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| !    | **Environmental Technology Council**                          |
| [](m |                                                               |
| edia | **734 15^th^ Street, N.W. • Suite 720 • Washington, DC 20005  |
| /ima | • (202) 783-0870**                                            |
| ge1. |                                                               |
| png) |                                                               |
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January 17, 2006

Mr. James Berlow

USEPA Headquarters

Ariel Rios Building

1200 Pennsylvania Avenue, N. W.

Mail Code: 5302W

Washington, DC 20460

Re: [Amendments to Comparable Fuels Exclusion: Options Under
Consideration]{.underline}

Dear Jim:

Thank you for holding the public stakeholder meetings on the options
under consideration for possible revisions to the comparable fuels
exclusion (CFE) in 40 CFR 261.38. At the meetings, you suggested that
interested parties could submit their comments in writing. The ETC has a
number of concerns about the lack of an adequate basis for proceeding
with this proposed rulemaking, which are summarized in these comments
for the record. While we have not had time to thoroughly evaluate the
options, or to conduct separate studies related to the analytical
issues, we wanted to submit our preliminary views early in the process.

**Option A: Nondetect-Based Specifications for Volatile Hydrocarbons and
Oxygentates -- Correct the Specifications to Base Them on Gasoline
Quantitation Limits Rather Than Fuel Oil Quantitation Limits**

Option A would base the detection limits for certain hydrogenated and
oxygenated constituents in CFE waste on gasoline. The current
specifications are based on fuel oil detection limits, and EPA is
considering whether CFE wastes are more like gasoline than fuel oil, and
therefore these detection limits might not be achievable.

EPA first needs to address many unanswered questions before proposing
such revisions for the following reasons:

-   The ACC survey does not indicate that detection limits are a problem
    for most candidate waste streams, so it is unclear why EPA should
    undertake a major new rulemaking to revise the current CFEs.

-   The CFE Background Documents and ECI paper submitted by ACC do not
    adequately support the need to revise the detection limits for
    candidate wastes. The ECI paper was based on tests in only one
    laboratory, looking at one technique for analyzing CFE waste that
    was biased towards high detection limits.

-   The assumption that CFE waste is more like gasoline than fuel oil
    has not been demonstrated, either in the comp fuel background
    documents or other studies, and requires substantial additional
    analysis.

Each of these points is discussed in detail below.

**1. The ACC survey does not indicate that detection limits are an issue
for a significant number of waste streams.**

Most of the 96 respondents to the ACC survey did not indicate that their
waste failed the current CFE due to detection limits, but rather for the
following reasons:

-   The waste contains high percentage levels of the failing
    constituent. Those respondents claiming that their wastes have a
    problem with a hydrogenated or oxygenated constituent are seeking
    very high percentage levels for the waste, well above the gasoline
    detection limit. For example, respondent D-04-13 would like to see
    the toluene standard revised to 50% and respondent D-05-11 would
    like to see the MEK standard revised to 2% and the isobutyl alcohol
    standard revised to 5%. These are well above the detection levels
    for gasoline.

-   The waste contains levels of metals, halogenated organics, reactive
    cyanide or some other non-hydrogenated or non-oxygenated constituent
    that fails the CFE. This is the case with 26 of the 96 waste
    streams, or 23% of the quantity of waste surveyed by ACC.

-   Finally, 15 of the 96 respondents in the ACC survey indicated no
    issues with the standards at all. Several respondents had not
    evaluated their waste relative to the standards and/or did not
    indicate what the problem was with meeting the CFE.

The ETC found survey responses for only 4 waste streams that might have
detection limit issues. These are summarized below:

-   Respondent F-01-13 failed for only methyl methacrylate and is
    seeking a limit of 890 mg/kg.

-   Respondent F-01-16 failed for only isobutyl alcohol and is seeking a
    limit of 222 mg/kg.

-   Respondent K-01-12 stated that achieving the non-detect level for
    acrolein and isobutyl alcohol was an issue, but did not state what
    level could be achieved.

-   Respondent K-04-12 stated that only acrolein was an issue and could
    meet a standard of 500 mg/kg.

Thus, only 4 waste streams and 3 constituents (methyl methacrylate,
isobutyl alcohol, and acrolein) appear to pose any problems with
detection limits. For the three problematic constituents, the
respondents stated that they could meet detection levels of 222 to 890
mg/kg. These levels are far below EPA's revised specification under
consideration of 3,400 mg/kg based on gasoline. Therefore, none of the
ACC survey data supports any need to revise the CFE standards to the
levels under consideration relative to a gasoline matrix.

Furthermore, even for these levels of 222 to 890 mg/kg, it is not clear
from the survey if these were non-detect levels, or the levels actually
present for which the respondents wanted the exemption raised. It is
possible for these cases that the respondents could detect the current
exemption standard of 39 mg/kg, and merely want the limit raised to the
level of 222 to 890 mg/kg since this is the level present in their
waste. The reality is that only one respondent clearly raised detection
limits as an issue, but did not provide any data on what detection limit
was achievable for the waste matrix.

