[Federal Register: June 19, 1998 (Volume 63, Number 118)]
[Rules and Regulations]
[Page 33781-33829]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19jn98-33]

[[Page 33781]]

_______________________________________________________________________

Part IV

Environmental Protection Agency

_______________________________________________________________________

40 CFR Parts 63, 261, and 270

Hazardous Waste Combustors; Revised Standards; Final Rule

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ENVIRONMENTAL PROTECTION AGENCY

40 CFR Parts 63, 261, and 270

[EPA F-98-RCSF-FFFFF; FRL-6110-3]
RIN 2050-AE01


Hazardous Waste Combustors; Revised Standards; Final Rule--Part
1: RCRA Comparable Fuel Exclusion; Permit Modifications for Hazardous
Waste Combustion Units; Notification of Intent To Comply; Waste
Minimization and Pollution Prevention Criteria for Compliance
Extensions

AGENCY: Environmental Protection Agency.

ACTION: Final rule.

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SUMMARY: On April 19, 1996, EPA proposed revisions for air emission
standards for certain hazardous waste combustion units. Today's rule
finalizes some elements of that proposal. These elements include a
conditional exclusion from RCRA for fuels which are produced from a
hazardous waste, but which are comparable to some currently used fossil
fuels; a new RCRA permit modification provision which is intended to
make it easier for facilities to make changes to their existing RCRA
permits when adding air pollution control equipment or making other
changes in equipment or operation needed to comply with the upcoming
air emission standards; notification requirements for sources which
intend to comply with the final rule; and allowances for extensions to
the compliance period to promote the installation of cost effective
pollution prevention technologies to replace or supplement emission
control technologies for meeting the emission standards.

EFFECTIVE DATE: This rule is effective on June 19, 1998.

ADDRESSES: The public docket for this rulemaking is available for
public inspection at EPA's RCRA Docket, located at Crystal Gateway,
First Floor, 1235 Jefferson Davis Highway, Arlington, Virginia. The
regulatory docket for this final rule contains a number of background
materials. To obtain a list of these items, contact the RCRA Docket at
703-603-9230 and request the list of references in EPA Docket #F-98-
RCSF-FFFFF.

FOR FURTHER INFORMATION CONTACT: The RCRA Hotline between 9:00 a.m.-
6:00 p.m. EST, at 800-424-9346 (toll-free); 703-412-9810 (from
Government phones or if in the Washington, D.C. local calling area); or
800-553-7672 (for the hearing impaired). For more detailed information
on specific aspects of the rulemaking, contact Mary Jo Krolewski on the
comparable fuel exclusion at (703) 308-7754, Tricia Buzzell on permit
modifications at (703) 308-8632, James Lounsbury on waste minimization
and pollution prevention at (703) 308-8463, David Hockey on the
notification of intent to comply at (703) 308-8846, or by writing, to
U.S. Environmental Protection Agency, Office of Solid Waste, Permits
and State Programs Division, 401 M St., S.W. (Mailcode 5303W),
Washington, D.C. 20460.

SUPPLEMENTARY INFORMATION: This rule is available on the Internet.
Please follow these instructions to access the rule electronically:
From the World Wide Web (WWW), type either
    http://www.epa.gov/epaoswer/hazwaste/combust/fastrack.

    EPA's ``Pollution Prevention Facility Planning Guide'' (May, 1992;
NTIS #PB92-213206) describes the series of analytical steps that are
often used by companies to identify waste minimization measures.
Additional EPA references include: ``Waste Minimization Opportunity
Assessment Manual (EPA 625/7-88/003, July 1988), Interim Final
``Guidance to Hazardous Waste Generators on the Elements of a Waste
Minimization Program In Place,'' (May 1993), ``An Introduction to
Environmental Accounting As a Business Management Tool'' (EPA 742-R-95-
001, June 1995), the ``P2/Finance User's Manual: Pollution Prevention
Financial Analysis and Cost Evaluation System for Lotus 1-2-3 (EPA 742-
B-94-003, January 1994), and Enviro$ense, an electronic library of
information on pollution prevention, technical assistance, and
environmental compliance. Many of these and other documents can be
accessed by contacting the RCRA Hotline toll-free at 1-800-424-9346.
Enviro$ense can be accessed by contacting a system operator at (703)
908-2007, or on the Internet at http://wastenot.inel.gov/enviro-sense.
Information on State waste minimization programs can be obtained
through Enviro$ense, directly from the State pollution prevention
program offices, or from the National Pollution Prevention Roundtable
at E-mail address 75152.1416@compuserve.com, by phone at 202-466-7272
in Washington, D.C.
    The official record for this action is kept in a paper format.
Accordingly, EPA has transferred all electronic comments received into
paper form and placed them into the official record, with all the
comments received in writing. The official record is maintained at the
address in the ADDRESSES section at the beginning of this document.
    EPA's responses to comments have been incorporated in a ``Response
to Comments'' document, which has been placed into the official record
for this rulemaking. The major comments and responses are discussed in
the Response to Comment sections of this preamble.
    The contents of today's preamble are listed in the following
outline:

I. Authority

II. Scope of Final Rule

III. Comparable Fuels Exclusion

A. EPA's Approach to Establishing Benchmark Constituent Levels
    1. The Benchmark Approach
    2. Selection of the Benchmark Fuels
B. Options for the Benchmark Approach
    1. Selection of Percentile Level
    2. Composite v. Individual Specifications
C. Parameters for the Comparable Fuel Specification
    1. Physical Specifications
    2. General Constituent Specifications
    3. Individual Hazardous Constituent Specifications
D. Parameters for the Synthesis Gas Fuel Exclusion
    1. Physical Specifications
    2. General Constituent Specifications
    3. Individual Hazardous Constituent Specifications
E. Meeting the Comparable Fuel Specifications
    1. Potential Applicability of Today's Rule to Specific Waste
Codes
    2. General
    3. Blending
    4. Treatment
F. Meeting the Syngas Fuel Specifications
G. Sampling and Analysis
    1. Use of Process Knowledge
    2. Waste Analysis Plan
    3. Methods to Analyze Comparable Fuels
    4. Syngas Waste Analysis Plan and Analysis Methods
    5. Non-detects
H. Notification, Certification, and Documentation
    1. Who Must Make the Exclusion Notification
    2. Notification Requirements
I. Exclusion Status
J. Recordkeeping
    1. General
    2. Off-site Shipment
K. Transportation and Storage
L. Comparable Fuels Exclusion and Waste Minimization
    1. Introduction
    2. Major Concerns of Commenters

IV. RCRA Permit Modifications for Hazardous Waste Combustion Units

A. Introduction
B. Overview
    1. Background on RCRA Permit Modification Procedures
    2. Shortcomings of the Current Procedures

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    3. How Today's Rule Impacts the Procedures
C. Discussion of RCRA Permit Modification Procedures for Facilities
Coming Into Compliance With MACT Requirements
    1. Summary of Proposed Options
    2. Summary of Public Comments
    3. Response to Comments and Discussion of Final Provisions
D. Summary of Public Comments
E. Response to Comments
F. RCRA Changes in Interim Status Procedures

V. Notification of Intent to Comply and Progress Report

A. Background
B. Summary of Final Provisions
C. Discussion of Public Comments and Final NIC Provisions
    1. General
    2. Purpose of the NIC
    3. Timing
    4. NIC Meeting
    5. Relation Between NIC and Other Notification Requirements
D. Discussion of Public Comments and Progress Report
    1. Overview
    2. Summary of Progress Report Requirements
E. Certification
F. Extension of the Compliance Date
G. Sources Which Become Affected After the Effective Date of This
Subpart

VI. Waste Minimization and Pollution Prevention

A. Overview
B. Background
C. Summary of Proposed Pollution Prevention/Waste Minimization
Incentives and Comments Received
D. Waste Minimization Incentives Contained in Today's Rule

VII. State Authority

A. RCRA State Authorization
B. Program Delegation under the Clean Air Act

VIII. Administrative Requirements/Compliance With Executive Order

A. Regulatory Impact Analysis Under Executive Order 12866
B. Regulatory Flexibility Act
C. Paperwork Reduction Act
D. Unfunded Mandates

IX. Submission to Congress and the General Accounting Office

X. Environmental Justice

A. Applicability of Executive Order 12898
B. Potential Effects

XI. Children's Health

XII. National Technology Transfer and Advancement Act

I. Authority

    These regulations are being finalized under the authority of
sections 1004, 1006, 2002, 3001, 3004, 3005, and 7004 of the Solid
Waste Disposal Act of 1965, as amended, including amendments by the
Resource Conservation and Recovery Act.

II. Scope of the Final Rule

    On April 19, 1996, EPA proposed rules to control emissions of HAPs
from hazardous waste-burning incinerators, cement kilns, and light
weight aggregate kilns. (61 FR 17358) After promulgation of the
proposal, the Agency issued the following notices of data availability
(NODA): NODA 1 (Peer review and Comparable fuels)--August 23, 1996: 61
FR 43501; NODA 2 (Revised emissions database)--January 7, 1997: 62 FR
960; Continuous Emissions Monitoring Systems (CEMS) NODA--March 21,
1997: 62 FR 13775; NODA 3 (MACT standards and implementation)--May 2,
1997: 62 FR 24212; and NODA 4 (Comparable fuels data)--September 9,
1997: 62 FR 47402.
    Today's final rule addresses four elements of the April 19, 1996
(61 FR 17358) proposal to revise the standards for hazardous waste
combustors. The remaining issues of the proposal will be addressed in
final rules in the near future.

III. Comparable Fuels Exclusion

    Under this final rule, EPA is excluding from the regulatory
definition of solid waste hazardous waste-derived fuels that meet
specification levels comparable to fossil fuels for concentrations of
hazardous constituents and for physical properties that affect
burning.\1\ The exclusion would apply to the comparable fuel from the
point it is generated and would be claimed by the person generating the
comparable fuel (which person can include a hazardous waste treater).
With respect to the fuels, generators of the comparable fuel would have
to comply with sampling and analysis, notification and certification,
and recordkeeping requirements in order for their fuels to be excluded.
The exclusion potentially applies to gaseous and liquid hazardous
waste-derived fuels. However, this exclusion does not apply to solids
or to used oil, which is subject to special standards under 40 CFR Part
279.
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    \1\ We note that DOW Chemical Company (Dow) in a petition to the
Administrator, dated August 10, 1995, specifically requested that
the Agency develop a generic exclusion for ``materials that are
burned for energy recovery in on-site boilers which do not exceed
the levels of fossil fuel constituents* * *.'' (Petition, at p.3).
This final rule also responds to that petition.
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    Today's rule is consistent with EPA's goal to develop a comparable
fuel specification which is of use to the regulated community but
assures that an excluded waste-derived fuel is similar in composition
to commercially available fuel and therefore poses no greater risk than
burning fossil fuel. Accordingly, EPA is using a ``benchmark approach''
to identify a specification that would ensure that constituent
concentrations and physical properties of excluded waste-derived fuel
are comparable to those of fossil fuels.
    The rationale for the Agency's approach is that if a hazardous
waste-derived fuel is comparable to a fossil fuel in terms of hazardous
and other key constituents and has a heating value indicative of a
fuel, EPA has discretion to classify such material as a fuel product,
not as a waste. Given that a comparable fuel would have legitimate
energy value and the same hazardous constituents in comparable
concentrations to those in fossil fuel (and satisfies other parameters
related to comparability as well), classifying such material as a fuel
product and not as a waste promotes RCRA's resource recovery goals
without creating any risk greater than those posed by the commonly used
commercial fuels. Under these circumstances, EPA can permissibly
classify a comparable fuel as a non-waste. See 46 FR 44971 (August 8,
1981) (exemption from Subtitle C regulation for spent pickle liquor
used as a wastewater treatment agent in part because of its similarity
in composition to the commercial acids that would be used in its
place); 50 FR 49180, 49181, 49183 (November 29, 1985) (explanation of a
similar type of benchmark approach in establishing used oil fuel
specification); 53 FR at 31164 (August 18, 1988) (exemption for certain
hazardous waste-derived fertilizers due to similarity to the commercial
fertilizers that would be used in their place).
    Put another way, EPA can reasonably determine that a material which
is a legitimate fuel and which contains hazardous constituents at
levels comparable to fossil fuels is not being ``discarded'' within the
meaning of RCRA section 1004 (27). ``Discarded'' itself is an ambiguous
term, see American Petroleum Inst. v. EPA, 906 F. 2d 729, 741 (D.C.
Cir. 1990). EPA's interpretation that hazardous waste-derived fuels
which are comparable to fossil fuels need not be considered to be
``discarded'' serves the statutory objective of encouraging resource
recovery. RCRA section 1003 (a) (10). In addition, burning of such
fuels does not present the element of discarding hazardous constituents
through combustion that underlies the typical classification of
hazardous waste-derived fuels as a solid waste. 50 Fed. Reg. at 629-630
(Jan. 4, 1985). This is because, as noted, hazardous constituent
concentration levels are comparable to those in fossil fuels.

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    The case law further makes clear that EPA may classify secondary
materials as ``discarded'' based, at least in part, upon whether such
materials may be considered part of the waste management problem.
American Mining Congress v. EPA, 907 F. 2d 1179, 1186 (D.C. Cir. 1990).
Today's rule contains conditions to assure that burning of comparable
fuels will not become part of the waste management problem. The chief
condition is limitation on burning to industrial furnaces (as defined
in 260. 10), industrial and utility boilers, and hazardous waste
incinerators. Another condition prevents specification limits for
hazardous constituents being achieved by means of dilution, so that the
total volume of hazardous constituents emitted from burning comparable
fuels would remain comparable to those from burning fossil fuels. The
rule also contains notification and record keeping conditions which
assure that the fuels meet the specification and will be burned in the
requisite type of unit, and that this can be verified objectively by
third persons.
    EPA notes that today's final rule is consistent with the main
approach discussed in the Dow petition (see footnote 1 above), which
also points out a number of benefits that would result from
promulgating this type of exclusion: (1) Support for the statutory goal
of promoting beneficial energy recovery and resource conservation; (2)
reduction of unnecessary regulatory burden and allowing all parties to
focus resources on higher permitting and regulatory priorities; and (3)
demonstration of a common-sense approach to regulation. Dow's petition
contained data on the chemical and physical aspects of the fuel for
which the petition was submitted. Based on these data and additional
data submitted during the comment period, it appears that the waste
petitioned for exclusion by Dow meets the individual physical and
chemical comparable fuel specifications set forth in this rule. Today's
rule does not exclude Dow's wastestreams or other wastestreams for
which commenters submitted data that may meet the specifications of the
final rule. It remains the responsibility of the generator to comply
with the specifications of the comparable fuel exclusion stipulated by
the State RCRA implementing authority.

A. EPA's Approach to Establishing Benchmark Constituent Levels

1. The Benchmark Approach
    EPA considered using risk to human health and the environment as
the way to determine the scope and levels of a ``clean fuels''
specification. However, the Agency encountered several technical and
implementation problems using a purely risk-based approach to develop a
national rule. Specifically, EPA has insufficient data relating to the
types of waste burned and the risks they pose to develop a fully
protective and complete ``clean fuels'' exemption. EPA also does not
have sufficient data to determine the relationship between the amount
of ``clean fuel'' burned and emissions, especially of dioxins and other
non-dioxin PICs. EPA also does not know how emissions (likely
uncontrolled) at the multitude of actual facilities that would burn an
excluded fuel would compare to emissions from the example facilities
that EPA would use to derive a ``clean fuel'' specification. (Emissions
and/or risks at a given facility could be higher than those of the
example facilities given site-specific considerations.) Without
considering all reasonable, possible emission scenarios, which is not
feasible for the Agency at this time, the Agency is not prepared today
to address these potential risks \2\.
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    \2\ It is possible to determine on an individual basis that
particular waste-derived fuel should be excluded from RCRA on risk-
based grounds. See 63 FR at 18533 (April 15, 1998) where EPA
finalized such an exclusion for a waste fuel which could be
generated by the pulp and paper industry. However, EPA cautions that
making such a demonstration is difficult (because of potential
uncertainties regarding combustion conditions and exposure patterns)
and resource-intensive for the Agency to evaluate, and would still
involve rulemaking.
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    The Chemical Manufacturers Association (CMA) submitted a proposal
to exempt certain ``clean'' liquid wastes from RCRA regulation. (61 FR
at 17469) Unlike EPA's benchmark-based comparable fuel approach, the
CMA approach would establish ``clean fuel'' specifications for mercury,
LVM, and SVM metals based on the technology-based MACT emissions
standards proposed for hazardous waste combustors on April 19, 1996. As
just discussed above, EPA is concerned about using risk to establish a
``clean fuel'' specification. EPA does not have data available
documenting that emissions from burning a ``clean fuel'' would not pose
a significant risk for the potential combustion and management
scenarios in which the clean fuel exclusion from RCRA might be used.
Therefore, EPA will not be adopting CMA's proposal in today's rule, but
may address aspects of the CMA concept in future actions if appropriate
and feasible.
    The Agency instead developed a comparable fuel specification, based
on the level of hazardous and other constituents normally found in
fossil fuels. EPA refers to this as the benchmark approach. For this
approach, EPA set a comparable fuel specification such that
concentrations of hazardous constituents in the comparable fuel could
be no greater than the concentration of hazardous constituents normally
occurring in commercial fossil fuels. Thus, EPA expects that the
comparable fuel would pose no greater risk when burned than a fossil
fuel and would at the same time be physically comparable to a fossil
fuel, leading to the conclusion that EPA may classify these materials
as products, not wastes. See proposal for more details (61 FR 17460,
April 19, 1996).
    Some commenters argued that by using a benchmark approach, EPA had
failed to assess potential risks to human health and the environment
resulting from the exclusion. Commenters argued that EPA cannot
determine that there are no adverse risks by the comparison to fossil
fuels. EPA disagrees with commenters conclusions concerning the need to
determine absolute risk. In this final rule, EPA is setting a
comparable fuel specification with concentrations of hazardous
constituents no greater than the concentrations of hazardous
constituents occurring in fossil fuels. Thus, EPA reasonably expects--
based on the methodology used to establish the specification--that the
comparable fuel will pose no greater risk when burned than a fossil
fuel and concomitant energy recovery benefits will be realized from
reusing the waste to displace fossil fuels. The Agency concludes it has
discretion in exercising jurisdiction over hazardous waste-derived
fuels that are essentially the same as fossil fuel, since there would
likely not be environmental benefits from regulating those hazardous
waste-derived fuels (i.e., burners would likely just choose to burn
fossil fuels). Indeed, as explained below, many commercial fuels could
be less ``clean'' than the comparable fuels, so that substitution of
some commercial fuels could be a net deterrent. See 50 FR at 49186
(November 29, 1985) where EPA discussed similar considerations when
developing a specification for used oil fuel. See also discussion above
as to why such fuels need not be considered to be ``discarded''. EPA
has therefore decided not to regulate comparable hazardous waste-
derived fuels meeting the benchmark specifications as hazardous waste
under RCRA.
    Furthermore, the Agency notes that the comparable fuel exclusion
promulgated today is the first phase in addressing the ``clean fuels''
issue. Although EPA has identified problems with commenters'
alternatives, there is

[[Page 33785]]

room for further expansion of the comparable or clean fuel concept. EPA
will continue to work with the regulated community to identify areas to
expand the approach taken in today's final rulemaking.
2. Selection of the Benchmark Fuels
    Since commercially available fossil fuels are diverse, EPA
considered a range of fuels upon which to base its benchmark fuel
selection. Available fuels ranged from gases, such as natural gas and
propane, to liquids (such as gasoline and fuel oils) to solids (such as
coal, coke, and peat). The Agency proposed a benchmark based on liquid
fossil fuels (gasoline, No.2 fuel oil, and No.6 fuel oil). (61 FR at
17462)
    Commenters argued that EPA should consider solid fossil fuels in
developing the benchmark specifications. Commenters believe that
materials such as coal are fuels that are widely used throughout the
U.S. and failing to consider these materials ignores legitimate fuels
used by certain industries. EPA disagrees with commenters' requests to
include solid fossil fuels in its benchmark specification. From an
environmental standpoint, the comparable fuel specification, which
would exclude a hazardous waste-derived fuel from RCRA subtitle C
regulation, should not be based on fossil fuels that have high levels
of toxic constituents that will not be destroyed or detoxified by
burning (e.g., metals and halogens). Data show that solid fossil fuels
have comparatively higher metal \3\ and possibly halogen levels than
liquid fossil fuels \4\. Metals and halogens are not destroyed in the
combustion process unlike organic constituents which are commonly
destroyed or detoxified through combustion. Comparison with this type
of fuel could easily result in a least common denominator approach
whereby a hazardous waste-derived fuel would be ``comparable'' if it
was no more dangerous to burn than the most contaminated fossil fuels.
Such ``comparability'' is not congruent with the overall objective of
RCRA to protect human health and the environment and is inconsistent
with the specific directive to regulate combustion of hazardous waste-
derived fuels where necessary to protect human health and the
environment. (RCRA section 3004(q)). Thus, while EPA has chosen to use
a benchmark rather than a risk-based approach, the Agency has chosen
benchmark fuels that, in general, have lower contaminant levels for
constituents that are not destroyed. Therefore, in today's rule, EPA is
not using solid fossil fuels as part of the comparative benchmark.
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    \3\ A smaller fraction of metals in coal partitions to emissions
than for liquid fuels. Given that most potentially comparable fuels
are liquids, allowing metals at the concentrations present in coal
could result in substantially higher metals emissions.
    \4\ For further discussion see USEPA, ``Final Technical Support
Document for HWC MACT Standards, Development of Comparable Fuels
Specifications'', May 1998.
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    EPA also will not be using a gas fuels as benchmarks. Basing the
comparable fuel specification on a gas fuel would be overly
conservative and have no utility to the regulated industry. (The reader
should note that EPA is promulgating an exclusion for a particular type
of hazardous waste-derived fuel, namely a type of synthesis gas
(``syngas'') meeting particular specifications (see Section D below).
This hazardous waste derived gas can be used as a fuel and an exclusion
provides beneficial resource recovery.) Liquid fuels, on the other
hand, are widely used by industry, readily combusted, and do not
present the inconsistencies of solid or gaseous fuels. Simply put, the
Agency, in assessing comparability, is not required to base a
specification on either the most or least contaminated fossil fuels,
but may reasonably choose a median, in this case, representative fuel
oils. In this final rule, EPA is selecting only liquid fuels for its
benchmark fuel specification.
    With regard to liquid fuels, commenters argued that EPA should
consider as benchmark fuels non-petroleum liquid based fuels such as
turpentine and tall oil. One commenter recommended that EPA identify
turpentine as a benchmark fuel because it has a very high Btu value and
is used as a fuel (and a manufacturing feedstock) both within and
outside the forest products industry. Another commenter pointed out
that tall oil is not only used in commerce as a traditional fuel, but
that EPA has previously noted that tall oil is a legitimate non-waste
fuel under the BIF rule low risk waiver exemption (LRWE) and DRE trial
burn exemptions (56 FR 7193, February 21, 1991).
    While EPA is interested in establishing a broad-based benchmark of
liquid fuels, EPA disagrees that turpentine should be included in the
benchmark specification. Turpentine is not a widely used commercial
fuel. There are no ASTM standards for turpentine fuel which specify the
minimum properties which must be met for the product to be considered
as a commercial fuel. By contrast, there are ASTM specifications for
each of the petroleum fossil fuels EPA is using as a benchmark.
    EPA does agree with the commenter that tall oil is used in commerce
as a traditional fuel and could be used as a benchmark fuel. At the
time of the proposal, EPA had no data on tall oil. The commenter did
submit one set of data that EPA was unable to use because it did not
meet EPA data quality standards. Therefore, at this time, EPA will not
include tall oil in its benchmark fuels.
    Finally, some commenters did not support the use of gasoline for
setting comparable fuel specifications, because it is not typically
utilized in industrial boilers and furnaces. Gasoline is typically
limited used in internal combustion engines, and the commenter did not
anticipate that industry or individuals will utilize hazardous waste-
derived fuels in automobiles, trucks and buses. EPA disagrees that
gasoline should be excluded as one of the benchmark fuels. The Agency
notes that gasoline is a widely used, commercially available, liquid
fuel and EPA does not believe that our selection is necessarily limited
to fuel burned in boilers or industrial furnaces. EPA has chosen its
benchmark fuels so that the resulting comparable fuel when substituted
would have hazardous constituents lower than the fuel it replaces.
However, because the comparable fuel will not be substituted for use in
gasoline applications (the exclusion is restricted to air regulated
stationary combustion units, see Section H below), the rationale for
the inclusion of gasoline differs. The Agency believes that gasoline
provides a reasonable upper boundary for volatile organics, which are
fuel-worthy constituents. The Agency notes that unlike some solid
fuels, gasoline has low concentrations of metals. When compared to
lighter fuel oils (e.g., No. 2 fuel oil), the gasoline specification
has higher specifications for only the detected volatile organics,
which are readily burnable compounds.

B. Options for the Benchmark Approach

    At proposal, EPA presented several options for deciding what fossil
fuel(s) data to use as the benchmark. The options range from developing
a suite of comparable fuel specifications based on individual benchmark
fuels (i.e., gasoline, No. 2, No. 4, No. 6) to basing the specification
on composite values derived from the analysis of all benchmark fuels.
(61 FR at 17643).
    EPA took comment on individual benchmark fuel specifications based
on gasoline, No. 2, and No. 6 fuel oil, using the 90th percentile
values for the basis of the individual specifications. Under this
approach, individual fuel specification(s) could be implemented

[[Page 33786]]

in one of two ways. First, a facility could use any of the individual
benchmark specifications, without regard to what fuel it currently
burns. The second approach is to link the comparable fuel specification
to the type of fuel burned at the facility and being displaced by the
comparable fuel. Under a composite fuel benchmark approach, EPA took
comment on using: (1) The 90th percentile aggregate values for the
benchmark fuels; and (2) the 50th percentile aggregate values for the
benchmark fuels. (61 FR at 17643).
1. Selection of Percentile Level
    To calculate benchmark specifications, EPA obtained 27 fossil fuel
samples, comprised of eight gasoline, eleven No. 2, one No. 4, and
seven No. 6 fuel oil samples. Due to the small sample sizes of each
fuel type, EPA initially used a nonparametric rank order statistical
approach to analyze the fuel data. Rank order involved ordering the
data for each constituent from lowest to highest concentration,
assigning each data point a percentile value from lowest to highest
percentile, respectively. Results were then calculated from the data
percentiles. Because there were different numbers of samples for each
fuel type, EPA was concerned that the fuel with the largest number of
samples would dominate the composite database. To address this issue,
EPA's statistical analysis ``normalized'' the number of samples, i.e.,
treated each fuel type in the composite equally without regard to the
number of samples taken.<SUP>5</SUP> See Kennecott v. EPA, 780 F.2d
445, 457 (4th Cir. 1985) (upholding this statistical methodology). The
fuel samples were weighted equally because this weighting reflects the
fact that benchmark fuels can be used interchangeably in stationary
combustion units. In addition, as noted in the next section, equal
weighting prevented over-estimation of either metals and semi-volatiles
in No. 6 fuel oil or volatiles in the higher end fractions.
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    \5\ For the gasoline sample analysis, the resulting detection
limits for volatile organic compounds were an order of magnitude
higher than the other fuel specifications. EPA believes analysis of
comparable fuels will more likely result in detection limits much
lower than gasoline and similar to those associated with analysis of
fuel oils. To address this issue, EPA has performed an analysis of a
fuel oil-only composite (one which does not include gasoline in the
composite) to use as a surrogate for the volatile organic gasoline
non-detect values. Therefore, the volatile organic gasoline non-
detect values used in the development of the composite and
individual gasoline specification were based on this fuel oil-only
composite.
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    One commenter argued that EPA's proposed constituent-by-constituent
comparison approach is flawed because it ignores the compounding effect
of joint probability. The commenter has examined the rank order
statistics technique EPA used and has concluded that the percentile
values for the individual constituents must be set higher for all of
them to meet the overall percentile value simultaneously. For example,
a candidate comparable fuel taken from the same reservoir as a
benchmark fuel would, because of random variability in constituent
concentrations, have a 23 percent chance of ``failing'' a comparison to
a benchmark (at the 90th percentile) that has 14 constituents above the
detection limits. Thus the commenter argued that the proposed
constituent-by-constituent comparison would have little utility to the
regulated community.
    While EPA believes there is some interdependence among individual
constituents and that the principle of joint probability cannot be
strictly applied, EPA is inclined to agree with the commenter. At the
time of proposal, EPA believed that a 50th percentile analysis
represented a midpoint of potential benchmark fuels that were studied.
EPA also believed that a 90th percentile analysis represented a
reasonable upper bound of what is found in all fuels capturing
variability both with each fuel category and in the case of the
composite approach, between categories. However, when the individual
fuel samples were compared to the benchmark specifications, EPA found
that at the 50th percentile composite none of the virgin fuel samples
met the specification and at the 90th percentile composite only 40
percent met the specification. This appears to confirm the commenter's
concern over joint probability, and reflects on the degree to which the
comparable fuels exclusion would actually be useable. It was EPA's goal
to base the comparable fuel specifications on the 99th percentile, a
level near which 90 percent of EPA's individual fuel samples would meet
the specification. However, the size of the data base precluded the
calculating of a 99th percentile constituent specification. Therefore,
in this case, the Agency used the largest measured value to approximate
an upper percentile. In the future, EPA may choose alternative methods
of evaluating any new data that may be submitted suggesting that these
specifications need to be modified. After re-calculating the
specification taking joint probability into account, the composite at
the largest value more closely represents what EPA intended to propose
with the 90th percentile, a reasonable upper bound that is also useable
in practice. The 90th percentile closely represents what EPA intended
with the proposed 50th percentile, i.e., a midpoint.
    Some commenters did support the 50th percentile because they argued
it was more protective. The majority of commenters supported the 90th
percentile and some commenters argued for the use of a higher
percentile, i.e., 95th or 99th. Because none of EPA's own fuel samples
meet this specification, the 50th percentile is overly conservative. If
EPA selected the 50th percentile, comparable fuels would have to be
``cleaner'' than all commercial liquid fuels (or at least all of those
in the Agency's current database), which would greatly restrict the
utility of the provision. Also, with such a strict approach, additional
quantities of virgin oils with higher contaminant levels would be
burned, leading to greater emissions than if a higher percentile was
chosen. Therefore, EPA agrees with commenters that a higher percentile
better reflects the liquid fossil fuels burned nationally and is a
better benchmark.
    After considering the issue of joint probability, EPA has decided
to promulgate a composite specification based on the largest measured
value to approximate what 90 percent of individual benchmark fuels are
likely to meet. This approach has the virtue of being representative of
a range of fuels that are burned nationally in combustion devices.
    Based on the proposal, EPA had the option of choosing between an
individual fuel specification approach and a composite approach. The
majority of commenters supported using the composite specification plus
the suite of individual fuel specifications that could be used
irrespective of the fuel displaced.
    The composite approach has advantages over the individual fuel
specification approach. One issue associated with the single fuel
specification approach is that gasoline has relatively higher levels of
volatile organic compounds while No. 6 fuel oil has higher levels of
semi-volatile organic compounds and metals. If a potential comparable
fuel were to have a volatile organic constituent concentration below
the gasoline specification but higher than the others and a particular
metal concentration lower than the No. 6 fuel oil specification but
higher than gasoline, it would not be a comparable fuel since it meets
no single specification entirely. Therefore, EPA is concerned that
establishing specifications under this

[[Page 33787]]

option would significantly limit the utility of the exclusion without
any obvious advantage in terms of the technical basis of the
specifications themselves.
    Compositing all the fuels has the advantage that it may better
reflect the range of fuel choices and potential for fuel-switching
available nationally to burners. A facility would be allowed to use the
composite fuel specification regardless of which fuel(s) it burns. In
addition, the composite well represents the constituent makeup of
liquid fossil fuels currently burned nationally. Because allowing
individual specifications would unnecessarily complicate the Agency's
implementation oversight, EPA has decided not to allow the individual
specifications as an alternative. Furthermore, EPA notes that because
it has chosen to promulgate constituent standards for comparable fuels
based on the largest measured value, the composite approach will
provide industry with greater flexibility in using the exclusion. A
composite specification provides a simpler regulatory framework, which
would facilitate implementation of the exclusion. Therefore, in this
final rule, EPA is promulgating a composite specification for
comparable fuels.

