6 Colo. Code Regs. § 1007-3-8.51
These amendments to 6 CCR 1007-3, Parts 260, 261, 264, 265, 267, and 100 are made pursuant to the authority granted to the Hazardous Waste Commission in § 25-15-302(2), C.R.S.
AMENDED REGULATIONS FOR BURNING HAZARDOUS WASTE IN INCINERATORS, BOILERS, AND INDUSTRIAL FURNACES
These amendments finalize the technical and procedural standards related to permitting and operation of boilers and industrial furnaces (BIFs) burning hazardous waste. In general, these amendments act to incorporate the federal Resource Conservation and Recovery Act (RCRA) requirements applicable to BIFs burning hazardous waste into the requirements applicable to hazardous waste incinerators under the Colorado Hazardous Waste Regulations (CHWRs). In addition, these amendments also modify the existing health risk-based performance standard currently applicable to hazardous waste incinerators, and through these amendments, BIFs burning hazardous waste.
The Commission has incorporated the BIF requirements into the incinerator requirements in the CHWRs rather than adopting the requirements into a separate regulatory section as under the federal rule. Treatment of hazardous waste in a BIF is similar to treatment of hazardous waste in an incinerator. BIFs and incinerators both burn hazardous waste and both create similar types of hazardous emissions. BIFs and incinerators are operated in similar manners and share similar combustion systems designs. The similarities in the operation and design of BIFs and incinerators are reflected in the federal RCRA regulatory requirements. Although the Environmental Protection Agency (EPA) organized incinerator and BIF requirements into separate sections of the federal regulation, the operating standards, allowable hazardous waste emission limits, and administrative permitting standards and requirements for all of these devices are essentially equivalent. When Colorado revised it's incinerator requirements in 1995, it incorporated many of the requirements of the federal BIF regulations as they were considerably more stringent than existing incinerator requirements at that time.
By making BIFs subject to the same rules as hazardous waste incinerators, the Commission has determined that BIFs in Colorado should be subject to more stringent requirements than they would be under existing federal requirements. Incorporation of the BIF requirements into the incinerator requirements under the CHWRs strengthens the standards applicable to BIFs over those contained in the federal regulations. In addition to requiring compliance with the current federal regulatory requirements for BIFs burning hazardous waste, incorporation of the BIF requirements into the incinerator requirements in the CHWRs necessitates compliance with the health risk-based performance standard for hazardous waste air emissions, with enhanced emission standards for dioxins and particulates, and with a number of additional operating standards. The additional operating standards include periodic sampling requirements for environmental media surrounding an incineration facility, periodic stack emissions testing and reporting, compound specific monitoring, remote data acquisition for continuously monitored operating conditions and emissions, enhanced personnel training requirements, and enhanced emergency planning and response requirements.
The Commission approved these additional regulatory standards and requirements for incinerators in the 1995 rulemaking hearing. The Commission considered a large amount of information regarding hazardous waste combustion for both incinerators and BIFs during the 1995 rulemaking. Due to the similarities in the operation and design of incinerators and BIFs, the Commission believes that all the standards applicable to hazardous waste incinerators in the CHWRs are also appropriately applicable to BIFs burning hazardous waste. The rationale for each of the additional regulatory standards applicable to hazardous waste incinerators and, through these amendments, BIFs burning hazardous waste are described in the Statement of Basis and Purpose for Amended Regulations for Incineration of Hazardous Waste, pages 1269 -1285 of the CHWRs. Compliance with these additional regulatory standards and requirements is deemed necessary and appropriate to protect public health and the environment when hazardous waste is burned in these combustion devices.
The Commission has also decided to not adopt certain provisions of the federal RCRA BIF regulations into the CHWRs at this time. These provisions include 40 CFR Section 266.101 - Management prior to burning40 CFR Section 266.108 - Small quantity on-site burner exemption40 CFR Section 266.109 -Low risk waste exemption40 CFR Section 266.110 - Waiver for DRE trial burn for boilers, and the MACT delegation language within 40 CFR Section 266.100 - Applicability. Omission of these regulations from the CHWRs does not result in regulations for BIFs burning hazardous waste that are less protective then the federal regulation. The provisions of 40 CFR Sections 266.108, 266.109 and 266.110 are less stringent than the requirements of these amendments and were not adopted so as to better protect public health and the environment.
