Section 661.38. Comparable or syngas fuel exclusion.

  Wastes that meet the following comparable or syngas fuel requirements are not solid wastes:

(1)   Comparable fuel specifications.

(a) Physical specifications.

1. `Heating value.' The heating value shall exceed 5,000 BTU/lbs. (11,500 J/g).

2. `Viscosity.' The viscosity may not exceed 50 cs, as-fired.

(b) Constituent specifications. For compounds listed in Table 3 the specification levels and, where non-detect is the specification, minimum required detection limits are in Table 3.

(2)  S ynthesis gas fuel specifications. Synthesis gas fuel (i.e., syngas fuel) that is generated from hazardous waste shall meet all of the following:

(a) Have a minimum Btu value of 100 Btu/Scf.

(b) Contain less than one ppmv of total halogen.

(c) Contain less than 300 ppmv of total nitrogen other than diatomic nitrogen (N 2 ).

(d) Contain less than 200 ppmv of hydrogen sulfide.

(e) Contain less than one ppmv of each hazardous constituent in the target list of ch. NR 661 Appendix VIII constituents.

Table 3
Detection and Detection Limit Values for Comparable Fuel Specification - See PDF for table

NA means not applicable.

ND means nondetect.

1 Twenty-five or individual halogenated organics listed at the end of Table 3.

(3)  I mplementation. Waste that meets the comparable or syngas fuel specifications provided by sub. (1) or (2) (these constituent levels shall be achieved by the comparable fuel when generated, or as a result of treatment or blending, as provided in par. (c) or (d) ) is excluded from the definition of solid waste provided that all of the following requirements are met:

(a) Notices. For purposes of this section, the person claiming and qualifying for the exclusion is called the comparable or syngas fuel generator and the person burning the comparable or syngas fuel is called the comparable or syngas burner. The person who generates the comparable fuel or syngas fuel shall claim and certify to the exclusion.

1. `Department directors of the bureaus of air management and waste management.'

a. The generator shall submit a one-time notice to the department directors of the bureaus of air management and waste management, in whose jurisdiction the exclusion is being claimed and where the comparable or syngas fuel will be burned, certifying compliance with the conditions of the exclusion and providing documentation as required by subd. 1. c.

b. If the generator is a company that generates comparable or syngas fuel at more than one facility, the generator shall specify at which sites the comparable or syngas fuel will be generated.

c. A comparable or syngas fuel generator's notification to the department directors of the bureaus of air management and waste management shall contain all of the following items:

1) The name, address and RCRA identification number of the person or facility claiming the exclusion.

2) The applicable EPA hazardous waste codes for the hazardous waste.

3) Name and address of the units, meeting the requirements of par. (b) , that will burn the comparable or syngas fuel.

4) The following statement is signed and submitted by the person claiming the exclusion or the person's authorized representative:

Under penalty of criminal and civil prosecution for making or submitting false statements, representations or omissions, I certify that the requirements of s. NR 661.38 , Wis. Adm. Code, have been met for all waste identified in this notification. Copies of the records and information required at s. NR 661.38 (3) (j) ,Wis. Adm. Code, are available at the comparable or syngas fuel generator's facility. Based on my inquiry of the individuals immediately responsible for obtaining the information, the information is, to the best of my knowledge and belief, true, accurate and complete. I am aware that there are significant penalties for submitting false information, including the possibility of fine and imprisonment for knowing violations.

2. `Public notice.' Prior to burning an excluded comparable or syngas fuel, the burner shall publish in a major newspaper of general circulation local to the site where the fuel will be burned, a notice entitled "Notification of Burning a Comparable or Syngas Fuel Excluded Under the Resource Conservation and Recovery Act" containing all of the following information:

a. Name, address and RCRA identification number of the generating facility.

b. Name and address of the units that will burn the comparable or syngas fuel.

c. A brief, general description of the manufacturing, treatment or other process generating the comparable or syngas fuel.

d. An estimate of the average and maximum monthly and annual quantity of the waste claimed to be excluded.

e. Name and mailing address of the department directors of the bureaus of air management and waste management.

