Superfund program: know— Combustion for energy recovery; clarification,

[Federal Register: September 30, 1998 (Volume 63, Number 189)]

[Rules and Regulations]

[Page 52183-52185]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr30se98-17]

ENVIRONMENTAL PROTECTION AGENCY

40 CFR Part 372

[OPPTS-400133; FRL-6033-5]

RIN 2070-AC71

Clarification of Combustion for Energy Recovery; Toxic Chemical Release Reporting; Community Right-to-Know

AGENCY: Environmental Protection Agency (EPA).

ACTION: Clarification of final rule.

SUMMARY: EPA is providing clarification regarding the combustion for energy recovery of chemicals covered by section 313 of the Emergency Planning and Community Right-to-Know Act of 1986 (EPCRA) and section 6607 of the Pollution Prevention Act of 1990 (PPA).

FOR FURTHER INFORMATION CONTACT: Sara Hisel McCoy, 202-260-7937 or e- mail: hisel-mccoy.sara@epamail.epa.gov, for specific information regarding this document or for further information on EPCRA section 313, the Emergency Planning and Community Right-to-Know Information Hotline, Environmental Protection Agency, Mail code 5101, 401 M St., SW., Washington, DC 20460, Toll free: 1-800-535-0202, in Virginia and Alaska: 703-412-9877, or Toll free TDD: 1-800-553-7672.

SUPPLEMENTARY INFORMATION:

1. General Information

   1. Does This Document Apply To Me?

      You may be potentially affected by this document if you combust EPCRA section 313 toxic chemicals in waste for energy recovery on-site or transfer these toxic chemicals off-site for this purpose. Potentially affected categories and entities may include, but are not limited to the following:

      Examples of Potentially Category

      Interested Entities

      Industry; facilities that manufacture, Manufacturing, Metal mining, process, or otherwise use certain

      Coal mining, Electric chemicals

      utilities, Commercial hazardous waste treatment, Chemicals and allied products-wholesale, Petroleum bulk terminals and plants wholesale, and Solvent Recovery services

      Facilities with hazardous waste boilers Cement kilns and industrial furnaces

      This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be interested in this document. Other types of entities not listed in this table may also be interested in this document. Additional businesses that may be interested in this document are those covered under 40 CFR part 372, subpart B. If you have any questions regarding whether a particular entity is covered by this section of the CFR, consult the technical person listed in the ``FOR FURTHER INFORMATION CONTACT'' section.

   2. How Can I Get Additional Information or Copies of This Document or Other Support Documents?

      1. Electronically. You may obtain electronic copies of this document from the EPA Internet Home Page at http://www.epa.gov/. On the Home Page select ``Laws and Regulations'' and then look up the entry for this document under the ``Federal Register - Environmental Documents''. You can also go directly to the ``Federal Register'' listings at http://www.epa.gov/homepage/fedrgstr/. You may also obtain electronic copies of related documents at http://www.epa.gov/opptintr/ tri/industry.htm.

      2. In person or by phone. If you have any questions or need additional information about this action, please contact the technical person identified in the ``FOR FURTHER INFORMATION CONTACT'' section. In addition, the official record for this document, including the public version, has been established under docket control number OPPTS- 400133. A public version of this record, including printed, paper versions of any electronic comments, which does not include any information claimed as Confidential Business Information (CBI), is available for inspection from 12 noon to 4 p.m., Monday through Friday, excluding legal holidays. The official record is located in the TSCA Nonconfidential Information Center, Rm. NE-B607, 401 M St., SW., Washington, DC. The TSCA Nonconfidential Information Center telephone number is 202-260-7099.

