
levels. See USEPA, ``Final Technical Support Document for the
Expansion of the Comparable Fuels Exclusion,'' November 2008,
Section 6.3, and the memorandum from Bob Holloway, USEPA, to Docket
ID Number EPA-HQ-RCRA-2005-0017, entitled ``Projecting DREs to
Calculate ECF Constituent Feedrate Limits: Bounding Analysis to
Investigate the Relationship Between DRE and Feedrate,'' dated
November 24, 2008.
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    Although 14 ECF constituents are thermal stability class 1 or 2
compounds for which we project a feed-related (not effective) DRE of
99.99%, three of those compounds are common PICs: Benzene, naphthalene,
and toluene. For these three compounds, we believe it is reasonable to
consider reducing the feed-related DRE by an order of magnitude to
project a default, effective DRE of 99.9% to account for PIC emissions
at low feedrates of these compounds. We note, however, that we have
substantial DRE data for benzene (from two boilers at one source)
documenting (effective) DREs below 99.9 percent at low feedrates in the
range allowed for ECF. Consequently, we project a DRE for benzene of
99.7% because it is at the low end of the range of DREs achieved at the
low feedrates at which benzene in ECF may be fed.\52\ In addition, we
note that, for toluene, we have approximately 20 DRE runs at low
feedrates (i.e., the same low feedrates for which benzene DREs were
well below 99.99%), all of which are above 99.99%.\53\ We also have
more than 20 DRE runs for toluene at moderate feedrates, and all but
one of those runs achieved greater than 99.99% DRE. The lowest run
achieved 99.987% DRE. Consequently, we believe that a projected DRE of
99.99% is appropriate and is more in line with the measured DREs for
toluene than the nominal order of magnitude reduction in feed-related
DRE for common PICs that we would otherwise apply. We did not have DRE
data for naphthalene at proposal, and therefore use the default order
of magnitude reduction in DRE to account for PICs (i.e., 99.9%).
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    \52\ USEPA, ``Final Technical Support Document for the Expansion
of the Comparable Fuels Exclusion,'' November 2008, Section 6.3.
    \53\ USEPA, ``Final Technical Support Document for the Expansion
of the Comparable Fuels Exclusion,'' November 2008, Figure 6-2.
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    For similar reasons, for the thermal stability class 3 compound
that is a common PIC--phenol--we project an effective DRE of 99.95
percent, an order of magnitude lower than the 99.995 percent feed-
related projected DRE. We did not have DRE data for phenol at proposal,
and therefore use the default order of magnitude reduction in DRE to
account for PICs.
    We also considered whether PICs from the combustion of ECF
compounds that are not themselves common PICs could cause an exceedance
of the fuel oil (or surrogate) emission levels for the ECF
constituents.\54\ We note that several ECF constituents are aromatics
(e.g., the cresols, the phthalates, and acetophenone) that could form
PICs that are ECF constituents. It is reasonable to conclude, however,
that PICs from these compounds will not cause an exceedance of the fuel
oil (or surrogate) emission levels for other ECF constituents because:
(1) Only four ECF constituents are common PICs; and (2) the projected,
effective DREs for these PICs, and thus their feedrate limits, account
for PIC emissions.
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    \54\ We note that PICs from the combustion of ECF constituents
would not result in emissions of compounds other than ECF
constituents at levels greater than from oil emissions. This is
because the feedrate limits ensure that ECF constituents will not
result in emissions of ECF constituents, and by extension PICs from
those constituents, at levels higher than fuel oil.
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    EPA may consider expanding the comparable emissions approach, and
revisiting the DRE analysis, in light of new data we may gather. As
part of various rulemakings and other activities, EPA may receive data
from hazardous waste combustors on emissions and feed used, which might
be used to refine the comparable emissions approach.
    d. Implementation of Feedrate Limits. As discussed above, the
feedrate limits are expressed as a gas flowrate-normalized feedrate
(ug/dscm), which is the feedrate in mass/unit time normalized by stack
gas flowrate. The total feedrate limit (kg/hr) for each ECF
constituent, for total boiler fuels, is determined by the boiler gas
flowrate and the maximum ECF constituent feedrate (ug/dscm) provided by
Table 2 to Sec.  261.38. The maximum feedrate (kg/hr) of a constituent
attributable to ECF is the total boiler constituent feedrate (kg/hr)
minus the constituent feedrate (kg/hr) for all other boiler
feedstreams.
    To account for ECF constituents in fuel oil used as the primary
fuel, burners may use actual concentrations of ECF constituents in
their fuel oil, or the default concentrations based on fuel oil
analysis EPA used to support the comparable fuel specification.\55\ See
Table 3 to Sec.  261.38. Burners may also use other fuels as primary
fuel, including coal and natural gas. See Sec.  261.38(c)(2)(ii)(A). If
coal is the primary fuel, burners may use actual concentrations of ECF
constituents in their coal, or default concentrations based on AP-42
emission factors. See Table 4 to Sec.  261.38. If natural gas is the
primary fuel, burners may assume the gas does not contribute ECF
constituents.
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    \55\ USEPA, ``Final Technical Support Document for HWC MACT
Standards, Development of Comparable Fuel Specifications,'' May
1998, Appendix B.
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    Example calculations for maximum feedrates of ECF constituents and
concentrations of constituents in ECF, and example ECF firing rate
restrictions resulting from the ECF constituent feedrate limits are
presented in USEPA, ``Final Technical Support Document for the
Expansion of the Comparable Fuels Exclusion,'' November 2008, Section
6.3.
4. Additional Operating Parameters Must Be Linked to the ECF Automatic
Feed Cutoff System
    The final rule requires that additional operating parameters be
linked to the ECF automatic feed cutoff system (AFCOS) to ensure
compliance with the conditions of the exclusion. In addition to
requiring that the ECF AFCOS engage when carbon monoxide levels exceed
100 ppmv on an hourly rolling average and when the combustion gas
temperature at the inlet to the initial dry particulate matter control
device exceeds 400 [deg]F on an hourly rolling average, as proposed (72
FR at 333296 and 333298), the final rule also requires that the ECF
AFCOS engage when: (1) The emission-comparable fuel feedrate limit for
a constituent exceeds the limit provided in Table 2 to Sec.  261.38;
(2) the primary fuel firing rate is below 50 percent on either a heat
input or mass input basis; and (3) the steam production rate (or other
appropriate indicator) indicates that the boiler load