40 CFR Section 266.101 requires owners or operators of BIF facilities burning hazardous waste to manage the waste as hazardous waste prior to being burned. In accordance with Section 266.101, a facility that burns hazardous waste in a BIF must comply with the generator standards, the transporter standards, and the standards for hazardous waste storage facilities, Parts 262, 263, and 264, 265 and 270 of the 40 CFR respectively. Under the federal regulation, the operating standard and emission limits for BIFs burning hazardous waste are contained within Part 266 - Standards for the Management of Specific Hazardous Wastes and Specific Types of Hazardous Waste Management Facilities. Part 266 of the federal RCRA regulation generally describes standards applicable to hazardous waste recyclers.
Adoption of Section 266.101 into the CHWRs is not necessary since the BIF requirements are being adopted into Part 264 - Standards for Owners or Operators of Treatment, Storage, or Disposal Facilities rather than Part 267 of the CHWRs, the regulatory equivalent of Part 266 in the federal regulation. While energy and material recovery are legitimate benefits of burning hazardous waste in BIFs, the primary purpose and economic driving force is hazardous waste treatment and disposal. Facilities regulated under Part 264 of the CHWRs must already comply with the requirements for generation, transportation, and storage of hazardous waste prior to burning the waste, making adoption of Section 266.101 unnecessary.
40 CFR Section 266.108 provides an exemption to the federal RCRA BIF requirements for owners or operators of BIFs burning hazardous waste in on-site burners. In accordance with Section 266.108, a BIF burning small quantities of hazardous waste, as defined under the exemption, does not have to comply with the BIF operating requirements or emission standards, and does not have to obtain a RCRA permit. The Commission is not electing to adopt this regulatory exemption at this time due to the complex and sensitive nature of managing a hazardous waste in a BIF. The EPA small quantity on-site burner exemption does not establish minimum specifications for the type of device that may be used or it's destruction efficiency. It also does not significantly restrict the types of hazardous wastes that may be burned in the device. The Commission finds that facilities that burn hazardous waste in a BIF should be subject to adequate operating, monitoring and testing procedures, waste composition limits, and other applicable health and safety requirements to ensure protection of the public and the environment. This exemption has not been included in these amendments because the potential impacts of such an exemption have not been evaluated by the Commission.
40 CFR Section 266.109 allows for exemption of the destruction removal efficiency (DRE) performance standard under the federal BIF regulation. In accordance with 40 CFR Section 266.109, a BIF facility burning hazardous waste does not have to comply with the DRE standard if the BIF is operated in conformance with certain operating requirements. These operating requirements include maximum allowable hazardous waste to fuel ratios, minimum heat values for the waste/fuel mixture, waste feed location requirements, and compliance with the carbon monoxide performance standard. In addition, a facility seeking this exemption must also demonstrate, in accordance with Section 266.109, that the hazardous waste burning will not pose an unacceptable adverse public health effect. Evaluation of the potential for an adverse public health effect is determined through a direct exposure risk assessment.
The Commission does not believe that exemption from the DRE performance standard is appropriate even given the operating limitations and direct exposure risk evaluation required under the federal exemption. Allowing standardized exemption of the DRE performance standard for a BIF burning hazardous waste is not appropriate given the variability in both the concentrations and toxicities of hazardous constituents that may be present in a particular hazardous waste being burned. The DRE performance standard, defined in Section 264.342(b) of the CHWRs or Section 266.102(e) of the federal regulation, is designed to control the emission of toxic organic compounds or products of incomplete combustion (PICs). Under the CHWRs, the DRE performance standard works in conjunction with the multi-pathway health risk assessment (MPHRA) performance standard to ensure adequate control over the release of organic compounds that may adversely affect human health or the environment. Compliance with the DRE performance standard ensures that the combustion device is providing effective destruction of hazardous constituents in the waste and the MPHRA performance standard ensures that PICs, those hazardous constituents that remain after adequate DRE, will be emitted at levels that do not pose a significant threat to human health or the environment. The control of hazardous emissions provided by the combined use of the DRE and the MPHRA performance standards was considered necessary by the Commission in the 1995 incinerator rulemaking.
40 CFR Section 266.110 allows for exemption from the trial burn requirement for specific types of boilers operating under certain conditions. DRE trial burns are used to demonstrate compliance with the DRE performance standard. The DRE trial burn provides for evaluation of compliance with the DRE performance standard under operating conditions rather than relying on theoretical or design calculations. The Commission is electing not to adopt this regulatory exemption due to the importance of the DRE performance standard described above regarding 40 CFR Section 266.109.