2. Background

   In the Federal Register of May 1, 1997 (62 FR 23834) (FRL-5578-3), EPA issued a final rule entitled ``Addition of

   [[Page 52184]]

   Facilities in Certain Industry Sectors; Revised Interpretation of Otherwise Use; Toxic Release Inventory Reporting; Community Right-to- Know'' (hereinafter referred to as the ``industry expansion rule''). That rule added seven industry groups to the list of facilities subject to the reporting requirements of EPCRA section 313, 42 U.S.C. 11023 and section 6607 of the Pollution Prevention Act (PPA) 42 U.S.C. 13106(a). In addition, this rule which promulgated definitions at 40 CFR 372.3 for several terms relevant to the rulemaking, defined ``treatment for destruction'' to mean:

   [T]he destruction of a toxic chemical in waste such that the substance is no longer the toxic chemical subject to reporting under EPCRA section 313. Treatment for destruction does not include the destruction of a toxic chemical in waste where the toxic chemical has a heat value greater than 5,000 British thermal units and is combusted in any device that is an industrial furnace or boiler.

   With this notice, EPA is clarifying this definition, preamble language to the facility expansion rule, and other related documents. This document supersedes any inconsistent information and specifically the interpretation of ``combustion for energy recovery'' as it is expressed in section 2 of the EPA document entitled ``Section 313 Emergency Planning and Community Right-to-Know Act Guidance Document for RCRA Subtitle C TSD Facilities and Solvent Recovery Facilities'' (EPA 745-B-97-015).

3. Description of Clarification

   This document clarifies that EPA's references to 5,000 British Thermal Units per chemical per pound (Btu/chemical/lb) in the definition of ``treatment for destruction'' in 40 CFR 372.3 and in the preamble to the facility expansion rule and other documents in explaining ``combustion for energy recovery'' is not intended to function as a regulatory floor at this time for determining the heating value at which energy may be recovered. EPA referenced 5,000 Btu/ chemical/lb in the definition of ``treatment for destruction'' to clarify its definition of that term. The reference to 5,000 Btu/ chemical/lb in the definition of ``treatment for destruction'' is intended to identify a ceiling for determining whether ``treatment for destruction'' has occurred. Thus, EPA did not intend to issue a final statement on whether ``combustion for energy recovery'' may occur if a toxic chemical that has less than 5,000 Btu value is combusted in an energy recovery device. However, a toxic chemical that is a metal or a metal compound is never combusted for energy recovery. Therefore, in preparing a Form R pursuant to EPCRA section 313, a facility may not report metals or metal compounds as being combusted for energy recovery. EPA recognizes that for purposes of the Resource Conservation and Recovery Act (RCRA), there may be some circumstances when energy recovery may be obtained for a waste stream with a Btu value of less than 5,000. EPA will formally address this issue in a rulemaking to implement section 6607 of the Pollution Prevention Act.

4. Example of Clarification

   Subsequent to publishing the facility expansion rule, EPA published six documents for the seven industries newly added to the EPCRA section 313 reporting requirements. These documents include: ``Section 313 Emergency Planning and Community Right-to-Know Act Guidance Document for RCRA Subtitle C TSD Facilities and Solvent Recovery Facilities'' (EPA 745-B-97-015), ``Section 313 Emergency Planning and Community Right-to-Know Act Guidance Document for Metal Mining Facilities'' (EPA 745-B-97-011), ``Section 313 Emergency Planning and Community Right-to- Know Act Guidance Document for Chemical Distribution Facilities'' (EPA 745-B-97-013), ``Section 313 Emergency Planning and Community Right-to- Know Act Guidance Document for Coal Mining Facilities'' (EPA 745-B-97- 012), ``Section 313 Emergency Planning and Community Right-to-Know Act Guidance Document for Petroleum Bulk Facilities'' (EPA 745-B-97-014), and ``Section 313 Emergency Planning and Community Right-to-Know Act Guidance Document Electricity Generating Facilities'' (EPA 745-B-97- 016). EPA is amending section 2 of these documents to reflect the Agency's clarification concerning EPCRA section 313 toxic chemicals burned for energy recovery. An example of this clarification is provided as follows:

