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###### Environmental Protection Agency

          - 40 CFR Part 63 
          - [FRL-6898-8] 
          - RIN 2050-AE01 

# AGENCY:

Environmental Protection Agency (EPA, the Agency). 

# ACTION:

Final rule; Interpretive Clarification and Technical Correction. 

# SUMMARY:

On September 30, 1999 (64 FR 52828), EPA issued a final rule promulgating revised standards for hazardous waste incinerators, hazardous waste burning cement kilns, and hazardous waste burning lightweight aggregate kilns. These standards were promulgated under joint authority of the Clean Air Act (CAA) and Resource Conservation and Recovery Act (RCRA). Sources subject to these standards have raised questions regarding the applicability of new source versus existing source standards for hazardous waste incinerators. In part one of today's rule, we clarify the original intent of our rule on these issues. In part two of today's rule, we make three technical corrections. 

# DATES:

This rule is effective on November 9, 2000. 

# ADDRESSES:

You may view the docket for this rulemaking at the RCRA Information Center (RIC), located at Crystal Gateway I, First Floor, 1235 Jefferson Davis Highway, Arlington, VA. You should ask for docket number F-2000-RF3C-FFFFF. The RIC is open from 9 a.m. to 4 p.m., Monday through Friday, excluding federal holidays. 

# FOR FURTHER INFORMATION CONTACT:

                        For general information or to order paper copies of this                         **Federal Register**                         document, contact the RCRA Hotline Monday through Friday between 9 a.m. and 6 p.m. EST, toll free at (800) 424-9346; or (703) 412-9810 from Government phones or if in the Washington, DC local calling area; or (800) 553-7672 for the hearing impaired. For information on this rule contact David Hockey (5302W), Office of Solid Waste, Ariel Rios Building, 1200 Pennsylvania Avenue, NW., Washington, DC 20460, or at                         *hockey.david@epa.gov*, or at telephone number 703-308-8846.                     

# SUPPLEMENTARY INFORMATION:

## Table of Contents

Part One: Clarifications 

I. What Is the Purpose of This Section? 

II. What is the Scope of the Definition of Hazardous Waste Incinerator? 

III. Clarification of “Reconstructed Sources'' 

Part Two: Technical Corrections 

I. What Is the Purpose of This Section? 

II. The Deadline for Conducting the Subsequent Comprehensive Performance Test After Using Data in Lieu of the Initial Performance Test is Corrected 

III. The Confusion between Continuous Monitoring System Evaluation Plan and Evaluation Test Plan is Corrected 

IV. Procedures to Begin Calculating Continuous Monitoring System Rolling Averages is Corrected for Sources That Comply Early 

Part Three: Good Cause Exemption 

Part Four: How is the Program Delegated Under the Clean Air Act? 

Part Five: Analytic and Regulatory Requirements

## Part one: Clarifications 

### I. What Is the Purpose of This Section? 

EPA promulgated emission standards for hazardous waste-burning incinerators, lightweight aggregate kilns and cement kilns on September 30, 1999. 64 FR 52828. These standards implement section 112(d) of the Clean Air Act and reflect the performance of the Maximum Available Control Technology (or MACT). The standards themselves are normally called National Emission Standards for Hazardous Air Pollutants (NESHAP). 

The Hazardous Waste Combustor (HWC) NESHAP contains two sets of emission standards: One set for existing sources and a second, generally more stringent, set for new sources. Several incinerators subject to this NESHAP have requested clarification as to the applicability of new versus existing source standards in situations when existing incinerators are modified to comply with the emission standards. Specifically, these incinerators have requested clarification on two issues that affect the applicability of new versus existing source standards. First, incinerator commenters want to know if an incinerator's air pollution control device is considered to be part of the “affected source” for purposes of this rule. Second, these commenters want to know if the costs of replacement or retrofitting of air pollution control equipment, installed to comply with the HWC NESHAP (incurred between the proposal and source's compliance date), are to be considered as “reconstruction” costs in determining if new source standards apply. 