The ACC survey does not indicate a widespread problem with detection
limits or a need to change the exemption levels. Before embarking on a
new rulemaking that will consume scarce Agency and stakeholder
resources, we request that a convincing case be made that the detection
limits for volatile hydrocarbons and oxygenates are, in fact, preventing
a substantial use of wastes as comparable fuels. EPA should request that
ACC conduct a more detailed and careful survey to determine the actual
amount of hazardous waste that will qualify for the CFE under Option A
before going forward with a time-consuming and expensive rulemaking.

**2. There is insufficient evidence of analytical issues with the
current standards based on fuel oil, and the ECI paper fails to
demonstrate a major problem.**

Before EPA proposes new limits based on gasoline, the agency should
conduct or obtain studies clearly showing that the detection limits for
CFE waste are not achievable at a reasonable cost. ACC has submitted a
paper prepared by Environmental Chemistry, Inc. (ECI), a commercial
laboratory in Houston, as support for raising the current exemption
levels based on detection limit issues. However, the ECI paper fails to
make an adequate case that the current detection limits are not
achievable.

The ECI paper indicates that purge-and-trap analysis was performed on
the samples after extensive dilution of the samples. The samples were
first diluted or extracted in methanol, and then a "sub-sample" of this
was added to water in a purge vessel. ECI does not provide any
information on the amount of these dilutions relative to the original
weight of sample, making it difficult to determine if less dilution
would have been possible. Less dilution would have resulted in better
detection limits.

Having pre-diluted the samples, ECI could have used direct injection
techniques to analyze the samples. This would have provided better
detection limits. Instead, ECI performed purge-and-trap after diluting
the samples further in water for the purge vessel. This biased the
results towards poorer detection limits. ECI does not adequately justify
using purge-and-trap, merely stating that direct injection was not
considered because of "the potential problems associated with it." No
description of these "potential" problems is provided. ECI does admit
that direct injection may achieve lower (better) detection limits.
Purge-and-trap techniques are typically used for water and wastewater
matrices for which this method was designed. It is not common laboratory
practice to dilute a methanol extract of a hazardous waste matrix, and
then take that methanol extract and introduce it to water to do
purge-and-trap. ECI's choice of sample preparation and instrument
introduction of the sample is questionable, and appears to be clearly
biased towards poorer detection limits.

It is also noteworthy that in developing the 1998 CFE exemption levels,
EPA's contractor used direct injection and not purge and trap techniques
for the range of fuels studied, even gasoline ([see]{.underline}
Technical Support Document for HWC MACT Standards, Volume VI,
Development of Comparable Fuel Specifications, pp. 2-15 and 2-16). The
use of purge and trap method for introducing the sample to the GC/MS is
never even considered and discussed, likely because it is not the right
technique for waste samples, and it would bias the detection limits
high.

Further, ECI provides no QA/QC data to support its findings. The paper
by ECI is not a valid MDL study because no QA/QC data is provided, nor
any kind of comprehensive data package normally required for the most
basic of laboratory reports performed for regulatory purposes. In the
early 1990s the ETC performed a comprehensive PQL Study on Incinerator
Ash matrices in response to certain proposed changes to the land
disposal restriction regulations. The EPA required the ETC to submit
extensive data quality packages and extensive QA/QC data to support the
findings. Before initiating the study, a detailed work plan had to be
submitted to EPA for the PQL Study for review, comment and approval.
This work plan as well as the final data package underwent extensive
review by David Friedman of EPA's Waste Characterization Branch as well
as by other analytical chemistry experts within EPA. EPA issued comments
on the study and additional work had to be completed and submitted to
further substantiate the data. EPA appears to have done no such critical
review of the ECI work, and is accepting the results on faith without
any QA/QC or other data quality support documentation.

Even if ECI had used non-biased techniques and had provided QA/QC and
other data quality documentation, EPA should not be basing any
conclusions on the work of only one laboratory. The ETC's PQL Study had
to be designed as a multi-laboratory study to validate the detection
limits achievable on incinerator ash matrices over a range of different
laboratories. A total of 7 laboratories had to be used to justify the
detection limits on an inter-laboratory basis. The detection limits
achieved in one lab do not justify changes to national regulations,
particularly one that is exempting waste.

Before EPA can pursue Option A further, ACC needs to develop a work plan
with clear data quality objectives and QA/QC requirements. It must be
performed on a multiple laboratory basis and must also include
validation work within EPA's own laboratory. The work plan should
include evaluation of a variety of sample preparation techniques,
including direct injection. The cost factors associated with completing
the analysis should also be part of the work plan.

In addition, EPA should seriously consider basing Option A detection
limits on waste streams that have qualified for the current CFE
exemption and not gasoline. EPA should use samples of these wastes as
the basis for detection limit studies. The question is what detection
limits are achievable for hazardous waste matrices, not gasoline.