(b) Burning. The comparable or syngas fuel exclusion for fuels meeting the requirements of sub. (1) or (2) and par. (a) applies only if the fuel is burned in the following units that also shall be subject to federal, state and local air emission requirements, including all applicable CAA MACT requirements:

1. Industrial furnaces as defined in s. NR 660.10 .

2. Boilers, as defined in s. NR 660.10 , that are further defined as any of the following:

a. Industrial boilers located on the site of a facility engaged in a manufacturing process where substances are transformed into new products, including the component parts of products, by mechanical or chemical processes.

b. Utility boilers used to produce electric power, steam, heated or cooled air, or other gases or fluids for sale.

3. Hazardous waste incinerators subject to regulation under subch. O of ch. NR 664 or subch. O of ch. NR 665 or applicable CAA MACT standards.

4. Gas turbines used to produce electric power, steam, heated or cooled air, or other gases or fluids for sale.

(c) Blending to meet the viscosity specification. A hazardous waste blended to meet the viscosity specification shall do all of the following:

1. As generated and prior to any blending, manipulation or processing meet the constituent and heating value specifications of sub. (1) (a) 1. and (b) .

2. Be blended at a facility that is subject to the applicable requirements of chs. NR 664 and 665 , or s. NR 662.034 or 662.192 .

3. Not violate the dilution prohibition of par. (f) .

(d) Treatment to meet the comparable fuel exclusion specifications.

1. A hazardous waste may be treated to meet the exclusion specifications of sub. (1) (a) and (b) provided the treatment does all of the following:

a. Destroys or removes the constituent listed in the specification or raises the heating value by removing or destroying hazardous constituents or materials.

b. Is performed at a facility that is subject to the applicable requirements of chs. NR 664 and 665 , or s. NR 662.034 or 662.192 .

c. Does not violate the dilution prohibition of par. (f) .

2. Residuals resulting from the treatment of a hazardous waste listed in subch. D to generate a comparable fuel remain a hazardous waste.

(e) Generation of a syngas fuel.

1. A syngas fuel can be generated from the processing of hazardous wastes to meet the exclusion specifications of sub. (2) provided the processing does all of the following:

a. Destroys or removes the constituent listed in the specification or raises the heating value by removing or destroying constituents or materials.

b. Is performed at a facility that is subject to the applicable requirements of chs. NR 664 and 665 , or s. NR 662.034 or 662.192 or is an exempt recycling unit under s. NR 661.06 (3) .

c. Does not violate the dilution prohibition of par. (f) .

2. Residuals resulting from the treatment of a hazardous waste listed in subch. D to generate a syngas fuel remain a hazardous waste.

(f) Dilution prohibition for comparable and syngas fuels. No generator, transporter, handler or owner or operator of a treatment, storage or disposal facility shall in any way dilute a hazardous waste to meet the exclusion specifications of sub. (1) (a) 1. or (b) or (2) .

(g) Waste analysis plans. The generator of a comparable or syngas fuel shall develop and follow a written waste analysis plan which describes the procedures for sampling and analysis of the hazardous waste to be excluded. The waste analysis plan shall be developed according to the applicable sections of "Test Methods for Evaluating Solid Waste, Physical/Chemical Methods", EPA SW-846, incorporated by reference in s. NR 660.11 . The plan shall be followed and retained at the facility excluding the waste.

1. At a minimum, the plan shall specify all of the following:

a. The parameters for which each hazardous waste will be analyzed and the rationale for the selection of those parameters.

b. The test methods which will be used to test for these parameters.

c. The sampling method which will be used to obtain a representative sample of the waste to be analyzed.

d. The frequency with which the initial analysis of the waste will be reviewed or repeated to ensure that the analysis is accurate and up to date.

e. If process knowledge is used in the waste determination, any information prepared by the generator in making the determination.