After receiving these comments, we further studied the regulatory text and determined that the definitions are either ambiguous or contain (unintended) gaps on several points. In this rule, therefore, we set out our interpretation of these provisions and add clarifying language to the rules to remove ambiguity or gaps and to better express our original intent. We note further, that these interpretations apply to this NESHAP alone and so have no precedential value for interpreting any other NESHAP or any other Clean Air Act regulation. 

### II. What Is the Scope of the Definition of Hazardous Waste Incinerator? 

The HWC MACT standards apply to, among other sources, “hazardous waste incinerators.” These are defined at 40 CFR 260.10, as (for purposes relevant here) “any enclosed device that [u]ses controlled flame combustion and neither meets the criteria for classification as a boiler, sludge dryer, or carbon regeneration unit, nor is listed as an industrial furnace.” This definition does not explicitly address whether air pollution control equipment and other hazardous waste burning equipment, e.g., the waste firing system, is considered to be part of the incinerator. 

The relationship of this definition to the question of new source standard applicability is that, as provided in § 63.1206(a)(3), “if you commenced construction or reconstruction of your hazardous waste combustor after April 19, 1996”, the source is subject to the new source standards. If pollution control equipment is part of the incinerator, then an incinerator that began retrofitting pollution control equipment before April 19, 1996 ordinarily would not be subject to the new source standards. Conversely, if only the combustion chamber is considered to be the source, then only changes to the combustion chamber begun before April 19, 1996 would be relevant in assessing new source standard applicability. 

                    As described by commenters, the definition of an incinerator at 40 CFR 260.10 is unclear with regard to whether the “enclosed device” includes the air pollution control device (APCD). In one instance, the enclosed device can be interpreted to include only the burn chamber, typically either a box or cylindrical configuration, into which waste is fed and burned using controlled flame combustion. However, the definition also can be read to include not only the burn chamber, but also to include other parts of the device through which combustion off-gases, that can contain significant concentrations of hazardous air                           ( print page 67269)                        pollutants (HAPs), flow prior to release to the environment. These APCDs, of course, are also enclosed and so are part of the device preventing release of HAPs until the end of the combustion process. These gases continue to be regulated, as is the APCD itself.                 

                    In promulgating the HWC NESHAP rule, we intended that the incinerator source include not only the combustion chamber, but also the waste firing system and the APCD. The commercial purpose of an HWC is the safe treatment (destruction) of hazardous organic pollutants. In order to provide safe treatment, other HAPs may require capture, additional treatment, and disposal. For hazardous waste incinerators, we regulate, through specific operating conditions and monitoring requirements, all aspects of the source that may affect emissions of HAPs from the burning of hazardous wastes. See 64 FR at 53055—53062. Because the APCD affects emissions of HAPs, e.g., dioxin/furan formation, toxic metals capture, acid gas removal, we consider the APCD integral to the treatment process, and, therefore, to the source as a whole. For example, when describing the applicability of requirements in response to comments, we say that requirements apply to “* * * all components of the combustor, including associated pollution control equipment.” US EPA,                     *Response to Comments Background Document, Volume II:*                     Compliance, PM Control (PMCOMP.WPD), page 6.                 

We acknowledge that this intent should have been expressed in the definition of an incinerator. Therefore, we make our intent explicit by adding the following clarification to the rule: To the definition of a hazardous waste incinerator in § 63.1201(a) we add the following sentence: “For purposes of this subpart, the hazardous waste incinerator includes all associated firing systems and air pollution control devices, as well as the combustion chamber equipment.” 

Most importantly, this interpretation maintains the status quo in defining new source incinerators. In implementing the RCRA subtitle C rules, we included air pollution controls as part of the incinerator. This is important in that section 112(n)(7) of the CAA calls for integration of the standards under both RCRA and CAA programs to the extent practicable (consistent with the requirements of section 112). In this case, it is “practicable,” in the words of section 112(n)(7), to carry over this RCRA practice into implementation of the MACT standard. We are therefore doing so here. However, we note that due to this need to link with the RCRA subtitle C program, this action creates no precedent for any other CAA source category. 