Of the list of hydrocarbon and oxygenated constituents in 40 CFR 261.38,
the vast majority of constituents in the ECI paper clearly did not
present detection limit issues relative to the current CFE. There were
only 8 constituents that the ECI study showed presented detection limit
problems, even with the flawed analytical methods they applied. It is
not clear from EPA's options paper if the changes to the detection
limits would be limited to this subset of 8 constituents. EPA needs to
clarify this, and if so, further studies on these 8 constituents are
needed as discussed above. Note that of these 8 constituents, ECI did
not have completed detection limit evaluations for 2 constituents
(2-ethoxyethanol and propargyl alcohol) because of unspecified
"analytical problems during analysis." For the remaining 6, ECI was able
to achieve detection limits ranging from 136 mg/kg to 816 mg/kg and
averaging 476 mg/kg. Therefore, raising the current CFE limits to the
3,400 mg/kg level of gasoline is truly not justified, even by the flawed
ECI study.

As a final point, it is worth emphasizing that even with its flaws, the
ECI study did not justify raising the current exemption levels to those
of gasoline. For the three constituents identified in the ACC survey as
potentially having detection limit issues, the detection levels achieved
by ECI were lower than the level EPA is suggesting for changes of 3400
mg/kg based on gasoline. For acrolein, isobutyl alcohol and MEK, the ECI
study showed a detection level of 544 mg/kg, far lower than EPA's
suggested revised standard of 3400 mg/kg. The EPA should not be
considering detection limits that are substantially higher than is
supported by the data in both the ACC survey and the ECI paper.

**3. The assumption that CFE waste is more like gasoline than fuel oil
has not been substantiated.**

EPA has not adequately justified why gasoline is an appropriate
benchmark for CFE waste. The CFE waste that is covered in the ACC survey
is not gasoline-like and no industry uses gasoline to fire industrial
furnaces or boilers. EPA's work on the 1998 CFE included a survey of CMA
(ACC) members ([see]{.underline} Section 2.0 of the 1998 Background
Document). One of the survey questions was regarding what fossil fuels
are used to fire their industrial boiler and/or furnace systems. None of
the ACC members responded that gasoline was used as a fuel for these
burner units. The fuels consisted of Number 2, 4 or 6 fuel oil or
natural gas. In contrast, there are actual hazardous wastes that have
qualified for the CFE, as well as the 96 waste streams covered in the
survey, that would represent the actual matrix and be better candidates
for analytical detection limit studies.

If a given waste presents detection limit issues, this is usually due to
high percentage level of some other organic constituent(s) that present
a response background against which the target analyte is difficult to
distinguish. In such cases it is very possible that the major
constituent causing the detection limit issue is a hazardous organic
constituent that would preclude the waste from being exempted. For each
waste in the ACC survey, ACC should identify what these major
constituents are and if these are RCRA Appendix VIII constituents the
waste should not be eligible for the CFE.

Certain constituents in the CFE are so highly toxic that the current
exemption levels should not be raised absent a compelling scientific
basis. Given the highly toxic nature of certain carcinogens like
acrolein, benzene, naphthalene, and other PNA constituents, EPA should
not be raising these exemption levels based on the very limited record
before the agency.

EPA should consider retaining the current CFE and allowing generators to
justify the nature of any interference in a site-specific petition.
Given that the testing requirements are infrequent, the burden for doing
additional analytical work is a small price given the nature of the
exemption. Analytical expertise exists within EPA and most States to
critically review the data package for a given waste stream and
determine the validity of the interference or other analytical aspects
that are causing problems with the current levels.

**Option B: Comparable Emissions: Conditional Exclusion of Fuels That
Are Off-Spec for Hydrocarbons and Oxygentates Where the Conditions
Ensure Emissions Are Comparable to Benchmark Fuels**

EPA has called Option B a "Comparable Emissions" option for hydrocarbon
and oxygenated constituents which is fundamentally different from the
current CFE in 40 CFR 261.38. Option B presumes that emissions will be
comparable to fossil fuels at any level of hydrocarbons and oxygenates
burned, with proposed emission restrictions only for carbon monoxide,
hydrocarbons, and the heat content of the hazardous waste. For example,
Option B would allow a hazardous waste with 90% benzene to be fed as
comparable fuel, with the expectation that the emissions would be no
different from feeding a waste containing the 3500 mg/kg (0.35%) benzene
normally found in gasoline or the 21 mg/kg (0.0021%) normally found in a
fuel oil.

EPA should request emissions data from ACC to validate this assumption.
The public cannot accept on faith that emissions from burning 90%
benzene in an unregulated unit will be the same as emissions from
burning less than 0.35% benzene in gasoline or fuel oil. EPA argues that
carbon monoxide or total hydrocarbon monitoring will provide assurances.
Such continuous monitoring is acceptable for a RCRA permitted
incinerator or cement kiln because numerous other controls are in place
such as maximum permitted feed rates, minimum combustion temperature,
minimum combustion air flows, and a multitude of parameters governing
the air pollution control systems. In addition, a cement kiln or
incinerator has to verify on a site-specific basis that CO or THC
correlate with safe overall emissions by testing individual HAPs during
Trial Burn, Risk Burn and MACT CPT tests performed on a regular basis.
Under EPA's proposal, no such testing would be required of units burning
comparable fuels. EPA has not done any validation that emissions can be
expected to be "comparable" on any unit.