is below 40 percent (i.e., the automatic feed cutoff system activates
when one of the conditions on burning is about to be exceeded). See
Sec.  261.38(c)(2)(ii)(F)(1).
    In addition, the final rule corrects the proposed excessive
exceedance reporting requirement to require an exceedance report within
five days of exceeding an operating limit linked to the AFCOS when ECF
is in the combustion chamber. At proposal, we inadvertently directly
adopted for ECF the excessive exceedance reporting requirements
applicable to hazardous waste combustors (HWCs). For HWCs, operating
parameters that are linked to the automatic waste feed cutoff system
are indicators that a source may have failed to maintain compliance
with an emission standard. Thus, exceeding one or more operating limits
more than 10 times in a 60 day block is considered to be excessive (and
indicating an increased possibility that an emission standard may be
exceeded), and an excessive exceedance report is required. Upon receipt
of an excessive exceedance report, the regulatory authority may review
the HWC's operations and provide additional requirements to minimize
exceedances.
    For ECF burners, however, any exceedance of an operating limit
linked to the AFCOS when ECF is in the combustion chamber is a failure
to comply with a condition of the exclusion. In that event, the
material must be managed as hazardous waste from the point of
generation. Accordingly, this final rule requires that the burner
notify the regulatory authority within five days of exceeding an
operating limit linked to the AFCOS when ECF is in the combustion
chamber. Those operating parameters that are linked to the AFCOS and
for which limits are established are: (1) CO level in the stack gas;
(2) temperature at the inlet to the FF or ESP for sources not burning
coal as the primary fuel; (3) an indicator of boiler load; (4) primary
fuel firing rate; and (5) feedrate of ECF constituents. The
notification must document: (1) The exceedance; (2) the measures the
burner has taken to manage the material as a hazardous waste; and (3)
the measures the burner has taken to notify the generator that the
burner has failed to comply with a condition of the exclusion.
5. Burners Must Provide Operator Training
    The final rule includes a condition requiring boiler operator
training. See Sec.  261.38(c)(2)(iii). Boiler operator training is
needed to ensure compliance with the boiler operating conditions under
Sec.  261.38(c)(2)(ii). Although we included a condition in the
proposed rule that would require operator training for storage
units,\56\ and so implied that operator training would generally be an
applicable condition, we inadvertently did not propose a parallel
condition for boiler operator training.
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    \56\ See proposed Sec.  261.38(c)(1)(iii)(D) that adopts the
SPCC training provisions under Sec.  112.7(f).
---------------------------------------------------------------------------