### III. Clarification of “Reconstructed Sources”

Section 63.1206(a)(3), as promulgated, states that “if you commenced construction or reconstruction of your hazardous waste combustor after April 19, 1996, you must comply with (the new source standards).” “Reconstruction,” in turn, is defined in the General Provisions (in relevant part) as “the replacement of components of an affected * * * source to such an extent that the fixed capital cost of the new components exceeds 50 percent of the fixed capital costs that would be required to construct a comparable new source.” Section 63.2 (definition of “reconstruction”). In adopting § 63.1206(a)(3), we intended that the cost of retrofitting and replacement of air pollution control devices installed to comply with the MACT standard is not to be considered as a cost of reconstruction. As shown below, this principle has long been codified in the RCRA subtitle C rules. We also stated in the administrative record to the 1999 HWC MACT rule that we meant for the same principle to apply here. 

The RCRA subtitle C rules have long included the same cost test for determining when reconstruction occurs as is found in the General Provisions. In 40 CFR 270.72(b) we use the definition of reconstruction in a context directly analogous to whether new source status is triggered. This section defines when changes to an interim status RCRA facility are so extensive as to amount to reconstruction, causing a source to be subject to the more stringent standards for fully permitted facilities. The rules state, however, that this reconstruction cost test does not apply to units that are added due to the need to comply with a new RCRA rule. Section 270.72(b)(7). We initially proposed this principle for boilers and industrial furnaces burning hazardous waste (see 52 FR at 17013 (May 6, 1987)), but later codified the policy for all RCRA facilities in order that the principle—new units added to meet new regulations are not to be considered in applying the reconstruction cost test—apply generally. 56 FR at 7186 (Feb. 21, 1991). In addition, the RCRA rules (as amended in a 1998 rulemaking) further state that “changes necessary to comply with standards under 40 CFR Part 63 subpart EEE (the hazardous waste combustor MACT standards)” are not to be considered as reconstruction costs for purposes of RCRA. Section 270.72(b). This provision was added specifically to ensure that the costs of coming into compliance with the MACT standards incurred by hazardous waste combustion sources were not to be considered in applying the reconstruction cost test. 63 FR at 33805 (June 19, 1998). 

                    With these existing rules establishing our approach, we intended to apply the same principle in determining which costs were to be included within the reconstruction cost test used for determining applicability of new source standards for hazardous waste combustors. We also reiterated that these costs would not be considered as reconstruction costs in the RCRA context, emphasizing that this approach avoided any potential conflict between the CAA and RCRA regimes (implying that the principle regarding reconstruction costs was meant to apply in both contexts). US EPA,                     *Response to Comments Background Document, Vol. 1: Miscellaneous Standards,*                     pp. 56-7.                 

To clarify our intent, today we add the following sentence to the end of § 63.1206(a)(3) New or reconstructed sources: “The costs of retrofitting and replacement of equipment that is installed specifically to comply with this subpart, between April 19, 1996 and a source's compliance date, are not considered to be reconstruction costs.” 

As with the definition of affected source, this clarifying change regarding the reconstruction test, is needed to further the purpose of section 112(n)(7) of the CAA. This section calls for integration of the standards under both CAA and RCRA programs to the extent practicable (consistent with the requirements of section 112). Here, as just explained, longstanding RCRA practice is not to include costs of new units needed to comply with new regulatory standards as reconstruction costs. It is “practicable “ (section 112(n)(7)) to carry this administrative principle over into the CAA regime for RCRA sources. As with the definition of affected source, this action is therefore not precedential for any non-RCRA source category. 

