Appendix — Cement Kiln Recycling Coalition v. Browner
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931936 JUN - 61%
No. ——ogFice OF THE CLERK
IN THE
Supreme Court of the United States
OCTOBER TERM, 1993
CEMENT KILN RECYCLING COALITION,
HOLNAM, INC.,
LONE STAR INDUSTRIES, INC., and
SAFETY-KLEEN CoORP.,
Petitioners,
¥,
CAROL M. BROWNER, ADMINISTRATOR,
U.S. ENVIRONMENTAL PROTECTION AGENCY, and
U.S. ENVIRONMENTAL PROTECTION AGENCY,
Respondents.
Petition for a Writ of Certiorari to the
United States Court of Appeals
for the District of Columbia Circuit
APPENDIX TO
PETITION FOR WRIT OF CERTIORARI
GENE A. LUCERO
Counsel of Record
for Petitioners
LATHAM & WATKINS
633 W. Fifth Street
Suite 4000
Los Angeles, CA 90071-2007
(213) 485-1234
WILSON - Epes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001
re a
TABLE OF CONTENTS
APPENDIX A Page
Opinion of the United States Court of Appeals for
the District of Columbia Circuit in Horsehead Re-
source Development Co. v. Browner, Nos. 91-1221
Pe a ee Pr ee la
APPENDIX B
Final Rule: Technical Clarification Amendments
and Corrections, 57 Fed. Reg. 38558 (Aug. 25,
1992) Sethi thae tedden Dah der ght SES en eed 50a
APPENDIX C
Final Rule, 56 Fed. Reg. 7134 (Feb. 21, 1991) ..... 64a
APPENDIX D
Proposed Rule, Supplemental Proposed Rule, Tech-
nical Corrections, and Request for Comments, 55
Fed. Reg. 17862 (April 27, 1990) _.. ROSE
APPENDIX E
Supplement to Proposed Rule, 54 Fed. Reg. 43718
(Oct. 26, 1989) _............ TOE A pesecuietabiells 144a
APPENDIX F
Proposed Rule and Request for Comment, 52 Fed.
| eee 173a
APPENDIX G
Order Denying Petitioners’ Petition for Rehear-
ing, in Horsehead Resource Development Co. v.
Browner, Nos. 91-1221 et al., Order Denying Peti-
tioners’ Petition for Rehearing En Banc, in Horse-
head Resource Development Co. v. Browner, Nos.
I Ce ee) OR Pe ... 197a
Note: A list of parties to the proceedings in the court below and
a list of Petitioners’ parent companies and subsidiaries is
provided in Section II of the Petition for Certiorari.
ii
TABLE OF CONTENTS—Continued
APPENDIX H
Regulations Involved: Excerpt from 57 Fed. Reg.
1992); Excerpt of 56 Fed.
38558, 38565 (Aug. 25,
Reg. 7134, 7208-12, 7220-29
APPENDIX I
Excerpt from Joint Brief of Industry Petitioners
and Intervenors in Support, Filed in Horsehead
Resource Development Co. v. Browner, Nos. 91-
1221 et al.
la
APPENDIX A
UNITED STATES CCURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 25, 1993 Decided February 22, 1994
No. 91-1221
“COMPLEX”
HORSEHEAD RESOURCE DEVELOPMENT COMPANY, INC.,
Petitioner
V.
CAROL M. BROWNER, ADMINISTRATOR,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
AND UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Respondents
RSR CORPORATION,
INTERNATIONAL MILL SERVICE,
Dow CHEMICAL COMPANY,
B.F. GOODRICH COMPANY,
AMERICAN IRON AND STEEL INSTITUTE,
AMERICAN MINING CONGRESS,
CHEMICAL WASTE MANAGEMENT, INC.,
ASSOCIATION OF BATTERY RECYCLERS, INC.,
EDISON ELECTRIC INSTITUTE, et al.,
SOLITE CORPORATION,
CHEMICAL MANUFACTURERS ASSOCIATION,
AMERICAN PETROLEUM ASSOCIATION,
HAZARDOUS WASTE TREATMENT COUNCIL,
CEMENT KILN RECYCLING COALITION,
BATTERY COUNCIL INTERNATIONAL,
AMERICAN COKE AND COAL CHEMICALS INSTITUTE,
2a
CITIZENS FOR A SAFE ENVIRONMENT, ef al.,
MARINE SHALE PROCEssors, INC.,
STEEL MANUFACTURERS ASSOCIATION SPECIALTY
STEEL INDUSTRY OF THE UNITED STATES,
TENNESSEE EASTMAN COMPANY,
CYPRUS MIAMI MINING CORPORATION,
INTERNATIONAL METALS RECLAMATION COMPANY, INC..
Intervenors
No. 91-1222
ASSOCIATION OF BATTERY RECYCLERS, INC.,
- Petitioner
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY.
Respondent
No. 91-1223
RSR CorporatTION,
» Petitioner
UNITED STATES ENVIRONMENTAL PROTECTION AG
Respondent
ENCY,
No. 91-1230
SOLITE CORPORATION,
_ Petitioner
CAROL M. BROowNER, ADMINISTRATOR,
UNITED STATES ENVIRONMEN rAL PROTECTION AGEN
AND UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Respondents
CY,
, .
3 tes
Pee
3a
No. 91-1234
AKJ INDusTRIEsS, INC.,
y Petitioner
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent
No. 91-1237
MARINE SHALE PROCESSORS, INC.,
¥. Petitioner
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent
No. 91-1238
TENNESSEE EASTMAN COMPANY,
. Petitioner
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent
No. 93-1240
CITIZENS For A SAFE ENVIRONMENT, et al.,
. Petitioners
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY.
Respondent
AKJ INDUSTRIES, INC.,
Intervenor
ta
No. 91-1241
CHEMICAL MANUFACTURERS ASSOCIATION,
Petitioner
Vv.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent
No. 91-1244
AMERICAN IRON AND STEEL INSTITUTE,
Petitioner
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent
AMERICAN COKE AND COAL CHEMICALS INSTITUTE,
Intervenor
No. 91-1245
CEMENT KILN RECYCLING COALITION,
Petitioner
Vv.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent
No. 91-1572
CEMENT KILN RECYCLING COALITION,
Petitioner
Vv.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent
Sa
ASSOCIATION OF BATTERY RECYCLERS, INC.,
EDISON ELECTRIC INSTITUTE, et al.,
HORSEHEAD RESOURCE DEVELOPMENT COMPANY, INC.,
Dow CHEMICAL COMPANY,
INTERNATIONAL MILL SERVICE, INC.,
AMERICAN MINING CONGRESS,
AMERICAN IRON AND STEEL INSTITUTE,
Intervenors
No. 91-1575
SOLITE CORPORATION,
) Petitioner
CAROL M. BROWNER, ADMINISTRATOR,
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
AND UNITED STATES ENVIRONMENTAL
PROTECTION AGENCY,
Respondents
ASSOCIATION OF BATTERY RECYCLERS, INC.,
EDISON ELECTRIC INSTITUTE, et al.,
AMERICAN MINING CONGRESS,
Dow CHEMICAL COMPANY,
INTERNATIONAL MILL SERVICE, INC.,
HORSEHEAD RESOURCE DEVELOPMENT COMPANY, INC.,
AMERICAN IRON AND STEEL INSTITUTE,
Intervenors
No. 91-1576
TENNESSEE EASTMAN COMPANY,
Petitioner
Vv.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent
6a
ASSOCIATION OF BATTERY RECYCLERS, INC.,
MORSEHEAD RESOURCE DEVELOPMENT COMPANY, INc.,
Dow CHEMICAL COMPANY,
INTERNATIONAL MILL SERVICE, INC.,
AMERICAN MINING CONGRESS,
AMERICAN IRON AND STEEL INSTITUTE,
EDISON ELECTRIC INSTITUTE, ef al.,
Intervenors
No. 92-1392
CONTINENTAL CEMENT COMPANY,
LONE STAR INDUSTRIES. INC.,
HOLNAM INC.,,
SAFETY-KLEEN CORPORATION,
Petitioners
Vv.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent
No. 92-1459
CEMENT KILN RECYCLING COALITION,
Petitioner
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent
EDISON ELECTRIC INSTITUTE,
NATIONAL RURAL ELECTRIC COOPERATIVE ASSOCIATION,
AMERICAN PUBLIC PowER ASSOCIATION,
UTILITY SOLID WASTE ACTIVITIES GROUP,
AMERICAN MINING CONGRESS,
Intervenors
Ta
No. 92-1601
LAFARGE CORPORATION,
¥ Petitioner
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent
EDISON ELECTRIC INSTITUTE,
NATIONAL RURAL ELECTRIC COOPERATIVE ASSOCIATION,
AMERICAN PUBLIC Power ASSOCIATION,
UTILITY SoLIp WAsTE ACTIVITIES GROUP,
Intervenors
No. 92-1610
GIANT Group, LTD.,
7 Petitioner
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,
Respondent
EDISON ELECTRIC INSTITUTE,
NATIONAL RURAL ELECTRIC COOPERATIVE ASSOCIATION,
AMERICAN PUBLIC PowER ASSOCIATION,
UTILITY SOLID WASTE ACTIVITIES GROUP,
Intervenors
Petitions for Review of an Order of the
Environmental Protection Agency
Before: WaLtp, Epwarps and BUCKLEY, Circuit
Judges.
Opinion for the Court filed Per Curiam.
Per Curiam: This case involves challenges by indus-
ty and environmentalist petitioners to an Environmental
Protection Agency (“EPA”) rule interpreting section
8a
3004(q) of the Resource Conservation and Recovery Act
(“RCRA”), 42 U.S.C. § 6924(q) (1988), which directs
the agency to regulate facilities burning hazardous waste
as fuel. The rule, entitled “Burning of Hazardous Waste
in Boilers and Industrial Furnaces” (“BIF Rule”), 56
Fed. Reg. 7,134 (1991) (codified as amended by subse-
quent corrections and technical amendments at 40 C.F.R.
Parts 260, 261, 264, 265, 266, 270, 271 (1992)), is
principally designed to establish air emissions require-
ments for facilities burning hazardous waste as fuel. The
BIF Rule also integrates the mandates of section 3004(q)
and the Bevill Amendment, the latter of which is a RCRA
provision that excludes certain types of waste from RCRA
Subtitle C’s hazardous waste management regime until the
EPA completes several studies and submits their results
to Congress. See 42 U.S.C. § 6921(b)(3)(a) (1988).
Petitioners attack the BIF Rule on three grounds.’ First,
both groups of petitioners contend that the BIF Rule fails
to adhere to what they regard as Congress’ clear expres-
sion of its intent in the Bevill Amendment. There are two
types of “Beville wastes” at issue in this case: cement kiln
dust (“ckd”); and combustion residues produced when
BIF’s burn fuel consisting primarily of coal, oil, and other
fossil fuels. Although the Bevill Amendment states that
ckd and fossil fuel combustion residues are exempt from
Subtitle C pending completion of the required studies, the
BIF Rule provides that these Bevill wastes can under
some circumstances be regulated as Subtitle C hazardous
wastes when they are produced by BIF’s burning fuel
which contains hazardous waste. Industry Petitioners
contend that the Bevill Amendment exempts ckd and fos-
sil fuel combustion residues from Subtitle C regardless of
whether they are the product of hazardous waste fuels.
Environmentalist petitioners, Citizens for a Safe Environ-
1 The two groups of petitioners originally offered twelve separate
challenges to the BIF Rule; however, all but three of these issues
were resolved by settlements between the parties on the eve of oral
argument. We address only the three remaining challenges.
9a
ment, et al. (“CASE petitioners”), make the opposite ar-
gument, contending that Bevill wastes produced by BIF’s
burning any quantum of hazardous waste are automati-
cally subject to Subtitle C. We reject both of these chal-
lenges and uphold the BIF Rule as a permissible interpre-
tation of RCRA § 3004(q) and the Bevill Amendment.
Second, we uphold the BIF Rule insofar as it regulates
air emissions from BIF’s burning mixtures of hazardous
waste and non-waste fuel. Industry petitioners contend
that the rule is invalid because non-waste fuels are outside
the EPA’s jurisdiction under RCRA. We hold, however,
that RCRA § 3004(q) gives the EPA the authority to
regulate facilities which burn hazardous waste, not merely
the hazardous waste component of the fuel they burn.
The EPA contends that it is not technologically feasible
to distinguish air emissions generated solely by the haz-
ardous waste component of mixed fuels. Because BIF’s
that burn hazardous waste are “treating” that waste as
that term is defined in RCRA, we can find no error in
the EPA’s position that air emissions from the co-process-
ing mixed hazardous waste and non-waste fuels have a
sufficiently close nexus to waste treatment to justify the
regulation at issue. In addition, we hold that the agency’s
failure explicitly to respond to the specific alternatives
proposed by Industry petitioners was not arbitrary and
capricious because the EPA’s general discussion of its de-
cision to regulate non-waste fuels provided a sufficient
response to Industry petitioners’ proposals.
Finally, Industry petitioners challenge the EPA’s pur-
ported regulation of products of incomplete combustion
(“PICs”) produced when BIFs burn hazardous waste
fuel. We remand “Tier III” of the PIC provisions of the
BIF Rule on the grounds that the regulation was promul-
gated without adequate notice and comment, and because
the disputed rule lacks an adequate basis in the rulemak-
ing record; however, we uphold the Tier I and Tier II
standards.
I
10a
1. BACKGROUND
Subtitle C of RCRA establishes a comprehensive
“cradle-to-grave” regulatory program for the treatment,
storage, and disposal of hazardous waste. United Tech-
nologies Corp. v. EPA, 821 F.2d 714, 716 (D.C. Cir.
1987). For RCRA purposes, burning hazardous waste
constitutes “treatment” of it,” thus giving the EPA the
authority to regulate this activity. The EPA promulgated
the BIF Rule pursuant to the mandate of RCRA section
3004(q), which directs the agency to establish standards
which will “protect human health and the environment”
governing facilities that burn fuel containing hazardous
waste. 42 U.S.C. § 6924(q) (1988).°
Hazardous waste is burned for three purposes: to de-
stroy the waste (incineration), to serve as fuel (energy
2See 42 U.S.C. §6903(34) (1988) (“treatment” means “any
method, technique, or process, including neutralization, designed
to change the physical, chemical, or biological character or com-
position of any hazardous waste... .”); 40 C.F.R. § 260.10 (1922)
(“treatment” includes “any method, technique, or process ... de-
signed to... recover energy or material resources from [hazard-
ous] waste... .”); see also Shell Oil Co. v. EPA, 950 F.2d 741,
752-56 (D.C. Cir. 1991) (upholding the EPA’s decision to incor-
porate resource recovery within the regulatory definition of “treat-
ment”).
3 The relevant portion of RCRA § 3004(q) reads:
(q) Hazardous waste used as fuel
(1) Not later than two years after November 8, 1984, and
after notice and opportunity for public hearing, the Adminis-
trator shall promulgate regulations establishing such—
(A) * # &
(B) standards applicable to the owners of facilities which
burn, for purposes of energy recovery, any fuel [produced
from or mixed with hazardous waste or] which otherwise
contains any hazardous waste identified or listed under
section 6921 of this title. ...
* &£ & &
as may be necessary to protect human health and the environment.
42 U.S.C. § 6924(q) (1988).
lla
recovery), and to recover usable materials such as metals
‘materials recovery). Hazardous waste often has a great
ueal of heat value when used as a fuel; and this use also
has the benefit of destroying or at least reducing the vol-
ume of the waste, thereby reducing reliance on landfilling.
In its early attempts to implement Subtitle C, the EPA
was particularly concerned that its regulations not dis-
courage beneficial uses of hazardous wastes, such as en-
ergy recovery and recycling. See 45 Fed. Reg. 33,804 at
33.092-94 & 33,120 (1980). For this reason, in 1981,
the EPA deferred regulating air emissions from BIF’s
burning hazardous waste as fuel or for materials recov-
ery, but did adopt rules controlling emissions from haz-
ardous waste incinerators, which burn waste primarily in
order to destroy it. 46 Fed. Reg. 7,666. 7,678 (1981).
Exempting facilities that burned hazardous waste for
energy recovery from Subtitle C’s requirements created a
regulatory “loophole” by means of which over half of the
hazardous waste generated in the United States came to
be burned in BIF’s not subject to RCRA. H.R. Rep. No.
198, 98th Cong., Ist Sess., pt. 1, at 39 (1983). Con-
gress closed this loophole by enacting RCRA section
3004(q) as part of the Hazardous and Solid Waste
Amendments of 1984, Pub. L. No. 98-616, § 204, 98
Stat. 3221. Section 3004(q) set a deadline of November
8 1986 for the EPA to promulgate regulations governing
the burning of hazardous waste for energy recovery.
In 1985, in response to section 3004(q), the EPA im-
posed its first controls on the marketing and burning of
hazardous waste fuels. 50 Fed. Reg. 665 (1985); 50
Fed. Reg. 49,164 (1985). These regulations provide that
hazardous waste or fuels containing hazardous waste are
subject to transportation and storage controls under Sub-
title C prior to being burned as fuel or being blended or
processed for use as fuel.
In 1987, again pursuant to section 3004(q), the EPA
published its proposed BIF Rule for public comment. 52
12a
Fed. Reg. 16,982-17,050 (1987). The EPA issued a
Supplemental rulemaking proposal in 1989. 54 Fed. Reg.
43.718-63 (1989). The final BIF Rule, which we review
in the instant case, was published in the Federal Register
in 1991. 56 Fed. Reg. 7,134-240 (1991). The EPA sub-
sequently promulgated a series of technical amendments
and clarifications to the BIF Rule. See Corrections and
Technical Amendments, 56 Fed. Reg. 32,688-852 (1991);
Technical Amendments, 56 Fed. Reg. 42,504-17 (1991):
echnical Clarification Amendments and Corrections, 57
Fed. Reg. 38 558-66 (1992),
II. Discussion
A. Standard of Review
The standard of review in this case is the familiar two-
part framework of Chevron U.S.A., Inc. v. Natural Re-
sources Defense Council, 467 U.S. 837 (1984). First.
the court asks whether Congress “has directly spoken to
the precise question at issue.” Id. at 842. If so, then the
intent of Congress is controlling. If, however, the mean-
ing of the statute is ambiguous, then we will uphold the
agency's interpretation so long as it is “based on a per-
missible construction of the Statute.” Jd.
