33782 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations

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.

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
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations 33783

1We 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.

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.

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 wastederived 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 wastederived 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 wastederived 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.
33784 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations

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.

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.

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 technologybased 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 wastederived fuels that are essentially the

same as fossil fuel, since there would

likely not be environmental benefits

from regulating those hazardous wastederived 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
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations 33785

3A 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.

4For further discussion see USEPA, ‘‘Final

Technical Support Document for HWC MACT

Standards, Development of Comparable Fuels

Specifications’’, May 1998.

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 riskbased 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.

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 nonpetroleum 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
33786 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations

5For 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 nondetect 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.

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.5 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 overestimation of either metals and semivolatiles in No. 6 fuel oil or volatiles in

the higher end fractions.

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
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations 33787

6Note that ppmw is an alternate way of

expressing the units mg/kg.

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).

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 6:

(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

§ 266.103(c)(2)(ii). 50 FR at 49173n.24

(November 29, 1985)). 7 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 § 261.38(a)(1)(i).

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°C) and using as the

specification the viscosity of No. 4 fuel

oil (24.0 cs at 40°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°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 § 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°C) and

using as the specification the flash point

of No. 2 fuel oil (38°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,
33788 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations

8Constituent 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.

9Consult USEPA, ‘‘Final Technical Support

Document for HWC MACT Standards, Development

of Comparable Fuels Specifications’’, May 1998.

10Note 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.

11For further discussion see USEPA, ‘‘Final

Technical Support Document for HWC MACT

Standards, Development of Comparable Fuels

Specifications’’, May 1998.

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.8 EPA chose 10,000 BTU/lb

because it is typical of current

hazardous waste burned for energy

recovery.9 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.10

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

§ 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.11 Using the

benchmark approach, EPA proposed a

composite fuel total halogen limit of 25

ppm.

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
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations 33789

12For further discussion see USEPA, ‘‘Final

Technical Support Document for HWC MACT

Standards, Development of Comparable Fuels

Specifications’’, May 1998.

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.12 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.

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 wastelike’’ 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 nontrivial, 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

§ 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
33790 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations

13For further discussion see USEPA, ‘‘Final

Technical Support Document for HWC MACT

Standards, Development of Comparable Fuels

Specifications’’, May 1998.

14Excluding sulfur, carbon and hydrogen

comprise 99.6 to 100% of liquid fossil fuels.

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.13

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 § 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 nondetects 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

§ 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 § 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 14 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
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations 33791

their pure carbon form since they are

themselves products. See

§ 261.2(c)(2)(ii), and see proposal (61 FR

at 17461).

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 ‘‘nondetect’’ 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 § 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 databased 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 tertbutyl 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 databased 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-tocarbon 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 § 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 (H2) 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 § 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 § 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
33792 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations

15For further discussion see USEPA, ‘‘Final

Technical Support Document for HWC MACT

Standards, Development of Comparable Fuels

Specifications’’, May 1998.

16For further discussion see USEPA, ‘‘Final

Technical Support Document for HWC MACT Rule,

Development of Comparable Fuels Specifications’’,

May 1998.

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 NOX

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.15 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 § 261.38(b)(1).

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 § 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 (N2). 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,

NO2 and NOX 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 organicbound 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 N2) are mostly in the

form of HCN or NH3. Syngas

manufactured from coal can have HCN

and NH3 levels of 100 to 300 ppmv.16 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 (N2)

for synthesis gas fuel. See § 261.38(b)(3).

c. Hydrogen Sulfide Specification.

EPA proposed a hydrogen sulfide (H2S)

specification of 10 ppmv for syngas

fuels. Commenters argued that the H2S

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
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations 33793

17For further discussion see USEPA, ‘‘Final

Technical Support Document for HWC MACT Rule,

Development of Comparable Fuels Specifications’’,

May 1998.

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 nonhazardous waste sources for use as a

fuel.

The sulfur content of the material

used to produce the syngas is converted

to almost entirely H2S in the gasification

process, with smaller amounts of

carbonyl sulfide (COS). Syngas

produced from low sulfur content

material does not contain appreciable

H2S. The H2S content of high sulfur

coal-based syngas can be over 1000

ppmv. However, in these cases, H2S is

removed during the gasification process.

The amount of H2S removal is

dependent on how the syngas will be

used. In the case of syngas used for

chemical feedstock, the H2S removal

can be to a level under 1 ppmv. For the

case of syngas used for fuel, H2S

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.17 Thus, 200 ppmv represents the

level of H2S in gas currently used in

applications where syngas is used as a

fuel. Therefore, in this final rule, EPA is

promulgating a H2S specification of 200

ppmv for synthesis gas fuels. See

§ 261.38(b)(4). EPA further notes that

H2S removal is considered as part of the

gasification process and a syngas

generator is required to meet the H2S

specification after this removal process.