## Part Two: Technical Corrections 

### I. What Is the Purpose of This Section? 

                    This final rule also makes three technical corrections to the Hazardous Waste Combustor NESHAPS promulgated on September 30, 1999 (64 FR 52828). First, if you use data in lieu of your initial comprehensive performance test, you must commence a comprehensive performance test within five years of the commencement date of the test from which the data were                           ( print page 67270)                        obtained. Second, you are required to submit your continuous monitoring system (CMS) evaluation test plan rather than the evaluation plan for review and approval. Third, if you comply with the standards early, you begin calculating continuous monitoring system rolling averages at the time you elect to begin complying with the standards.                 

### II. The Deadline for Conducting the Subsequent Comprehensive Performance Test After Using Data in Lieu of the Initial Performance Test Is Corrected 

Section 63.1207(d)(1) inadvertently requires you to commence the subsequent comprehensive performance test within 61 months of the date six months after the compliance date if you submit data in lieu of the initial comprehensive performance test. This is incorrect. As discussed in the preamble (see 64 FR at 52917-18), your subsequent comprehensive performance test must commence within five years of the commencement date of the test from which you are using data in lieu of the initial comprehensive performance test. For example, if you commence an emissions test on September 30 2001, one year prior to the compliance date, and the results of that test can be used in lieu of the initial comprehensive performance test to demonstrate compliance with Subpart EEE, you must commence your subsequent comprehensive performance test within five years of that date, September 30, 2006. 

For the reasons discussed above, we revise § 63.1207(d)(1) to make it consistent with the preamble. 

### III. The Confusion Between Continuous Monitoring System Evaluation Plan and Evaluation Test Plan is Corrected 

Sections 63.1207(e)(1) and (e)(2) inadvertently require you to submit a continuous monitoring system (CMS) evaluation plan for review and approval at least one year prior to the scheduled date of the CMS performance evaluation. What we actually intended was to require you to submit the CMS evaluation test plan, for review and approval. The CMS evaluation test plan describes the actual testing necessary to demonstrate calibration, minimization of malfunctions, and how the CMS will meet the required performance specifications. 

The CMS evaluation plan implements your CMS quality control program and specifies how a source will maintain calibration of the CMS and minimize malfunctions. As required by Subpart EEE, you must keep the CMS evaluation plan on record for the life of the source and make the plan available for inspection upon request by the Administrator. As we correct in today's notice you need not submit the CMS evaluation plan for review and approval. 

We revise §§ 63.1207(e)(1) and (e)(2) accordingly. 

### IV. Procedures to Begin Calculating Continuous Monitoring System Rolling Averages Is Corrected for Sources That Comply Early 

The September 30, 1999 Final Rule requires you to begin recording one-minute continuous emission monitor (CEM) and continuous monitoring system (CMS) values by 12:01 a.m., hourly rolling average values by 1:01 a.m., and twelve hour rolling averages by 12:01 p.m.. See §§ 63.1209(a)(6)(i) and (b)(5)(i). Although not explicitly written, we intended this provision to apply to you on the regulatory compliance date (i.e., three years after Final Rule promulgation). We have since determined that there could be situations where you would choose to voluntarily comply with the MACT standards before the compliance date. In such situations, the requirement for you to begin calculating one-minute averages, hourly rolling averages, and 12-hour rolling averages by 12:01 a.m., 1:01 a.m., and 12:01 p.m., respectively, is inappropriate. 

Today we are correcting the regulatory language in §§ 63.1209(a)(6)(i) and (b)(5)(i) in order to clarify that: (1) The requirement to begin calculating one-minute averages, hourly rolling averages, and 12-hour rolling averages by 12:01 a.m., 1:01 a.m., and 12:01 p.m., respectively, applies only to sources that begin complying with the MACT standards on the regulatory compliance date; and, (2) if you elect to comply early with the MACT standards, you must simply begin recording CEM and CMS rolling averages at the time at which you elect to begin complying with the MACT standards. We believe this correction is prudent because of our desire to promote the concept of early compliance. 