2. The waste analysis plan shall also contain records of all of the following:

a. The dates and times waste samples were obtained, and the dates the samples were analyzed.

b. The names and qualifications of the persons who obtained the samples.

c. A description of the temporal and spatial locations of the samples.

d. The name and address of the laboratory facility at which analyses of the samples were performed.

e. A description of the analytical methods used, including any clean-up and sample preparation methods.

f. All quantitation limits achieved and all other quality control results for the analysis (including method blanks, duplicate analyses, matrix spikes, etc.), laboratory quality assurance data, and description of any deviations from analytical methods written in the plan or from any other activity written in the plan which occurred.

g. All laboratory results demonstrating that the exclusion specifications have been met for the waste.

h. All laboratory documentation that support the analytical results, unless a contract between the claimant and the laboratory provides for the documentation to be maintained by the laboratory for the period specified in par. (k) and also provides for the availability of the documentation to the claimant upon request.

3. Syngas fuel generators shall submit for approval, prior to performing sampling, analysis or any management of a syngas fuel as an excluded waste, a waste analysis plan containing the elements of subd. 1. to the department. The approval of waste analysis plans shall be stated in writing and received by the facility prior to sampling and analysis to demonstrate the exclusion of a syngas. The approval of the waste analysis plan may contain provisions and conditions that the department deems appropriate.

(h) Comparable fuel sampling and analysis.

1. For each waste for which an exclusion is claimed, the generator of the hazardous waste shall test for all the constituents in ch. NR 661 Appendix VIII , except those that the generator determines, based on testing or knowledge, should not be present in the waste. The generator is required to document the basis of each determination that a constituent should not be present. The generator may not determine that any of the following categories of constituents should not be present:

a. A constituent that triggered the toxicity characteristic for the waste constituents that were the basis of the listing of the waste stream, or constituents for which there is a treatment standard for the waste code in s. NR 668.40 .

b. A constituent detected in previous analysis of the waste.

c. Constituents introduced into the process that generates the waste.

d. Constituents that are byproducts or side reactions to the process that generates the waste.

2. For each waste for which the exclusion is claimed where the generator of the comparable or syngas fuel is not the original generator of the hazardous waste, the generator of the comparable or syngas fuel may not use process knowledge pursuant to subd. 1. and shall test to determine that all of the constituent specifications of subs. (1) (a) and (2) have been met.

3. The comparable or syngas fuel generator may use any reliable analytical method to demonstrate that no constituent of concern is present at concentrations above the specification levels. It is the responsibility of the generator to ensure that the sampling and analysis are unbiased, precise and representative of the waste. For the waste to be eligible for exclusion, a generator shall demonstrate all of the following:

a. Each constituent of concern is not present in the waste above the specification level at the 95% upper confidence limit around the mean.

b. The analysis could have detected the presence of the constituent at or below the specification level at the 95% upper confidence limit around the mean.

4. Nothing in this paragraph preempts, overrides or otherwise negates s. NR 662.011 , which requires any person who generates a solid waste to determine if that waste is a hazardous waste.

5. In an enforcement action, the burden of proof to establish conformance with the exclusion specification shall be on the generator claiming the exclusion.

6. The generator shall conduct sampling and analysis according to their waste analysis plan developed under par. (g) .

7. Syngas fuel and comparable fuel that has not been blended in order to meet the kinematic viscosity specifications shall be analyzed as generated.

8. If a comparable fuel is blended in order to meet the kinematic viscosity specifications, the generator shall do all of the following:

a. Analyze the fuel as generated to ensure that it meets the constituent and heating value specifications.

b. After blending, analyze the fuel again to ensure that the blended fuel continues to meet all comparable or syngas fuel specifications.

9. Excluded comparable or syngas fuel shall be re-tested, at a minimum, annually and shall be re-tested after a process change that could change the chemical or physical properties of the waste.

(i) Speculative accumulation. Any persons handling a comparable or syngas fuel are subject to the speculative accumulation test under s. NR 661.02 (3) (d) .

(j) Records. The generator shall maintain records of all of the following information on-site:

1. All information required to be submitted to the department as part of the notification of the claim.

a. The owner or operator name, address and RCRA facility identification number of the person claiming the exclusion.

b. The applicable EPA hazardous waste codes for each hazardous waste excluded as a fuel.

c. The certification signed by the person claiming the exclusion or the person's authorized representative.