As this court explained in Natural Resources Defense
Council v. Reilly, 983 F.2d 259, 266 (D.C. Cir. 1993):
[I]t is only legislative intent to delegate such au-
thority that entitles an agency to advance its own
statutory construction for review under the deferen-
tial second prong of Chevron. See Chevron, 467
U.S. at 843-44. “If Congress has explicitly left a gap
for the agency to fill, there is an express delegation
of authority. . . . Sometimes the legislative delegation
to an agency on a particular question is implicit
rather than explicit. In such a Case, a court may not
substitute its own construction of a Statutory provi-
sion for a reasonable interpretation made by the ad-
ministrator of an agency.” /d.
13a
CASE petitioners and Industry petitioners attack the
BIF Rule’s interpretation of the Bevill Amendment from
opposite directions, both relying on Chevron step one to
argue that Congress’ clearly expressed intent requires the
outcome they advocate. CASE petitioners argue that the
EPA may not exempt any co-processed Bevill wastes from
Subtitle C because Congress did not intend for the Bevill
Amendment to cover combustion residues or ckd pro-
duced by fuel that contains hazardous waste. Industry
petitioners argue that when Congress enacted the Bevill
Amendment it was aware that Bevill devices and BIF’s
burned hazardous waste, and that the amendment was
intended to exempt ckd and residues without regard to the
type of fuel that produced them. The EPA contends, and
we agree, that the language of the Bevill Amendment
does not unambiguously address the issue of hazardous
waste fuels burned in Bevill devices, and that its regula-
tion is a permissible interpretation of the statute under
Chevron step two.
B. Interpretation of the Bevill Amendment Under the
BIF Rule
1. The Bevill Amendment
The Bevill Amendment * to RCRA limits the authority
of the EPA to regulate certain enumerated types of solid
* 42 U.S.C. § 6921 (b) (3) (a) (1988) :
[E]ach waste listed below shall, except as provided in sub-
paragraph (B) of this paragraph, be subject only to regulation
under other applicable provisions of Federal or State law in
lieu of this subchapter until at least six months after the date
of submission of the applicable study required to be conducted
under subsection (f), (n), (0), or (p) of section 6982 of this
title and after promulgation of regulations in accordance with
subparagraph (C) of this paragraph:
(i) Fly ash waste, bottom ash waste. slag waste, and flue
gas emission control waste generated primarily from the
combustion of coal or other fossil fuels.
f Continued |
l4a
wastes until it completes studies concerning them and sub-
mits the results of those studies to Congress. The EPA
has yet to complete the relevant studies, although the stat-
utory deadlines expired in 1982 and 1983. See 42 U.S.C.
§ 6982(n), (0) (1988). Two classes of Bevill wastes are
relevant to the dispute before us: cement kiln dust or
“ckd.” which is the particulate matter emitted in the ex-
haust gases of cement kilns that is collected by emission
control devices such as fabric filters or electrostatic pre-
cipitators; and combustion residues, such as ash and par-
ticulates, which are generated primarily from the combus-
tion of coal or other fossil fuels.
This court has described the Origins of the Bevill
Amendment at length in three previous decisions concern-
ing the provision for mining wastes, 42 U.S.C. § 6924
(b) (3) (a) (ii) (1988). See Solite Corp. v. EPA, 952
F.2d 473, 477-82 (D.C. Cir. 1991); Environmental De-
fense Fund v. EPA, 852 F.2d 1316, 1318-21 (D.C. Cir.
1988), cert. denied, 489 U.S. 1011 (1989) (“EDF IT’);
Environmental Defense Fund vy. EPA, 852 F.2d 1309,
1310-12 (D.C. Cir. 1988), cert. denied, 489 US. 1011
(1989) (“EDF I”). Here we need only summarize our
earlier holdings as to Congress’ intent in enacting the
Amendment.
In 1978. in its first proposal for regulation of hazard-
ous waste under Subtitle C, the EPA proposed to create a
category of “special wastes.” among which were ckd and
combustion residues produced by utilities, for which spe-
cial, less stringent standards might be appropriate. See
43 Fed. Reg. 58,946, 58.992 (1978). The EPA had not
yet fully studied these special wastes, but the agency be-
lieved they potentially presented unique problems because
* [Continued]
(ii) Solid waste from the extraction, beneficiation, and
processing of ores and minerals, including phosphate rock
and overburden from the mining of uranium ore.
iii) Cexent kiln dust waste.
15a
they were generated in very large volumes but posed rela-
tively low hazards to human health. Because of the large
volumes of these wastes, the EPA was concerned that it
might be impractical to dispose of them in facilities that
fully complied with Subtitle C of RCRA. However, the
EPA eventually decided to abandon the concept of “spe-
cial wastes.” The agency pointed out that the definition
of hazardous waste in its final regulations was less strin-
gent than the one it had initially proposed (meaning
fewer special wastes would qualify as hazardous wastes),
and that the final waste management standards were more
flexible than those it had originally proposed. Thus, it was
felt that there was no need for a category of “special
wastes.” See 45 Fed. Reg. 33,084, 33,174-75 (1980):
EDF II, 852 F.2d at 1319; EDF I, 852 F.2d at 1311.
One month before the 1980 Subtitle C regulations were
to take effect, Congress enacted the Bevill Amendment as
part of the Solid Waste Disposal Act Amendments of
1980, Pub. L. No. 96-482, 94 Stat. 2334, 2337 $7. In
response, the EPA amended its hazardous waste rezula-
tions in November 1980 to incorporate the Bevill Amend-
ment’s exemption of ckd, mining wastes and fossil fuel
combustion residues from the requirements of Subtitle C.
45 Fed. Reg. 76,618 (1980).
In EDF /1, this court held that “it is clear that Congress
intended the Bevill exclusion to encapsulate the ‘special
waste’ concept articulated by the EPA in 1978.” EDF II,
852 F.2d at 1329. That case held that the EPA was not
permitted simply to exempt from Subtitle C all mining
wastes potentially within the scope of the Bevill Amend-
ment, but rather was required to comply with Congress’
clearly expressed intent that the agency exempt only those
mining wastes that would have fallen within the category
of “special wastes.” EDF I] thus required the EPA to
develop criteria to determine whether potentially exempt
mining wastes were “high volume, low hazard” wastes.
such as the EPA had proposed to include in the “special
waste” category in 1978. Jd. at 1331. Accordingly, this
l6a
court also held that the EPA could not continue to grant
a Bevill exemption from Subtitle C to six types of smelter
wastes that the agency had found to be low volume and
high hazard, because such wastes were outside the scope
of the Bevill Amendment. /d. at 1329-30,
1329). This court went on to hold, however, that Con-
gress had not directly addressed “the appropriate delinea-
tion of the ‘special waste’ concept, and the attendant ‘high
volume’ and ‘low hazard’ Criteria... .” Jd. at 482 (em-
phasis added). Our review of the EPA’s volume and
hazard criteria for mining waste thus was limited to the
(citing Chevron, 467 U.S. at 843).
2. The Integration of the Bevill A mendment and
Section 3004(q) Mandates Under the BIF Rule
The EPA has adopted a two-part definition of “hazard-
Ous wastes” that are Subject to Subtitle C. “Characteristic
hazardous wastes” are substances exhibiting one or more
of four hazardous characteristics: ignitability, corrosivity,
mixed with other wastes—a provision known as the “mix-
ture rule.” 40 CFR. § 261.3(a) (2) (iv) (1992). A
listed waste also remains a hazardous waste for Subtitie C
purposes even after it is “treated” in some fashion—the
so-called “derived-from” rule. 40 C.F.R. § 261.3(c) (2)
MOREE 6
17a
(1), (d)(2) (1992). As noted above, for RCRA pur-
poses, the burning of a hazardous waste for any purpose,
whether for fuel, materials recovery or destruction, con-
stitutes “treatment” 42 U.S.C. § 6903(34) (1988).°
All parties to this litigation agree that ckd and combus-
tion residues from Bevill devices burning hazardous waste
fuel would be subject to Subtitle C by operation of the
derived-from rule absent the Bevill Amendment; this is so
because they would contain residues from the burning of
hazardous waste. The question before this court is the
extent to which the Bevill Amendment does or does not
exempt ckd and combustion residues produced by burning
fossil fuels mixed with hazardous waste from the operation
of the derived-from rule.
The BIF Rule integrates the mandates of the Bevill
Amendment and section 3004(q) by providing both quan-
titative and qualitative requirements which Bevill wastes
must satisfy in order to retain their exemption from Sub-
title C. 40 C.F.R. § 266.112 (1992). The quantitative
aspect of the rule requires that in order for cd to retain
its Bevill exemption, the kiln producing it mus: process at
least fifty percent by weight of ordinary, non-hazardous
waste raw matcrials. Jd. § 266.112(a)(3). The EPA
noted in its statement accompanying the final BIF Rule
that although the Bevill Amendment refers to devices
burning “primarily” fossil fucls, it does not explicitly so
limit the Subtitle C exclusion for ckd. The agency deter-
mined, however, that. to retain its Bevill exclusion, a
cement kiln must burn chiefly non-hazardous waste mate-
5 In 1991, in Shell Oil Co. v. EPA, 950 F.2d 741 (D.C. Cir. 1991),
this court vacated the mixture and derived-from rules for failure
to give adequate opportunity for notice and comment. The Shell
Oil decision suggested, however, that the EPA repromulgate the
rules on an interim basis under the APA’s good cause exemption,
id. at 752, and the agency did so on March 3, 1992. 47 Fed. Reg.
7,628 (1992). The interim rule has been challenged in Mobil Oil
Corp. ». EPA, No. 92-1211, currently scheduled for oral argument
before this court on March 8, 1994.
18a
rials. See 56 Fed. Reg. 7,134, 7,197-98 (1991). This
provision apparently is intended to prevent cement kilns
frem effectively becoming hazardous waste incinerators
by burning far more waste than actually necessary to fuel
cement making. The EPA interpreted the Bevill Amend-
ment’s exclusion for residues “primarily from the combus-
tion of coal or other fossil fuels” as exempting only
residues from BIF’s burning at least fifty percent coal.*
Residues from BIFs burning oil or gas mixed with any
quantity of hazardous waste are not covered by the Bevill
Amendment because oil and gas generally produce very
little combustion residue, sc any residue from the co-
processing of these fucls with hazardous waste would
necessarily be “significantly affected” by the hazardous
waste. /d. at 7,198 n.87.
The BIF Rule’s qualitative requirements provide that
Bevill wastes which meet the foregoing quantative criteria
remain exempt from Subtitle C so long as they have not
been “significantly affected” by the burning of hazardous
waste. The EPA has established a test to be performed
on a case-by-case basis at each facility to determine
whether co-processed Bevill wastes have been “significantly
affected.” See 56 Fed. Reg. 7,196-99 (1991). The
agency considered adopting uniform baseline levels rather
than requiring site-specific testing, but determined that it
did not have sufficient data to do so. See id. at 7,198: 54
Fed. Reg. 43,718 at 43,734 & 43,735-36 (1989).
The “significantly affected” test consists of two parts.
First, a Bevill device operator may opt to determine
whether concentration of specified toxic compounds in
co-processed residue are significantly higher than in resi-
dues produced from burning solely non-hazardous-waste
fuels. 40 C.F.R § 266.112(b)(1) (1992). If the co-
processed Bevill wastes are sufficiently similar to ordinary
Bevill wastes, the wastes remain exempt from Subtitle C.
* The percentage of coal burned in a BIF may be measured on a
“total heat input or mass input basis, whichever results in the
greater mass feed rate of coal.” 40 C.F.R. § 266.112(a) (1) (1992).
ee
19a
Second, the operator may determine whether toxic com-
pounds are present in the waste in levels that exceed so-
called “health based limits”—levels that “could pose a
Significant risk to human health.” 56 Fed. Reg. 7,134 at
7,198 & 7,199 (1992): see 40 C.F.R. § 266.112(b)(2)
(1992). The first part of the qualitative test need not be
conducted if the residue does not exceed the health-based
limits. 40 C.F.R. § 266.112(b) (1992). If, however, the
residue exceeds the health-based limits, it is exempted from
Subtitle C only if it is sufficiently similar to normal resi-
due to pass the first test.
eee oe
I
; The EPA noted in its statement accompanying the final
BIF Rule that it believed that it had struck a “reasonable
} balance between the terms of the Bevill amendment and
other provisions and regulations relating to hazardous
waste management.” 56 Fed. Reg. 7,134, 7,197 (1991).
The agency observed that to disqualify co-processed resi-
dues from the Bevill exclusion in cases in which the resi-
due was not “significantly affected” would
exalt form over substance by barring from Bevill
eligibility a residue that was not discernably affected
by burning hazardous waste. Given that such mate-
rial could be exactly the high volume/low hazard resi-
due that Congress told the Agency to study before
regulating, EPA does not agree with an interpretation
that automatically forecloses it from Bevill status.
In addition, use of Bevill devices provides needed
treatment capacity for a number of hazardous wastes,
and the Agency would be reluctant to adopt an inter-
pretation that discouraged safe processing of hazard-
ous waste... ..
Id. (footnote omitted). The EPA also pointed out that
air emissions from Bevill devices, as opposed to combus-
tion residues, would be subject to the requirements of the
BIF Rule in all cases; and that the facilities at which
Bevill devices were located would be subject to Subtitle
C’s corrective action requirements in the event hazardous
20a
constituents were released into the environment in ways
or quantities not contemplated by the facilities’ RCRA
permits. Id.; see also American Iron & Steel Inst. v. EPA,
886 F.2d 390, 393-96 (D.C. Cir. 1989) (holding Bevill
wastes are not exempt from RCRA corrective action re-
quirements because those requirements apply to hazardous
constituents, not merely to hazardous wastes), cert. de-
nied, 497 U.S. 1003 (1990).
3. Industry Petitioners’ Challenge to the BIF Rule’s
Interpretation of the Bevill Amendment
Industry petitioners contend that Congress intended that
Bevill wastes be exempt from Subtitle C without regard to
the materials burned by the device that produced them.’
We hold that such an interpretation of the Bevill Amend-
ment would be both irrational and contrary to the law of
this circuit as defined by Solite and EDF II, and accord-
ingly we deny the petitions for review on this point.
Industry petitioners make much of the fact that RCRA
section 3004(q) specifically provides that: “Nothing in
this subsection shall be construed to affect or impair the
provisions of [the Bevill Amendment].” 42 U.S.C. § 6924
(q)(1)(C) (1988). According to Industry petitioners,
this clause evinces a congressional intent to exclude from
Subtitle C all Bevill wastes that are the product of burn-
ing hazardous waste fuels. This argument begs the ques-
tion, however. We agree that section 3004(q) plainly
does not overrule or modify the Bevill Amendment; the
question before us is how to integrate the two provisions.
We are concerned in this case not with whether the Bevill
Amendment retains its vitality, but with what it means.
* The attack on the regulation of ckd was submitted by Industry
petitioners Cement Kiln Recycling Coalition; Giant Group, Ltd.;
Lafarge Corporation and Solite Corporation. Industry petitioners’
challenge to the regulation of combustion residues was submitted
on behalf of Chemical Manufacturers Association and Tennessee
Eastman Company.
2la
As we noted above, this court held in EDF II that the
EPA was required to limit Bevill wastes excluded from
Subtitle C to those wastes that are high volume/low haz-
ard. In Solite we held that the EPA had discretion to
define the “high volume” and “low hazard” criteria so long
as its definitions were permissible interpretations of the
Bevill Amendment. In the instant case a “high volume”
criterion is not at issue. However, the two-part “signifi-
cantly affected” test under the BIF Rule is plainly a means
to limit the Bevill exclusion to wastes that are in fact low
hazard; we therefore review it under Chevron Step two.
Neither Industry petitioners nor CASE petitioners chal-
lenge the specific parameters the EPA has chosen for
“health-based limits,” or the test the agency prescribes to
determine whether Bevill wastes from devices burning haz-
ardous waste fuel are significantly different from those
produced by burning ordinary fuel. Thus, we consider the
permissibility of the “significantly affected” test in the
absence of any specific challenges to the test itself. Both
groups of petitioners argue only that the EPA may not
impose such a test at all, not that the test the EPA has
promulgated is flawed in any way.
Although the Solite and EDF II decisions involved only
mining wastes under the Bevill Amendment, the analyses
in those opinions are wholly applicable to the instant case
as well. Industry petitioners suggest that our earlier deci-
sions permitted the EPA to impose hazard and volume cri-
teria only because such guidelines were necessary to im-
plement the mining waste exemption under the Bevill
Amendment, which did not specifically enumerate the
wastes it covered, but simply referred to “{slolid waste
from the extraction, beneficiation, and processing of ores
and minerals.” 42 U.S.C. § 6921(b)(3)(A) (ii) (1988).
However, we find nothing in our prior decisions to suggest
that Congress did not intend to apply the “special waste”
framework to all of the wastes listed in the Bevill Amend-
ment—indeed, ckd and combustion residues generated by
utilities were among the wastes the EPA suggested for the
22a
special waste category in its 1978 proposal. See EDF II,
852 F.2d at 1319.
Further, it simply makes no sense to permit Bevill de-
vices to become inadequately regulated dumping grounds
for hazardous materials. According to a source cited by
CASE petitioners, cement kilns alone now burn more
than twice as much waste as RCRA-permitted incinera-
tors, a figure that Industry petitioners do not attempt to
refute. See Brief for Petitioners Citizens for a Safe Envi-
ronment, et al. at 18-19. Industry petitioners would have
us hold that Congress intended that cement kilns and
other Bevill devices may burn anything—even spent nu-
clear fuel, infectious medical waste, or discarded chemical
weapons—without the resulting residues being subject to
the hazardous waste regulation regime Congress created
by enacting Subtitle C. This we are unwilling to do.