## Part Three: Good Cause Exemption 

                    Section 553 of the Administrative Procedure Act, 5 U.S.C. 553(b)(B), provides that, when an agency for good cause finds that notice and public procedure are impracticable, unnecessary or contrary to the public interest, the agency may issue a rule without providing notice and an opportunity for public comment.[1]                                          EPA has determined that there is good cause for making today's rule final without prior proposal and opportunity for comment because it merely clarifies certain requirements and provides technical corrections (corrects errors) to the Hazardous Waste Combustors NESHAP Final Rule (64 FR 52828, September 30, 1999). The final rule was subject to notice and comment, and the clarified regulatory language reflects the Agency's views already set out during the rulemaking and in past Agency practice. Thus, notice and public procedure for this action are unnecessary. EPA finds that this constitutes good cause under 5 U.S.C. 553(b)(B).                 

## Part Four: How Is the Program Delegated Under the Clean Air Act? 

States can implement and enforce the new MACT standards through their delegated 112(l) CAA program and/or by having title V authority. A State's title V authority is independent of whether it has been delegated section 112(l) of the CAA. Additional information on state authority under the CAA may be found in the HWC MACT rule (64 FR 52991). 

## Part Five: Analytic and Regulatory Requirements. 

                    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and is therefore not subject to review by the Office of Management and Budget. Because the agency has made a “good cause” finding, see Section I above, that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute (see Part Three: Good Cause Exemption), it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601*et seq.*), or to sections 202 and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Public Law 104-4). In addition, this action does not significantly or uniquely affect small governments or impose a significant intergovernmental mandate, as described in sections 203 and 204 of UMRA. This rule also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13084 (63 FR 27655, May 10, 1998). This rule will not have substantial direct effects on the States, on the relationship between the                           ( print page 67271)                        national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). This rule also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant.                 

                    This interpretive clarification and technical correction action does not involve technical standards; thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. The rule also does not involve special consideration of environmental justice related issues as required by Executive Order 12898 (59 FR 7629, February 16, 1994). In issuing this rule, we have taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct, as required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996). EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501*et seq.*). Our compliance with these statutes and Executive Orders for the underlying rule is discussed in the September 30, 1999,                     **Federal Register**                     notice.                 

                    The Congressional Review Act, (5 U.S.C. 801*et seq.*), as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. Section 808 allows the issuing agency to make a good cause finding that notice and public procedure is impracticable, unnecessary or contrary to the public interest. This determination must be supported by a brief statement. 5 U.S.C. 808(2). As stated previously, EPA has made such a good cause finding, including the reasons therefore, and established an effective date of November 9, 2000. EPA will submit 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 United States prior to publication of the rule in the                     **Federal Register**                    . This action is not a “major rule” as defined by 5 U.S.C. 804(2).                 

# List of Subjects in 40 CFR Part 63

      - Environmental protection
      - Air pollution control
      - Hazardous substances
      - Reporting and recordkeeping requirements

Dated: October 31, 2000.

Michael Shapiro, 

Deputy Assistant Administrator, Office of Solid Waste and Emergency Response. 

For the reasons set out in the preamble, title 40 chapter I of the Code of Federal Regulations is 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. Section 63.1201 is amended by revising the definition of “Hazardous waste incinerator” in paragraph (a) to read as follows: 

§ 63.1201 

(a) * * * 

*Hazardous waste incinerator*                             means a device defined as an incinerator in § 260.10 of this chapter and that burns hazardous waste at any time. For purposes of this subpart, the hazardous waste incinerator includes all associated firing systems and air pollution control devices, as well as the combustion chamber equipment.                         

* * * * *

3. Section 63.1206 is amended by revising paragraph (a)(3)(i) to read as follows: 

§ 63.1206 

(a) * * * 

(3) * * * 

(i) If you commenced construction or reconstruction of your hazardous waste combustor after April 19, 1996, you must comply with this subpart by the later of September 30, 1999 or the date the source starts operations, except as provided by paragraph (a)(3)(ii) of this section. The costs of retrofitting and replacement of equipment that is installed specifically to comply with this subpart, between April 19, 1996 and a source's compliance date, are not considered to be reconstruction costs. 