EPA should require emissions data from the ACC to substantiate the claim
of comparable emissions. In addition, EPA should collect comprehensive
emissions data to substantiate that the burning of a 90% benzene waste,
as well as any waste containing high percentage levels of the other 36
hydrocarbon and oxygenated constituents, are truly "comparable" in
emissions to fossil fuels. Certain of these compounds, such as benzene,
naphthalene, several PNAs, and acrolein are carcinogenic or highly toxic
HAPs. Therefore, EPA cannot just assume that emissions resulting from
unregulated combustion of 90% levels of these constituents will be
comparable to fuels containing levels well below 0.5% of these
constituents.

EPA believes that carbon monoxide or hydrocarbon levels in the
combustion gas are well correlated with emissions of other organic
pollutants. The basis for this belief is the Draft Technical Support
Document for HWC MACT Standards (NODA), Volume II: Evaluation of CO/HC
and DRE Database" to support that CO or HC monitoring is sufficient. A
careful review of this document raises several questions and issues. The
document starts off with a review of an October 1984 report titled
"Theoretical Evaluation of Exhaust Emissions of CO and HC as Indicators
of Incinerator Performance." The conclusion of this report is that "in
most cases" CO and HC "should" be a direct indicator of DRE failure.
This report then presents 4 examples of DRE Failure Modes in which CO
and HC may be helpful. This theoretical report, however, does not
conclude that CO and HC would always serve as complete indicators of
DRE. In addition, many studies after 1984 indicate cases in which CO or
HC are not complete indicators in isolation, as discussed further below.
That is why the report uses statements like "in most cases" and "should"
to qualify the tentative conclusions.

The support document then reviews the 1997 MACT database for which DRE
data is available to compare with HC or CO data. The document notes the
following:

-   DRE Failure occurs 2% of the time when CO is less than 100 ppm, and
    14% of the time when CO is greater than 100 ppm.

-   DRE Failure occurs 3% of the time when HC is less than 12 ppm, and
    18% of the time when HC is greater than 12 ppm.

There are two ways to look at these data. The optimistic way is to say
that there are more cases where CO or HC works as an indicator of DRE.
This is what EPA is doing when considering the data on a percentage
basis. Note, however, that the statement in the support document is
equivalent to saying that 84% of the CO cases and 89% of the HC cases
are indeterminable.

The more realistic way to view this data is that CO and HC are not
conclusive indicators of DRE performance apart from other control
parameters that apply to RCRA permitted combustion. In fact, the data
clearly show that DRE is not always correlated with CO or HC.

Here are other conclusions that can be drawn from the same data set
evaluated in EPA's support document:

-   17 combustion units had DRE failures even though HC or CO were below
    12 ppm or 100 ppm respectively.

-   18 combustion units had DRE failures when HC or CO were above 12 ppm
    or 100 ppm respectively. These data show that just as many units
    failed DRE above or below the HC and CO thresholds

-   83 combustion units had good DRE even though CO was above 100 ppm;
    18 facilities had good DRE even though THC was above 12 ppm. These
    data show that CO or HC alone do not support good DRE, and that
    other factors are influencing DRE as well.

Therefore, the 1997 Technical Support Document should not be viewed as
conclusive evidence that CO and HC alone assure good DRE. Indeed, 17
combustion units is not a small number of units, and clearly for these
units poor DREs were experienced despite low CO or HC data.

The support document does try to explain some of the cases in which CO
and HC did not work as indicators of DRE performance. One of the
parameters noted is combustion temperature. The document states on page
8 that DRE failures occur more often at low combustion temperatures. Yet
temperature is not considered in Option B as important to control to
ensure good DRE.

The support document then analyzes only 7 of the 17 data points where
DRE was poor with low CO or HC. Without citing specific engineering
arguments, for 5 of these 7 cases EPA concludes that the bad DRE
performance "was not representative of the performance of the facility"
simply because other passing DRE data was available from other tests at
these same facilities. In other words, the support document arbitrarily
dismisses the data as outliers, simply because the facility met DRE at
another time. But clearly the DRE failure was real, and the CO and/or HC
data did not predict the performance. For the other 2 of the 7 cases
examined, the document concludes: **"**This is a classic example of a
rare situation where CO and/or HC will not catch a DRE failure." We do
not believe that 2 out of 7 cases means DRE failure is "rare," and in
reality this sentence is an admission that CO and HC will not always
protect against a DRE failure.

Figure 3 of the 1997 Support Document shows Penetration (DRE) plotted
against CO levels. EPA uses this graph for one purpose, to identify the
7 data sets discussed above for further discussion. But this Figure
shows one overwhelming picture that EPA never discusses; namely, that a
plot of Penetration (DRE) vs CO is in essence a scatter diagram, with no
correlation or trend. Figure 3 is clear evidence that CO in isolation
cannot be used to ensure good DRE of CFE waste burned in un-regulated
units.