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

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

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

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

B. What Are the Changes to the Notification Provisions?

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

one-time notification \58\ to the RCRA and CAA regulatory authority in
whose jurisdiction the exclusion is being claimed. In particular, in
addition to the general facility information and an estimate of the
average and maximum monthly and annual quantity of hazardous secondary
materials for which an exclusion would be claimed under the proposed
rule, the final rule is conditioned on the generator also providing an
estimate of the annual quantity of each ECF stream, and, for each ECF
stream, the maximum concentration of each ECF constituent that exceeds
the comparable fuel specification in Table 1 to Sec.  261.38. See Sec.
261.38(b)(2)(i)(B). This additional information characterizing the ECF
will assist the regulatory authorities establish monitoring and
enforcement priorities.
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    \58\ If there are subsequent, substantive changes in the
information provided in the notification, the generator must submit
a revised notification to the regulatory authorities.
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    For burners of ECF that receive the fuel from an offsite generator,
the final rule also expands the information required in the one-time
notification from the burner to the RCRA and CAA regulatory authority
in whose jurisdiction the exclusion is being claimed. In particular, in
addition to the general facility information and certification of
compliance with the storage and burner conditions of the exclusion
required under the proposed rule, the final rule also requires the
burner to: (1) Provide an estimate of the maximum annual quantity of
ECF that will be burned, and an estimate of the maximum as-fired
concentrations of each ECF constituent for which the ECF exceeds the
specifications for comparable fuel in Table 1 to Sec.  261.38; and (2)
provide documentation that ECF will be fired into the flame zone of the
primary fuel.\59\ See Sec.  261.38(c)(5). This additional information
characterizing the ECF and boiler operating conditions will assist
regulatory authorities to establish monitoring and enforcement
priorities.
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    \59\ See discussion in Part Four, Section IV.C regarding the
rationale for documenting that ECF will be fired into the flame zone
of the primary fuel, and guidance on acceptable documentation.
---------------------------------------------------------------------------

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

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

    As proposed, an excluded fuel (i.e., existing comparable fuel,
synthesis gas fuel, and ECF) loses its exclusion if any person managing
the fuel fails to comply with the conditions of the exclusion under
Sec.  261.38, and the hazardous secondary material must be managed as a
hazardous waste from the point of generation. In such situations, EPA
or an authorized state agency may take enforcement action under RCRA
section 3008(a).
    The final rule provides a ``reasonable efforts'' provision,
however, to address generator liability when an offsite, unaffiliated
burner fails to comply with a condition of the exclusion for ECF.\60\
If the generator who claims the exclusion for ECF that is burned in an
off-site, unaffiliated boiler \61\ documents in the operating record
that reasonable efforts have been made to ensure that the burner
complies with the conditions of exclusion, the burner rather than the
generator will be liable for discarding a hazardous waste upon a
finding that the burner has not complied with a condition of exclusion.
See Sec.  261.38(d)(2).
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    \60\ A reasonable efforts provision is not provided for
comparable fuel and synthesis gas fuel generators because there are
minimal conditions on burners for those excluded fuels, and the
generator can readily determine if the burner has complied with
those conditions. Comparable fuel and syngas fuel burners must: (1)
Publish a public notice of their intent to burn excluded fuel, as
required by Sec.  261.38(b)(2(ii); and (2) submit a certification to
the generator, as required by Sec.  261.38(b)(10)(i).
    \61\ The rule defines an unaffiliated burner as a boiler or
hazardous waste combustor located at a facility that is not owned by
the same parent company that generated the ECF.
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    The reasonable efforts must be based on an objective evaluation by