40 CFR Section 266.100 describes the applicability of the regulations for BIFs burning hazardous waste. Section 266.100(b) of the federal regulation describes the integration of the Clean Air Act (CAA), Maximum Achievable Control Technology (MACT) requirements, 40 CFR Part 63 , Subpart EEE, with the BIF requirements under RCRA. The MACT standards establish emission limits and operational requirements for hazardous waste incinerators and cement kilns and lightweight aggregate kilns burning hazardous waste. In accordance with 40 CFR Section 266.100(b), a facility that demonstrates compliance with the MACT standards does not have to comply with the RCRA permit emission standards or operating requirements excepting certain sections. Certain emission standards and operating requirements that are established in the RCRA permit may be more stringent than the MACT standards due to site-specific considerations as necessary to protect human health and the environment.
According to the EPA, delegation of authority of the operating and emission standards for hazardous waste combustors from RCRA to the CAA is necessary to avoid duplicative permitting, administrative management, and enforcement of emission standards and operating requirements for those combustion devices subject to the MACT Standards. The mechanism of the MACT deferral results in some requirements remaining under a hazardous waste permit while other requirements would be removed from the jurisdiction of the permit (following the administrative process of modifying the permit). EPA's deferral does not eliminate the need for intra-Departmental coordination regarding dual regulation of the combustion facility.
EPA conducted a multi-pathway risk assessment to assess the ecological and human health risks that are projected to occur under the MACT standards and determined that "the MACT standards are generally protective of human health and the environment and that separate RCRA emission standards are not needed" (NESHAPS, pg. 52834). Importantly however, EPA's risk assessment "did not quantitatively assess the proposed standards with respect to mercury and non-dioxin products of incomplete combustion" (NESHAPS, pg. 52840), and they therefore continue to recommend that site-specific risk assessments (SSRAs) "be conducted as part of the permitting process" (NESHAPS, pg. 52841).
The Commission is electing not to incorporate the MACT delegation provision, 40 CFR Section 266.100(b), into the CHWRs. A regulatory strategy that divides operating requirements and emission standards between two different regulatory programs, and ultimately between two different permits (RCRA Part B Permit and CAA Title V Permit), is a confusing means by which to manage such a complex activity. Division of regulatory authority may also lead to conflicting operational and emission standards for these hazardous waste combustion facilities. The assorted operating requirements and emission standards for incinerators or BIFs burning hazardous waste all interplay with each other in a complex relationship. Maintaining one consistent regulatory framework over the entire activity ensures that the effects of changing one or more standard(s) do not significantly compromise or adversely impact other standards resulting in a threat to human health and the environment.
The Commission is electing to retain hazardous waste permitting authority over the entire operation of these combustion sources when burning hazardous waste because the emission standards may be more protective then the MACT requirements due to the use of the site-specific risk assessment and other more stringent requirements of the existing incinerator regulations. "Section 112 of the CAA requires emissions standards for hazardous air pollutants to be based on the performance of the Maximum Achievable Control Technology (MACT)". "The MACT standards reflect the "maximum degree of reduction in emissions of hazardous air pollutants" that the Administrator determines is achievable, taking into account the cost of achieving such emission reduction and any nonair quality health and environmental impacts and energy requirements. Section 112(d)(2)." (NESHAPS, pg. 52832). Contrarily, "RCRA Sections 3004(a) and (q) mandate that standards governing the operation of hazardous waste combustion facilities be protective of human health and the environment" (NESHAPS, pg. 52839). As mentioned, burning hazardous waste in a BIF is done for the primary purpose of treatment and disposal of hazardous waste, inherently creating an economic benefit for a facility. Maintaining hazardous waste regulatory authority over the permitting and operation of these devices ensures that protection of human health and the environment is of primary concern and allowed to take precedent over cost and energy concerns when these facilities elect to burn hazardous waste.
Failure to adopt the MACT delegation provision will not result in regulations for cement kilns, light aggregate kilns, or incinerators burning hazardous waste that are less protective then the MACT standards. Under these amendments, the RCRA regulatory authority may require that the most protective standards for the combustion facility become standards in the final RCRA permit. Such standards may include but are not limited to any operating requirement or emission standard derived from the MPHRA, the CAA (i.e. the MACT Standards), or RCRA. Authority to require such protective permit conditions exists in the "omnibus" provision of 6 CCR 1007-3, Section 100.43(a)(2). The intent of the Commission to implement the most protective combustion standards for these activities is reflected in both the MPHRA Performance Standard and amended Section 264.346(c)(1) (see amendments for BIF incorporation below, Revision (8) and Revision (3) for the changes to Part 264 and Part 100 of the CHWRs). Since the operating requirements and emission standards in the RCRA permit will be as protective if not more protective than the MACT standards, a facility will very likely be in compliance with the CAA if they are in compliance with the RCRA permit. In addition, problems related to dual regulation and administrative permitting for a cement kiln, light aggregate kiln, or incinerator burning hazardous waste will also be avoided through coordination between the regulatory programs.