The manner in which the data were filtered to remove a substantial
number of DRE data points that were considered to be difficult POHCs is
also highly questionable. It is possible that many more DRE failure
cases were filtered out by EPA that would have shown additional poor
correlation with CO and/or HC.

In sum, the 1997 Technical Support Document does not support that CO
and/or HC will ensure DRE performance or low organic emissions for CFE
waste. Before proceeding, EPA should collect a great deal more actual
emissions data to justify that CFE waste will not produce increased
exposure to toxic organic contaminants to the public and the
environment. The support document clearly does not indicate that the
emissions from burning a waste containing 90% benzene will be
"comparable" to emissions from a fuel containing under 0.5% benzene.
Comparable emissions have not been demonstrated and will not be
guaranteed with controls only in place for solely CO or HC.

In addition, EPA's Final Technical Support Document for HWC MACT
Standards, Volume IV, dated July 1999, discusses in Chapter 10 the
operating parameter limits needed to control DRE. This section clearly
notes that besides CO or HC, controls are also needed for minimum
combustion temperature, maximum combustion gas flow rate, maximum waste
feed rates, and other control parameters associated the operation of
each hazardous waste firing system. These must be monitored on a
continuous basis. This Background Document therefore provides further
support that CO or HC alone are not adequate to provide for DRE. EPA
must therefore require similar controls under Option B.

In addition, the control of CO or HC does not protect against increase
emissions of Products of Incomplete Combustion (PICs) as well as dioxin
and furan (D/F) emissions. Both PIC and D/F emissions can be
substantially higher for CFE wastes burned in non-RCRA regulated units.
EPA does not have any data that characterizes emissions of D/F and PICs
from the burning of CFE wastes, or that correlates CO and HC with PIC
and D/F emissions. The papers cited below show that this is a
substantial concern.

Hall, Dellinger, Graham and Rubey[^1] performed studies on a 12
component mixture in a laboratory scale thermal destruction unit. The
mixture included certain of the constituents in the CFE including
toluene, MEK, 1,4-dioxane and acetonitrile. The data showed substantial
emissions of these compounds under a wide range of CO levels. The
authors concluded as follows:

> "Although changes in CO concentrations as measured in the effluent of
> a full scale thermal destruction device may be an indicator of severe
> system upset, data presented here indicates that CO concentration
> correlates poorly with gas-phase destruction efficiencies for this
> mixture of 12 organic compounds. The apparent lack of correlation
> between CO levels and changes in the decomposition of the constituents
> of the mixture places doubt on the usefulness of CO measurements as an
> indicator of destruction efficiency."

Dellinger has performed numerous studies on the mechanisms of PIC
formation. His studies show that the concentrations of PICs in stack
emissions of combustors can be as high or higher than POHCs.[^2]
Dellinger presents data on PIC levels in thermal degradation studies
showing levels comparable to POHCs, and notes that "the parameters
affecting PIC formation are numerous and complex." In 1989 EPA's Science
Advisory Board evaluated the data available at the time regarding PIC
emissions and EPA's proposed strategy to control PICs using HC and CO
limitations.[^3] The SAB concluded that CO was not adequately correlated
with PIC emissions, and that a dual control strategy of **both** CO
**and** HC monitoring **may** be more protective. However, the SAB
pointed to the need to control other combustion parameters including
temperature and combustion air. Dellinger's work also demonstrates the
need to control temperature, residence time, combustion gas velocity and
combustion air to minimize PIC formation. Dellinger's work clearly shows
that sole reliance on CO is not adequate to control PIC emissions,[^4]
citing work conducted by other EPA scientists at EPA's Risk Reduction
Engineering Laboratory in Cincinnati. The cited study concluded that "no
correlation between CO and organic emissions could be discerned."
Therefore, it is clear that relying on CO or HC alone will not ensure
"comparable" emissions or protection of health and environment when
burning CFE waste in non-RCRA regulated units.

RCRA permitted incinerators and industrial furnaces are required to do
comprehensive risk burns and trial burns to establish operating
conditions for numerous other parameters besides CO. These include
minimum combustion temperature, minimum residence time, combustion gas
velocity indicators, combustion air flow, and feed rates all to ensure
that DRE and PIC risk burn results are reported on an ongoing basis.
Site-specific PIC Risk Assessments were supported by the 1989 Science
Advisory Board paper in particular as an effective strategy to protect
against PIC emissions. Yet EPA's CFE waste Option B would place blind
faith in CO [or]{.underline} HC, and not require any of these other
vital controls to ensure emissions are protective. The importance of
residence time, temperature and oxygen in controlling PIC and organic
emissions is supported by other studies by Dellinger.[^5] These
parameters must be combined with limitations on CO and HC to control
organic emissions.