C. Parameters for the Comparable Fuel Specification

    Using the benchmark approach discussed above, EPA is promulgating a
set of technical specifications. The specifications address the
following <SUP>6</SUP>:
---------------------------------------------------------------------------

    \6\ Note that ppmw is an alternate way of expressing the units
mg/kg.
---------------------------------------------------------------------------

(1) Physical specifications:

--Heating value (BTU/lb);
--Kinematic viscosity (centistokes, cs, as-fired),

(2) General constituent specifications for:

--Total Halogens (ppmw, expressed as Cl)
--Nitrogen, total (ppmw), and

(3) Individual hazardous constituent specifications, for:

--Individual Metals (ppmw),
--Individual Appendix VIII Toxic Organics (ppmw)

The constituent specifications and heating value would apply to both
gases and liquids. The kinematic viscosity would not apply to gases.
(See Section D, below, which discusses synthesis gases specifically.)
1. Physical Specifications
    a. Heating Value. The Agency is concerned with the acceptability of
the potential fuel and wants to ensure that comparable fuels have a
legitimate use as a fuel. As discussed below, the comparable fuels
exclusion only applies to waste fuels that are ultimately burned. In
addition, the Agency has relied on a heating value of 5,000 Btu/lbm
(11,500 J/g) as a reasonable heating value specification for
determining if a waste is being burned for energy recovery; that is,
wastes with this Btu value or higher are considered to be burned for
energy recovery. (See Sec. 266.103(c)(2)(ii). 50 FR at 49173n.24
(November 29, 1985)). <SUP>7</SUP> This type of minimum Btu value
specification is appropriate here as well as for the overall fuel (note
that this is a different issue than finding the appropriate Btu value
by which to correctly determine if the individual constituent
specifications are being met, discussed below). EPA is thus setting a
5,000 Btu/lbm limit today as a minimum heating value for a comparable
fuel to ensure that comparable fuels are in fact legitimate fuels. See
Sec. 261.38(a)(1)(i).
---------------------------------------------------------------------------

    \7\  The 5,000 Btu/lb measure is not, however, an unvarying
measure of legitimate versus insufficient energy recovery. See,
e.g., 48 FR at 1158 (March 16, 1983).
---------------------------------------------------------------------------

    b. Kinematic viscosity. Viscosity is an important specification to
help ensure that a comparable fuel is as readily burnable as the
benchmark fuel. Viscosity is important to the proper atomization and
feed to the burning device and is an important design specification of
the burner assembly. EPA proposed two options for setting a viscosity
specification: (1) Using a value derived from the analyses EPA
conducted; or (2) using the ASTM viscosity specification for fuel oil.
(61 FR at 17465). Under the ASTM option for the composite fuel
viscosity specification, EPA took comment on using the second highest
ASTM viscosity specification. This would have the effect of not
considering the extremes, viscosity of No. 6 fuel oil (50.0 cs at
100 deg.C) and using as the specification the viscosity of No. 4 fuel
oil (24.0 cs at 40 deg.C).
    Given the choice of EPA-derived viscosity values and ASTM values,
the majority of commenters supported the use of the ASTM physical
specification for viscosity. In addition, several commenters argued
that the viscosity specification should apply at the point
(temperature) that the fuel is fired rather than the point of
generation. Commenters pointed out that it is common practice to reduce
the as-fired viscosity to promote good atomization and combustion
through blending with less viscous fuels or by warming the fuel to
above-ambient temperature before firing. For example, while No. 6 fuel
oil has an elevated viscosity at ambient conditions, it is typically
stored and fired at temperatures which promote atomization and
combustion.
    EPA is persuaded by commenters that basing our viscosity
specification on No. 4 fuel oil would possibly limit comparable fuels
similar to No. 6 fuel oil (one of the benchmark fuels) from qualifying
for the exclusion. EPA agrees that the viscosity specification should
be based on ASTM standard for No. 6 fuel oil (50 cs at 100 deg.C). The
ASTM standard represents the typical temperature and viscosity at which
No.6 fuel oil is fired. Thus, it is appropriate for a comparable fuel,
when fired, to have the same viscosity as No. 6 fuel when fired. This
will allow for a specification that is achievable for all liquid fossil
fuels.
    Therefore, in this final rule, EPA is promulgating a kinematic
viscosity specification of 50 cs, as-fired . The specification for
viscosity will only pertain to non-gaseous fuels, because gases are
inherently less viscous than liquids. See Sec. 261.38(a)(1)(ii).
    c. Flashpoint (proposed, but not promulgated). EPA proposed two
options for setting a minimum flashpoint specification: (1) Using a
value derived from the analyses EPA conducted; or (2) using the
requirements for flashpoint specified by ASTM. Under the ASTM option
for the composite fuel flashpoint specification, EPA took comment on
using the second lowest flash point as the specifications. (61 FR at
17465). This would have the effect of not considering the extremes,
flash point of gasoline (-42 deg.C) and using as the specification the
flash point of No. 2 fuel oil (38 deg.C).
    Several commenters opposed setting specifications for flash point.
Commenters argued that DOT and OSHA have developed and promulgated
regulations that control the hazards such materials can pose.
Commenters also argued that the specification would preclude burning
materials that are normally fuels such as methanol. EPA agrees with
commenters that DOT (49 CFR Parts 171 through 180) and OSHA (29 CFR
Part 1910) regulations adequately address the transportation and
handing of low flashpoint material and setting a flashpoint
specification under RCRA would be unnecessarily redundant with no
ostensible gain in protectiveness. In addition, by limiting the
exclusion to units subject to Federal/State/local air emission
requirements, comparable fuels will be burned in units subject to OSHA
requirements. (See Section H, below,

[[Page 33788]]

which discusses this requirement.) Therefore, EPA is not establishing a
flashpoint specification for the final rule.
2. General Constituent Specifications
    In determining general constituent specifications and in
determining individual hazardous constituent specifications (see
following discussion), the Agency is concerned with the overall
environmental loading. Comparable fuels could have lower heating value
than the fossil fuels they would displace. In these situations, more
comparable fuel would be burned to achieve the same heat input, with
the result that more hazardous constituents would be fired and emitted
(e.g., halogenated organic compounds and metals) than if fossil fuel
were to be burned. This would lead to greater environmental loading of
potentially toxic substances, which is not in keeping with the intent
of the comparable fuels exclusion nor with RCRA's overall
protectiveness goals.
    To address environmental loading, the approach used in this final
rule is to establish a minimum heating value specification comparable
to the BTU content of the benchmark fossil fuel(s). The Agency is
establishing the specification(s) for comparable fuels at a heating
value of 10,000 BTU/lb, which is near to what liquid commercial fuels
contain.<SUP>8</SUP> EPA chose 10,000 BTU/lb because it is typical of
current hazardous waste burned for energy recovery.<SUP>9</SUP>
However, candidate comparable fuels when generated initially can have
heating values very different than 10,000 BTU/lb. Therefore, under this
final rule, when determining whether a waste meets the comparable fuel
constituent specifications, a generator must first correct the
constituent levels in the candidate waste to a 10,000 BTU/lb heating
value basis prior to comparing them to the comparable fuel
specification tables. In this way, a facility that burns a comparable
fuel would not be feeding more total mass of hazardous constituents
than if it burned fossil fuels.<SUP>10</SUP>
---------------------------------------------------------------------------

    \8\ Constituent levels presented in today's final rule have been
corrected from the fuel's heating value (approximately 20,000 BTU/
lb) to 10,000 BTU/lb.
    \9\ Consult USEPA, ``Final Technical Support Document for HWC
MACT Standards, Development of Comparable Fuels Specifications'',
May 1998.
    \10\ Note that the heating value correction would apply only to
allowable constituent levels in fuels, not to detection limits.
Detection limits would not be corrected for heating value.
---------------------------------------------------------------------------

    a. Specification Levels for Halogenated Compounds. I. Summary. For
the final rule, EPA is using its composite benchmark approach to
establish a total halogen specification and allowing compliance with a
total organic halogen limit in lieu of complying with limits on
individual Appendix VIII halogenated compounds. Therefore, a comparable
fuels generator would have the option of complying: (a) with a total
organic halogen specification of 25 ppm plus the total PCB
specification or (b) with the all of the individual Appendix VIII
specifications for halogen compounds. In addition, in both cases, the
generator would also have to comply with the total halogen limit (which
includes both organic and inorganic halogens) of 540 ppm and with a
total PCB specification (non-detect at a minimum required detection
limit of 1.4 ppm). See Sec. 261.38(a)(2), Table 1.
    Compliance with a total organic halogen specification in lieu of
limits on individual halogenated compounds will ensure that measurable
levels of halogenated compounds will be no greater than in benchmark
fuels. In addition, the total organic halogen specification will result
in less sampling and analysis costs. Finally, the total halogen limit
(both organic and inorganic) will create a presumption that halogenated
products of incomplete combustion (PICs) generated from burning a
comparable fuel will not be emitted at higher levels than from burning
a benchmark fossil fuel.
    ii. Total Halogen Rationale. Although total halogens are not listed
in Appendix VIII, Part 261, EPA proposed a total halogen specification
to establish a presumption that halogenated products of incomplete
combustion (PICs) generated from burning a comparable fuel would not be
emitted at higher levels than from burning a benchmark fossil fuel. See
proposal (61 FR at 17461) and subsequent notices of data availability
(61 FR 43502, August 23, 1996 and 61 FR 47402, September 9, 1997). PICs
resulting from the burning of halogenated organic compounds can pose a
particular hazard to human health and the environment.<SUP>11</SUP>
Using the benchmark approach, EPA proposed a composite fuel total
halogen limit of 25 ppm.
---------------------------------------------------------------------------

    \11\ For further discussion see USEPA, ``Final Technical Support
Document for HWC MACT Standards, Development of Comparable Fuels
Specifications'', May 1998.
---------------------------------------------------------------------------

    At the time of the proposal, EPA intended to establish a total
halogen limit that included both organic and inorganic halogens.
However, the total halogen data used by EPA in the proposed rule for
its No. 4 and No. 6 fuel oils were based on analytical methods
measuring only total organic halogens, not both organic and inorganic
halogens. Commenters raised concerns about including total halogen data
that did not include inorganic halogens because it did not represent
typical halogen content found in benchmark fuels. EPA was persuaded by
commenters' arguments and noticed additional total halogen data
gathered from its own database (i.e., Certifications of Compliance
(CoC) required by the Boilers and Industrial Furnace Rule) and data
submitted by one commenter. In addition, EPA will continue to use its
original gasoline and No. 2 fuel oil halogen data, which included both
organic and inorganic halogens. Using the additional data, the total
halogen specification would be 540 ppm for the composite benchmark
data. For further discussion, see NODA 61 FR at 47402.
    In response to EPA's NODA, commenters argued that some of the data
should not be used to establish the total halogen specification due to
the use of inappropriate analytic methods. In particular, commenters
believe that CoC data from two facilities (Huntsman Polypropylene
Corporation and American Cyanamid) should not be included because the
analytical method used measured organic halogens only. In addition,
commenters believe that CoC data from another facility (Dow Chemical)
should not be included because the detection limit of the method used
to analyze for total halogens (ASTM Standard D 808) is not sensitive
below 1000 ppm, and unless some other, more sensitive analytical method
were followed afterward, the method could not have been effective at
the levels reported. EPA is persuaded by these commenters' arguments
and has excluded the data from these three facilities from its halogen
data set. Using this revised data set, the total halogen specification
would be 540 ppm for the composite benchmark data. For the final rule,
EPA is promulgating a total halogen specification of 540 ppm.
    In response to the initial proposal, some commenters argued that
EPA should consider solid fuels like wood and coal in the development
of a total halogen specification. As discussed above, EPA has decided
not to include solid fuels in its benchmark specification. Thus, EPA is
not inclined to consider using solid fuels to set one of the
specifications. Also, EPA is concerned about the formation of
halogenated PICs from comparable fuels containing halogens. At this
time, EPA has no data to support a conclusion that the higher halogen
levels in solid fuels would not cause an increase in

[[Page 33789]]

halogenated PIC formation compared to benchmark fuels.
    The Agency also received comment on an emissions-based equivalency
determination to qualify for the total halogen specification. One
commenter argued that the Agency should consider the commenter's
candidate comparable fuel as a comparable fuel even though it cannot
meet the comparable fuel specification for total halogens. The Agency
considered the situation but, as indicated in the September 9, 1997
NODA (62 FR at 47403), continues to maintain that an emissions-based
equivalency determination to the halogen specification on a national
regulatory basis would be inappropriate and infeasible at this time.
    In response to EPA's NODA, the commenter argued that an equivalency
determination would not be administratively complex and that it could
involve a demonstration by the person applying for the equivalency
determination that the chemistry of the fuel is such that it is
incapable of forming halogenated PICs. EPA is not persuaded by the
commenter's arguments. For hydrocarbon-based fuels, combustion
conditions (such as oxygen level, mixing, temperature, etc.) will have
an impact on non-chlorinated and/or chlorinated PIC emissions.
Additionally, chlorine in both inorganic and organic forms in the waste
fuel can contribute to chlorinated PIC emissions. Dioxin/furans and
other chlorinated PICs have been detected from sources burning both
inorganic (e.g., salts) and/or organic chloride (e.g., plastics)
containing wastes.<SUP>12</SUP> Furthermore, if the Agency were to
develop an equivalency determination for total halogens, the
implementation details needed in a national regulation to ensure proper
combustion of halogenated wastes would be numerous, including, for
example, provisions on burner operating parameters, performance
testing, and monitoring. These details would almost certainly result in
a complicated conditional exclusion from the definition of solid waste
that is viewed as both potentially unworkable and very difficult to
implement on a national basis.
---------------------------------------------------------------------------

    \12\ For further discussion see USEPA, ``Final Technical Support
Document for HWC MACT Standards, Development of Comparable Fuels
Specifications'', May 1998.
---------------------------------------------------------------------------

    Therefore, EPA is not inclined at this time to consider developing
any national equivalency determination to the total halogen
specification. At some future point, perhaps as the Agency's
understanding of cause-and-effect relationships regarding emissions
from a wider variety of sources grows, EPA may be able to address
aspects of the commenter's recommendations if appropriate and feasible.
    iii. Total Organic Halogen Rationale. As an additional part of its
proposal, EPA invited comment on whether a total halogen specification
could act as a surrogate for limits on individual halogenated compounds
found in Appendix VIII. In this case, EPA's proposed limit of 25 ppm
for total organic halogens would act as the surrogate for the
individual halogenated organics. Commenters supported the surrogate
approach and indicated that it would reduce the testing and
recordkeeping costs on the regulated community. EPA agrees that this
approach will simplify the comparable fuels specification and possibly
mean fewer and less costly sampling and analyses of comparable fuel
streams for generators.
    However, some commenters raised concerns that a total halogen
analysis will not be an effective screen for some of the more hazardous
halogenated Appendix VIII constituents which could constitute a
potential risk at low detection levels (e.g., tetrachlorodibenzo-p-
dioxins). EPA calculated the equivalent constituent concentrations
using the minimum detection limit values for these hazardous
halogenated organics and determined that the 25 ppm total organic
halogen limit will be an effective screen for all of the chlorinated
dibenzofurans and chlorinated dibenzodioxins (i.e., the tetra- through
octa-congeners). The minimum detection limits calculated for these
congeners ranged from 30 to 150 ppm and the 25 ppm organic halogen
specification will limit these congeners' concentrations to below those
minimum detection limits. Additional factors in this decision to use
the 25 ppm halogen limit as a screen for dioxins include the following:
    (1) In particular, waste codes F020, F021, F022, F023, F026 and
F028 have been designated as ``inherently waste-like'' under 40 CFR
261.2(d) and therefore are not eligible for the comparable fuel
exclusion;
    (2) Wastes listed because they contain dioxins would also be
expected to contain significant levels of other halogenated organics.
(The reader should note that the compounds in question are typically
formed from the breakdown and reaction of other halogenated organics.)
The higher concentrations of these other halogenated organics would
drive the total organic halogen content of the waste up and, thus, the
contribution of any chlorinated dibenzofurans and dioxins would have to
be significantly less than the 25 ppm limit; and
    (3) Waste codes expected to contain significant levels of other
halogenated organics can be readily discerned from their list
descriptions in 40 CFR 261 Subpart D (e.g., F001 and F002 solvent
wastes are defined as halogenated solvents; F024 includes waste from
production of halogenated organics.) In addition, Appendix III to Part
268 lists the halogenated organics typically found in hazardous wastes
and that are subject to land disposal restrictions under 40 CFR 268.32.
By comparing these, a person implementing today's rule could easily
determine the most likely waste codes that could contain halogenated
organics in excess of the 25 ppm limit, and thus easily identify wastes
not eligible for the comparable fuels exclusion. See also Section E
below for point of generation and blending/treatment discussions.
    Commenters are also concerned that the use of a total organic
halogen surrogate will possibly mask illegal PCB disposal. Since low
analytical detection limits for PCBs (i.e., 1.4 ppm) in the benchmark
fuel matrices have been well-demonstrated, the 25 ppm total organic
halogen limit would not be a sufficient screen. Since PCBs are
relatively common halogenated contaminants in fuel-like wastes and the
probability of finding them is non-trivial, EPA is keeping the limits
on PCBs to ensure levels no greater than from benchmark fuels. EPA also
points out that there are several relatively inexpensive analytical
screening methods that have been developed specifically for the
determination of total PCBs.
    With regard to analysis methodology, commenters have indicated that
the test method (ASTM Method 4929) used by EPA to analyze for organic
halogens may not be appropriate to analyze their candidate comparable
fuel. EPA recognizes that the methods used in its own analysis of the
benchmark fuels may not be appropriate for some candidate comparable
fuels. Thus, in the final rule EPA is allowing the use of alternate
methods or modifications to current methods that meet the performance
based criteria in section Sec. 261.38(c)(7). It is the responsibility
of the generator to ensure that the sampling and analysis is unbiased,
precise, and representative of the waste. For further details, see
Section G. Sampling and Analysis, below.
    b. Specification Levels for Nitrogenated Compounds. Although total
nitrogen is not listed on Appendix VIII, Part 261, EPA proposed a total

[[Page 33790]]

nitrogen specification to ensure that nitrogenated products of
incomplete combustion (PICs) from burning a comparable fuel would not
be emitted at higher levels than from burning a benchmark fossil fuel.
See proposal (61 FR at 17462) and a subsequent notice of data
availability (61 FR 43502, August 23, 1996). PICs resulting from
burning nitrogenated organic compounds can also pose a particular
hazard to human health and the environment.<SUP>13</SUP>
---------------------------------------------------------------------------

    \13\ For further discussion see USEPA, ``Final Technical Support
Document for HWC MACT Standards, Development of Comparable Fuels
Specifications'', May 1998.
---------------------------------------------------------------------------

    Commenters generally did not address the issue of formation of
nitrogenated PICs. Instead, most commenters disagreed with the need to
establish a specification for nitrogen under RCRA's comparable fuel
specification when this pollutant (as NOx) is controlled under the
Clean Air Act (CAA). Commenters argued that EPA has the authority under
the CAA to control certain criteria pollutants, such as nitrogen oxides
and, in fact, has promulgated primary and secondary National Ambient
Air Quality Standards (NAAQS) for oxides of nitrogen. EPA believes that
a total nitrogen specification is necessary. The counter-arguments
advanced do not address EPA's rationale for establishing a total
nitrogen limit. The CAA NAAQS do not themselves ensure control of
individual combustion units in a manner that prevents formation of
nitrogenated PICs, nor do they ensure that a hazardous waste-derived
fuel would contain no greater amounts of nitrogenated compounds than
fossil fuels. EPA is therefore establishing a total nitrogen
specification to ensure that concentrations of nitrogenated PICs in
comparable fuels will be no greater than in benchmark fuels.
    As an additional part of its proposal, similar to total halogens,
EPA invited comment on whether a total nitrogen specification could act
as a surrogate for limits on individual nitrogenated compounds found in
Appendix VIII. EPA believes that a surrogate approach would simplify
the comparable fuels specification and possibly mean fewer and less
costly sampling and analyses of comparable fuel streams for generators.
However, analysis of EPA's composite data results in a total nitrogen
specification of 4,900 ppm. The detection limits for EPA's analysis of
individual nitrogenated compounds in its benchmark fuels ranged from 1
to 2200 ppm. Since detection limits for nitrogenated compounds in the
benchmark fuels have been demonstrated well below 4,900 ppm, a total
nitrogen specification would not be a sufficient screen for individual
Appendix VIII nitrogenated compounds.
    Therefore, for nitrogen compounds, EPA is promulgating a total
nitrogen specification of 4,900 ppm with individual Appendix VIII
nitrogen specifications. See Sec. 261.38(a)(2), Table 1. This approach
ensures that levels of individual nitrogenated compounds and the total
nitrogen concentration are no greater than the benchmark fuels and
creates a presumption that concentrations of nitrogenated PICs from
burning a comparable fuel are no greater than burning a benchmark fuel.
3. Individual Hazardous Constituent Specifications
    To limit the Part 261, Appendix VIII constituents in comparable
fuels to those found in benchmark fossil fuels, the Agency calculated
concentration limits using the Agency's analysis of individual
benchmark fuel samples. Where EPA did not detect a particular Appendix
VIII constituent in the benchmark fuel, the Agency set the constituent
specification using one of two approaches. For constituents that the
Agency did not detect and did not have reason to believe would be
present in a benchmark fuel (e.g., halogenated organics), the
comparable fuel specification is ``non-detect'' with an associated,
specified minimum required detection limit for each compound. The
detection limit is a statistically-derived level based on the
quantification limit determined for each sample. While these
constituents should not be present, the Agency will allow non-detects
lower than the detection limits that EPA was able to obtain. However,
EPA will not allow measured or quantified results below the specified
minimum required detection limit where ``non-detect'' is the comparable
fuel specification. For metals, hydrocarbons, and oxygenates, the
Agency followed a different approach, which is described below.
    a. Individual CAA and Appendix VIII Metals. EPA proposed
concentration levels or minimum required detection limits for all CAA
metals and RCRA Appendix VIII metals (61 FR at 17460). Commenters
argued that the Agency should modify its approach with respect to non-
detect levels and allow the hazardous constituent to be present in the
comparable fuel up to the detection limit. In particular, commenters
argued that metals are expected to be present in petroleum products,
resulting from the formation process or the production process, and,
therefore, it is reasonable to assume that non-detect metals in EPA's
benchmark analysis would be present up to the detection limit. EPA
agrees that metals could be present in fossil fuels but below EPA's
detection limits. Therefore, the final rule allows metals to be present
at any concentration less than or equal to the detection limits in
EPA's analysis.
    In addition, as proposed, EPA is setting limits for two metals that
are not found on Part 261, Appendix VIII: cobalt and manganese. EPA
included these metals in the analysis because they are listed in the
Clean Air Act as hazardous air pollutants (HAPs). See CAA, section
112(b) and proposal (61 FR at 17460). By including these metal HAPs and
the RCRA metals listed on Appendix VIII, Part 261, the Agency will
ensure that the specification limits all toxic metals of concern in
hazardous wastes to levels present in the benchmark fossil fuels.
Therefore, EPA is promulgating constituent levels for the all CAA
metals and RCRA Appendix VIII metals at the largest value composite of
EPA fossil fuel data. See Sec. 261.38(a)(2), Table 1.
    b. Individual Appendix VIII Toxic Organics. EPA is promulgating
constituent levels or minimum required detection limits for all Part
261, Appendix VIII, toxic organic constituents, unless otherwise noted.
See Sec. 261.38(a)(2), Table 1. Some Appendix VIII compounds were not
analyzed because a routine analytical method is not available. Because
EPA did not analyze for some compounds in Appendix VIII, EPA will not
be promulgating standards for these remaining Appendix VIII
constituents. These compounds are not listed in today's specifications,
and a comparable fuel generator will not have to comply with
specifications for these compounds. EPA believes it highly unlikely
that a hazardous waste-derived fuel would contain only these
undetectable Appendix VIII constituents.
    i. Specification Levels for Undetected Pure Hydrocarbons. EPA
proposed allowing pure hydrocarbons on Appendix VIII to be present at
any concentration less than or equal to the detection limits in EPA's
analysis. Since fossil fuels are comprised almost entirely of pure
hydrocarbons <SUP>14</SUP> in varying concentrations, it is possible
that many pure hydrocarbons in Appendix VIII, Part 261, could be
present in fossil fuel but below detection limits. These materials,
which include compounds such as fluoranthene, might not even be
considered solid wastes when burned in

[[Page 33791]]

their pure carbon form since they are themselves products. See
Sec. 261.2(c)(2)(ii), and see proposal (61 FR at 17461).
---------------------------------------------------------------------------

    \14\ Excluding sulfur, carbon and hydrogen comprise 99.6 to 100%
of liquid fossil fuels.
---------------------------------------------------------------------------

    Some commenters argued that no comparable fuels specifications
should be established for pure hydrocarbon compounds because pure
hydrocarbons will burn cleanly. EPA disagrees for the purpose of
today's rule because establishing no limits for Appendix VIII
hydrocarbons would depart from the basic comparable benchmark approach
and even relatively clean-burning compounds may produce some toxic
emissions. EPA's analysis confirms that these compounds are not present
in the benchmark fuels above the minimum detection limits. However, it
is reasonable to assume that the ``non-detect'' pure hydrocarbons could
in fact be present in fossil fuels up to the detection limit since
fossil fuels are comprised entirely of pure hydrocarbons. Therefore,
the final rule allows hydrocarbons in Appendix VIII to be present at
any concentration less than or equal to the detection limits in EPA's
analysis. See Sec. 261.38(a)(2), Table 1.
    Some commenters argued that toluene, a typical fuel component,
should be allowed without limitation in comparable fuels. As discussed
above for all hydrocarbons, EPA disagrees with not establishing any
limits on toluene, or establishing a different specification not based
on fuel data, because this would depart from the comparable benchmark
approach. EPA has established the toluene specification at the fuel
data-based concentration found in its benchmark fuel analysis. However,
because toluene can be a fuel component, setting a different data-based
specification for toluene may be warranted at some point in the future,
and therefore EPA will continue to remain open to considering further
action.
    ii. Specification Levels for Undetected Oxygenates. In addition to
the pure hydrocarbon compounds, EPA invited comment on whether
oxygenates should be allowed up to the detection limits in EPA's
analysis and on what would be an appropriate minimum oxygen-to-carbon
ratio to identify an oxygenate. (61 FR at 17461). Oxygenates are
organic compounds comprised solely of hydrogen, carbon, and oxygen and
can serve as fuels or fuel additives. Examples of oxygenates (not in
Appendix VIII and thus not RCRA regulated) include alcohols such as
ethanol, and ethers such as methyl tert-butyl ether (MTBE). Appendix
VIII oxygenates are not routinely found in fossil fuels and only a few
oxygenates were detected in EPA's sampling and analysis program.
    Several commenters supported allowing oxygenates at any
concentration less than or equal to the detection limit but also argued
that EPA should go a step further and set no specification limits for
oxygenated compounds. Commenters argued that oxygenates (like isobutyl
alcohol) burn well and promote good combustion of other constituents in
a fuel. Again, for the purpose of today's rule, EPA disagrees with not
establishing any limits on oxygenates because this would depart from
the basic comparable benchmark approach. EPA's analysis confirms that
these compounds are not present in the benchmark fuel above the minimum
detection limits and establishing a specification without fuel data
containing oxygenates would depart from the comparable fuel approach.
Furthermore, oxygenates are listed on Appendix VIII for their toxicity
and in particular, one group of organic oxygenates, organic peroxides,
can be extremely hazardous to manage. However, since most oxygenates
burn well and are not likely to produce significant PICs, EPA will
allow these compounds at any concentration less than or equal to the
detection limits found in EPA's analysis.
    EPA notes that the Clean Air Act provides for the use of some
oxygenates (like isobutyl alcohol) as additives in unleaded gasoline
and it may be appropriate to consider their use in a comparable fuel.
However, at the time of this final rulemaking, EPA had no fuel data in
which these oxygenates were used as gasoline additives and thus was not
able to set a specification different than in today's final rule. As
discussed above, any approach without using fuel data would depart from
the comparable fuel approach. However, setting data-based
specifications for certain oxygenates may be warranted at some point in
the future, and therefore EPA will continue to remain open to
considering further action.
    With regard to a minimum oxygen-to-carbon ratio to define an
oxygenate, one commenter recommended defining oxygenates simply as
aliphatic compounds comprised of carbon, hydrogen, and oxygen. If EPA
was intent on defining an oxygen-to-carbon ratio, other commenters
recommended a ratio of 0.266, which is the ratio for MTBE. Defining an
oxygenate with a minimum oxygen-to-carbon ratio or limiting the
definition to only aliphatics is more conservative than necessary.
Instead, EPA is defining an oxygenate as any compound comprised solely
of hydrogen, carbon, and oxygen.
    In summary, the final rule allows oxygenates, defined as any
compound comprised solely of hydrogen, carbon, and oxygen, at any
concentration less than or equal to the detection limits in EPA's
analysis. See Sec. 261.38(a)(2), Table 1.

D. Parameters for the Synthesis Gas Fuel Exclusion

    In today's final rule, EPA is also excluding from the regulatory
definition of solid waste (and, therefore regulation as hazardous
waste) a particular type of hazardous waste-derived fuel, namely a type
of synthesis gas (``syngas'') fuel meeting particular specifications.
The exclusion applies to syngas that results from the thermal reaction
of hazardous wastes by a process designed to generate both hydrogen gas
(H<INF>2</INF>) and carbon monoxide (CO) as usable fuel. See proposal
(61 FR at 17465).
    Some commenters stated that synthesis gas fuels are beyond EPA's
regulatory authority because they are uncontained gases. EPA has broad
statutory authority to regulate fuels produced from hazardous wastes.
RCRA section 3004 (q) (1); see also Horsehead Resource Development Co.
v. Browner, 16 F. 3d 1246, 1262 (D.C. Cir. 1994) (broadly construing
this authority). The fact that syngas (by definition) is a gas, rather
than a solid or liquid, does not appear to raise jurisdictional issues.
It is still produced from the hazardous wastes that are being processed
thermally. See Sec. 261. 2 (c) (2) (A) and (B) (defining such materials
as solid wastes). EPA believes its authority to be clear under these
provisions.
    EPA also received a number of comments from persons operating
synthetic gasification processes within the petroleum industry. These
comments also argued that the Agency was without legal authority to
regulate the fuel output of these processes even if the processes use
hazardous waste as a feed material. The Agency has in fact adjudicated
the status under existing regulations of such a unit, indicating that
while both the process and the fuel output are within RCRA subtitle C
jurisdiction, the process is a type of exempt recycling unit under 40
CFR 261.6(c)(1) and the fuel is also exempt under Sec. 261.6(a)(3).
Letter of Michael Shapiro (Director of Office of Solid Waste) to
William Spratlin (Director RCRA Division EPA Region VII) (May 25,
1995).
    Upon reflection, it appears that these petroleum gasification
operations may be similar to other within-petroleum industry recycling
activities that EPA has proposed to exclude from Subtitle C
jurisdiction in the petroleum listing rule

[[Page 33792]]

proposed on November 20, 1995. 60 FR 57747. It therefore appears more
appropriate to consider this overall jurisdictional issue in the
context of that rulemaking. However, EPA is not at this time limiting
the synthetic gas fuel exclusion insofar as it potentially applies to
the output of gasification operations conducted as part of normal
petroleum refining (SIC Code 2911). Thus, these syngas fuels can also
be eligible for the exclusion in today's rule.
    To ensure that any excluded hazardous waste-derived syngas contains
low levels of hazardous compounds relative to levels in fossil fuels,
the Agency is setting a series of syngas specifications addressing:
(1) physical specifications:

--Minimum Btu value (Btu/scf);

(2) general constituent specifications for:

--Total halogen (ppmv)
--Total nitrogen (ppmv)
--Hydrogen Sulfide (ppmv)

(3) individual hazardous constituent specifications, for:

--Individual Appendix VIII constituents (ppmv)
1. Physical Specifications
    a. Minimum Btu value. Like the comparable fuel specification, EPA
proposed that syngas fuel have a minimum Btu value of 5,000 Btu/lb.
Commenters had several concerns with this specification. First,
commenters noted that the heating value of a gas is almost universally
measured in units of Btu per unit volume (``scf''). Second, commenters
argued that due to the efficiencies of combustion, a gas can be used as
a fuel even though its heating value, when expressed in terms of Btu
per pound, is less than 5000. Commenters argued that using fuels with
significantly higher Btu per scf could actually degrade efficiency of
gas turbine electric generation systems and increase air emissions. For
example, syngas with a heating value of 5000 Btu per pound would have
to be diluted to reduce its heating value to enable a combustion
turbine to meet NO<INF>X</INF> emission limits. Furthermore, commenters
argued that in many potential applications, syngas produced from
hazardous waste would be used as a substitute for syngas produced from
fossil fuels or syngas produced from non-hazardous secondary materials.
Syngas produced from coal, coke, and certain types of secondary
materials, with heating values less than 5000 Btu per pound (when
expressed in these terms), are currently used as fuels.
    EPA agrees with commenters' concerns with regard to the heating
value of syngas. To set an appropriate heating value, EPA investigated
the heating values of syngas currently manufactured for use as a
fuel.<SUP>15</SUP> For fuel usage related purposes, syngas is
classified as either medium- or low-Btu gases (medium-Btu generally
being produced with pure oxygen, low-Btu generally with air). Medium-
Btu syngas generated from the gasification of fuels (including coal,
fuel oil, biomass, municipal solid wastes, plastics, etc.) with pure
oxygen typically has heating values from 200 to 400 Btu/scf. Medium-Btu
syngas can typically be used as a fuel for power production in a gas
turbine. Low-Btu syngas generated from the gasification of fuels with
air has heating values from about 100 to 200 Btu/scf. In most cases,
low-Btu syngas does not achieve temperature and expansion ratios needed
for thermodynamically efficient power generation. Low-Btu syngas is
usually mixed with higher energy sources and is not generally desired
for most applications. However, EPA notes that there are certain
specifically designed gas turbines (with very large ``silo'' combustion
chambers) that can handle very low-Btu (100 Btu/scf) syngases for power
generation. Thus, a heating value of 100 Btu/scf is reasonable for
syngas because it represents fuels used as legitimate energy sources.
Therefore, EPA is establishing a minimum Btu value of 100 Btu/scf for
synthesis gas. See Sec. 261.38(b)(1).
---------------------------------------------------------------------------

    \15\ For further discussion see USEPA, ``Final Technical Support
Document for HWC MACT Standards, Development of Comparable Fuels
Specifications'', May 1998.
---------------------------------------------------------------------------

2. General Constituent Specifications
    a. Total Halogen Specification. As proposed, EPA is promulgating a
total halogen specification for synthesis gas fuels of less than 1
ppmv. Like comparable fuels, EPA is establishing a total halogen
specification to limit the formation of halogenated PICs from the
burning of the hazardous waste-derived syngas fuel. EPA has looked at
syngas manufactured from non-hazardous waste sources, such as coal, and
concludes that 1 ppmv is a reasonable specification for total halogen
for a synthesis gas fuel. See Sec. 261.38(b)(2).
    b. Total Nitrogen Specification. EPA proposed a total nitrogen
specification of less than 1 ppmv of total nitrogen, other than
diatomic nitrogen (N<INF>2</INF>). Like comparable fuels, EPA was
concerned about the formation of nitrogenated PICs from the nitrogen
contained in the hazardous waste-derived syngas fuel. Commenters argued
that regardless of whether nitrogen is present in the syngas, when
syngas is burned, NO, NO<INF>2</INF> and NO<INF>X</INF> will always
form, as nitrogen present in the air combines with oxygen in the
syngas, the air or both. In addition, commenters argued that the Agency
or authorized states already regulate the emissions of these air
pollutants through the issuance of air permits. Furthermore, commenters
argued that nitrogen in the syngas would not lead to the formation of
PICs.
    EPA disagrees with the commenters that a total nitrogen
specification is unnecessary and believes that the comments did not
address EPA's rationale for a total nitrogen limit. EPA is establishing
a total nitrogen specification to limit the formation of nitrogenated
PICs. Diatomic nitrogen is not included in a total nitrogen
specification because only organic-bound nitrogen compounds are
expected to form PICs. However, a total nitrogen specification based on
syngas used as a fuel is a more appropriate specification. EPA has
looked at syngas currently manufactured for use as a fuel to establish
a total nitrogen specification. Nitrogen compounds in syngas (other
than N<INF>2</INF>) are mostly in the form of HCN or NH<INF>3</INF>.
Syngas manufactured from coal can have HCN and NH<INF>3</INF> levels of
100 to 300 ppmv.<SUP>16</SUP> A total nitrogen specification of 300
ppmv would ensure that concentrations of nitrogenated PICs in waste-
derived syngas will be no greater than syngas manufactured from coal.
Therefore, in today's final rule, EPA is promulgating a total nitrogen
specification of 300 ppmv, other than diatomic nitrogen (N<INF>2</INF>)
for synthesis gas fuel. See Sec. 261.38(b)(3).
---------------------------------------------------------------------------

    \16\ For further discussion see USEPA, ``Final Technical Support
Document for HWC MACT Rule, Development of Comparable Fuels
Specifications'', May 1998.
---------------------------------------------------------------------------

    c. Hydrogen Sulfide Specification. EPA proposed a hydrogen sulfide
(H<INF>2</INF>S) specification of 10 ppmv for syngas fuels. Commenters
argued that the H<INF>2</INF>S specification is not necessary because
the Clean Air Act has specifications that restrict the amount of sulfur
that can be emitted by sources that would likely burn syngas fuel
(i.e., boilers, combustion turbines). In addition, commenters argued
that the potential of facilities that burn syngas as a fuel to emit
sulfur compounds is low in comparison to facilities burning fossil
fuels. For example, facilities that produce power by burning syngas
produced from the gasification of coal emit approximately one-fifth of
the level of sulfur compounds emitted by similar facilities burning
coal.
    EPA disagrees with the commenters that no hydrogen sulfide
specification

[[Page 33793]]

should be promulgated. EPA is establishing the syngas exclusion by
limiting Part 261 Appendix VIII constituents, one of which is hydrogen
sulfide. However, a more appropriate specification would be based on
current applications where syngas is used as a fuel, rather than the
proposed specification of 10 ppmv. To set an appropriate hydrogen
sulfide specification, EPA investigated the hydrogen sulfide levels in
syngases currently manufactured from non-hazardous waste sources for
use as a fuel.
    The sulfur content of the material used to produce the syngas is
converted to almost entirely H<INF>2</INF>S in the gasification
process, with smaller amounts of carbonyl sulfide (COS). Syngas
produced from low sulfur content material does not contain appreciable
H<INF>2</INF>S. The H<INF>2</INF>S content of high sulfur coal-based
syngas can be over 1000 ppmv. However, in these cases, H<INF>2</INF>S
is removed during the gasification process. The amount of
H<INF>2</INF>S removal is dependent on how the syngas will be used. In
the case of syngas used for chemical feedstock, the H<INF>2</INF>S
removal can be to a level under 1 ppmv. For the case of syngas used for
fuel, H<INF>2</INF>S removal can range to levels between 50 and 200
ppmv (above 200 ppmv leads to corrosion of down stream gas handling
equipment, such as turbine blades.<SUP>17</SUP> Thus, 200 ppmv
represents the level of H<INF>2</INF>S in gas currently used in
applications where syngas is used as a fuel. Therefore, in this final
rule, EPA is promulgating a H<INF>2</INF>S specification of 200 ppmv
for synthesis gas fuels. See Sec. 261.38(b)(4). EPA further notes that
H<INF>2</INF>S removal is considered as part of the gasification
process and a syngas generator is required to meet the H<INF>2</INF>S
specification after this removal process.
---------------------------------------------------------------------------

    \17\ For further discussion see USEPA, ``Final Technical Support
Document for HWC MACT Rule, Development of Comparable Fuels
Specifications'', May 1998.
---------------------------------------------------------------------------

3. Individual Hazardous Constituent Specifications
    As proposed, EPA is promulgating specifications of less than 1 ppmv
for each hazardous constituent listed in Appendix VIII of part 261
(that could reasonably be expected to be in the gas). Having received
no comments to the contrary, this a reasonable specification for
Appendix VIII constituents in a synthesis gas fuel. See
Sec. 261.38(b)(5). Since EPA is promulgating a total halogen
specification for syngas and since this specification ensures that the
excluded syngas has less than 1 ppmv of individual halogenated
compounds, a syngas generator would not be expected to analyze for the
individual halogenated compounds in Appendix VIII. However, a syngas
generator would be expected to analyze for the individual nitrogenated
compounds in Appendix VIII since a total nitrogen specification of 300
ppmv would not ensure that individual nitrogenated compounds would be
limited to 1 ppmv. In addition, a syngas generator would be expected to
analyze for the Appendix VIII constituents identified in the comparable
fuels specification. See Sec. 261.38(a)(2) Table 1.