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 § 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

§ 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 ‘‘nondetect’’ 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 crosscontamination, wastes from facilities
33794 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations

(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 noncontact 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 ether].

U359

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

TABLE 2.—LISTED ‘‘U’’ WASTES WITH

NO CORRESPONDING CONSTITUENT

LIMITS—Continued

Constituent for which the waste was

listed

Waste

code

Dibenzo[a,i]pyrene .............................. U064

1,2:3,4-Diepoxybutane [2,2’-Bioxirane] U085

∝,∝-Dimethyl benzyl hydroperoxide ... U096

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 § 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 § 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 § 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 § 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 § 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

§ 261.38(c)(4), that destroys or removes

material to increase the heating value to

meet the exclusion specification.

A waste can meet the § 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 § 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 § 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 § 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

§ 261.38(c)(6). This provision states that

the hazardous constituent and heating
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations 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

§ 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 § 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 § 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

§ 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 § 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 § 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 § 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 § 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 § 264,

§ 265 or § 262.34); or (2) a recycling unit

exempt under § 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 § 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
33796 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations

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

§ 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 § 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.

§ 264.13 (general waste analysis plans)

and § 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 (§ 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

§ 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
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations 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

§ 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 (§ 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 § 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 selfimplementing 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
33798 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations

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 § 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 selfimplementing 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

§ 261.38(c)(2). To ensure that

comparable/syngas fuels burned off-site

are burned in a unit specified in

§ 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 § 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 § 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
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations 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 § 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 § 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

§ 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

§ 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 § 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
33800 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations

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
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations 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 MACTrelated 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 noncompliance 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
33802 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations

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 EPAauthorized 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 § 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
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations 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 ‘‘selfimplementing’’ 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 noncompliance 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
33804 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations

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 noncompliance. 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
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations 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-R96–007, 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 § 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.
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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 § 63.1211 for facility

owners and operators to develop and

submit a Notification of Intent to

Comply (NIC), and in § 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 § 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
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations 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 riskbased 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
33808 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations

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

§ 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

§ 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 § 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
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations 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 preapplication 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 § 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 § 63.9(b), the

notifications of compliance status in

§ 63.9(h), Title V permit application

requirements in § 70.5(c), and RCRA

public involvement requirements in

§ 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 § 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 § 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 § 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.
33810 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations

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 offsite 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
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations 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
33812 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations

18Pollution Prevention 1997, A National Progress

Report (June, 1997). U.S. Environmental Protection

Agency, EPA 742–R–97–00, Washington, D.C.

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.18 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.

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,
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations 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 caseby-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
33814 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations

19 ‘‘Facility Pollution Prevention Planning

Requirements: An Overview of State Program

Evaluations,’’ National Pollution Prevention Round

table (August 8, 1997), Washington, D.C. 20036.

20Aucott, M., Wachspress, D., & Herb J., (May,

1996). ‘‘Industrial Pollution Prevention in New

Jersey,’’ New Jersey Department of Environmental

Protection, Trenton, N.J.

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.

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.19

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.20

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.’’ 21

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.

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 governmentindustry partnerships are producing

pollution prevention results. For

example, 163 industry members of

Texas’ Clean Industries 2000 program
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations 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-bycase 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 onsite 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
33816 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations

the factors facilities must include in

requests for extensions.

In its 1997 NODA, EPA encouraged

facilities that wish to apply for a oneyear 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
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations 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 #

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
33818 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations

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
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations 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.
33820 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations

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.

§ 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
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations 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 § 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.

§ 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;
33822 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations

(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.

§ 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).

§ 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

§ 63.6(i)(4) or § 63.1216 to request an

extension of the compliance date.

§ 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 §§ 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

§§ 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.

§ 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
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations 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

§§ 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 oneyear 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:

§ 261.4 Exclusions.

(a) * * *

(16) Comparable fuels or comparable

syngas fuels (i.e., comparable/syngas

fuels) that meet the requirements of

§ 261.38.

* * * * *

3. Section 261.38 is added to read as

follows:

§ 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 (N2);

(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 § 261.38: DETECTION AND DETECTION LIMIT VALUES FOR COMPARABLE FUEL SPECIFICATION

Chemical name CAS No.

Concentration limit

(mg/kg at

10,000 BTU/

lb)

Minimum required 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, total] a ....................................................................... 1336–36–3 Non-detect .. 1.4

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:
33824 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations

TABLE 1 TO § 261.38: DETECTION AND DETECTION LIMIT VALUES FOR COMPARABLE FUEL SPECIFICATION—Continued

Chemical name CAS No.

Concentration limit

(mg/kg at

10,000 BTU/

lb)

Minimum required detection

limit

(mg/kg)

Acetophenone ........................................................................................................................ 98–86–2 1900 ............ ..........................

Acrolein .................................................................................................................................. 107–02–8 37 ................ ..........................