The EPA’s interpretation of the Bevill Amendment is
obviously a reasonable one. Under the BIF Rule, Bevill
wastes retain their exemption from Subtitle C so long as
they are not “significantly affected” by the hazardous
waste fuel burned to produce them, or do not present a
hazard to human health and the environment. The BIF
Rule is designed to distinguish combustion residues and
ckd from materials that are, in effect, very different sub-
stances. Quite simply, if ckd from co-processing hazard-
ous waste fuels is “significantly affected,” it is no longer
just ckd, but ckd plus the products of combustion of haz-
ardous waste. We therefore hold that the BIF Rule is a
permissible interpretation of the Bevill Amendment’s low
hazard criterion.
4. CASE Petitioners’ Challenge to the BIF Rule’s
Interpretation of the Bevill Amendment
a. CASE Petitioners’ Standing
Industry intervenors contend that CASE petitioners lack
standing to challenge the BIF Rule’s interpretation of the
23a
Bevill Amendment.’ We need not linger long on this
issue as we hold that CASE petitioners plainly do have
standing.
To support their standing argument, Industry inter-
venors attempt to rely on this court’s decisions in Hazard-
ous Waste Treatment Council v. EPA, 861 F.2d 270
(D.C. Cir. 1988) (“HWTC I’), and its companion case,
Hazardous Waste Treatment Council v. EPA, 861 F.2d
277 (D.C. Cir. 1988), cert. denied, 490 US. 1106
(1989) (“HWTC II’). In HWTC II this court held that
the Hazardous Waste Treatment Council (“HWTC’”), a
trade association of firms engaged in the treatment of haz-
ardous waste and one of the CASE petitioners in this
case, lacked standing to challenge the EPA’s then-existing
section 3004(q) regulations governing the burning of haz-
ardous waste as fuel. HWTC contended in that case that
it had standing because the alleged laxity of the EPA’s
regulatory scheme would injure its members by diminish-
ing the market for their waste management services.
Among the injuries HWTC alleged was that because the
EPA at that time exempted all Bevill residues from Sub-
title C, HWTC’s members who operated hazardous waste
incinerators were at a competitive disadvantage when sell-
ing waste incineration services because they were forced
to bear the costs of disposing of their combustion residues
in compliance with Subtitle C. See HWTC II, 861 F.2d
at 281. We found these allegations inadequate to estab-
lish standing. See id. at 280-85.
In the instant case, Industry intervenors contend that
HWTC attempts to redress the same injury found inade-
quate for standing in HWTC IJ. This argument is to no
avail, however. Even assuming arguendo that Industry
8 This standing challenge was offered by Industry intervenors
American Mining Congress, Cyprus Miami Mining Corporation,
Edison Electric Institute, Solite Corporation and Tennessee East-
man Company. The EPA did not contest CASE petitioners’
standing.
24a
intervenors are correct as to HWTC, the environmental
organizations who are also among the CASE petitioners
clearly do have standing. As was the case in HWTC I,
because we find that the environmental organizations
among the CASE petitioners have standing, the question
of HWTC’s standing raises a moot issue. See HWTC I,
861 F.2d at 273 (citing Bowen v. Kendrick, 487 U.S.
589, 620 n.15 (1988) ).
Industry intervenors argue that the environmental or-
ganizations among the CASE petitioners lack standing
because the EPA’s health-based limits are designed to
ensure protection of human health and the environment,
and so petitioners cannot allege an actual injury. We
disagree. The Supreme Court recently held that “the irre-
ducible constitutional minimum of standing contains three
elements.” Lujan v. Defenders of Wildlife, 112 S. Ct.
2130, 2136 (1992). First, a petitioner must have suf-
fered an “injury in fact” that is both concrete and par-
ticularized, and actual or imminent. Second, the injury
must be fairly traceable to the challenged action of the
defendant. Third, “it must be likely, as opposed to merely
speculative, that the injury will be redressed by a favor-
able decision.” Jd. (internal quotation omitted). CASE
petitioners have alleged, and Industry intervenors do not
dispute, that some of their members live in communities
near Bevill devices of various types. In HWTC I we up-
held the standing of an environmental group which as-
serted that the EPA’s failure to regulate used oil as a
Subtitle C hazardous waste constituted an injury-in-fact
to its members living in communities potentially subject
to incidents resulting from mismanagement of used oil.
861 F.2d at 273. Further, in that case this court also
held that in the event the environmental group won its
lawsuit, remanding the used oil regulations to the EPA
for reconsideration of its subtitle C listing decision would
be “likely to redress the injuries alleged.” Id.
The instant case presents a standing inquiry identical in
all relevant respects to the allegations we held adequate
wert
25a
for standing in HWTC I. The environmental groups
among the CASE petitioners allege that the BIF Rule is
an unlawful interpretation of the Bevill Amendment which
exposes their members to greater risks than they would
face if all Bevill wastes were regulated under Subtitle C.
If the EPA were required to regulate Bevill wastes as Sub-
title C hazardous wastes, those wastes would be subject
to a more stringent regulatory regime than the current
BIF Rule imposes, providing greater protection to peti-
tioners’ members.
Because the environmental organizations among the
CASE petitioners have standing, we hold that the CASE
petitioners as a group also have standing to challenge the
BIF Rule.
b. CASE Petitioners’ Interpretation of the Bevill
Amendment
CASE petitioners assert that the Bevill Amendment ex-
empts from Subtitle C only Bevill wastes produced by
facilities burning purely non-hazardous-waste fuel. As we
discussed at length above, Congress intended the Bevill
Amendment to enact the high volume/low hazard “special
waste” concept. The plain language of RCRA section
3004(q) makes clear that Congress knew when it added
that section that Bevill devices burned hazardous waste,
and suggests that it expected they might be subject to a
different regulatory regime than that imposed on other
BIFs. Given these facts, we cannot hold that the legisla-
ture clearly intended automatically to remove the Bevi
exemption for all Bevill wastes generated from co-
processing hazardous wastes.
RCRA section 3004(q)(2)(C)(i) provides that “no
fuel which contains any hazardous waste may be burned
in any cement kiln which is located within” a city with a
population of over five hundred thousand, unless the kiln
complies with RCRA’s incinerator regulations. 42 U.S.C.
§ 6924(q)(2)(C)(i) (1988). This provision is incon-
26a
trovertible evidence that Congress knew cement kilns and
other Bevill devices burned hazardous waste. Further, the
fact that Congress singled out cement kilns in large cities,
but did not address other types of boilers or industrial
furnaces that burn hazardous waste, Suggests that the
legislature believed that cement kilns might be subject to
a different regulatory regime than other BIFs, as there
would be no reason to assume that if cement kilns were
subject to the BIF Rule they would present hazards dis-
tinguishable from other devices burning similarly hazard-
Ous wastes.
All the time Congress enacted section 3004(q) it was
aware that Bevill devices burned hazardous waste. In that
section it specifically reaffirmed the Bevill Amendnient,
while at the same time ordering the EPA to regulate facili-
ties burning hazardous waste as fuel. Nevertheless, no-
where in section 3004(q), or anywhere else in RCRA,
does Congress indicate how it wished the EPA to integrate
the potentially conflicting provisions at issue in this case.
Under these circumstances, we cannot hold that the legisla-
ture has “directly addressed the precise question at issue.”
Chevron, 467 U.S. at 843. The BIF Rule provides for the
continued vitality of the Bevill Amendment, as section
3004(q) requires, by ensuring that high volume/low haz-
ard criteria remain the standard for exemption of Bevill
wastes from Subtitle C. At the same time, the rule recog-
nizes that Bevill wastes that are not low hazard do come
within section 3004(q)’s broad mandate that the EPA
regulate the burning of hazardous waste. This result is
a permissible interpretation of both section 3004(q) and
the Bevill Amendment.
c. CASE Petitioners’ Challenge to the EPA’s
Exemption of Bevill Wastes from RCRA’s
Land Disposal Restrictions
CASE petitioners also challenge the EPA’s determina-
tion that Bevill wastes that pass the BIF Rule’s “signifi-
Re ta SAE I Sh,
27a
cantly affected” test are not subject to RCRA’s land
disposal restrictions (“LDR”). The LDR prohibit the
landfilling of Subtitle C hazardous wastes unless the wastes
are treated according to specified standards, or disposed
of in a land disposal facility that meets RCRA’s “no
migration” standard. See generally Chemical Waste Man-
agement, Inc. v. EPA, 976 F.2d 2, 8-9 (D.C. Cir. 1992),
cert. denied, 113 S. Ct. 1961 (1993). Because the residues
from the incineration of hazardous wastes remain hazard-
ous waste by virtue of the derived-from rule, they ordi-
narily must comply with the LDR. However, because the
BIF Rule provides that Bevill wastes that are not “signifi-
cantly affected” are exempt from Subtitle C, these wastes
are not subject to the LDR by virtue of a 1986 EPA regu-
lation which provides that wastes that are not Subtitle C
hazardous wastes need not comply with RCRA’s land
disposal restrictions. See 40 C.F.R. § 268.1(b) (1992)
(non-hazardous wastes not subject to LDR); id. § 261.4
(b)(4), (7), (8) (Bevill wastes not hazardous waste
unless “significantly affected”).
CASE petitioners argue that the LDR attach irrevoca-
bly to hazardous wastes at the moment they are generated.
For example, waste solvents that are hazardous wastes
ordinarily must be disposed of in keeping with the LDR.
CASE petitioners contend that these same solvents should
not be able to evade the LDR by being burned in a cement
kiln, thereby potentially becoming Bevill wastes exempt
from Subtitle C rather than “treated” hazardous waste.
In addition, CASE petitioners argue that they were not
given adequate notice or opportunity to comment on the
EPA's decision to exclude some co-processed Bevill wastes
from the LDR.’ The EPA counters that the LDR issue
® Chemical Waste Management also considered a challenge by the
Natural Resources Defense Council (“NRDC”), one of the CASE
petitioners, to a regulation providing that Bevill wastes were ex-
empt from the LDR. The court vacated the LDR exemption on
notice and comment grounds and remanded it for consideration in
an ongoing rulemaking. 976 F.2d at 33 n.20. In response to the
28a
was never at issue in the BIF rulemaking because the
agency did not reopen the matter, but reopened only the
question of whether the agency should exempt Beville
wastes generated by co-processing hazardous waste from
Subtitle C. According to the EPA, Bevill wastes that are
not “significantly affected” are simply exempt from the
LDR by operation of regulations that were in place before
the BIF Rule was even proposed. The agency notcs fur-
ther that it has initiated a Separate rulemaking to deal
with the question of the LDR’s applicability to co-
processed Bevill wastes. See 56 Fed. Reg. 55,160, 55,166
(1991). Because, we uphold the EPA’s decision to exempt
some Bevill wastes from Subtitle C, we also hold that
those residues that are excluded are not subject to the
LDR as those provisions by their plain language do not
apply to materials that are not hazardous waste. CASE
petitioners’ argument that they were not provided ade-
quate notice of, and opportunity to comment on, the LDR
is thus moot, because the BIF Rule did not re-open or
modify the LDR, but simply established the circumstances
under which Bevill wastes would be subject in Subtitle C.
The fact that the LDR do not apply to non-Subtitle C
wastes is the result of the EPA’s 1986 regulation, not a
consequence of the BIF Rule that the EPA was required
to address in the BIF rulemaking.
CASE petitioners base their argument that the EPA
may not exempt hazardous wastes burned in Bevill de-
vices from the LDR on this court’s decision in American
vacation of the LDR exemption in Chemical Waste Management,
the EPA asserted that its 1986 regulations, specifically 40 C.F.R.
§§ 261.11(a) and 268.1(b), provided that wastes excluded from the
definition of “solid waste” or “hazardous waste” were exempt from
the LDR. Because the wastes exempited by these regulations in-
cluded Bevill wastes, the EPA maintained that the vacation of the
LDR exemption restored the status quo ante, which happened to
dictate an identical result. Thus, despite NRDC’s “victory” in
Chemical Waste Management, Bevill wastes which are not Subtitle
C hazardous wastes remained exempt from the LDR.
24a
Petroleum Institute v. EPA, 906 F.2d 729, 740-42 (D.C.
Cir. 1990) (“API”), which held that the EPA erred in
assuming that RCRA required it to cease regulating
metal slag as a hazardous waste when it arrived at a
reclamation facility. In that case, the EPA had assumed
that the slag became a raw material rather than a “solid
waste” when it was used for materials recovery. API
strongly suggested, but did not decide, that the EPA could
not reconcile its decision to cease regulating slag at the
point of metals reclamation with RCRA’s “cradle-
to-grave” regulatory structure. /d.
CASE petitioners assert that AP/ requires the EPA un-
: stintingly to regulate hazardous wastes under Subtitle C.
| We need not resolve this sweeping question in order to
: decide this case, however. Whatever RCRA might require
in the case of other solid wastes, Congress has mandated
: that high volume/low hazard Bevill wastes have a special
a
:
eG Tel reales! octal alias 2G Allie LK
status pending completion of the Bevill studies. It is
permissible for the EPA to find that one aspect of that
special status is exemption from the LDR. The EPA’s
position on this issue is a simple syllogism: The LDR
apply only to Subtitle C hazardous wastes; Bevill wastes
that are not “significantly affected” are not hazardous
wastes; therefore, Bevill wastes that are not hazardous
waste are not subject to the LDR.” Because we uphold
the EPA’s determination that Bevill wastes produced by
co-processing hazardous waste are in some circumstances
exempt from Subtitle C, we also uphold the agency’s deci-
sion to exempt non-hazardous Bevill wastes from the LDR
1° We hold that this syllogism is a permissible interpretation of
; the Bevill Amendment, not that the EPA is required to so read the
’ statute. In its notice of proposed rulemaking requesting comments
on the possibility of subjecting Bevill wastes to the LDR, the EPA
suggested that our holding in American Iron & Steel Institute,
886 F.2d at 395-96, might permit the agency to apply the LDR even
to Bevill wastes not subject to Subtitle C. 56 Fed. Reg. 55,160,
55,166 (1991). The permissibility of this alternative interpretation
is not before us in this case, and we express no opinion as to that
question.
30a
as a permissible construction of the Bevill Amendment
and of Subtitle C.
C. The BIF Ru'e’s Regulation of Air Emissions
Several of the Industry petitioners" contend that the
BIF Rule exceeds the EPA’s Statutory authority under
RCRA because it regulates materials that are not “hazard-
ous waste.” The BIF Rule establishes 2 complex set of air
emissions controls for toxic metals, chlorine, and hydrogen
chloride emitted from BIFs burning hazardous waste fuel.
The rule creates a three-tiered system of regulation in
which the levels of emissions and feed rates allowed are
proportional to the degree of sampling and analysis a
BIF operator performs on the BIF’s emissions. See gen-
erally 56 Fed. Reg. 7171-80 (1991). An owner or opera-
tor has the option of satisfying the rule by demonstrating
compliance with any one of the three tiers. The first tier
of controls assumes that all of the regulated materials fed
into the BIF are emitted into the air, without regard for
any pollution control devices that may be present, and so
provides stringent limits on the rate at which the metals,
chlorine, and hydrogen chloride may be fed into the unit.
The operator demonstrates compliance by analyzing the
toxic content of the materials burned, rather than by
measuring actual air emissions. Under the second tier,
the BIF owner or operator demonstrates compliance
through emissions testing. The third tier permits an owner
or operator to conduct both emissions testing and site-
specific dispersion modeling (which takes into account
actual dispersion conditions at the facility) to show that
the emissions do not exceed acceptable levels. The EPA
expects most facilities to comply with the BIF Rule via
the third tier. 56 Fed. Reg. 7173 (1991 ).
Industry petitioners challenge the three-tiered approach
because it obligates operators to measure either the rele-
11 Chemical Manufacturers Association, Marine Shale Processors,
Inc., Tennessee Eastman Company, and the American Petroleum
Institute.
3la
vant constituents of, or the air emissions from, all fuels
fed into the BIF and not just those which are hazardous
waste. The EPA responds that RCRA enables the agency
to regulate facilities that burn hazardous waste for fuel,
not merely the hazardous waste components of the fuel
itself. Because both the EPA and Industry petitioners
base their arsuments on the first prong of Chevron, argu-
ing that Congress has directly spoken to the precise ques-
tion at issue, we begin by examining the relevant statutory
language. Section 3004(q) of RCRA authorizes the EPA
to “promulgate regulations establishing . . . standards ap-
plicable to the owners and operators of facilities which
burn, for purposes of energy recovery, any fuel [which is
produced from hazardous waste or from hazardous waste
and any other material] . . . or any fuel which otherwise
contains any hazardous waste... .” 42 U.S.C. § 6924
(q)(1)(B) (emphasis added). In addition, § 3004(a)
of RCRA directs the EPA to “promulgate regulations
establishing such performance standards, applicable to
owners and operators of facilities for the treatment, stor-
age, or disposal of hazardous waste .. as may be neces-
sary to protect human health and the environment.” 42
U.S.C. § 6924(a) (emphasis added).
We agree with the EPA that the plain language of
RCRA defeats Industry petitioners’ contentions. First,
§ 3004(q) applies to facilities, not just fuels, and there-
fore the EPA may regulate BIF owners or operators who
elect to burn “any fuel which . . . contains any hazardous
waste.” 42 U.S.C. § 6924(q)(1)(B). No BIF is required
to burn hazardous waste fuel, but if it chooses to do so,
§$ 3004(q) permits the EPA to monitor total feed rates
and air emissions; if a BIF elects not to burn hazardous
waste, then the BIF Rule would not apply. Second,
§ 3004(a) allows the EPA to regulate owners and opera-
tors of facilities that “treat” hazardous waste. As dis-
cussed above, supra at 13 n.2, for RCRA purposes, burn-
ing hazardous waste is considered “treatment” of hazard-
ous waste. Therefore, $$ 3004(a) and (q) allow the
32a
EPA to regulate facilities that burn non-waste fuels if
those fuels are being burned with hazardous waste.