E. Meeting the Comparable Fuel Specifications

1. Potential Applicability of Today's Rule to Specific Waste Codes
    The probability of today's rule being applicable to any specific
hazardous waste is highly dependent upon the waste codes assigned to
that waste as well as the industry generating the waste. In developing
the Land Disposal Restrictions (40 CFR part 268) and in developing the
listings of hazardous wastes (40 CFR part 261), the majority of the
listed hazardous wastes were analyzed for concentrations of specific
hazardous constituents. EPA has already determined that the majority of
listed hazardous wastes (i.e., those having codes beginning with ``F'',
``K'', ``U'' or ``P'') are known to contain at least one of the
hazardous constituents that are restricted by today's rule to ``non-
detect'' levels. Appendix VII to Part 261 provides a partial list of
hazardous constituents that are known to be present in each Listed
Waste code, and the Treatment Standards for Hazardous Wastes (40 CFR
268.40) indicate constituents (and concentrations) that are
specifically regulated for land disposal for each waste code. The
majority of these constituents and waste codes are restricted to ``non-
detect'' levels in today's rule and so a potential comparable fuel
containing these constituents either could not be used, or would have
to be treated so that the hazardous constituents are removed or
destroyed to non-detect levels. See treatment discussion below, Section
E.4. It is possible, however, that an organic solvent or oil could
carry one of these codes, based on the derived-from rule only, and
could comply with the limits in today's rule. As such, EPA did not
restrict the application of today's rule to any waste code, except in
the case of wastes listed for the presence of dioxins or furans. See
261.38(c)(12). However, EPA does not expect that corrosive or reactive
wastes would be candidate comparable fuels because of the detrimental
impacts on the burning unit that would occur.
    At the same time, there are specific listed waste codes that EPA
expects to contain only those constituents for which today's rule sets
maximum allowable concentrations. As such, some wastes with these codes
would be likely candidates for compliance with the corresponding
constituent limits. These applicable wastes are primarily expected to
be: ignitable solvent wastes (F003 and F005), wastes from petroleum
production (F037, F038, and K048-51), and wastes from coking operations
(K060, K087, K141-145, K147 and K148). Table 1 also lists a set of U
waste codes and their corresponding constituents that may be applicable
depending upon their concentrations.
    It is expected that today's rule will primarily be applied to
wastes that are classified as hazardous only because they exhibit the
hazardous characteristic of ignitability (D001) and/or corrosivity
(D002). In comparing the regulatory levels for characteristic metal
wastes (D004-D011) and the corresponding allowable limits for these
metals in today's rule, there is an extremely small window of
applicability for some wastes identified as D006 (cadmium) or D009
(mercury) and likewise a relatively small window of applicability for
some D008 wastes (lead). All other characteristic metal wastes fail the
limit restrictions for metals. D003 wastes that are classified as
hazardous due to their cyanide (CN) content are expected, for the most
part, to fail to meet the specification for total nitrogen. Except for
D018 wastes (benzene), wastes that are characteristic for organics
(D012-D043) are also expected to be unable to comply with either the
limits or the ``non-detect'' requirements.
    All wastes consisting primarily of alcohols (e.g., ethanol or
isopropanol), petroleum distillates, oils, or other ignitable organic
liquids) are the most likely candidates for applying today's rule. This
is quite logical in that these chemicals tend to have good fuel value
when compared to the fuels examined for today's rule. The most probable
listed wastes that are expected to be able to comply with today's rule
are F003 and F005 solvents (except those F005 wastes containing carbon
disulfide, pyridine, or nitrobenzene). There are an additional number
of ``U'' wastes identified in Table 2 that are also good candidates for
compliance with today's rule. These chemicals are either hydrocarbons
or oxygenated hydrocarbons for which today's rule does not establish
any limits.
    Because of the potential for cross-contamination, wastes from
facilities

[[Page 33794]]

(e.g., pesticide manufacturers and halogenated solvent manufacturers)
known to manufacture concentrated forms of the chemicals restricted by
today's rule, are the most likely to require closer scrutiny and
testing. However, wastes generated by these facilities that are not
expected to be cross-contaminated would include non-contact solvents,
hydraulic or lubricating oils, and solvent-based wastes from the
production of unregulated constituents.

   Table 1.--Listed ``U'' Wastes With Corresponding Constituent Limits
------------------------------------------------------------------------
   Constituent for which the code was listed           Waste  code
------------------------------------------------------------------------
Acetophenone..................................  U004
Benz[a]anthacene..............................  U018
Benzene.......................................  U019
Benzo(a)pyrene................................  U022
Bis(2-ethylhexyl) phthalate...................  U028
Chrysene......................................  U050
Creosote......................................  U051
Cresol cresylic acid (total cresols)..........  U052
Dibenz[a,h]anthracene.........................  U063
Di-n-butyl phthalate..........................  U069
Diethyl phthalate.............................  U088
7,12-Dimethylbenz[a]anthracene................  U094
Di-n-octyl phthalate..........................  U107
Fluoranthene..................................  U120
Indeno(1,2,3-cd) pyrene.......................  U137
3-Methylcholanthrene..........................  U157
Naphthalene...................................  U165
Toluene.......................................  U220
Acrolein......................................  P003
Allyl alcohol.................................  P005
Endothall.....................................  P088
Propargyl alcohol.............................  P102
Ethyl methacrylate............................  U118
Isobutyl alcohol..............................  U140
Isosafrole....................................  U141
Methyl ethyl ketone [2-Butanone] [MEK]........  U159
Methyl methacrylate...........................  U162
1,4-Naphthoquinone............................  U166
Phenol........................................  U188
Safrole.......................................  U203
2-Ethoxyethanol [Ethylene glycol monoethyl      U359
 ether].
------------------------------------------------------------------------

 Table 2.--Listed ``U'' Wastes With No Corresponding Constituent Limits
------------------------------------------------------------------------
  Constituent for which the waste was listed           Waste code
------------------------------------------------------------------------
Acetaldehyde [Ethanal]........................  U001
Acetone [2-Propanone].........................  U002
2-Acetylaminofluorene [2-AAF].................  U005
Acrylic acid..................................  U008
Benz[c]acridine...............................  U016
n-Butyl alcohol [n-Butanol]...................  U031
Carbon oxyfluoride............................  U033
Crotonaldehyde................................  U053
Cumene [Isopropyl benzene]....................  U055
Cyclohexane...................................  U056
Cyclohexanone.................................  U057
Dibenzo[a,i]pyrene............................  U064
1,2:3,4-Diepoxybutane [2,2'-Bioxirane]........  U085
<variable>,<variable>-Dimethyl benzyl           U096
 hydroperoxide.
2,4-Dimethylphenol............................  U101
Dimethyl phthalate............................  U102
1,4-Dioxane [1,4-Diethyleneoxide].............  U108
Ethyl acetate.................................  U112
Ethyl acrylate................................  U113
Ethylene oxide................................  U115
Ethyl ether...................................  U117
Formaldehyde..................................  U122
Formic Acid...................................  U123
Furan.........................................  U124
Furfural......................................  U125
Glycidylaldehyde..............................  U126
Maleic anhydride..............................  U147
Methanol......................................  U154
Methyl ethyl ketone peroxide..................  U160
Methyl isobutyl ketone [4-Methyl-2-pentanone].  U161
Paraldehyde...................................  U182
1,3-Pentadiene................................  U186
Phthalic anhydride............................  U190
Quinone [p-Benzoquinone]......................  U197
Resorcinol....................................  U201
Tetrahydrofuran...............................  U213
Xylenes, mixed isomers [Xyenes, total]........  U239
------------------------------------------------------------------------

2. General
    The proposal provided several methods by which a hazardous waste
could qualify as a comparable fuel. The final rule retains these
methods and adds clarifying conditions to ensure that the methods do
not violate existing policy with regard to blending and treatment. The
person claiming that a hazardous waste meets the exclusion criteria of
this rule will be referred to as the ``comparable fuel generator,'' in
the case of excluded liquid fuel, or ``syngas fuel generator,'' in the
case of excluded syngas fuel. In today's final rule, a hazardous waste
can meet the comparable fuel hazardous constituent, heating value and
viscosity specifications of Sec. 261.38(a) in several ways. However, in
each case, the generator claiming the exclusion is responsible for
demonstrating eligibility. In addition, just meeting the hazardous
constituent, heating value and viscosity specifications would not
qualify a hazardous waste for the exclusion. The implementation
requirements of Sec. 261.38(c) (e.g., notification, certification,
sampling and analysis, recordkeeping) must also be satisfied for a
hazardous waste to be excluded as a comparable fuel.
    A waste can meet the Sec. 261.38(a)(2) hazardous constituent
specification if the hazardous waste ``as generated,'' i.e. without any
processing, blending or other alteration: (a) Meets the hazardous
constituent specification; or (b) does not meet the hazardous
constituent specification, but undergoes treatment, pursuant to
Sec. 261.38(c)(4), so that the hazardous constituents of concern are
destroyed or removed to concentrations that meet the exclusion
specification.
    A waste can meet the Sec. 261.38(1)(i) heating value specification
if the hazardous waste as generated without processing: (a) Meets the
heating value specification; or (b) does not meet the hazardous
constituent specification, but undergoes treatment, pursuant to
Sec. 261.38(c)(4), that destroys or removes material to increase the
heating value to meet the exclusion specification.
    A waste can meet the Sec. 261.38(a)(1)(ii) viscosity specification
if the hazardous waste as generated without processing: (a) Meets the
viscosity specification; (b) does not meet the viscosity specification,
but through blending, pursuant to Sec. 261.38(c)(3) with fossil fuel,
another excluded comparable fuel, or other non-waste changes the
viscosity to meet the exclusion specification; or (c) does not meet the
viscosity specification, but undergoes treatment, pursuant to
Sec. 261.38(c)(4) that destroys or removes material to decrease the
viscosity to meet the exclusion specification.
3. Blending
    Commenters supported allowing the blending of a hazardous waste
that meets the constituent and heating value specifications for the
purpose of decreasing viscosity. However, commenters were concerned
that blending could dilute toxic constituents and said that blending
should only be allowed if toxic constituents in the hazardous waste
would not be diluted. In today's final rule, the Agency allows an as-
generated hazardous waste, which meets the hazardous constituent and
heating value specifications, but does not meet the viscosity
specification, to be blended to meet the viscosity specification (see
Sec. 261.38(a)). The generator must document that the hazardous waste,
as generated without processing, meets the hazardous constituent and
heating value specifications prior to any blending. It is also the
responsibility of the generator to document that the blending does not
violate the dilution prohibition of Sec. 261.38(c)(6). This provision
states that the hazardous constituent and heating

[[Page 33795]]

value specifications cannot be met through dilution; i.e. they can only
be met through treatment which destroys or removes hazardous
constituents, or by the waste as-generated. See generally 61 FR at
15586-87 (April 8, 1996) (extending dilution prohibition in Sec. 268.3
to include combustion of inorganic wastes). Allowing blending to meet
the hazardous constituent or heating value specification simply
increases the amounts of hazardous constituents emitted when the fuels
are burned, and would increase these amounts above those emitted if
fossil fuels were burned instead. This is at inconsistent with the
whole premise of comparable fuels, and also is inconsistent with the
section 3004(m) hazardous waste treatment provisions (which, although
not directly applicable, articulate important overall statutory
objectives) which require hazardous constituents to be removed or
destroyed by treatment, not diluted. Chemical Waste Management v. EPA,
976 F. 2d 2, 16 (D.C. Cir. 1992). As noted earlier, such burning can be
viewed as part of the waste management problem, and EPA may validly
condition the exclusion to prevent that result.
    Blending of a hazardous waste pursuant to Sec. 261.38(c)(3) to
meets the viscosity specification obviously may be performed only in
regulated units: at a permitted RCRA treatment, storage facility; a
regulated interim status treatment, storage facility; or at a 90-day
generator unit meeting the requirements of Sec. 262.34.
4. Treatment
    Commenters also supported the proposal to allow a hazardous waste
to be treated to meet the comparable fuel specifications. Many of the
same commenters also expressed concerns that any treatment allowed
should reduce emissions of hazardous constituents, i.e. treatment must
destroy or remove the constituents or materials of concern. The Agency
agrees, and Sec. 261.38(c)(4) specifically states that only treatment
which destroys or removes hazardous constituents or materials is
permissible. Moreover, as noted above, the waste remains subject to
subtitle C control during treatment and thus treatment can only occur
in regulated units. (Treatment by blending to meet the viscosity
specification likewise can only occur in regulated units, for the same
reason.)
    It is the responsibility of the generator claiming the exclusion to
demonstrate eligibility. See generally Sec. 261.2(f). It should be
noted that just meeting the hazardous constituent, heating value and
viscosity specifications would not qualify a hazardous waste for the
exclusion; the implementation requirements of Sec. 261.38(c) (e.g.,
notices, certification, sampling and analysis, recordkeeping, etc.)
also must be satisfied for a hazardous waste to be excluded as a
comparable fuel. The person that treats the hazardous waste to generate
a comparable fuel must also demonstrate that the treatment of the
hazardous waste destroys or removes the hazardous constituents or
materials of concern from the waste. The treater must: (1) Document
that the unit that will treat the hazardous waste has been demonstrated
to effectively remove or destroy the hazardous constituents (at the
levels present in the waste) or materials of concern from the type of
waste being treated; or (2) treat the waste in a unit that removes or
destroys the constituents of concern, then reanalyze the waste, in
accordance with the requirements of Sec. 261.38(c)(8), to document that
the constituent specifications have been satisfied.
    If a hazardous waste is treated to produce a comparable fuel, only
the waste-derived fuel would be excluded from RCRA subtitle C
regulation upon a determination that it met the specification. The
hazardous waste would be regulated under Subtitle C from the point of
generation until the generation of a comparable fuel that meets the
exclusion specifications and implementation requirements. This means
that the generation, transport, storage, and treatment of the hazardous
waste, until exclusion as a comparable fuel, remains subject to
applicable Subtitle C regulations.
    In addition, residuals from the treatment of a hazardous waste
remain solid waste and, if hazardous, are subject to applicable
Subtitle C regulations. Thus, if comparable fuel is produced from
treatment of listed hazardous waste, the wastes from that process are
automatically hazardous by virtue of the derived from rule. (See the
derived-from rule in Sec. 261.2(d).)

F. Meeting the Syngas Specifications

    Commenters felt the proposal was not very specific in describing
ways in which a syngas fuel could be generated from hazardous waste.
The final rule makes clear that a hazardous waste can meet the syngas
fuel constituent and heating value specifications through the treatment
of the hazardous waste. As with comparable fuels, it is the
responsibility of the generator claiming the exclusion to demonstrate
eligibility. The treatment of a hazardous waste to generate a syngas
fuel can occur in either: (1) A unit subject to applicable Subtitle C
treatment, storage and disposal requirements (i.e., Parts Sec. 264,
Sec. 265 or Sec. 262.34); or (2) a recycling unit exempt under
Sec. 261.6(c).
    The generator of the syngas fuel must demonstrate that the
treatment of the hazardous waste destroys or removes the hazardous
constituent of concern from the waste. A generator of syngas fuel from
the treatment of hazardous waste must: (1) Document that the unit that
will process the hazardous waste has been demonstrated to effectively
remove or destroy the hazardous constituents of concern from the type
of waste being treated; and (2) process the hazardous waste in a unit
that removes or destroys the constituents of concern, then analyze the
waste in accordance with the requirements of Sec. 261.38(c)(8) to
document that the exclusion specifications have been satisfied. If a
hazardous waste is processed to produce a syngas fuel that meets the
exclusion specifications, only the syngas fuel would be excluded from
RCRA subtitle C regulation.
    In addition, residuals from the treatment of a hazardous waste to
generate an excluded syngas fuel remain solid waste and are subject to
applicable Subtitle C regulations if they are also hazardous wastes.
Residuals from the treatment of a listed hazardous waste to generate a
syngas fuel remain hazardous wastes due to the derived-from rule: the
residuals are derived from treatment of listed hazardous wastes.

G. Sampling and Analysis

    Commenters expressed concern that the Agency proposed: (1) To
initially require sampling and analysis for all Appendix VIII
constituents; (2) to require the use of SW-846 methods to conduct
sampling and analysis of Appendix VIII constituents; and (3) to also
require the use of the same methods for syngas as for comparable fuels.
In response to commenters concerns, the Agency is finalizing the
following approaches to sampling and analysis of comparable fuel and
syngas fuel.
1. Use of Process Knowledge
    A majority of commenters believed that EPA should allow the use of
process knowledge under limited circumstances in determining which
constituents to test for in the initial scan as well as any follow up
testing. The Agency agrees with commenters. Generators of hazardous
wastes should have adequate knowledge of their waste to allow the use
of process knowledge in determining which constituents may and may not
be present in their waste.
    The use of process knowledge may only be used by the original
generator of

[[Page 33796]]

the hazardous waste. If the generator of the hazardous waste and
generator of the comparable/syngas fuel are different, then the
generator of the comparable/syngas fuel may not use process knowledge
to determine that constituents are not present in the waste. The
generator of the comparable/syngas fuel, if not the original generator
of the hazardous waste, must test for all of the constituents and
properties in Sec. 261.38(a)(2) Table 1 of the regulations. This is
because the Agency believes that only the original generator may have
intimate knowledge of the constituents in the waste to make such a
determination. See Sec. 268.7, where EPA uses the same approach for
analyzing compliance with LDR treatment standards; see also Hazardous
Waste Treatment Council v. EPA, 886 F. 2d 355, 368-71 (D.C. Cir. 1989)
(upholding this approach).
    Therefore, the final rule allows the use of process knowledge under
certain circumstances. Today's rule requires testing for all
constituents except those the initial generator of the hazardous waste
determines should not be present in the waste. The following cannot be
determined to ``not be present'' in the waste: (1) A hazardous
constituent that causes the waste to exhibit the toxicity
characteristic for the waste or hazardous constituents that were the
basis for the listing of the waste; (2) a hazardous constituent
detected in previous analysis of the waste; (3) a hazardous constituent
introduced into the process that generates the waste; or (4) a
hazardous constituent that is a byproduct or side reaction to the
process that generates the waste.
    It is the responsibility of the original generator/comparable fuel
generator to document their claim that specific hazardous constituents
meet the exclusion specifications based on process knowledge.
Regardless of which method a generator uses, testing or process
knowledge, the generator is responsible for ensuring that the waste
meets all constituent specifications at all times. If at any time the
comparable fuel fails to meet any of the specifications, that fuel is
in violation of Subtitle C requirements.
2. Waste Analysis Plan
    As in the proposal, the final rule requires comparable fuel
generators to develop a waste analysis plan prior to sampling and
analysis of their hazardous waste to determine if the waste meets the
exclusion specifications. This is consistent with the usual requirement
throughout the Subtitle C rules that persons generating and treating
hazardous waste must prepare a waste analysis plan. See, e.g.
Sec. 264.13 (general waste analysis plans) and Sec. 268.7(a)(4)
(requiring even generators using 90-day units for treatment to prepare
waste analysis plans with respect to hazardous waste prohibited from
land disposal). To ensure that the chemical/physical measurements of
the waste are sufficient, accurate and precise, the Agency is requiring
comparable fuel generators to develop a waste analysis plan, and
suggest doing so in accordance with Agency guidance. Chapter Nine of
``Test Methods for Evaluating Solid Waste, Physical/Chemical Methods''
(SW-846) addresses the development and implementation of a
scientifically credible sampling plan. Chapter One of SW-846 describes
the basic elements to be included in a Quality Assurance Project Plan
(QAPP), as well as information describing basic quality assurance (QA)
and quality control (QC) procedures. Chapter Two of SW-846 aids the
analyst in choosing the appropriate methods for samples, based upon
sample matrix and the analytes to be determined.
    Comparable fuel generators may want to follow the SW-846 guidance
in developing their waste analysis plans. As specified in the
recordkeeping section of the rule (Sec. 261.38(c)(10)) the generator
also must have documentation of the: (1) Sampling, analysis, and
statistical analysis protocols that were employed; (2) sensitivity and
bias of the measurement process; (3) precision of the analytical
results for each batch of waste tested; and (4) results of the
statistical analysis.
3. Methods To Analyze Comparable Fuels
    In the proposal, EPA required the use of SW-846 methods for the
sampling and analysis of wastes to determine if the waste meets the
comparable fuel exclusion constituent specifications. Based on
commenter response and the Agency's overall increased use of
alternative methods to those specified in SW-846, the final rule allows
the use of alternate methods that meet the performance based criteria
in section Sec. 261.38(c)(8).
    The approach allows comparable/syngas fuel generators to 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 is unbiased, precise, and representative of the waste. For the
waste to be eligible for exclusion, a generator must demonstrate that:
(1) Each constituent of concern is not present above the specified
specification level at the 95% upper confidence limit around the mean;
and (2) the analysis could have detected the presence of the
constituent at or below the specified specification level at the 95%
upper confidence limit around the mean. (See Guidance for Data Quality
Assessment--Practical Methods for Data Analysis, EPA QA/G-9, January
1998, EPA/600/R-96/084).
    The Agency will consider that the exclusion level was achieved in
the waste matrix if an analysis in which the constituent is spiked at
the exclusion level indicates that the analyte is present at that level
within analytical method performance limits (e.g., bias and precision).
In order to determine the performance limits for a method, EPA
recommends following the quality control (QC) guidance provided in
Chapters One and Two of SW-846, and the additional QC guidance provided
in the individual methods.
    The Office of Solid Waste's (OSW) standing policy on the
Appropriate Selection and Performance of Analytical Methods for Waste
Matrices Considered to be ``Difficult-to-Analyze'' was stated in a
January 31, 1996 memorandum from Barnes Johnson, Director of the
Economics, Methods, and Risk Assessment Division, to James Berlow,
Director of the Hazardous Waste Minimization and Management Division.
The following excerpts are appropriate to this rulemaking.
    Inadequate recovery of target analytes from the RCRA-regulated
waste matrices of concern demonstrates that the analytical conditions
selected are inappropriate for the intended application. Proper
selection of an appropriate analytical method and analytical conditions
(as allowed by the scope of that method) are demonstrated by adequate
recovery of spiked analytes (or surrogate analytes) and reproducible
results. Quality control data obtained must also reflect consistency
with the data quality objectives and intent of the analysis.
    (a) For extractable organics in standard RCRA matrices, e.g.,
groundwater, aqueous leachates, soils, OSW considers a sample
preparation method appropriate for use if it generates an analyte
recovery of 70% or greater (Method 8270C, Sec. 1.1). For extractable
organics in ``difficult matrices'', e.g., sludges, ash, stabilized
wastes, OSW considers a sample preparation method appropriate for use
if it generates an analyte recovery of 50% or greater.
    (b) For volatile organics, using relative recoveries, i.e.,
standard curves established by purge-and-trap, or other

[[Page 33797]]

techniques for the preparation of standards, OSW considers a sample
preparation method appropriate if it generates a relative analyte
recovery of 80% or greater (Methods 8260B, 8015B).
    (c) For inorganic analytes in almost all matrices, an absolute
recovery and precision of 80-120% can generally be achieved with the
proper choice of acid digestion procedure and determinative method for
the analyte of interest.''
4. Syngas Waste Analysis Plan and Analysis Methods
    a. General. EPA is concerned that tested and generally accepted
methods may not exist for the sampling and analysis of gases from
pressurized systems that will ensure an accurate, unbiased, and precise
representation of the hazardous constituents present in the gas.
    Hazardous constituents present in a gas at high pressure and high
temperature may be difficult to analyze accurately due to possible
physical and chemical changes in the constituents when a sample is
drawn into a low pressure and temperature environment for analysis. For
example, some constituents, while present as a gas under high pressure
and temperature, may solubilize into liquids that have condensed or
adhere to the sampling components as the pressure and temperature drops
in the sampling device. If this were to occur, the analysis of the
sampled gas would not accurately represent the concentrations of the
constituents in the original gas.
    The Agency also shares the general concern stated in comments that
enforcement of the exclusion specifications could be compromised
because of the difficulty in applying or potential absence of accepted
sampling and analysis methods for these gases. Therefore, the final
rule requires syngas generators to submit for approval, prior to
sampling and analysis, a waste analysis plan to the appropriate
regulatory authority (see Sec. 261.38(c)(7)(iii)). At a minimum, the
plan must specify: (1) The parameters for which each hazardous waste
will be analyzed and the rationale for the selection of those
parameters; (2) the test methods which will be used to test for these
parameters; (3) the sampling method which will be used to obtain a
representative sample of the waste to be analyzed; and (4) 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; and
(5) if process knowledge is used in the waste determination, any
information prepared by the facility owner or operator in making such
determination.
    b. Analysis. A syngas fuel generator also may use the performance-
based approach (Sec. 261.38(c)(8)) to demonstrate that the performance
of the methods selected is appropriate to meet the exclusion
specifications (as described in 3 above). Guidance on demonstration of
appropriate method performance can be found in Chapter One of SW-846
and the Quality Control sections of the individual methods.
5. Non-Detects
    EPA proposed that for a waste to meet a non-detect standard, the
analysis must achieve a detection limit equal to or less than the EPA
specified number and also not detect the constituent of concern in the
waste (61 FR 17358). However, some commenters believe that the Agency
should develop numerical levels for each parameter in the benchmark
where results are ``non-detect.'' They are concerned that a potential
comparable fuel that has any measurable levels of Appendix VIII
constituents below the Agency's detection limits would not qualify as a
comparable fuel.
    The final rule maintains the proposed approach for non-detect
constituent specifications, except in the case of metals, hydrocarbons
and oxygenates (see Section C. above). The Agency believes that
allowing concentrations of constituents not found in the benchmark
fuels to be present in the comparable fuel is counter to the comparable
approach and could allow higher emissions of toxic compounds from
burning excluded waste than from benchmark fuels. Additionally,
commenters noted that the detection limit, referenced as the
``maximum'' detection limit, should more accurately be referred to as
the ``minimum'' detection limit that must be achieved. The Agency
agrees and the final rule requires that analysis for a constituent with
a specification of non-detect must: (1) Meet a detection limit at or
less than the minimum required detection limit listed for the
constituent; and (2) not detect the constituent of concern in the waste
(see Sec. 261.38(a) and (b)).
    Commenters also indicated that it may be difficult to achieve the
detection limits specified for the non-detect specifications. The
Agency continues to believe that the detection limits can be met. This
is due in part to the fact that the detection limits are primarily
based on the limits found for the No. 6 fuel oil analysis. EPA believes
that the matrix for No. 6 fuel oil is a more difficult matrix to
analyze than what the Agency believes will be the matrix for the
majority of comparable fuels--a light solvent matrix. In addition, to
assist generators who may have difficult matrices to analyze, the final
rule provides the latitude to use any method that will ensure an
unbiased and precise analysis of the waste.