   Combustion for energy recovery is interpreted by EPA to include the combustion of a section 313 chemical that is (1) (a) a RCRA hazardous waste or waste fuel, (b) a constituent of a RCRA hazardous waste or waste fuel, or (c) a spent or contaminated ``otherwise used'' material; and that (2) has a significant heating value and is combusted in an energy or materials recovery device. Energy or materials recovery devices are boilers and industrial furnaces as defined in 40 CFR 372.3 (see 62 FR 23891, May 1, 1997). If a reported toxic chemical is incinerated but does not contribute energy to the process (e.g., metal, metal compounds, and chloroflorocarbons), it must be considered treatment for destruction. In determining whether an EPCRA section 313 listed chemical is combusted for energy recovery, the facility should consider the heating value of the section 313 chemical and not of the chemical stream.

   EPA is committed to amending the six documents referenced to remedy these inconsistencies by the end of the calendar year 1998.

5. Regulatory Assessment Requirements

   1. Certain Acts and Executive Orders

      This clarification does not impose any requirements. As such, this action does not require review by the Office of Management and Budget (OMB) under Executive Order 12866, entitled Regulatory Planning and Review (58 FR 51735, October 4, 1993), the Paperwork Reduction Act (PRA), 44 U.S.C. 3501 et seq., or Executive Order 13045, entitled Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, April 23, 1997). For the same reason, it does not require any action under Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4), or Executive Order 12898, entitled Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations (59 FR 7629, February 16, 1994). In addition, since this type of action does not require any proposal, no action is needed under the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.).

   2. Executive Order 12875

      Under Executive Order 12875, entitled Enhancing the Intergovernmental Partnership (58 FR 58093, October 28, 1993), EPA may not issue a regulation that is not required by statute and that creates a mandate upon a State, local, or tribal government, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by those governments. If the mandate is unfunded, EPA must provide to OMB a description of the extent of EPA's prior consultation with representatives of affected State, local, and tribal governments, the nature of their concerns, copies of any written communications from the governments, and a statement supporting the need to issue the regulation. In addition, Executive Order 12875 requires EPA to develop an effective process permitting elected officials and other representatives of State, local, and tribal governments ``to provide meaningful and timely input in the development of regulatory proposals containing significant unfunded mandates.''

      [[Page 52185]]

      Today's clarification does not create an unfunded Federal mandate on State, local, or tribal governments. The clarification does not impose any enforceable duties on these entities. Accordingly, the requirements of section 1(a) of Executive Order 12875 do not apply to this clarification.

   3. Executive Order 13084

      Under Executive Order 13084, entitled Consultation and Coordination with Indian Tribal Governments (63 FR 27655, May 19, 1998), EPA may not issue a regulation that is not required by statute, that significantly or uniquely affects the communities of Indian tribal governments, and that imposes substantial direct compliance costs on those communities, unless the Federal government provides the funds necessary to pay the direct compliance costs incurred by the tribal governments. If the mandate is unfunded, EPA must provide to OMB, in a separately identified section of the preamble to the rule, a description of the extent of EPA's prior consultation with representatives of affected tribal governments, a summary of the nature of their concerns, and a statement supporting the need to issue the regulation. In addition, Executive Order 13084 requires EPA to develop an effective process permitting elected officials and other representatives of Indian tribal governments ``to provide meaningful and timely input in the development of regulatory policies on matters that significantly or uniquely affect their communities.''

      Today's clarification does not significantly or uniquely affect the communities of Indian tribal governments. This action does not involve or impose any requirements that affect Indian tribes. Accordingly, the requirements of section 3(b) of Executive Order 13084 do not apply to this clarification.

6. Submission to Congress and the Comptroller General

   The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, does not apply because this action is not a rule, as that term is defined in 5 U.S.C. 804(3).

   List of Subjects in 40 CFR Part 372

   Environmental protection, Community right-to-know, Reporting and recordkeeping requirements, Toxic chemicals.

   Dated: September 23, 1998.

   Lynn R. Goldman,

   Assistant Administrator for Prevention, Pesticides and Toxic Substances.

   [FR Doc. 98-26166Filed9-29-98; 8:45 am]

   BILLING CODE 6560-50-F