Although they make a Chevron step I argument, In-
dustry petitioners do not rely on RCRA’s statutory lan-
guage. Instead, they focus on this court’s decision in
American Mining Congress v. EPA, 824 F.2d 1177
American Mining Congress v. EPA, 824 F.2d 1177 (D.C.
Cir. 1987) [hereinafter AMC 1], interpreting RCRA’s
definitional section, 42 U.S.C. § 6903. Section 6903 de-
fines “hazardous waste” as a subset of “solid waste.” 42
U.S.C. § 6903(27). AMC I held that the EPA does not
have jurisdiction under RCRA to regulate materials re-
used for materials recovery within an ongoing production
process because such materials were never discarded and
thus are not “solid waste.” Industry petitioners reason
that the EPA lacks jurisdiction under RCRA to monitor
the constituents of non-waste fuels burned with hazardous
waste because these co-processed fuels too are not “haz-
ardous waste.” However, the holding of AMC / is not
dispositive here. AMC / involved an altogether different
facet of waste disposal governed by a different Statutory
section, i.e., the scope of the RCRA term “solid waste,”
and not the EPA’s right under §§ 3004(a) and (q) to
regulate facilities handling non-waste materials when the
materials are co-processed with fuel that is unquestionably
“hazardous waste” subject to RCRA. As discussed above,
the plain language of §§ 3004(a) and (q) clearly auth-
orizes the EPA to regulate facilities that burn a mixture
of hazardous waste and non-waste.
Even assuming that the language of RCRA does not
unambiguously permit regulation of non-waste fuels when
they are co-processed in a facility burning hazardous
waste, the EPA’s decision to regulate such non-waste is a
permissible construction of the statute under Chevron step
II. While the EPA is not free to regulate non-hazardous
raw materials at will, in this case the agency has demon-
strated an adequate nexus between the three-tiered con-
trols and the management of hazardous waste. See gen-
HR ha Nir eee ARS Lawl
33a
erally In the Matter of BP Chemicals America, Inc., 1991
RCRA LEXIS 23. *9 (Aug. 20, 1991). The EPA per-
suasively argues that the BIF Rule’s regulation of the con-
tent of non-waste fuels burned in a BIF along with haz-
ardous waste is vindicated by the inherent difficulty in
differentiating between the molecules of emissions gener-
ated by the hazardous waste components of BIF fuel and
those generated by the non-waste components. See 56
Fed. Reg. 7144. The health and environmental effects of
BIF emissions from the mix are the same whatever the
source of an individual molecule. The EPA also notes
that because compliance with the BIF Rule is often dem-
onstrated by monitoring emissions during a trial burn,
feed rates of all inputs to the unit must be continuously
controlled to assure that the results of the trial burn are
representative of actual operations. Were the EPA to al-
low BIF operators to demonstrate compliance on the basis
of one trial burn alone, the operators might burn hazard-
ous waste along with less toxic raw materials during the
final burn and then increase the toxicity of the raw ma-
terials in later burns. See 56 Fed. Reg. 7144 (1991).
Finally, the EPA claims that limitations must be placed
on non-waste feeds because co-processing of hazardous
waste and raw materials can make the commingled emis-
sions more toxic than the sum total of the individual
emissions from the hazardous and non-hazardous mate-
rials alone. See 56 Fed. Reg. 7157 (1991); see also 56
Fed. Reg. 7176 (1991) (BIF Rule limits metal feed rate
for both hazardous waste and non-waste fuels because
when added to emissions from hazardous waste, noncar-
cinogenic materials can cause a maximum exposed indi-
vidual (“MEI”) concentration that exceeds threshold level
for protecting human health). Thus the EPA’s require-
ment that BIF owners and operators monitor the consti-
tuents of all their fuel inputs when they burn both haz-
ardous waste and non-waste is a reasonable application of
its RCRA authority under §S 3004(a) and (q).
Industry petitioners argue, however, that the EPA failed
to address precisely the alternatives they posed to non-
34a
waste monitoring. A rulemaking will be overturned as
arbitrary and capricious if “the EPA has failed to respond
to specific challenges that are sufficiently central to its de-
cision.” International Fabricare Inst. v. FPA, 972 F.2d
384, 389 (D.C. Cir. 1992) (citing American Mining
Congress v. EPA, 907 F.2d 1179, 1191 (D.C. Cir. 1990));
accord Motor Vehicles Mfrs. Ass'n v. State Farm Mut.
Life Ins. Co., 463 U.S. 29, 48 (1983) (alternative ways
of achieving objectives of statute should be addressed and
reasons given for abandonment). During the BIF rule-
making, Industry petitioners suggested the following three
ways to limit regulation of a BIF’s air emissions to those
attributable to the burning of hazardous waste: (1) per-
form a test burn using non-waste fuel ‘> determine the
removal efficiencies of the BIF unit’s air pollution control
devices (APCDs), and then apply those removal efficien-
cles to the emissions from the burning of hazardous
Waste: (2) allow a BIF owner or operator to rely on the
conservative removal efficiencies already specified by the
EPA for various types of APCDs and then calculate back-
wards to determine the allowable metals content for the
hazardous waste feed: and (3) conduct baseline tests to
characterize the relationship between waste feed composi-
tion (i.e., proportion of hazardous waste in the fuel) and
removal efficiency. See Comments of the Chemical Manu-
facturers Ass'n on EPA’s Supplement to the Proposed RIF
Rule, reprinted in Joint Appendix (“J.A.”) at 667-68.
These proposals, however, occupied only three sentences
of a voluminous notice and comment record and were not
Supported by any evidence regarding their effectiveness at
protecting human health and the environment.
Although the EPA did not explicitly respond to the spe-
cific suggestions of Industry petitioners, the agency did,
as a general matter, explain the reasons underlying its
decision to regulate non-waste fuels when they are co-
processed with hazardous waste. As discussed above. the
BIF Rule set forth three justifications for regulating non-
waste fuels when they are burned with hazarodus waste
ee ee
35a
fuels: (1) the inadequacy for compliance purposes of test
burns that do not impose limitations on the toxicity con-
tent of non-waste fuels, (2) the difficulty of differentiat-
ing between toxic air emissions from the burning of non-
waste and hazardous waste, and (3) the phenomenon that
co-processing non-waste and hazardous waste in a BIF can
result in more toxic emissions. See 56 Fed. Reg. 7144
(1991). Implicit in the EPA’s discussion of the prob-
lems embedded in regulating hazardous waste alone is a
rejection of Industry petitioners’ alternative proposals. In
light of the sketchy nature of these alternative proposals,
we find that this portion of the BIF rulemaking (estab-
lishing the three-tiered system of air emissions controls)
survives arbitrary and capricious review.
The BIF Rule’s regulation of non-waste fuels is well
within RCRA’s grant of authority to the EPA to regulate
facilities burning hazardous waste. Due to the difficulties
associated with regulating emissions from hazardous waste
fuels only, the EPA has reasonably decided to monitor
the constituents of, and the air emissions from, all fuels
burned in a BIF facility that burns hazardous waste. Al-
though it would have been instructive for the EPA to
have addressed more precisely the three proposals sug-
gested by Industry petitioners, we conclude that the
agency's general discussion of its decision to regulate non-
waste adequately set forth its reasons for rejecting the
proposals.
D. Regulation of Products of Incomplete Combustion
1. Background
Under RCRA, the EPA must develop standards to con-
troi emissions from burning hazardous waste fuels “as
may be necessary to protect human hea!th and the environ-
ment.” RCRA § 3004()q)(1); 42 U.S.C. § 6924(q)(1).
In response to this mandate, the EPA proposed standards
for emissions of toxic organic compounds in the BIF rule-
making. The BIF Rule, which was issued on February
36a
21, 1991, imposes three requirements on BIFs burning
toxic organics: (1) a 99.99% destruction removal effi-
ciency (“DRE”); (2) good combustion conditions in kilns
and other regulated BIFs so as to control products of in-
complete combustion (“PICs”); and (3) in certain cases,
health risk assessments. See 56 Fed. Reg. 7,134, 7,146-71
(1991) (“Final Rule”).
Here, Industry petitioners Lone Star Industries, Inc.,
Holnam, Inc., Safety-Kleen Corp., and the Cement Kiln
Recycling Coalition (“cement kiln petitioners”) challenge
the second of these requirements as applied to wet process
kilns. Cylindrical in shape, a wet kiln rotates on its own
axis and is slightly inclined so that raw materials intro-
duced at the top end travel slowly to the lower end. The
raw materials (such as clay, shale, limestone, and marl)
are mixed in a slurry form and calcined, i.e., heated to a
high temperature, as the slurry slides down the kiln to-
wards the furnace at the lower, or “hot” end. Significantly,
these raw materials contain widely varying amounts of or-
ganic material that are driven off as the slurry mixture
calcines.
The furnace at the hot end of the wet kiln requires
large amounts of fuel, which can be powdered coal or
other fossil fuel or, alternately, high-BTU hazardous waste.
One benefit of using hazardous waste in this manner is
immediately obvious: It takes the place of scarce fossil
fuels. Another benefit is that the high furnace tempera-
tures (upwards of 2,500 degrees Fahrenheit) destroy the
hazardous organic compounds contained in the waste.
The drawback is that the burning of hazardous waste re-
sults in the creation of incompietely burned organic com-
pounds (i.e., PICs) that are emitted from the upper end
of the kiln.
A kiln’s utility as a means of destroying hazardous
wastes turns on its ability to fully destroy them. In prac-
tice, destruction of hazardous wastes in the fuel is a func-
tion of the combustion efficiency of the kiln; Under poor
ere eh
37a
conditions of efficiency, the principal organic hazardous
constituents (“POHCs”) of the toxic organic compounds
contained in the hazardous waste fuel will be only par-
tially broken down, thereby increasing the production of
PICs. The health effects of PIC emissions are unclear—
some are knowa carcinogens, other may be, and others
are undetectable. See Final Rule, 56 Fed. Reg. 7,150,
col. 1. This uncertainty led the EPA to regulate PICs in
the BIF Rule, for “[g]iven the limited information about
the hazards that PIC emissions may pose, EPA believes it
is prudent to require that boilers and industrial furnaces
operate at a high combustion efficiency to minimize PIC
emissions.” Id.
The EPA chose to monitor carbon monoxide (“CO”)
and total hydrocarbon (“THC”) levels as indicators of
combustion efficiency and required that one of three emis-
sions standards be met: (1) a stack or by-pass duct CO
level not to exceed 100 ppmv, 40 C.F.R. § 266.104(b)
(“Tier I standard”); (2) a_ stack or by-pass duct CO
level above 100 ppmv so long as the stack or by-pass
duct levels of THC are below 20 ppmv, § 266.104(c)
(“Tier II standard”): or (3) for those industrial furnaces
not having a by-pass duct (i.e., wet kilns), meeting an
alternative THC limit that ensures that flue gas hydrocar-
bon (“HC”) and CO concentrations when burning haz-
ardous waste fuels are not greater than when not burning
hazardous waste, § 266.104(f) (“Tier III standard”).
The EPA’s rationale for monitoring CO as an indica-
tor of combustion efficiency is based on the following un-
derstanding of the mechanics of the combustion process:
In the first stage of the combustion of hazardous
waste fuel, the POHCs thermally decompose in the
flame to form other, usually smaller, compounds
termed products if [sic] incomplete combustion. In
this first stage of combustion, these PICs also decom-
pose to form CO.
38a
The second stage of combustion involves the oxi-
dation of CO to CO. (carbon dioxide). The CO to
CO. step is the slowest (rate-controlling) step in the
combustion process because CO is considered to be
more thermally stable (difficult to oxidize) than other
intermediate products of the combustion of hazard-
Ous waste constituents. ...
Thus, in the waste combustion process, the “de-
struction” of POHCs is independent of flue gas CO
levels. CO flue gas levels cannot be correlated with
DREs for POHCs, and may also not correlate well
with PIC destruction. Although some emissions data
indicate a weak correlation between CO and PICs,
the data generally indicate that there is a relation-
ship between the two parameters: When CO is low,
PIC emissions are relatively low. The converse may
not hold: when CO is high, PICs may or may not be
high.
Low CO is an indicator of the status of the CO to
CO, conversion process, the last rate-limiting oxida-
tion process. Because oxidation of CO to CO. oc-
curs after the destruction of a POHC and its (other)
intermediates (PICs) the absence of CO is a useful
indication of POHC and PIC destruction.
Final Rule, 56 Fed. Reg. 7,150, col. 2 (emphasis in
original).
The choice of CO as an indicator of combustion effi-
ciency creates a technical problem, that of restricting CO
measurement to the CO emitted by the hazardous waste
fuel. This is well-nigh impossible in wet kilns, for as the
Slurry slides down the kiln, the organic materials in the
slurry combust and CO is created (“slurry off-gases”).
These CO emissions are unrelated to the CO produced by
the combustion of hazardous waste at the lower end of
the kiln (“combustion off-gases”). Moreover, there is no
way of isolating the two chemical processes because, un-
like dry kilns, which have a by-pass duct that permits the
i
3
i
i
39a
diversion of the kiln off-gas into a separate flue before it
is united with the emissions generated by the raw mate-
rials, in a wet kiln the combustion off-gases combine with
emissions from the slurry, and both exit from the upper
end of the kiln. Thus background emissions of CO attrib-
utable to the oxidation of the raw materials will enter into
the measurement of CO emissions and may prevent wet
kilns from meeting the Tier I standards regardless of their
combustion efficiency.
Recognizing this problem, on October 26, 1989, the
EPA proposed to add a second alternative emissions stand-
ard. See 54 Fed. Reg. 43,718, 43,722-27 (1989) (EPA’s
first supplement to the proposed BIF Rule (“First Sup-
plement”) ). The CO standard was to be retained (the
Tier I standard), but an alternative standard was to be
added (the Tier II standard). The Tier II standard was
to be either technology-based (limits on THC emissions)
or health-based (the facility would have to demonstrate
that PIC emissions posed an acceptable risk to the maxi-
mally exposed individual). See 54 Fed. Reg. 43,722, col.
2. Under the technology-based standard, THC emissions
were not to exceed 20 ppmv. 54 Fed. Reg. 43,723, col. 3;
40 C.F.R. § 266.104(c). This standard was chosen on
the basis of the data for hazardous waste incinerators and
BIFs operating under good combustion conditions, as well
as the EPA’s use of risk assessment methodology to show
a 20 ppmv level was protective of human health. 54 Fed.
Reg. 43,723, col. 3.
Unfortunately, wet process kilns may be incapable of
meeting the technology-based Tier II standards for the
same reason that prevents them from meeting the Tier I
standard. Indeed, oxidation of the organic materials con-
tained in the slurry mixture produces not only CO, but
also HC. These background emissions are independent of
the emissions from the combustion of hazardous wastes at
the lower end of the kiln. First Supplement, 54 Fed. Reg.
43,724, col. 1. Thus neither CO nor THC emissions are
an accurate indicator of the combustion efficiency of wet
40a
kilns due to the impossibility of isolating the two combus-
tion processes occurring within the kiln. Reconsidering
this problem, the EPA requested comments on the possi-
bility of different THC limits as well as the feasibility of
a third standard—a site-specific limit “where THC levels
when burning hazardous waste would be limited to base-
line THC levels without burning hazardous waste.” 54
Fed. Reg. 43,724, col. 1. The EPA continued discussions
with the «affected industry well after the end of the com-
ment period. Final Rule, 56 Fed. Reg. 7,155 n.28.
In the final BIF Rule, the EPA adopted the Tier I and
the technology-based Tier II standards and also promul-
gated a Tier III standard. This last was aimed at the
“6 to 10 [wet process kilns that] may not be able to com-
ply with the HC limit of 20 ppmv even though they gen-
erate minimal HC from sources other than raw materials.”
56 Fed. Reg. 7,155, col. 3, The Tier III standard is es-
sentially a waiver provision that allows the EPA to for-
mulate alternative CO and THC limits on a case-by-case
basis if operators of wet kilns can meet certain condi-
tions. 40 C.F.R. § 266.104(f)(1). To obtain a Tier III
waiver, the wet kiln operator must, inter alia, (1) dem-
onstrate that flue gas levels of CO and THC do not in-
crease over baselines measured when the kiln is fired by
non-hazardous fuels in a manner designed to minimize
hydrocarbon emissicns, (2) identify POHCs in the kiln’s
emissions, and (3) conduct a site-specific risk assessment
to demonstrate that the maximum annual average ground
level concentrations do not exceed listed levels. 40
C.F.R. §266.104(f) (3). It is this Tier III] standard that
bears the brunt of the cement kiln petitioners’ challenges
to the PIC standards. They argue both that the EPA gave
insufficient notice and opportunity for comment on the
Tier III stendard and that each of the three tiers is ar-
bitrary and capricious as applied to wet process kilns.
4la
2. Did the EPA Provide Adequate Notice and Op-
portunity for Comment on the Tier III Hydro-
carbon Standard?
The cement kiln petitioners contend that the EPA failed
to accord adequate notice and opportunity for comment
on the Tier III standard. The validity of this challenge
turns on the relationship between the proposed regula-
tions and the Tier III standard contained in the final BIF
Rule. See Shell Oil Co. v. EPA, 950 F.2d 741, 747
(D.C. Cir 1991) (“The relationship between the proposed
regulation and the final rule determines the adequacy of
notice.”). As we stated in Shell Oil, adequate notice is
given when “the final rule is a ‘logical outgrowth’ of the
one proposed.” Jd. at 747. Nevertheless, the “EPA un-
doubtedly has authority to promulgate a final rule that
differs in some particulars from its proposed rule.” Small
Ref. Lead Phase-Down Task Force v. EPA, 705 F.2d
506, 546 (D.C. Cir. 1983).