STATUS OF BIFS BURNING HAZARDOUS WASTE IN COLORADO AND EFFECT OF AMENDMENTS
EPA currently retains enforcement authority over BIFs burning hazardous waste in Colorado. Under the federal requirements, all BIFs burning hazardous waste, regardless of whether or not they share a regulatory exemption to the federal BIF requirements, must notify the EPA of their existence. According to EPA Region VIII representatives, there are currently no BIFs burning hazardous waste in Colorado or anywhere else in Region VIII.
If a new BIF facility is proposed in Colorado, these amendments act to increase the regulatory requirements for the facility beyond those requirements specified under the federal regulations.
Currently, no hazardous waste incinerators operate in Colorado. Amendment of the health-risk based standard for incinerators burning hazardous waste, will not impact any existing facilities. Currently, hazardous waste incinerators must comply with the health-risk based performance standard 6 CCR 1007-3, Section 264.342(a). Regulatory amendment of the health risk-based standard as described in this Statement of Purpose and Basis results in only a minor increase in the level of technical permitting effort and will probably result in a more efficient permitting process for these facilities because the amended standards clarify the expectations for facilities electing to burn hazardous waste.
The Following Revisions Describe Incorporation of the Federal BIF Requirements into the CHWRs
Part 260 of the CHWRs
DISCUSSION: Federal regulation applicable to BIFs burning hazardous waste.
Part 261 of the CHWRs
DISCUSSION: Federal regulation applicable to BIFs burning hazardous waste.
DISCUSSION: Federal regulation applicable to BIFs burning hazardous waste.
DISCUSSION: Federal regulation applicable to BIFs burning hazardous waste.
Part 264 of the CHWRs
hazardous waste and federal regulation pertaining to notification of partial or final closure of a BIF (6 CCR 1007-3. Sections 264.1 and 264.112(d)(1)): This amendment revises 6 CCR 1007-3, Sections 264. l(g)(2) and 264.112(d)(l) by adopting reference to BIFs into the Part 264 applicability requirements and by adopting the equivalence of 40 CFR Section 264.112(d)(l) to require Department notification 45 days prior to partial or final closure of a BIF burning hazardous waste.
DISCUSSION: Federal regulation applicable to BIFs burning hazardous waste.
DISCUSSION: Federal regulation applicable to BIFs burning hazardous waste.
DISCUSSION: Federal regulation applicable to BIFs burning hazardous waste.
DISCUSSION: With the exception of the risk-based performance standard, 6 CCR 1007-3, Section 264.342(a), the current emission performance standards applicable to hazardous waste incinerators defined in 6 CCR 1007-3, Sections 264.342, 264.343, 264.344, and 264.345 are generally consistent with the federal BIF requirements, 40 CFR Sections 266.104, 266.105, 266.106, and 266.107 respectively. The emission performance standards for BIFs burning hazardous waste in the federal RCRA regulation were adopted into the CHWRs in a 1995 rulemaking hearing for hazardous waste incinerators because the standards were the most protective emission standards for hazardous waste combustors available at that time. Reference to BIFs, including specific requirements applying only to BIFs, was eliminated from the performance standards when they were adopted because the standards were only being applied to hazardous waste incinerators at that time.
These amendments act to re-incorporate reference to BIFs back into the incinerator requirements in the CHWRs resulting in emission performance standards that are applicable to BIFs burning hazardous waste and hazardous waste incinerators. Re-incorporation of reference to BIFs involves insertion of "boilers and industrial furnaces" into the performance standards and adopting additional BIF specific requirements described by the regulatory equivalencies of 40 CFR Sections 266.104(c), 266.104(d), and 266.104(f). Minor administrative revision of the performance standards in these sections is also necessary to adjust the numerical format of the requirements and to ensure equivalence with the federal BIF regulations.
The health risk-based performance standard, 6 CCR 1007-3, Section 264.342(a), is amended under this revision through the insertion of "boilers and industrial furnaces". This amendment results in requiring BIFs burning hazardous waste to comply with the health risk-based performance standard. Additional amendment of the health risk-based performance standards for hazardous waste incinerators, and through this revision BIFs burning hazardous waste, is also described in the revisions describing amendments to the health risk-based performance standard (see below).