Allyl alcohol ............................................................................................................................ 107–18–6 30 ................ ..........................

Bis(2-ethylhexyl)phthalate [Di-2-ethylhexyl phthalate] .......................................................... 117–81–7 1900 ............ ..........................

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 monoethyl ether] .............................................................. 110–80–5 100 .............. ..........................

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 [Thionazin] ......................................................... 297–97–2 Non-detect .. 1900

Dimethoate ............................................................................................................................ 60–51–5 Non-detect .. 1900

p-(Dimethylamino)azobenzene [4-Dimethylaminoazobenzene] ............................................ 60–11–7 Non-detect .. 1900

3,3′-Dimethylbenzidine .......................................................................................................... 119–93–7 Non-detect .. 1900

α,α-Dimethylphenethylamine ................................................................................................. 122–09–8 Non-detect .. 1900

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 cyanohydrin] ............................................................................ 75–86–5 Non-detect .. 100

Methyl parathion .................................................................................................................... 298–00–0 Non-detect .. 1900

MNNG (N-Metyl-N-nitroso-N’-nitroguanidine) ........................................................................ 70–25–7 Non-detect .. 110

1-Naphthylamine, [α-Naphthylamine] .................................................................................... 134–32–7 Non-detect .. 1900

2-Naphthylamine, [β-Naphthylamine] .................................................................................... 91–59–8 Non-detect .. 1900

Nicotine .................................................................................................................................. 54–11–5 Non-detect .. 100
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations 33825

TABLE 1 TO § 261.38: DETECTION AND DETECTION LIMIT VALUES FOR COMPARABLE FUEL SPECIFICATION—Continued

Chemical name CAS No.

Concentration limit

(mg/kg at

10,000 BTU/

lb)

Minimum required detection

limit

(mg/kg)

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, [Diphenylnitrosamine] .................................................................... 86–30–6 Non-detect .. 1900

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-Phenylenediamine] ..................................................................... 106–50–3 Non-detect .. 1900

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-Trinitobenzene] ........................................................................... 99–35–4 Non-detect .. 2000

Halogenated Organics 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 ether] ......................................................................... 111–44–4 Non-detect .. 1900

Bromoform [Tribromomethane] ............................................................................................. 75–25–2 Non-detect .. 37

Bromomethane [Methyl bromide] .......................................................................................... 74–83–9 Non-detect .. 37

4-Bromophenyl phenyl ether [p-Bromo diphenyl ether] ........................................................ 101–55–3 Non-detect .. 1900

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 chloride] ............................................................................ 75–35–4 Non-detect .. 37

Dichloromethoxy ethane [Bis(2-chloroethoxy)methane ......................................................... 111–91–1 Non-detect .. 1900

2,4-Dichlorophenol ................................................................................................................. 120–83–2 Non-detect .. 1900

2,6-Dichlorophenol ................................................................................................................. 87–65–0 Non-detect .. 1900

1,2-Dichloropropane [Propylene dichloride] .......................................................................... 78–87–5 Non-detect .. 37

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
33826 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations

TABLE 1 TO § 261.38: DETECTION AND DETECTION LIMIT VALUES FOR COMPARABLE FUEL SPECIFICATION—Continued

Chemical name CAS No.

Concentration limit

(mg/kg at

10,000 BTU/

lb)

Minimum required detection

limit

(mg/kg)

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 propane] ...................................................................... 106–89–8 Non-detect .. 30

Ethylidene dichloride [1,1-Dichloroethane] ............................................................................ 75–34–3 Non-detect .. 37

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 [Hexachlorobutadiene] ................................................................ 87–68–3 Non-detect .. 1900

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] [gamma-BHC] ................................................... 58–89–9 non-detect ... 1.4

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] [Quintobenzene] [Quintozene] ........................................ 82–68–8 non-detect ... 1900

Pentachlorophenol ................................................................................................................. 87–86–5 non-detect ... 1900

Pronamide ............................................................................................................................. 23950–58–5 non-detect ... 1900

Silvex [2,4,5-Trichlorophenoxypropionic acid] ....................................................................... 93–72–1 non-detect ... 7.0

2,3,7,8-Tetrachlorodibenzo-p-dioxin [2,3,7,8-TCDD] ............................................................. 1746–01–6 non-detect ... 30

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 [Trichlormonofluoromethane] ........................................................... 75–69–4 non-detect ... 37

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

aAbsence 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). bSome 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 onetime 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
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations 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

§ 260.10 of this chapter;

(ii) Boilers, as defined in § 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 § 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 § 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 § 262.34 of this

chapter or is an exempt recycling unit

pursuant to § 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
33828 Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations

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 § 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 § 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 offsite, 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
Federal Register / Vol. 63, No. 118 / Friday, June 19, 1998 /Rules and Regulations 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:

§ 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 § 270.42 Appendix I is amended

by adding entry L(9) to read as follows:

Appendix I to § 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 § 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:

§ 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