The EPA certainly raised the possibility of a specific
standard for wet kilns. In the First Supplement, the
agency explicitly recognized that “[p]reheater and pre-
calciner cement kilns, for example, may not be able to
readily achieve such a low THC concentration for the
same reason that they typically cannot achieve CO levels
below 100 ppmv.” 54 Fed. Reg. 43,724, col. 1. It thus
called for comments on
(1) The types of industrial furnaces for which a
THC level of 20 ppmv is representative of good com-
bustion conditions; (2) whether alternative THC
limits may be more appropriate for certain industrial
furnaces; and (3) whether an approach to identify a
site-specific THC limit representative of good oper-
ating practices may be feasible (e.g.. where THC
limits when burning hazardous waste would be lim-
ited to baseline THC levels without burning hazard-
ous waste.). In support of comments, we request
data on emissions of CO and THC under baseline
42a
and hazardous waste burning conditions, including
characterization of the type and concentration of in-
dividual organic compeunds omitted.
Id. This placed the cement kiln petitioners on notice that
a non-hazardous waste fuel THC baseline standard might
be adopted for wet kilns. Moreover, the EPA held re-
peated meetings with these petitioners as well as individ-
ual cement kiln operators to discuss an alternative hydro-
carbon limit for cement kilns burning hazardous waste
fuel. 56 Fed. Reg. 7,155 & n.28.
While the cement kiln petitioners may have had notice
of the possibility of a THC standard for wet kilns, we are
hard pressed to find any precursor to the dual-baseline/
health-based emissions testing standard actually embodied
in the Tier III provision in any of the three proposed
regulations preceding the final rule. See Proposed Rule,
52 Fed. Reg. 16,982, 16,997-17,000 (1987); First Sup-
plement, 54 Fed. Reg. 43,718, 43,721-28; second supple-
ment to the proposed rule, 55 Fed. Reg. 17,862, 17,880-
89 (1990) (“Second Supplement”). The EPA contends
that the rulemaking proposals disclosed the central ele-
ments of the final Tier III standard and attempts to predi-
cate notice of the Tier III standard on mentions of its
component parts.
To this end, the EPA cites its determination in the First
Supplement that THC could serve as a good indicator of
combustion efficiency, 54 Fed. Reg. 43,722-24, which it
reiterated in the Second Supplement, 55 Fed. Reg. 17,884-
86. The EPA also points to its call for comments on the
possibility of a site-specific limit of THC levels to those
experienced when burning non-hazardous waste fuel, 54
Fed. Reg. 43,724, col. 1, reiterated in the Second Supple-
ment, 55 Fed. Reg. 17,885, col. 3. It also cites the deter-
mination that both CO and THC could be measured on
the basis of hourly rolling averages, 54 Fed. Reg. 43,726-
27, and the suggestion that a THC standard might be
based on generic risk assessment. 54 Fed. Reg. 43,723,
col. 1.
SRD alata Leb esi Wedel aaah RR
43a
Nowhere in the proposed rulemakings, however, does
the agency indicate it is contemplating the possibility of
dual CO and THC baselines. This omission is critical
because notice of individual parts of a proposed rule is
not necessarily notice of the whole. One purpose of
notice is to promote informed decisionmaking, and com-
ments addressed to one specific component part of the
standard do not necessarily bear on the viability of Tier
IIf as a whole. See Fertilizer Inst. v. EPA, 935 F.2d
1303, 1312 (D.C. Cir. 1991) (“Because comments ap-
propriate to a determination of the hazards of radio-
nuclides would not necessarily be appropriate to a deter-
mination of the hazards of entities using or producing
radionuclides, we conclude that the notice published by
the EPA did not provide interested parties with an ade-
quate opportunity to comment.”). Here, more notice
should have been given of the form of the Tier III stand-
ard, for while the “logical outgrowth” standard does not
require the agency to assiduously lay out every detail of
a proposed rule for comment, it does require that the
“agency . . . publish notice of either the substance of a
proposed rule or a ‘description of the subjects and issues’
covered by a proposed rule.” /d. at 1310-11 (quoting 5
U.S.C. § 553(b)(3)). Such a description must “provide
sufficient detail and rationale for the rule to permit inter-
ested parties to participate meaningfully.” /d. at 1311
(internal quotation marks and citations omitted).
It is the possibility of meaningful participation that is
lacking here, for while the EPA proposed individual ele-
ments of the Tier III standard separately, the component
parts were never collected together in such a fashion as
to enable the parties to anticipate and adequately com-
ment on the ultimate Tier III standard. The agency did
request data on “emissions of CC and THC under base-
line and hazardous waste burning conditions,” First Sup-
plement, 54 Fed. Reg. 43,724, col. 1, but this gives no
indication that a dual baseline was contemplated and
could just as easily have been a call for data to support
44a
the Tier I and Tier II standards. Notice of these two
standards was exhaustive, while the cement kiln petitioners
were only on notice that a site-specific THC standard was
contemplated for wet process kilns.
As we have stated before, general notice that a new
standard will be adopted affords the parties scant oppor-
tunity for comment. Small Ref. Lead Phase-Down Task
Force, 705 F.2d at 549. The agency’s obligation is more
demanding—it must “describe the range of alternatives
being considered with reasonable specificity. Otherwise,
interested parties will not know what to comment on, and
notice will not lead to better-informed agency decision-
making.” Jd. Here, the “range of alternatives” described
by the EPA did not include the ultimate standard; nor
can the ultimate standard be considered a “logical out-
growth” of the individual component parts cited by the
EPA. Ultimately, the EPA simply failed to give inter-
ested parties sufficient notice of the form that the Tier III
standard might take, undermining the aims of meaningful
participation and informed decisionmaking. /d. at 547
(“[N]otice improves the quality of agency rulemaking by
ensuring that agency regulations will be tested by ex-
posure to diverse public comment.” (internal quotation
marks omitted) ).
The EPA makes much of the comments submitted on
issues that were to become critical parts of the final rule,
as well as the meetings it held with industry. While we
have noted that insightful comments may be reflective of
notice and may be adduced as evidence of its adequacy,
see, e.g., Shell Oil, 950 F.2d at 751, we have rejected
bootstrap arguments predicating notice on public com-
ments alone. Ultimately, notice is the agency’s duty be-
cause “comments by members of the public would not in
themselves constitute adequate notice. Under the stand-
ards of the APA, notice necessarily must come—if at all
—from the Agency.” /d. (internal quotation marks and
citations omitted). Here, moreover, the comments sub-
mitted by the parties undercut the EPA’s argument for
45a
they only go to the individual component parts of the final
Tier III standard. Not one contemplates anything more
than a standard measuring the amount of THC emissions
over a non-hazardous fuel baseline combined with backup
risk assessment. No mention is made of a dual CO/THC
baseline in any of the comments, and at oral argument
counsel for the EPA conceded that this indicated that no
notice was provided of a possible CO baseline standard
for wet kilns. In sum, the EPA cannot base notice of the
Tier III standard on either submitted comments or pro-
posals concerning individual parts of the ultimate stand-
ard. The Tier III standard not being a logical outgrowth
of any precursor proposal, it is vacated and remanded
for further consideration.
3. Are the EPA’s Rules to Control PIC Emissions
Reasonable?
As discussed above, the EPA enacted a three-tiered pro-
tective standard to control emissions from the burning of
hazardous fuels. The cement kiln petitioners attack the
rationale underlying these standards, contending that each
is arbitrary and capricious. Under our familiar rubric,
“(t]he scope of judicial review of agency decisionmaking
under the arbitrary-and-capricious standard is narrow.
Nonetheless, the agency must examine the relevant data
and articulate a satisfactory explanation for its action
including a rational connection between the facts found
and the choice made.” Natural Resources Defense Coun-
cil v. EPA, 859 F.2d 156, 209 (D.C. Cir. 1988) (foot-
note and internal quotation marks omitted).
a. The Tier III Standard
These petitioners contend that the Tier III standard has
no rational basis. First, they argue that the EPA articu-
lated no basis for its conclusion that kilns could reliably
quantify both CO and THC baselines when burning non-
hazardous fuel. In the BIF Rule, the EPA adduced two
pieces of support: “commenters[’] [assertions] that when
46a
hazardous waste is burned, hydrocarbon levels do not in-
crease and often decrease,” 56 Fed. Reg. 7,157, coi. 1,
and the results of test runs on a single wet process cement
kiln located at Hannibal, Missouri. 56 Fed. Reg. 7,157
col. 1, 7,163 col. 2. The results of the test runs allegedly
demonstrated that emissions of THC are quantifiable and
actually decrease when hazardous fuels are burned (in
comparison to a non-hazardous waste burning baseline).
Id.; Emissions Testing of a Wet Cement Kiln at Hannibal,
Missouri, BBSP-SO147, reprinted in J.A. at 218, Table
4-13 at 4-22. Yet Table 4-13 reveals the very problem
raised by the cement kiln petitioners: that the inhomoge-
neity of the organic material in the saw materials pre-
cludes the establishment of a reliable baseline, and thus
the baselines are not a valid indicator of good combus-
tion. At oral argument, moreover, counsel for the EPA
disavowed reliance on the Hannibal test runs, admitting
that they were conducted for a different purpose and could
not be relicd on to support the Tier UI standard.
Thus the supportive comments cited by the EPA are
the sole evidence of the feasibility of the Tier III stand-
ard. These comments, however, refer only to the possibil-
ity of implementing a THC baseline and make no refer-
ence to the possibility of simultaneously quantifying CO
and THC baselines. The agency thus had no information
on this issue and was relying on pure speculation when it
decided that a standard of no increase of CO and THC
Over quantifiable CO and THC baselines was achievable.
See National Gypsum Co. v. EPA, 968 F.2d 40, 43-44
(D.C. Cir. 1992) (agency cannot “infer” facts not in the
record); Natural Resources Defense Council, 859 F.2d at
210 (agency actions based upon speculation are arbitrary
and capricious). Such speculation is an inadequate re-
placement for the agency’s duty to undertake an exami-
nation of the relevant data and reasoned analysis; thus
the EPA’s action in promulgating the Tier III standard
was arbitrary and capricious. See Specialty Equip. Mid.
Ass'n v. Ruckelshaus, 720 F.2d 124, 137 (D.C. Cir.
ee te
~ ae te) nel ew
Ce ee
47a
1983) (agency's lack of justification demonstrates action
was arbitrary and capricious).
We note that, at oral argument, counsel for the cement
kiln petitioners maintained that they had proposed three
alternative methods by which the objectives of the Tier
III standards could be met and that the EPA had failed
to consider those comments. The EPA, of course, is
obliged to respond to “relevant” and “significant” com-
ments. Home Box Office, Inc. v. FCC, 567 F.2d 9, 35 &
n.58 (D.C. Cir. 1977). We need not consider this argu-
ment as grounds for remand, however, because the cement
kiln petitioners failed to raise it prior to oral argument;
thus we deem it waived.
b. Tier 1 and Tier II Standards
All BIFs are governed by the three-tiered standard;
thus, even though we have vacated the Tier IIT standard,
wet process kilns remain subject to the first two. The
cement kiln petitioners do not contend that they were pro-
vided with inadequate notice or opportunity for comment
on the Tier I and Tier II standards, but they do argue
that these standard are “fundamentally irrational” as ap-
plied to wet kilns and must be vacated as arbitrary and
capricious.
The EPA argues that the three tiers implement its statu-
tory duty, and that if wet kilns cannot comply with one
of these standards, they should simply stop burning haz-
ardous wastes as fuel. The EPA attests, and the cement
kiln petitioners do not dispute, that there are dangers,
known and unknown, associated with burning hazardous
wastes. Ultimately, it is PIC emissions that are being reg-
ulated, and from the standpoint of health and safety, there
is no reason to distinguish between PICs emitted from the
combustion of hazardous wastes and those emitted from
the combustion of the slurry. The EPA has determined
that
48a
hazardous waste burning may affect the type and
concentration of organic compounds emitted from an
industrial furnace that has elevated HC concentra-
tions attributable to raw materials. For example,
the chlorine in the hazardous waste may result in
higher concentrations of chlorinated organic com-
pounds.
56 Fed. Reg. 7.157, col. 3. The EPA candidly admits
that the use of CO and THC as indicators of combustion
efficiency is problematic as applied to wet kilns, yet it
contends that the existing PIC standards are the best ap-
plication of existing scientific knowledge. “This court
does not demand certainty when there is none[.] and the
Agency here may apply its expertise to draw conclusions
from . . . probative preliminary data not yet certifiable
as fact and the like.” Solite Corp. v. EPA, 952 F.2d 473,
490 (D.C. Cir. 1991) (internal quotation marks and cita-
tion omitted). As we have stated before, “[wle cannot
of course substitute our judgment for that of the agency.
What we do require is that the [agency] come to grips
with the obvious ramifications of its approach and address
them in a reasoned fashion.” Natural Resources Defense
Council, 859 F.2d at 209-10 (internal quotation marks
and footnotes omitted).
In the instant case, the EPA has met this standard—it
recognized the effects that the Tier I and Tier II stand-
ards would have on wet kilns and attempted to accommo-
date them in the Tier III standard. The lack of notice
and a reasoned basis for the Tier III standard necessitates
that it be vacated, but the inapplicability of the other two
to wet kilns, standing alone, does not persuade us that
their promulgation was arbitrary and capricious. The
EPA issued those regulations as protective of human
health and the environment; and if it is technologically
impossible for wet process kilns to meet them, they can
simply stop using hazardous waste as fuel. See id. at
206-09 (EPA has no duty to provide for variances from
49a
water quality standards that may be technologically im-
possible to achieve ).
We thus vacate and remand the Tier If] standard while
affirming the Tier I and Tier If standards. Nonetheless,
we note that the EPA has recognized that the Tier I and
Tier I] standards are inappropriate for wet process cement
kilns. The agency may therefore wish to consider estab-
lishing an interim replacement standard for Tier IIf under
the “good cause” exemption of 5 U.S.C. § 553(b) (3) (B)
pending full notice and opportunity for comment. See,
e.g., Shell Oil, 950 F.2d at 752.
Il]. CONCLUSION
For the reasons given above, the BIF Rule is upheld in
part, and the Tier If PIC standard is remanded to the
EPA for reconsideration consistent with the terms of this
opinion.
So Ordered.
50a
APPENDIX B
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 260, 261, 264, 265, and 266
[EPA OSW-FR-92-SWH-FRL-4198-5]
Burning of Hazardous Waste in Boilers
and Industrial Furnaces
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule; technical clarification amendments
and corrections.
SUMMARY : This action makes several technical clarifi-
cation amendments and corrections to the final rule for
boilers and industrial furnaces burning hazardous waste.
The final rule was published on February 21, 1991 (56
FR 7134). These revisions provide clarification and cor-
rect unintended consequences of the rule.
EFFECTIVE DATE: August 11, 1992.
ADDRESSES: The documents are available for viewing
at the RCRA Information Center (docket identification
number F-92-BBC3-FFFFF), located at: EPA RCRA In-
formation Center, room: M2427, 401 M Street, SW, Wash-
ington, DC 20460.
The RCRA Information Center is open from 9 a.m. to
4 p.m. Monday through Friday, except for federal holli-
days. The public must make an appointment to review
docket materials. Call (202) 260-9327 for appointments.
Copies cost $0.15 per page.
FOR FURTHER INFORMATION CONTACT: | For
general information, contact the RCRA _ Hotline at:
(800) 424-9346 (toll free) or (703) 920-9810.
5la
Shiva Garg, Office of Solid Waste (OS-322W), U.S.
Environmental Protection Agency, 401 M Street, SW,
Washington, DC 20460, (703) 308-8459.
SUPPLEMENTARY INFORMATION:
Preamble Outline
A. Technical Clarification Amendments
1. The Definition of Baseline Hydrocarbon Level for
Industrial Furnaces Complying with the Alternative Hy-
drocarbon Limits is Clarified to Require Consideration of
Process Variability.
2. Industrial Furnaces Complying with the Alternative
HC Limit May Comply with the Interim HC Limit Using
a Conditioned Gas HC Monitoring System if They Dem-
onstrate that a Heated System Is Impracticale.
3. Industrial Furnaces that Cannot Comply with the
20 ppmv HC Limit by Aug. 21, 1992, because of Organic
Matter in Raw Materials May Apply for a Case-by-Case
Time Extension to Make Physical Changes to the Facility
in Order to Comply with that HC Limit.
4. The Metals and Total Chlorine and Chloride Feed
Rate Operating Limits for Tier I or Adjusted Tier I Are
Based on the Screening Limits, Not the Compliance Test.
5. Adjusted Tier I Feed Rate Screening Limits May
Be Used in Dispersion Situations where the Tier I and
Tier I Screening Limits Are Precluded.
6. Several Requirements Are Clarified to Account for
Facilities that Comply with Adjusted Tier I Limits.
7. BIF Storage Units are Subject to the Air Emissions
Standards of subparts AA and BB of parts 264 and 265.
8 The Definitions of Plasma Arc and Infrared Incin-
erators Are Clarified to Include Only those Devices that
Use an Afterburner.
52a
9. Facilities that Comply with the Tier I or Adjusted
Tier | Metals and Chlorine Controls and that have Un-
controlled Emissions that Meet the Particulate Matter
Standard Need Not Establish a Limit on Production Rate
during Interim Status.
10. Halogen Acid Furnaces that Burn Hazardous
Waste as an Ingredient Are Subject to the BIF Rule.
11. When Comparing Levels of Nonmetal Constituents
in Residue to the Health-Based Limits for the Bevill Ex-
clusion, the Levels Cannot Exceed the Health-Based
Limits or the Level of Detection, whichever Is Higher.
12. The Applicability of part 266 Is Clarified.
13. Conforming Revisions Are Made to the Applica-
bility Sections of parts 264 and 265.
14. A Conforming Revision Is Made to the Rule-
making Petitions Provision of part 260.
B. Technical Corrections
C. Immediate Effective Date
A. Technical Clarification Amendments
On February 21, 1991, the Agency published a final
rule which regulates the burning of hazardous waste in
boilers and industrial furnaces (BIFs). See 56 FR 7134.