DISCUSSION: In 1983 when EPA promulgated the rule for regulation of hazardous waste incinerators, the process for permitting these types of RCRA units was not well defined. As a result, the incinerator rule, 40 CFR Part 264 , Subpart O did not include emission standards for a number of hazardous waste constituents or a significant number of operating standards. In 1991, when EPA promulgated the BIF Rule, the requirements for BIFs burning hazardous waste were based on the emission standards and operating requirements for incinerators. The emission standards and operating requirements were however also enhanced to provide for more protective standards, and to provide for BIF specific detail relevant to the design and operation of BIFs. In addition to enhancing the emission standards and operating requirements from the Incinerator Rule, EPA also reformatted the relative location of the operating standards and permit standards into one section entitled "Permit Standard for Burners", 40 CFR Section 266.102. Reformatting of these standards resulted in clarification of the requirements (general permit standards and operating requirements) applicable to hazardous waste burning BIFs.
Unfortunately, EPA did not, and has not, revised the emission standards, operating requirements, and format of the incinerator requirements in the federal hazardous waste incinerator regulations to make them consistent with the same standards under the BIF Rule. In 1995, the Division adopted the incinerator regulations with modification to include the emission standards and operating requirements promulgated under the federal BIF Rule. The general format of the federal incinerator regulations however was retained as the base for the incinerator regulations in the CHWRs.
The Commission is therefore now amending the incinerator regulations in the CHWRs to make the format of the requirements consistent with the format for the same requirements under the federal BIF Rule. This modification is being proposed to clarify the applicability of the requirements for incinerators and BIFs and involves the relocation and incorporation of Section 264.347 into Section 264.346 of the CHWRs. These amendments restructure these sections to be consistent and equivalent with the same requirements and structure of 40 CFR 266.102. The specific modifications to Sections 264.346 and 264.347 of the CHWRs are described as follows:
These amendments adopt the equivalency of 40 CFR Sections 266.111 - Standards for direct transfer and Section 266.112 - Regulation of residues into the CHWRs. 40 CFR Section 266.111 includes requirements for managing hazardous waste that is transferred from a transport vehicle to a boiler or industrial furnace without the use of a storage unit. 40 CFR 266.112 includes requirements for managing residues derived from the burning or processing of hazardous waste in a boiler or industrial furnace.
DISCUSSION: 40 CFR Section 266.111, Standards for direct transfer are being adopted and incorporated into revised Section 264.346 of the CHWRs. Insertion of these standards into revised Section 264.346 of the CHWRs requires compliance with the standards for both incinerators and BIFs burning hazardous waste if the waste is transferred directly from a transport vehicle to the incinerator or BIF without the use of a storage unit. The standards for direct transfer are applicable to BIFs burning hazardous waste under the federal regulation. These standards are also appropriate for hazardous waste incinerators because hazardous waste may be directly transferred to an incinerator without the use of a storage unit. These standards outline engineering and operational controls for the transfer activity that are necessary to ensure adequate protection of human health and the environment.
40 CFR Section 266.112 - Regulation of residues is being adopted into revised Section 264.347 of the CHWRs. Insertion of these standards into revised Section 264.347 of the CHWRs requires compliance with the standards for BIFs only. These standards are applicable to BIFs because the residues generated from burning a hazardous waste in a BIF may also be products. Hazardous waste incinerators need not comply with these standards because the waste residue generated by an incinerator is a solid waste already and not a product. While an incinerator does not have to comply with these standards, a residue that is generated from a hazardous waste incinerator must be adequately characterized in accordance with 6 CCR 1007-3, Section 262.11.
DISCUSSION: See REVISION (2) under Part 100 Amendments (below).
DISCUSSION: Section 264.347(c)(5) of the CHWRs currently allows the Director to develop additional permit conditions necessary to protect human health and the environment if it is determined during the permitting process that stack emissions from a facility exceed or may exceed any performance standard under Part 264, Subpart O of the CHWRs. Under today's proposed amendments, Section 264.347(c)(5) becomes Section 264.346(c)(1) (see Revision (5) above). In addition to relocating this requirement, the Commission is also electing to administratively amend this requirement to clarify the regulatory authority of the Director to establish additional permit conditions as necessary to protect human health and the environment This clarification is necessary for consistency with the new location of the requirement in the CHWRs, and does not add or take away any authority that is not already defined by the requirement.
DISCUSSION: Adoption of Federal Regulations pertaining to BIFs burning hazardous waste.