* * * * *

4. Section 63.1207 amended by revising paragraphs (d)(1), (e)(1)(i) introductory text, (e)(1)(i)(A), (e)(1)(ii), and (e)(2) to read as follows: 

§ 63.1207 

* * * * *

(d) * * * 

                            (1)                             *Comprehensive performance testing.*                             You must commence testing no later than 61 months after the date of commencing the previous comprehensive performance test. If you submit data in lieu of the initial performance test, you must commence the subsequent comprehensive performance test within 61 months of commencing the test used to provide the data in lieu of the initial performance test.                         

* * * * *

(e) * * * 

(1) * * * 

                            (i)                             *Comprehensive performance test.*                             You must submit to the Administrator a notification of your intention to conduct a comprehensive performance test and CMS performance evaluation and a site-specific test plan and CMS performance evaluation test plan at least one year before the performance test and performance evaluation are scheduled to begin.                         

(A) The Administrator will notify you of approval or intent to deny approval of the site-specific test plan and CMS performance evaluation test plan within 9 months after receipt of the original plan. 

* * * * *

                            (ii)                             *Confirmatory performance test.*                             You must submit to the Administrator a notification of your intention to conduct a confirmatory performance test and CMS performance evaluation and a site-specific test plan and CMS performance evaluation test plan at least 60 calendar days before the performance test is scheduled to begin. The Administrator will notify you of approval or intent to deny approval of the site-specific test plan and CMS performance evaluation test plan within 30 calendar days after receipt of the original test plans.                         

(2) After the Administrator has approved the site-specific test plan and CMS performance evaluation test plan, you must make the test plans available to the public for review. You must issue a public notice announcing the approval of the test plans and the location where the test plans are available for review. 

* * * * *

5. Section 63.1209 is amended by revising paragraphs (a)(6)(i) and (b)(5)(i) to read as follows: 

§ 63.1209 

                            (a) * * *                                   ( print page 67272)    

(6) * * * 

                            (i)                             *Calculation of rolling averages initially.*                             The carbon monoxide or hydrocarbon CEMS must begin recording one-minute average values by 12:01 a.m. and hourly rolling average values by 1:01 a.m., when 60 one-minute values will be available for calculating the initial hourly rolling average for those sources that come into compliance on the regulatory compliance date. Sources that elect to come into compliance before the regulatory compliance date must begin recording one-minute and hourly rolling average values within 60 seconds and 60 minutes (when 60 one-minute values will be available for calculating the initial hourly rolling average), respectively, from the time at which compliance begins.                         

* * * * *

(b) * * * 

(5) * * * 

                            (i)                             *Calculation of rolling averages initially.*                             Continuous monitoring systems must begin recording one-minute average values by 12:01 a.m., hourly rolling average values by 1:01 a.m.(e.g., when 60 one-minute values will be available for calculating the initial hourly rolling average), and twelve-hour rolling averages by 12:01 p.m.(e.g., when 720 one-minute averages are available to calculate a 12-hour rolling average), for those sources that come into compliance on the regulatory compliance date. Sources that elect to come into compliance before the regulatory compliance date must begin recording one-minute, hourly rolling average, and 12-hour rolling average values within 60 seconds, 60 minutes (when 60 one-minute values will be available for calculating the initial hourly rolling average), and 720 minutes (when 720 one-minute values will be available for calculating the initial 12-hour hourly rolling average) respectively, from the time at which compliance begins.                         

* * * * *

# Footnotes

1.                             The good cause exemption in 5 U.S.C. 553 (b) applies here, even though this is a rulemaking otherwise subject to the procedural standards set out in section 307 (d) of the Clean Air Act. See CAA section 307 (d) (1) (final sentence).                     
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[FR Doc. 00-28710 Filed 11-8-00; 8:45 am] 

BILLING CODE 6560-50-P