The rule controls emissions of toxic organic compounds,
toxic metals, hydrogen chloride, chlorine gas, and particu-
late matter from BFIs that burn hazardous waste. In
addition, the rules subject owners and operators of BIFs
to the general facility and permitting standards applicable
to hazardous waste treatment, storage, and disposal facili-
ties.
After publication of the rule, the Agency received many
questions and requests for clarification on certain provi-
sions of the rule. In addition, in a number of cases, the
Agency was questioned as to whether the rule as promul-
53a
gated truly reflected the Agency’s intent. As a result of
these questions and as a result of the Agency’s own re-
view, the Agency published a technical amendment to the
rule to clarify the operation of the regulation and to cor-
rect certain unintended consequences. Those amendments
were published at 56 FR 42504 on August 27, 1991.
(Note that EPA had previously published several other
technical corrections and amendments to the February 21
final rule (56 FR 32688 (July 17, 1991).)
As facilities began to comply with the BIF rules, addi-
tional questions have been raised about the way various
provisions of the rule are intended to work. Today’s
technical clarification amendments address those ques-
tions.
1. The Definition of Baseline Hydrocarbon Level for
Industrial Furnaces Complying With the Alternative
Hydrocarbon Limit Is Clarified To Require Considera-
tion of Process Variability
The Cement Kiln Recycling Coalition (CKRC) has
expressed concern to the Agency that the alternative hy-
drocarbon (HC) provision of the rule is problematic for
furnaces that feed raw materials containing naturally-
occurring Organic matter." See § 266.104(f). That provi-
sion was intended to allow furnaces that could not com-
ply with the 20 ppmv HC limit because of organic matter
in raw materials to comply with an alternative, higher HC
limit. EPA’s rationale for the 20 ppmb limit was to en-
sure good hazardous waste combustion conditions and,
thus, control of emissions of products of incomplete com-
bustion (PICs). However, because hydrocarbon emis-
sions from organic matter in raw materials are not di-
rectly related to fuel-generated hydrocarbons (i.e., from
burning normal fuels and hazardous waste fuels), the
‘See the BIF docket for documentation of meetings and phone
conversations and copies of correspondence.
54a
Agency believed that these hydrocarbon should not be
counted toward the 20 ppmv HC limit. See 56 FR 7155-
56. To implement the alternative HC limit, the final rule
required such furnaces to establish an HC limit that would
be applicable when burning hazardous waste as the HC
level achieved when not burning hazardous waste and
when the furnace is operated to “minimize” HC levels.
See $ 266.104(f)(1).
CKRC has noted that this provision could be read to
limit fuel-generated hydrocarbons to approximately 2 to 5
ppmv—the HC levels that are achieved when cement kilns
(and boilers, incinerators, and other industrial furnaces )
are operated under conditions to absolutely minimize HC
levels. Therefore, although the Agency limits combustion-
generated hydrocarbons from other combustion devices to
20 ppmyv, the rule could be read to limit fuel-related
hydrocarbon levels from cement kiins to 2 to 5 ppmv.
In particular, CKRC notes that the rule could be inter-
preted to limit hydrocarbons when burning hazardous
waste to the levels achieved when not burning hazardous
waste (i.c., baseline conditions) and when kiln is operated
to absolutely minimize HC levels and would not allow
the facility to account for normal transient combustion
conditions that occur because of factors such as mechani-
cally handling coal. These conditions are elements of
normal operating variability. Although these transient
conditions cause combustion perturbations and momen-
tary increases (i.e., spikes) in HC levels, these combus-
tion-related HC levels do not generally exceed the 20
ppmv hourly rolling average limit that the Agency has
established to control PICs.
Nonetheless, the most literal-minded reading of the rule
would preclude consideration of these normal combustion
perturbations if the rule’s requirement that baseline HC
levels be established when the kiln is operated to mini-
mize HC levels is read to mean to operate constantly at
(ae btinnd waink tn. wt
55a
absolute peak performance.’ This literal-minded reading
would lead to the result—not intended by EPA—that
whenever such a normal combustion perturbation would
occur (when the kiln is burning hazardous waste) and
there is a spike in the HC level that causes the baseline
HC level to be exceeded, the kiln would be required to
stop burning hazardous waste and not restart the hazard-
ous waste feed until the HC level falls below the baseline
limit. Nor did EPA intend that industrial furnaces op-
erate at an absolutely optimized performance in establish-
ing a baseline ignoring normal operating variability (i.e.,
a performance level analogous to a New Source Perform-
ance Standard rather than best available technology). In-
deed, the rule refers to establishing a baseline when the
industrial furnace “produces normal products under nor-
mal operating conditions” (see § 266.104(f)(1)), and the
analogous 20 ppmv HC limit itself is an “indicator of
good combustion conditions” (see 55 FR 7155), not ab-
solutely optimized combustion.
Although EPA believes these readings take an unduly
stringent view of the requirement that HC levels be mini-
mized when establishing a baseline, we nevertheless think
it best to clarify the text of the rule. Therefore, EPA is
correcting the definition of the baseline HC level pro-
vided by § 266.104(f)(1) to make it clear that the meas-
ured baseline HC level must be adjusted as appropriate to
consider the normal variability of hydrocarbon levels
*Even if the rule were interpreted to allow normal combustion
perturbations (i.e., perturbations that do not result in combustion
generated hydrocarbons exceeding 20 ppmv on an hourly rolling
average, and thus, are within the Agency’s definition of good com-
bustion conditions) during baseline testing, establishing a baseline
that includes such normal perturbations would be problematic.
This is because the owner or operator cannot ensure that the
perturbations that occur during the baseline testing are representa-
tive (i.e., in frequency, magnitude, and duration) of normal pertur-
bations. The occurrence of normal perturbations cannot always be
predicted, and it would be difficult for the owner or operator to
demonstrate that perturbations that could be artificially induced
during baseline testing are representative of normal perturbations.
56a
under good combustion operating conditions. Thus, the
measured baseline level could be increased by a variability
factor that considers normal transient combustion condi-
tions (i.e., provided that the transient conditions do not
result in combustion-generated HC that exceed the 20
ppmv limit provided by § 266.104(c)). Accordingly, to-
day’s clarification amends the definition of the baseline
HC level in § 266.104(f)(1) to read as follows: “The
baseline HC level is defined as the average over all valid
test runs of the highest hourly rolling average value for
each run, adjusted as appropriate to consider the varia-
bility of hydrocarbon levels under good combustion operat-
ing conditions.”
This HC variability factor would be determined on a
case-by-case basis by the Director. As guidance in deter-
mining what variability factor to apply, EPA believes that
a factor of 10 ppmv would be appropriate in most situa-
tions.* As indicated previously, the Agency believes that
combustion-generated HC levels from cement kilns (and
other furnaces eligible for the alternative HC limit) should
be limited to 20 ppmv to ensure good combustion condi-
tions. This is the same HC limit that applies to boilers,
other furnaces, and incinerators, and provides a “level
playing field” with respect to control of combustion-
generated hydrocarbons. Thus, we recommend that the
alternative HC limit be established as 20 ppmv plus the
raw material-generated HC level. We do not believe that
it is feasible, however, to measure only raw material-
generated hydrocarbons; the HC monitor in the stack
measures both hazardous waste combustion-generated and
3 We note that, if a variability of 10 ppmv is used to adjust he
measured baseline HC level, facilities with measured HC levels of
11 ppmv or greater would be eligible for the alternative HC limit.
This is because the baseline HC level, when adjusted for the 10
ppmvy variability factor, would be 21 ppmv or more and facilities
with baseline HC levels exceeding 20 ppmv are eligible for the
alternative HC limit.
———————————
|
i
57a
raw material-generated hydrocarbons. Therefore, to esti-
mate the level of raw material-generated hydrocarbons, it
is conservative and reasonable to assume that 10 ppmv *
of the HC measured under baseline conditions (when the
kiln must be operated to minimize combustion-generated
hydrocarbons) is attributable to hazardous waste com-
bustion. (Note that when the kiln is operated to absolutely
minimize hazardous waste combustion-generated hydro-
carbons, HC levels should be in the range of 2 to 5 ppmv.
Thus, the recommended assumption that combustion-
generated hydrocarbons are 10 ppmv during baseline test-
ing is conservative.’ Under this approach, raw material-
generated hydrocarbons are estimated to be the measured
HC level during baseline testing minus 10 ppmv. The 20
ppmv combustion-generated HC allowance would then be
added to the estimated raw material-generated hydro-
carbons. The net effect would be simply to add 10 ppmv
to the measured baseline HC level.
As discussed above, the rational for adding a variability
factor to the measured baseline HC level assumes that
the baseline level is determined when the device is operated
under conditions that generally minimize combustion-
generated hydrocarbon.* Therefore, combustion-generated
* Note that the assumption that 10 ppmv of HC during baseline
testing is attributable to hazardous waste combustion is not the
basis for the recommended 10 ppmv variability factor. As discussed
in the text, however, this assumption leads to the Agency’s conclu-
sion that a 10 ppmv variability factor is appropriate.
*The assumption that combustion-generated HC is 10 ppmv
during baseline testing is conservative because if, for example, we
assumed that combustion-generated HC is 5 ppmv, the variability
factor would be 15 ppmy, not 10 ppmv. This is because, the lower
that the combustion-generated HC is assumed to be, the higher
the raw material-generated HC is estimated to be, and the 20 ppmv
allowance for combustion-generated HC is added to the estimated
raw material-generated HC.
* Although it is not practicable for an industrial furnace to
operate continuously under conditions that minimize combustion-
generated HC as discussed previously in the text, it is reasonable
58a
hydrocarbon spikes causing a significant increase in the
hourly rolling average HC level should not be allowed
during baseline testing. To ensure that substantial varia-
bility is not already included in the baseline HC level, the
hourly rolling average hydrocarbon level should not vary
during baseline testing by more than 5 ppmv when meas-
ured HC levels are in the range of 10-30 ppmv. When
measured HC levels exceed 30 ppmvy, then a higher allow-
able range of HC levels (i.e., the difference between the
highest and lowest hourly rolling average level) during
baseline testing may be appropriate given that the abso-
lute HC levels are higher and even minor perturbations
could cause significant changes in HC levels.’
EPA is interested in obtaining further information on
whether this recommended approach is reasonable to es-
tablish an alternative HC limit for devices that cannot
meet the 20 ppmv HC limit because of organic matter in
raw materials. EPA therefore invites all interested persons
to submit any relevant information on this issue.
2. industrial Furnaces Complying With the Alternative
HC Limit May Comply With the Interim HC Limit
Using a Conditioned Gas HC Monitoring System if
They Demonstrate That a Heated System Is Imprac-
ticable
Section 266.103(c)(5) of the rule allows owners and
operators of BIFs, other than those that obtain a time
extension, to certify compliance with the 20 ppmv HC
limit using a conditioned gas (i.e., cold) HC monitoring
system rather than a heated monitoring system. Although
and necessary to require the facility to operate during baseline
testing under conditions that generally minimize combustion-
generated HC. This is because, otherwise, a variability factor
would be added to a baseline HC level that may already include
substantial variability.
7 Baseline testing should consist of a minimum of three test runs,
with each run having a minimum duration of three hours.
59a
the Agency prefers the heated system because a cold sys-
tem may remove some hydrocarbons during gas condition-
ing (e.g., chilling the gas sample line to condense water
vapor can also remove hydrocarbons), the Agency recog-
nized that heated systems are not in widespread use on
BIFs and modifications to the monitoring systems may be
necessary to address operation and maintenance prob-
lems. See 56 FR 7162 (February, 21, 1991). Conse-
quently, the Agency reasoned that facilities that comply
with the HC limit on Aug. 21, 1992, should be allowed to
use a cold system. On the other hand, he Agency rea-
soned that those owners and operators who obtain a time
extension should be required to certify compliance with
a hot system given that the time extension should provide
enough time to resolve operation and maintenance prob-
lems. (Note that facilities that elect to certify compliance
with a cold system on Aug. 21, 1992, must use a hot
system when they recertify compliance under interim
Status or obtain a RCRA operating permit. See § 266.103
(c)(5).
The Agency did not anticipated the consequences that
this requirement would have on cement kilns complying
with the alternative hydrocarbon provision of $$ 266.104
(f) and 266.103(c)(7)(ii)(B). Under thoes require-
ments, cement kilns must, prior to August 21, 1992, sub-
mit a complete Part B permit application that includes
documentation of the baseline HC level, and cbtain a
time extension from the Director. Until the operating
permit is issued, the facility must comply with an interim
HC (and CO) limit effective no later than August 21,
1992, that is established as a condition of the time exten-
sion.
Consequently, although cement kilns complying with
the alternative hydrocarbon provision must obtain a time
extension, they must monitor hydrocarbons prior to Au-
gust 21, 1992, in order to establish the baseline HC level.
and must monitor hydrocarbons continuously beginning
60a
August 21, 1992. Thus, § 266.103(c)(5) has the un-
intended consequence of requiring such facilities to use a
hot HC monitoring system on (and before) August 21,
1992.
As discussed above, the Agency has already determined
that this is infeasible (and therefore provided a condi-
tioned (i.e., cold) monitoring option). Therefore, to give
such facilities the time they may need to resolve operating
and maintenance problems with hot monitoring systems,
today’s technical correction revises § 266.103(c)(5) to
enable the Director to approve on a case-by-case basis the
use of a cold system for establishing the baseline HC level
and complying with the alternative, interim HC limit.
This correction is a logical and necessary adjunct to the
existing regulation that allows the alternative use of cold
HC monitoring systems. The Director’s approval will be
based on a demonstration by the facility that it has made
a good faith effort to install and operate a heated system
but that it has determined that continuous operation is not
practicable at this time. The Agency does not believe
that this demonstration will be a burden on owners and
operators because they have known since February 21,
1991, that a hot monitoring system was required by the
rule and should have been attempting to operate continu-
ously such systems for some time.
In considering a request to use a conditioned gas moni-
tor in lieu of a hot monitor, the Director may impose addi-
tional requirements on the owner and operator of the fa-
cility to ensure that a hot monitoring system is installed
as soon as practicable. See § 266.103(c)(7)(ii)(A).
For example, the Director may require the owner or op-
erator to operate a hot monitoring system to the extent
practicable concurrently with a conditioned gas monitor-
ing system in order to meet specified milestones in activi-
ties designed to resolve operational problems with a heated
HC monitoring system, and to report periodically on
:
6la
progress toward achieving sustained operation of the hot
monitoring system.
This amendment does not extend the deadline for cer-
tification of compliance. Owners and operators requesting
to comply with the alternative hydrocarbon limit are re-
quired to submit their request along with accompanying
supporting materials in time to allow the Director to grant
or deny the request by August 21, 1992.
3. Industrial Furnaces That Cannot Comply With the
20 PPMY HC Limit by August 21, 1992, Because of
Organic Matter in Raw Materials May Apply for a
Case-by-Case Time Extension To Make Physical
Changes to the Facility in Order to Comply With That
HC Limit
The Agency is clarifying the rule to make it clear that
industrial furnaces that cannot comply with the 20 ppmv
HC limit for reasons beyond the owner’s or operator's
control may request a time extension to certify compliance
with the HC limit. The final rule allows facilities that
elected to comply with the alternative hydrocarbon provi-
sions of § 266.104(f) to obtain a time extension under
$ 266.103(c)(7)(ii)(B). However, the Agency inad-
vertently did not make it clear that owners and operators
that elected to make physical changes to the facility to
enable them to comply with the 20 ppmv HC limit (i.e.,
the usual HC limit, rather than an alternative limit estab-
lished on a case-by-case basis) but who cannot do so by
August 21, 1992, for reasons beyond their control are
also eligible to request a time extension under § 266.103
(c)(7) (ii).
EPA meant for § 266.103(c)(7)(ii)(B) to apply only
to facilities that comply with the alternative HC limit, and
believes that this intent is fairly clear in the existing regu-
latory language since the provision (§ 266.103(c) (7) (ii)
(B)(2)) references the procedure for establishing CO
62a
and HC baseline levels (§ 266.104(f)(1)) applicable
only to persons complying with the alternative HC limit.
Conversely, the provisions make little sense for persons
who intend to comply with the limit of 20 ppmv because
the requirements in § 266.103(c)(7)(ii)(B) are related
only to the alternative HC limit.
Accordingly, today’s amendment revises § 266.103(c)
(7) (ii) (B) to clarify that paragraph applies only to facili-
ties that comply with the alternative HC limit. Thus, the
general time extension provision of § 266.103(c) (7) (ii)
applies to all other situations, including industrial furnaces
that need time to modify the facility to comply with the
20 ppmv HC limit.
Industrial furnaces such as cement kilns may elect to
make physical modifications to the facility to enable them
to certify compliance with the 20 ppmv HC limit rather
than to comply with the alternative HC provisions of
§ 266.104(f). If those modifications cannot be completed
in time to enable the facility to certify compliance by
August 21, 1992, for reasons beyond the facility’s control,
the owner or operator may request a time extension.
If a time extension is granted, the Director will use the
authority of § 266.103(c)(7)(ii) to establish operating
conditions as necessary to reasonably ensure that emis-
sions of toxic organic compounds do not pose a threat to
human health and the environment. Operating conditions
that may be applied may include limits on the type, quan-
tity, and method of firing hazardous waste, and limits on
combustion parameters such as oxygen, carbon monoxide,
and hydrocarbons.
Examples of physical changes that may be made to the
facility in order to meet the 20 ppmv HC limit are: (1)
Installation of a secondary combustion chamber to destroy
organic compounds in the kiln off-gas; or (2) installation
of a roaster to volatilize organic compounds from the raw
material before feeding it to the kiln where hazardous
63a
waste is burned. These changes may enable the owner or
operator to demonstrate that stack gas concentrations do
not exceed the 20 ppmv limit. At this time, the Agency
has not evaluated the practicability of installing a second-
ary combustion chamber or roaster to reduce HC emis-
sions. The Agency is simply identifying these as conceiv-
able changes that may enable a facility to meet the 20
ppmv HC limit.