Part 265 of the CHWRs
DISCUSSION: Adoption of federal regulation applicable to interim status BIF facilities burning hazardous waste.
DISCUSSION: Adoption of federal regulation applicable to interim status BIF facilities burning hazardous waste.
Part 267 of the CHWRs
DISCUSSION: 6 CCR 1007-3, Section 267.35 describes standards applicable to boilers and industrial furnaces that burn hazardous fuel. These standards are being eliminated because BIFs burning hazardous waste, including hazardous fuel, are subject to the revised requirements in the CHWRs described in this statement of basis and purpose. Elimination of this section is also necessary for consistency with the federal regulations.
Part 100 of the CHWRs
DISCUSSION: Adoption of federal regulation applicable to interim status hazardous waste management facilities.
DISCUSSION: Current Section 100.22 of the CHWRs describes RCRA short-term permits. In 1995, Subsection 100.22(c) was adopted into the CHWRs to describe the special requirements for Hazardous Waste Incinerator Permits. The Commission is electing to relocate subsection 100.22(c) to a new Section 100.28 of the CHWRs. This proposed amendment moves the standards that describe the individual phases involved in the permitting process, the requirements for conducting trial burns, and the pre-trial burn, post-trial burn MPHRA requirements for hazardous waste incinerators (and through these amendments BIFs burning hazardous waste) to Section 100.28, Special forms of RCRA permits. Relocation of these standards to Section 100.28 is necessary for consistency with the federal regulations (see 40 CFR Sections 270.62 and 270.66). 40 CFR Sections 270.62 - Hazardous waste incinerator permits, and Section 270.66 - Permits for boilers and industrial furnaces burning hazardous waste, are included in Subpart F to Part 270 of the federal regulations - Special Forms of Permits.
Hazardous waste incinerator and BIF permits are not considered short-term permits; rather they are considered special forms of RCRA Permits. At the time that the incinerator regulations were adopted, placement of the Hazardous waste incinerator permits section into Section 100.22(c) of the CHWRs seemed appropriate, because a provision in the federal incinerator regulations indicated that a facility could theoretically obtain a short-term RCRA permit to conduct a trial burn of hazardous waste without complying with the general requirements applicable to all facilities under a hazardous waste permit (a facility would be subject to only the operating requirements and trial burn requirements of Sections 264.346 and 100.22(c) of CHWRs or Sections 264.345 and 270.62 of 40 CFR respectively). This provision is described under Sections 264.340(d) and 264.347(a)(1) of the CHWRs (40 CFR Section 264.340(d) and 264.344(a)(1) respectively).
In practice, RCRA permits are not issued for short-term trial burns. Hazardous waste incinerator and BIF facilities must comply with all the applicable permit requirements (emission standards and operating requirements) in the regulations and be issued a permit prior to conducting a trial burn of hazardous waste. All requirements applicable to hazardous waste incinerators or BIFs, including but not limited to contingency planning, personnel training, waste analysis, and record keeping requirements are necessary to ensure that these facilities safely manage hazardous waste during the trial burn. Relocation of Section 100.22(c) - Hazardous Waste Permits, to Section 100.28 of the CHWRs clarifies the permitting requirements for a trial burn. In conjunction with this amendment Sections 264.340(d), 264.347(a)(1), and Section 100.22(c)(8) of the CHWRs will be eliminated, and Section 100.22 is numerically reformatted.
Revision of Sections 100.22(c)(1 - 4) of CHWRs (new Section 100.28(a - g) of CHWRs under this amendment) is also necessary to incorporate detailed language describing the trial burn process and requirements for conducting trial burns, and to restructure the regulation consistent with the federal BIF Rule. Revision of Section 100.22(c) per this amendment results in clarification of the permit requirements associated with the trial burn for incinerators and BIF facilities burning hazardous waste.
DISCUSSION: These amendments require an owner or operator of a proposed incinerator or BIF facility to compare the expected emissions from the facility with the MACT Standards. Expected emissions are based on the hazardous wastes to be burned at a facility, the proposed engineering controls and design of the BIF or incinerator, and site-specific risk assessment and dispersion modeling. This amendment also clarifies that the Director may deny a permit for the active life of the facility if an approach cannot be provided by a facility to demonstrate that the standards in Subpart O to Part 264 of the CHWRs or MACT Standard cannot be met. Compliance with the Subpart O or MACT Standards is necessary to ensure that the permitted facility will be operated in a manner that is protective of human health and the environment. A facility that cannot demonstrate minimal compliance with these standards should not be issued a RCRA permit by the State.