H. Notification, Certification, and Documentation

1. Who Must Make the Exclusion Notification
    The person claiming that a hazardous waste meets the exclusion
criteria of this rule is known as the ``comparable fuel generator'' in
the case of excluded liquid fuel or ``syngas fuel generator'' in the
case of excluded syngas fuel. The comparable/syngas fuel generator need
not be the person who originally generates the hazardous waste. The
comparable/syngas fuel generator can be the first person who documents
and certifies that a specific hazardous waste meets the exclusion
criteria.
2. Notification Requirements
    Most commenters agreed with the proposal that a one-time
notification was appropriate; however, some commenters said that the
exclusion should not be self-implementing and should require some type
of review and approval by the implementing authority. The Agency
continues to believe that a one-time notification in combination with
the other requirements of this section, gives sufficient notice to the
regulating officials (i.e., State RCRA and CAA officials). Since this
is a self-implementing exclusion, in order to ensure delivery, the
notification must be sent certified mail and until the notification of
exclusion is received the waste is still a hazardous waste and must be
managed as such. Only after the receipt of such notification that the
hazardous waste-derived fuel meets the requirements of this rule is the
waste excluded and free to be managed in accordance with the
requirements for a comparable or syngas fuel. If a comparable/syngas
fuel generator loses its exclusion, the generator must renotify for the
exclusion, after coming into compliance with the requirements of this
section. If necessary the generator must also comply with any
applicable Subtitle C requirements for the waste.
    a. EPA Regional or State Notification. Prior to managing any waste
as an excluded comparable/syngas fuel under this section, the generator
must send to, in States not authorized to implement this Section, the
EPA Regional RCRA and CAA Directors, and, in authorized States, to the
State RCRA and CAA Directors. The notification of the exclusion claim
should be sent via

[[Page 33798]]

certified mail, or other mail service that provides written
confirmation of delivery. Notification of the RCRA and CAA Directors
will provide notification of the exclusion and appropriate
documentation to both the RCRA and CAA implementing officials. The
Agency's intent is for copies of the exclusion information to reach
both the RCRA and CAA implementing officials because of the nature of
this exclusion--a RCRA excluded waste being burned in CAA regulated
units. If the comparable/syngas is to be burned in a State other than
the generating State, then the comparable/syngas fuel generator must
also provide notification to that State's or Region's RCRA and CAA
Directors.
    The notification shall contain the following items: (1) The name,
address, and RCRA ID number of the person/facility claiming the
exclusion; (2) the applicable EPA Hazardous Waste Codes for the
hazardous waste; (3) the name and address of the units, meeting the
requirements of Sec. 261.38(c)(2), that will burn the comparable/syngas
fuel; and (4) the following statement signed and submitted by the
person claiming the exclusion or his authorized representative:
    ``Under penalty of criminal and civil prosecution for making or
submitting false statements, representations, or omissions, I certify
that the requirements of 40 CFR 261.38 have been met for all waste
identified in this notification. Copies of the records and information
required at 40 CFR 261.38(c)(10) are available at the comparable/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.''
    b. Public Notification. As a self-implementing exclusion effective
upon receipt of the notification by the implementing authority, there
is no decision prior to exclusion being made by the implementing
authority regarding the waste. The opportunity exists at all times for
the public to bring to the implementing authority's attention any
circumstance that might aid that authority in its monitoring and
enforcement efforts. The public, furthermore, would have the ability to
bring a citizen suit for a claimant's failure to comply with any
requirement of the exclusion. Based on comments received on the
proposal, the Agency believes that requiring the comparable/syngas fuel
burner to provide a simple public notification of an exclusion claim
would aid the public in its efforts. In most cases, the Agency believes
the burner will also be the generator of the fuel.
    Therefore, under the final rule, the comparable/syngas fuel burner
must submit for publication in a major newspaper of general circulation
local to the site where the comparable/syngas fuel will be burned, a
notice entitled ``Notification of Burning of Comparable/Syngas Fuel
Excluded Under the Resource Conservation and Recovery Act'' containing
the following information: (1) Name, address, and RCRA ID number of the
claimant's facility; (2) name and address of the unit(s) that will burn
the comparable/syngas fuel; (3) a brief, general description of the
manufacturing, treatment, or other process generating the comparable/
syngas fuel; (4) an estimate of the average and maximum monthly and
annual quantity of the waste claimed to be excluded; (5) name and
mailing address of the State or Regional Directors to whom the claim is
being submitted. This notification must be published in the newspaper
prior to the burning of the comparable/syngas fuel. Notification is
only necessary once for each waste stream excluded.
    c. Burner Certification. As proposed, the final rule requires
comparable/syngas fuel to be burned only in units subject to Federal/
State/local air emission requirements. The Agency believes that
limiting the burning of comparable/syngas fuels to industrial furnaces
or industrial boilers, or hazardous waste incinerators, along with a
certification from the burner, would ensure that the fuel was burned in
a unit subject to Federal/State/local air emission regulations.
Industrial furnaces or industrial boilers, or hazardous waste
incinerators are believed to be a universe of units that are capable of
handling comparable/syngas fuels and that would be subject to Federal/
State/local air emission requirements. In response to comments, the
Agency believes that these excluded hazardous wastes are best handled
and burned in the types of units specified in Sec. 261.38(c)(2). To
ensure that comparable/syngas fuels burned off-site are burned in a
unit specified in Sec. 261.38(c)(2) (see discussion below), the Agency
is requiring the generator to obtain from the burner a one-time
written, signed certification that: (1) The comparable/syngas fuel will
be burned only in an industrial furnace or boiler, or hazardous waste
incinerator subject to Federal, State, or local air emission
requirements; (2) identifies the name and address of the units that
will burn the comparable/syngas fuel; and (3) the state in which the
burner is located is authorized to exclude wastes as comparable fuels
(i.e., under the provisions of Sec. 261.38). This requirement coupled
with the requirement to notify the State or Regional Directors will
enable regulatory officials to take any measure that may be appropriate
to ensure that excluded fuel is burned in conformance with applicable
regulations and so does not become part of the waste management
problem.
    If the generator or burner intends to change the unit where the
comparable/syngas fuel is burned (i.e., burn a comparable/syngas fuel
in a unit that has not previously been included in a certification),
then prior to burning, the generator must again follow the requirements
for: (1) Obtaining a burner certification; (2) notifying the public;
and (3) submitting a revised notification to the State or Regional
Directors. Once the revised notification has been received by the State
or Regional Directors and the notification has been published in the
newspaper, the generator/burner may burn the fuel as an excluded waste.

I. Exclusion Status

    Some commenters requested clarification of the regulatory status of
the comparable/syngas fuel if the conditions of the exclusion were not
met. After the exclusion for a waste has become effective, the
conditions of the exclusion must continue to be met in order to
maintain the exclusion.
    Separate and distinct from any requirement or condition established
in this final rule, all generators--including comparable/syngas fuel
generators under this exclusion--have a continuing obligation to
identify whether they are generating a hazardous waste and to notify
the appropriate government official if they are generating a hazardous
waste. Section 3010; 40 CFR 262.11. If a comparable fuel claimed as
excluded under today's rule fails to meet the exclusion requirements of
sections Sec. 261.38(a)-(c), that comparable/syngas fuel and
subsequently generated comparable/syngas fuel would be required to be
managed as a hazardous waste--including compliance with all
notification requirements--until testing demonstrated that the waste
was below the exclusion specifications.
    A comparable/syngas fuel that is not ultimately burned remains a
hazardous waste and is subject to all applicable Subtitle C regulations
(unless another exclusion from RCRA applies). As stated

[[Page 33799]]

in the proposal, the only allowable treatment or disposal method for a
comparable/syngas fuel is burning. Any disposal method other than
burning is a RCRA violation, unless the comparable/syngas fuel is
properly managed as a hazardous waste meeting applicable Subtitle C
regulations. The implications of not burning are that any prior
management of the waste was subject to Subtitle C requirements.
    Excluded comparable/syngas fuel generators, transporters and
burners are subject to the speculative accumulation requirements under
Sec. 261.2(c)(4). Thus, there must be turnover of a given percentage of
comparable fuel stock each calendar year, and the persons holding such
fuels must be able to demonstrate that such turnover is occurring. See
Sec. 261.2(f). Since ultimate users are notified that they are
receiving comparable fuels, they may feasibly comply with this
requirement by documenting how much such fuel is received when it is
burned.
    If a generator knows or should have known that a waste fails to
meet the constituent specifications, the exclusion ends as of the point
of determination and the material must be managed as a hazardous waste.

J. Recordkeeping

1. General
    Some commenters believed that the recordkeeping requirements in the
proposal were excessive, while others felt they were too lenient. The
Agency, however, believes that because of the self-implementing nature
of this exclusion, maintenance of the proper information on-site is
essential to the proper implementation of the exclusion.
    The final rule requires the comparable/syngas fuel generator to
maintain the following files (see Sec. 261.38(c)(10)) at the facility
generating the fuel: (1) All information required to be submitted to
the State RCRA and CAA Directors as part of the notification of the
claim: (i) the name, address, and RCRA ID number of the person claiming
the exclusion; (ii) the applicable EPA Hazardous Waste Codes for the
hazardous waste; (2) a brief description of the process that originally
generated the hazardous waste and process that generated the excluded
fuel; (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 Sec. 261.38(8); (5) the results of all analyses and all
quantitation limits achieved for the fuel; (6) documentation as
required for the treatment or blending of a waste to meet the exclusion
specifications; (7) a certification from the burner if the waste is to
be shipped off-site; and (8) the certification signed by the person
claiming the exclusion or his authorized representative.
    The generator must also maintain documentation of the waste
analysis plan and the results of the sampling and analysis that
includes the following: (1) the dates and times waste samples were
obtained, and the dates the samples were analyzed; (2) the names and
qualifications of the person(s) who obtained the samples; (3) a
description of the temporal and spatial locations of the samples; (4)
the name and address of the laboratory facility at which analyses of
the samples were performed; (5) a description of the analytical methods
used, including any clean-up and sample preparation methods; (6) 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; (7) all laboratory
analytical results demonstrating that the exclusion specifications have
been met for the waste; and (8) 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 Sec. 261.38(c)(11) and also
provides for the availability of the documentation to the generator
upon request. These records and those required for off-site shipments
must be maintained for the period of three years. A generator must
maintain a current waste analysis plan during that three year period.
2. Off-Site Shipments
    The final rule requires that for each shipment of comparable/syngas
fuel a generator sends off-site for burning in an industrial furnace or
boiler, or hazardous waste incinerator, a record of the shipment must
be kept by the generator on-site. Because these fuels are not required
to be accompanied by a manifest, it is the Agency's belief, supported
by commenters, that to ensure that comparable/syngas fuels are
transported to and burned in only those units approved for such burning
some type of tracking mechanism is warranted. Therefore, the final rule
requires for off-site shipments the following information be maintained
by the generator on-site: (1) The name and address of the facility
receiving the comparable/syngas fuel for burning; (2) the quantity of
comparable/syngas fuel delivered; (3) the date of shipment or delivery;
(4) a cross-reference to the record of comparable/syngas fuel analysis
or other information used to make the determination that the
comparable/syngas fuel meets the specifications; and (5) the one-time
certification by the burner.

K. Transportation and Storage

    Commenters concurred with the Agency's belief that the Department
of Transportation (DOT) and the Occupational Safety and Health Agency
(OSHA) requirements for the transportation and handling of comparable/
syngas fuels will be adequate to ensure the safe management of these
excluded fuels. The final rule does not require comparable/syngas fuel
handlers to comply with the RCRA storage and transportation
requirements. It should be noted that excluded comparable/syngas fuel
transporters are required to comply with all applicable requirements
under the U.S. Department of Transportation regulations in 49 CFR parts
171 through 180.
    Anyone who stores an excluded comparable/syngas fuel (e.g.,
generator, transporter, burner) is required to comply with all
applicable requirements under the Occupational Safety and Health Agency
regulations in 29 CFR part 1910. The occupational safety and health
standards for flammable and combustible liquids can be found in Subpart
H--Hazardous Materials section 1910.106 and standards for compressed
gases in section 1910.101.

L. Comparable Fuels Exclusion and Waste Minimization

1. Introduction
    In its April 1996 NPRM (61 FR 17464), EPA solicited comment on the
effects of the comparable fuels provision on facilities' efforts to
promote pollution prevention and waste minimization measures (i.e.,
source reduction and environmentally sound recycling). In particular,
EPA wanted to determine the extent to which companies might: (1) Shift
from hazardous waste recycling practices to burning wastes as fuel in
broader markets; (2) continue to recycle these wastes for product
recovery; (3) undertake source reduction for those wastes currently
failing the comparable fuel specifications; or (4) continue to burn the
excluded waste fuel in either an hazardous waste incinerator, light
weight aggregate kiln, or cement kiln.
    EPA received many comments on this issue, most of which indicated
there

[[Page 33800]]

would probably be a shift from recycling toward combustion, but the
Agency received very little quantitative information that would allow
the Agency to assess the extent and impact of potential shifts.
Consequently, EPA used data from the RCRA Biennial Reporting System,
which is a census of waste stream information from all large quantity
hazardous waste generators, and the National Hazardous Waste
Constituent Survey (NHWCS), which contains data on the composition and
properties of waste streams for certain industries, to develop two
approaches for assessing the impacts of the comparable fuels provision
on pollution prevention and recycling. This approach is described in
the next section.
    The results of EPA's analysis conclude that about three-fourths of
hazardous wastes now meeting the comparable fuels specifications are
already being combusted; the remainder (about one-fourth) is recycled.
The 70,000 tons of hazardous wastes, that qualify for the comparable
fuels exclusion and are currently recycled annually, could shift to the
comparable fuels market, if all generators responded the same way, a
possibility which seems unlikely. This figure represents less than a
one percent annual increase in the amount of hazardous waste combusted,
but it represents a decrease of about 20% in the amount of hazardous
wastes recycled annually.
    If the comparable fuels provision were implemented alone, a 20%
decrease in recycling might appear to have a negative effect on
pollution prevention and waste minimization. However, as one commenter
pointed out, some generators will install pollution prevention and
waste minimization measures (i.e., to prevent high levels of
constituents from becoming part of the waste) in order to qualify for
the comparable fuels exclusion. This would have the effect of
increasing pollution prevention. Furthermore, EPA fully expects that
the increased cost of upcoming MACT standards will cause the regulated
community to seek cost effective pollution prevention and waste
minimization solutions to offset the higher costs (a response seen, for
example, in the RCRA land disposal restrictions program). EPA is
examining this effect in the regulatory impact analysis for the
upcoming MACT standards. On balance, the impact of the comparable fuels
provision on pollution prevention and waste minimization in the context
of MACT standards appears to be negligible.
2. Major Concerns of Commenters
    EPA received comments generally expressing either concerns or
support for the exclusion. There was some concern that the comparable
fuels exclusion would lead to combustion of spent solvents and other
high-energy wastes low in halogens and metals that would otherwise be
recovered as product. Conversely, others supported the exclusion
pointing to incentives it may create to source reduce and conserve
resources by replacing fossil fuels with comparable fuels. In addition,
concerns were raised over the role of energy recovery in the waste
management hierarchy, and the impact of fuel blending on comparable
fuels.
    Impact on Source Reduction and Recycling: Several commenters stated
that EPA failed to investigate whether the comparable fuels exclusion
would encourage combustion of wastes now being recycled. Some of these
commenters took positions on how the comparable fuels exclusion would
impact the recycling-combustion balance. One group claimed that the
comparable fuels exclusion would encourage combustion at the expense of
recycling. A smaller group of commenters stated that the comparable
fuels exclusion would offer an incentive for generators to use more
source reduction to lower the levels of toxic constituents to the
specification levels. The commenters provided little quantitative
information describing these changes.
    As noted above, EPA used data from the RCRA Biennial Reporting
System (BRS), which is a census of waste stream information from all
large quantity hazardous waste generators, and the National Hazardous
Waste Constituent Survey (NHWCS), which contains data on the
composition and properties of waste streams for certain industries, to
develop two approaches for assessing the impacts of the comparable
fuels provision on pollution prevention and recycling. Results from
both analyses indicate that about three-fourths of wastes likely to
meet the comparable fuel specifications are already combusted rather
than recycled, and that the remaining wastes could shift from the
current recycling market to the comparable fuels depending on the
economics and individual company preferences. The methodologies used
are summarized below. A full discussion of these analyses is provided
in the docket.
    Analysis #1: EPA searched the 1993 BRS data to identify waste
streams that would be most likely contain wastes that could meet
comparable fuel specifications for energy value and low levels of
contaminants. EPA focused its search on D001/ignitable wastes because
this waste typically contains spent nonhalogenated solvents. EPA also
used the BRS data to determine how these wastes were managed after
generation, and found that about three-fourths of D001 wastes are
combusted, while the remaining one-fourth goes to recycling for solvent
recovery.
    Analysis #2: Using waste stream specific laboratory analysis data
from the NHWCS, EPA identified those waste streams in the survey that
meet the comparable fuels specifications for about half of the recycled
wastes reported in the BRS. Using this data, EPA was able to estimate
the total amount of recycled wastes that could be comparable fuels, and
how much waste currently sent to combustion meets the comparable fuels
specifications. Analysis of these estimates indicates that about 75% of
waste streams meeting the comparable fuels criteria is combusted while
the remainder is recycled.
    The ``Economic Analysis Report for the Combustion MACT Fast-Track
Rulemaking'' (contained in the docket) predicts savings to generators
who can begin to combust hazardous wastes as comparable fuels rather
than as hazardous wastes. EPA believes this offers generators
incentives to achieve the comparable fuels specifications through
source reduction. However, since the costs of source reduction
initiatives vary widely from facility to facility, EPA could not
reliably estimate net cost savings that facilities could achieve by
turning hazardous wastes into comparable fuels through upstream source
reduction. Therefore we did not attempt such an estimation.
    In addition, many solvent recycling facilities could begin to
combust streams meeting the comparable fuels specifications instead of
continuing to recycle them. EPA's comparison of recycling costs and
revenues with costs for combusting these streams as comparable fuels
indicate that in many cases facilities may find the combustion option
more economical. Since solvent recycling costs and revenues vary
considerably from facility to facility and also fluctuate in time
according to the market values of virgin solvent (fuel costs also
fluctuate), EPA could not and did not estimate the extent of this
shift. Individual facilities may continue to recycle wastes rather than
combust them as comparable fuels.
    Recycling and the Waste Management Hierarchy: Some commenters
stated that letting wastes similar to fuels be burned is evidence of an
Agency preference for

[[Page 33801]]

combustion over recycling. EPA disagrees: The comparable fuels
exclusion is based on the fact that some hazardous waste fuels very
closely resemble fossil fuels and do not warrant the full slate of RCRA
Subtitle C controls. This does not suggest that the Agency has altered
its commitment to the hierarchy. The underpinning of the comparable
fuels exclusion is simply a determination on the degree of regulatory
oversight needed for fuel-like waste materials, which does not
translate to any change of view on the waste management hierarchy.
    Burning for Energy Recovery: Some commenters claim that burning for
energy recovery is waste minimization. While EPA is clearly providing
greater flexibility to burn wastes that closely resemble virgin fuels,
EPA distinguishes this from waste minimization. Waste minimization
includes source reduction and environmentally sound recycling, but does
not include any ``method, technique, or process, including
neutralization, designed to change the physical, chemical or biological
character or composition of any hazardous waste so as to neutralize
such waste, or so as to recover energy or material resources from the
waste, or so as to render such waste non-hazardous, or less hazardous;
safer to transport, store or dispose of; or amenable for recovery,
amenable for storage, or reduced in volume.'' (40 CFR 260.10)(emphasis
added).
    Blenders and Third Parties: Some commenters expressed concern that
EPA would allow blending of hazardous wastes to meet the concentration
specifications for a comparable fuel, thereby raising the issue of
dilution to avoid RCRA regulation. Similarly, commenters objected to
allowing third parties, such as fuel blenders, to handle and blend
wastes between generation and combustion. Commenters pointed out that
blending and third-party involvement would constitute impermissible
dilution. It would also undermine any incentive to minimize the volume
or toxicity of these wastes. The Agency agrees that blending hazardous
wastes to bring them within the comparable fuels concentration
specifications would constitute dilution which is not only
impermissible but also would likely inhibit waste minimization. Today's
rule explicitly prohibits any blending or other ``treatment'' which
does not remove or destroy hazardous constituents. Blending of two
wastes already meeting the comparable fuels specifications is, however,
allowed only to achieve the viscosity specification. The rationale for
this limited use of blending is discussed in that section of today's
preamble.
    Opportunities for Source Reduction: One commenter commented that
the Standards for the Management of Used Oil (40 CFR Part 279) offered
generators an incentive for keeping used oil streams clean by requiring
oil exceeding certain concentration specifications for metals and
chlorine to be managed as hazardous waste, and predicts that the
comparable fuels exclusion will result in similar incentives for source
reductions to achieve the comparable fuel exclusion criteria,
particularly for generators of D001 (ignitable) wastes. EPA agrees with
this view, but did not receive industry-specific information from
commenters with which to complete an analysis of this issue.

IV. RCRA Permit Modifications for Hazardous Waste Combustion Units

A. Introduction

    The Clean Air Act (CAA) sets a maximum time frame of three years
for facility owners or operators to comply with Maximum Achievable
Control Technology (MACT) emission standards once final standards are
published in the Federal Register. EPA expects that many facility
owners or operators will need to make changes to their process(es) in
order to come into compliance with the new standards. For facilities
operating under a RCRA permit, these changes may have to be
incorporated into the permit before they may be put in place at the
facility. To facilitate meeting the three year deadline, EPA is
revising the RCRA permit modification procedures to explicitly address
changes to a facility's design or operations that are necessary to
comply with the new MACT emission standards. The revised modification
process offers streamlined procedures that will help facility owners
and operators meet two compliance concerns--compliance with their RCRA
permits and compliance with the new MACT standards.
    EPA anticipates that a substantial number of requests to modify
facility design or operations will be submitted in a relatively short
period of time following promulgation of the final MACT standards.
Although the states could always use their current modification
process, the revised procedures offer a potentially more viable way for
states to handle the anticipated volume of requests in a more timely
manner.
    In most cases, state permitting agencies have been authorized by
EPA to issue and modify RCRA permits. Authorized states that wish to
implement the revised procedures may have to modify their state
procedures, consistent with today's rule, before they may use the
streamlined procedures to respond to MACT-related modification requests
from facility owners or operators. Once the final MACT standards are
promulgated, facility owners and operators have three years to begin
operating under the lower emissions levels. The Agency believes that
these three years are better used for processing modification requests,
and subsequently implementing the necessary changes, than for modifying
state regulations and going through the authorization process. By
promulgating the revised procedures on an expedited schedule (i.e.,
before the final MACT standards), EPA hopes to provide ample time for
states to develop comparable standards and obtain EPA authorization
before they need to process MACT-related modification requests from
facility owners or operators. It should be noted that states which
currently have temporary authorization procedures equivalent to the
federal 40 CFR 270.42(e) procedures may also use these, in many cases,
to approve facility changes needed to come into compliance with MACT
standards. However, these procedures would allow operation under the
modified conditions only up to 180 days (with a possible extension of
up to 180 additional days), followed by a full class 2 or 3 permit
modification. Therefore, EPA encourages states to adopt procedures
comparable to those in today's rule.
    Combining the streamlined modification procedures with the
expedited schedule for promulgating them sets up a procedural framework
to promote compliance with the MACT standards. But even this
combination does not guarantee that other factors will not ultimately
interfere with a facility's efforts to comply. As part of a common
sense approach to implementing, and enforcing, its programs, EPA would
like to make sure that the consequences of non-compliance are
commensurate with the causes. With regard to the three-year deadline
for operating under the lower emissions levels required by MACT, EPA is
further examining potential consequences of non-compliance,
particularly if the causes are beyond the facility's control (e.g., a
permitting agency's administrative procedures or workload cause delays,
necessary equipment is back ordered, or testing contractors are
unavailable). For example, the Agency is looking into the possibility
of using standard

[[Page 33802]]

enforcement procedures under the Clean Air Act (CAA), rather than
requiring more stringent consequences through regulations (e.g.,
requiring a facility to stop burning hazardous waste until it receives
a permit or revoking a permit). The potential consequences of non-
compliance are discussed in more detail in the Revised Technical
Standards for Hazardous Waste Combustion Facilities; Proposed Rule,
Notice of Data Availability (62 FR 24212, May 2, 1997).
    EPA is not going to pursue any of the three companion
implementation options discussed in the proposed rule (see 61 FR 17456,
April 19, 1996). Those options were intended to address possible permit
implementation conflicts which may have occurred if a State did not
become authorized to carry out the provisions of the proposed MACT rule
in time to handle necessary modifications. By promulgating the revised
modification procedures prior to the remainder of the proposed rule,
EPA anticipates that States will have adequate time to receive
authorization to process the requisite modifications. Thus, the need to
put in place a separate implementation mechanism no longer exists.
Today's rule does not address any of the longer-term implementation
options discussed in the proposed rule (e.g., placing the MACT
standards in a Clean Air Act permit, in a RCRA permit, or in both
permits). Implementation will be discussed in the final rule
promulgating revised standards for hazardous waste combustors.

B. Overview

1. Background on RCRA Permit Modification Procedures
    Section 3004 of RCRA requires owners and operators of facilities
that treat, store, or dispose of hazardous waste to comply with
standards that are ``necessary to protect human health and the
environment.'' EPA, or EPA-authorized States, implement these standards
by issuing RCRA permits to these types of facilities. Once a permit has
been issued to a facility, the facility must operate in compliance with
the conditions in the permit; any subsequent changes to the facility's
design or operations are incorporated into the permit in accordance
with the Agency's, or authorized State's, permit modification
procedures.
    EPA's regulations concerning permit modifications requested by
facility owners or operators are set forth in 40 CFR 270.42. The
regulations break the types of potential modifications into three
classes (see Sec. 270.42 Appendix I). Class 1 modifications cover
administrative or routine changes, including replacing equipment with
functionally equivalent equipment. They are relatively straightforward
and in most cases do not require Agency approval before being made.
Class 2 modifications cover somewhat more complex changes, for example,
to address common variations in the types and quantities of wastes
managed, where the changes can be implemented without substantially
altering the design specifications or management practices prescribed
by the permit. Class 3 modifications involve substantial changes to
facility operating conditions or waste management practices and are
subject to principally the same review and public participation
procedures as permit applications. Each class of modification request
requires varying degrees of facility preparation, Agency review time,
and public involvement. The various degrees have a significant impact
on the amount of time needed to put the change into effect. For
example, Class 1 modifications typically can be implemented in a very
short time, where Class 2 and 3 modifications may take several years.
    Prior to promulgating the Class 1, 2, 3 procedures, modifications
were divided into two categories, major and minor. States authorized to
implement the RCRA program were not required to adopt the Class 1, 2, 3
procedures, since they were considered less stringent than the
predecessor major/minor system. As a result, both systems are in use
today. EPA would like to point out that, in converting to the new
system, many of the modifications that had been designated as minor
were placed into Class 1, or Class 1 with prior Agency approval. EPA
presumes that modifications listed in Appendix I as Class 1, or Class 1
requiring prior Agency approval, are most likely processed as minor
modifications in states that continue to use that system.
2. Shortcomings of the Current Procedures
    EPA did not consider, in developing the modification classes and
procedures, that changes to RCRA permit conditions might be necessary
in order to comply with other environmental statutes. Similarly, the
Agency did not anticipate changes to comply with upgrades to existing
regulations (although the process was developed to include changes for
new regulations). EPA developed the Class 1 through 3 modification
scheme within the context of the RCRA program to provide both
incentives to facility owners and operators to pursue facility changes
that lead to improved management of hazardous wastes, and greater
flexibility for timely processing of change requests, e.g., by
tailoring the level of review to the type of change (see Permit
Modifications for Hazardous Waste Management Facilities; Final Rule, 53
FR 37912, September 28, 1988). EPA is now concerned, however, that the
RCRA permit modification procedures, as a practical matter, will not
allow enough time to meet statutory deadlines for implementing new
standards under the Clean Air Act.
3. How Today's Rule Impacts the Procedures
    EPA proposed several options for amending RCRA permit modification
procedures to accommodate the Clean Air Act requirement that facilities
comply with MACT standards within three years of publishing a final
rule in the Federal Register (61 FR 17454, April 19, 1996). In all five
of the proposed options, the Agency tried to balance the need to
develop a process that would enable facilities to comply with more
stringent emissions standards within the allotted time with the need to
provide adequate opportunities for public participation in the process.
The level of regulatory oversight that would take place under each
option was also discussed. The Agency requested comments on the
proposed options, as well as on any combinations thereof, or any other
feasible approaches.
    EPA has decided to finalize, with some adjustments, its originally
proposed recommended approach, i.e., to establish a new section in the
permit modification table for changes to existing permit conditions
necessary to come into compliance with MACT standards. This approach
best meets the Agency's objective of implementing a process that
enables facilities to meet the three year statutory deadline. This
approach also allows for public notification of the modification
request.
    Today's final rule establishes a new section in Appendix I of 40
CFR 270.42 for technology changes that are necessary for a facility to
achieve compliance with the MACT standards. The new section is
designated as Class 1 modifications, with prior Agency approval. As
such, the Agency will have an opportunity to review the proposed
physical and operational changes to the facility before they are
implemented, in order to ensure that these changes do not have other
undesirable consequences. Agency experience suggests that steps
intended to reduce emissions may not, in all cases, lead to overall
enhanced environmental protection. For example, decreasing combustion
temperature as a way to

[[Page 33803]]

decrease air pollution control device (ACPD) inlet temperature, in
order to reduce dioxin emissions could increase organic emissions by
allowing poor combustion.
    The new section in 40 CFR 270.42 Appendix I, specifically, section
L(9) ``Technology Changes Needed to Meet MACT Standards Under 40 CFR
Part 63 Subpart EEE--National Emissions Standards for Hazardous Air
Pollutants From Hazardous Waste Combustors,'' is limited to technology
changes to existing permits to allow a facility to come into compliance
with the new Part 63 standards. General retrofitting changes outside
the framework of meeting MACT-related technology, or subsequent changes
for maintaining compliance with Part 63 standards, are outside the
scope of this category. The permitting agency director will determine
whether the types of modifications requested qualify as ``technology
changes needed to meet standards under 40 CFR part 63 Subpart EEE.''
The Agency anticipates that the distinction between technology changes
necessary to allow a facility to operate under the lower emissions
levels and general retrofitting changes will be clear. EPA expects that
the same types of changes to comply with the MACT standards will be
needed at most facilities, thus the requests submitted under section
L(9) should be fairly uniform.
    EPA, in response to public comments, is also incorporating a time
default into the modification procedures for changes requested under
section L(9) only. Section 270.42(a) is being amended to add a
paragraph specifying that the permitting agency Director has 90 days,
with a possible one-time 30 day extension, to make a decision about
modifications requested under section L(9). If the Director does not
make a decision, then the permittee may consider the request approved.
EPA is also requiring owners or operators to comply with the
requirements for the Notification of Intent to Comply (NIC) (see 40 CFR
63.1211) in order to benefit from the streamlined modification process.

C. Discussion of RCRA Permit Modifications Procedures for Facilities
Coming Into Compliance With MACT requirements

1. Summary of Proposed Options
    EPA is in the process of developing final MACT standards imposing
more stringent (lower) emissions levels for hazardous waste combustion
activities; facilities will have to operate in compliance with these
standards within three years of their promulgation, with a possible one
year extension (for a total of four years). The Agency expects that a
large number of facilities will need to modify their design or
operations to meet the more stringent emissions standards required
under MACT. For example, incinerators that currently operate above the
MACT emissions standard for particulate matter (PM) might have to add
electrostatic precipitators (ESP) or baghouses to reduce emissions;
similarly, incinerators that need to reduce dioxin emissions to meet
the MACT standards may need to implement additional controls on
temperature or employ carbon injection; or light weight aggregate kilns
(LWAKs) with high acid gas emissions may need to add a control
technology, such as wet scrubbers.
    For these facilities to remain in compliance with their RCRA
permits, they will need to modify their permits to allow any design or
operational changes needed to achieve compliance with the MACT
standards. The Agency proposed five options for handling these ``MACT
related'' RCRA permit modifications. The options, which varied with
regard to the level of procedural requirements and administrative
review required, were: (1) Provide facilities with ``self-
implementing'' authority to proceed with necessary changes without
Agency review; (2) categorize the changes needed to comply with MACT
standards as Class 1 modifications that do not require prior Agency
approval; (3) categorize the changes as Class 1 modifications that do
require prior Agency approval (this option was discussed in the
proposal as the recommended option); (4) categorize the changes as
Class 1 modifications requiring prior Agency approval, but give the
Director authority to elevate change requests to Class 2; and, (5)
retain the current scheme for modifying the RCRA permits. Under the
current scheme, the MACT-related changes would likely be categorized as
Class 2 or 3 modifications.
2. Summary of Public Comments
    In general, there were three recurring themes in the comments
received by the Agency in this area. First, commenters expressed
concern about being able to meet the three year time frame. They cited,
as reasons, (1) that three years are insufficient to allow state
agencies to obtain authorization for the rule and to subsequently
process the anticipated volume of modification requests, and (2) that
the modification procedures themselves are too long. Secondly,
commenters emphasized the need to allow sufficient public
participation, but with the caveat that the modification process not be
unduly delayed by public participation activities (this being yet
another factor in potentially being unable to meet the three year
deadline). Finally, commenters were concerned that the consequences of
non-compliance are too severe (e.g., having to stop burning), given
that delays in achieving compliance could be the result of permitting
agencies being unable to process modification requests in a timely
manner (and not a consequence of the facility's activities).
    The Agency received a wide variety of comments on the options
themselves. Each of the proposed options received support, with most
commenters favoring the first three options for their more streamlined
procedures. A few commenters suggested that incorporating a time limit
into the modification review process would aid in coming into
compliance with the MACT standards. Many commenters expressed the
importance of developing a streamlined permit modification process that
would allow facilities to make the necessary technology upgrades in a
timely fashion, while retaining enough regulatory oversight to ensure
that the changes have a proper degree of ``buy-in'' by the permitting
agency. Some commenters expressed concern that options 4 and 5 would
delay implementation of MACT-related changes beyond the three year
deadline mandated by Congress. A few commenters preferred options 4 and
5 since they incorporate a greater degree of public participation into
the review process. Additionally, some commenters thought that options
4 and 5 might be more readily accepted by and implemented in authorized
States that chose to remain with the original permit modification
structure composed of minor and major changes. [Note: States were not
required to adopt the Class 1, 2, 3 structure since it was determined
to be less stringent than the major/minor structure.]
    Finally, some commenters requested that the Agency consider as a
possible alternative that a Class 3 modification could be reclassified
as Class 2 for the purposes of MACT compliance.
3. Response to Comments and Discussion of Final Provisions
    EPA agrees with commenters that streamlined modification procedures
for MACT-related changes are essential. The three year time frame for
complying with the MACT standards has been set by Congress; it is the
Agency's responsibility to ensure that facilities are able to comply
with those