* * * *
64a
APPENDIX C€C
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 260, 261, 264, 265, 266, 270 and 271
[EPA/OSW-FR-9 1-012; SWH-FRL-3865-6]
RIN 2050-AA72
Burning of Hazardous Waste in Boilers
and Industrial Furnaces
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
SUMMARY: Under this final rule, the Environmental
Protection Agency (EPA) is expanding controls on haz-
ardous waste combustion to regulate air emissions from
the burning of hazardous waste in boilers and industrial
furnaces. Currently, such burning is exempt from regula-
tion. EPA is promulgating this final rule after considering
public comment on rules proposed on May 6, 1987, plus
the comments on EPA’s supplemental notices of October
26, 1989 and April 27, 1990.
These rules control emissions of toxic organic com-
pounds, toxic metals, hydrogen chloride, chlorine gas, and
particulate matter from boilers and industrial furnaces
burning hazardous waste. In addition the rules subject
owners and operators of these devices to the general fa-
cility standards applicable to hazardous waste treatment,
Storage, and disposal facilities. Further, today’s final rule
subjects hazardous waste storage units at regulated burner
facilities to part 264 permit standards. Burner storage
operations at existing facilities are generally now subject
only to interim status standards under part 265.
Finally, today’s rule takes final action on two pending
petitions for rulemaking: (1) based on a petition by Dow
Chemical Company, EPA is designating halogen acid
A
;
3
:
3
65a
furnaces as industrial furnaces under § 260.10; and (2)
based on a petition by the American Iron and Steel Insti-
tute, EPA is classifying coke and coal tar fuels produced
by recycling coal tar decanter sludge, EPA Hazardous
Waste No. KO87, as products rather than solid waste.
The rule also makes several technical corrections to regu-
lations dealing with loss of interim status for facilities
that achieved interim status as of November 7, 1984.
EFFECTIVE DATE: This final rule is effective on
August 21, 1991. Technical corrections to § 270.73 are
effective on publication.
The incorporation by reference of certain publications
listed in the regulations is approved by the Director of
the Federal Register as of August 21, 1991.
* * x “
II. Controls for Emissions of Toxic Organic Compounds
Burning hazardous waste that contains toxic organic
compounds (i.e., organic compounds listed in appendix
VIII of 40 CFR part 261) under poor combustion condi-
tions can result in substantial emissions of the toxic com-
pounds originally present in the waste as well as other
compounds, due to partial but incomplete combustion of
the constituents in the waste. The quantity of toxic organic
compounds emitted depends on the concentrations of the
toxic compounds in the waste, the waste firing rate (i.e.,
the percentage of total fuel provided by the hazardous
waste to the boiler or industrial furnace), and the com-
bustion conditions under which the waste is burned. The
risk posed by the emissions depends on the quantity and
toxicity of the compounds emitted and on the ambient
levels to which persons are exposed. Hypothetical risk
assessments show that under poor combustion conditions
that achieve only 99 percent or 99.9 percent destruction
and removal efficiency (DRE) of organic compounds,
risks to the maximum exposed individual (MEI) from
66a
unburned carcinogenic organics found in hazardous waste
can result in increased lifetime cancer risks of 10.”
The Agency is controlling the emissions of toxic or-
ganic compounds from boilers and industrial furnaces that
burn hazardous waste with two performance standards.
First, a 99.99 percent destruction and removal efficiency
(DRE) standard for principal organic hazardous consti-
tuents (POHCs) in waste feeds will ensure that constitu-
ents in the waste are not emitted at levels that could pose
a significant risk in virtually all scenarios of which the
Agency is aware.’' Second, limits on flue gas concentra-
tion of carbon monoxide (CO) and, where specified, hy-
drocarbons (HC) will ensure that combustion devices op-
erate continuously at high combustion efficiency and emit
products of incomplete combustion (PICs) at levels that
will not pose adverse effects on public health and the en-
vironment. The basis for these standards is discussed
below.
A. DRE Standard
As proposed, the Agency is promulgating a 99.9999%
DRE standard * for those acutely hazardous wastes listed
® We note, moreover, that some boilers and many industrial fur-
naces are already subject to a particulate matter (PM) standard
under a NSPS, SIP, or PSD program and the applicable PM stand-
ard is generally more stringent than the 0.08¢r/dscf standard pro-
vided by today’s rules. Thus, these devices are already under a
regulatory compliance program for a PM standard. We note fur-
ther that the more stringent PM standard applies.
10 Engineering-Science, Background Information Decument for
the Development of Regulations to Control the Burning of Hazard-
ous Waste in Boilers and Industrial Furnaces, Volume III, January
1987 (NTIS # PB 87 173845).
11 Except that 99.9999°, DRB is required for dioxin-listed hazard-
ous waste.
12 The proposed formula for calculating DRE has been revised in
the final rule (see § 266.104(a)), to make it mathematically correct
considering use of significant figures.
67a
because they contain dioxin’ (and waste mixed with
those wastes), and a 99.99 percent DRE performance
standard for all other wastes. This standard is protective,
it can be readily achieved by boilers and industrial fur-
naces, and it will ensure that the Agency’s controls are
consistent for all combustion devices (boilers, industrial
furnaces, and incinerators) that pose similar risks.
Hypothetical risk assessments have shown that a 99.99
percent DRE standard for POHCs is protective of risks
posed by emissions of organic constituents in the waste in
virtually every scenario of which the Agency is aware.”
(EPA considers elsewhere in this notice the issue of
products of incomplete combustion.) Increased lifetime
cancer risks to the maximum exposed individual (MEI)
from an incinerator operating at 99.99 percent DRE
would generally be 10° or less. Threshold (i.e., noncar-
cinogenic) organic compounds also would not be ex-
pected to be present in emissions from hazardous waste
burned in boilers and industrial furnaces at levels that
could pose a health hazard under the 99.99 percent DRE
standard.
EPA, is aware, however, that the DRE standard does
not directly control the mass emission rate (e.g., pounds
per hour) of unburned toxic organic constituents in the
waste. Although three are hypothetical situations in which
risks from POHCs could be significant under a 99.99 per-
cent DRE standard (e.g., boilers or industrial furnaces
located in urban areas burning high volumes of waste
with high concentrations of highly potent carcinogenic
organics) the Agency is not aware that any such situa-
tions are actually occurring. If, however, during the per-
Init process, it appears that a high-risk scenario may exist,
‘SEPA Hazardous Wastes FO20, FO21, FO22, FO238, FO26,
and FO27.
™ Engineering Science, op. cit.
68 1
permit officials may use the omnibus permit authority ** of
section 3005(c)(3) of the Resource Conservation and
Recovery Act (RCRA) codified at § 270.32(b)(2) to
develop permit requirements, as necessary, to protect hu-
man health and the environment (e.g., by requiring a
99.9999 percent DRE, by limiting the feed rate of par-
ticular toxic compounds, or by setting a mass emissions
rate).
1. Selection of POHCs for DRE Testing
In the April 27, 1990 proposed rule to amend the in-
Cinerator standards (55 FR 17890), EPA outlined the
considerations to be made by applicants and permitting
officials in selecting POHCs for DRE trial burns. Given
that the DRE implementation procedures for boilers and
industrial furnaces (BIFs) are identical to those for in-
cincerators, the discussions in the incinerator proposed
rule are pertinent to this rule.
A major factor in selecting a POHC for DRE testing
is its incinerability relative to other toxic organic com-
pounds. A number of indices can be used to predict in-
cinerability including heat of combustion, autoignition
temperature, thermal stability under excess oxygen condi-
tions, and thermal stability under low oxygen (substoichio-
metric) conditions. An incinerability ranking based on
thermal stability at low oxygen concentrations (TSLoO.)
shows promise and is currently seeing widespread use in
incinerator permits. A number of commenters responded
to EPA’s request for comment on the use of the TSLoO.
15 EPA notes that permit writers choosing to invoke the omnibus
permit authority of § 270.32(b) (2) +o add conditions to a RCRA
permit must show that such conditions are necessary to ensure
protection of human health and the environment and must provide
support for the conditions to interested parties and accept and
respond to comment. In addition, permit writers must justify in
the administrative record supporting the permit any decisions based
on omnibus authority.
69a
index for POHC selection. In general, they raised no
problems with use of the index. Their main concern ap-
peared to be that EPA choose one index and apply it
consistently.
The Agency, however, is not requiring the use of a
particular index. Due to the various “failure modes” dif-
ferent organic compounds are susceptible to during the
destruction process in a combustion device, and the evolv-
ing state of knowledge in this area, the Agency feels that
the POHC selection process is technically complex, and
that it should involve a number of considerations, rather
than simply one incinerability ranking. Thus, EPA in-
stead recommends that permit writers and applicants con-
sider these indices and other relevant factors and use
their judgment and applicable guidance on a case-by-case
basis to select POHCs for the trial burn.
2. Use of POHC Surrogates
A number of laboratory-scale, pilot-scale, and_field-
scale tests have been conducted to investigate the use of
nontoxic tracer surrogates (e.g., sulfur hexafluoride (SF.))
rather than POHCs selected from appendix VIII of part
261. Sulfur hexafluoride, in particular, shows promise as
a conservative tracer surrogate for compounds which are
susceptible to the thermal failure mode (i.e., it is difficult to
destroy unless sufficiently high temperatures are reached).
It is readily available commercially, and is inexpensive
and nontoxic. POHCs that are listed on appendix VIII,
especially in situations where spiking is required to in-
crease concentrations in a waste for DRE testing, are
often difficult to obtain, are expensive, and are a health
hazard to operators. Sampling and analysis techniques
for SF. are well documented because of its long use as a
tracer gas for monitoring ambient air and are more
straightforward (simpler) and less expensive than sam-
pling techniques for appendix VIII, part 261, compounds
(e.g., VOST and MMS).
70a
Numerous commenters responded to EPA’s request for
information on an approach for simplifying and standard-
izing DRE testing. Commenters supported standardiza-
tion of DRE testing provided the approach is equitable
for all boilers, industrial furnaces, and incinerators. Com-
ments were received in support of all three approaches
proposed by EPA (“POHC soup,” surrogates, and specific
waste analysis). Commenters generally supported use of
surrogates in lieu of extensive waste analysis for design
of DRE tests. Other commenters suggested using a lim-
ited number of major waste constituents as POHCs,
such as carbon tetrachloride, perchloroethylene, trichloro-
ethylene, and monochlorobenzene, until it can be shown
that a universal surrogate, such as sulfur hexafluoride
(SF.), is comparable in demonstrating DRE performance.
Sulfur hexafluoride was recommended by some comment-
ers aS a good surrogate choice based on the high accur-
acy of results with the compound and ease of use.
However, since the April 27 proposed rule, data have
become available showing cases where other organic com-
pounds were more difficult to destroy than SF. under con-
ditions of low oxygen. This is consistent with theory,
since SF; can be destroyed under conditions of high tem-
perature and low oxygen relatively easily compared to
compounds which need oxygen to decompose. Thus, al-
though SF. appears to show promise as a surrogate for
testing the thermal failure mode because of its stability
at high temperatures, it does not appear to be adequate
as a “universal” surrogate, since it does not test for low
oxygen or “mixing” failure.
Nevertheless, today’s rule explicitly allows the use of
Surrogate, nontoxic compounds for selection as POHCs
for DRE testing. As for any other type of POHC, the
use of such compounds must be approved on a case-by-
case basis by permit officials based on technical support
provided by the applicant. The applicant’s trial burn
plan must adequately document the correlation between
ABlininin es rishi bic Plies cpite AR lea CBRL ad lit DS AD I AAD EB chat tS Nie ARAL. AE em Gelli t te tae
Tila
the DRE of the surrogate compound and the DREs of
the appendix VIII compounds anticipated to be burned
at the facility under the facility’s permit.
* * * *
B. PIC Controls
The burning of hazardous waste, like virtually any com-
bustion process, results in emissions of incompletely
burned organic compounds, or products of incomplete
combustion (PICs). PICs can be unburned organic com-
pounds that were present in the waste, thermal decom-
position products resulting from organic constituents in
the waste, or compounds synthesized during or immedi-
ately after combustion. If a device is operated under poor
combustion conditions, substantial emissions of PICs can
result (even if 99.99% DRE is demonstrated for POHCs;
this just means that the POHC is not being emitted in its
original form). However, it should be noted that esti-
mates of risk to public health resulting from PICs, based
on available emissions data, indicate that PIC emissions
do not pose significant risks when BIFs and incinerators
are operated under good combustion conditions.
Nonetheless, the Agency is concerned about the poten-
tial health risk from PICs because the available informa-
tion has serious limitations. It is very difficult to identify
and quantify emissions of thousands of different com-
pounds, some of which are present in minute quantities.
Although elaborate and expensive sampling and analytical
techniques have been developed that can identify many
PICs, many others cannot be identified and quantified
with current techniques. Further, health effects informa-
tion adequate to conduct a health risk assessment con-
sidering exposure via direct inhalation is not currently
available on many organic compounds that may be emitted
from combustion systems. Finally, the available public
health and environmental risk assessment tools are incom-
plete. Data are currently available to conduct indirect
72a
exposure analyses (e.g., exposure via the food chain,
drinking water, dermal exposure) on only a few organic
compounds, and it will be some time before the Agency
will be able to quantify impacts on ecological resources
on a site-specific basis for purposes of establishing emis-
sions standards.
Given the limited information about the hazards that
PIC emissions may pose, EPA believes it is prudent to
require that boilers and industrial furnaces operate at a
high combustion efficiency to minimize PIC emissions.
EPA is promulgating today a two-tiered approach to
control PICs as discussed in the October 29, 1989, supple-
mental notice (54 FR 43721-28). Under Tier I, CO is
limited to 100 ppmv. Under Tier If, the Agency is pro-
viding an alternative standard. The facility need not meet
the 100 ppmv CO limit provided the facility can demon-
strate that the hydrocarbon (HC) concentration in the
stack gas does not exceed a good operating practice-based
limit of 20 ppmv. The alternative CO limit under Tier II
must be established during the test burn based on the
average overall runs of the highest hourly rolling average
for each run.
1. Use of aCO Limit to Control PICs.
Generally accepted combustion theory holds that low
CO flue gas levels combined with low CO flue gas levels
combined with low excess oxygen levels indicate a boiler,
industrial furnace, or incinerator is operating at high com-
bustion efficiency. Operating under high combustion effi-
ciency helps to ensure minimum emissions of unburned
(or incompletely burned) organics. In the first stage of
the combustion of hazardous waste fuel, the POHCs
thermally decompose in the flame to form other, usually
smaller, compounds termed products if incomplete com-
bustion. In this first stage of combustion, these PICs also
decompose to form CO.
en eC Te a et
APRS RR
73a
The second stage of combustion involves the oxidation
of CO to CO, (carbon dioxide). The CO to CO, step is
the slowest (rate-controlling) step in the combustion proc-
ess because CO is considered to be more thermally stable
(difficult to oxide) than other intermediate products of
the combusion of hazardous waste constituents. Because
fuel is being fired continuously, these combusion stages
occur simultaneously.
Thus, in the waste combustion process, the “destruc-
tion” of POHCs is independent of the flue gas CO levels.
CO flue gas levels cannot be correlated with DREs for
POHCs, and may also not correlate well with PIC destruc-
tion. Although some emissions data indicate a weak cor-
relation between CO and PICs, the data generally indicate
that there is a relationship between the two parameters:
When CO is low, PIC emissions are relatively low. The
converse may not hold: when CO is high, PICs may or
may not be high.
Low CO is an indictaor of the status of the CO to CO.
conversion process, the last rate-limiting oxidation process.
Because oxidation of CO to CO. occurs after the destruc-
tion of a POHS and its (other) intermediates (PICs), the
absence of CO is a useful indication of POHC and PIC
destruction. The presence of high levels of CO in the flue
gas is a useful indication of inefficient combustion, and
at some level of elevated CO flue gas concentration, is an
indication of the failure of the PIC and POHC destruction
process.
EPA believes it is necessary to limit CO levels to levels
that are indicative of high combustion efficiency because
the precise CO level that indicates significant failure of
the P!C and POHC destruction process is not known. In
fact, this critical CO level may depend on site-specific and
event-specific factors (e.g., fuel type, fuel mix, air-to-fuel
ratios, and the rate and extent of changes in these and
other factors that affect combustion efficiency). EPA be-
lieves that limiting CO levels is also reasonable because:
74a
(1) It is a widely practiced approach for monitoring
combustion efficency—some boilers and industrial furnaces
are already equipped with CO monitors, and many are
equipped with flue gas oxygen monitors; (2) the monitors
may pay for themselves through fuel savings resulting from
operation of the boiler or industrial furnace closer to maxi-
mum combustion efficiency; and (3) well-designed and
well-operated boilers and industrial furnaces can readily
be operated in conformance with either the 100 ppmv CO
limit under Tier I, or the 20 ppmv HC limit under Tier II.
2. Tier I PIC Controls: 100 ppmv CO Limit
a. Basis for the 100 ppmv CO Limit. The May 6,
1987 proposed rule would have applied the same CO
emission limits to all boilers and industrial furnaces: a
lower limit of 100 ppmv over an hourly rolling average
and a 500 ppmv limit over a 10-minute rolling average.
The hazardous waste feed would be shut off automatically
if either limit was exceeded. However, the hazardous
waste would be cutoff immediately once the 500 ppmv
limit was exceeded while the waste feed would be cutoff
within 10 minutes if the 100 ppmv limit was exceeded.
Further if the hazardous waste feed was cutoff more than
10 times in a month, the proposed rule would have pro-
hibited further hazardous waste burning pending review
and approval by enforcement officials. The lower limit of
100 ppmv was selected as representative of steady-state
high efficiency combustion conditions resulting in PIC
emissions that would not pose a significant risk. The
higher limit of 500 ppmv was proposed to limit the fre-
quency of emission spikes that inevitably accompany rou-
tine operational “upsets,” such as load changes and start-
ups of waste firing.