2. A brief description of the process that generated the hazardous waste and process that generated the excluded fuel, if not the same.

3. An estimate of the average and maximum monthly and annual quantities of each waste claimed to be excluded.

4. Documentation for any claim that a constituent is not present in the hazardous waste as required under par. (h) 1.

5. The results of all analyses and all detection limits achieved as required under par. (h) .

6. If the excluded waste was generated through treatment or blending, documentation as required under par. (c) or (d) .

7. If the waste is to be shipped off-site, a certification from the burner as required under par. (L) .

8. A waste analysis plan and the results of the sampling and analysis that includes all of the following:

a. The dates and times waste samples were obtained, and the dates the samples were analyzed.

b. The names and qualifications of the persons who obtained the samples.

c. A description of the temporal and spatial locations of the samples.

d. The name and address of the laboratory facility at which analyses of the samples were performed.

e. A description of the analytical methods used, including any clean-up and sample preparation methods.

f. All quantitation limits achieved and all other quality control results for the analysis (including method blanks, duplicate analyses, matrix spikes, etc.), laboratory quality assurance data, and description of any deviations from analytical methods written in the plan or from any other activity written in the plan which occurred.

g. All laboratory analytical results demonstrating that the exclusion specifications have been met for the waste.

h. All laboratory documentation that support the analytical results, unless a contract between the claimant and the laboratory provides for the documentation to be maintained by the laboratory for the period specified in par. (k) and also provides for the availability of the documentation to the claimant upon request.

9. If the generator ships comparable or syngas fuel off-site for burning, the generator shall retain for each shipment all of the following information on-site:

a. The name and address of the facility receiving the comparable or syngas fuel for burning.

b. The quantity of comparable or syngas fuel shipped and delivered.

c. The date of shipment or delivery.

d. A cross-reference to the record of comparable or syngas fuel analysis or other information used to make the determination that the comparable or syngas fuel meets the specifications required under par. (h) .

e. A one-time certification by the burner as required by par. (L) .

(k) Records retention. Records shall be maintained for the period of 3 years. A generator shall maintain a current waste analysis plan during that 3 year period.

(L) Burner certification. Prior to submitting a notification to the department directors of the bureaus of air management and waste management, a comparable or syngas fuel generator who intends to ship its fuel off-site for burning shall obtain a one-time written, signed statement from the burner which does all of the following:

1. Certifies that the comparable or syngas fuel will only be burned in an industrial furnace or boiler, utility boiler or hazardous waste incinerator, as required under par. (b) .

2. Identifies the name and address of the units that will burn the comparable or syngas fuel.

3. Certifies that the state in which the burner is located is authorized to exclude wastes as comparable or syngas fuel under this section, or 40 CFR 261.38 -equivalent requirements of another state.

(m) Ineligible waste codes. Wastes that are listed because of presence of dioxins or furans, as set out in ch. NR 661 Appendix VII , are not eligible for this exclusion, and any fuel produced from or otherwise containing these wastes remains a hazardous waste subject to chs. NR 660 to 670 .

History: CR 05-032 : cr. Register July 2006 No. 607 , eff. 8-1-06; corrections in 2 (e), (3) (b) 3., (h), (m) made under s. 13.92 (4) (b) 7. , Stats., Register March 2013 No. 687 .

Note

Note: Mail 2 copies of the notice (one addressed to the department director of the bureau of air management and one addressed to the department director of the bureau of waste management) to the following address: Microsoft Windows NT 6.1.7601 Service Pack 1 Wisconsin Department of Natural Resources
101 S Webster St
PO Box 7921
Madison WI 53707-7921 Microsoft Windows NT 6.1.7601 Service Pack 1 Note: Any claim under this paragraph shall be valid and accurate for all hazardous constituents; a determination not to test for a hazardous constituent will not shield a generator from liability should that constituent later be found in the waste above the exclusion specifications. Microsoft Windows NT 6.1.7601 Service Pack 1