[[Page 33804]]

requirements without violating other areas of their environmental
responsibilities, like their RCRA permit. As discussed earlier, EPA
anticipates that many facilities will need to make some changes to meet
the lower emissions levels imposed by MACT, and that these changes will
have to be incorporated into their RCRA permits. EPA does not want the
RCRA permit modification procedures to hinder a facility's ability to
comply with MACT.
    As discussed in the Section B.1. Background on RCRA Permit
Modifications Procedures, Class 1 modifications may be done quickly,
whereas Class 2 or 3 modifications may take several years to process.
The combination of the time normally required to completely process
Class 2 or 3 modification requests, and the anticipated volume of
requests from facilities striving to meet MACT emission levels, would
make meeting the three year deadline unrealistic. Permitting agencies
would not have the resources to meet the workload demand. This leads
EPA to concur with commenters on the need to embrace a more streamlined
approach than would be provided by options 4 or 5. Similarly, EPA chose
not to pursue the option suggested by some commenters to reclassify
changes from Class 3 to Class 2. A streamlined approach is consistent
with general efforts within the Agency (e.g., through the Permits
Improvement Team) to improve the permitting process by focusing on
performance standards rather than on a detailed review of the
technology requirements.
    The Agency acknowledges the validity of the concerns expressed by
some commenters that the options offering the more streamlined
procedures offer fewer opportunities for public participation. It is
important to strike an appropriate balance between streamlined
modification procedures that promote coming into compliance sooner with
more stringent standards and public participation. The Agency has
repeatedly emphasized its commitment to a common-sense approach to
permitting--one that minimizes regulatory burden and provides
flexibility to tailor activities to specific situations. In carrying
this commitment to today's rule, EPA wants to ensure three things; (1)
that the permit modification process is not an obstacle for complying
with the MACT standards; (2) that facilities are not forced to operate
outside of their permitted conditions in order to comply with MACT
standards; and (3) that public participation is not streamlined out of
the process.
    EPA believes that Option 3, with some modifications, provides the
best framework for meeting these objectives and responding to public
comments. This option was supported by many commenters, particularly
because the streamlined procedures will facilitate meeting the three
year deadline for complying with the more stringent emission levels.
There has been a precedent set in the past for streamlining the
modifications process. To ensure that facilities implemented timely
changes necessary to meet land disposal restriction (LDR) levels for
newly listed or newly identified hazardous waste, the Agency designated
the modifications needed to meet the LDR levels for newly identified
wastes as Class 1 modifications (see 54 FR 9596, March 7, 1989).
    The prior agency approval under Option 3 provides the regulatory
oversight requested by commenters, since the permitting agency will
have the opportunity to review the proposed physical and operational
changes to the facility before they are implemented. EPA concurs with
commenters who encouraged retaining some amount of regulatory oversight
in the modifications. As discussed previously, sometimes changes to one
part of a facility's design or operations that have a positive effect,
like reducing one type of emissions, may cause detrimental effects to
other parts of the facility's operations. It is important for
permitting agencies to have the opportunity to review proposed changes
to make sure they do not lead to other undesirable impacts.
    Some commenters expressed concern, however, that a facility's
ability to begin implementing the change(s) might be delayed by
requiring regulatory oversight (i.e., if the Agency failed to respond
to the request in a timely manner). EPA recognizes the validity of this
concern, given the anticipated volume of requests from facilities
striving to meet the new emissions standards; therefore, the Agency is
incorporating a time default for reviewing the requests into the final
modification process. The time default for review, codified in a new
paragraph 270.42(a)(4), specifies that if a determination to approve or
deny the Class 1 permit modification request submitted under item L(9)
is not made within 90 days (with the possibility of a one-time
extension for up to 30 days) from the time the request was received by
the permitting agency, the request is to be considered approved, and
the facility can proceed with the modification(s). In some situations,
the Director of the permitting agency may deny a request, for example,
if the request contained insufficient information upon which to base a
decision. The permittee could revise its request to address the
shortfalls and resubmit it to the permitting agency. Such a resubmittal
would initiate a new 90 day review period.
    EPA anticipates that the incorporation of the time default, coupled
with the fact that the revised modification procedures are being
promulgated on an expedited schedule, will alleviate commenters'
concerns about non-compliance. Although the consequences of non-
compliance are outside the scope of this rule, this approach
(streamlined modification procedures coupled with expedited
promulgation) establishes a procedural framework through which there is
a greater chance that permitting agencies will not cause undue delays
in facilities' compliance with the MACT standards. Under the new
streamlined process, permitting agencies should be able to process the
modification requests with sufficient time remaining for facility
owners or operators to make the changes within the three year time
frame.
    Some commenters expressed concern that option 3 does not provide
the same levels of public participation that would be available through
options 4 and 5. Those options would require facilities to request
Class 2 or 3 permit modifications for MACT-related changes. The
procedures for Class 2 and 3 modifications include public meetings,
notices, and comment periods. Class 1 modifications, even those
requiring prior Agency approval, only require that the facility owner
or operator send a notice of the change to the facility mailing list
within 90 days of approval being given.
    EPA is committed to enhancing public participation in all of its
processes, and has established additional requirements in today's rule
to provide opportunities, beyond the public notice requirements
associated with Class 1 (with prior approval) modifications, to involve
the public in permitting changes required to comply with MACT
standards. These opportunities are being incorporated into requirements
for a Notification of Intent to Comply (NIC), discussed in more detail
in Section V. One goal of the NIC development process is to promote
interaction between the facility and its host community, for example,
by requiring the facility to host an informal meeting with the
community before submitting the final NIC to the permitting agency.
Since the NIC must describe anticipated activities for coming into
compliance with the MACT

[[Page 33805]]

standards, the technology changes that trigger the RCRA permit
modification would be a natural component of the NIC and the public
meeting. EPA expects that the meeting will be similar in style and
intent to the pre-application meetings required under 40 CFR 124.31.
    The final rule requires facility owners or operators to complete
the NIC in order to benefit from the streamlined modification
procedures. This requirement means that owners or operators will need
to submit a final NIC either before, or at the same time as, they
submit the modification request. If they do not comply with the NIC
requirements, they will need to follow the otherwise applicable
modification scheme, i.e., the permitting agency Director will likely
reclassify their request to Class 2 or 3. EPA is not requiring
documentation in the modification request that the permittee completed
the NIC. Since both items are submitted to the permitting agency, EPA
assumes the permitting agency will be aware of whether the permittee
has indeed complied with the NIC requirements.
    EPA expects that information about anticipated changes to facility
design or operations to comply with the more stringent standards will
be included in the NIC, and thus will be available for public review
and discussion during the NIC public meeting. Through this meeting,
communities have an early vehicle for learning, among other things,
about potential changes to facility design and operations necessary to
meet the lower emission levels. Of course, in accordance with the
current requirements concerning Class 1 modifications, the permittee
must also inform the public about the modifications within 90 days of
their approval by the permitting agency (see 40 CFR 270.42(a)(1)(ii)).
    EPA would like to point out that although similar information about
facility design or operation changes may be included in both the NIC
and the modification request, the Agency does not believe it is
redundant to have both documents. The two have different purposes, and
the formats and levels of detail may differ accordingly. The
modification request would most likely differ from the NIC, since the
request has to tie directly to the permit itself. For example, the NIC
may talk in general terms about adding baghouses to reduce emissions,
but the modification request would have to specifically cite the
section(s) of the permit being modified to include information on the
baghouses.
    Today's requirements would not, of course, preclude additional
public participation activities beyond the regulations, where
appropriate on a facility-specific basis. At certain RCRA facilities,
in fact, permitting agencies and facilities have implemented a variety
of public involvement activities, such as additional fact sheets or
information availability sessions, that have helped affected
communities to understand and participate in permit decision-making.
EPA has published a practical how-to guidance manual designed to help
all stakeholders in the permitting process (permit writers, industry,
and communities) determine what types of public participation
activities might be helpful. The RCRA Public Participation Manual
(EPA530-R-96-007, September 1996) also offers tips on how to conduct a
wide variety of activities. Supplemental public participation
activities on a site-specific level, geared for a particular facility's
operations and tailored to meet the host community needs, could be used
to augment community understanding of the changes taking place to
comply with MACT standards. In closing, EPA would like to reiterate
that facilities are making changes to meet more stringent standards.
Requiring facilities to comply with lower emissions levels in a
relatively short time frame does offer significant benefits to public
health and the environment that the Agency believes communities will
generally welcome.
    In response to the comments that options 4 and 5 might be more
compatible with permit modification procedures in authorized states,
EPA is aware that States have to evaluate new regulations in terms of
their specific structures. Promulgating the revised modification
procedures in today's rule, however, will provide ample time for states
to obtain authorization before they actually begin processing
modification requests following promulgation of the final MACT
standards. EPA encourages states to expedite their requests for
authorization to implement the provisions in today's rule. EPA expects
that States using the Class 1, 2, 3 modification system would
incorporate the provisions by reference, and that States using the
major/minor system would incorporate the provisions as minor
modifications. As discussed in Section B.1. Background on RCRA Permit
Modification Procedures, many changes that were formerly classified as
minor were converted to Class 1, or Class 1 requiring prior Agency
approval. Thus, EPA believes it is consistent for states using the
major/minor system to incorporate this category of changes into the
minor classification.
    If the states cannot adopt an approach that ensures expeditious
implementation of the MACT standards, however, then the Agency expects
that changes necessary to comply with MACT standards may well be
accomplished under a compliance order, with a specified schedule to
come into compliance.

F. RCRA Changes in Interim Status Procedures

    RCRA facilities operating under interim status are allowed to
implement certain facility changes in accordance with requirements and
procedures set forth in 40 CFR 270.72(a). (Note: EPA anticipates that
the types of changes a facility may need to make to comply with the
MACT standards would be allowable under this section). Section
270.72(b) imposes a limit, however, by stating that the changes cannot
amount to ``reconstruction'' (defined in the regulation as ``when the
capital investment in the changes to the facility exceeds 50 percent of
the capital cost of a comparable entirely new hazardous waste
management facility''). As discussed in the preamble to the proposed
rule, the Agency does not anticipate that the costs to perform facility
changes necessary to come into compliance with the MACT standards would
exceed the 50 percent reconstruction limit. However, since the limit is
cumulative for all changes at the interim status facility, there could
conceivably be situations where the cost for MACT-related changes might
push a facility over the limit.
    To ensure that the reconstruction clause does not present an
obstacle for interim status facilities trying to implement changes to
meet the new emissions levels, the Agency proposed adding a new
paragraph to Sec. 270.72(b) exempting changes necessary to comply with
the MACT standards from the reconstruction limit. The Agency did not
receive any adverse comments, and so is finalizing this provision in
today's rule.
    It is important to note that facilities operating under interim
status will, like permitted facilities, be required to comply with the
NIC requirements. Thus, the public will have the opportunity to review
planned changes as part of the NIC and to participate in the public
meeting. EPA anticipates that owners or operators of interim status
facilities will hold the meeting and complete the NIC before proceeding
with any changes to facility design or operations necessary to comply
with the MACT standards.

[[Page 33806]]

V. Notification of Intent To Comply and Progress Report

A. Background

    In the proposed rule (61 FR 17358), the Agency requested comments
on strategies to identify and encourage or require affected sources to
comply with the final emission standards at the earliest possible date.
The Agency also asked for views on how best to determine when a source
can realistically conclude whether it will comply with the final
standards. A number of commenters suggested that the Agency require a
submission from affected sources that would identify whether the
facility intends to comply with the final standards, and outline the
procedures the facility would employ to achieve compliance. This
primary purpose of this submission (referred to by the commenters as a
``Notification of Intent to Comply'') would be to identify the sources
that will choose as a compliance strategy to stop burning hazardous
waste, so that those sources could be required to terminate waste
burning activities as soon as possible following the effective date of
the final Hazardous Waste Combustor (HWC) rule.
    Other commenters suggested that EPA require submission of a plan
that outlines the procedures a facility will follow to comply with the
final standards. However, the purpose of this submission would be to
begin an early process of communication between the public and the
facility through the public disclosure of the facility's compliance
strategy to meet the final HWC standards.
    The Agency reviewed these comments and found the suggestions for an
early notification persuasive. In the Notice of Data Availability
(NODA) published in the Federal Register on May 2, 1997 (Revised
Technical Standards for Hazardous Waste Combustion Facilities; Proposed
Rule, 62 FR 24241), EPA described its strategy to promote early
compliance planning through a Public and Regulatory Notice of Intent to
Comply (PRNIC). The discussion laid out a process by which an affected
source would be required to develop a draft document including
anticipated plans for coming into compliance with the new emissions
standards, hold an informal meeting with the public to discuss the
draft planning document, and to subsequently provide a final planning
document to the permitting agency. The information to be covered in the
document and during the meeting would include such topics as a
description of waste minimization and pollution control technique(s)
being considered and their effectiveness, a description of emission
monitoring techniques being considered, and an outline of key dates for
activities the source would need to accomplish in order to operate
within the MACT standards.
    The intended purpose of the PRNIC, as described in the NODA, was
twofold. First, the PRNIC was intended to provide for public
involvement in a source's compliance planning process. EPA envisioned
that this involvement would also serve to offset public participation
opportunities that may be ``lost'' if a source is able to take
advantage of the new streamlined RCRA modification procedures for HWCs,
since modifications required under RCRA would naturally be part of the
source's overall plan for achieving compliance with the standards.
Secondly, the PRNIC would provide an expeditious notice to the
permitting Agency as to whether sources would be able to come into
compliance with the new standards. Having information about plans for
compliance might prove helpful to permitting agencies in planning the
most efficient use of their resources during the three year compliance
period.

B. Summary of Final Provisions

    EPA is moving forward with an early compliance planning
requirement. However, the final rule contains certain changes from the
PRNIC discussed in the NODA; the Agency has revised the requirements
based on public comments received following the NODA's publication and
based as well on the original proposal. EPA is finalizing new
requirements in Sec. 63.1211 for facility owners and operators to
develop and submit a Notification of Intent to Comply (NIC), and in
Sec. 63.1212 to develop and submit a Progress Report. Section 63.9(h)
``notification of compliance status'' requires facilities to submit
such notification when a source becomes subject to a relevant CAA
standard. As such, today's requirement is an enhancement of this
requirement to give notification of intent to comply prior to the three
year compliance date of the emissions standards. The source can use the
NIC to notify either the source's intent to come into compliance with
the new standards, or the source's intent not to come into compliance
with the new standards. The NIC must be submitted to the permitting
agency within a year of the final standards being promulgated, and the
Progress Report within two years.
    As proposed, the primary purpose of the NIC is to serve as a
planning and outreach tool for achieving compliance with the MACT
standards. The contents of the NIC, set forth in Sec. 63.1211(a)(1),
are similar to those presented in the NODA discussion on the PRNIC with
modifications based on comments received on the NODA. Also as discussed
in the NODA, sources will have to make a draft of the document
available to the public as part of the process of developing the NIC.
They will also have to provide notice of and conduct an informal
meeting with the public to discuss anticipated plans for achieving
compliance with the standards. The purpose of the Progress Report is to
help permitting agencies determine if sources are making reasonable
headway in their efforts to come into compliance. In deciding on this
approach to compliance planning--the NIC followed by the Progress
Report--EPA determined (1) that one year is sufficient time for a
source to establish its general ``plan of attack'' for achieving
compliance, and (2) that during the second year a source should be well
on its way to making necessary modifications, if it plans to meet the
MACT limits, or to making alternate arrangements for handling the
hazardous waste, if it does not intend to meet the MACT limits.
    The final rule does not contain provisions for updates to the final
NIC following a significant change in the facility's implementation
strategy, as considered in the NODA. Since the Agency decided to
implement a requirement for a Progress Report at the end of the second
year, there is no purpose served by having a revised NIC. EPA
anticipates that any significant changes to a facility's compliance
plan would necessarily be reflected in the Progress Report.

C. Discussion of Public Comments and Final NIC Provisions

1. General.
    The majority of commenters supported the concept of early
compliance planning, particularly with regard to the public involvement
component. Those advocating early involvement indicated that the PRNIC
concept appears reasonable, not overly burdensome, and represents a
positive step to ensure public involvement in the MACT process. Many
lauded the Agency's effort to bring the spirit of the recently
promulgated RCRA enhanced public participation requirements (see 69 FR
63417 (Dec. 11, 1995)) to the MACT arena and the strong RCRA goal of
public participation for decisions involving permitted hazardous waste
management facilities (RCRA section 7004(b)). Commenters opposing the

[[Page 33807]]

additional public involvement required as part of the PRNIC development
process stated that the activities (e.g., the public meeting) would
create more controversy and impose additional burdens on both sources
and permitting agencies at a time when they will be faced with a
substantial workload. Some commenters expressed concern that the
additional activities would provide no real benefit, since neither the
permitting agencies nor the public have authority to disapprove of a
source's chosen control options, as long as the source operates within
the MACT limits. One commenter noted that the concept of a PRNIC was
unprecedented for CAA sources; they said a PRNIC was not required under
the CAA and it was beyond EPA's authority to impose such a requirement.
    The Agency agrees with commenters who recognize the value of early
public involvement. EPA has repeatedly emphasized its commitment to
enhancing public participation in all of its programs (see National
Waste Minimization and Combustion Strategy and Enhanced Public
Participation Rule). Experience has shown that hazardous waste
combustors spark a tremendous amount of legitimate public interest;
many communities have expressed a desire to be involved at all stages
of combustor operations and permitting activities. Given this
background, EPA fully expects the promulgation of the final MACT
standards to receive significant and appropriate public scrutiny. As
one commenter points out, HWCs are already subject to RCRA regulations,
and many of them operate under risk-based permits that were subject to
extensive public review. EPA anticipates that the fact that HWCs will
now be regulated under CAA is likely to remain of vital interest.
People will know that new emissions limits are being imposed, and will
want to know how the source plans on meeting them. The NIC provides
this information, and the NIC meeting opens the door for the public to
communicate directly with the owners or operators.
    EPA does not share the concern expressed by commenters that the
public involvement activities impose a substantial burden with no
commensurate benefit. The effort associated with drafting a NIC and
holding the NIC meeting is not overly burdensome. Facilities will most
likely need to compile the information for their own uses, in order to
effectively decide which compliance option(s) they will pursue. Making
the information available to the public and discussing it during an
informal meeting could provide benefits in many areas, even if the
permitting agency and the public do not have the authority to approve
or disapprove of the compliance method(s) ultimately selected. For
example, it could save time and money at the end of the permitting
process. Talking to people early on about what can and cannot be
accomplished in a given situation, asking their input on decisions that
need to be made, and explaining the rationale behind decisions that
have already been made, can lead to fewer challenges on draft permit
conditions. EPA also believes the public could provide useful
information to owners or operators that might contribute to a quality
plan for achieving compliance with the MACT standards. The level of
knowledge on environmental matters exhibited by the public (at public
meetings, in correspondence, for example) appears to be increasing. As
the public's knowledge base grows, so might the quality of input they
can provide into technical decisions.
    EPA disagrees also that there is no precedent for the concepts
inherent in the NIC, and that EPA does not have authority to impose
such a requirement. Since EPA has chosen to provide the maximum amount
of time for compliance allowed under the CAA (3 years), requiring
sources to identify their compliance plans is particularly appropriate.
As stated before, EPA is committed to enhancing public involvement in
environmental matters. Providing the compliance plans to the public is
one of many ways the Agency is implementing this policy. Precedent for
early public involvement has been set both in the Agency's Hazardous
Waste Minimization and Combustion Strategy and in the enhanced RCRA
public participation requirements promulgated in December, 1995 (see 69
FR 63417, December 11, 1995).
2. Purpose of the NIC
    As discussed in the background part of this section, the original
purpose of the PRNIC was to promote public involvement and to assist in
compliance planning. Commenters supported these goals, which continue
to be the compelling motives for adopting the NIC requirement. The
primary purpose of the NIC is thus to serve as a planning tool for
achieving compliance with the MACT standards. In other words, the NIC
is designed to ensure that facility owners or operators get an early
start on evaluating their options for meeting the new standards, and to
serve as a vehicle for public involvement. EPA's intent is to
facilitate dialogue regarding a facility's compliance strategy. The NIC
also serves the purpose of having sources identify to the regulators
and the public their intent to comply or not to comply with the
applicable emission control requirements of this Subpart. The NIC and
public meeting will foster mutual understanding of the compliance
options, including consideration of both technical (e.g., equipment
changes to upgrade air pollution control devices) and operational (e.g,
process changes to minimize waste generation) alternatives. Ideally, it
will also result in the selection of a method that will meet the goals
of both the facility and the community.
    The NIC will not serve as a basis for requiring facilities to cease
burning hazardous waste if they intend to comply with the emission
standards of this Subpart. If, however, a facility indicates in its NIC
that it does not intend to meet the emission standards of this Subpart,
then the source must stop burning hazardous waste within two years of
the standards being promulgated. This requirement is discussed in more
detail in Section D. Discussion of Public Comments and Progress Report.
EPA would like to clarify that its intent has never been to shut a
source down completely. The source might be required to cease burning
hazardous waste; however, it would not be precluded from burning non-
hazardous waste or other alternative fuels. However, those sources who
indicate in the NIC their intent not to comply with the applicable
emission control requirements of this Subpart will be required to stop
burning hazardous waste within two years of the effective date of the
emission control requirements.
    Although the NIC will not be used to cause sources to stop burning,
there are enforceable requirements associated with it. Sources must
provide a draft NIC for public review, advertise and conduct an
informal meeting, and submit a final NIC to the permitting agency. If
these activities do not take place within the time frames specified in
the regulations, sources will be in violation of the requirements, and
subject to appropriate enforcement action. The key milestone dates
contained in the schedule submitted with the NIC are not enforceable,
however; the requirement to submit a schedule containing key dates is
the enforceable requirement.
    Finally, one commenter suggested that the NIC be used to identify
RCRA permit conditions that would ``disappear'' when MACT limits are
set. EPA is not using the NIC for this purpose. EPA will address
permitting

[[Page 33808]]

schemes, and the process for transitioning from a RCRA permit to a
Title V permit, in the final rule promulgating MACT standards for HWCs.
The NIC is not the appropriate vehicle for accomplishing this task.
3. Timing
    In the PRNIC discussion in the May 2, 1997 NODA, EPA said that the
final PRNIC would be due to the permitting agency within 270 days
following the effective date of the final MACT standards. A draft of
the document would have to be available within 210 days, and at least
30 days before the informal public meeting was to be held.
    Although several of commenters considered the time frame too long,
many others said it would be difficult to prepare a quality compliance
planning document so quickly. They also expressed concern about meeting
with the public at such an early stage. The commenters' position was
that any draft plan put together within 7 months after the standards
are finalized would be tentative only. They were reluctant to go to the
public with a tentative plan that was likely to change significantly
before it was final.
    EPA agrees with commenters that the time frames are tight. In order
to be operating within the new limits by the end of the compliance
period, it is imperative to start the planning process immediately. In
recognition of commenters' concerns about preparing the draft plan, EPA
is extending the time frames in the final rule. In accordance with the
provisions in Sec. 63.1211, the final NIC will be due to the permitting
agency within one year of promulgation of the final standards. The NIC
meeting must be held no later than 10 months following promulgation,
and the draft NIC made available at least 30 days before the meeting is
held. So, facilities basically have 2 extra months to prepare a draft
document, and 3 extra months to submit a final NIC to the permitting
agency. The revised time frames should provide sufficient time not only
to prepare the initial draft, but also to revise it, as appropriate, to
reflect discussions from the public meeting and final engineering
decisions about the source's operation.
    The Agency understands the concerns expressed by commenters about
sharing draft material with the public. However, EPA does not expect,
nor should facilities or the public expect, the draft NIC to describe
all of the technical aspects of the compliance options in extensive
detail. Similarly, discussion of the options at the public meeting
should not focus on minute details. The purpose of sharing the draft
and discussing the options at the public meeting is to capture major
ideas in a planning document, to facilitate dialogue regarding a
facility's compliance strategy, and to discuss possible courses of
action. The information in the draft NIC should be sufficient to
stimulate this level of discussion. The more in-depth technical
discussion can be incorporated into the final document. Since all
sources are required to have the final NIC submitted to the permitting
agency one year after the final standards are promulgated, anyone may
request a copy of it from the permitting agency at that time.
4. NIC Meeting
    EPA is requiring facilities to provide notice of and host an
informal meeting with the community to discuss anticipated plans for
complying with the MACT emissions standards (see Sec. 63.1211(b)). The
meeting must take place within 10 months of the final standards being
promulgated. At least 30 days before the meeting takes place, the
facility must provide public notice of the meeting, and must make the
draft NIC available for public review.
    Commenters were generally supportive of EPA's intent to require a
public meeting to discuss compliance planning. Some commenters had
specific concerns, ranging from the timing issues addressed above, to
the methods for providing notice, and the potential for being required
to conduct several redundant meetings to meet various purposes.
    EPA had listed three mechanisms in the NODA for providing notice of
the public meeting: a display ad in a newspaper, a sign at the
facility, and a broadcast announcement. These were the same mechanisms
used to provide notice of the RCRA pre-application meeting, and EPA
believes they are appropriate for the NIC meeting as well. At least one
commenter thought the mechanisms were too broad, and that a notice via
newspaper and a sign at the facility would be enough. Another commenter
suggested that a notice be sent to the facility mailing list as well.
EPA decided not to limit the notice methods for the NIC meeting, but
did add the facility mailing list to the methods in Sec. 63.1211(b)(3).
Each of these notices must include the date, time and location of the
meeting, a brief description of the purpose, a brief description of the
facility, a statement asking people who need special access to notify
the facility in advance, the name of a contact for the NIC, and a
statement describing how the draft NIC can be obtained.
    Commenters who were concerned about redundant public meetings
described a few possible scenarios. For example, in states that do not
adopt the streamlined RCRA modification procedures a facility might be
required to conduct a public meeting as part of a Class 2 or 3 RCRA
modification, as well as the NIC meeting. Federal facilities might have
public meeting requirements under the National Environmental Policy Act
(NEPA). Other facilities might be facing RCRA pre-application meetings,
either for initial permits or those up for renewal. Or, some facilities
might have routine meetings scheduled with communities as part of
Responsible Care or Good Neighbor agreements.
    It is not EPA's intent in imposing the NIC meeting requirement to
create duplicative requirements for public meetings. To do so would
burden both the facility and the public. Everyone's time is valuable,
and most people would probably prefer not to go to several meetings if
one will do. EPA recognizes this, and would like to clarify that
nothing in today's rule precludes a facility from combining meetings as
long as the purposes of each are served. EPA sees combining events,
particularly public involvement activities, as a first step in moving
towards a multi-media approach to environmental management. Thus, if a
facility has to complete a class 2 or 3 RCRA modification because it is
located in a state that has not adopted the RCRA streamlined
modification process, EPA would expect, and fully encourage, the
facility to set up one meeting that would serve both the RCRA
requirements and the CAA NIC requirements. The same is true for
combining the NIC meeting with a RCRA pre-application meeting, if the
facility has to host one for either an initial RCRA permit or because
its permit is up for renewal, or with other types of public meetings
the facility may have scheduled.
    A few commenters expressed concerns about responding to public
comments on the draft NIC, either during or following the public
meeting. They cited time as the driving reason for this concern; they
suggested their time would be better spent finalizing their plans for
complying than formally responding to comments. One commenter noted
that it was unclear in the NODA whether the draft NIC would be
available prior to the meeting. In response, EPA would like to clarify
that facilities are not required to formally respond to any comments,
oral or written. However, it is important to keep in mind that the
public may request a copy of the final NIC, and will

[[Page 33809]]

be reviewing the facility's final plans for coming into compliance.
Facilities must also submit a summary of the meeting to the permitting
agency as part of the final NIC, so the permitting agency will be
apprised of the discussions that took place. EPA believes that this
provides incentive for the facility to address any significant issues
raised by the public in the NIC meeting.
    EPA expects that the exchange between the facility and the
community that takes place during the meeting will be much like it is
for RCRA pre-application meetings. That is, the Agency intends for the
meeting to provide an open, flexible and informal occasion for the
facility and the public to discuss various aspects of the facility's
compliance strategy. The Agency anticipates that the facility and the
public will share ideas, and build a framework for a solid working
relationship. The final NIC should reflect, to the extent appropriate,
ideas or suggestions raised by the public.
    The final provisions in Sec. 63.1211 clarify that the draft NIC
must be made available to the public at least 30 days before the
meeting is to take place. This will provide sufficient time for people
to review the facility's intended strategy. EPA did not prescribe in
the regulations the manner in which the draft NIC must be provided.
There is not a ``one-size-fits-all'' approach to getting information
out to the public. It is more logical to allow the facility to make
that decision in the context of their particular situations. For
example, if a facility has an information repository established, the
draft NIC may be made available there. Or they could make it available
upon request, since the name, phone number, and address of the NIC
contact must be in the meeting notice.
5. Relation Between NIC and Other Notification Requirements
    The requirements for the NIC are being promulgated in a new subpart
applicable to HWCs in the Part 63 CAA regulations. Several commenters
did not believe it necessary to add these new requirements, arguing
that existing provisions under both the CAA and RCRA would fulfill the
purpose of the NIC. They cited the initial notification requirements in
Sec. 63.9(b), the notifications of compliance status in Sec. 63.9(h),
Title V permit application requirements in Sec. 70.5(c), and RCRA
public involvement requirements in Sec. 270.42 (permit modification
procedures).
    EPA has reviewed the requirements in each of these sections, and is
not persuaded that the information or the timing of the submittals are
sufficient to meet the objectives of the NIC. In terms of the
information, the NIC actually seems to fall between the initial
notification and the notification of compliance status. The information
included in the NIC supplements the initial notification requirements
in 40 CFR Part 63.9(b). The initial notification requirements in
Sec. 63.9(b) address basic information such as name and address of the
owner and the source, and a brief description of the source. The focus
is on the source as it exists, not as it may need to be modified to
meet new standards. The information in the NIC provides this next
step--it focuses on what types of changes might have to take place in
order to achieve the emission limits set by MACT. The types of changes
may be physical, such as adding or replacing air pollution control
devices, or they may be operational, for example, achieving lower
emissions by minimizing the waste generated elsewhere that is
subsequently used as fuel for the combustor.
    The information required in the NIC will enable the public to
engage in a meaningful dialogue about the facility's compliance
strategy, including a discussion of the various options under
consideration. For example, when a facility identifies and describes
the type of control technique(s) being considered, it would be ideal
for the facility to have examined all of the waste minimization and/or
pollution control options available, including emission control through
process modification, feed restriction, and pollution control
equipment, (e.g., Hg control by production process changes, recovery,
segregation, feedrate restriction, carbon injection, carbon bed, wet
scrubbing, etc.). The compliance notification requirements in
Sec. 63.9(h), on the other hand, have a different objective. They focus
not on options for coming into compliance, but rather on how compliance
will be demonstrated and monitored.
    EPA chose not to tie the NIC requirements to the Title V permitting
process. In terms of timing, the Title V process may not always be
appropriate. It is important to keep in mind that MACT standards set
forth in Part 63 are self-implementing; activities associated with them
often take place outside of the permitting process. When MACT standards
are promulgated, sources must begin adhering to the regulations,
regardless of where they stand in the Title V permit process. For
example, sources that already have Title V permits do not have to
reopen them until renewal, if they are within 3 years of the expiration
date. This time frame obviously is too long to meet the goals of the
NIC. In addition, Title V permits contain all applicable requirements
for all sources at a facility. To use the Title V process just for
hazardous waste combustors is not practical.
    The Agency has also determined that the information requirements
for Title V applications do not meet the spirit of the NIC. Like the
Sec. 63.9(h) compliance notification requirements, the Title V
information does not address options for achieving compliance,
particularly with regard to waste minimization and pollution prevention
techniques being considered. Of course, the NIC is not intended to be
the primary vehicle for waste minimization or pollution prevention
planning. EPA expects that these are ongoing areas of exploration for
facilities. EPA does expect, however, that to the extent these may be
used to achieve compliance with the MACT standards, facilities will
investigate them as viable options and will discuss them as such with
the public.
    Some commenters suggested that facilities having to follow Class 2
or 3 RCRA permit modification procedures (e.g., because they are
located in states that do not adopt the RCRA streamlined modification
procedures) not be required to submit a NIC, since public meetings are
a required step in those procedures. Another suggested that RCRA
interim status facilities not be subject to NIC requirements, because
they are not ``losing'' any public involvement in a modification
process (since they have no permit to modify). EPA disagrees with these
suggestions. The NIC is broader in scope than just facility
modifications that may have to be incorporated into a RCRA permit or
that may be accomplished by following the procedures in 40 CFR
270.72(a) for allowable changes under interim status. The NIC is
intended to lay out for discussion the source's overall plan for
achieving compliance; this goal is relevant regardless of whether the
facility is operating under a permit or under interim status. Facility
changes under RCRA would just be one piece of the overall document, and
one segment of the public discussion. As stated in the previous
section, however, there is nothing in today's rule that precludes a
facility having to follow Class 2 or 3 permit modification procedures
from combining the public meeting required as part of the modification
process with the public meeting required as part of the NIC process.
EPA would expect, and fully encourage, a facility in this situation to
set up one meeting that would serve both purposes.