While two commenters stated that the proposed 100
ppmv CO limit is arbitrary, six commenters supported the
Tier I CO limit of 100 ppmv. One commenter supported
both the 100 ppmv CO limit over an hourly rolling aver-
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75a
age, and the 500 ppmv CO limit over a 10-minute rolling
average. Three additional commenters also expressed sup-
port for the 500 ppmv CO limit over a 10-minute rolling
average. Three other commenters supported a 500 ppmv
CO limit over an hourly rolling average, and stated that a
maximum 1,000 ppmv CO limit can be included in addi-
tion to a 10-minute average.
Many commenters opposed the CO trigger limits and
associated limits on the number of waste feed cutoffs
proposed in May 1987. Primarily, commenters objected
to one set of CO emission limits as applicable to all
boilers and industrial furnaces. Further, they argued that
PIC emissions will not be significant if, when the waste
feed is cutoff, the combustion chamber temperatures are
maintained while the waste remains in the chamber. Six
commenters argued that the trigger limits will result in
increased NOx emissions. One commenter stated that NO:
and CO cannot be lowered simultaneously, and added
that many low NO: boilers may not be able to meet these
CO limits. As an alternative, one commenter stated that
a higher Tier I CO limit should be allowed for less toxic
emissions; however, this commenter did not provide an
alternative approach for identifying the toxicity of emis-
sions. One commenter suggested that EPA retain two
alternatives to the CO standard: establishing an alterna-
tive standard based on nonmethane, ethane hydrocarbon
(NMEHC) emissions, and a case-by-case risk assessment
approach.
As a result of these and other comments and further
evaluation, EPA is promulgating the Tier I limits based
on a maximum hourly rolling average CO limit of 100
ppmvy, corrected to 7 percent flue gas oxygen content. If
this limit is exceeded, the hazardous waste feed must be
automatically and immediately cutoff. The final rule does
not restrict the number of waste feed cutoffs because:
(1) Combustion chamber temperatures must be main-
tained after a cutoff; and (2) the number of cutoffs will
76a
be minimized by allowing CO concentrations to be aver-
aged over a 60-minute period (i.c., the hourly rolling
average) and by the recommended use of pre-alarms to
provide time to remedy the problem or to allow a staged
waste cutoff before reaching the CO limit. Nonetheless,
the Agency retains the authority to limit the frequency
of cutoffs as the facts warrant. See § 266.102(e)(7) (ii).
The final rule does not include the proposed 500 ppmv
rolling average over a 10-minute limit on CO because we
do not believe it is needed given that the final rule re-
quires immediate waste feed cutoff when the 100 ppmv
hourly rolling average limit is exceeded. In addition,
several commenters argued that the 500 ppmv limit was
arbitrary.
In addition, EPA is promulgating alternative (Tier IT)
standards (discussed below), as discussed in the October
1989 supplemental notice, for control of PIC emissions
from boilers and industrial furnaces. The Agency believes
that the alternative controls will allow facilities flexibility
in meeting both the PIC controls and NO. emissions
standards (imposed under different regulatory authori-
tics) simultaneously. The Agency believes that the alter-
native, Tier II standards for control of PIC emissions
are needed to address issues and concerns raised by com-
enters on the proposed rule.
The 100 ppmv CO limit promulgated today for Tier I
is indicative of steady-state (i.ec.. normal), efficient com-
bustion conditions. The time-weighed average for the CO
limit is provided to accommodate the CO spikes that in-
evitably occur during routine “upsets,” such as when
hazardous waste fuel firing starts, when there is a load
change on an industrial boiler, or when the composition
of fuels varies. Given that CO is a sensitive indicator of
overall combustion conditions, and that it may be a con-
servative indicator of POHC and PIC destruction, EPA
is implementing CO control limits based on time-weighted
averages of exceedances rather than implementing fixed
ye eee)
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CO limits. Fixed limits that do not acknowledge in-
evitable CO spikes and that do not give owners and
operators time to adjust combustion conditions actually
could result in greater emissions of PICs because each
time hazardous waste firing is interrupted, CO concentra-
tions increase, and emissions of incompletely burned
organics may also increase. (Note, however, that there
is a requirement to maintain combustion chamber tem-
perature after a waste feed cutoff while waste remains in
the chamber that is intended to minimize HC emissions
after a cutoff.) Thus, any controls on CO must balance
the effects of organic emissions that may result from
overly stringent CO limits that require frequent waste
feed interruptions with the effects of emissions resulting
from less stringent controls that acknowledge inevitable
CO spikes.
The Agency has considered whether the 100 ppmv CO
limit is, in fact, too stringent given that we acknowledge
the limit was chosen from within the range of reasonable
values that may be considered indicative of good com-
bustion conditions-—50 to 250 ppmv. We attempted to
obtain CO/time profiles from a number of well-operated
devices to determine the percentage of time the facilities
operated within particular CO ranges.” We thought to
use this data to predict the frequency of waste feed cut-
offs that would be required at various CO limits. Un-
fortunately, the analyses could not be conducted because
the facilities we evaluated were operating under specific
CO limits and their CO levels never exceeded those limits
when burning hazardous waste. We found that the facili-
ties learned to comply with the CO limits they had to
meet.
Moreover, we believe that the 100 ppmv CO limit is
reasonable for a number of reasons. Not only is it within
19? Energy and Environmental] Research Corporation. “Guidance
on Metal and PIC Emissions from Hazardous Waste Incinerators”,
Final Report, September 21, 1990.
78a
the range of CO levels that are indicative of good com-
bustion conditions, but the Agency believes that it is not
too low because: (1) It is higher than the technology-
based 50 ppmv CO level EPA requires for boilers burning
waste PCBs (see 40 CFR part 761); (2) it is higher than
the CO limits included in many hazardous waste incinera-
tor permits; (3) the Agency explicitly encourages the
use of pre-alarms to minimize the frequency of automatic
waste feed cutoffs; *' and (4) the limit is implemented on
an hourly rolling average basis which allows and mini-
mizes the effects of short-term CO spikes.
We aslo note that the Agency may soon promuigate
regulations for municipal waste combustors (MWCs) that,
among other controls, may limit CO concentrations to
50, 100, or 150 ppmv (as proposed), depending on the
type of MWC, over a four hour rolling average and dry-
corrected to 7% oxygen. The MWC limits are technol-
ogy-based—they represent levels readily achievable by
well-designed and well-operated units. EPA does not be-
lieve that the MWC limits present a conflict with the
100 ppmv (with provisions for an alternative higher limit
if HC concentrations are less than 20 ppmv) limit for
BIFs under today’s rule. The Agency is confident that
the BIF rule is protective because the Agency has deter-
mined that, when CO levels are less than 100 ppmv, PIC
emissions do not pose significant risk. Thus, although the
100 ppmv limit is not a best demonstrated technology-
based limit (many BIFs (and hazardous waste incinera-
tors) readily operate at CO levels well below 100 ppimv),
20 We note that the Agency proposed on April 27, 1990 to apply
to hazardous waste incinerators the same CO/HC limits that today’s
rule applies to BIFs.
“1 If the CO limit is “too low” for a given facility’s design and
operating conditions, then frequent waste feed cutoffs may occur.
Frequent waste feed cutoffs may actually increase PIC emissions
because the resulting perturbation to the combustion system may
upset the termperature, oxygen, fuel relationships need for complete
combustion.
79a
the 100 ppmv CO limit will ensure protection of human
health and the environment.
As stated above, the CO limits are based on a flue gas
oxygen content of 7 percent. One commenter indicated
that EPA’s reasoning for using the CO correction of 7
percent oxygen is not clear. The commenter believes the
7 percent correction factor is unfair for thermal units
which, under normal conditions, need to operate at oxy-
gen levels greater than 7 percent, yet operate with low
levels of CO and HCs. EPA believes that correcting CO
levels for flue gas oxygen content is necessary because
without this correction, high CO flue gas concentrations
could be diluted by high rates of excess oxygen. In to-
day’s rule, EPA is requiring that CO be corrected to a
flue gas oxygen content of 7 percent because the majority
of boilers and industrial furnaces achieve high combustion
efficiency at optimum flue gas oxygen levels ranging from
3 percent to 10 percent. The optimum oxygen level to
achieve high combustion efficiency for a given device will
vary depending on factors such as fuel mix and boiler
load. In general, large combustion devices (in terms of
heat input capacity) have optimum oxygen requirements
on the low end of the range of oxygen content, while
smaller units require higher oxygen levels, EPA believes
that a correction level of 7 percent is reasonable since
this oxygen level is in the middle of the range of typical
operation for all devices and since the majority of devices
burning hazardous waste fuels have moderate heat input
capacities (e.g., 20-150 MM Btu/hr). In addition, 7 per-
cent oxygen is the reference level for the existing particu-
late standard for hazardous waste incinerators under 40
CFR 264.343(c).
Moreover, the oxygen level to which CO values are
corrected is not significant since the CO levels for all
facilities are corrected to a common basis. If the oxygen
correction level were changed from 7% to some other
value, then theoretically, the CO limit would have to be
80a
adjusted accordingly, and the effect on individual facili-
ties would remain the same.
b. Implementation of the 100 ppmv CO Limit. The
procedures used to implement the 100 ppmv CO limit
are discussed below, including oxygen and moisture cor-
rection, format of the limit, and compliance with the
limit.
Oxygen and Moisture Correction. The CO limit under
Tier I (and Tier II) is on a dry gas basis corrected to 7
percent oxygen. The oxygen correction normalizes the
CO date to a common base, accounting for the variation
in design and operation of the various combustion de-
vices. In-system leakage, facility size, and waste feed
type are other factors that cause oxygen concentrations
to vary widely in flue gases and were considered in selec-
tion of the oxygen correction factor. The correction for
moisture normalizes the CO data that results from the
different types of CO monitors used at facilities (e.g.,
extractive, in situ, etc.). EPA’s evaluation indicates that
application of the oxygen and moisture corrections can
change measured CO levels by a factor of two in some
cases.
Measured CO levels must be corrected continuously for
the amount of oxygen in the stack gas according to the
formula:
CO.=COn & 14/(E—Y)
Where:
CO. is the corrected concentration of CO in the
stack gas, COm is the measured CO concentration
according to guidelines specified in Methods Manual
for Compliance with the BIF Regulations (Methods
Manual)”, E is the percentage of oxygen contained
22U.S. EPA, Methods Manual for Compliance with the BIF
Regulations, December 1990. Available from the National Informa-
tion Service NTIS), 5285 Port Royal Road, Springfield, VA 22161,
(703) 487-4600. The document number is PB 91-120-006.
8ia
in the air used for combustaion, and Y is the meas-
ured oxygen concentration on a dry basis in the
stack. Oxygen must be measured at the same stack
location at which CO is measured under procedures
that are also provided in the Methods Manual.
Format of the CO Limit. EPA proposed that the CO
limits be implemented under either of two alternative
formats, the hourly rolling average format or the time-
above-a-limit format. Under this approach, applicants
would select the preferred approach on a case-by-case
basis. Comments were received in support of both alter-
native formats. Based on further evaluation of the two
formats and for reasons explained below, EPA is requir-
ing use of the hourly rolling average format for com-
pliance with this rule.
Under the hourly rolling average format, a facility
must measure and record CO levels as an hourly rolling
average. This approach a'lows instantaneous CO peaks
without requiring a cutoff provided that at other times
during the previous hour CO levels were correspondingly
below the limit. This approach requires a CO monitoring
system that can continuously measure and adjust the
oxygen correction factor and compute the hourly rolling
averages.
Under the proposed time-above-a-limit format, dual CO
limits would be established in the permit: the first as a
never-to-exceed limit and the second as lower limit for
cumulative exceedances of no more than a specified period
of time in an hour. These limits and the time duration
of the exceedances would be established on a case-by-case
basis by equating the mass emissions (peak areas) in both
the formats (time-above-a-limit and hourly rolling average
formats) so that the regulation would be equally stringent
in both cases. The instruments needed for the time-
above-a-limit format would include a CO monitor, a re-
ccrder, and a timer that could indicate the cumulative
time of exceedances in every clock hour, at the end of
82a
which it would be recalibrated (manually or electroni-
cally). Oxygen would not be measured continuously in
this format; instead an oxygen correction factor would be
determined from operating data collected during the trial
burn. Subsequently, oxygen correction factors would be
determined annually or at more frequent intervals speci-
fied in the facility permit.
EPA has re-examined the time-above-the-limit format
in light of several comments received and has decided to
delete this alternative in today’s final rule because:
1. Since a facility would not be required to meas-
ure oxygen continuously under this format, there
would be no assurance that a facility would be op-
erated reasonably close to the oxygen level at which
it operated during the trial burn. Even with a daily
determination of an oxygen correction factor, there
would be the possibility of “gaming” by the facility
(operating the facility at low oxygen levels during
the short test period when the oxygen is measured,
getting a favorable correction factor established on
the basis, and thereafter letting the facility operate
at high oxygen levels). Since the major advantage
of this format was the cheaper cost due to the omis-
sion of the oxygen cost due to the omission of the
oxygen monitoring requirement, adding continuous
oxygen monitoring to this format would remove this
advantage as well; and
2. The proposed computations for converting
hourly rolling averages to this format would be cum-
bersome, inexact, and above all, very restrictive. To
obtain a conservative conversion, a permit writer
would have to assume that CO levels will remain at
the established never-to-exceed limit for the full
specified time in the hour, and at the lower estab-
lished limit the rest of the time. The CO limits od-
tained by these computations would be very restric-
tive. As an example, a conversion of a Tier I limit
83a
of 100 ppmv hourly rolling average for a facility
having a single CO excursion of 4-minutes duration
in which the peak level was 1,000 ppmv, would re-
sult in a permit specifying that for the remaining 56
minutes, CO could not exceed 34 ppmvy, a very re-
strictive limit. For example, a CO profiile of 38
ppmv for 55 minutes and 40 ppmv for the remaining
5 minutes would result in a violation.
Compliance with the Tier I CO Limit. The Agency
considered a number of alternative approaches for evalu-
ating CO readings during trial burns to determine com-
pliance with the 100 ppmv limit, including: (1) The
time-weighted average (or the average of the hourly roll-
ing averages); (2) the average of the highest hourly roll-
ing averages for all trial burn runs; or (3) the highest
hourly rolling average. The time-weighted average alter-
native provides the lowest CO level that could reasonably
be used to determine compliance, and the highest hourly
rolling average alternative provides the highest CO level
that could reasonably be used. EPA is requiring the use
of the most conservative of these approaches, the highest
hourly rolling average approach, for interpreting trial
burn CO emissions for compliance with the 100 ppmv
Tier I limit. (This approach is conservative because trial
burn CO levels are compared to the maximum CO al-
lowed under Tier I—100 ppmv.) EPA believes this con-
servative approach is reasonable since compliance with
the Tier I CO limit allows applicants to avoid the Tier II
requirement of evaluating HC emissions to provide the
additional assurance (or confirmation) that HC emissions
do not exceed levels representative of good operating
practice.
3. Tier IJ PIC Controls: Limits on CO and HC
a. Need for Tier II PIC Controls. Commenters indi-
cated that several types of boilers and many cement kilns
will not be able to meet the (Tier I) 100 ppmv CO limit
84a
proposed in May 1987 even though HC concentrations
will not be high at elevated CO levels. For example,
boilers that burn residual oil or coal typically operate
with CO emission levels above the Tier 1 100 ppmv CO
limit because of inherent fuel combustion characteristics,
equipment design constraints, routine transient combus-
tion-related events, requirements for multiple fuel flexi-
bility, and requirements for compliance with NOx emis-
sion standards established under the Clean Air Act. At-
tempts to reduce CO emissions from these devices to meet
the Tier I limit could prove unsuccessful. In addition,
there is a possibility that thermal efficiency could be ad-
versely affected if these attempts are successful.
Similarly, industry and trade groups for the cement
industry voiced strong opposition to the 100 ppmv CO
limit for cement kilns. These commenters indicated that
some cement kilns, especially modern precalciners, rou-
tinuely emit CO above the Tier I 100 ppmv limit. In
general, commenters indicated that while the Tier I limit
may be appropriate for combustion devices in which only
fuel (fossil or hazardous waste) enters the combustion
chamber, it is inappropriate for cement kiln and other
product kilns in which massive amounts of feedstocks are
processed. These feedstocks can generate large quantities
of CO emissions which are unrelated to the combustion
efficiency of burning the waste and fuel. Whereas all the
CO from boilers and some industrial furnaces is combus-
tion-generated, the bulk of the CO from product kilns
can be the result of process events unrelated to the com-
bustion conditions at the burner where wastes are in-
troduced.” Therefore, limiting CO emissions from these
combustion devices to the Tier I 100 ppv leve’ may be
difficult and may not be warranted as a means of mini-
mizing risk from PICs.
73 For example, CO can be generated from the trace levels of
organic matter contained in the raw materials as the materials
move down the kiln from the “cold” feed end to the “hot” end where
the fuel and waste is fired and the product is discharged.
85a
In summary, commenters argued that these are specific
instances and classes of combustion devices for which the
Tier I CO limit would be difficult or virtually impossible
to meet, and thus this limit is inappropriate since EPA
has not established a direct correlation between CO emis-
sions, PIC emissions, and health risks.
In light of these concerns, commenters suggested that
EPA establish CO limits for specific categories of com-
bustion devices based on CO levels achieved by units
operating under best operating practices (BOP). The
Agency considered this approach but determined that
equipment-specific CO trigger limits would be difficult to
establish and support and would not necessarily provide
adequate protection from PIC emissions. Nonetheless,
EPA believes that the CO limits should be flexible to
avoid major economic impacts on the regulated com-
munity since no direct correlation has been established
between exceeding the 100 ppmv CO limit and increasing
health risks from PIC emissions. EPA believes, however,
that at some elevated CO level PIC emissions would pose
significant risk. At this time, EPA is unable to identify a
precise CO trigger level since the trigger level may vary
by the type and design of the combustion device and the
fuel mix used in the device. Consequently, EPA has
established a two-tiered approach to control PICs. Under
Tier I, CO is limited to 100 ppmv or less, as discussed
above. Under Tier II, CO levels can exceed 100 ppmv
provided that the owner or operator demonstrate that the
HC concentration in the stack gas does not exceed a good
operating practice-ba
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