ACC therefore needs to do emissions studies and provide the results to
EPA to prove their underlying premise that emissions will be
"comparable." On the surface, this cannot be concluded merely by
controlling CO or HC. Even if DRE performance is good, comparable
emissions cannot be assumed. For example, the same combustion device
that achieves 99.99% DRE for both a fossil fuel with 0.5% benzene and a
CFE waste with 90% benzene will emit 180 times higher levels of benzene
when fired on the CFE waste. The 0.01% fraction emitted in the fossil
fuel case is 0.00005 and in the CFE waste case is 0.0090. Clearly
emissions are not comparable. Other considerations that must be
addressed by EPA are as follows:

-   A PM limitation is also needed that is at the same level as the
    current MACT standards. As noted in a memorandum dated February 22,
    1996, from Larry Gonzalez of EPA in the RCRA Docket F-96-RCSP-FFFFF,
    organic HAPs are present on particulate matter.

-   EPA and the states should have authority to require site-specific
    risk burns and trial burns as part of the condition for units
    burning CFE waste, if there is a reasonable basis to believe there
    may be significant risks. There is no other mechanism to assure safe
    emissions or even comparable emissions. Public notice and comment
    must also be allowed.

-   Regular confirmatory emissions testing should be performed on some
    minimum frequency (i.e., every 5 years), demonstrating DRE, PIC
    emissions and D/F emissions.

-   The HWC MACT D/F emission limitation should be in place for units
    burning CFE waste, as CO and HC are not adequate surrogates for
    D/Fs.

-   Note that D/F formation does take place at low chlorine levels as
    shown in numerous studies. The current CFE halogen limit of 540
    mg/kg is sufficient chlorine to allow formation of dioxin and furan.

-   ETC agrees under B4 that firing rate must be restricted. However
    this firing rate cannot be universally defined but must be
    determined in a comprehensive risk burn and trial burn that
    establish the maximum feed rates for CFE waste.

[Minimum Heating Value.]{.underline} The 8,000 Btu/lb level is too low
and does not conform to the ACC survey data, which indicates an average
heat content of 13,750 Btu/lb. Only 11% on a volume basis, or 7 out of
96 waste streams surveyed by ACC, had heating values at or below 8,000.
Of these one waste had no problem meeting the CFE, and the rest failed
for metals (As, Cr), halogens, acrolein, reactive cyanide but not
hydrocarbons or oxygenated constituents. Only one waste had an issue
with benzene which is a highly toxic carcinogen. Therefore, none of the
ACC respondents with values of 8,000 Btu/lb or lower should have been
used to establish minimum heating value. EPA must filter the survey
results for constituents failing current exemption that were not
oxygenates or hydrocarbons.

If EPA's intent is to set a comparable fuels exemption, then heat
content data must also be "comparable" to fossil fuels. EPA should be
setting a minimum heating value of 15,000 Btu/lb or higher, if the
intent is really to promote energy recovery. Note also that if the ACC
survey data is filtered to remove the 7 streams at or below 8,000 which
do not belong there (because these failed for metals, cyanide, halogen
or parameters other than hydrocarbons or oxygenates), then the average
heat content of the remaining waste is closer to 15,000 Btu/lb.

In justifying any claim of "comparable emissions," EPA must also
evaluate other pollutants such as PM, NOX, SOX, and other HAPs. Given
that EPA is considering exempting waste containing high percentage
levels of hazardous constituents, the impact on emissions of these other
HAPs must also be evaluated relative to fossil fuels. EPA must factor
these emissions from other HAPs into the Risk/Benefit, Economic and
other impact evaluations or studies performed in support of the
proposal. The cost of increased emissions and impacts from PM and other
HAPs should be fairly evaluated as part of this rulemaking.

[On-Site or Limited Off-Site Burning.]{.underline} There should be no
off-site burning of CFE waste. This is important to ensure that all of
the above issues are controlled and enforced. EPA is considering the
option of allowing hazardous wastes potentially containing high levels
of carcinogenic constituents (benzene, acrolein, etc.) to be shipped by
the generator to "affiliated off-site facilities," and possibly to any
off-site burners, under the exclusion for comparable
[emissions]{.underline} in Option B. Setting aside the question of
whether emissions are in fact comparable, there can be no dispute that
the hazardous wastes fuels being shipped to the burner are exactly like
other hazardous waste fuels, and not like comparable fuels.

As we have emphasized above in these comments, under Option B the
so-called comparable emissions fuel can have 90% benzene or other
hazardous compounds and still qualify, as long as the emissions are
comparable. But it is apparent that this fuel is as risky during
storage, handling, and transport as any other hazardous waste fuel that
is currently subject to RCRA Subtitle C standards for good reasons. We
cannot envision any good reason why EPA would allow hazardous wastes
destined for a qualified burner under Option B to be shipped without
manifests to ensure tracking, emergency response, and secure delivery.
We cannot imagine why EPA would allow storage in tanks and containers
that do not meet standards for hazardous waste fuels, such as
compatibility, integrity, containment, inspections, etc. Ironically,
off-spec waste oil would be subject to safer controls under 40 CFR Part
279 than would these comparable fuels.