[[Page 33810]]

D. Discussion of Public Comments and Progress Report

1. Overview
     The Clean Air Act requires the Administrator to establish a
compliance date or dates for each category or subcategory of existing
sources, which shall provide for compliance as expeditiously as
practicable, but in no event later than 3 years after the effective
date of such standard, except as provided via a one year extension. CAA
section 112(i)(3). EPA believes that compliance as expeditiously as
practicable will have numerous benefits for human health and the
environment. In particular, for those sources that do not intend to
ultimately come into compliance with the emission standards of this
Subpart, expeditious compliance would be achieved by ceasing to burn
hazardous waste. The Agency anticipates that numerous sources will
choose not to come into compliance with the requirements of this rule,
and will cease burning hazardous waste prior to issuance of the rule or
at some later date, but prior to the compliance date. This section is
intended to expeditiously limit the burning of hazardous waste by those
sources who do not intend to come into compliance with the requirements
of the emission standards of this Subpart, but continue to burn
hazardous waste after the effective date of the emission standards of
this Subpart. These sources are, quite simply, able to meet the
standards earlier than the three years allowed for sources which will
continue to burn hazardous waste. Thus, for this class of facilities,
EPA is creating a means of compliance ``as expeditiously as
practicable'' (CAA section 112(i)(3)).
    In the April 1996 proposal, the Agency invited comment on how
sources could be identified and strategies that could be used to
encourage or require these types of sources to comply at the earliest
possible date. Several commenters suggested methods to require sources
to identify their intent to comply or not comply with the emission
standards soon after the promulgation of the final rule for these
standards. They also suggested that those sources that did not intend
to come into compliance would be required to stop burning hazardous
waste.
2. Summary of Progress Report Requirements
    The Agency has adopted in the final rule a variation of the concept
commenters suggested along the lines of the April 1996 concept EPA
proposed. The final rule requires those sources subject to the rule to
signify in their NIC an intent to comply or not to comply with the
requirements of the emission standards of this Subpart. Sources who
make the decision not to comply with the rule must stop burning
hazardous waste on or before two years after the effective date of the
emission standards of this Subpart. The Agency believes that two years
is an adequate length of time for these sources to arrange for
alternate management of their hazardous waste through process changes
to minimize the waste, use of alternate on-site management, or the use
of off-site management. Those sources who intend to come into
compliance with the emission standards will have the full three years
to come into compliance as intended by the statute.
    The sources who do not intend to comply with this rule must include
in their NIC a schedule that includes key dates for the steps to be
taken to stop burning hazardous waste. Key dates include the date for
submittal of RCRA closure documents. The types of closure documents
that would need to be submitted will most likely vary depending on the
source's status. For example, if a source is in interim status, it may
need to submit a closure plan. If the source is permitted, it will
probably need to update its closure plan (that is part of the permit);
thus, the ``document'' may be a permit modification request.
    a. Submittal. Commenters suggested that sources submit progress
reports to track source's actions toward compliance. The Agency also
believes that a progress report would be a useful tool to evaluate a
source's progress toward compliance. In the final rule, EPA requires
those sources to submit to the regulatory authority a progress report
on or before two years after the effective date of the emission
standards of this Subpart. Any sources burning waste on and/or after
two years following the effective date of the emission standards of
this Subpart will be required to submit a progress report.
    b. Demonstration. The Agency believes that any source which intends
to come into compliance with the emission standards of this Subpart,
except for those sources in compliance on the effective date of the
emission standards of this Subpart, will be required to make
modifications to the source to come into compliance. To gauge the
progress of these modifications, the final rule requires sources to
submit with their progress report information demonstrating that the
source has: (1) Completed engineering design for any physical
modifications to the source needed to comply with the emissions
standards of this Subpart; (2) Submitted applicable construction
applications to the applicable regulatory authority; and (3) Entered
into a binding contractual commitment to purchase, fabricate, and
install any equipment, devices, and ancillary structures needed to
comply with the emission requirements of this Subpart. Those sources
which fail to make this demonstration in their progress report or who
fail to submit a progress report shall stop burning hazardous waste on
or before the date two years after the effective date of this Subpart.
    Because the types of modifications that sources will have to make
are anticipated to require the commitment of substantial resources,
sources are required to demonstrate that they have entered into a
binding contractual commitment to purchase the resources necessary to
make those modifications. Some examples of binding contractual
commitments follow; however, EPA may judge other demonstrations
adequate on a case-by-case basis. In some cases, EPA will allow
evidence of an in-house construction plan to satisfy the demonstration.
If on-site labor by facility personnel will be used, a statement of
commitment must be provided by upper management, and such other
evidence of a commitment as is available, such as company memoranda or
annual budgets committing funds, purchase orders, or copies of
contracts with any suppliers of equipment or materials. EPA expects
that, in most cases, sources will use off-site resources in their
modifications. To demonstrate commitment in these cases, sources must
provide copies of binding contracts with companies to perform tasks or
supply equipment that will facilitate bringing the source into
compliance.
    There may be a limited number of sources who intend to come into
compliance, but will not need to undertake any of the activities
identified in the demonstration criteria above to do so. These sources
are required to submit instead documentation: (1) Demonstrating that
the source, at the time of the progress report, is in compliance with
the emissions requirements; or (2) specifying the steps that will be
taken to bring the source into compliance, without undertaking any of
the activities identified in the demonstration criteria. The Agency
anticipates that few if any sources will not need to enter into binding
contracts in order to come into compliance with the emission standards
of this Subpart.
    Those sources who indicated in the NIC their intent not to comply
with the

[[Page 33811]]

emission control requirements of this Subpart must still submit a
progress report. These sources, however, must only indicate that they
have stopped burning hazardous waste and have submitted the required
RCRA closure documents.
    c. Schedule. To determine that facilities are undertaking the steps
necessary to come into compliance by the compliance date, the progress
report shall contain a schedule. This schedule must take into account
the key dates listed in 63.1211(a)(1)(ii) for projects that will bring
the source into compliance with the emission standards. The schedule
must cover the time frame from the submittal of the progress report
through the compliance date of the emission standards. EPA is requiring
that the following key dates, as applicable to each source, be
contained in their schedule: (1) Bid and award dates for construction
contracts and equipment supply contractors; (2) milestones such as
ground breaking, completion of drawings and specifications, equipment
deliveries, intermediate construction completions, and testing; (3) the
dates on which applications were submitted for or obtained operating
and construction permits or licenses; (4) the dates by which approvals
of any permits or licenses applied for are anticipated; and (5) the
projected date by which the source will be in compliance with emission
standards. The Agency anticipates that many sources will be able to
update the schedule included with their NIC in submitting a schedule
for the progress report.
    d. Sources That Do Not Intend To Comply. The Agency anticipates
that some facilities, which intended to comply at the time of their NIC
submittal, may make the determination not to comply based on
engineering studies or evaluations by the time of their progress report
submittal. Those sources that signify in their progress report,
submitted on or any time before two years after the effective date of
the emission standards of this Subpart, their intention not to comply
with the requirements of this Subpart must stop burning hazardous waste
on or before the date two years after the effective date of the
emissions standards of this Subpart. Sources who, at the time of their
NIC submittal, have any belief or concern that they may decide not to
comply with the emission standards should consider planning alternate
waste management alternatives well in advance of the two year stop
burning deadline.
    e. Facilities with Multiple Sources. Commenters stated that some
facilities may have multiple units at the same site subject to the MACT
requirements. These facilities may decide to bring a portion of the
sources into compliance and cease burning hazardous waste in the other
portion of their sources. If a facility did decide to upgrade one or
more units, it may be necessary to utilize the remaining unit, in which
it intended to stop burning hazardous waste prior to the compliance
date, to handle the capacity of the unit being upgraded until the
installation of controls was complete. The commenters believed that it
was unjustified to close a source at the two year deadline in the case
where a source: (1) Was designated for closure at or before the three
year compliance date; and (2) was handling the waste from another on-
site source being upgraded to comply with the MACT standards or in
order to install source reduction modifications eliminating the need
for further combustion of wastes.
    The Agency agrees that the intent of the requirement for sources
that did not intend to comply to stop burning hazardous waste should
not apply to these types of sources. Therefore, the requirement to stop
burning hazardous waste at the two year deadline does not apply to a
source if: (1) The source was designated in the NIC as a source that
would stop burning hazardous waste on or before the compliance date;
and (2) the source was shown in the NIC to be necessary to handle the
capacity of another on-site source while that source was unable to
handle the waste and undergoing modifications to come into compliance
with the emission standards of this Subpart or in order to install
source reduction modifications eliminating the need for further
combustion of wastes.

E. Certification

    To ensure that information submitted by a source is true and
accurate, all NIC and progress reports submitted shall contain the
following certification signed and dated by an authorized
representative of the source: ``I certify under penalty of law that I
have personally examined and am familiar with the information submitted
in this document and all attachments and that, based on my inquiry of
those individuals immediately responsible for obtaining the
information, I believe that the information is true, accurate, and
complete. I am aware that there are significant penalties for
submitting false information, including the possibility of fine and
imprisonment.''
    An authorized representative should be a responsible corporate
officer (for a corporation), a general partner (for a partnership), the
proprietor (of a sole proprietorship), or a principal executive officer
or ranking elected official (for a municipality, State, Federal, or
other public agency).

F. Extension of the Compliance Date

    The CAA provides sources that intend to come into compliance, but
because of the need to install controls will not meet the compliance
date, the ability to request an extension of the compliance date for
one year. The Agency believes facilities that choose to install process
changes (which are essentially pollution prevention or waste
minimization measures) and/or other controls that are appropriate for
meeting MACT standards are eligible to request a one year extension of
the compliance date to install these controls (CAA Section
112(i)(3)(B)). Facilities that request an extension to install
pollution prevention and/or waste minimization measures may use part
63.1216 below, which describes the pollution prevention related
information to be submitted. Facilities that request an extension for
installing only end-of-pipe emission controls may use part 63.6(i)(4)
requirements. In either case, the extension request shall be filed at
least one year prior to the compliance date of this Subpart.

G. Sources Which Become Affected Sources After the Effective Date of
This Subpart

    The Agency is concerned that there may be sources who become
subject to the emission standards of this Subpart after the effective
date of the emission standards of this Subpart. The following is
intended to clarify the requirements and time frames that must be met
by such sources. A source which begins to burn hazardous waste after
the effective date of the emission standards of this Subpart, therefore
becoming an affected source, but prior to 9 months after the effective
date of the emission standards of this Subpart, shall comply with all
the requirements of this section and associated time frames for public
meetings and document submittals.
    A source which intends to begin burning hazardous waste after 9
months after the effective date of the emission standards of this
Subpart, therefore becoming an affected source, shall meet all the
requirements concerning the NIC and progress report prior to burning
hazardous waste. Such sources shall make a draft NIC available, notice
their public meeting, hold their public meeting, and submit a final NIC
prior to burning hazardous waste. Such sources also shall submit their
progress report at

[[Page 33812]]

the time of the submittal of their final NIC.

VI. Waste Minimization and Pollution Prevention

A. Overview

    Pollution prevention is widely recognized as the most preferable
form of environmental management. Indeed, the Clean Air Act, the
Pollution Prevention Act, and the Resource Conservation and Recovery
Act explicitly make pollution prevention the preferred tool in our
nation's environmental management toolbox. The States have been strong
leaders as well in moving pollution prevention to the forefront. Over
the past decade, 30 states have passed legislation that promotes
pollution prevention.<SUP>18</SUP> Those States have embarked on a
variety of programs that move pollution prevention more into the
mainstream of their environmental management strategies--ranging from
pollution prevention based permits and inspections, to mandatory
pollution prevention planning programs, to voluntary partnerships and
technical assistance. Nearly every State operates some form of
pollution prevention technical assistance program to help companies
reduce as much waste as possible at the source.
---------------------------------------------------------------------------

    \18\ Pollution Prevention 1997, A National Progress Report
(June, 1997). U.S. Environmental Protection Agency, EPA 742-R-97-00,
Washington, D.C.
---------------------------------------------------------------------------

    EPA has embarked on several experimental programs, including, for
example, Project XL and the Common Sense Initiative, to identify
barriers in Federal regulations that impede cleaner, cheaper, smarter
environmental solutions, and to demonstrate ways of redrafting
regulations to provide greater flexibility in solving environmental
problems.
    In 1994, EPA began an extensive outreach effort to begin
identifying pollution prevention barriers and incentives affecting
hazardous waste combustion. Over the course of the past four years, EPA
has worked extensively with the States, industry, environmental groups,
and citizens, in many dozens of discussions and correspondences to
explore a broad range of approaches to pollution prevention in the
combustion arena. Today's rulemaking puts in place several incentive
based pollution prevention and waste minimization incentives that
derive from that long term effort, and that will provide the regulated
community with additional flexibility to use pollution prevention
technologies where it makes sense to do so. Some barriers were
identified that are not easily solvable within the limits of the Clean
Air Act, such as time limits on compliance that sometimes force
companies to install end-of-pipe emission controls, instead of
pollution prevention process changes, because they are faster and less
risky to install. Nevertheless, today's rule suggests an approach that
can address even this problem.
    Today's rule contains incentives that provides the regulated
community:

--several months of planning time before the MACT compliance period
begins to explore cost effective pollution prevention alternatives that
might reduce the cost of hazardous waste combustion,
--the opportunity to extend the compliance period by one year where the
additional time is needed to install pollution prevention controls that
reduce the amount of hazardous waste entering combustion units, and
--the opportunity to engender public support on pollution prevention
alternatives that reduce the amount of waste that will be combusted.

    The six pollution prevention alternatives EPA published for
comment, the comments received and a description of the incentives
contained in today's rule are discussed further below.

B. Background

    The goals of the Clean Air Act clearly express Congress' intent to
use pollution prevention as a fundamental tool for protecting our
nation's air resources:
    ``A primary goal of this chapter is to encourage or otherwise
promote reasonable Federal, State, and local government actions,
consistent with the provisions of this chapter, for pollution
prevention.'' (Clean Air Act, Section 101 (c)).''
    ``Air pollution prevention (that is, the reduction or elimination ,
through any measures, of the amount of pollutants produced or created
at the source) * * * is the primary responsibility of States and local
governments.'' (Clean Air Act, Section 101 (a)(3)).''
    Congress' intent in the CAA is consistent, if not identical, to the
policies set in the Pollution Prevention Act of 1990 (PPA) and the
Hazardous and Solid Waste Amendments to RCRA of 1984, RCRA Section
1003(b) and Section 6602 (a).
    More specifically, we note the definition of pollution prevention
as used in the CAA is best captured in the operational definition used
in Section 112 (d)(2). This section requires EPA to consider pollution
prevention techniques in addition to ``end of pipe'' emission controls
and other methods in the setting of MACT standards. Pollution
prevention is used here to include: ``measures, processes, methods,
systems, or techniques including, but not limited to, measures which *
* * (A) reduce the volume of, or eliminate emissions of, such
pollutants through process changes, substitutions of materials or other
modifications, * * * or (D) are design, equipment, work practice, or
operational standards (including requirements for operator training or
certification) * * *''
    To avoid some of the historical confusion that has occurred over
the definitions of pollution prevention and waste minimization, it is
useful to compare the CAA definition to those in the PPA and in the
Hazardous and Solid Waste Amendments to RCRA of 1984.
    The PPA (at Section 6603(5)(A)) defines pollution prevention as
source reduction activities, which includes any practice that reduces
the amount of hazardous substance, pollutant or contaminant entering a
waste stream, or otherwise prior to recycling, treatment or disposal.
It includes such activities as: equipment or technology modifications,
reformulation or redesign of products, substitution of raw materials,
improvements in work practices, maintenance, training, and inventory
control. The meaning contained in the PPA is essentially the same
meaning referred to in Section 112(d)(2) of the CAA. Both focus on
reducing waste generation at the source by making changes in the way
things are manufactured.
    The PPA excludes from pollution prevention any practice which
``alters the physical, chemical, or biological characteristics or the
volume of a hazardous substance, pollutant, or contaminant through a
process or activity which itself is not integral to and necessary for
the production of a product or the providing of a service.'' (Section
6603(5)(B). In essence, this definition excludes waste management,
recycling (except for closed loop recycling that is integrated into
production processes), burning for energy recovery, waste treatment,
and disposal.
    Since many of the facilities affected by today's rulemaking are
simultaneously regulated by RCRA, it is important to also explain the
use of the term waste minimization, under RCRA.
    Waste minimization includes pollution prevention (or source
reduction) and environmentally sound recycling, i.e., recycling that
does not constitute disposal (see 40 CFR 261.1(c)). It does not include
treatment--i.e, any ``method, technique, or process, including
neutralization,

[[Page 33813]]

designed to change the physical, chemical or biological character or
composition of any hazardous waste so as to neutralize such waste, or
so as to recover energy or material resources from the waste, or so as
to render such waste non-hazardous, or less hazardous; safer to
transport, store or dispose of; or amenable for recovery, amenable for
storage, or reduced in volume.'' (40 CFR 260.10). RCRA also contains
requirements for hazardous waste generators and permitted waste
management facilities to make routine certifications that they have a
``waste minimization program in place,'' and large generators must also
report waste minimization activities biennially.
    The environmental literature and public statements of many
companies provide strong evidence of the potential benefits to industry
and the environment that result from using pollution prevention over
waste generation and management. For example, pollution prevention
techniques can help companies reduce the amount of raw materials
purchased and the amount of waste generated. These reductions can
reduce the amount spent on waste management and can also reduce worker
exposure to hazardous substances. Pollution prevention can help
companies improve product yield and find ways to recover materials that
might otherwise be destroyed or landfilled.
    The literature also points to barriers that may impede a company's
ability to pursue pollution prevention. Barriers may include, for
example: little or no access to technical information on pollution
prevention technologies, concern over the impact of process changes on
product quality, a lack of access to capital, requirements in existing
environmental regulations that conflict with pollution prevention
objectives.
    Today's regulation focuses on reducing several potential regulatory
barriers that could interfere with pollution prevention solutions. The
incentive based approach contained in today's rule is explained further
below.

C. Summary of Proposed Pollution Prevention/Waste Minimization
Incentives and Comments Received

    EPA requested comment on six alternatives for promoting pollution
prevention and waste minimization at hazardous waste incinerators,
cement kilns and LWAKs. Three were proposed in the Agency's April 1996
NPRM and three were proposed in the Agency's Notice of Data
Availability (NODA) published in the Federal Register on May 2, 1997
(Revised Technical Standards for Hazardous Waste Combustion Facilities;
Proposed Rule, 62 FR 24241). All six incentive based alternatives were
designed to promote the identification and installation of pollution
prevention and waste minimization techniques that reduce or eliminate
the amount and/or toxicity of hazardous wastes entering combustion
feedstreams, either as an alternative to end-of-pipe combustion
measures, or in combination with combustion measures, to meet MACT
standards.
    Two of the six alternatives proposed focused on using waste
minimization facility planning as a tool that would cause regulated
facilities to identify pollution prevention/waste minimization measures
that could be used to reduce the amount and/or the toxicity of
hazardous wastes entering combustion feedstreams. Two additional
alternatives focused on extending compliance deadlines to allow
additional time for companies to fully explore pollution prevention/
waste minimization measures and combustion measures that may be
necessary to meet MACT standards. A fifth alternative requested comment
on an approach that would harness the power of public involvement
during the initial stage of corporate compliance planning. The sixth
alternative proposed promulgating pollution prevention and waste
minimization incentives several months before the MACT standards are
promulgated--which would provide companies several months of advance
planning time before the MACT compliance period begins. The
alternatives were not designed to be exclusive. Today's rule
promulgates a combination of three of these options, encourages States
to adopt two others, and recommends an alternative voluntary approach
for the sixth. The options, comments received and EPA's response to
major comments are discussed below. EPA's response to each comment is
contained in the docket.
    EPA received over 40 comments on the options contained in the April
1996 NPRM and the NODA. Most of the commenters addressed one or more of
the following topics:

--Time-based incentives, including the opportunity to enter into
enforcement agreements beyond four years,
--The effectiveness of pollution prevention planning and planning
criteria,
--Perceived effectiveness of pollution prevention in the context of
this rulemaking,
--Setting MACT standards based on pollution prevention/waste
minimization,
--Public review of pollution prevention and waste minimization,
--The role of pollution prevention and waste minimization in waste
management,
--The definition of pollution prevention and waste minimization, and
--Applicability of pollution prevention incentives to commercial
facilities.

    EPA asked for comments on the appropriateness of two options
requiring pollution prevention/waste minimization facility planning.
One option would require facilities to complete a waste minimization
facility plan that identifies alternatives for reducing the amount of
hazardous waste managed by combustion. While this approach would not
require facilities to select any particular pollution prevention
technology, it presumes that going through the process of exploring
alternatives would cause a company to consider more pollution
prevention options than they would have otherwise and select any that
are cost-effective.
    In the second waste minimization planning option, EPA proposed to
allow States and EPA Regions (in cases where States are do not have an
approved CAA Title V program) to require pollution prevention planning
on a case-by-case basis. Determining which facilities should be
required to complete a pollution prevention/waste minimization facility
plan could take into account several factors, including, for example,
whether an existing state program had already accomplished this
objective, the extent to which this requirement may be too burdensome
for some states, and the extent to which facility specific conditions
indicate emissions could be controlled by feed stream management and
waste minimization at the source.
    A variety of commenters addressed this issue. Four states and one
state association commented pollution prevention/waste minimization
should be the highest priority waste management approach, though they
had diverse and sometimes conflicting opinions about the specific
options proposed. One State commented that mandatory planning should be
required for all facilities that generate and combust waste on-site,
and that planning should be required on a case-by-case basis for
commercial off-site combustion facilities. One State and the State
association stated that the mandatory planning requirement should be
expanded to include all facilities that generate waste managed by
combustion. A fourth State said that no waste minimization incentives
should be included in this rule because the

[[Page 33814]]

regulated community has had many years to reduce waste generation
through pollution prevention/ waste minimization, and should have
already considered waste minimization as an approach to compliance. One
state did not comment specifically on the pollution prevention planning
options but was in favor of encouraging pollution prevention incentives
in this rule.
    This diversity of opinion among States leads EPA to believe that
the pollution prevention/waste minimization incentives contained in
this rule must allow broad flexibility for State programs. EPA is also
aware, from discussions outside the context of this rulemaking, that
some states are specifically opposed to mandatory pollution prevention
requirements, and a few states have not yet established pollution
prevention programs.
    Several dozen comments were received from industry. Most of the
comments from companies who generate and combust waste on-site were in
favor of pollution prevention/waste minimization as the most desirable
form of waste management. However, most were opposed or silent
regarding required pollution prevention planning. Only one argued that
mandatory pollution prevention planning is not appropriate, and that
the case by case option provides greater flexibility and is therefore
more appropriate.
    Commercial combustion facilities generally oppose pollution
prevention planning requirements because they have virtually no control
over what types or how much waste their customers generate for
combustion. However, one company argued strongly for the Agency to
require mandatory pollution prevention planning by all regulated units
to identify pollution prevention alternatives that eliminate or reduce
the amount and toxicity of combusted wastes. The commenter further
argued that pollution prevention should be used to leverage the closing
of combustion units where wastes could more effectively be eliminated
or reduced. Another commercial company believes EPA should implement
``good actor'' incentives for companies that educate their customers
regarding available waste minimization resources. Such incentives could
include reduced inspection frequencies, reduced performance testing,
and a recognition program. This approach was not suggested by any other
commenters. EPA believes this approach might be appropriate for further
exploration at a later time. One Federal agency commented in favor of a
case-by-case approach.
    EPA considered several factors regarding this approach. First, the
CAA clearly envisions States as the primary implementers of the Title V
program, and the pollution prevention programs operated by the States
are clearly diverse. While 15 States have enacted mandatory pollution
prevention planning programs, the remaining States continue to
emphasize voluntary pollution prevention programs and technical
assistance to encourage pollution prevention.
    Available data shows that mandatory pollution prevention planning
can be an effective State tool. It is not clear how effective this
approach would be for a broad array of states. In a review of seven
states that have chosen to implement mandatory pollution prevention
planning programs, the National Pollution Roundtable concludes that
mandatory pollution prevention planning produces beneficial results for
the regulated community and the environment, and encourages other
states to consider this direction.<SUP>19</SUP> However, New Jersey
(one of the seven States reviewed) notes in a separate report that its
companies began making significant reductions through pollution
prevention well before the State passed legislation requiring mandatory
pollution prevention planning. In this case, the State is not able to
pinpoint why this occurred.<SUP>20</SUP>
---------------------------------------------------------------------------

    \19\ ``Facility Pollution Prevention Planning Requirements: An
Overview of State Program Evaluations,'' National Pollution
Prevention Round table (August 8, 1997), Washington, D.C. 20036.
    \20\ Aucott, M., Wachspress, D., & Herb J., (May, 1996).
``Industrial Pollution Prevention in New Jersey,'' New Jersey
Department of Environmental Protection, Trenton, N.J.
---------------------------------------------------------------------------

    Of the 21 commercial hazardous waste incinerators and the 141 on-
site hazardous waste incinerators (i.e., incinerators co-located with a
company manufacturing facilities), 58 percent are located in states
which have legislated pollution prevention programs already in place.
Nearly all of the remaining facilities are located in States that
provide pollution prevention technical assistance. In addition, all of
these facilities are co-regulated by RCRA and have been required since
1984 to certify on an annual basis, that they have a waste minimization
program in place. Therefore, it is not clear what additional pollution
prevention benefits would result from a mandatory requirement. Based on
its analysis, EPA believes that a federal requirement for pollution
prevention planning is not appropriate.
    EPA also considered the impact Federal pollution prevention
planning requirements would have on the Agency's paperwork reduction
commitments. EPA is committed to decreasing its information collection
request budget. In light of the baseline requirements and voluntary
programs States have already established in this area, EPA concludes
this requirement would increase federal paperwork without necessarily
creating a commensurate improvement in environmental quality.
    EPA has also expanded the availability of voluntary pollution
prevention incentives available--which in turn reduce the need for
mandatory federal pollution prevention requirements. For example, EPA
has recently released the ``Waste Minimization Prioritization Tool.''
<SUP>21</SUP> This tool is an easy-to-use computer program that allows
industrial, government and public users to quickly identify their
highest hazard wastes as targets for pollution prevention efforts. The
tool allows the user to enter information on particular waste streams
and develop a screening-level assessment of chemicals based on their
persistence, bioaccumulation potential, and human and ecological
toxicity. The system ranks about 900 chemicals that have ``complete''
data on chemical persistence, bioaccumulation potential, and human and
ecological toxicity, and it includes partial data for 3,800 others.
This tool has received much review and is targeted for widespread
distribution in the regulated community.
---------------------------------------------------------------------------

    \21\ ``Waste Minimization Prioritization Tool, Version 1.0:
User's Guide and System Documentation,'' (EPA 530-R-97-019, June,
1997). U.S. Environmental Protection Agency, Washington, D.C.
---------------------------------------------------------------------------

    EPA continues to provide $5-$8 million dollars per year in grant
funds to States that develop innovative pollution prevention
approaches, and EPA is promoting pollution prevention innovation in
States through the National Environmental Performance Partnership
System (NEPPS). NEPPS agreements give the States flexibility to combine
individual program grants to maximize achieve environmental goals,
including using funds for pollution prevention that have historically
been used for end-of-pipe pollution controls. Texas, New Jersey, and
Ohio (which oversee a total of 45 hazardous waste incinerators) are
among the states that signed NEPPS agreements in 1996. Thirty states
were scheduled to negotiate NEPPS agreements in 1997.
    In addition, a variety of government-industry partnerships are
producing pollution prevention results. For example, 163 industry
members of Texas' Clean Industries 2000 program

[[Page 33815]]

are committed to reducing emissions of Toxic Release Inventory (TRI)
chemicals by 50 percent by the year 2000. A twenty-nine percent
reduction was reached by the year 1994.
    Balancing all of the above factors, EPA believes mandatory and
case-by-case pollution prevention planning approaches are not necessary
to achieve the pollution prevention goals of the CAA. A combination of
strong incentives and broad flexibility for States and the regulated
community, including some of the options discussed below and contained
in today's rule, will accomplish the pollution prevention goals of the
CAA.
    Two options were proposed that would allow the MACT compliance
period to be extended for facilities that demonstrate the need for
extra time to install pollution prevention measures. One of these
options would allow facilities to apply for a one-year compliance
extension to the MACT compliance period under Section 112(i)(3)(B)
where additional time is needed to install pollution prevention or
waste minimization measures that reduce or eliminate hazardous wastes
entering the combustion feedstreams of regulated facilities. Of course,
such applications must still be evaluated on a case-by-case basis CAA
112(b)(3). However, the following discussion provides an indication of
how EPA might evaluate such applications based on pollution prevention.
    Facilities that apply for this one-year extension would be required
to provide a description of the pollution prevention/waste minimization
measures that would significantly reduce or eliminate the volume and/or
toxicity of hazardous wastes entering combustion feedstreams, a
reduction goal (i.e., how much waste will no longer enter combustion
feedstreams of the regulated unit(s)), a discussion of additional
combustion or other treatment technology that will be installed to meet
MACT standards, and a schedule of milestones necessary to achieve
compliance. The pollution prevention/waste minimization measures
installed could be used either alone to meet MACT standards (e.g., in
cases where elimination of certain combusted waste streams will either
achieve MACT standards for the regulated unit(s), or will eliminate the
need for the regulated unit(s)), or in combination with combustion or
other treatment technologies that enable the facility to comply with
MACT standards. We emphasize that identifying expected reductions in
combustion feedstreams is required, but identifying reductions in
emissions as a result of installing pollution prevention measures is
not required. EPA recognizes this would not be practical. The
compliance date for facilities that are granted a one year extension by
the permitting agency would be four years after the promulgation of
MACT standards, rather than three years after the date of promulgation.
    EPA recognized in its proposal that States operate very diverse
pollution prevention programs. However, to ensure some degree of
consistency in granting one year extensions, EPA proposed four flexible
factors to be considered in approving or denying requests for one-year
compliance extensions for hazardous waste burning incinerators, LWAKs,
and cement kilns. These factors included: (1) The extent to which the
process changes (including waste minimization measures) proposed as a
basis for the extension reduce or eliminate hazardous wastes entering
combustion feed streams and are technologically and economically
feasible, (2) whether the magnitude of the reductions in hazardous
wastes entering combustion feed streams through process changes are
significant enough to warrant granting an extension, (3) a clear
demonstration that reductions of hazardous wastes entering combustion
feed streams are not shifted as increases in pollutants emitted through
other regulated media, and (4) a demonstration that the design and
installation of process changes, which include waste minimization
measures, and other measures that are necessary for compliance cannot
otherwise be installed within the three year compliance period.
    EPA received no adverse comments on the four factors for ensuring
consistency. Companies that operate on-site units (many of which are
large chemical plants which operate complex production processes and
which generate diverse and complex waste streams) commented that they
prefer to use pollution prevention and waste minimization measures
wherever they are cost effective. However, in the instant rulemaking,
the dual tasks of designing, testing and installing pollution
prevention process changes and combustion or other treatment equipment
is not practical in a three year compliance period plus a one-year
extension. Some commented that meeting the compliance date may often
force companies to install combustion controls at great expense and
forego exploration of pollution prevention options.
    The four states and one State association that commented on the
compliance extension options had diverse opinions. Two states commented
that pollution prevention/waste minimization should be encouraged in
this rulemaking. However, they believe three years plus a one-year
extension may not be enough time for companies to identify and install
waste minimization measures. A third State said that pollution
prevention/waste minimization incentives should not be included in this
rule because companies have had more than ample time to pursue
pollution prevention/waste minimization as an approach to compliance. A
fourth State and State association commented that facilities have had
ample time to identify and install pollution prevention solutions--
however, one year compliance extensions should be considered in cases
where it will promote further pollution prevention.
    Two commercial hazardous waste treatment organizations commented
that a one-year extension for pollution prevention/waste minimization
purposes is not appropriate since the companies generating the waste
have had several years to consider pollution prevention and waste
minimization measures as a waste management alternative.
    EPA believes that compliance extensions provide a strong incentive
for pollution prevention, and provide States additional flexibility.
EPA agrees that, in some cases, three years plus a one-year extension
may not be sufficient time to identify and install waste minimization
measures that achieve compliance. However, the one year extension is
the maximum allowable under the CAA. EPA disagrees with the commenters
opposing the extension because pollution prevention and waste
minimization should be viewed as an on-going process that adopts new
pollution prevention technologies as they become available. In some
cases, the economics of complying with new MACT standards may make
pollution prevention more cost-effective than it would have otherwise
been.
    In today's rule, EPA has chosen to implement the one-year
compliance extension approach. In evaluating extension requests, EPA
urges permitting agencies to give first preference to facilities that
request the extra time to install pollution prevention measures (either
alone or in addition to combustion controls) over facilities that
request an extension only for installing combustion controls. EPA has
also simplified the factors that must be considered by permitting
agencies in making determinations for one year extensions by making
them identical to

[[Page 33816]]

the factors facilities must include in requests for extensions.
    In its 1997 NODA, EPA encouraged facilities that wish to apply for
a one-year extension to coordinate the development the application for
extension with the information contained in Notice of Intent to Comply
(NIC), which is also described in today's rulemaking. Based on the
comments received from industry and States noting the need for extra
time to consider and then install pollution prevention measures, EPA
would expect to see a reasonable degree of consistency between
pollution prevention alternatives discussed in the NIC and pollution
prevention technologies identified in a subsequent request for a one
year extension to install pollution prevention technologies. Requests
for a one-year compliance extension from facilities who did not address
pollution prevention in the NIC should be viewed with caution to guard
against last minute attempts to delay compliance.
    The second compliance extension option, proposed in the 1997 NODA,
would allow certain facilities to enter into a written consent
agreement or consent order in cases where pollution prevention/waste
minimization technologies would significantly reduce wastes entering
combustion feed streams, but would take more than four years (i.e.,
three years plus a one-year extension). EPA could use this alternative
using the principles articulated in the Agency's ``Policy on
Encouraging Self-Policing and Voluntary Correction'' (also known as the
``Audit Policy'' 60 FR 66706, December 22, 1995).
    Very few commenters addressed this option. Some industry commenters
expressed limited interest in this approach, since entering into a
consent agreement would provide no shield against citizen suits.
    EPA agrees that longer than four years may be needed in some cases.
However, based on the comments received and after further evaluation,
the Agency has decided not to pursue this proposal as part of this
rulemaking. Instead, EPA believes its Project XL program provides a
better opportunity for EPA to work with companies who are interested in
undertaking projects which hold the promise of superior environmental
results in exchange for regulatory flexibility. The XL program is also
designed to include public involvement early in the process, which
would hopefully reduce the likelihood of citizen suits. Project XL
proposals should be developed and submitted well in advance of the
deadline for meeting this MACT standard, possibly before the
promulgation of MACT standards. See the May 22, 1995 Federal Register
Notice [FRL-5197-9] for further information on developing and
submitting a proposal.
    EPA proposed a fifth pollution prevention/waste minimization
incentive in the 1997 NODA which focused on harnessing the power of
public involvement to encourage companies to consider pollution
prevention alternatives. The NODA proposed to require facilities to
make public, within ten months after promulgation of the MACT
standards, a draft Notice of Intent to Comply (NIC) that contains a
description of technologies that will be used to achieve compliance
with MACT standards, including pollution prevention and waste
minimization technologies. Regulated facilities would also be required
to hold a public meeting on its compliance plan and to submit a final
NIC to the permitting agency no later than one year after the
promulgation of standards. In this setting, the public would be able to
review a company's draft compliance plan and make known its concerns
and views regarding the use of pollution prevention, combustion or
other treatment methods.
    Several commenters responded to the pollution prevention/waste
minimization components of the NIC proposal. One industry trade
organization commented that the NIC requirements are unnecessary since
its members already participate in a responsible care program that
includes pollution prevention and community involvement. Another
commenter argued strongly that the public involvement opportunity
provided by the NIC process is inadequate, and that the point at which
the public interacts with the facility is too late to influence
decisions to encourage the installation of pollution prevention
technology that may reduce or eliminate the need for combustion.
    It is crucial to provide the public with information and a public
meeting on the pollution prevention/waste minimization and combustion
measures that are planned at individual facilities. The NIC process
occurs early enough in the compliance process to provide meaningful
public involvement, and the NIC process provides a strong lever for
citizens to voice their opinions. The pollution prevention aspects of
the NIC requirements are further discussed in the NIC portion of
today's preamble.
    The sixth pollution prevention/waste minimization option proposed
involved promulgating a ``fast track'' rule in advance of MACT
standards to provide the regulated community time to explore, plan and
possibly begin implementation of pollution prevention and waste
minimization measures several months before the promulgation of MACT
standards.
    One commenter strongly urged this option because it provides
facilities with additional planning time to identify pollution
prevention options before the MACT compliance period begins. Although
no other commenters specifically addressed this option, EPA believes it
provides States additional flexibility, and comports with the variety
of comments that expressed general support for pollution prevention as
a top priority environmental management strategy.