DISCUSSION: This amendment requires an owner or operator of an incinerator or BIF facility to compare the results of measured emissions collected during the trial burn with the trial burn emission standards in the permit. If the expected emissions comply with the applicable trial burn standards in the permit then the trial burn standards in the permit become the final emission permit standards. If the trial burn standards are exceeded during the trial burn, then the owner or operator of the facility may be required to repeal the trial burn or modify the permit standards in accordance with 6 CCR 1007-3, Section 100.63.
DISCUSSION: 6 CCR 1007-3, Section 100.40 identifies the information that must be submitted with the RCRA Part A permit application for all hazardous waste management facilities. Section 100.40(b) of the CHWRs lists additional information requirements for hazardous waste incinerators. These requirements include corporate partnership and key personnel identification, technical qualification for key personnel, and information concerning historic facility compliance with federal, state, or local regulation. The Commission has elected to require BIFs burning hazardous waste to also meet the additional information requirements listed in 6 CCR 1007-3, Section 100.40(b) due to the similarities of BIFs burning hazardous waste with hazardous waste incinerators.
DISCUSSION: Adoption and incorporation of federal regulation applicable to BIFs burning hazardous waste.
DISCUSSION: The Commission is electing to incorporate the same requirements regarding public notification of permit actions for BIFs as incinerators due to the similarities between BIFs and incinerators burning hazardous waste. Revision of these requirements to include reference to BIFs incorporates the applicability of these requirements to BIFs burning hazardous waste.
DISCUSSION: Adoption and incorporation of federal regulation applicable to BIFs burning hazardous waste.
The Following Revisions Describe Amendments to the Health Risk Based Performance Standard Applicable to Hazardous Waste Incinerators and BIFs Burning Hazardous Waste (through these Amendments)
Part 264 of the CHWRs
This amendment revises Section 264.342(a)(1) of the CHWRs with the addition of Section, 264.342(a)(1)(iii), to include evaluation of acute inhalation exposure resulting from facility short-term emissions under the scope of the MPHRA.
DISCUSSION: This amendment requires hazardous waste incineration facilities, and through these amendments, BIF facilities burning hazardous waste to evaluate acute inhalation exposures to hazardous constituents that may occur during system startup or shut down procedures, or other operational upset conditions. In general, the MPHRA evaluates the long-term or chronic effects of exposure to facility emissions that occur during the operational life of the facility. However, "In addition to long-term chronic effects, short-term or acute effects should be considered from direct inhalation of vapor phase and particle phase COPCs." (EPA, 7-9) Short-term emissions may not have a significant effect on the end estimation of risk calculated during a MPHRA because that estimation considers operation over the life of the facility. "It is assumed that short-term emissions will not have a significant impact through the indirect exposure pathways (as compared to impacts from long-term emissions)." (EPA, 7-9)
This amendment is intended to assist the Department in establishing short-term emission rates for a facility that will be applicable to the facility during start-up and shut down operations involving the combustion of hazardous waste. In addition, evaluation of the acute effects during the MPHRA will allow the Department to better understand the significant short-term risks and constituent concentrations associated with those risks in the event of an emergency or other unexpected release of emissions. Understanding these emissions is essential to ensuring "that the risk assessment evaluates all receptors that may be significantly exposed to emissions from facility sources," (EPA 4-11), that facility workers will be adequately protected in the event of an emergency, and that proper contingency procedures can be planned for responding to an emergency or other unexpected event involving the release of hazardous constituents.
DISCUSSION: This amendment is intended to provide the Department and regulated facility with a more straightforward method of determining facility compliance with the comprehensive MPHRA standard. The Commission is electing to replace the Level II Standards, currently defined under Section 264.342(a)(2) of the CHWRs with constituent-specific standards that are defined in the final RCRA operating permit. Compliance with the MPHRA Performance Standard will be determined by comparing the measured emissions from the facility directly to applicable permit standards in the final permit. During the permitting process, permit emission standards and relevant operating parameters and conditions will be designed to reflect the allowable level of health risk estimated under the MPHRA. If a facility is in compliance with the applicable numerical emission standards and operating requirements in the final permit, the facility will inherently also comply with the MPHRA Performance Standard. If it is determined that any of the measured constituent emissions exceed the applicable constituent emission standards in the final permit, then it will be considered a violation of the facility permit.