We do not see a significant distinction between off-site affiliated
facilities and any other off-site burners. In both cases, the hazardous
waste fuel must be stored, handled, and shipped to the qualified burner,
posing the same risks of leaks, spills, explosions, fugitive emissions,
and harm to the public that justify careful RCRA controls. We understand
the argument that affiliated burners have the same corporate parent, and
therefore potential liability may be broader, but we are also aware of
how affiliated companies are often separately incorporated to limit
liability, and how difficult it can be to pierce the corporate veil
absent a high threshold showing of fraud. We note that the storage,
handling, and shipping requirements for hazardous wastes in general do
not make any special allowances, much less exemptions, for shipments
between affiliated corporations. None is warranted with respect to
hazardous waste fuels that may meet the CFE under Option B.

In conclusion, the current Option B provisions are far from adequate to
allow exclusion of CFE waste. EPA must gather real emissions data and
not assume that CO or HC will serve as default surrogates. EPA must also
look hard at the fact that PIC and D/F emissions are impossible to
predict and require real testing in trial burns and risk burns on a
site-specific basis. EPA must also expand the criteria to include
combustion temperature, residence time, combustion gas velocity, minimum
oxygen and other operating parameters. Certain highly toxic and
persistent compounds such as benzene, PNA compounds, acrolein,
naphthalene, phenolic compounds and toluene must be excluded from the
scope of the CFE. Limitations on PM correlated to ash content should
also be set. Finally, heating value truly comparable to fuel and
consistent with the ACC survey results on the order of 15,000 Btu/lb
should be set as minimums for CFE waste.

**Option C: Blending to Meet the Specifications for Hydrocarbons and
Oxygenates.**

Currently, the blending of wastes to meet the CFE specifications is
prohibited, except for viscosity. Option C would allow blending of
wastes that exceed the specs for hydrocarbons and/or oxygenates with
comparable fuel or fuel oil to meet the specifications. Importantly,
blending to meet the specifications for halogenated, sulfonated, or
nitrogenated organics would still be prohibited.

How will EPA enforce blending-only for hydrocarbons and oxygenates? We
agree that blending to meet specs for halogenated, sulfonated, or
nitrogenated organic constituents would constitute improper dilution.
The specification for these organics is nondetect at a minimum detection
limit, and it should be impermissible to meet the specs by blending a
detected quantity of these other organics to a level below the minimum
detection limit. Dilution to meet the metal specs must also be
prohibited. But without specific requirements for the waste analysis
plan, recordkeeping, and reporting with respect to blending, it will be
impossible for EPA and states to detect and prevent abuses.

The waste analysis plan (WAP) requirements for comp fuel generators in
40 CFR 261.38(c)(7) are very general and drafted primarily for the CFE
determination. The generator needs only a written WAP that specifies
"the parameters for which each hazardous waste will be analyzed," the
test methods, sampling method, and frequency of analyses. Generators
need only retain the WAP at the facility; there is no review or approval
by EPA or the state.

Generators who blend must be required by the CFE regulations to sample
and analyze their hazardous waste streams before and after blending to
show that impermissible dilution does not take place. Generators who
blend should at least be required to submit their WAPs to the regulatory
authority for review and approval. Most importantly, generators should
be required to obtain a standardized permit for the tanks and equipment
used for hazardous waste blending. EPA's option does not expressly
address the status of such tanks, but since the materials being blended
are hazardous wastes prior to meeting the CFE, the tanks should meet the
minimum tank standards for structural integrity, secondary containment,
etc., set forth in a standardized permit.

**Pending Legal Challenges to the Comparable Fuel Exclusion in 40 CFR
261.38**

As EPA is aware, the lawfulness of the comparable fuels exclusion is the
subject of pending litigation. *American Chemistry Council v. EPA*, No.
98-1375 and consolidated cases (D.C. Circuit). While this case is in
abeyance at this time, we anticipate that legal challenges to the
proposed revisions will be filed and consolidated with the pending
action, and the case will then be active again, rather than dismissed.
Some of the issues that may be raised with respect to the 1998 CFE are
as follows:

-   The flawed nature of certain of the metals standards that are
    incorrectly based on an assumed composite value.

-   The small number of samples that were evaluated in establishing the
    exemption levels from a limited number of geographic locations.

-   The allowance for 5,000 Btu/lb as a minimum heat content. A 5,000
    Btu/lb waste is not comparable to a 15,000 Btu/lb fuel. The recent
    ACC survey would indicate strong evidence to raise this threshold to
    15,000 Btu/lb.

-   The normalization to 10,000 Btu/lb intended to adjust for fuel
    substitution raises several issues:

    -   This is an admission that 5,000 Btu/lb threshold is not truly
        based on fuel. How can 5,000 Btu/lb be considered a minimum
        energy recovery threshold when normalization is being based on
        10,000 as an energy recovery threshold? EPA has arbitrarily
        picked a number when it comes to defining thresholds for energy
        recovery with no real science or consideration of real fossil
        fuel values.