D. Waste Minimization Incentives Contained in Today's Rule

    Today's rulemaking provides three incentives to encourage the use
of pollution prevention measures to reduce or amount and/or toxicity of
hazardous wastes entering combustion feedstreams. Wastes that cannot be
reduced at the source should be recycled in an environmentally sound
manner, i.e., in a manner that does not constitute disposal. Wastes
that cannot be reduced at the source or recycled should be either
burned for energy recovery, treated, or disposed in accordance with
environmental standards. Today's incentive based approach encourages
and rewards facilities that significantly reduce the amount of
combusted hazardous waste using pollution prevention measures as a
method for achieving MACT standards, and it provides the flexibility
needed by the States to build on or expand existing pollution
prevention programs.
    Today's rule (at Section 63.1216) allows owners/operators of
hazardous waste burning incinerators, cement kilns and lightweight
aggregate kilns to request a one-year extension to the MACT compliance
period in cases where additional time is needed to install pollution
prevention and waste minimization measures that reduce the amount of
hazardous waste entering combustion feedstreams. The Administrator or
State with an approved Title V program is authorized to grant one-year
extensions for this purpose under Section 112(i)(3)(B) of the CAA.
Pollution prevention and waste minimization measures that can be
considered in this determination include: process changes (including
closed loop recycling), raw material substitutions, design changes,
equipment changes, work practice changes, changes in operational
standards or other similar measures that

[[Page 33817]]

EPA or State permitting agencies may determine is pollution prevention
or waste minimization. Waste minimization activities that may be
considered for an extension include pollution prevention activities and
recycling measures, as defined in 40 CFR 261.1(c) and conducted in
accordance with RCRA regulations.
    The term recycling, as defined in defined in 40 CFR 260.10 does not
include burning for energy recovery or treatment activities. Therefore,
burning for energy recovery will not be considered for an extension.
Companies who burn for energy recovery are presumed, in accordance with
their RCRA waste minimization program in place certification (discussed
above), to have determined that wastes burned for energy recovery could
not be economically source reduced or recycled prior to burning. EPA
believes this approach is completely consistent with past Agency policy
and provides the regulated community with greater flexibility in
managing its non-product outputs.
    Requests for a one-year extension must reasonably document that the
waste minimization measures, and whatever additional compliance
measures are necessary to achieve compliance, could not otherwise be
installed in time to meet the three-year compliance period. Stronger
consideration should be given to requests that contain, for example:
(1) A schedule to redesign a production process that eliminates the use
of solvents and the generation of spent solvents (which are currently
combusted in an on-site hazardous waste incinerator), (2) a commitment
to reduce by 25% the amount of hazardous wastes entering the
incinerator feedstream (as a result of the waste minimization process
change), (3) a description and schedule for designing and installing
combustion controls to treat remaining wastes, and (4) evidence that
the extension reflects the reality that the design specs and schedule
for the remaining combustion controls can not be completed or installed
without first having information on waste minimization related
feedstream changes. In contrast, requests that propose to simply send
wastes off-site for recycling, for example, without first exploring on-
site process changes or operating practices, should receive little or
no consideration for an extension because there is nothing in this
action that would require extensive time.
    Decisions to grant one-year extensions will be made by EPA or state
programs that have delegated the authority to implement and enforce the
emission standard for that source. In light of the wide range of
approaches States employ regarding waste minimization planning, it is
appropriate to encourage some degree of consistency in how these
decisions are made, without superseding State approaches. Therefore,
EPA is requiring that permitting agencies must consider all of the
information required in Section 63.1216 in approving or denying
requests for one-year compliance extensions for hazardous waste burning
incinerators, LWAKs, and cement kilns. EPA will also work with States
to develop separate guidance, with examples, of how to review requests
for an extension, based on pollution prevention/waste minimization
efforts.
    The second pollution prevention/waste minimization incentive
promulgated in today's rule is the requirement for regulated facilities
to include in their Notice of Intent to Comply (NIC) a description of
pollution prevention and waste minimization activities proposed to
reduce the amount and/or toxicity of hazardous waste entering the
facility's combustion feedstream(s). This approach will harness the
power of public involvement, through the NIC review and public meeting
process, to encourage facilities to consider pollution prevention
measures in their MACT compliance plan. The requirements for the NIC
process are described in today's preamble.
    It is important to note here that companies should consider
coordinating the development of a NIC process with any subsequent
requests for a one year extension. For example, it would seem logical
that pollution prevention measures identified in the NIC (prepared in
the first year of the compliance period), would also appear in a
subsequent request for a one year extension (prepared in the second
year of the compliance period). In contrast, requests for a one year
extension from companies that did not consider pollution prevention in
their NIC might be looked at with more caution.
    As a third pollution prevention incentive, EPA is promulgating
today's rule several months in advance of promulgating MACT standards
to provide companies with several valuable months of advance planning
time to identify waste minimization measures can be used to meet, or
assist in meeting MACT standards. The timing of today's rule,
therefore, serves as a valuable pollution prevention incentive.
    Taken together, the tailored incentives contained in today's rule
provide strong encouragement for regulated companies to pursue cost
effective pollution prevention and waste minimization measures in their
individual approaches to meeting MACT standards.
    As a final note, a substantial amount of free technical
information, assistance and guidance on pollution prevention and waste
minimization is available from the Federal government and States, and
from a variety of private sources. EPA's ``Pollution Prevention
Facility Planning Guide'' (May, 1992; NTIS <SUP><greek-i></SUP> PB92-
213206) describes the series of analytical steps that are often used by
companies to identify waste minimization measures. Additional EPA
references include: ``Waste Minimization Opportunity Assessment Manual
(EPA 625/7-88/003, July 1988), Interim Final ``Guidance to Hazardous
Waste Generators on the Elements of a Waste Minimization Program In
Place,''(May 1993), ``An Introduction to Environmental Accounting As a
Business Management Tool'' (EPA 742-R-95-001, June 1995), the ``P2/
Finance User's Manual: Pollution Prevention Financial Analysis and Cost
Evaluation System for Lotus 1-2-3 (EPA 742-B-94-003, January 1994), and
Enviro$ense, an electronic library of information on pollution
prevention, technical assistance, and environmental compliance. Many of
these and other documents can be accessed by contacting the RCRA
Hotline toll-free at 1-800-424-9346. Enviro$ense can be accessed by
contacting a system operator at (703) 908-2007, or on the Internet at
http://wastenot.inel.gov/enviro-sense. Information on State waste
minimization programs can be obtained through Enviro$ense, directly
from the State pollution prevention program offices, or from the
National Pollution Prevention Roundtable at E-mail address
75152.1416@compuserve.com, by phone at 202-466-7272 in Washington, D.C.

VII. State Authority

A. RCRA State Authorization

    Under RCRA section 3006, EPA may authorize a State to administer
and enforce the RCRA hazardous waste program. See 40 CFR part 271.
After receiving authorization, the State administers the program in
lieu of the Federal government, although EPA retains enforcement
authority under RCRA sections 3008, 3013, and 7003. Because the new
Federal requirements in today's final rule are promulgated under non-
HSWA authority, they are not Federally enforceable in an authorized
State until the State has adopted equivalent (or more stringent)
standards under its authorized laws and regulations, and those changes
have

[[Page 33818]]

been approved by EPA. See RCRA section 3006, 42 U.S.C. 6926. Thus, upon
their effective date, these requirements will be applicable only in
those States that do not have authorization.
    It should be noted that authorized States are only required to
modify their programs when EPA promulgates Federal standards that are
more stringent or broader in scope than existing Federal standards.
RCRA section 3009 allows States to impose standards that are more
stringent than those in the Federal program (see also 40 CFR
271.1(i)(1)). Thus, for those Federal changes that are less stringent,
or reduce the scope of the Federal program, States are not required to
modify their programs. The revisions to the Federal RCRA Subtitle C
program that are promulgated today are considered to be less stringent
than the existing Federal regulations. However, EPA believes that their
adoption by States will greatly enhance the implementation of the
upcoming MACT standards, and ease the permitting burden on the States.
Thus, EPA strongly urges States to adopt all aspects of today's final
rule as quickly as their legislative and regulatory processes will
allow.

B. Program Delegation Under the Clean Air Act

    Today's final rule adds notification procedures for hazardous waste
combustors under Title III. Specifically, today's rule requires sources
to provide to the permitting agency a Notification of Intent to Comply
(NIC) within a year following promulgation of new emissions standards
in 40 CFR part 63 Subpart EEE, and a Progress Report within two years.
As part of the process of developing a NIC, the source is also required
to conduct additional public involvement activities, in particular an
informal meeting with the community. Section 112(l) of the Clean Air
Act allows EPA to approve State rules or programs for the
implementation and enforcement of emission standards and other
requirements for air pollutants subject to section 112. Under this
authority, EPA has developed delegation procedures and requirements
located at 40 CFR Part 63, Subpart E, for NESHAPS under Title III of
the CAA (See 57 FR 32250, July 21, 1992).
    Submission of rules or programs by States under 40 CFR Part 63 is
voluntary. Once a State receives approval from EPA for a standard under
section 112(l) of the CAA, the State is delegated the authority to
implement and enforce the approved State rules or programs in lieu of
the otherwise applicable federal rules (the approved State standard
would be federally enforceable). States may also apply for a partial
Title III program, such that the State is not required to adopt all
rules promulgated in 40 CFR Part 63. EPA will administer any rules
federally promulgated under section 112 of the CAA that have not been
delegated to the State.

VIII. Administrative Requirements/Compliance With Executive Order

A. Regulatory Impact Analysis Under Executive Order 12866

    Under Executive Order No. 12866, (58 FR 51735 (October 4, 1993))
the Agency must determine whether the regulatory action is
``significant'' and therefore subject to formal review by the Office of
Management and Budget (OMB) and to the requirements of the Executive
Order, which include assessing the costs and benefits anticipated as a
result of the proposed regulatory action. The Order defines
``significant regulatory action'' as one that is likely to result in a
rule that may: (1) Have an annual effect on the economy of $100 million
or more or adversely affect in a material way the economy, a sector of
the economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, or tribal governments or
communities; (2) create serious inconsistency or otherwise interfere
with an action taken or planned by another agency; (3) materially alter
the budgetary impact of entitlements, grants, user fees, or loan
programs or the rights and obligations of recipients thereof; or (4)
raise novel legal or policy issues arising out of legal mandates, the
President's priorities, or the principles set forth in the Executive
Order.
    EPA has determined that today's final rule is not ``significant''
under points one through three above. The Agency is sensitive, however,
to interpretations that may define today's action as ``significant''
under point number four above, due to the nature of the policy issues
raised and recognizes today's action as significant. The Agency has
examined economic impacts potentially associated with the three key
elements of today's action: the comparable fuel exclusion, waste
minimization incentives, and streamlined RCRA permitting modifications.
The comparable fuels exclusion in today's final rule will result in
national annual cost savings to generators ranging from approximately
$11 to $36 million, net of the cost of gaining the exclusion. Blending
and combustion facilities, however, are estimated to experience reduced
receipts for managing hazardous wastes, coupled with the costs of
replacing these materials with more expensive substitutes. The combined
impact is estimated to cost these firms an additional $3 to $13 million
per year. Today's action also allows sources to apply for up to a one
year extension of the three-year compliance period for implementation
of waste minimization procedures. Overall, this extension is likely to
provide a greater incentive for facilities with on-site combustion
units to implement waste minimization options rather than to continue
burning hazardous wastes and implement appropriate control
technologies. The degree to which this incentive will change the waste
burning behavior of combustion facilities is undetermined. EPA is also
implementing streamlined procedures for modifying RCRA permits at
hazardous waste combustion units. Only those states that regulate
combustion units and choose to adopt the streamlined modification
system would have to undergo rulemaking and authorization for the
streamlined permitting process. The Agency estimates that approximately
half of the states with MACT-regulated combustion units will not alter
their current permitting system. Based on the average cost to a state
for rulemaking and authorization, the Agency estimates aggregate
national costs for those states that would modify their systems at a
one-time cost of no more than $685,000. In addition to rulemaking and
authorization costs, the aggregate national cost for permit review may
be as high as $3.8 million. For more information on the cost impacts of
today's final rule, see the Economic Analysis Report for the Combustion
MACT Fast-Track Rulemaking, March 1998, which is part of the docket for
this rule.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) of 1980 requires Federal
agencies to consider ``small entities'' throughout the regulatory
process. Section 603 of the RFA requires an initial screening analysis
to be performed to determine whether small entities will be adversely
affected by the regulation. If affected small entities are identified,
regulatory alternatives must be considered to mitigate the potential
impacts. Small entities as described in the Act are only those
``businesses, organizations and governmental jurisdictions subject to
regulation.''
    EPA has determined that today's rule will primarily affect large
scale facilities. Furthermore, since today's final notice generally
provides savings

[[Page 33819]]

over current requirements, EPA believes that any small entities engaged
in activity covered by the rule will not be adversely affected.
Therefore, EPA provides the following certification under the
Regulatory Flexibility Act, as amended by the Small Business Regulatory
Enforcement Fairness Act. Pursuant to the provision at 5 U.S.C., I
hereby certify that this rule will not have a significant economic
impact on a substantial number of small entities. A more detailed
discussion of small entity impacts is presented in the Economic
Analysis Report.

C. Paperwork Reduction Act

    The Office of Management and Budget (OMB) has approved the
information collection requirements contained in this rule under the
provisions of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. and
has assigned OMB control number 2050-0073.
    The incremental annual public reporting and record keeping burden
for this collection of information is estimated to be 55,196 hours at a
cost of about $5,164,000. For those generators applying for the
comparable/syngas fuel exclusion, the average annual respondent
reporting burden is estimated to be 0.5 hours per facility and the
average annual record keeping burden is estimated to be 47.3 hours per
facility. For burners of comparable/syngas fuels, there is no reporting
burden and the annual record keeping burden is 8.0 hours per facility.
For HWCs complying with the notification of intent to comply
regulations, the average annual reporting burden is 300.5 hours per
facility and the average annual record keeping burden is 9.0 hours per
facility.
    This estimate includes the time needed to review instructions;
develop, acquire, install, and utilize technology and systems for the
purpose of collecting, validating, and verifying information,
processing and maintaining information, and disclosing and providing
information; adjust the existing ways to comply with any previously
applicable instructions and requirements; train personnel to respond to
collection of information; search existing data sources; complete and
review the collection of information; and transmit or otherwise
disclose the information.
    During its review of the proposed rule ICR, OMB offered comments
concerning the burdens associated with the proposed testing
requirements and records retention for the comparable fuel/syngas
exclusion. In the final rule, EPA is allowing generators to use process
knowledge and requiring testing for only those constituents the
generator determines should be in the waste. The frequency of the
testing will be specified by the generator in the waste analysis plan.
With regards to records retention, the final rule will require the
retention of records of all comparable and syngas fuel-related
information for three years. EPA also received several public comments
on the final rule ICR which was noticed on January 28, 1998 at 63 FR
4249. EPA has responded to those comments in the supporting statement
for the ICR.
    EPA estimates that the addition of the comparable fuels exclusion
will cause the BIF universe to decrease by 25 facilities. Although the
burden reduction is not reflected in the ICR, EPA expects reporting and
recordkeeping requirements for BIFs to decrease by 70,743 hours (18
percent) and $7,493,221 (15 percent) annually. EPA will revise the ICR
to reflect this burden reduction when it finalizes the emissions
standards for hazardous waste combustors.
    EPA is also amending the table of currently approved ICR control
numbers issued by OMB for various regulations. This amendment updates
the table to display accurately this final rule. This display of the
OMB control numbers and their subsequent codification in the Code of
Federal Regulations (CFR) at 40 CFR Part 9 satisfies the requirements
of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.) and OMB's
implementing regulations at 5 CFR Part 1320.
    An Agency may not conduct or sponsor, and a person is not required
to respond to a collection of information unless it displays a
currently valid OMB control number. The OMB control numbers for EPA's
regulations are displayed in 40 CFR Part 9.
    Send comments regarding the burden estimates or any other aspect of
this collection of information, including suggestions for reducing this
burden to Chief, OPPE Regulatory Information Division; U.S.
Environmental Protection Agency (2136); 401 M Street, S.W.; Washington,
DC 20460; and to the Office of Information and Regulatory Affairs,
Office of Management and Budget, Washington, DC 20503, marked
``Attention: Desk Officer for EPA.'' Include the ICR number in any
correspondence.

D. Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), P.L.
104-4, establishes requirements for Federal agencies to assess the
effects of their regulatory actions on State, Tribal, and local
governments and the private sector. Under section 202 of the UMRA, EPA
generally must prepare a written statement, including a cost-benefit
analysis, for proposed and final rules with ``Federal mandates'' that
may result in expenditures to State, local, and Tribal governments, in
the aggregate, or to the private sector, of $100 million or more in any
one year. When a written statement is needed for an EPA rule, section
205 of the UMRA generally requires EPA to identify and consider a
reasonable number of regulatory alternatives and adopt the least
costly, most cost-effective, or least burdensome alternative that
achieves the objectives of the rule. The provisions of section 205 do
not apply when they are inconsistent with applicable law. Moreover,
section 205 allows EPA to adopt an alternative other than the least
costly, most cost-effective or least burdensome alternative if the
Administrator publishes with the final rule an explanation why that
alternative was not adopted. Before EPA establishes any regulatory
requirements that may significantly or uniquely affect small
governments, including Tribal governments, it must have developed under
section 203 of the UMRA a small government agency plan. The plan must
provide for notifying potentially affected small governments, giving
them meaningful and timely input in the development of EPA regulatory
proposals with significant Federal intergovernmental mandates, and
informing, educating, and advising them on compliance with the
regulatory requirements.
    EPA has determined that this rule does not contain a Federal
mandate that may result in expenditures of $100 million or more for
State, local, and Tribal governments, in the aggregate, or the private
sector in any one year. EPA has estimated that the total potential cost
to State, local, and Tribal governments would not exceed approximately
$4.5 million over ten years. Thus, today's rule is not subject to the
requirements of sections 202 and 205 of the UMRA.

IX. Submission to Congress and the General Accounting Office

    Under 5 U.S.C. 801(a)(1)(A) as added by the Small Business
Regulatory Enforcement Fairness Act of 1996, EPA submitted a report
containing this rule and other required information to the U.S. Senate,
the U.S. House of Representatives and the Comptroller General of the
General Accounting Office prior to publication of the rule in today's
Federal Register. This rule is not a ``major rule'' as defined by 5
U.S.C. 804(2), therefore, the effective date of the rule is not
affected.

[[Page 33820]]

X. Environmental Justice

A. Applicability of Executive Order 12898

    EPA is committed to address environmental justice concerns and is
assuming a leadership role in environmental justice initiatives to
enhance environmental quality for all residents of the United States.
The Agency's goals are to ensure that no segment of the population,
regardless of race, color, national origin, or income bears
disproportionately high and adverse human health and environmental
effects as a result of EPA's policies, programs, and activities, and
all people live in clean and sustainable communities.

B. Potential Effects

    Today's final rule is not expected to cause any disproportionate
impacts to minority or low income communities versus affluent or non-
minority communities.

XI. Children's Health

    Executive Order 13045: The Executive Order 13045 applies to any
rule that EPA determines (1) ``economically significant'' as defined
under Executive Order 12866, and (2) the environmental health or safety
risk addressed by the rule has a disproportionate effect on children.
If the regulatory action meets both criteria, the Agency must evaluate
the environmental health or safety effects of the planned rule on
children; and explain why the planned regulation is preferable to other
potentially effective and reasonably feasible alternatives considered
by the Agency
    This final rule is not subject to E.O. 13045, entitled ``Protection
of Children from Environmental Health Risks and safety Risks (62 FR
19885, April 23, 1997), because: (a) ``This is not an economically
significant regulatory action as defined by E.O. 12866.''

XII. National Technology Transfer and Advancement Act

    Under section 12(d) of the National Technology Transfer and
Advancement Act, the Agency is directed to use voluntary consensus
standards in its regulatory activities unless to do so would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards are technical standards (e.g., materials
specifications, test methods, sampling procedures, business practices,
etc.) that are developed or adopted by voluntary consensus standard
bodies. Where available and potentially applicable voluntary consensus
standards are not used by EPA, the Act requires the Agency to provide
Congress, through the Office of Management and Budget, an explanation
of the reasons for not using such standards.
    EPA is not finalizing any new test methods or other technical
standards as part of today's final rule. Thus, the Agency has no need
to consider the use of voluntary consensus standards in developing this
final rule.

List of Subjects

40 CFR Part 63

    Administrative practice and procedure, Air pollution control,
Hazardous substances, Intergovernmental relations, Reporting and
recordkeeping requirements.

40 CFR Part 261

    Hazardous waste, Recycling, Reporting and record keeping
requirements.

40 CFR Part 270

    Administrative practice and procedure, Confidential business
information, Emergency responses, Hazardous materials transportation,
Hazardous waste, Permit application requirements, Permit modifications,
Reporting and recordkeeping requirements.

    Dated: June 5, 1998.
Carol M. Browner,
Administrator.

    For the reasons set forth in the preamble, 40 CFR Parts 63, 261,
and 270 are amended as follows:

PART 63--NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS
FOR SOURCE CATEGORIES

    1. The authority citation for part 63 continues to read as follows:

    Authority: 42 U.S.C. 7401 et seq.

    2. Part 63 is amended by adding Subpart EEE, to read as follows:

Subpart EEE--National Emission Standards for Hazardous Air
Pollutants From Hazardous Waste Combustors

Sec.
63.1200-63.1210  [Reserved]
63.1211  Notification requirements.
63.1212  Progress reports.
63.1213  Certification.
63.1214  Extension of the compliance date.
63.1215  Sources that become affected sources after the effective
date of this subpart.
63.1216  Extension of compliance date to install pollution
prevention or waste minimization controls.

Sec. 63.1211  Notification requirements.

    (a) Notification of Intent To Comply (NIC). (1) All hazardous waste
combustors subject to this subpart shall prepare a Notification of
Intent to Comply that includes the following information:
    (i) General information:
    (A) The name and address of the owner/operator and the source;
    (B) Whether the source is a major or an area source;
    (C) Waste minimization and emission control technique(s) being
considered;
    (D) Emission monitoring technique(s) being considered;
    (E) Waste minimization and emission control technique(s)
effectiveness;
    (F) A description of the evaluation criteria used or to be used to
select waste minimization and/or emission control technique(s); and
    (G) A statement that the source intends to comply with this subpart
by controlling emissions from the combustion of hazardous waste
pursuant to the standards of this subpart.
    (ii) Information on key activities and estimated dates for these
activities that will bring the source into compliance with emission
control requirements of this subpart. The submission of key activities
and dates is not intended to be static and may be revised by the source
during the period the NIC is in effect. Revisions shall be submitted to
the regulatory authority and be made available to the public. The
following are the key activities and dates that shall be included:
    (A) The dates for beginning and completion of engineering studies
to evaluate emission control systems or process changes for emissions;
    (B) The date by which contracts for emission control systems or
process changes for emission control will be awarded, or the date by
which orders will be issued for the purchase of component parts to
accomplish emission control or process changes;
    (C) The date by which construction applications will be submitted;
    (D) The date by which on-site construction, installation of
emission control equipment, or process change is to be initiated;
    (E) The date by which on-site construction, installation of
emission control equipment, or process change is to be completed; and
    (F) The date by which final compliance is to be achieved. The
individual dates and milestones listed in paragraphs (a)(1)(ii)(A)
through (F) of this section as part of the NIC are not requirements and
therefore are not enforceable deadlines; the Agency is

[[Page 33821]]

requiring paragraphs (a)(1)(ii)(A) through (F) of this section as part
of the NIC only to inform the public of the source's intentions towards
coming into compliance.
    (iii) A summary of the public meeting required under paragraph (b)
of this section.
    (iv) For any source that does not intend to comply, but will not
stop burning hazardous waste as required under paragraph (c) of this
section, a certification that the designated source will:
    (A) Stop burning hazardous waste on or before the compliance date
of the emission standards of this Subpart; and
    (B) Be necessary to combust the hazardous waste from another on-
site source, during the year prior to the compliance date of the
emission standards of this Subpart, because that other source is:
    (1) Installing equipment to come into compliance with the emission
standards of this Subpart; or
    (2) Installing source reduction modifications to eliminate the need
for further combustion of wastes.
    (2) A draft of the NIC must be made available for public review no
later than 30 days prior to the public meeting required under paragraph
(b)(1) of this section.
    (3) The final NIC must be submitted to the permitting agency no
later than one year following the effective date of the emission
standards of this subpart.
    (b) NIC Public Meeting and Notice. (1) Prior to the submission of
the NIC to the permitting agency, and no later than 10 months after the
effective date of the emission standards of this subpart, the source
shall hold at least one informal meeting with the public to discuss
anticipated activities described in the draft NIC for achieving
compliance with the MACT standards promulgated in this subpart. The
source must post a sign-in sheet or otherwise provide a voluntary
opportunity for attendees to provide their names and addresses.
    (2) The source shall submit a summary of the meeting, along with
the list of attendees and their addresses developed under paragraph
(b)(1) of this section, and copies of any written comments or materials
submitted at the meeting, to the permitting agency as part of the final
NIC, in accordance with paragraph (a)(1)(iii) of this section.
    (3) The source must provide public notice of the NIC meeting at
least 30 days prior to the meeting. The source shall provide public
notice in all of the following forms:
    (i) Newspaper advertisement. The source shall publish a notice in a
newspaper of general circulation in the county or equivalent
jurisdiction of the source. In addition, the source shall publish the
notice in newspapers of general circulation in adjacent counties or
equivalent jurisdiction where such publication would be necessary to
inform the affected public. The notice must be published as a display
advertisement.
    (ii) Visible and accessible sign. The source shall post a notice on
a clearly marked sign at or near the source. If the source places the
sign on the source's property, then the sign must be large enough to be
readable from the nearest spot where the public would pass by the
source.
    (iii) Broadcast media announcement. The source shall broadcast a
notice at least once on at least one local radio station or television
station.
    (iv) Notice to the facility mailing list. The source shall provide
a copy of the notice to the facility mailing list in accordance with
Sec. 124.10(c)(1)(ix) of this chapter.
    (4) The notices required under paragraph (b)(3) of this section
must include:
    (i) The date, time, and location of the meeting;
    (ii) A brief description of the purpose of the meeting;
    (iii) A brief description of the source and proposed operations,
including the address or a map (e.g., a sketched or copied street map)
of the source location;
    (iv) A statement encouraging people to contact the source at least
72 hours before the meeting if they need special access to participate
in the meeting;
    (v) A statement describing how the draft NIC can be obtained; and
    (vi) The name, address, and telephone number of a contact person
for the NIC.
    (c) Sources that do not intend to comply. Those sources subject to
the requirements of this subpart, except those sources meeting the
requirements of paragraph (a)(1)(iv) of this section:
    (1) Who signify in their NIC an intent not to comply with the
requirements of this Subpart, must stop burning hazardous waste on or
before two years after the effective date of the emmission standards of
this subpart;
    (2) Who do not intend to comply with this subpart must include in
their NIC a schedule that includes key dates for the steps to be taken
to stop burning hazardous waste. Key dates include the date for
submittal of RCRA closure documents.

Sec. 63.1212  Progress reports.

    (a) General. Not later than two years after the effective date of
the emission standards of this subpart, all sources subject to this
Subpart except those hazardous waste combustion sources that comply
with paragraph (b)(2) of this section shall:
    (1) Complete engineering design for any physical modifications to
the source needed to comply with the emissions standards of this
subpart;
    (2) Submit applicable construction applications to the applicable
regulatory authority; and
    (3) Enter into a binding contractual commitment to purchase,
fabricate, and install any equipment, devices, and ancillary structures
needed to comply with the emission requirements of this subpart.
    (b) Demonstration (1) Hazardous waste combustion sources shall
submit to the regulatory authority a progress report on or before two
years after the effective date of the emission standards of this
subpart which contains information demonstrating that the source has
met the requirements of paragraph (a) of this section. This information
will be used by the regulatory authority to determine if the source has
made adequate progress towards compliance with the applicable emission
standards.
    (2) Sources that intend to come into compliance with the emissions
standards of this subpart, but can do so without undertaking any of the
activities described in paragraph (a) of this section, shall submit
documentation either:
    (i) Demonstrating that the source, at the time of the progress
report, is in compliance with the emissions requirements; or
    (ii) Specifying the steps that will be taken to bring the source
into compliance, without undertaking any of the activities listed in
paragraphs (a)(1) through (3) of this section.
    (3) Sources that fail to comply with paragraph (a) above or
paragraph (b)(2) of this section shall stop burning hazardous waste on
or before the date two years after the effective date of the emission
standards of this subpart.
    (c) Schedule. (1) The progress report shall contain a detailed
schedule that lists key dates for all projects that will bring the
source into compliance with the requirements of this subpart (i.e., key
dates for the activities required under paragraphs (b)(1)(i) through
(iii) of this section). Dates shall cover the time frame from the
progress report through the compliance date of the emission standards
of this subpart.
    (2) The schedule shall contain the following dates:
    (i) Bid and award dates for construction contracts and equipment
supply contractors;

[[Page 33822]]

    (ii) Milestones such as ground breaking, completion of drawings and
specifications, equipment deliveries, intermediate construction
completions, and testing;
    (iii) The dates on which applications were submitted for or
obtained operating and construction permits or licenses;
    (iv) The dates by which approvals of any permits or licenses are
anticipated; and
    (v) The projected date by which the source will be in compliance
with the requirements of this subpart.
    (d) Notice of intent to comply. The progress report shall contain a
statement that the source intends or does not intend to come into
compliance with the applicable emission control requirements of this
subpart.
    (e) Sources that do not intend to comply. (1) Sources that:
indicated in their NIC their intent not to comply with this subpart and
stop burning hazardous waste prior to the submittal of a progress
report; or meet the requirements of paragraph (a)(1)(iv) of this
section are not required to include the requirements of paragraphs (b)
and (c) of this section to their progress report, but shall include in
their progress report: the date on which the source stopped burning
hazardous waste; and the date(s) on which RCRA closure documents were
submitted.
    (2) Those sources that signify in the progress report, submitted
not later than two years after the effective date of the emission
standards of this subpart, their intention not to comply with the
requirements of this subpart must stop burning hazardous waste on or
before the date two years after the effective date of the emission
standards of this subpart.

Sec. 63.1213  Certification.

    (a) The Notice of Intent to Comply (NIC) and Progress Report
submitted shall contain the following certification signed and dated by
an authorized representative of the source:

    I certify under penalty of law that I have personally examined
and am familiar with the information submitted in this document and
all attachments and that, based on my inquiry of those individuals
immediately responsible for obtaining the information, I believe
that the information is true, accurate, and complete. I am aware
that there are significant penalties for submitting false
information, including the possibility of fine and imprisonment.

    (b) An authorized representative should be a responsible corporate
officer (for a corporation), a general partner (for a partnership), the
proprietor (of a sole proprietorship), or a principal executive officer
or ranking elected official (for a municipality, State, Federal, or
other public agency).

Sec. 63.1214  Extension of the compliance date.

    (a) A source that intends to come into compliance with the
requirements of this subpart, but due to the installation of controls
will not meet the compliance date, may request an extension of the
compliance date for one year.
    (b) Sources subject to this subpart shall follow the requirements
of Sec. 63.6(i)(4) or Sec. 63.1216 to request an extension of the
compliance date.

Sec. 63.1215  Sources that become affected sources after the effective
date of the emission standards of this subpart.

    (a) A source that begins to burn hazardous waste after the
effective date of the emission standards of this subpart, therefore
becoming an affected source, but prior to 9 months after the effective
date of the emission standards of this subpart shall comply with all
the requirements of Secs. 63.1211 through 63.1213 and associated time
frames for public meetings and document submittals.
    (b) A source that intends to begin burning hazardous waste more
than 9 months after the effective date of the emission standards of
this subpart, therefore becoming an affected source, shall meet all the
requirements of Secs. 63.1211 through 63.1213 prior to burning
hazardous waste.
    (1) Such sources shall make a draft NIC available, notice their
public meeting, hold their public meeting, and submit a final NIC prior
to burning hazardous waste.
    (2) Such sources also shall submit their progress report at the
time of the submittal of their final NIC.

Sec. 63.1216  Extension of the compliance date to install pollution
prevention or waste minimization controls.

    (a) Applicability. The owner or operator of any source subject to
the requirements of this subpart may request from the Administrator or
State with an approved Title V program an extension of one year to
comply with the emission standards in this subpart, if the owner or
operator can reasonably document that the installation of pollution
prevention or waste minimization measures will significantly reduce the
amount and/or toxicity of hazardous wastes entering the feedstream(s)
of the combustion device(s) subject to this subpart, and that the
facility could not otherwise install the necessary control measures and
comply within three years after the effective date of the emission
standards of this subpart.
    (b) Requirements for requesting an extension. Requests for a one-
year extension must be in writing, must be received not later than 12
months before the affected source's compliance date, and must contain
the following information:
    (1) A description of pollution prevention or waste minimization
controls that, when installed, will significantly reduce the amount
and/or toxicity of hazardous wastes entering the feedstream(s) of the
combustion device(s) subject to this subpart. Pollution prevention or
waste minimization measures may include: equipment or technology
modifications, reformulation or redesign of products, substitution of
raw materials, improvements in work practices, maintenance, training,
inventory control, or recycling practices conducted as defined in 40
CFR 261.1(c);
    (2) A description of other pollution controls to be installed that
are necessary to comply with the emission standards;
    (3) A reduction goal or estimate of the annual reductions in
quantity and/or toxicity of hazardous waste(s) entering combustion
feedstream(s) that will occur by installing the proposed pollution
prevention or waste minimization measures;
    (4) A comparison of reductions in the amounts and/or toxicity of
hazardous wastes combusted after installation of pollution prevention
or waste minimization measures to the amounts and/or toxicity of
hazardous wastes combusted prior to the installation of these measures;
and, if the difference is less than a fifteen percent reduction, a
comparison to pollution prevention and waste minimization reductions
recorded during the previous five years;
    (5) Reasonable documentation that installation of the pollution
prevention or waste minimization changes will not result in a net
increase (except for documented increases in production) of hazardous
constituents released to the environment through other emissions,
wastes or effluents;
    (6) Reasonable documentation that the design and installation of
waste minimization and other measures that are necessary for compliance
cannot otherwise be installed within the three year compliance period,
and
    (7) The information required in 40 CFR 63.6(i)(6)(i)(B) through
(D).
    (8) Documentation prepared under an existing State required
pollution prevention program that contains the information may be
enclosed with a

[[Page 33823]]

request for extension in lieu of paragraphs (b)(1) through (7) of this
section.
    (c) Approval of request for extension of compliance. Based on the
information provided in any request made under paragraph (a) of this
section, the Administrator or State with an approved Title V program
may grant an extension of compliance with the emission standards
identified in paragraph (a) of this section. The extension will be in
writing in accordance with Secs. 63.6(i)(10)(i) through
63.6(i)(10)(v)(A). EPA and States must consider the information
required in paragraph (a) of this section in approving or denying
requests for one-year compliance extensions.