This amendment is also intended to clarify the regulatory procedures for modification of an emission standard in the final permit (see 6 CCR 1007-3, Section 264.342(a)(2)(i)). Under this proposed amendment, the Permittee may modify a permit emission standard at any time during the operating period for the facility. The Permittee must follow the administrative procedures for modification of a State RCRA Permit in Section 100.60 of the CHWRs. Modification of a State RCRA Permit to change a permit emission standard is considered a Class 3 Modification under the CHWRs requiring a public notice and hearing if necessary to discuss the proposed change. The RCRA regulatory authority will evaluate and make a decision to approve, not approve, or approve the modification with changes in accordance with the procedures described in 6 CCR 1007-3, Sections 100.60 and 100.63. These procedures are currently applicable to all RCRA permit modifications. The Commission is not adopting any changes to the permit modification procedures with this regulatory amendment.
In evaluating a proposed modification to an emission standard in the final permit, the MPHRA and a trial-burn may have to be repeated to demonstrate that the new emission standard(s), and all the remaining emission standards, comply with the estimated level of health risk allowed under the MPHRA Performance Standard. This regulatory amendment also clarifies that the MPHRA and/or a trial-burn may need to be repeated at any time a permit emission standard is proposed for modification.
Amendment of the Level II Standards is being adopted because the Level II Standards may not be adequate to measure compliance with the comprehensive MPHRA Standard in all instances. The Level II Standards do not reflect a health risk level that is as protective as the comprehensive MPHRA performance standard because the Level II Standards do not evaluate the health risk resulting from indirect exposure to emission contaminates. In instances where a significant amount of health risk results from indirect exposure to emission contaminates, a facility may be in compliance with the Level II Standards but not be in compliance with the comprehensive MPHRA Performance Standard. Since compliance with the comprehensive MPHRA Performance Standard is not revisited unless the Level II Standards are exceeded during a periodic monitoring event, a facility could theoretically be emitting hazardous constituents at levels that have not been demonstrated to be protective of human health and the environment.
Amendment of the Level II Standards may also result in permit standards for additional constituents (in addition to those defined under the current Level II Standards) and more protective emission levels depending on the types and levels of hazardous constituents in the waste burned. Amendment of the Level II Standards allows the Department to develop those emission standards in the permit at levels that demonstrate adequate protection of human health and the environment as evaluated through the MPHRA.
The Commission believes that compliance with permit constituent specific emission standards as described under this amendment will provide a better method by which to determine facility compliance with the comprehensive MPHRA standard. The regulatory amendment will result in a more definitive understanding of the standards necessary to ensure protection of human health and the environment. This definitive understanding will benefit the facility, the Department, and the public, because ambiguity in measuring facility compliance with the MPHRA Performance Standard will be eliminated.
DISCUSSION: Administrative revision of the former Level I Standard is necessary to clarify the requirements for conducting either the pre-trial burn or post-trial burn MPHRA, to reflect replacement of the Level II Standards with permit specific emission standards (see Revision (2) above), and to reflect the addition of the requirement to evaluate acute inhalation exposure resulting from facility short-term emissions (see Revision (1) above). This proposed amendment essentially restructures the current Level I standard into one section with three separate subsections, and eliminates nomenclature reference to the standard as the "Level I Standard" throughout Parts 264 and 100 of the CHWRs. The functional aspect of the MPHRA standard remains unaffected by this proposed amendment.
Part 100 of the CHWRs
DISCUSSION: Sections 100.28(h) and (i), formerly Section 100.22(c)(5) and (6) of the CHWRs (see amendments for incorporation of BIF regulations, Revision (2) to Part 100) describe the specific procedures for conducting the Pre-trial Burn and Post-trial Burn MPHRAs. The Commission is adopting regulatory language to these sections to clarify that the MPHRAs must examine not only health risk posed to adults but also health risk posed to children. Evaluation of health risk posed to children during the MPHRA is important because children are considered a part of the sensitive subpopulation that the risk assessment must examine to ensure adequate protection. Moreover, children have a greater quantifiable exposure through direct inhalation and indirect (ingestion and dermal contact) pathways when expressed as the dose rate per body weight because children have lower body weights. Therefore, children are at a greater risk than adults. Examination of the risk posed to both adults and children under a MPHRA is consistent with EPA Combustion Risk Assessment Guidance and application of risk assessment under the RCRA Corrective Action Program.
Incorporation of EPA Preamble Language By Reference
Applicable portions of the preamble language from the following Environmental Protection Agency final rules published in the Federal Register are hereby incorporated by reference:
References
Statement of Basis and Purpose - Rulemaking Hearing of August 12, 2003
6 CCR 1007-3-8.51