    -   The normalization should be based on 19,500 not 10,000 as the
        waste is being substituted for fossil fuel, not 50% fossil fuel.
        Therefore, EPA has not properly set the standard so as to adjust
        for the increased environmental loading from the burning of CFE
        waste. The goal covered on page 1-4 of the Comparable Fuel
        Background Document of not increasing the net environmental
        loading of hazardous constituent emissions from the comparable
        fuel in comparison with the fossil fuel has not been satisfied
        with the 10,000 Btu/lb normalization basis.

-   Allowance of knowledge as opposed to requiring sampling and
    analysis. Generators cannot possibly know that their hazardous waste
    meets the comp fuel specifications without adequate analysis, and
    any use of "knowledge" must be grounded on such testing and
    analysis.

-   The unspecified frequency of confirmatory testing.

-   Verification testing needs to be overseen with requirements
    analogous to the delisting program in which results are submitted to
    regulatory agencies for review and verification.

-   The lack of a specification for total ash content to control PM.
    This is important as many HAPs are absorbed onto or integral to
    particulate matter.

-   The failure to consider that certain highly toxic, carcinogenic or
    persistent hazardous constituents must not be present at any
    concentration in any exempted waste. The current rule allows even
    dioxin, PCBs, mercury and other highly toxic constituent to be
    present in CFE waste, even though such highly toxic constituents are
    not found in fossil fuels.

-   The presumption that hazardous constituents that are not associated
    with fossil fuels can be presumed to be present up to their
    statistically adjusted detection limits in fuel oil matrices. For
    example, dioxin and PCBs are not associated with fossil fuels yet
    EPA allows a comparable fuel waste to be burned in place of fossil
    fuel based solely on a flawed adjusted detection limit construct. 40
    CFR 261.38 must totally ban certain toxic constituents from waste at
    any level, if these toxic constituents are not associated with
    fossil fuels. Otherwise, EPA is allowing toxics along for the ride
    and is increasing environmental impact substantially over the
    burning of fossil fuels.

-   The 1998 rule lacked any rigorous environmental impact or risk
    assessment evaluations regarding the increased emissions that result
    from burning exempted waste over fossil fuels. The cost/benefit
    economic evaluation failed to consider negative environmental
    impacts resulting from the burning of exempted waste in place of
    fossil fuels. This analysis must also include emission studies for
    CFE waste that has been excluded since 1998 for all HAPs to evaluate
    what increased environmental burden has resulted.

-   The 1998 rule allows for treatment to meet the comparable fuel
    specifications without adequate controls for such treatment,
    particularly controls to guard against dilution.

-   The 1998 rule fails to address at all the issue of residues from the
    burning of CFE waste in unregulated units. This is a concern
    particularly because there is no ash limitation, and the amount of
    residues in exempted waste can be substantial. The rule fails to
    specify that residues from burning CFE waste remain hazardous waste
    subject to proper RCRA disposal.

**Conclusion**

Once again, the ETC appreciates the opportunity to provide stakeholder
input on the various options that EPA is considering for changes to the
CFE regulations. However, we must insist that EPA first obtain
additional information from the proponents of these changes to address
the many questions and uncertainties that arise from these options, even
at this early stage of consideration. In particular, we believe EPA
should ascertain with some certainty how much hazardous waste will in
fact become eligible for the CFE under these options, and whether any
substantial energy recovery and/or legitimate cost reductions will be
realized. We fear that hazardous wastes will simply be diverted from
regulated units to unregulated burning, with little or no additional
energy recovery. Most disturbing, we fear that any cost reductions will
result only from eliminating safeguards and protections for the storage,
transport, and burning of hazardous wastes that are vitally necessary to
protect public health and the environment.

> Respectfully submitted
>
> David R. Case
>
> Executive Director

cc: Mr. Bob Holloway

Steven Silverman, Esq.

[^1]: Hall, D.L., Dellinger, B., Graham, J.L., and Rubey, W.A. "Thermal
    Decomposition Properties of a Twelve Component Organic Mixture."
    [Hazardous Waste & Hazardous Materials]{.underline}, Volume 3,
    November 4 1986, pg 441-449. Lieber, Inc. Publishers.

[^2]: Dellinger, B., et al. "Pathways of Formation of Chlorinated PICs
    from the Thermal Degradation of Simple Chlorinated Hydrocarbons."
    Journal of Hazardous Materials, Elsevier Publishers, 1989.

[^3]: Report of the Products of Incomplete Combustion Subcommittee,
    Science Advisory Board, USEPA, October 10, 1989. Docket number
    BBSP-S0077A.

[^4]: Dellinger, B., et al. "On the Relationship Between CO, POHC and
    PIC Emissions from a Simulated Hazardous Waste Incinerator." JAPCA
    39: 321-327, 1989.

[^5]: Dellinger, B., et al., "PIC Formation Under Pyrolytic and Starved
    Air Conditions."

    EPA /600/S2-86/006 July 1986, Hazardous Waste Engineering Research
    Laboratory. Dellinger, B., "Theoretical DRE Calculations for
    Incinerators and Thermal Oxidizers," IT3'02 Conference, May 2002.
    Dellinger, B., et al., "Minimization and Control of Hazardous
    Combustion Byproducts," EPA/600/S2-90/039.