PART 261--IDENTIFICATION AND LISTING OF HAZARDOUS WASTE

    1. The authority citation for part 261 continues to read as
follows:

    Authority: 42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.

    2. Section 261.4 is amended by adding paragraph (a)(16) to read as
follows:

Sec. 261.4  Exclusions.

    (a) * * *
    (16) Comparable fuels or comparable syngas fuels (i.e., comparable/
syngas fuels) that meet the requirements of Sec. 261.38.
* * * * *
    3. Section 261.38 is added to read as follows:

Sec. 261.38  Comparable/Syngas Fuel Exclusion.

    Wastes that meet the following comparable/syngas fuel requirements
are not solid wastes:
    (a) Comparable fuel specifications.--(1) Physical specifications.--
(i) Heating value. The heating value must exceed 5,000 BTU/lbs. (11,500
J/g).
    (ii) Viscosity. The viscosity must not exceed: 50 cs, as-fired.
    (2) Constituent specifications. For compounds listed in table 1 to
this section the specification levels and, where non-detect is the
specification, minimum required detection limits are: (see Table 1).
    (b) Synthesis gas fuel specification.--Synthesis gas fuel (i.e.,
syngas fuel) that is generated from hazardous waste must:
    (1) Have a minimum Btu value of 100 Btu/Scf;
    (2) Contain less than 1 ppmv of total halogen;
    (3) Contain less than 300 ppmv of total nitrogen other than
diatomic nitrogen (N<INF>2</INF>);
    (4) Contain less than 200 ppmv of hydrogen sulfide; and
    (5) Contain less than 1 ppmv of each hazardous constituent in the
target list of Appendix VIII constituents of this part.

         Table 1 to Sec.  261.38: Detection and Detection Limit Values for Comparable Fuel Specification
----------------------------------------------------------------------------------------------------------------
                                                                                                     Minimum
                                                                Concentration limit  (mg/kg at       required
                Chemical name                      CAS No.              10,000 BTU/lb)           detection limit
                                                                                                     (mg/kg)
----------------------------------------------------------------------------------------------------------------
Total Nitrogen as N..........................              na  4900............................  ...............
Total Halogens as Cl.........................              na  540.............................  ...............
Total Organic Halogens as Cl.................              na  25 or individual halogenated      ...............
                                                                organics listed below.
Polychlorinated biphenyls, total [Arocolors,        1336-36-3  Non-detect......................              1.4
 total] <SUP>a.
Cyanide, total...............................         57-12-5  Non-detect......................              1.0
Metals:
    Antimony, total..........................       7440-36-0  7.9.............................  ...............
    Arsenic, total...........................       7440-38-2  0.23............................  ...............
    Barium, total............................       7440-39-3  23..............................  ...............
    Beryllium, total.........................       7440-41-7  1.2.............................  ...............
    Cadmium, total...........................       7440-43-9  1.2.............................  ...............
    Chromium, total..........................       7440-47-3  2.3.............................  ...............
    Cobalt...................................       7440-48-4  4.6.............................  ...............
    Lead, total..............................       7439-92-1  31..............................  ...............
    Manganese................................       7439-96-5  1.2.............................  ...............
    Mercury, total...........................       7439-97-6  0.24............................  ...............
    Nickel, total............................       7440-02-0  58..............................  ...............
    Selenium, total..........................       7782-49-2  0.15............................  ...............
    Silver, total............................       7440-22-4  2.3.............................  ...............
    Thallium, total..........................       7440-28-0  23..............................  ...............
Hydrocarbons:
    Benzo[a]anthracene.......................         56-55-3  1100............................  ...............
    Benzene..................................         71-43-2  4100............................  ...............
    Benzo[b]fluoranthene.....................        205-99-2  960.............................  ...............
    Benzo[k]fluoranthene.....................        207-08-9  1900............................  ...............
    Benzo[a]pyrene...........................         50-32-8  960.............................  ...............
    Chrysene.................................        218-01-9  1400............................  ...............
    Dibenzo[a,h]anthracene...................         53-70-3  960.............................  ...............
    7,12-Dimethylbenz[a]anthracene...........         57-97-6  1900............................  ...............
    Fluoranthene.............................        206-44-0  1900............................  ...............
    Indeno(1,2,3-cd)pyrene...................        193-39-5  960.............................  ...............
    3-Methylcholanthrene.....................         56-49-5  1900............................  ...............
    Naphthalene..............................         91-20-3  3200............................  ...............
    Toluene..................................        108-88-3  36000...........................  ...............
Oxygetes:

[[Page 33824]]


    Acetophenone.............................         98-86-2  1900............................  ...............
    Acrolein.................................        107-02-8  37..............................  ...............
    Allyl alcohol............................        107-18-6  30..............................  ...............
    Bis(2-ethylhexyl)phthalate [Di-2-                117-81-7  1900............................  ...............
     ethylhexyl phthalate].
    Butyl benzyl phthalate...................         85-68-7  1900............................  ...............
    o-Cresol [2-Methyl phenol]...............         95-48-7  220.............................  ...............
    m-Cresol [3-Methyl phenol]...............        108-39-4  220.............................  ...............
    p-Cresol [4-Methyl phenol]...............        106-44-5  220.............................  ...............
    Di-n-butyl phthalate.....................         84-74-2  1900............................  ...............
    Diethyl phthalate........................         84-66-2  1900............................  ...............
    2,4-Dimethylphenol.......................        105-67-9  1900............................  ...............
    Dimethyl phthalate.......................        131-11-3  1900............................  ...............
    Di-n-octyl phthalate.....................        117-84-0  960.............................  ...............
    Endothall................................        145-73-3  100.............................  ...............
    Ethyl methacrylate.......................         97-63-2  37..............................  ...............
    2-Ethoxyethanol [Ethylene glycol                 110-80-5  100.............................  ...............
     monoethyl ether].
    Isobutyl alcohol.........................         78-83-1  37..............................  ...............
    Isosafrole...............................        120-58-1  1900............................  ...............
    Methyl ethyl ketone [2-Butanone].........         78-93-3  37..............................
    Methyl methacrylate......................         80-62-6  37..............................
    1,4-Naphthoquinone.......................        130-15-4  1900............................
    Phenol...................................        108-95-2  1900............................
    Propargyl alcohol [2-Propyn-l-ol]........        107-19-7  30..............................
    Safrole..................................         94-59-7  1900............................
Sulfoted Organics:
    Carbon disulfide.........................         75-15-0  Non-detect......................             37
    Disulfoton...............................        298-04-4  Non-detect......................           1900
    Ethyl methanesulfonate...................         62-50-0  Non-detect......................           1900
    Methyl methanesulfonate..................         66-27-3  Non-detect......................           1900
    Phorate..................................        298-02-2  Non-detect......................           1900
    1,3-Propane sultone......................       1120-71-4  Non-detect......................            100
    Tetraethyldithiopyrophosphate [Sulfotepp]       3689-24-5  Non-detect......................           1900
    Thiophenol [Benzenethiol]................        108-98-5  Non-detect......................             30
    O,O,O-Triethyl phosphorothioate..........        126-68-1  Non-detect......................           1900
Nitrogenated Organics:
    Acetonitrile [Methyl cyanide]............         75-05-8  Non-detect......................             37
    2-Acetylaminofluorene [2-AAF]............         53-96-3  Non-detect......................           1900
    Acrylonitrile............................        107-13-1  Non-detect......................             37
    4-Aminobiphenyl..........................         92-67-1  Non-detect......................           1900
    4-Aminopyridine..........................        504-24-5  Non-detect......................            100
    Aniline..................................         62-53-3  Non-detect......................           1900
    Benzidine................................         92-87-5  Non-detect......................           1900
    Dibenz[a,j]acridine......................        224-42-0  Non-detect......................           1900
    O,O-Diethyl O-pyrazinyl phophoro-thioate         297-97-2  Non-detect......................           1900
     [Thionazin].
    Dimethoate...............................         60-51-5  Non-detect......................           1900
    p-(Dimethylamino)azobenzene [4-                   60-11-7  Non-detect......................           1900
     Dimethylaminoazobenzene].
    3,3'-Dimethylbenzidine...................        119-93-7  Non-detect......................           1900
    <greek-a>,<greek-a>-                             122-09-8  Non-detect......................           1900
     Dimethylphenethylamine.
    3,3'-Dimethoxybenzidine..................        119-90-4  Non-detect......................            100
    1,3-Dinitrobenzene [m-Dinitrobenzene]....         99-65-0  Non-detect......................           1900
    4,6-Dinitro-o-cresol.....................        534-52-1  Non-detect......................           1900
    2,4-Dinitrophenol........................         51-28-5  Non-detect......................           1900
    2,4-Dinitrotoluene.......................        121-14-2  Non-detect......................           1900
    2,6-Dinitrotoluene.......................        606-20-2  Non-detect......................           1900
    Dinoseb [2-sec-Butyl-4,6-dinitrophenol]..         88-85-7  Non-detect......................           1900
    Diphenylamine............................        122-39-4  Non-detect......................           1900
    Ethyl carbamate [Urethane]...............         51-79-6  Non-detect......................            100
    Ethylenethiourea (2-Imidazolidinethione).         96-45-7  Non-detect......................            110
    Famphur..................................         52-85-7  Non-detect......................           1900
    Methacrylonitrile........................        126-98-7  Non-detect......................             37
    Methapyrilene............................         91-80-5  Non-detect......................           1900
    Methomyl.................................      16752-77-5  Non-detect......................             57
    2-Methyllactonitrile [Acetone                     75-86-5  Non-detect......................            100
     cyanohydrin].
    Methyl parathion.........................        298-00-0  Non-detect......................           1900
    MNNG (N-Metyl-N-nitroso-N'-                       70-25-7  Non-detect......................            110
     nitroguanidine).
    1-Naphthylamine, [<greek-a>-                     134-32-7  Non-detect......................           1900
     Naphthylamine].
    2-Naphthylamine, [<greek-b>-                      91-59-8  Non-detect......................           1900
     Naphthylamine].
    Nicotine.................................         54-11-5  Non-detect......................            100

[[Page 33825]]


    4-Nitroaniline, [p-Nitroaniline].........        100-01-6  Non-detect......................           1900
    Nitrobenzene.............................         98-95-3  Non-detect......................           1900
    p-Nitrophenol, [p-Nitrophenol]...........        100-02-7  Non-detect......................           1900
    5-Nitro-o-toluidine......................         99-55-8  Non-detect......................           1900
    N-Nitrosodi-n-butylamine.................        924-16-3  Non-detect......................           1900
    N-Nitrosodiethylamine....................         55-18-5  Non-detect......................           1900
    N-Nitrosodiphenylamine,                           86-30-6  Non-detect......................           1900
     [Diphenylnitrosamine].
    N-Nitroso-N-methylethylamine.............      10595-95-6  Non-detect......................           1900
    N-Nitrosomorpholine......................         59-89-2  Non-detect......................           1900
    N-Nitrosopiperidine......................        100-75-4  Non-detect......................           1900
    N-Nitrosopyrrolidine.....................        930-55-2  Non-detect......................           1900
    2-Nitropropane...........................         79-46-9  Non-detect......................             30
    Parathion................................         56-38-2  Non-detect......................           1900
    Phenacetin...............................         62-44-2  Non-detect......................           1900
    1,4-Phenylene diamine, [p-                       106-50-3  Non-detect......................           1900
     Phenylenediamine].
    N-Phenylthiourea.........................        103-85-5  Non-detect......................             57
    2-Picoline [alpha-Picoline]..............        109-06-8  Non-detect......................           1900
    Propythioracil [6-Propyl-2-thiouracil]...         51-52-5  Non-detect......................            100
    Pyridine.................................        110-86-1  Non-detect......................           1900
    Strychnine...............................         57-24-9  Non-detect......................            100
    Thioacetamide............................         62-55-5  Non-detect......................             57
    Thiofanox................................      39196-18-4  Non-detect......................            100
    Thiourea.................................         62-56-6  Non-detect......................             57
    Toluene-2,4-diamine [2,4-Diaminotoluene].         95-80-7  Non-detect......................             57
    Toluene-2,6-diamine [2,6-Diaminotoluene].        823-40-5  Non-detect......................             57
    o-Toluidine..............................         95-53-4  Non-detect......................           2200
    p-Toluidine..............................        106-49-0  Non-detect......................            100
    1,3,5-Trinitrobenzne, [sym-                       99-35-4  Non-detect......................           2000
     Trinitobenzene].
Halogenated Organics <SUP>b:
    Allyl chloride...........................        107-05-1  Non-detect......................             37
    Aramite..................................        104-57-8  Non-detect......................           1900
    Benzal chloride [Dichloromethyl benzene].         98-87-3  Non-detect......................            100
    Benzyl chloride..........................       100-44-77  Non-detect......................            100
    Bis(2-chloroethyl)ether [Dichloroethyl           111-44-4  Non-detect......................           1900
     ether].
    Bromoform [Tribromomethane]..............         75-25-2  Non-detect......................             37
    Bromomethane [Methyl bromide]............         74-83-9  Non-detect......................             37
    4-Bromophenyl phenyl ether [p-Bromo              101-55-3  Non-detect......................           1900
     diphenyl ether].
    Carbon tetrachloride.....................         56-23-5  Non-detect......................             37
    Chlordane................................         57-74-9  Non-detect......................             14
    p-Chloroaniline..........................        106-47-8  Non-detect......................           1900
    Chlorobenzene............................        108-90-7  Non-detect......................             37
    Chlorobenzilate..........................        510-15-6  Non-detect......................           1900
    p-Chloro-m-cresol........................         59-50-7  Non-detect......................           1900
    2-Chloroethyl vinyl ether................        110-75-8  Non-detect......................             37
    Chloroform...............................         67-66-3  Non-detect......................             37
    Chloromethane [Methyl chloride]..........         74-87-3  Non-detect......................             37
    2-Chlorophthalene [beta-Chlorophthalene].         91-58-7  Non-detect......................           1900
    2-Chlorophenol [o-Chlorophenol]..........         95-57-8  Non-detect......................           1900
    Chloroprene [2-Chloro-1,3-butadiene].....       1126-99-8  Non-detect......................             37
    2,4-D [2,4-Dichlorophenoxyacetic acid]...         94-75-7  Non-detect......................              7.0
    Diallate.................................       2303-16-4  Non-detect......................           1900
    1,2-Dibromo-3-chloropropane..............         96-12-8  Non-detect......................             37
    1,2-Dichlorobenzene [o-Dichlorobenzene]..         95-50-1  Non-detect......................           1900
    1,3-Dichlorobenzene [m-Dichlorobenzene]..        541-73-1  Non-detect......................           1900
    1,4-Dichlorobenzene [p-Dichlorobenzene]..        106-46-7  Non-detect......................           1900
    3,3'-Dichlorobenzidine...................         91-94-1  Non-detect......................           1900
    Dichlorodifluoromethane [CFC-12].........         75-71-8  Non-detect......................             37
    1,2-Dichloroethane [Ethylene dichloride].        107-06-2  Non-detect......................             37
    1,1-Dichloroethylene [Vinylidene                  75-35-4  Non-detect......................             37
     chloride].
    Dichloromethoxy ethane [Bis(2-                   111-91-1  Non-detect......................           1900
     chloroethoxy)methane.
    2,4-Dichlorophenol.......................        120-83-2  Non-detect......................           1900
    2,6-Dichlorophenol.......................         87-65-0  Non-detect......................           1900
    1,2-Dichloropropane [Propylene                    78-87-5  Non-detect......................             37
     dichloride].
    cis-1,3-Dichloropropylene................      10061-01-5  Non-detect......................             37
    trans-1,3-Dichloropropylene..............      10061-02-6  Non-detect......................             37
    1,3-Dichloro-2-propanol..................         96-23-1  Non-detect......................             30
    Endosulfan I.............................        959-98-8  Non-detect......................              1.4
    Endosulfan II............................      33213-65-9  Non-detect......................              1.4

[[Page 33826]]


    Endrin...................................         72-20-8  Non-detect......................              1.4
    Endrin aldehyde..........................       7421-93-4  Non-detect......................              1.4
    Endrin Ketone............................      53494-70-5  Non-detect......................              1.4
    Epichlorohydrin [1-Chloro-2,3-epoxy              106-89-8  Non-detect......................             30
     propane].
    Ethylidene dichloride [1,1-                       75-34-3  Non-detect......................             37
     Dichloroethane].
    2-Fluoroacetamide........................        640-19-7  Non-detect......................            100
    Heptachlor...............................         76-44-8  Non-detect......................              1.4
    Heptachlor epoxide.......................       1024-57-3  Non-detect......................              2.8
    Hexachlorobenzene........................        118-74-1  Non-detect......................           1900
    Hexachloro-1,3-butadiene                          87-68-3  Non-detect......................           1900
     [Hexachlorobutadiene].
    Hexachlorocyclopentadiene................         77-47-4  Non-detect......................           1900
    Hexachloroethane.........................         67-72-1  Non-detect......................           1900
    Hexachlorophene..........................         70-30-4  Non-detect......................           1000
    Hexachloropropene [Hexachloropropylene]..       1888-71-7  Non-detect......................           1900
    Isodrin..................................        465-73-6  Non-detect......................           1900
    Kepone [Chlordecone].....................        143-50-0  Non-detect......................           3600
    Lindane [gamma-Hexachlorocyclohexane]             58-89-9  non-detect......................              1.4
     [gamma-BHC].
    Methylene chloride [Dichloromethane].....         75-09-2  non-detect......................             37
    4,4'-methylene-bis(2-chloroaniline)......        101-14-4  non-detect......................            100
    Methyl iodide [Iodomethane]..............         74-88-4  non-detect......................             37
    Pentachlorobenzene.......................        608-93-5  non-detect......................           1900
    Pentachloroethane........................         76-01-7  non-detect......................             37
    Pentachloronitrobenzene [PCNB]                    82-68-8  non-detect......................           1900
     [Quintobenzene] [Quintozene].
    Pentachlorophenol........................         87-86-5  non-detect......................           1900
    Pronamide................................      23950-58-5  non-detect......................           1900
    Silvex [2,4,5-Trichlorophenoxypropionic           93-72-1  non-detect......................              7.0
     acid].
    2,3,7,8-Tetrachlorodibenzo-p-dioxin             1746-01-6  non-detect......................             30
     [2,3,7,8-TCDD].
    1,2,4,5-Tetrachlorobenzene...............         95-94-3  non-detect......................           1900
    1,1,2,2-Tetrachloroethane................         79-34-5  non-detect......................             37
    Tetrachloroethylene [Perchloroethylene]..        127-18-4  non-detect......................             37
    2,3,4,6-Tetrachlorophenol................         58-90-2  non-detect......................           1900
    1,2,4-Trichlorobenzene...................        120-82-1  non-detect......................           1900
    1,1,1-Trichloroethane [Methyl chloroform]         71-55-6  non-detect......................             37
    1,1,2-Trichloroethane [Vinyl trichloride]         79-00-5  non-detect......................             37
    Trichloroethylene........................         79-01-6  non-detect......................             37
    Trichlorofluoromethane                            75-69-4  non-detect......................             37
     [Trichlormonofluoromethane].
    2,4,5-Trichlorophenol....................         95-95-4  non-detect......................           1900
    2,4,6-Trichlorophenol....................         88-06-2  non-detect......................           1900
    1,2,3-Trichloropropane...................         96-18-4  non-detect......................             37
    Vinyl Chloride...........................         75-01-4  non-detect......................            37
----------------------------------------------------------------------------------------------------------------
<SUP>a Absence of PCBs can also be demonstrated by using appropriate screening methods, e.g., immunoassay kit for PCB
  in oils (Method 4020) or colorimetric analysis for PCBs in oil (Method 9079).
<SUP>b Some minimum required detection limits are above the total halogen limit of 540 ppm. The detection limits
  reflect what was achieved during EPA testing and analysis and also analytical complexity associated with
  measuring all halogen compounds on Appendix VIII at low levels. EPA recognizes that in practice the presence
  of these compounds will be functionally limited by the molecular weight and the total halogen limit of 540
  ppm.

    (c) Implementation.--Waste that meets the comparable or syngas fuel
specifications provided by paragraphs (a) or (b) of this section (these
constituent levels must be achieved by the comparable fuel when
generated, or as a result of treatment or blending, as provided in
paragraphs (c)(3) or (4) of this section) is excluded from the
definition of solid waste provided that the following requirements are
met:
    (1) Notices--For purposes of this section, the person claiming and
qualifying for the exclusion is called the comparable/syngas fuel
generator and the person burning the comparable/syngas fuel is called
the comparable/syngas burner. The person who generates the comparable
fuel or syngas fuel must claim and certify to the exclusion.
    (i) State RCRA and CAA Directors in Authorized States or Regional
RCRA and CAA Directors in Unauthorized States.--
    (A) The generator must submit a one-time notice to the Regional or
State RCRA and CAA Directors, in whose jurisdiction the exclusion is
being claimed and where the comparable/syngas fuel will be burned,
certifying compliance with the conditions of the exclusion and
providing documentation as required by paragraph (c)(1)(i)(C) of this
section;
    (B) If the generator is a company that generates comparable/syngas
fuel at more than one facility, the generator shall specify at which
sites the comparable/syngas fuel will be generated;
    (C) A comparable/syngas fuel generator's notification to the
Directors must contain the following items:
    (1) The name, address, and RCRA ID number of the person/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
paragraph (c)(2) of this section, that will burn the comparable/syngas
fuel; and

[[Page 33827]]

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

    Under penalty of criminal and civil prosecution for making or
submitting false statements, representations, or omissions, I
certify that the requirements of 40 CFR 261.38 have been met for all
waste identified in this notification. Copies of the records and
information required at 40 CFR 261.28(c)(10) are available at the
comparable/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.

    (ii) Public notice.--Prior to burning an excluded comparable/syngas
fuel, the burner must 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/Syngas Fuel Excluded
Under the Resource Conservation and Recovery Act'' containing the
following information:
    (A) Name, address, and RCRA ID number of the generating facility;
    (B) Name and address of the unit(s) that will burn the comparable/
syngas fuel;
    (C) A brief, general description of the manufacturing, treatment,
or other process generating the comparable/syngas fuel;
    (D) An estimate of the average and maximum monthly and annual
quantity of the waste claimed to be excluded; and
    (E) Name and mailing address of the Regional or State Directors to
whom the claim was submitted.
    (2) Burning.--The comparable/syngas fuel exclusion for fuels
meeting the requirements of paragraphs (a) or (b) and (c)(1) of this
section applies only if the fuel is burned in the following units that
also shall be subject to Federal/State/local air emission requirements,
including all applicable CAA MACT requirements:
    (i) Industrial furnaces as defined in Sec. 260.10 of this chapter;
    (ii) Boilers, as defined in Sec. 260.10 of this chapter, that are
further defined as follows:
    (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; or
    (B) Utility boilers used to produce electric power, steam, heated
or cooled air, or other gases or fluids for sale;
    (iii) Hazardous waste incinerators subject to regulation under
subpart O of parts 264 or 265 of this chapter or applicable CAA MACT
standards.
    (3) Blending to meet the viscosity specification.--A hazardous
waste blended to meet the viscosity specification shall:
    (i) As generated and prior to any blending, manipulation, or
processing meet the constituent and heating value specifications of
paragraphs (a)(1)(i) and (a)(2) of this section;
    (ii) Be blended at a facility that is subject to the applicable
requirements of parts 264 and 265, or Sec. 262.34 of this chapter; and
    (iii) Not violate the dilution prohibition of paragraph (c)(6) of
this chapter.
    (4) Treatment to meet the comparable fuel exclusion
specifications.--(i) A hazardous waste may be treated to meet the
exclusion specifications of paragraphs (a)(1) and (2) of this section
provided the treatment:
    (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 parts 264 and 265, or Sec. 262.34 of this Chapter; and
    (C) Does not violate the dilution prohibition of paragraph (c)(6)
of this seciton.
    (ii) Residuals resulting from the treatment of a hazardous waste
listed in subpart D of this part to generate a comparable fuel remain a
hazardous waste.
    (5) Generation of a syngas fuel.--(i) A syngas fuel can be
generated from the processing of hazardous wastes to meet the exclusion
specifications of paragraph (b) of this section provided the
processing:
    (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 parts 264 and 265, or Sec. 262.34 of this chapter or is
an exempt recycling unit pursuant to Sec. 261.6(c) of this chapter; and
    (C) Does not violate the dilution prohibition of paragraph (c)(6)
of this chapter.
    (ii) Residuals resulting from the treatment of a hazardous waste
listed in subpart D of this part to generate a syngas fuel remain a
hazardous waste.
    (6) 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 paragraph (a)(1)(i), (a)(2) or
(b) of this section.
    (7) Waste analysis plans. The generator of a comparable/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 in accordance with
the applicable sections of the ``Test Methods for Evaluating Solid
Waste, Physical/Chemical Methods'' (SW-846). The plan shall be followed
and retained at the facility excluding the waste.
    (i) At a minimum, the plan must specify:
    (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; and
    (E) If process knowledge is used in the waste determination, any
information prepared by the generator in making such determination.
    (ii) The waste analysis plan shall also contain records 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 person(s) 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; and
    (H) All laboratory documentation that support the analytical
results, unless a contract between the claimant and the laboratory
provides for the

[[Page 33828]]

documentation to be maintained by the laboratory for the period
specified in paragraph (c)(11) of this section and also provides for
the availability of the documentation to the claimant upon request.
    (iii) 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
paragraph (c)(7)(i) of this section to the appropriate regulatory
authority. The approval of waste analysis plans must 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 such provisions and conditions as the
regulatory authority deems appropriate.
    (8) Comparable fuel sampling and analysis. (i) General. For each
waste for which an exclusion is claimed, the generator of the hazardous
waste must test for all the constituents on appendix VIII to this part,
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 40 CFR 268.40;
    (B) A constituent detected in previous analysis of the waste;
    (C) Constituents introduced into the process that generates the
waste; or
    (D) Constituents that are byproducts or side reactions to the
process that generates the waste.

    Note to paragraph (c)(8): Any claim under this section must 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.

    (ii) For each waste for which the exclusion is claimed where the
generator of the comparable/syngas fuel is not the original generator
of the hazardous waste, the generator of the comparable/syngas fuel may
not use process knowledge pursuant to paragraph (c)(8)(i) of this
section and must test to determine that all of the constituent
specifications of paragraphs (a)(2) and (b) of this section have been
met.
    (iii) The comparable/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 must demonstrate
that:
    (A) Each constituent of concern is not present in the waste above
the specification level at the 95% upper confidence limit around the
mean; and
    (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.
    (iv) Nothing in this paragraph preempts, overrides or otherwise
negates the provision in Sec. 262.11 of this chapter, which requires
any person who generates a solid waste to determine if that waste is a
hazardous waste.
    (v) In an enforcement action, the burden of proof to establish
conformance with the exclusion specification shall be on the generator
claiming the exclusion.
    (vi) The generator must conduct sampling and analysis in accordance
with their waste analysis plan developed under paragraph (c)(7) of this
section.
    (vii) Syngas fuel and comparable fuel that has not been blended in
order to meet the kinematic viscosity specifications shall be analyzed
as generated.
    (viii) If a comparable fuel is blended in order to meet the
kinematic viscosity specifications, the generator shall:
    (A) Analyze the fuel as generated to ensure that it meets the
constituent and heating value specifications; and
    (B) After blending, analyze the fuel again to ensure that the
blended fuel continues to meet all comparable/syngas fuel
specifications.
    (ix) Excluded comparable/syngas fuel must be re-tested, at a
minimum, annually and must be retested after a process change that
could change the chemical or physical properties of the waste.
    (9) Speculative accumulation. Any persons handling a comparable/
syngas fuel are subject to the speculative accumulation test under
Sec. 261.2(c)(4) of this chapter.
    (10) Records. The generator must maintain records of the following
information on-site:
    (i) All information required to be submitted to the implementing
authority as part of the notification of the claim:
    (A) The owner/operator name, address, and RCRA facility ID number
of the person claiming the exclusion;
    (B) The applicable EPA Hazardous Waste Codes for each hazardous
waste excluded as a fuel; and
    (C) The certification signed by the person claiming the exclusion
or his authorized representative.
    (ii) A brief description of the process that generated the
hazardous waste and process that generated the excluded fuel, if not
the same;
    (iii) An estimate of the average and maximum monthly and annual
quantities of each waste claimed to be excluded;
    (iv) Documentation for any claim that a constituent is not present
in the hazardous waste as required under paragraph (c)(8)(i) of this
section;
    (v) The results of all analyses and all detection limits achieved
as required under paragraph (c)(8) of this section;
    (vi) If the excluded waste was generated through treatment or
blending, documentation as required under paragraph (c)(3) or (4) of
this section;
    (vii) If the waste is to be shipped off-site, a certification from
the burner as required under paragraph (c)(12) of this section;
    (viii) A waste analysis plan and the results of the sampling and
analysis that includes 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 person(s) 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; and
    (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 paragraph (c)(11) of this section and also

[[Page 33829]]

provides for the availability of the documentation to the claimant upon
request; and
    (ix) If the generator ships comparable/syngas fuel off-site for
burning, the generator must retain for each shipment the following
information on-site:
    (A) The name and address of the facility receiving the comparable/
syngas fuel for burning;
    (B) The quantity of comparable/syngas fuel shipped and delivered;
    (C) The date of shipment or delivery;
    (D) A cross-reference to the record of comparable/syngas fuel
analysis or other information used to make the determination that the
comparable/syngas fuel meets the specifications as required under
paragraph (c)(8) of this section; and
    (E) A one-time certification by the burner as required under
paragraph (c)(12) of this section.
    (11) Records retention. Records must be maintained for the period
of three years. A generator must maintain a current waste analysis plan
during that three year period.
    (12) Burner certification. Prior to submitting a notification to
the State and Regional Directors, a comparable/syngas fuel generator
who intends to ship their fuel off-site for burning must obtain a one-
time written, signed statement from the burner:
    (i) Certifying that the comparable/syngas fuel will only be burned
in an industrial furnace or boiler, utility boiler, or hazardous waste
incinerator, as required under paragraph (c)(2) of this section;
    (ii) Identifying the name and address of the units that will burn
the comparable/syngas fuel; and
    (iii) Certifying that the state in which the burner is located is
authorized to exclude wastes as comparable/syngas fuel under the
provisions of this section.
    (13) Ineligible waste codes. Wastes that are listed because of
presence of dioxins or furans, as set out in Appendix VII of this part,
are not eligible for this exclusion, and any fuel produced from or
otherwise containing these wastes remains a hazardous waste subject to
full RCRA hazardous waste management requirements.

PART 270--EPA ADMINISTERED PERMIT PROGRAMS: THE HAZARDOUS WASTE
PERMIT PROGRAM

    1. The authority citation for part 270 continues to read as
follows:

    Authority: 42 U.S.C. 6905, 6912, 6924, 6925, 6927, 6939, and
6974.

Subpart D--Changes to Permits

    2. Section 270.42 is amended by adding a new paragraph (j) to read
as follows:

Sec. 270.42  Permit modification at the request of the permittee.

* * * * *
    (j) Combustion facility changes to meet part 63 MACT standards. The
following procedures apply to hazardous waste combustion facility
permit modifications requested under Appendix I of this section,
section L(9).
    (1) Facility owners or operators must comply with the Notification
of Intent to Comply (NIC) requirements of 40 CFR 63.1211 before a
permit modification can be requested under this section.
    (2) If the Director does not approve or deny the request within 90
days of receiving it, the request shall be deemed approved. The
Director may, at his or her discretion, extend this 90 day deadline one
time for up to 30 days by notifying the facility owner or operator.
    3. In Sec. 270.42 Appendix I is amended by adding entry L(9) to
read as follows:

Appendix I to Sec. 270.42--Classification of Permit Modification

------------------------------------------------------------------------
                          Modification                            Class
------------------------------------------------------------------------
L. Incinerators, Boilers and Industrial Furnaces                   \1\ 1

*                  *                  *                  *
                  *                  *                  *

   9. Technology Changes Needed to meet Standards under 40 CFR part 63
 (Subpart EEE--National Emission Standards for Hazardous Air Pollutants
    From Hazardous Waste Combustors), provided the procedures of Sec.
                         270.42(i) are followed

*                  *                  *                  *
                  *                  *                  *
------------------------------------------------------------------------
\1\ Class 1 modifications requiring Agency prior approval.

* * * * *

Subpart G--Interim Status

    4. Section 270.72 is amended by adding paragraph (b)(8) to read as
follows:

Sec. 270.72  Changes during interim status.

* * * * *
    (b) * * *
    (8) Changes necessary to comply with standards under 40 CFR part
63, Subpart EEE--National Emission Standards for Hazardous Air
Pollutants From Hazardous Waste Combustors.

[FR Doc. 98-15843 Filed 6-18-98; 8:45 am]
BILLING CODE 6560-50-P